Republic of the Philippines

BULACAN STATE UNIVERSITY

COLLEGE OF LAW

Public International Law

Case Digest

Submitted to: Atty. Gepty, Allan

Submitted by: JD-2C
ARCEGA, Enricke Joshua C.
IPAP
v.
Ochoa
GR No. 204605
July 1, 2016

FACTS: In this special civil action for certiorari and prohibition, the Intellectual Property
Association of the Philippines (IPAP) seeks to declare the accession of the Philippines to
the Protocol Relating to the Madrid Agreement Concerning the International Registration of
Marks (Madrid Protocol) unconstitutional on the ground of the lack of concurrence by the
Senate, and in the alternative, to declare the implementation thereof as unconstitutional
because it conflicts with Republic Act No. 8293, otherwise known as the Intellectual Property
Code of the Philippines (IP Code).
The Madrid System for the International Registration of Marks (Madrid System), which is the
centralized system providing a one-stop solution for registering and managing marks worldwide,
allows the trademark owner to file one application in one language, and to pay one set of fees to
protect his mark in the territories of up to 97 member-states. The Madrid Protocol, which was
adopted in order to remove the challenges deterring some countries from acceding to
the Madrid Agreement, has two objectives, namely: (1) to facilitate securing protection for
marks; and (2) to make the management of the registered marks easier in different countries. In
2004; the Intellectual Property Office of the Philippines (IPOPHL), the government agency
mandated to administer the intellectual property system of the country and to implement the
state policies on intellectual property; began considering the country's accession to the Madrid
Protocol. After its own review, the DFA endorsed to the President the country's accession to
the Madrid Protocol. Conformably with its express authority under Section 9 of Executive Order
No. 459 (Providing for the Guidelines in the Negotiation of International Agreements and its
Ratification) dated November 25, 1997, the DFA determined that the Madrid Protocol was an
executive agreement.1âwphi1 The IPOPHL, the Department of Science and Technology, and the
Department of Trade and Industry concurred in the recommendation of the DFA. On March 27,
2012, President Benigno C. Aquino III ratified the Madrid Protocol through an instrument of
accession, The instrument of accession was deposited with the Director General of the World
Intellectual Property Organization (WIPO) on April 25, 2012. The Madrid Protocol entered into
force in the Philippines on July 25, 2012.
The IPAP has insisted that Article 2 of the Madrid Protocol means that foreign trademark
applicants may file their applications through the International Bureau or the WIPO, and their
applications will be automatically granted trademark protection without the need for designating
their resident agents in the country.
The IPAP has prayed that the implementation of the Madrid Protocol in the Philippines be
restrained in order to prevent future wrongs considering that the IP AP and its constituency have
a clear and unmistakable right not to be deprived of the rights granted them by the IP Code and
existing local laws.
In its comment in behalf of the respondents, the Office of the Solicitor General (OSG) has stated
that the IPAP does not have the locus standi to challenge the accession to the Madrid
Protocol; that the IPAP cannot invoke the Court's original jurisdiction absent a showing of any
grave abuse of discretion on the part of the respondents; that the President's ratification of
the Madrid Protocol as an executive agreement is valid because the Madrid Protocol is only
procedural, does not create substantive rights, and does not require the amendment of the IP
Code; that the IPAP is not entitled to the restraining order or injunction because it suffers no
damage from the ratification by the President, and there is also no urgency for such relief; and
the IPAP has no clear unmistakable right to the relief sought.

ISSUE: WON the Madrid Protocol is unconstitutional due to lack of concurrence of the Senate

HELD: NO. The Court finds and declares that the President’s ratification is valid and constitutional
because the Madrid Protocol, being an executive agreement as determined by the Department
of Foreign Affairs, does not require the concurrence of the Senate.
Under prevailing jurisprudence, the registration of trademarks and copyrights have been the
subject of executive agreements entered into without the concurrence of the Senate. Some
executive agreements have been concluded in conformity with the policies declared in the acts
of Congress with respect to the general subject matter.
Accordingly, DFA Secretary Del Rosario’s determination and treatment of the Madrid Protocol as
an executive agreement; being in apparent contemplation of the express state policies on
intellectual property as well as within his power under Executive Order No. 459, are upheld.
The Court observed that there are no hard and fast rules on the propriety of entering into a
treaty or an executive agreement on a given subject as an instrument of international relations.
The primary consideration in the choice of the form of agreement is the parties’ intent and
desire to craft their international agreement in the form they so wish to further their respective
interests. The matter of form takes a back seat when it comes to effectiveness and binding effect
of the enforcement of a treaty or an executive agreement; inasmuch as all the parties; regardless
of the form, become obliged to comply conformably with the time-honored principle of pacta
sunt servanda. The principle binds the parties to perform in good faith their parts in the
agreements.
Babad, Liezel S.

SAGUISAG VS OCHOA
G.R. No. 212426, January 12, 2016

Ponente: Sereno, C.J.

Petitioners: Rene Saguisag, et al.

Respondents: Paquito Ochoa, Jr. (Exec. Secretary), Voltaire Gazmin (DND Secretary), Albert del
Rosario, Jr. (DFA Secretary), Florencio Abad (DBM Secretary), Gen. Emmanuel Bautista (AFP Chief
of Staff)

Petition: Petition for certiorari assailing the constitutionality of EDCA

Facts:

The presence of the U.S. military forces in the country can be traced to their pivotal victory in the
1898 Battle of Manila Bay during the Spanish-American War. By 1899, the Americans had
consolidated a military administration in the archipelago.

Soon after the Philippines was granted independence, the two countries entered into their first
military arrangement pursuant to the Treaty of General Relations - the 1947 MBA. Soon after,
pursuant to the legislative authorization granted under Republic Act No. 9, the President also
entered into the 1947 Military Assistance Agreement with the U.S.

Then comes the first Visiting Forces Agreement that has laid down the regulatory mechanism for
the treatment of U.S. military and civilian personnel visiting the country. The Philippines and the
U.S. also entered into a second counterpart agreement (VFA II), which in turn regulated the
treatment of Philippine military and civilian personnel visiting the U.S. The Philippine Senate
concurred in the first VFA on 27 May 1999.

According to the Philippine government, the conclusion of EDCA was the result of intensive and
comprehensive negotiations in the course of almost two years. After eight rounds of
negotiations, the Secretary of National Defense and the U.S. Ambassador to the Philippines
signed the agreement on 28 April 2014. President Benigno S. Aquino III ratified EDCA on 6 June
2014.

EDCA authorizes the U.S. military forces to have access to and conduct activities within certain
"Agreed Locations" in the country. It was not transmitted to the Senate on the executive's
understanding that to do so was no longer necessary. Accordingly, in June 2014, the Department
of Foreign Affairs (DFA) and the U.S. Embassy exchanged diplomatic notes confirming the
completion of all necessary internal requirements for the agreement to enter into force in the
two countries.

Issue:
1. Whether the President may enter into an executive agreement on foreign military bases,
troops, or facilities.

2. Whether the provisions under EDCA are consistent with the Constitution, as well as with
existing laws and treaties
Ruling:

The Supreme Court discussed the two issues together.

YES. The role of the President as the executor of the law includes the duty to defend the State,
for which purpose he may use that power in the conduct of foreign relations. And this duty of
defending the country is unceasing, even in times when there is no state of lawlesss violence,
invasion, or rebellion. At such times, the President has full powers to ensure the faithful
execution of the laws.

Despite the President's roles as defender of the State and sole authority in foreign relations, the
1987 Constitution expressly limits his ability in instances when it involves the entry of foreign
military bases, troops or facilities. The President, however, may enter into an executive
agreement on foreign military bases, troops, or facilities, if (a) it is not the instrument that allows
the presence of foreign military bases, troops, or facilities; or (b) it merely aims to implement an
existing law or treaty. In view of this, petitioners argue that EDCA must be in the form of a
"treaty" duly concurred in by the Senate. Accordingly, The President may generally enter into
executive agreements subject to limitations defined by the Constitution and may be in
furtherance of a treaty already concurred in by the Senate.

One of the distinguishing features of executive agreements is that their validity and effectivity
are not affected by a lack of Senate concurrence. This distinctive feature was recognized as early
as in Eastern Sea Trading (1961), viz:
Treaties are formal documents which require ratification with the approval of two-thirds
of the Senate. Executive agreements become binding through executive action without
the need of a vote by the Senate or by Congress.

Executive agreements may cover the matter of foreign military forces if it merely involves detail
adjustments. In light of the President's choice to enter into EDCA in the form of an executive
agreement, respondents carry the burden of proving that it is a mere implementation of existing
laws and treaties concurred in by the Senate. EDCA must thus be carefully dissected to ascertain
if it remains within the legal parameters of a valid executive agreement.

The Constitutional Commission eventually agreed to allow foreign military bases, troops, or
facilities. The Supreme Court deduced three legal standards that were articulated by the
Constitutional Commission Members. These are characteristics of any agreement that the
country, and by extension this Court, must ensure are observed. We can thereby determine
whether a military base or facility in the Philippines, which houses or is accessed by foreign
military troops, is foreign or remains a Philippine military base or facility. The legal standards we
find applicable are: independence from foreign control, sovereignty and applicable law, and
national security and territorial integrity.

Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our
national security. If anything, EDCA increases the likelihood that, in an event requiring a
defensive response, the Philippines will be prepared alongside the U.S. to defend its islands and
insure its territorial integrity pursuant to a relationship built on the MDT and VFA.

As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with
existing laws and treaties that it purports to implement.

Petition is dismissed.
Maria Bernadette B. Bartolome

Vinuya v. Romulo
G.R. No. 162230, April 28, 2010

Facts:
The petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit
organization registered with the SEC, established for the purpose of providing aid to the
victims of rape by Japanese military forces in the Philippines during the Second World War.
The petitioners claim that since 1998, they have approached the Executive
Department through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the
Japanese officials and military officers who ordered the establishment of the comfort
women stations in the Philippines. But officials of the Executive Department declined to assist
the petitioners, and took the position that the individual claims of the comfort women for
compensation had already been fully satisfied by Japan’s compliance with the Peace Treaty
between the Philippines and Japan. Hence, this petition where petitioners pray for this court
to (a) declare that respondents committed grave abuse of discretion amounting to lack or
excess of discretion in refusing to espouse their claims for the crimes against humanity and
war crimes committed against them; and (b) compel the respondents to espouse their
claims for official apology and other forms of reparations against Japan before the International
Court of Justice and other international tribunals.
The respondents maintain that all claims of the Philippines and its nationals relative to
the war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations
Agreement of 1956. On January 15, 1997, the Asian Women’s Fund and the Philippine
government signed a Memorandum of Understanding for medical and welfare support
programs for former comfort women. Over the next five years, these were implemented by the
Department of Social Welfare and Development.

Issue:
Whether or not the Executive Department committed grave abuse of discretion in
not espousing petitioners’ claims for official apology and other forms of reparations against
Japan.

Held:
Petition lacks merit. From a Domestic Law Perspective, the Executive Department has
the exclusive prerogative to determine whether to espouse petitioners’ claims against Japan.
The Constitution has entrusted to the Executive Department the conduct of foreign
relations for the Philippines. Whether or not to espouse petitioners’ claim against the
Government of Japan is left to the exclusive determination and judgment of the Executive
Department. The Court cannot interfere with or question the wisdom of the conduct of
foreign relations by the Executive Department. Accordingly, we cannot direct the Executive
Department, either by writ of certiorari or injunction, to conduct our foreign relations with Japan
in a certain manner.
Bautista, William Alcoriza

G.R. No. 118295 May 2, 1997

WIGBERTO E. TAÑADA
vs.
EDGARDO ANGARA

Facts: Arguing mainly (1) that the WTO requires the Philippines to place nationals and products
of member-countries on the same footing as Filipinos and local products and (2) that the WTO
intrudes, limits and/or impairs the constitutional powers of both Congress and the Supreme
Court, the instant petition before this Court assails the WTO Agreement for violating the
mandate of the 1987 Constitution to develop a self-reliant and independent national economy
effectively controlled by Filipinos x x x (to) give preference to qualified Filipinos (and to) promote
the preferential use of Filipino labor, domestic materials and locally produced goods.

The Philippines joined World Trade Organization as a founding member with the goal of
improving Philippine access to foreign markets, especially its major trading partners, through the
reduction of tariffs on its exports. The President also saw in the WTO the opening of new
opportunities for the services sector, the reduction of costs and uncertainty associated with
exporting and the attraction of more investments into the country. On April 15, 1994,
respondent Navarro, then DTI Secretary, signed in Marrakesh, Morocco, the Final Act Embodying
the Results of the Uruguay Round of Multilateral Negotiations. On December 14, 1994, the
Senate concurred in the ratification of the President of the Philippines of the Agreement
Establishing the WTO which includes various agreements and associated legal instruments. On
December 16, 1994,the President signed the Instrument of Ratification.

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

Ruling: By its very title, Article II of the Constitution is a declaration of principles and state
policies. The counterpart of this article in the 1935 Constitution is called the basic political creed
of the nation by Dean Vicente Sinco. 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. Th e principles and state policies enumerated in Article II and some sections
of Article XII are not self-executing provisions, the disregard of which can give rise to a cause of
action in the courts. They do not embody judicially enforceable constitutional rights but
guidelines for legislation.

Thus, when the Philippines joined the United Nations as one of its 51 charter members, it
consented to restrict its sovereign rights under the concept of sovereignty as auto-
limitation. Under Article 2 of the UN Charter, (a)ll members shall give the United Nations every
assistance in any action it takes in accordance with the present Charter, and shall refrain from
giving assistance to any state against which the United Nations is taking preventive or
enforcement action. Such assistance includes payment of its corresponding share not merely in
administrative expenses but also in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the International Court of Justice held that
money used by the United Nations Emergency Force in the Middle East and in the Congo were
expenses of the United Nations under Article 17, paragraph 2, of the UN Charter. Hence, all its
members must bear their corresponding share in such expenses. In this sense, the Philippine
Congress is restricted in its power to appropriate. It is compelled to appropriate funds whether it
agrees with such peace-keeping expenses or not. So too, under Article 105 of the said Charter,
the UN and its representatives enjoy diplomatic privileges and immunities, thereby limiting again
the exercise of sovereignty of members within their own territory.

This Court notes and appreciates the ferocity and passion by which petitioners stressed their
arguments on this issue. However, while sovereignty has traditionally been deemed absolute and
all-encompassing on the domestic level, it is however subject to restrictions and limitations
voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of
nations. Unquestionably, the Constitution did not envision a hermit-type isolation of the country
from the rest of the world.

In its Declaration of Principles and State Policies, the Constitution “adopts the generally accepted
principles of international law as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity, with all nations.” By the doctrine of
incorporation, the country is bound by generally accepted principles of international law, which
are considered to be autom atically part of our own laws. One of the oldest and most
fundamental rules in international law is pacta sunt servanda—international agreements must
be performed in good faith. “A treaty engagement is not a mere moral obligation but creates a
legally binding obligation on the parties x x x. A state which has contracted valid international
obligations is bound to make in its legislations such modifications as may be necessary to ensure
the fulfillment of the obligations undertaken.”

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their
voluntary act, nations may surrender some aspects of their state power in exchange for greater
benefits granted by or derived from a convention or pact. After all, states, like individuals, live
with coequals, and in pursuit of mutually covenanted objectives and benefits, they also
commonly agree to limit the exercise of their otherwise absolute rights.
Bernardo, Precious Anne D.C.

Mijares vs. Ranada

G.R. No. 139325. April 12, 2005.
Tinga, J.

Facts:
A complaint was filed with the United States District Court (US District Court), District of Hawaii,
against the Estate of former Philippine President Ferdinand E. Marcos (Marcos Estate). The
action was brought forth by ten Filipino citizens who each alleged having suffered human rights
abuses such as arbitrary detention, torture and rape in the hands of police or military forces
during the Marcos regime. The Alien Tort Act was invoked as basis for the US District Court’s
jurisdiction over the complaint, as it involved a suit by aliens for tortious violations of
international law. These plaintiffs brought the action on their own behalf and on behalf of a class
of similarly situated individuals, particularly consisting of all current civilian citizens of the
Philippines, their heirs and beneficiaries, who between 1972 and 1987 were tortured, summarily
executed or had disappeared while in the custody of military or paramilitary groups. Plaintiffs
alleged that the class consisted of approximately ten thousand (10,000) members; hence,
joinder of all these persons was impracticable.

The US District Court rendered a Final Judgment (Final Judgment) awarding the plaintiff class a
total of One Billion Nine Hundred Sixty Four Million Five Thousand Eight Hundred Fifty Nine
Dollars and Ninety Cents ($1,964,005,859.90). The Final Judgment was eventually affirmed by
the US Court of Appeals for the Ninth Circuit.

The present petitioners filed Complaint with the Regional Trial Court, City of Makati (Makati RTC)
for the enforcement of the Final Judgment.

Marcos Estate filed a motion to dismiss, raising, among others, the non-payment of the correct
filing fees. It alleged that petitioners had only paid Four Hundred Ten Pesos (P410.00) as docket
and filing fees, notwithstanding the fact that they sought to enforce a monetary amount of
damages in the amount of over Two and a Quarter Billion US Dollars (US$2.25 Billion).

Judge Santiago Javier Ranada of the Makati RTC issued the subject Order dismissing the
complaint without prejudice. Respondent judge opined that contrary to the petitioners’
submission, the subject matter of the complaint was indeed capable of pecuniary estimation, as
it involved a judgment rendered by a foreign court ordering the payment of definite sums of
money, allowing for easy determination of the value of the foreign judgment. On that score,
Section 7(a) of Rule 141 of the Rules of Civil Procedure would find application, and the RTC
estimated the proper amount of filing fees was approximately Four Hundred Seventy Two Million
Pesos, which obviously had not been paid.

Issue:
Whether or not the amount paid by the petitioners is the proper filing fee.
Ruling:
Respondent judge was in clear and serious error when he concluded that the filing fees should
be computed on the basis of the schematic table of Section 7(a), as the action involved pertains
to a claim against an estate based on judgment.

What provision, if any, then should apply in determining the filing fees for an action to enforce a
foreign judgment?

There is an evident distinction between a foreign judgment in an action in rem and one in
personam. For an action in rem, the foreign judgment is deemed conclusive upon the title to the
thing, while in an action in personam, the foreign judgment is presumptive, and not conclusive,
of a right as between the parties and their successors in interest by a subsequent title. However,
in both cases, the foreign judgment is susceptible to impeachment in our local courts on the
grounds of want of jurisdiction or notice to the party, collusion, fraud, or clear mistake of law or
fact. Thus, the party aggrieved by the foreign judgment is entitled to defend against the
enforcement of such decision in the local forum. It is essential that there should be an
opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to
properly determine its efficacy.

The complaint to enforce the US District Court judgment is one capable of pecuniary estimation.
But at the same time, it is also an action based on judgment against an estate, thus placing it
beyond the ambit of Section 7(a) of Rule 141. What provision then governs the proper
computation of the filing fees over the instant complaint? For this case and other similarly situated
instances, we find that it is covered by Section 7(b)(3), involving as it does, “other actions not
involving property.”

Notably, the amount paid as docket fees by the petitioners on the premise that it was an action
incapable of pecuniary estimation corresponds to the same amount required for “other actions
not involving property.” The petitioners thus paid the correct amount of filing fees, and it was a
grave abuse of discretion for respondent judge to have applied instead a clearly inapplicable rule
and dismissed the complaint.

There is no obligatory rule derived from treaties or conventions that requires the Philippines to
recognize foreign judgments, or allow a procedure for the enforcement thereof. However,
generally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty obligations.
The classical formulation in international law sees those customary rules accepted as binding
result from the combination two elements: the established, widespread, and consistent practice
on the part of States; and a psychological element known as the opinion juris sive necessitates
(opinion as to law or necessity). Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring it.

While the definite conceptual parameters of the recognition and enforcement of foreign
judgments have not been authoritatively established, the Court can assert with certainty that
such an undertaking is among those generally accepted principles of international law.
Tricia Marie B. Bernardo
Republic V Sandiganbayan
G.R. 104768

Facts: President Corazon C. Aquino issued Executive Order No. 1 (EO No. 1) creating the
Presidential Commission on Good Government (PCGG). EO No. 1 primarily tasked the PCGG to
recover all ill-gotten wealth of former President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates. Accordingly, the PCGG, through its then Chairman
Jovito R. Salonga, created an AFP Anti-Graft Board (AFP Board) tasked to investigate reports of
unexplained wealth and corrupt practices by AFP personnel, whether in the active service or
retired.
Based on its mandate, the AFP Board investigated various reports of alleged unexplained wealth
of respondent Major General Josephus Q. Ramas (Ramas). Based on the findings and evaluation,
the Board finds that a prima facie case exists against respondent for ill-gotten and unexplained
wealth in the amount of P2,974,134.00 and $50,000 US Dollars. It is then recommended that
Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for violation of RA 3019, as
amended, otherwise known as Anti-Graft and Corrupt Practices Act and RA 1379, as amended,
otherwise known as The Act for the Forfeiture of Unlawfully Acquired Property. Along with
Ramas is Elizabeth Dimaano who was a confidential agent of the Military Security Unit, Philippine
Army, assigned as a clerk-typist at the office of Ramas from 1 January 1978 to February
1979. The Amended Complaint further alleged that Ramas acquired funds, assets and properties
manifestly out of proportion to his salary as an army officer and his other income from
legitimately acquired property by taking undue advantage of his public office and/or using his
power, authority and influence as such officer of the Armed Forces of the Philippines and as a
subordinate and close associate of the deposed President Ferdinand Marcos.
Before Sandiganbayan, during the continuation of the trial, private respondents then filed their
motions to dismiss based on Republic v. Migrino in which the Court held that the PCGG does not
have jurisdiction to investigate and prosecute military officers by reason of mere position held
without a showing that they are subordinates of former President Marcos. Under this,
Sandiganbayan rendered a resolution dismissing the case and referring to the Hon. Ombudsman,
who has primary jurisdiction over the forfeiture cases under R.A. No. 1379, for such appropriate
action as the evidence warrants. The Sandiganbayan ruled that the evidence adduced against
Ramas does not constitute a prima facie case against him and that there was an illegal search
and seizure of the items confiscated that are used against him.

Issue: Whether or not the respondent Court erred when it ruled that the articles and things such
as sum of money, communications equipment, jewelries, and land titles confiscated at Dimaanos
residence were illegally seized and therefore excluded as evidence

Ruling: No. On 3 March 1986, the Constabulary raiding team served at Dimaanos residence a
search warrant captioned Illegal Possession of Firearms and Ammunition. The raiding team
seized the items detailed in the seizure receipt together with other items not included in the
search warrant.
Petitioner wants the Court to take judicial notice that the raiding team conducted the search and
seizure on March 3, 1986 and argues that a revolutionary government was operative at that time
by virtue of Proclamation No. 1 announcing that President Aquino and Vice President Laurel
were taking power in the name and by the will of the Filipino people.
The petitioner’s contention is meritorious.
The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President
Aquinos Proclamation No. 3 dated 25 March 1986, the EDSA Revolution was done in defiance of
the provisions of the 1973 Constitution. The resulting government was indisputably a
revolutionary government bound by no constitution or legal limitations except treaty obligations
that the revolutionary government, as the de jure government in the Philippines, assumed under
international law.
The Court held that the Bill of Rights under the 1973 Constitution was not operative during the
interregnum. However, we rule that the protection accorded to individuals under the Covenant
and the Declaration remained in effect during the interregnum.
During the interregnum, the directives and orders of the revolutionary government were the
supreme law because no constitution limited the extent and scope of such directives and
orders. With the abrogation of the 1973 Constitution by the successful revolution, there was no
municipal law higher than the directives and orders of the revolutionary government. Thus,
during the interregnum, a person could not invoke any exclusionary right under a Bill of Rights
because there was neither a constitution nor a Bill of Rights during the interregnum.
The revolutionary government did not repudiate the Covenant or the Declaration during the
interregnum. Whether the revolutionary government could have repudiated all its obligations
under the Covenant or the Declaration is another matter and is not the issue here. Suffice it to
say that the Court considers the Declaration as part of customary international law, and that
Filipinos as human beings are proper subjects of the rules of international law laid down in the
Covenant. The fact is the revolutionary government did not repudiate the Covenant or the
Declaration in the same way it repudiated the 1973 Constitution. As the de jure government, the
revolutionary government could not escape responsibility for the States good faith compliance
with its treaty obligations under international law.
It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the
directives and orders of the revolutionary government became subject to a higher municipal law
that, if contravened, rendered such directives and orders void.
During the interregnum when no constitution or Bill of Rights existed, the directives and orders
should not have also violated the Covenant or the Declaration. The search warrant did not
particularly describe these items and the raiding team confiscated them on its own
authority. The raiding team had no legal basis to seize these items without showing that these
items could be the subject of warrantless search and seizure. Clearly, the raiding team exceeded
its authority when it seized these items.
The seizure of these items was therefore void, and unless these items are contraband per se,and
they are not, they must be returned to the person from whom the raiding seized
them. Therefore petition for certiorari is DISMISSED.
Josie-Reyna S. Bumanglag

Island of Palmas case

Parties: Netherlands and USA
Arbitrator: Max Huber (Switzerland) of the Permanent Court of Arbitration
Award: The Hague, April 04, 1928

Facts:
On January 21, 1906, American General Leonard Wood, then Governor of the Province of
Moro, visited the Island of Palmas (known as Miangas), an island included as part of the
Philippine Islands as delimited by Article III of the Treaty of Paris between the United States and
Spain, dated December 10, 1898. During the visit, he found out that the same island was
considered by the Netherlands as forming part of the territory of their possessions in the East
Indies. There followed a diplomatic correspondence, beginning on March 31, 1906 which lead to
the Special Agreement entered into by the United States of America (USA) and the Netherlands
in January 23, 1925 wherein they referred the matter to the Permanent Court of Arbitration
(PCA). The subject of the dispute is the sovereignty over the Island of Palmas, which lies about
halfway between Cape San Augustin (in Mindanao) and the most northerly island of the Nanusa
group (Netherlands East Indies).
The title alleged by the USA is based on discovery by the Spain and subsequently, that of
cession, brought about by the Treaty of Paris, which transferred all rights of sovereignty which
Spain may have possessed in the region indicated in Article III of the said treaty and therefore
also those concerning the Island of Palmas.
On the other hand, the Netherlands' arguments contend that the East India Company
established Dutch sovereignty over the Island of Palmas as early as the 17th century, by means
of conventions with the native chieftains of the island, and that sovereignty has been displayed
during the past two centuries.

Issue:
Whether the Island of Palmas (or Miangas) in its entirety forms a part of territory
belonging to the USA or that of the Netherlands.

Ruling:
The Island of Palmas forms a part of the territory of the Netherlands.
According to the PCA, discovery alone, without any subsequent act, cannot at the present
time suffice to prove sovereignty over the Island of Palmas. Furthermore, the view adopted is
that discovery does not create a definitive title of sovereignty, but only an "inchoate" title. Now,
no act of occupation nor any exercise of sovereignty at Palmas by Spain has been alleged. The
USA merely based their claim on the titles of discovery, of recognition by treaty and of
contiguity, i.e. titles relating to acts or circumstances leading to the acquisition of sovereignty;
they have however not established the fact that sovereignty so acquired was effectively
displayed at any time.
The Netherlands on the contrary found their claim to sovereignty essentially on the title
of peaceful and continuous display of State authority over the island. This title in international
law prevail over a title of acquisition of sovereignty not followed by actual display of State
authority and such contention of the Netherlands is sufficiently established by evidence. Reports
furnished by both sides, of the visit of General Wood, in January 1906, showed that at that time,
there were at least traces of continuous relations between the island in dispute and neighboring
Dutch possessions, and even traces of Dutch sovereignty. The conditions of acquisition of
sovereignty by the Netherlands are therefore to be considered as fulfilled while the USA as
successor of Spain was not able to bring forward an equivalent or stronger title.
For these reasons the Arbitrator, in conformity with Article I of the Special Agreement of
January 23 1925, decides that: The Island of Palmas (or Miangas) forms in its entirety a part of
Netherlands territory.
DE LEON, REDJINA B.

9. I.C.J. 117. December18, 1951

Anglo-Norwegian Fisheries.
UNITED KINGDOM vs. NORWAY

Facts:

In 1935 Norway enacted a decree by which it reserved certain fishing grounds situated
off its northern coast for the exclusive use of its own fishermen. On September 28, 1949, the
Government of the United Kingdom and Northern Ireland filed case before the Court (ICJ)
against Norway challenged the validity under international law of the said decree.

The United Kingdom requested the court to decide if Norway had used a legally
acceptable method in drawing the baseline from which it measured its territorial sea. The United
Kingdom argued that customary international law did not allow the length of a baseline drawn
across a bay to be longer than ten miles. Norway argued that its delimitation method was
consistent with general principles of international law.

Issue:

Whether or not the Royal Degree is consistent with general principles of international
law.

Ruling:

Yes. The judgment was rendered in favor of Norway and held that the method employed
in the delimitation of the fisheries zone by the Decree is not contrary to international law.

The Court also added that, even if a customary law existed on the delimitation method,
the method would appear to be inapplicable as against Norway in as much as she has always
opposed any attempt to apply it to the Norwegian coast. An existing customary law rule would
not apply to Norway as it objects to the application of the rule itself at initial stage and in a
consistent manner.
Airiz M. Dela Cruz

United Kingdom of Great Britain and Northern Ireland vs. Albania

(Corfu Channel Case, Judgment of 09 April 1949)
1949 I.C.J. 4, 22

FACTS

The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland vs.
Albania) arose from incidents in the Corfu Strait. On 22 October 1946 British cruisers and two
destroyers, coming from the south, entered the North Corfu Strait. The channel they were
following, which was in Albanian waters, was regarded as safe. It had been swept in 1944 and
check-swept in 1945. One of the destroyers struck a mine and was gravely damaged. The other
destroyer was sent to her assistance and, while towing her, struck another mine and was also
seriously damaged and suffered serious loss of lives.

An incident had already occurred in these waters on 15 May 1946. An Albanian battery
had fired in the direction of two British cruisers. The United Kingdom Government had
protested, stating that innocent passage through straits is a right recognized by international
law. The Albanian Government had replied that foreign warships and merchant vessels had no
right to pass through Albanian territorial waters without prior authorization. The United Kingdom
Government had replied that if, in the future, fire was opened on a British warship passing the
channel, the fire would be returned. Finally, on 21 September 1946, the Admiralty in London had
cabled to the British Commander-in-Chief in the Mediterranean to the following effect:
"Establishment of diplomatic relations with Albania is again under consideration by His Majesty's
Government who wish to know whether the Albanian Government have learnt to behave
themselves. Information is requested whether any ships under your command have passed
through the North Corfu Strait since August and, if not, whether you intend them to do so
shortly."

After the explosions, the United Kingdom Government sent a note to Tirana announcing
its intention to sweep the Corfu Channel shortly. The reply was that this consent would not be
given unless the operation in question took place outside Albanian territorial waters and that any
sweep undertaken in those waters would be a violation of Albania's sovereignty. The sweep
effected by the British Navy in Albanian territorial waters and within the limits of the channel
previously swept.

ISSUE

Whether or not the subject straits carries the right to innocent passage
RULING

The Albanian claim to make the passage of ships conditional on a prior authorization
conflicts with the generally admitted principle that States, in time of peace, have a right to send
their warships through straits used for international navigation provided that the passage is
innocent.

The Corfu Strait belongs geographically to this category, even though it is only of
secondary importance, in the sense that it is not a necessary route between two parts of the
high seas, and irrespective of the volume of traffic passing through it. The strait constitutes a
frontier between Albania and Greece, and that a part of the strait is wholly within the territorial
waters of those States. It is a fact that the two States did not maintain normal relations, Greece
made territorial claims precisely with regard to a part of the coast bordering the strait. However,
the Court is of opinion that Albania would have been justified in view of these exceptional
circumstances, in issuing regulations in respect of the passage, but not in prohibiting. Albania has
denied that the passage was innocent. She alleges that it was a political mission and that the
methods employed-the number of ships, their formation, armament, maneuvers, etc.-showed
an intention to intimidate. The Court examined the different Albanian contentions so far as they
appeared relevant. Its conclusion is that the passage was innocent both in its principle, since it
was designed to affirm a right which had been unjustly denied, and in its methods of execution,
which were not unreasonable in view of the firing from the Albanian battery on May 1946. That
Albanian Government did not consented the international mine clearance organizations; it could
not be justified as the exercise of the right of innocent passage. The United Kingdom has stated
that its object was to secure the mines as quickly as possible for fear lest they should be taken
away by the authors of the minelaying or by the Albanian authorities: this was presented either
as a new and special application of the theory of intervention, by means of which the intervening
State was acting to facilitate the task of the international tribunal, or as a method of self-
protection or self-help. The Court cannot accept these lines of defense. It can only regard the
alleged right of intervention as the manifestation of a policy of force which cannot find a place in
international law. As regards the notion of self-help, the Court is also unable to accept it:
between independent States the respect for territorial sovereignty is an essential foundation for
international relations. Certainly, the Court recognizes the Albanian Government's complete
failure to carry out its duties after the explosions and the dilatory nature of its diplomatic Notes
as extenuating circumstances for the action of the United Kingdom. But, to ensure respect for
international law, of which it is the organ, the Court must declare that the action of the British
Navy constituted a violation of Albanian sovereignty. This declaration is in accordance with the
request made by Albania through her counsel and is in itself appropriate satisfaction.
Amiel A. Fernando

Saudi Arabia v. Arabian American Oil Company

27 ILR 117 | August 23, 1958 | Arbitration Tribunal

FACTS:

On 29 May 1933 the Saudi Arabia Government granted a petroleum concession

agreement to Standard Oil Company of California, which later changed its name to the
Arabian American Oil Company (ARAMCO). According to Article 1 of the Agreement,
Saudi Arabia granted the company exclusive rights to explore, prospect, drill for,
extract, treat, manufacture, transport, deal with, carry away and export petroleum
and its derivatives for a period of 60 years.

Article 1 of the 1933 Concession Agreement provides that “The Government hereby
grants to the Company on the terms and conditions hereinafter mentioned, and with
respect to the area defined below, the exclusive right, for a period of 60 years from the
effective date hereof to explore, prospect, drill for, extract, treat, manufacture,
transport, deal with, carry away, and export Petroleum…”

Thus, under the Concession, Aramco has the exclusive right

1. to search for petroleum (explore and prospect)

2. to extract oil (drill for and extract)

3. to refine petroleum and produce its derivatives (treat and manufacture)

4. to transport petroleum, to sell it abroad, and to dispose of it commercially

(transport, deal with, carry away and export)

In exchange for these rights, the Saudi Government would acquire royalties from the
Company gave to the Company the right to terminate the Agreement at any time by
giving the Government thirty days' advance notice in writing. In such circumstances
the Company's immovable property became the property of the Government free of
charge, and the movable properties remained property of the Company unless the
Government wished to buy them. Any dispute would be settled by arbitration.

The dispute between the contracting parties (the Government and the Company) arose
at the beginning of 1954, when the Government of Saudi Arabia concluded an
agreement with Mr A. S. Onassis and his companies on 29 January 1954. Under this
agreement, the Government of Saudi Arabia granted to Mr. Onassis the right to
constitute and own a company at Jeddah in Saudi Arabia called `Saudi Arabian
Maritime Tankers Company Ltd (Satco), to transport Saudi petroleum for a period of
thirty years, renewable for a further period with the agreement of both parties.

The Arabian American Oil Company (ARAMCO) disputed Satco's Agreement on the
grounds that they had the exclusive right to carry on all activities, in all forms,
relating to the petroleum industry with respect to the Concession area according to the
1939 Agreement. Efforts were made by the parties to solve the conflict amicably, but
they did not succeed. The two parties agreed to refer this dispute to arbitration on 23
February 1955. The subject matter of the dispute, as cited in the Arbitration
Agreement, was that the Government argue that the Concession Agreement purports
to authorize Aramco to explore areas supposed to contain oil deposits, and in case of
discovery, to extract and produce the oil, but not to transport by sea. The term
“transport” in Article 1 only contemplated the internal transport from the site of the
extraction to the port of loading or the Ras Tanura refinery for manufacture. It cannot
mean external transport, outside the limits of Saudi Arabia. The exclusive right of
transport by sea was not included within the expectations of the parties, as no express
stipulation to this effect was included in the Agreement.

ISSUE:

WON the Onassis Agreement is in conflict with the Concession Agreement of 1933.

RULING:

NO. Rights of Aramco under the Concession Agreement are protected in accordance
with the principle of acquired rights.

Government: claims that since the Onassis Agreement was ratified by Royal Decree, it
has acquired legal force in Saudi Arabia, acquiring the nature of a general law
regulating maritime transport of oil and its derivatives. It blames Aramco for opposing
the laws of the State by refusing to implement it.

Arbitration Tribunal finds that both the Onassis Agreement and the Concession
Agreement were similarly ratified and have the character of ordinary and regular
concessions under Saudi Arab law and which under the same, must always be
approved by royal decree.

Both are purely contractual in nature. Contrary to the government’s claim, the
Onassis Agreement does not lay down norms of a general and impersonal application
but it establishes an individual situation to the advantage of MR. Onassis and the
companies he represents.

As regards Aramco, the Onassis Agreement is res inter alios acta which can neither
diminish nor increase its rights.

In its capacity as first concessionaire, Aramco enjoys exclusive rights which have the
character of acquired or vested rights and cannot be taken away from it by the
Government by means of a contract concluded with a second concessionaire event it
the two were equal from a legal point of view.

The principle of acquired rights is one of the fundamental principles both of public
international law and of the municipal law of most civilized states.

Aramco is legally protected by the principle of acquired rights and is justified in

resisting any infringement of rights granted to it.

Since the Concession Agreement of 1933 did not contain any reference to the
applicable law, the parties agreed in the Arbitration Agreement that Saudi Arabian law
would be the applicable law and also any law that the tribunal deemed to be
applicable.
In its efforts to determine the applicable law, the arbitral tribunal concluded that it
should take into account any indication given by the parties. However, failing
adequate indication of the parties, the tribunal would take all the circumstances of the
case into account, basing its decisions on the general doctrine of private international
law. In order to perform this duty, the arbitral tribunal should first examine the legal
nature of a concession in municipal law, as the law of nations did not contain any
principles regarding the characterization of this legal institution. Consequently, the
tribunal began by examining the law of Saudi Arabia in order to ascertain whether the
petroleum Concession Agreement which had been granted by the Government to
Aramco should be characterized as a unilateral act of public law, or as a public or
administrative contract, or as a contract of private law, or a lease, or as a `profit a
prendre', or as an institution `sui generis', partly public and partly private. According
to the Arbitration Agreement concluded by the parties this question should be solved
according to the principles of Muslim law, as taught by the Hanli School. However,
Aramco contended that Saudi Law was not sufficiently developed to determine the
legal nature of petroleum agreements. The Government responded by stating that
according to the Islamic law, Aramco's Concession Agreement has a contractual
character. Furthermore, the Memorial and the oral hearing of the Government argued
that this Concession must be regarded as a sui generis contract. Moreover, the rule
`pacta sunt servanda' is fully recognized by Muslim law. The tribunal reasserted the
principle of private international law concerning party autonomy, emphasized that in
any "contract presenting an international character, the law expressly chosen by the
parties should first be applied and failing such a choice, the law presumably intended
by the parties is applicable. The tribunal in this regard relied upon Article 4 (b) of the
Arbitration Agreement which gives the tribunal the discretion to choose a system of
law other than Saudi law. The tribunal decided to construe this provision in a broad
way, concluding as the parties to the Arbitration Agreement left to the arbitrators a
broad discretion in this respect, the tribunal is free to choose one or the other of these
multiple theories, provided its choice is objective and is justified by the circumstances
of the dispute submitted to it.

At the same time, the tribunal decided to resort to objective criteria in order to connect
certain matters which have been already regulated by the contract with a special place
and a special legal system. In this regard the tribunal perceived that the Concession
Agreement because of its parties and its ramifications has an international character.
Therefore, the law expressly chosen by the parties must be taken into consideration,
since the parties have chosen a legal system connected with their transaction. The
contract was concluded in Saudi Arabia, the effective date was the date of its
publication in Saudi Arabia and the contract was, for the most part, to be performed
in Saudi Arabia, so is it the law of Saudi Arabia that should be applied.

Relying on objective consideration, the Tribunal believes that the governing law should
coincide with the economic milieu where the operation is to be carried out. Guided by
this criterion, the Arbitration Tribunal comes to the conclusion that some of the effects
of the Concession Agreement cannot be governed by the law of Saudi Arabia, both
because of objective considerations and because of the subsequent conduct of the
Parties. The Concession Agreement derives therefore its juridical force from the legal
system of Saudi Arabia, the Shari 'ah, the Divine law of Islam, supplemented by Royal
Decree No. 1135.

Finally, the tribunal observed that the law which was in force in Saudi Arabia did not
contain any defined rule concerning the exploitation of petroleum resources, because
no such exploitation existed in Saudi Arabia prior to 1933, so this lacuna in Saudi law
was filled by the 1933 Concession Agreement "whose validity and legality under Saudi
law are not disputed by either side. " Consequently, the tribunal decided that public
international law should be applied to the effects of the Concession, as no municipal
law can govern all matter. It concluded

“Lastly, the tribunal holds that public international law should be applied to the
effects of the concession, when objective reasons lead it to conclude that certain
matters cannot be governed by any rule of the municipal law of any state, as is the
case in all matter relating to transport by sea, to the sovereignty of the state on its
territorial waters and to the responsibility of states for the violation of its international
obligations.”
LEGASPI, Mary Rose B.

THE LOTUS CASE

France v. Turkey
1927 P.C.I.J. (Ser. A) No. 10

Facts:
On August 2, 1926, just before midnight, a French mail steamer Lotus, proceeding to
Constantinople, collide with the Turkish Boz-Kourt on the high seas. The Boz-Kourt was cut
into two, sank, and eight Turkish nationals who were on board perished. The Lotus
continued its course to Constantinople, at which point Turkish authorities arrested
Lieutenant Demons, the French officer in charge of the Lotus at the time of the collision,
and Hassan Bey, the captain of the Boz-Kourt. They were both charged with manslaughter.
Lieutenant Demons submitted that the Turkish Court had no jurisdiction; the Court,
however overruled his objection. Lieutenant Demons was sentenced to eighty days’
imprisonment and a fine of twenty-two pounds. On the other hand, Hassan Bey being
sentenced to a slightly more severe penalty.
The French Government protesting against the arrest of Lieutenant Demons or
demanding his release, or with a view to obtaining the transfer of the case from the Turkish
Courts to the French Courts. They agreed to submit the dispute to the Permanent Court of
International Justice.

Issues:
Whether or not Turkey, contrary to Article 15 of the Convention of Lausanne of July
24, 1923, respecting conditions of residence and business and jurisdiction, has acted in
conflict with the principles of international law, and if so, what principles, by instituting
criminal proceedings in pursuance of Turkish law against Lieutenant Demons, officer of the
watch on board the lotus at the time of the collision, in consequence of the loss of the Boz-
Kourt having involved the death of eight Turkish sailors and passengers?

Ruling:
The arguments by the Parties in both phases of the proceedings relate exclusively to
the question whether Turkey has or has not, according to the principles of international
law, jurisdiction to prosecute in this case.
It is Article 15 of the Convention of Lausanne of July 24, 1923, respecting conditions
of residence and business and jurisdiction, which refers the contracting Parties to the
principles of international law as regards the delimitation of their respective jurisdiction.
Subject to the provisions of Article 16, all questions of jurisdiction shall, as between
Turkey and the other contracting Powers, be decided in accordance with the principles of
international law.
The Court, having to consider whether there are any rules of international law
which may have been violated by the prosecution in pursuance of Turkish law of
Lieutenant Demons, is confronted in the first place by a question of principle which, in the
written and oral arguments of the two Parties, has proved to be a fundamental one. The
French Government contends that the Turkish Courts, in order to have jurisdiction, should
be able to point to some title to jurisdiction recognized by international law in favor of
Turkey. On the other hand, the Turkish Government takes the view that Article 15 allows
Turkey jurisdiction whenever such jurisdiction does not come into conflict with a principle
of international law.
Though it is true that in all systems of law the principle of the territorial character of
criminal law is fundamental, it is equally true that all or nearly all these systems of law
extend their action to offences committed outside the territory of the State which adopts
them, and they do so in ways which vary from State to State. The territoriality of criminal
law, therefore, is not an absolute principle of international law and by no means coincides
with territorial sovereignty.
 The necessity of ascertaining whether or not under international law there is a
principle which would have prohibited Turkey, in the circumstances of the case before the
Court, from prosecuting Lieutenant Demons. And moreover, on either hypothesis, this must
be ascertained by examining precedents offering a close analogy to the case under
consideration; for it is only from precedents of this nature that the existence of a general
principle applicable to the particular case may appear. For if it were found, for example,
that, according to the practice of States, the jurisdiction of the State whose flag was, flown
was not established by international law as exclusive with regard to collision cases on the
high seas, it would not be necessary to ascertain whether there were a more general
restriction; since, as regards that restriction-supposing that it existed-the fact that it had
been established that there was no prohibition in respect of collision on the high seas
would be tantamount to a special permissive rule.
The Court therefore must, in any event ascertain whether or not there exists a rule
of international law limiting the freedom of States to extend the criminal jurisdiction of
their courts to a situation uniting the circumstances of the present case.
The characteristic features of the situation of fact are as follows: there has been a
collision on the high seas between two vessels flying different flags, on one of which was
one of the persons alleged to be guilty of the offence, whilst the victims were on board the
other.
The Court does not think it necessary to consider the contention that a State cannot
punish offences committed abroad by a foreigner simply by reason of the nationality of the
victim. For this contention only relates to the case where the nationality of the victim is the
only criterion on which the criminal jurisdiction of the State is based. Even if that argument
were correct generally speaking - and in regard to this the Court reserves its opinion - it
could only be used in the present case if international law forbade Turkey to take into
consideration the fact that the offence produced its effects on the Turkish vessel and
consequently in a place assimilated to Turkish territory in which the application of Turkish
criminal law cannot be challenged, even in regard to offences committed there by
foreigners. But no such rule of international law exists. No argument has come to the
knowledge of the Court from which it could be deduced that States recognize themselves to
be under an obligation towards each other only to have regard to the place where the
author of the offence happens to be at the time of the offence. On the contrary, it is certain
that the courts of many countries, even of countries which have given their criminal
legislation a strictly territorial character, interpret criminal law in the sense that offences,
the authors of which at the moment of commission are in the territory of another State, are
nevertheless to be regarded as having been committed in the national territory, if one of
the constituent elements of the offence, and more especially its effects, have taken place
there. French courts have, in regard to a variety of situations, given decisions sanctioning
this way of interpreting the territorial principle. Again, the Court does not know of any
cases in which governments have protested against the fact that the criminal law of some
country contained a rule to this effect or that the courts of a country construed their
criminal law in this sense. Consequently, once it is admitted that the effects of the offence
were produced on the Turkish vessel, it becomes impossible to hold that there is a rule of
international law which prohibits Turkey from prosecuting Lieutenant Demons because of
the fact that the author of the offence was on board the French ship. Since, as has already
been observed, the special agreement does not deal with the provision of Turkish law
under which the prosecution was instituted, but only with the question whether the
prosecution should be regarded as contrary to the principles of international law, there is
no reason preventing the Court from confining itself to observing that, in this case, a
prosecution may also be justified from the point of view of the so-called territorial
principle.
French Government argue the principle that the State whose flag is flown has
exclusive jurisdiction over everything which occurs on board a merchant ship on the high
seas.
It is true that apart from certain special cases which are defined by international law
vessels on the high seas are subject to no authority except that of the State whose flag they
fly. In virtue of the principle of the freedom of the seas, that is to say, the absence of any
territorial sovereignty upon the high seas, no State may exercise any kind of jurisdiction
over foreign vessels upon them. Thus, if a war vessel, happening to be at the spot where a
collision occurs between a vessel flying its flag and a foreign vessel, were to send on board
the latter an officer to make investigations or to take evidence, such an act would
undoubtedly be contrary to international law.
But it by no means follows that a State can never in its own territory exercise
jurisdiction over acts which have occurred on board a foreign ship on the high seas. A
corollary of the principle of the freedom of the seas is that a ship on the high seas is
assimilated to the territory of the State the flag of which it flies, for, just as in its own
territory, that State exercises its authority, upon it, and no other State may do so. All that
can be said is that by virtue of the principle of the freedom of the seas, a ship is placed in
the same position as national territory but there is nothing to support the claim according
to which the rights of the State under whose flag the vessel sails may go farther than the
rights which it exercises within its territory properly so called. It follows that what occurs
on board a vessel on the high seas must be regarded as if it occurred on the territory of the
State whose flag the ship flies. If, therefore, a guilty act committed on the high seas
produces its, effects on a vessel flying another flag or in foreign territory, the same
principles must be applied as if the territories of two different States were concerned, and
the conclusion must therefore be drawn that there is no rule of international law
prohibiting the State to which the ship on which the effects of the offence have taken place
belongs, from regarding the offence as having been committed in its territory and
prosecuting, accordingly, the delinquent.
This could only be overcome if it were shown that there was a rule of customary
international law which, going further than the principle stated above, established the
exclusive jurisdiction of the State whose flag was flown. The French Government has
endeavored to prove the existence of such a rule, having recourse for this purpose to the
teachings of publicists, to decisions of municipal and international tribunals, and especially
to conventions which, whilst creating exceptions to the principle of the freedom of the seas
by permitting the war and police vessels of a State to exercise a more or less extensive
control over the merchant vessels of another State, reserve jurisdiction to the courts of the
country whose flag is flown by the vessel proceeded against.
In the first place, as regards teachings of publicists, and apart from the question as
to what their value may be from the point of view of establishing the existence of a rule of
customary law, it is no doubt true that all or nearly all writers teach that ships on the high
seas are subject exclusively to the jurisdiction of the State whose flag they fly. But the
important point is the significance attached by them to this principle; now it does not
appear that in general, writers bestow upon this principle a scope differing from or wider
than that explained above and which is equivalent to saying that the jurisdiction of a State
over vessels on the high seas is the same in extent as its jurisdiction in its own territory. On
the other hand, there is no lack of writers who, upon a close study of the special question
whether a State can prosecute for offences committed on board a foreign ship on the high
seas, definitely come to the conclusion that such offences must be regarded as if they had
been committed in the territory of the State whose flag the ship flies, and that consequently
the general rules of each legal system in regard to offences committed abroad are
applicable.
In regard to precedents, it should first be observed that, leaving aside the collision
cases which will be alluded to later, none of them relates to offences affecting two ships
flying the flags of two different countries, and that consequently they are not of much
importance in the case before the Court.
On the other hand, there is no lack of cases in which a State has claimed a right to
prosecute for an offence, committed on board a foreign ship, which it regarded as
punishable under its legislation.
The cases in which the exclusive jurisdiction of the State whose flag was flown has
been recognized would seem rather to have been cases in which the foreign State was
interested only by reason of the nationality of the victim, and in which, according to the
legislation of that State itself or the practice of its courts, that ground was not regarded as
sufficient to authorize prosecution for an offence committed abroad by a foreigner.
Finally, as regards conventions expressly reserving jurisdiction exclusively to the
State whose flag is flown, it is not absolutely certain that this stipulation is to be regarded
as expressing a general principle of law rather than as corresponding to the extraordinary
jurisdiction which these conventions confer on the state-owned ships of a particular
country in respect of ships of another country on the high seas. Apart from that, it should
be observed that these conventions relate to matters of a particular kind, closely connected
with the policing of the seas, such as the slave trade, damage to submarine cables, fisheries,
etc., and not to common-law offences. Above all it should be pointed out that the offences
contemplated by the conventions in question only concern a single ship; it is impossible
therefore to make any deduction from them in regard to matters which concern two ships
and consequently the jurisdiction of two different States.
The Court therefore has arrived at the conclusion that the second argument put
forward by the French Government does not, any more than the first, establish the
existence of a rule of international law prohibiting Turkey from prosecuting Lieutenant
Demons.
The Court opined that even if the rarity of the judicial decisions to be found among
the reported cases were sufficient to prove in point of fact the circumstance alleged by the
Agent for the French Government, it would merely show that States had often, in practice,
abstained from instituting criminal proceedings, and not that they recognized themselves
as being obliged to do so; for only if such abstention were based on their being conscious of
having a duty to abstain would it be possible to speak of an international custom. The
alleged fact does not allow one to infer that States have been conscious of having such a
duty; on the other hand, as will presently be seen, there are other circumstances calculated
to show that the contrary is true.
The Court feels called upon to lay stress upon the fact that it does not appear that
the States concerned have objected to criminal proceedings in respect of collision cases
before the courts of a country other than that the flag of which was flown, or that they have
made protests: their conduct does not appear to have differed appreciably from that
observed by them in all cases of concurrent jurisdiction. This fact is directly opposed to the
existence of a tacit consent on the part of States to the exclusive jurisdiction of the State
whose flag is flown.
The conclusion at which the Court has therefore arrived is that there is no rule of
international law in regard to collision cases to the effect that criminal proceedings are
exclusively within the jurisdiction of the State whose flag is flown.
The Court, having arrived at the conclusion that the arguments advanced by the
French Government either are irrelevant to the issue or do not establish the existence of a
principle of international law precluding Turkey from instituting the prosecution which
was in fact brought against Lieutenant Demons, observes that in the fulfilment of its task of
itself ascertaining what the international law is, it has not confined itself to a consideration
of the arguments put forward, but has included in its researches all precedents, teachings
and facts to which it had access and which might possibly have revealed the existence of
one of the principles of international law contemplated in the special agreement.
Therefore, it must be held that there is no principle of international law, within the
meaning of Article 15 of the Convention of Lausanne of July 24, 1923, which precludes the
institution of the criminal proceedings under consideration. Consequently, Turkey, by
instituting, in virtue of the discretion which international law leaves to every sovereign
State, the criminal proceedings in question, has not, in the absence of such principles, acted
in a manner contrary to the principles of international law within the meaning of the
special agreement.
Christie Faith Anne F. Mirabel

US v. Canada 1938-41 (Trail Smelter Arbitration)

“The duty to protect other states against harmful acts by individuals from within its jurisdiction at
all times is the responsibility of a state”

FACTS: This case involves Trail Smelter dispute which is a trans-boundary pollution case between
the federal of the United States and Canada. The Trail Smelter located in British Columbia since
1906, was owned and operated by a Canadian corporation, which is domiciled in Canada (D). The
resultant effect of the sulfur dioxide from Trail Smelter resulted in the damage forests and crops
in the surrounding area and also across the state of Washington between 1925 and 1937. The
smoke of said smelter at the same time brought distress to the residents. This led to the United
States (P) suit against the Canada (D) with an injunction against further air pollution by the said
Trail Smelter.

ISSUE: Whether or not it is the responsibility of the State to protect to protect other states
against harmful acts by individuals from within its jurisdiction at all times?

HELD: Yes. It is the responsibility of the State to protect other states against harmful act by
individuals from within its jurisdiction at all times. No state has the right to use or permit the use
of the territory in a manner as to cause injury by fumes in or to the territory of another or the
properties or persons therein as stipulated under the United States (P) laws and the principles of
international law.
By looking at the facts contained in this case, the arbitration held that Canada (D) is responsible
in international law for the conduct of the Trail Smelter Company. Hence, the onus lies on the
Canadian government (D) to see to it that Trail Smelter’s conduct should be in line with the
obligations of Canada (D) as it has been confirmed by International law. The Trail Smelter
Company will therefore be required from causing any damage through fumes as long as the
present conditions of air pollution exist in Washington.
So, in pursuant of the Article III of the convention existing between the two nations, the
indemnity for damages should be determined by both governments. Finally, a regime or
measure of control shall be applied to the operations of the smelter since it is probable in the
opinion of the tribunal that damage may occur in the future from the operations of the smelter
unless they are curtailed.

Responsibility for pollution of the sea or the existence of a duty to desist from polluting the sea
has never been laid at the feet of any country by any international tribunal. Although regulation
of pollution is just commencing, it must ensure that there is equilibrium against freedom of the
seas guaranteed under general and long established rules of international law.
Sheryl L. Ogoc

No. 14. BLACKMER VS. UNITED STATES

284 U.S. 421 (1932) February 15, 1932

NATIONALITY PRINCIPLE

FACTS OF THE CASE:

Harry M. Blackmer, who is a resident of Paris, France, is a US citizen as well. He was

convicted of contempt of the District of Columbia Supreme Court because he failed to respond
to the two subpoenas served upon him that required him to appear as a witness in behalf of
the United States at the criminal trial court.

The Supreme Court based its ruling at the United States statute (Act of July 3, 1926)
which provides that “whenever the attendance at the trial of a criminal action of a witness
abroad, who is a citizen of the United States or domiciled therein, is desired by the Attorney
General, or any assistant or district attorney acting under him, the judge of the court in which
the action is pending may order a subpoena to issue, to be addressed to a consul of the United
States and to be served by him personally upon the witness with a tender of traveling expenses.
Upon proof of such service and of the failure of the witness to appear, the court may make an
order requiring the witness to show cause why he should not be punished for contempt, and,
upon the issue of such an order, the court may direct that property belonging to the witness
and within the United States may be seized and held to satisfy any judgment which may be
rendered against him in the proceeding.”

On the other hand, Blackmer contends that (1) That the 'Congress has no power to
authorize United States consuls to serve process except as permitted by treaty'; (2) that the act
does not provide 'a valid method of acquiring judicial jurisdiction to render personal judgment
against defendant and judgment against his property'; (3) that the act 'does not require actual
or any other notice to defendant of the offense or of the Government's claim against his
property'; (4) that the provisions 'for hearing and judgment in the entire absence of the accused
and without his consent' are invalid; and (5) that the act is 'arbitrary, capricious and
unreasonable.

ISSUE:
Whether or not there is a valid exercise of authority on the part of the Supreme Court of
the District of Columbia that made the issuance of subpoena demanding Blackmer’s
appearance proper

RULING:

Yes. The US Supreme Court ruled that even though the petitioner transferred his
residence to France, he is still a citizen of the United States and continued to owe allegiance to
it. The United States retained its authority over him by virtue of the obligations of citizenship
and thus he was bound by its laws even when in a foreign country. Therefore, although the
petitioner is a resident abroad, he remained subject to the jurisdiction of the United States.
Because of his disobedience to its laws, he was subject to punishment in the courts of the
United States.
 On the issue of an exercise of authority, there is no question of international law, but of
the municipal law which establishes the duties of the citizen in relation to his own
government. While Congress is construed to apply only within the territorial jurisdiction of the
United States, the question of its application, with respect to the citizens of the United States in
foreign countries are concerned, is not of legislative power but of construction. Further, the
United States possesses the inherent power of sovereignty to require the return of its citizen to
its own country, whenever the public interest requires it, and to penalize him in case he refuses
to do so. England’s prerogative of the sovereign in this respect pertains under the constitutional
system of the United States to the national authority which may be exercised by the Congress
by virtue of its legislative power to prescribe the duties of its citizens.

The actual service of the subpoena in a foreign country is valid between the government
of the United States and the citizen. The mere giving of such notice to the citizen in the foreign
country requiring his return to his country cannot be considered an invasion of any right of the
foreign government, and the citizen has no standing to invoke any such supposed right. The
consul was directed to act as a designated person representing the government in conveying to
the citizen the actual notice of the requirement of his attendance. The point raised by the
petitioner with respect to the provision for the service of the subpoena abroad is without merit.

One of the duties which the citizen owes to his government is to support the
administration of justice by attending its courts and giving his testimony whenever he is
properly summoned. The Congress may provide for the performance of this duty and prescribe
penalties for disobedience.

NATIONALITY PRINCIPLE

The Nationality Principle provides that every State has jurisdiction over its nationals
even when they are outside their country. Any citizen residing in a foreign country continues to
owe allegiance to his country and is bound by its laws applicable to his situation. The power to
require the return of absent citizens for public interest is inherent in sovereignty and has the
national authority, through Congress, to prescribe the duties of its citizens. One of the duties of
such absent citizens to his country is to support its government in the administration of justice.
So when properly summoned, the Congress may provide for the performance of this duty and
prescribe penalties for disobedience. Questions of authority in such cases are not questions of
international law, but of municipal law.

In contempt proceedings for failure, to obey subpoenas: 1) service of subpoena in a

foreign country invades no right of the foreign government, and the citizen has no standing to
invoke such supposed right; 2) the function of a consul in serving the subpoena and the order to
show cause is merely that an agent of the government for conveying actual notice to one of its
citizens; it need not be sanctioned by a treaty.
PAGDANGANAN, Joana Heidi, P.

MEJOFF VS. DIRECTOR OF PRISONS

90 PHIL 70, September 26, 1951

FACTS:

This is a second petition for habeas corpus by Boris Mejoff, the first having been denied
in a decision of this Court of July 30, 1949.

The petitioner Boris Mejoff is an alien of Russian descent who was brought to this
country from Shanghai as a secret operative by the Japanese forces during the latter's regime in
these Islands. Upon liberation he was arrested as a Japanese spy, by U. S. Army Counter
Intelligence Corps.

Thereafter the People's Court ordered his release. But the Deportation Board taking his
case up, found that having no travel documents Mejoff was illegally in this country, and
consequently referred the matter to the immigration authorities.

After the corresponding investigation, the Board of Commissioners of Immigration on

April 5, 1948, declared that Mejoff had entered the Philippines illegally in 1944, without
inspection and admission by the immigration officials at a designation port of entry and,
therefore, it ordered that he be deported on the first available transportation to Russia.

The petitioner was then under custody, he having been arrested on March 18, 1948. In
October 1948 after repeated failures to ship this deportee abroad, the authorities removed him
to Bilibid Prison at Munting Lupa where he has been confined up to the present time, inasmuch
as the Commissioner of Immigration believes it is for the best interests of the country to keep
him under detention while arrangements for his departure are being made.

Over two years having elapsed since the decision aforesaid was promulgated, the
Government has not found ways and means of removing the petitioner out of the country, and
none are in sight, although, it should be said in justice to the deportation authorities, it was
through no fault of theirs that no ship or country would take the petitioner.

ISSUE:

Whether or not Boris Mejoff should be released from prison pending his deportation.

HELD:

The protection against deprivation of liberty without due process of law and except for
crimes committed against the laws of the land is not limited to Philippine citizens but extends to
all residents, except enemy aliens, regardless of nationality.

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally
accepted principles of international law as part of the law of Nation." And in a resolution entitled
"Universal Declaration Of Human Rights" and approved by the General Assembly of the United
Nations of which the Philippines is a member, at its plenary meeting on December 10, 1948, the
right to life and liberty and all other fundamental rights as applied to all human beings were
proclaimed.
 It was there resolved that "All human beings are born free and equal in degree and
rights" (Art. 1) and that "No one shall be subjected to arbitrary arrest, detention or exile" (Art. 9).

Premises considered the writ will issue commanding the respondents to release the
petitioner from custody upon these terms: The petitioner shall be placed under the surveillance
of the immigration authorities or their agents in such form and manner as maybe deemed
adequate to insure that he keep peace and be available when the Government is ready to deport
him. The surveillance shall be reasonable and the question of reasonableness shall be submitted
to this Court or to the Court of First Instance of Manila for decision in case of abuse.
Monica Dianne E. Ramirez

DOLLY M.E. FILÁRTIGA AND JOEL FILÁRTIGA V. AMERICO NORBERTO PEÑA-IRALA

63D F.2d 876, 3D June 198D

FACTS:

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.

The Filártigas are citizens of the Republc of Paraguay. They alleged that their 17-year old
son Joelito was kidnapped and tortured to death by Norberto Peña-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. Peña also entered
the United States under a visitor’s visa, but remained in the US beyond the visa’s term. Dolly
learned of Peña 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 around 6 April 1979, Dolly filed a complaint before US courts alleging
that Peña had wrongfully caused Joelito's death by torture and seeking compensatory and
punitive damages of $ 10,000,000. The suit was filed under a previously little-used 1789 federal
statute, the Alien Tort Claims Act, which gives foreign nationals the right to sue for wrongful
actions that violate international law.

The Filártigas 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 laws.
 Peña claimed the U.S. courts have no jurisdiction to hear the case under the Alien Tort
Statute.

On 15 May 1979, the District Court dismissed the action for want of subject matter
jurisdiction. The District Court for the Eastern District of New York dismissed the case on the
grounds that subject matter jurisdiction was absent and for forum non conveniens.

The Filártiga family appealed. On 16 October 1979, the case was heard by the Second
Circuit Court of Appeals. The Filártiga family succeeded: the Court of Appeal, Second Circuit,
ruled that even though the Filártiga family did not consist of US nationals and that the crime was
committed outside the US, the family was allowed to bring a claim before US courts. It held that
torture was a violation of the laws of nations and that federal jurisdiction was provided.

On 10 January 1984, the US District Court for the Eastern District of New York entered
judgment against Peña and in favor of the father for $5,210,364 and in favor of the sister for
$5,175,000.

ISSUES:

1. WON acts of torture are part of international concern, thus, under the customary
international law

2. WON a violation of the law of nations arise only when there has been a violation by one or
more individuals of those standards, rules or customs if:

(a) it affects the relationship between states or between an individual and a foreign state, and (b)
if it is used by those states for their common good and/or in dealing per se
RULING:

1.

> The Court ruled in 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), in light of the universal condemnation
of torture in numerous international agreements. They found 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.

> 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 given
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 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 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 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.

2.

> 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.
RESURRECCION, Kimberly R.
U.S v. Yunis
681 F. Supp. 896 (1988). February 12, 1988
J. Parker

Facts:

This criminal proceeding and indictment arise from the hijacking of a Jordanian civil
aircraft, Royal Jordanian Airlines ("ALIA") Flight 402, on June 11, and 12, 1985. There is no
dispute that the only nexus to the United States was the presence of several American
nationals on board the flight. The airplane was registered in Jordan, flew the Jordanian flag
and never landed on American soil or flew over American airspace.

Yunis (Defendant) and several accomplices hijacked a Jordanian airliner while it

was on the ground in Beirut. The plane flew to several locations around the Mediterranean
Sea, and eventually flew back to Beirut, where the hijackers blew up the plane and then
escaped into the hills. The only connection between the whole event and the United States
was that several Americans were on board the whole time. Yunis (Defendant) was indicted
for violating the Hostage Taking Act. He was apprehended, and later indicted under the
Destruction of Aircraft Act.

Yunis has moved to dismiss the entire indictment, arguing that no United States
federal court has jurisdiction to prosecute a foreign national for crimes committed in
foreign airspace and on foreign soil. He further claims that the presence of the American
nationals on board the aircraft is an insufficient basis for exercising jurisdiction under
principles of international law.

Issue: Whether or not there is a basis for jurisdiction under international law, if so,
whether Congress intended to and had authority to extend jurisdiction of our federal courts
over criminal offenses and events which were committed and occurred overseas and out of
the territorial jurisdiction of such courts.

Ruling:

There must be jurisdiction under both international and domestic law in order for
jurisdiction to exist in the situation of this case. International law relates to the power of
Congress to have extraterritorial application of its law; domestic law relates to its intent to
do so. International law recognizes several bases for a nation to give extraterritorial
application to its laws. One is the “universal principle.” Some acts are considered to be so
heinous and contrary to civilization that any court may assert jurisdiction. The acts that fall
within this category are mainly defined by international convention. The universal
principle applies because numerous conventions condemn hijacking and hostage taking.
The “passive personal principle” is also relevant, which applies to offenses against a
nation’s citizens abroad.

The Universal and the Passive Personal principle appear to offer potential bases for
asserting jurisdiction over the hostage-taking and aircraft piracy charges against Yunis.
However, his counsel argues that the Universal principle is not applicable because neither
hostage-taking nor aircraft piracy are heinous crimes encompassed by the doctrine. He
urges further, that the United States does not recognize Passive Personal as a legitimate
source of jurisdiction. The government flatly disagrees and maintains that jurisdiction is
appropriate under both.
 The United States has been slow to recognize this principle, but it is now generally
agreed upon. International law having been disposed of on this issue, domestic law must
now be discussed. The Hostage Taking Law, at subsection (b)(1)(A), clearly includes an
offender that has seized or detained a U.S. citizen. The language could not be plainer. With
regard to the Destruction of Aircraft Act and the Federal Aviation Act, that the law was
intended to apply only when the aircraft in question either began or ended its flight in the
United States. Since the flight in question did not do this, the Act does not apply. Motion
denied in part; granted in part.
ROQUE, REGINE JULIENE G.

CASE TITLE:

UNITED STATES v. ALVAREZ-MACHAIN

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 91–712. Argued April 1, 1992—Decided June 15, 1992

FACTS:

Defendant, Humberto Alvarez-Machain, Mexican citizen and resident was indicted in

United States federal district court for participating in the kidnapping and murder of US Drug
Enforcement Agent (DEA) special agent, Enrique Camarena-Salazar, and a Mexican Pilot working
with Cameran, Alfredo Zavala-Avelar. On April 2, 1990, Alvarez, a doctor was forcibly kidnapped
from his medical office in Guafalajara, Mexico and flowed to El Pasa, Texas where he was
arrested by DEA officials and indicted. Alvarez, moved to dismiss the indictment by claiming that
his abduction constituted outrageous government conduct and that the district court lacked
jurisdiction to try him because he was abducted in violation of the Extradition Treaty of 1979
between the United States and Mexico. The district Court rejected Alvarez’s outrageous
government conduct claim, but ruled that it did not have jurisdiction over the case because
Alvarez had been abducted in violation of the Extradition Treaty. The district court ordered that
Alvarez be repatriated to Mexico. The United States government (plaintiff) appealed and the
court appealed, Court of appeals affirmed dismissal of the indictment and repatriation of Alvarez
ruling that although not expressly prohibited by the Extradition, forcible abduction violated the
purpose of treaty. US Supreme Court granted certiorari.

ISSUE:

WHETHER OR NOT PRESENCE OF AN EXTRADITION TREATY BETWEEN US AND MEXICO DOES NOT
NECESSARILY PRECLUDE OBTAINING A CITIZEN OF THAT NATION THROUGH ABDUCTION.

RULING:
The presence of the extradition treaty between the US and Mexico does not necessarily
preclude obtaining a citizen of that nation through abduction. It has been the rule that abduction
in and of itself, does not invalidate a prosecution against a foreign national. The question is,
whether the abduction violates any extradition treaty that may be in effect between the US and
the nation in which the abductee was to be found. In the case, Mexican authorities were aware
of the US long-standing law regarding abduction but were never insist on including a prohibition
against abduction. Defendant argued that since international law prohibits abductions, the
drafters of the treaty had no reason to consider a prohibition thereof necessary. However, such
body of law applies only to situations where no extradition treaty exists, so it is irrelevant to
contend such. Thus, since extradition treaty does not prohibit an abduction such as occurred in
the status quo hence it was not illegal.
SALVADOR, JOSELYN S.

SECRETARY OF JUSTICE VS. HON. RALPH C. LANTION

G.R. No. 1399465, January 18, 2000

Facts:

On November 13, 1994, then Secretary of Justice Franklin Drilon, representing the Government
of the Republic of the Philippines, signed in Manila the “Extradition Treaty Between the
Government of the Philippines and the Government of the U.S.A. The Philippine Senate epressed
its concurrence in the ratification of the said treaty by way of Resolution No. 11.

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs
U.S Note Verbale No. 0522 containing a request for the extradition of private respondent Mark
Jimenez to the United States.

On the same day petitioner designated and authorized a panel of attorneys to take charge of and
to handle the case. Pending evaluation of the aforesaid extradition documents, Mark Jimenez,
through counsel, wrote a letter to Justice Secretary requesting copies of the official extradition
request from the U.S Government and that he be given ample time to comment on the request
after he received copies of the requested papers. Nevertheless, the petitioner denied it for it
will be premature to furnish the private respondent with a copy, and that the formal requests for
Extradition of the United Stated contain grand jury information and that document obtained
through grand jury process is covered by strict secrecy rules under United States Law. The denial
is consistent with Article 7 of the RP-US Extradition Treaty stating that the Philippine
Government must represent the interests of the United States in any proceedings arising out of a
request for extradition.

The private respondent filed with the Regional Trial Court of Manila, Branch 25, a petition for
mandamus, certiorari and prohibition. The latter had issued a Temporary Restraining Order
against the petitioner, hence this petition.

Issue:
Whether or not to upholding a citizen’s basic due process rights should take precedence over the
Government’s ironclad duties under a treaty.

Ruling:

Yes, the citizen’s basic due process rights should take precedence.

The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in
our Constitution should take precedence over treaty rights claimed by a contracting state. The
duties of the government to the individual deserve preferential consideration when they collide
with its treaty obligations to the government of another state. Though treaties are recognized as
a source of binding obligations under generally accepted principles of international law
incorporated in the Constitution as part of the law of the land, the principle lex posterior
derogate priori takes effect – a treaty may repeal a statute and a statute may repeal a treaty. In
states where the Constitution is the highest law of the land, such as the Republic of the
Philippines, both statutes and treaties may be invalidated if they are in conflict with the
constitution

Petition is dismissed.
Justin G. Sambile

United States of America vs. Ruiz

Facts:

This is a petition to review, set aside certain orders and restrain perpetually the proceedings done by
Hon. Ruiz for lack of jurisdiction on the part of the trial court.

The United States of America had a naval base in Subic, Zambales. The base was one of those provided in
the Military Bases Agreement between the Philippines and the United States. Sometime in May, 1972,
the United States invited the submission of bids for a couple of repair projects. Eligio de Guzman land Co.,
Inc. responded to the invitation and submitted bids. Subsequent thereto, the company received from the
US two telegrams requesting it to confirm its price proposals and for the name of its bonding company.
The company construed this as an acceptance of its offer so they complied with the requests. The
company received a letter which was signed by William I. Collins of Department of the Navy of the United
States, also one of the petitioners herein informing that the company did not qualify to receive an award
for the projects because of its previous unsatisfactory performance rating in repairs, and that the projects
were awarded to third parties. For this reason, a suit for specific performance was filed by him against the
US.

Issues:

Whether or not the US naval base in bidding for said contracts exercise governmental functions to be able
to invoke state immunity.

Rulings:

Yes. The Supreme Court held that the contract relates to the exercise of its sovereign functions. In this
case the projects are an integral part of the naval base which is devoted to the defense of both the
United States and the Philippines, indisputably a function of the government of the highest order, they
are not utilized for nor dedicated to commercial or business purposes.

The restrictive application of state immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign. Its commercial activities of economic affairs. A state may be
descended to the level of an individual and can thus be deemed to have tacitly given its consent to be
sued. Only when it enters into business contracts.

Discussions:

The traditional role of the state immunity exempts a state from being sued in the courts of another state
without its consent or waiver. This rule is necessary consequence of the principle of independence and
equality of states. However, the rules of international law are not petrified; they are continually and
evolving and because the activities of states have multiplied. It has been necessary to distinguish them
between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts
(jure gestionis). The result is that State immunity now extends only to acts jure imperil. The restrictive
application of State immunity is now the rule in the United States, the United Kingdom and other states in
western Europe.
Santos, Joel Guinto

REPUBLIC OF INDONESIA versus VINZON

G.R. No. 154705, June 26, 2003

Facts:

This is a petition for review of the decision made by Court of Appeals in ruling that the
Republic of Indonesia gave its consent to be sued and voluntarily submitted itself to the laws and
jurisdiction of Philippine courts and that petitioners Ambassador Soeratmin and Minister
Counsellor Kasim waived their immunity from suit.

Petitioner, Republic of Indonesia, represented by its Counsellor, Siti Partinah, entered

into a Maintenance Agreement with respondent James Vinzon, sole proprietor of Vinzon Trade
and Services. The equipment covered by the Maintenance Agreement are air conditioning units
and was to take effect in a period of four years.

When Indonesian Minister Counsellor Kasim assumed the position of Chief of

Administration, he allegedly found respondent’s work and services unsatisfactory and not in
compliance with the standards set in the Maintenance Agreement. Hence, the Indonesian
Embassy terminated the agreement.

The respondent claims that the aforesaid termination was arbitrary and unlawful. Hence,
he filed a complaint against the petitioners which opposed by invoking immunity from suit.

Issues:

(1) Whether or not the Republic of Indonesia can invoke the doctrine of sovereign
immunity from suit.

(2) Whether or not petitioners Ambassador Soeratmin and Minister Counsellor Kasim
may be sued herein in their private capacities.

Rulings:

(1) The Supreme Court ruled that the republic of Indonesia cannot be deemed to have
waived its immunity to suit. The mere entering into a contract by a foreign state with a private
party cannot be construed as the ultimate test of whether or not it is an act juri imperii or juri
gestionis. Such act is only the start of the inquiry. There is no dispute that the establishment of a
diplomatic mission is an act juri imperii. The state may enter into contracts with private entities
to maintain the premises, furnishings and equipment of the embassy. The Republic of Indonesia
is acting in pursuit of a sovereign activity when it entered into a contract with the respondent.
The maintenance agreement was entered into by the Republic of Indonesia in the discharge of
its governmental functions. It cannot be deemed to have waived its immunity from suit.
 (2) Article 31 of the Vienna Convention on Diplomatic Relations provides that a
diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He
shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a.) a real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of the
mission;
(b) an action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) an action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions.

Principle:

The rule that a State may not be sued without its consent is a necessary consequence of
the principles of independence and equality of States. The practical justification for the doctrine
of sovereign immunity is that there can be no legal right against the authority that makes the law
on which the right depends. In the case of foreign States, the rule is derived from the principle of
the sovereign equality of States, as expressed in the maxim par in parem non habet imperium.
All states are sovereign equals and cannot assert jurisdiction over one another. A contrary
attitude would “unduly vex the peace of nations”.

The rules of International Law, however, are not unbending or immune to change. The
increasing need of sovereign States to enter into purely commercial activities remotely
connected with the discharge of their governmental functions brought about a new concept of
sovereign immunity. This concept, the restrictive theory, holds that the immunity of the
sovereign is recognized only with regard to public acts or acts jure imperii (public acts of the
government of a state), but not with regard to private acts or acts jure gestionis (the commercial
activities of a state.)
ARCEGA, Enricke Joshua C.

Co Kim Chan
v.
Valdez Tan Keh
GR No. L-5
75 Phil 113, 122 1945

FACTS: Petitioner Co Kim Cham had a pending Civil Case with the Court of First Instance of
Manila initiated during the time of the Japanese occupation.
The respondent judge, Judge Arsenio Dizon, refused to continue hearings on the case which
were initiated during the Japanese military occupation on the ground that the proclamation
issued by General MacArthur that “all laws, regulations and processes of any other government
in the Philippines than that of the said Commonwealth are null and void and without legal effect
in areas of the Philippines free of enemy occupation and control” had the effect of invalidating
and nullifying all judicial proceedings and judgments of the court of the Philippines during the
Japanese military occupation, and that the lower courts have no jurisdiction to take cognizance
of and continue judicial proceedings pending in the courts of the defunct Republic of the
Philippines in the absence of an enabling law granting such authority.
Respondent, additionally contends that the government established during the Japanese
occupation were no de facto government.

ISSUE: WON judicial acts and proceedings of the court made during the Japanese occupation
were valid and remained valid even after the liberation or reoccupation of the Philippines by the
United States and Filipino forces; WON the October 23, 1944 proclamation issued by General
MacArthur declaring that “all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal effect in
areas of the Philippines free of enemy occupation and control” has invalidated all judgments and
judicial acts and proceedings of the courts; WON those courts could continue hearing the cases
pending before them, if the said judicial acts and proceedings were not invalidated by
MacArthur’s proclamation.

HELD: The judicial acts and proceedings of the court were good and valid. The governments by
the Philippine Executive Commission and the Republic of the Philippines during the Japanese
military occupation being de facto governments, it necessarily follows that the judicial acts and
proceedings of the court of justice of those governments, which are not of a political
complexion, were good and valid. Those not only judicial but also legislative acts of de facto
government, which are not of a political complexion, remained good and valid after the
liberation or reoccupation of the Philippines by the American and Filipino forces under the
leadership of General Douglas MacArthur.
The phrase “processes of any other government” is broad and may refer not only to the judicial
processes, but also to administrative or legislative, as well as constitutional, processes of the
Republic of the Philippines or other governmental agencies established in the Islands during the
Japanese occupation. Taking into consideration the fact that, as above indicated, according to
the well-known principles of international law all judgements and judicial proceedings, which are
not of a political complexion, of the de facto governments during the Japanese military
occupation were good and valid before and remained so after the occupied territory had come
again into the power of the titular sovereign, it should be presumed that it was not, and could
not have been, the intention of General Douglas MacArthur, in using the phrase “processes of
any other government” in said proclamation, to refer to judicial processes, in violation of said
principles of international law.
Although in theory the authority of the local civil and judicial administration is suspended as a
matter of course as soon as military occupation takes place, in practice the invader does not
usually take the administration of justice into his own hands, but continues the ordinary courts
or tribunals to administer the laws of the country which he is enjoined, unless absolutely
prevented, to respect. An Executive Order of President McKinley to the Secretary of War states
that “in practice, they (the municipal laws) are not usually abrogated but are allowed to remain
in force and to be administered by the ordinary tribunals substantially as they were before the
occupation. This enlightened practice is, so far as possible, to be adhered to on the present
occasion.” And Taylor in this connection says: “From a theoretical point of view it may be said
that the conqueror is armed with the right to substitute his arbitrary will for all pre-existing
forms of government, legislative, executive and judicial. From the stand-point of actual practice
such arbitrary will is restrained by the provision of the law of nations which compels the
conqueror to continue local laws and institution so far as military necessity will permit.”
Undoubtedly, this practice has been adopted in order that the ordinary pursuits and business of
society may not be unnecessarily deranged, inasmuch as belligerent occupation is essentially
provisional, and the government established by the occupant of transient character.
Maria Bernadette B. Bartolome

Underhill v. Hernandez
168 U.S. 250, 1897

Facts:

In the early part of 1892 a revolution was initiated in Venezuela, against the
administration thereof, which the revolutionists claimed had ceased to be the legitimate
government. The principal parties to this conflict were those who recognized Palacio as their
head, and those who followed the leadership of Crespo. Gen. Hernandez belonged to the anti-
administration party, and commanded its forces in the vicinity of Ciudad Bolivar. On the 8th of
August, 1892, an engagement took place between the armies of the two parties at Buena Vista,
some seven miles from Bolivar, in which the troops under Hernandez prevailed; and, on August
13, Hernandez entered Bolivar, and assumed command of the city. All of the local officials had in
the meantime left, and the vacant positions were filled by Gen. Hernandez, who from that date,
and during the period of the transactions complained of, was the civil and military chief of the
city and district. In October, the party in revolt had achieved success generally, taking possession
of the capital of Venezuela, October 6th; and on October 23, 1892, the 'Crespo government,' so
called, was formally recognized as the legitimate government of Venezuela by the United States.

George F. Underhill was a citizen of the United States, who had constructed a waterworks
system for the city of Bolivar, under a contract with the government, and was engaged in
supplying the place with water; and he also carried on a machinery repair business. Sometime
after the entry of Gen. Hernandez, Underhill applied to him, as the officer in command, for a
passport to leave the city. Hernandez refused this request, and requests made by others in
Underhill's behalf, until October 18th, when a passport was given, and Underhill left the country.
This action was brought to recover damages for the detention caused by reason of the refusal to
grant the passport, for the alleged confinement of Underhill to his own house, and for certain
alleged assaults and affronts by the soldiers of Hernandez's army.

The case was tried in the circuit court of the United States for the Eastern district of New
York, and on the conclusion of plaintiff's case the circuit court ruled that upon the facts plaintiff
was not entitled to recover, and directed a verdict for defendant, on the ground that 'because
the acts of defendant were those of a military commander, representing a de facto government
in the prosecution of a war, he was not civilly responsible therefor.' Judgment having been
rendered for defendant, the case was taken to the circuit court of appeals, and by that court
affirmed, upon the ground 'that the acts of the defendant were the acts of the government of
Venezuela, and as such are not properly the subject of adjudication in the courts of another
government.' Thereupon the case was brought to the Supreme Court on certiorari.

Issue:

Whether or not the lower court erred in ruling in favor of defendant Hernandez.

Held:

No. The lower court was correct in ruling for Hernandez.

Every sovereign state is bound to respect the independence of every other sovereign
state, and the courts of one country will not sit in judgment on the acts of the government of
another, done within its own territory. Redress of grievances by reason of such acts must be
obtained through the means open to be availed of by sovereign powers as between themselves.
 Nor can the principle be confined to lawful or recognized governments or to cases where
redress can manifestly be had through public channels. The immunity of individuals from suits
brought in foreign tribunals for acts done within their own states, in the exercise of
governmental authority, whether as civil officers or as military commanders, must necessarily
extend to the agents of governments ruling by paramount force as matter of fact. Where a civil
war prevails and that is, where the people of a country are divided into two hostile parties, who
take up arms and oppose one another by military force, generally speaking, foreign nations do
not assume to judge of the merits of the quarrel. If the party seeking to dislodge the existing
government succeeds, and the independence of the government it has set up is recognized, then
the acts of such government, from the commencement of its existence, are regarded as those of
an independent nation. If the political revolt fails of success, still, if actual war has been waged,
acts of legitimate warfare cannot be made the basis of individual liability.

Revolutions or insurrections may inconvenience other nations, but by accommodation to

the facts the application of settled rules is readily reached. And, where the fact of the existence
of war is in issue in the instance of complaint of acts committed within foreign territory, it is not
an absolute prerequisite that that fact should be made out by an acknowledgment of
belligerency, as other official recognition of its existence may be sufficient proof thereof.
Bautista, William Alcoriza

G.R. No. 104768 July 21, 2003

REPUBLIC OF THE PHILIPPINES

vs.
SANDIGANBAYAN, MAJOR GENERAL JOSEPHUS Q. RAMAS and ELIZABETH DIMAANO

Facts: Immediately upon her assumption to office following the successful EDSA Revolution, then
President Corazon C. Aquino issued Executive Order No. 1 ("EO No. 1") creating the Presidential
Commission on Good Government ("PCGG"). EO No. 1 primarily tasked the PCGG to recover all
ill-gotten wealth of former President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates. EO No. 1 vested the PCGG with the power "(a) to conduct
investigation as may be necessary in order to accomplish and carry out the purposes of this
order" and the power "(h) to promulgate such rules and regulations as may be necessary to carry
out the purpose of this order." Accordingly, the PCGG, through its then Chairman Jovito R.
Salonga, created an AFP Anti-Graft Board ("AFP Board") tasked to investigate reports of
unexplained wealth and corrupt practices by AFP personnel, whether in the active service or
retired.

Military equipment/items and communication facilities were found in the residence of

Elizabeth Dimaano, who was allegedly his mistress, and were confiscated by the elements of PC
Command of Batangas. Money in the amount of P2,870,000 and $50,000 was also confiscated in
the house of Elizabeth Dimaano.
The Constabulary raiding team served at Dimaano’s residence a search warrant captioned "Illegal
Possession of Firearms and Ammunition." Dimaano was not present during the raid but
Dimaano’s cousins witnessed the raid. The raiding team seized the items detailed in the seizure
receipt together with other items not included in the search warrant. The raiding team seized
these items: one baby armalite rifle with two magazines; 40 rounds of 5.56 ammunition; one
pistol, caliber .45; communications equipment, cash consisting of ₱2,870,000 and US$50,000,
jewelry, and land titles.

Petitioner wants the Court to take judicial notice that the raiding team conducted the search and
seizure "on March 3, 1986 or five days after the successful EDSA revolution." Petitioner argues
that a revolutionary government was operative at that time by virtue of Proclamation No. 1
announcing that President Aquino and Vice President Laurel were "taking power in the name and
by the will of the Filipino people." Petitioner asserts that the revolutionary government
effectively withheld the operation of the 1973 Constitution which guaranteed private
respondents’ exclusionary right.

Moreover, petitioner argues that the exclusionary right arising from an illegal search applies only
beginning 2 February 1987, the date of ratification of the 1987 Constitution. Petitioner contends
that all rights under the Bill of Rights had already reverted to its embryonic stage at the time of
the search. Therefore, the government may confiscate the monies and items taken from
Dimaano and use the same in evidence against her since at the time of their seizure, private
respondents did not enjoy any constitutional right.

Issue: Whether the revolutionary government was bound by the Bill of Rights of the 1973
Constitution during the interregnum after the actual and effective take-over of power by the
revolutionary government following the cessation of resistance by loyalist forces up to 24 March
1986 (immediately before the adoption of the Provisional Constitution); and (2) whether the
protection accorded to individuals under the International Covenant on Civil and Political Rights
("Covenant") and the Universal Declaration of Human Rights ("Declaration") remained in effect
during the interregnum.

Ruling: We hold that the Bill of Rights under the 1973 Constitution was not operative during the
interregnum. However, we rule that the protection accorded to individuals under the Covenant
and the Declaration remained in effect during the interregnum.

During the interregnum, the directives and orders of the revolutionary government were the
supreme law because no constitution limited the extent and scope of such directives and orders.
With the abrogation of the 1973 Constitution by the successful revolution, there was no
municipal law higher than the directives and orders of the revolutionary government. Thus,
during the interregnum, a person could not invoke any exclusionary right under a Bill of Rights
because there was neither a constitution nor a Bill of Rights during the interregnum.

Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the
interregnum, absent a constitutional provision excepting sequestration orders from such Bill of
Rights, would clearly render all sequestration orders void during the interregnum. Nevertheless,
even during the interregnum the Filipino people continued to enjoy, under the Covenant and the
Declaration, almost the same rights found in the Bill of Rights of the 1973 Constitution.

The revolutionary government, after installing itself as the de jure government, assumed
responsibility for the State’s good faith compliance with the Covenant to which the Philippines is
a signatory. Article 2(1) of the Covenant requires each signatory State "to respect and to ensure
to all individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant." Under Article 17(1) of the Covenant, the revolutionary government had the
duty to insure that "[n]o one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence."

The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that
"[n]o one shall be arbitrarily deprived of his property." Although the signatories to the
Declaration did not intend it as a legally binding document, being only a declaration, the Court
has interpreted the Declaration as part of the generally accepted principles of international law
and binding on the State. Thus, the revolutionary government was also obligated under
international law to observe the rights of individuals under the Declaration.

The revolutionary government did not repudiate the Covenant or the Declaration during the
interregnum. Whether the revolutionary government could have repudiated all its obligations
under the Covenant or the Declaration is another matter and is not the issue here. Suffice it to
say that the Court considers the Declaration as part of customary international law, and that
Filipinos as human beings are proper subjects of the rules of international law laid down in the
Covenant. The fact is the revolutionary government did not repudiate the Covenant or the
Declaration in the same way it repudiated the 1973 Constitution. As the de jure government, the
revolutionary government could not escape responsibility for the State’s good faith compliance
with its treaty obligations under international law.
It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the
directives and orders of the revolutionary government became subject to a higher municipal law
that, if contravened, rendered such directives and orders void. The Provisional Constitution
adopted verbatim the Bill of Rights of the 1973 Constitution. The Provisional Constitution served
as a self-limitation by the revolutionary government to avoid abuses of the absolute powers
entrusted to it by the people.

It is obvious from the testimony of Captain Sebastian that the warrant did not include the
monies, communications equipment, jewelry and land titles that the raiding team confiscated.
The search warrant did not particularly describe these items and the raiding team confiscated
them on its own authority. The raiding team had no legal basis to seize these items without
showing that these items could be the subject of warrantless search and seizure. Clearly, the
raiding team exceeded its authority when it seized these items.

The seizure of these items was therefore void, and unless these items are contraband per se, and
they are not, they must be returned to the person from whom the raiding seized them.
However, we do not declare that such person is the lawful owner of these items, merely that the
search and seizure warrant could not be used as basis to seize and withhold these items from
the possessor. We thus hold that these items should be returned immediately to Dimaano.
Bernardo, Precious Anne D.C.

Juliana Etorma vs. Lucila aRavelo and the Director of Lands

[No. L-718. March 24, 1947]
Feria, J.

Facts:
The petition for certiorari filed on July 13, 1946, assailed the validity of the judgment of the
Court of Appeals which affirmed in December, 1942, the decision of the Court of First Instance of
Tayabas against the petitioners, on the ground that the judgment rendered by the Court of
Appeals during the Japanese occupation was null and void, because the question involved in the
litigation was the validity or invalidity of a free patent issued by the Governor General of the
Philippines under the authority granted by an Act of Congress of the United States; one of the
parties in the case was the Director of Lands, as officer in charge with the administration and
alienation of public lands placed under the control of the Government of the Philippines; and the
petitioners were claiming vested rights, not only under the laws in force in the Philippiness, but
also under the Act of Congress of July 1, 1902.

Issues:
1. Whether or not the judgement rendered by the Court of Appeals during the Japanese
occupation is null and void.
2. Whether or not a government de facto was validly established by the Japanese military
forces in the Philippines.

Ruling:
1. The decision of the Court of Appeals promulgated on December 22,1942, which affirmed
that of the Court of First Instance of Tayabas, has become final several years ago, and the
judgments of the Courts in the Philippines during the Japanese occupation are valid and
binding in accordance with the ruling of this Court in the case of Co Kim Cham vs. Valdez
Tan Keh and Dizon (75 Phil., 113). The fact that the question involved was the validity of a
free patent, and the Director of Public Lands was a party, and that the authority to grant
free patent was conferred upon the Governor General, and the power to regulate the
procedure to obtain it upon the Legislature of the Philippines by Act of Congress of July 1,
1902, did not make the judgment rendered thereon of political nature. The Acts
authorizing and regulating the grant of free patents to occupants or possessors of public
lands are municipal laws, and the judgments of the courts which apply said laws are not
of political complexion.

2. An organized government established in a territory must be either de jure or de facto,

since there is no other class of organized government known in political as well as in
international law.

A puppet government is one that acts as another wills or dictates. The Republic of the
Philippines was a puppet government, because although set up apparently as a free and
independent government, was, in truth and in fact, a government de facto established by
the belligerent occupant or the Japanese military forces.
A government de facto was validly established by the Japanese military forces in the
Philippines under the precepts of The Hague Conventions and the law of nations. The
presence of guerrilla bands in barrios and mountains, and even in towns of the
Philippines whenever these towns were left by Japanese garrisons or by the detachments
of troops sent on patrol to these places, was not sufficient to make the military
occupation ineffective, nor did it cause that occupation to cease, or prevent the
constitution or establishment of a de facto government in the Islands. The belligerent
occupation of the Philippines by the Japanese invaders became an accomplished fact
from the time General Wainright, Commander of the American and Filipino forces in
Luzon, and General Sharp, Commander of the forces in Visayas and Mindanao,
surrendered and ordered the surrender of their forces to the Japanese invaders, and the
Commonwealth Government had become incapable of publicly exercising its authority,
and the invader had substituted his own authority, for that of the legitimate government
in Luzon, Visayas, and Mindanao.
Tricia Marie B. Bernardo

Case Title: Jacinto Notor V Ramon Martinez

G.R. No. L-1892

Facts: Pio Martinez, as guardian of Pedro Martinez, executed a promissory note for P2,000 in
favor of Jacinto Notor, with interest at 10 per cent annually, and payable within two years from
said date. In a mortgage executed on March 28, 1943, covering said note, it was further provided
that the contract was "renewable at the discretion of the mortgagee," and that the mortgagor
promised to pay the sum specified in the note "according to the terms thereof". Due to
additional sums subsequently obtained from Jacinto Notor, plus interest, the total indebtedness
amounted to P10,111.

Prior to this date, Pio Martinez offered to pay the debt, but the creditor Jacinto Notor refused to
accept the payment, as a result of which the present action was instituted. In the complaint
(filed before the liberation of the Philippines), it was prayed that the debtor be declared as
having fully paid his indebtedness to Jacinto Notor. After trial, the lower court, rendered
judgment declaring that the plaintiff, Ramon Martinez, as guardian of Pedro Martinez, had paid
in full his indebtedness to the defendant, Jacinto Notor, from the time he consigned the amount
thereof by depositing it with the clerk of court of First Instance of Batangas. The Court ruled that
it is true that no allegation in paragraphs 5 and 6 of the complaint to the effect that there was as
notice of consignation, as required by article 1177 of the Civil Code, but the absence of such
allegation is cured by the positive stipulation that the only question to be raised is whether the
creditor has the right to renew the mortgage contract at his discretion, in which the Court
likewise ruled in affirmative. Jacinto Notor appealed to the Court of Appeals which rendered a
decision affirming the judgment of the court of origin.

Issue: Whether or not the courts of the Commonwealth and their successors, the court of the
Philippine Republic, have jurisdiction over the case.

Ruling: Yes. There can be no doubt as to the jurisdiction of the courts of the Commonwealth and
of the Republic. In the case of Co Kan Cham vs. Valdez Tau, 75 Phil., 113, 371; 41 Off. Gaz., 779, it
was held that the judicial acts and proceedings of the courts of justice during the Japanese
military occupation which are not of a political complexion, were good and valid and, by virtue of
the principle of post preliminary in international law, remained good and valid after the
liberation of the Philippines. The litigation between the parties herein is certainly not of a
political complexion, since it involves merely their civil rights, and it is immaterial whether the
currency in dispute was Japanese military notes. At any rate, the tender of payment was made
during the Japanese military occupation when military notes were legal tender. Under the rules
of Public international Law, the right of the military occupant, in the exercise of his governmental
power, to issue military currency as legal tender has never been seriously questioned. (Haw Pia
vs. China Banking Corporation, 80 Phil., 604; 45 Off Gaz. (Supp. to No. 9), 229; Philippine Trust
Company vs. Araneta, G. R. No. L-2734, March 17, 19491). In the case of Haw Pia vs. China
Banking Corporation, supra, we have already recognized the validity of a payment of a mortgage
indebtedness in Japanese military notes. This has to be so, because "the law made by the
occupant within his admitted power, whether morally justifiable or not will bind any member of
the occupied population as against any other member of it, . . . as far as it produces an effect
during the occupation."

In the case at bar we are not authorizing the circulation of Japanese military notes, as legal
tender at present, but we are merely giving effect to a payment that was valid and binding at the
time it was made.
Josie-Reyna S. Bumanglag

Kuroda vs. Jalandoni

G.R. No. L-2662 March 26, 1949

Facts:
On July 29, 1947, Executive Order No. 68 was passed by then President Manuel Roxas. It
establishes a National War Crimes Office and provides that persons accused as war criminals
shall be tried by military commissions. On June 26, 1948, petitioner Shigenori Kuroda, formerly a
Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese
Imperial Forces in the Philippines was charged before the military commission of violations of
the laws and customs of war for permitting commission of brutal atrocities and other high crimes
against noncombatant civilians and prisoners of the Imperial Japanese Forces. Petitioner Kuroda
filed a petition in Court seeking to declare EO No. 68 as unconstitutional on the ground, among
others, that the Philippines is not a signatory nor an adherent to the Hague Convention on Rules
and Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not
based on law, national and international.

Issue:
Whether or not EO No. 68 is constitutional.

Ruling:
Yes, EO No. 68 is constitutional.
Citing Article 2, Sec. 3 of the Constitution which provides that “the Philippines renounces
war as an instrument of national policy and adopts the generally accepted principles of
international law as part of the law of the nation", the Supreme Court held that In accordance
with the generally accepted principle of international law of the present day including the Hague
Convention, the Geneva Convention, and significant precedents of international jurisprudence
established by the United Nation, all those person military or civilian who have been guilty of
planning preparing or waging a war of aggression and of the commission of crimes and offenses
consequential and incidental thereto in violation of the laws and customs of war, of humanity
and civilization are held accountable therefor. Consequently, in the promulgation and
enforcement of Execution Order No. 68, the President of the Philippines has acted in conformity
with the generally accepted and policies of international law which are part of our Constitution.
DE LEON, REDJINA B.
G.R. No. L-1648. August 17, 1949
PEDRO SYQUIA, ET AL., vs. NATIVIDAD ALMEDA LOPEZ, ET AL.

Facts:

The plaintiffs are the owner of three apartments located in Manila. The apartments
where subject of lease contracts in favor of the United State of America. The term or period for
the three leases was to be "for the duration of the war and six months thereafter, unless sooner
terminated by the United States of America." Defendant Moore and Tillman were in charge of
the said apartments.
Sometime in March 1946 approached the predecessors in office of defendants Moore
and Tillman and requested the return of the apartment buildings to them, but they were advised
that the U. S. Army wanted to continue occupying the premises. On May 11, 1946, said plaintiffs
requested the defendants to renegotiate said leases, execute lease contracts for a period of
three years and to pay a reasonable rental higher than those payable under the old contracts.
However, they refused to execute new leases but advised that "it is contemplated that the
United States Army will vacate subject properties prior to 1 February 1947." Hence, plaintiffs
formally requested Tillman to cancel said three leases and to release the apartment buildings on
June 28, 1946. Tillman refused to comply with the request. Because of the alleged
representation and assurance that the U. S. Government would vacate the premises before
February 1, 1947, the plaintiffs took no further steps to secure possession of the buildings and
accepted the monthly rentals tendered by the predecessors in office of Moore and Tillman on
the basis of a month to month lease subject to cancellation upon thirty days’ notice. On February
17, 1947, plaintiffs served formal notice upon defendants Moore and Tillman and 64 other army
officers or members of the United States Armed Forces who were then occupying apartments in
said three buildings, demanding to cancel the contract and vacate the buildings or to execute
another contract with higher rents.

The thirty-day period having expired without any of the defendants having complied with
plaintiffs' demands, the plaintiffs filed an action of unlawful detainer in the Municipal Court of
Manila against Moore and Tillman and the 64 persons occupying apartments in the three
buildings. Respondent file a motion to dismissed on the ground that the court has no jurisdiction
over them and over the subject matter, because the real party in interest was the U.S
Government.

The court granted the motion and dismissed the case. On appeal the Court of First
Instance affirmed the said decision.

Issue:

Whether or not the real party in interest was the U.S Government.

Ruling:

Yes. The Court ruled that it is not the respondent but the U.S Government is the real
party in interest in the case.

When a private citizen claiming title and right of possession of a certain property may, to
recover possession of said property, sue as individuals, officers and agents of the Government
who are said to be illegally withholding the same from him, though in doing so, said officers and
agents claim that they are acting for the Government, and the courts may entertain such a suit
although the Government itself is not included as a party-defendant. But where the judgment in
the suit by the private citizen against the officers and agents of the government would result not
only in the recovery of possession of property in favor of said citizen but also in a charge against
or financial liability to the Government, then the suit should be regarded as one against the
Government itself, and, consequently, it cannot prosper or be entertained by courts except with
the consent of said government.
The case at bar is not only a case of a citizen filing a suit against his own Government
without the latter's consent, but it is of citizen filing an action against a foreign government
without said government's consent, which renders more obvious the lack of jurisdiction of the
courts of his country.
Hence, the case is dismissed.
Airiz M. Dela Cruz

G.R. No. L-24294 May 3, 1974

DONALD BAER, Commander, U.S. Naval Base, Subic Bay, Olongapo, Zambales, petitioner,
vs.
HON. TITO V. TIZON, as Presiding Judge of the Court of First Instance of Bataan,
and EDGARDO GENER, respondents.

FERNANDO, J.

FACTS

Edgardo Gener filed a complaint against Donald Baer, Commander of the United States
Naval Base in Olongapo. He alleged that he was engaged in the business of logging in Morong,
Bataan and that the American Naval Base authorities stopped his logging operations. A
restraining order was issued by respondent Judge. Baer filed a motion to dismiss on the ground
that the respondent Judge has no jurisdiction because the suit was one against a foreign
sovereign without its consent. Baer pointed out that he is the chief or head of an agency or
instrumentality of the United States of America. It was added that in directing the cessation of
logging operations by Gener within the Naval Base, Baer was entirely within the scope of his
authority and official duty, the maintenance of the security of the Naval Base and of the
installations therein being the first concern and most important duty of the Commander of the
Base.

Gener, on his reply, relied on the principle that "a private citizen claiming title and right of
possession of certain property may, to recover possession of said property, sue as individuals,
officers and agents of the Government, who are said to be illegally withholding the same from
him, though in doing so, said officers and agents claim that they are acting for the
Government." Baer, on the other hand, present certified copies of telegrams of the Forestry
Director to Forestry personnel in Bataan directing immediate investigation of illegal timber
cutting in Bataan and calling attention to the fact that the records of the office show no new
renewal of timber license or temporary extension permits. The above notwithstanding,
respondent Judge issued an order granting Gener's application for the issuance of a writ of
preliminary injunction and denying Baer's motion to dismiss. Hence, this petition for certiorari.

ISSUE

Whether the doctrine of state immunity from suit without consent is applicable.

RULING

A careful study of the crucial issue posed in this dispute yields the conclusion that
petitioner should prevail.

The invocation of the doctrine of immunity from suit of a foreign state without its
consent is appropriate. The solidity of the stand of Baer is evident. What was sought by Gener
and what was granted by respondent Judge amounted to an interference with the performance
of the duties of petitioner in the base area in accordance with the powers possessed by him
under the Philippine-American Military Bases Agreement. Assuming that the Bureau of Forestry
possesses the "authority to issue a Timber License to cut logs" inside a military base, the Bases
Agreement subjects the exercise of rights under a timber license issued by the Philippine
Government to the exercise by the United States of its rights, power and authority of control
within the bases; and the findings of the Mutual Defense Board continued logging operation by
Mr. Gener within the boundaries of the U.S. Naval Base would not be consistent with the
security and operation of the Base," is conclusive upon the respondent Judge. The doctrine of
state immunity is not limited to cases which would result in a pecuniary charge against the
sovereign or would require the doing of an affirmative act by it. Prevention of a sovereign from
doing an affirmative act pertaining directly and immediately to the most important public
function of any government - the defense of the state — is equally as untenable as requiring it to
do an affirmative act.

More specifically, insofar as alien armed forces is concerned, the starting point is Raquiza
v. Bradford, a 1945 decision. In dismissing a habeas corpus petition for the release of petitioners
confined by American army authorities, the Court cited from Coleman v. Tennessee, where it
was explicitly declared: "It is well settled that a foreign army, permitted to march through a
friendly country or to be stationed in it, by permission of its government or sovereign, is exempt
from the civil and criminal jurisdiction of the place." Two years later, in Tubb and Tedrow v.
Griess, this Court relied on the ruling in Raquiza v. Bradford and cited excerpts from the works of
the following authoritative writers: Vattel, Wheaton, Hall, Lawrence, Oppenhein, Westlake,
Hyde, and McNair and Lauterpacht. Accuracy demands the clarification that after the conclusion
of the Philippine-American Military Bases Agreement, the treaty provisions should control on
such matter, the assumption being that there was a manifestation of the submission to
jurisdiction on the part of the foreign power whenever appropriate. The principles of law behind
this rule are so elementary and of such general acceptance that we deem it unnecessary to cite
authorities in support thereof.

It is a widely accepted principle of international law, which is made a part of the law of
the land (Article II, Section 3 of the 1973 Constitution), that a foreign state may not be brought
to suit before the courts of another state or its own courts without its consent. Wherefore, the
writ of certiorari prayed for is granted, nullifying and setting aside the writ of preliminary
injunction issued by respondent Judge.
Amiel A. Fernando

Province of North Cotabato vs. Government of the Republic of the Philippines Peace Panel on
Ancestral Domain (GRP)

GR No. 183591 | October 14, 2008

FACTS:

This is a consolidation of a number of cases regarding the issues, mostly in relation to its
constitutionality, surrounding the Memorandum of Agreement on the Ancestral Domain (MOA-
AD) between the Government of the Philippines (GPR) and the Moro Islamic Liberation Front
(MILF) 1 and the issue regarding the extent of the powers of the President in pursuing the peace
process. The following are the cases that have been consolidated:

 G.R. 183591 – (23 July 2008) the Province of North Cotabato and Vice Governor Emmanuel
Piñol (Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction
and TRO) sought to compel respondents to disclose the MOA-AD and attachments, prohibit the
signing, hold a public consultation and declare the MOA-AD UNCONSTITUTIONAL

 G.R. 183752 – the City of Zamboanga (Mandamus and Prohibition and similar injunctive reliefs)
prayed that Zamboanga City be excluded from the Bangsamoro Homeland and/or Bangasmoro
Judicial Entity (BJE) and that the MOA-AD be declared null and void

 G.R. 183893 – City of Iligan (Injunction and Declaratory Relief) sought to enjoin respondents
from signing the MOA-AD and if it has been signed, from implementing it. Additionally impleaded
ES Eduardo Ermita as respondent.

 G.R. 183951 - the Province of Zamboanga del Norte et al (petition for Certiorari, Mandamus
and Prohibition), prayed to declare null and void the MOA-AD and without operative effect and
those respondents enjoined from executing the MOA-AD

 G.R. 183962 – Maceda, Binay, Pimentel III filed a petition for Prohibition, praying for a
judgment prohibiting and permanently enjoining respondents from formally signing and
executing the MOA-AD as well as to nullify the MOA-AD for being unconstitutional and illegal.
Additionally impleaded as responded the MILF Peace Negotiating Panel (represented by
Chairman Iqbal.

 Various parties moved to intervene and were granted to file their petitions/comments in-
intervention.

1. 1996 – the beginning of the long process of GRP-MILF peace negotiations

2. 18 July 1997 – the GRP and the peace panel signed the Agreement on the General Cessation
of Hostilities

3. 27 August 1998 – signed the General Framework of Agreement of Intent

4. 1999 to early 2000 – numerous municipalities in Central Mindanao were attacked by the MILF
which affected the peace negotiations; MILF took control of the town hall in Kauswagan, Lanao
del Norte in March 2000 and in response, then President Estrada declared an “all-out-war”
against the MILF

5. 2001 – President GMA assumed office and suspended the military offense against the MILF
and sought a resumption of the peace negotiations; MILF was first apprehensive but were
convinced when GMA asked the Government of Malaysia through Prime Minister Mahathir
Mohammad to help convince them, the MILF convened its Central Committee seriously to
discuss the matter and eventually met with the GRP

6. 28 February 2001 – GRP Negotiating Panel was established through Executive Order No. 3 s.
2001

7. 24 March 2001 – parties met in Kuala Lumpur with talks facilitated by the Malaysian
Government; parties signed the Agreement on the General Framework and the Resumption of
Peace Talks. The MILF thereafter suspended all its military actions.

8. 20-22 June 2001 – formal peace talks held in Tripoli, Libya the outcome of which was the GRP-
MILF Tripoli Agreement on Peace Process which contained the following basic principles and
agenda on the negotiations: security aspect, rehabilitation aspect, and ancestral domain aspect
(this aspect had a colatilla saying that it “shall be discussed further by the Parties in their next
meeting”)

9. 5-7 August 2001 – second round of peace talks in Cyberjaya, Malaysia which ended in the
signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001
which led to a ceasefire between parties

10. 7 May 2002 – signed the Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001

11. 13 July 2003 – Chairman Salamat Hashim of the MILF passed away and subsequently
replaced by Al Haj Murad (previously chair peace negotiator). His position was taken over by
Mohagher Iqbal.

12. 2005 – exploratory talks between parties in Malaysia, to draft the MOA-AD

13. 23 July 2008 – the Province of North Cotabato file with the Supreme Court and was docketed
as G.R. 183591

14. 04 August 2008 – the Court issued a Temporary Restraining Order (TRO) commanding and
directing respondents and agents to cease and desist from formally signing the MOA-AD. Court
also required SolGen to submit to the court and petitioners the official copy of the MOA-AD

15. 05 August 2008 – scheduled signing date for the final form of Memorandum of Agreement
on the Ancestral Domain Aspect of the Tripoli Agreement on Peace (MOA-AD)

16. 15, 22, 29 August 2008 – cases were heard on oral argument

17. 19 August 2008 - Maceda, Binay, Pimentel III filed with the SC 18. 19 August 2008 –
Respondents (through Manifestation by Motion) stated that the Executive Department shall
thoroughly review the MOA-AD and pursue further negotiations to address the issues raised and
thus moved to dismiss the cases

ISSUE:
WON the AD-MOA is unconstitutional.

RULING:

Yes. The MOA-AD is patently unconstitutional.

Associative relationship

On the associative relationship between BJE and the Government

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

Micronesia has the capacity to conduct foreign affairs in their own name and right, such
capacity extending to matters such as the law of the sea, marine resources, trade, and
etc.

In international practice, the “associated state” arrangement has usually been used as
a transitional device of former colonies on their way to full independence.

MOA-AD contains many provisions which are consistent with the international legal concept of
association, specifically the following:

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

The commitment of the Central Government to ensure the BJE’s participation in

meetings and events in the ASEAN and the specialized UN agencies, and the continuing
responsibility of the Central Government over external defense.

BJE’s right to participate in Philippine official missions bearing on negotiation of border

agreements, environmental protection, and sharing of revenues pertaining to the bodies
of water adjacent to or between the islands forming part of the ancestral domain

Resembles the right of the governments of FSM and the Marshall Islands to be consulted
by the U.S. government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest
in the BJE the status of an associated state or, at any rate, a status closely approximating
it.
The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as
having an “associative” relationship with the national government.

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

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

Even the mere concept animating many of the MOA-AD’s provisions, therefore, already
requires for its validity the amendment of constitutional provisions, specifically the
following provisions of Article X Sec. 1 (territorial and political subdivisions of the
Republic of the Philippines are the provinces, cities, municipalities, and barangays) and
Sec. 15 (ARMM be created, xxx within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the Philippines.

Bangsamoro Juridical Entity

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

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

The defining concept underlying the relationship between the national government and
the BJE being itself contrary to the present Constitution, it is not surprising that many of
the specific provisions of the MOA-AD on the formation and powers of the BJE are in
conflict with the Constitution and the laws.

The municipalities of Lanao del Norte which voted for inclusion in the ARMM during the
2001 plebiscite— Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal—are
automatically part of the BJE without need of another plebiscite. These municipalities
voted for inclusion in the ARMM, not the BJE.

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

Applying this provision of the Constitution, the Court, in Mejoff v. Director of

Prisons, held that the Universal Declaration of Human Rights is part of the law of the
land.
 International law has long recognized the right to self-determination of “peoples,”
understood not merely as the entire population of a State but also a portion thereof. In
considering the question of whether the people of Quebec had a right to unilaterally
seceded from Canada.

The International Covenant on Civil and Political Rights161and the International Covenant
on Economic, Social and Cultural Rights which state, in Article 1 of both covenants, that
all peoples, by virtue of the right of self-determination, “freely determine their political
status and freely pursue their economic, social, and cultural development.”

A distinction should be made between the right of internal and external self-
determination.

In REFERENCE RE SECESSION OF QUEBEC is again instructive:

The recognized sources of international law establish that the right to self-determination
of a people is normally fulfilled through internal self-determination— a people’s pursuit
of its political, economic, social and cultural development within the framework of an
existing state.

A right to external self-determination (which in this case potentially takes the form of the
assertion of a right to unilateral secession) arises in only the most extreme of cases and,
even then, under carefully defined circumstances.

That the MOA-AD would have been signed by representatives of States and international
organizations not parties to the Agreement would not have sufficed to vest in it a binding
character under international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral
declaration of the Philippine State, binding under international law, that it would comply
with all the stipulations stated therein, with the result that it would have to amend its
Constitution accordingly regardless of the true will of the people. Cited as authority for
this view is Australia v. France, also known as the Nuclear Tests Case, decided by the
International Court of Justice (ICJ).

The mere fact that in addition to the parties to the conflict, the peace settlement is signed by
representatives of states and international organizations does not mean that the agreement is
internationalized so as to create obligations in international law.

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a
unilateral declaration on the part of the Philippine State to the international community.
The Philippine panel did not draft the same with the clear intention of being bound
thereby to the international community as a whole or to any State, but only to the MILF.
While there were States and international organizations involved, one way or another, in
the negotiation and projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator.

The Memorandum of Agreement on Ancestral Domain (MOA-AD) may not be considered a

unilateral declaration under international law.
In one important respect, the circumstances surrounding the MOA-AD are closer to that
of Burkina Faso wherein, as already discussed, the Mali President’s statement was not
held to be a binding unilateral declaration by the ICJ. As in that case, there was also
nothing to hinder the Philippine panel, had it really been its intention to be bound to
other States, to manifest that intention by formal agreement. Here, that formal
agreement would have come about by the inclusion in the MOA-AD of a clear
commitment to be legally bound to the international community, not just the MILF, and
by an equally clear indication that the signatures of the participating states-
representatives would constitute an acceptance of that commitment. Entering into such
a formal agreement would not have resulted in a loss of face for the Philippine
government before the international community, which was one of the difficulties that
prevented the French Government from entering into a formal agreement with other
countries. That the Philippine panel did not enter into such a formal agreement suggests
that it had no intention to be bound to the international community. On that ground, the
MOA-AD may not be considered a unilateral declaration under international law.
LEGASPI, Mary Rose B.

Bayan v. Zamora
G.R. No. 138570
October 10, 2000
J. Buena

Facts:
The Philippines and the United States of America forged a Military Bases Agreement
which formalized, 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. Under the treaty,
the parties agreed to respond to any external armed attack on their territory, armed forces,
public vessels, and aircraft.
Upon the impending expiration of the Agreement, the Philippines and the United
States negotiated for a possible extension of the military bases agreement. The Philippine
Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security which,
in effect, would have extended the presence of US military bases in the Philippines. On the
expiration of the Agreement, the periodic military exercises conducted between the two
countries were held in abeyance. But the defense and security relationship between the
Philippines and the United States of America continued pursuant to the treaty.
The United States panel met with the Philippines panel to exchange notes on the
complementing strategic interests of the United States and the Philippines in the Asia-
Pacific region. They discussed the possible elements of the Visiting Forces Agreement. The
negotiations led to a consolidated draft text, which in turn resulted to a final series of
conferences and negotiations. President Ramos approved the VFA, which was signed by
public respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard.
President Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA.
The President, acting through respondent Executive Secretary 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, referred the VFA to its Committee on Foreign Relations, chaired
by Senator Ople, and its Committee on National Defense and Security, chaired by Senator
Biazon, for their joint consideration and recommendation. Thereafter, joint public hearings
were held by the two Committees.
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. It was approved by the Senate, by a
two-thirds (2/3) vote of its members. It was re-numbered as Senate Resolution No. 18.
On 1999, the VFA officially entered into force after an Exchange of Notes between
respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, 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 assail the constitutionality of the VFA and impute to herein respondents
grave abuse of discretion in ratifying the agreement.

Issue:
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25,
Article XVIII of the Constitution?

Ruling:
Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA
has for its subject the presence of foreign military troops in the Philippines. Respondents,
on the contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is
not a basing arrangement but an agreement which involves merely the temporary visits of
United States personnel engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring the
concurrence of the Senate on treaties or international agreements.
Section 21, Article VII deals with treatise or international agreements in general, in
which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is
required to make the subject treaty, or international agreement, valid and binding on the
part of the Philippines. This provision lays down the general rule on treatise or
international agreements and applies to any form of treaty with a wide variety of subject
matter, such as, but not limited to, extradition or tax treatise or those economic in
nature. All treaties or international agreements entered into by the Philippines, regardless
of subject matter, coverage, or particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.
On the other hand, Section 25, Article XVIII is a special provision that applies to
treaties which involve the presence of foreign military bases, troops or facilities in the
Philippines. Under this provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional requirements and to consider the
agreement binding on the Philippines. Section 25, Article XVIII further requires that foreign
military bases, troops, or facilities may be allowed in the Philippines only by virtue of a
treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress, and recognized as such by the
other contracting state.
The VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties
involving foreign military bases, troops, or facilities, should apply in the instant case.
However, the provisions of section 21, Article VII are applicable with regard to the issue
and for the sole purpose of determining the number of votes required to obtain the valid
concurrence of the Senate.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the
country, unless the following conditions are sufficiently met: (a) it must be under a treaty;
(b) the treaty must be duly concurred in by the Senate and, when so required by
congress, ratified by a majority of the votes cast by the people in a national referendum;
and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the
VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance
with the provisions of the Constitution, whether under the general requirement in Section
21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision
in the latter article requiring ratification by a majority of the votes cast in a national
referendum being unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty
or international agreement, to be valid and effective, must be concurred in by at least
two-thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII
simply provides that the treaty be duly concurred in by the Senate.
A two-thirds vote of all the members of the Senate is clearly required so that the
concurrence contemplated by law may be validly obtained and deemed present. While it is
true that Section 25, Article XVIII requires, among other things, that the treaty-the VFA, in
the instant case-be duly concurred in by the Senate, it is very true however that said
provision must be related and viewed in light of the clear mandate embodied in Section 21,
Article VII, which in more specific terms, requires that the concurrence of a treaty, or
international agreement, be made by a two -thirds vote of all the members of the
Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section 21,
Article, VII.
 A treaty, as defined by the Vienna Convention on the Law of Treaties, is an
international instrument concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation. Thus, in international law, there is no
difference between treaties and executive agreements in their binding effect upon states
concerned, as long as the negotiating functionaries have remained within their powers.
The ratification, by the President, of the VFA and the concurrence of the Senate
should be taken as a clear an unequivocal expression of our nations consent to be bound by
said treaty, with the concomitant duty to uphold the obligations and responsibilities
embodied thereunder.
The power to ratify is vested in the President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving or withholding its consent, or
concurrence, to the ratification.
With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the principles of international law,
to be bound by the terms of the agreement.
Christie Faith Anne F. Mirabel

ABAYA v. EBDANE JR.

GR No. 167919, February 14, 2007

FACTS: The Government of Japan and the Government of the Philippines, through their
respective representatives have reached an understanding concerning Japanese loans to be
extended to the Philippines. These loans were aimed at promoting our country’s economic
stabilization and development efforts. The proceeds of Loan Agreement No. PH-P204 was to be
used to finance the
Arterial Road Links Development Project (Phase IV), of which the Catanduanes Circumferential
Road was a part. Subsequently, the DPWH, caused the publication of the “Invitation to Prequalify
and to Bid” for the implementation of the CP I project. It was announced that the Approved
Budget for the Contract (ABC) was in the amount of P738,710,563.67. The BAC of the DPWH,
with the approval of then Acting Secretary Soriquez, issued the assailed Resolution No. PJHLA-
04-012 recommending the award in favor of China Road & Bridge Corporation of the contract for
the implementation of civil works said Catanduanes Circumferential Road Improvement Project
being the lowest bidder with a bid of to P952,564,821.71 (with variance of 28.95% from the
ABC).

Now the petitioners filed an action for Certiorari under RULE 65 and opine that the contract
subsequently entered into by and between the DPWH and private respondent China Road &
Bridge Corporation is void ab initio for being prohibited by RA 9184. They stress that Section 31
thereof expressly provides that “bid prices that exceed this ceiling shall be disqualified outright
from participating in the bidding.” The upper limit or ceiling is called the ABC and since the bid of
private respondent China Road & Bridge Corporation exceeded the ABC for the CP I project, it
should have been allegedly disqualified from the bidding process and should not, by law, have
been awarded the said contract.

The petitioners also insist that Loan Agreement No. PH-P204 between the JBIC and the Philippine
Government is neither a treaty, an international nor an executive agreement that would bar the
application of RA 9184. They point out that to be considered a treaty, an international or an
executive agreement, the parties must be two sovereigns or States whereas in the case of Loan
Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a banking
agency of Japan, which has a separate juridical personality from the Japanese Government.

ISSUE: Whether or not the Loan Agreement No. PH-P204 between the JBIC and the Philippine
Government is neither a treaty, an international nor an executive agreement.

HELD: The Court holds that Loan Agreement No. PH-P204 taken in conjunction with the Exchange
of Notes dated December 27, 1999 between the Japanese Government and the Philippine
Government is an executive agreement.

Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so entered by
the parties “[i]n the light of the contents of the Exchange of Notes between the Government of
Japan and the Government of the Republic of the Philippines dated December 27, 1999,
concerning Japanese loans to be extended with a view to promoting the economic stabilization
and development efforts of the Republic of the Philippines.”65 Under the circumstances, the JBIC
may well be considered an adjunct of the Japanese Government. Further, Loan Agreement No. PH-
P204 is indubitably an integral part of the Exchange of Notes. It forms part of the Exchange of
Notes such that it cannot be properly taken independent thereof.

“An “exchange of notes” is a record of a routine agreement that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other. Under the
usual procedure, the accepting State repeats the text of the offering State to record its assent. The
signatories of the letters may be government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either because of its speedy procedure,
or, sometimes, to avoid the process of legislative approval.”66

It is stated that “treaties, agreements, conventions, charters, protocols, declarations,

memoranda of understanding, modus vivendi and exchange of notes” all refer to “international
instruments binding at international law.”67 It is further explained that—

“Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are
the result of long practice among the States, which have accepted them as binding norms in
their mutual relations. Therefore, they are regarded as international customary law. Since there
was a general desire to codify these customary rules, two international conventions were
negotiated. The 1969 Vienna Convention on the Law of Treaties (“1969 Vienna Convention”),
which entered into force on 27 January 1980, contains rules for treaties concluded between
States. The 1986 Vienna Convention on the Law of Treaties between States and International
Organizations (“1986 Vienna Convention”), which has still not entered into force, added rules for
treaties with international organizations as parties. Both the 1969 Vienna Convention and the
1986 Vienna Convention do not distinguish between the different designations of these
instruments. Instead, their rules apply to all of those instruments as long as they meet the
common requirements.”

Significantly, an exchange of notes is considered a form of an executive agreement, which

becomes binding through executive action without the need of a vote by the Senate or Congress.
The following disquisition by Francis B. Sayre, former United States High Commissioner to the
Philippines, entitled “The Constitutionality of Trade Agreement Acts,” quoted in Commissioner of
Customs v. Eastern Sea Trading,69 is apropos:

“Agreements concluded by the President which fall short of treaties are commonly referred to as
executive agreements and are no less common in our scheme of government than are the more
formal instruments—treaties and conventions. They sometimes take the form of exchange of
notes and at other times that of more formal documents denominated “agreements” or
“protocol.” The point where ordinary correspondence between this and other governments ends
and agreements—whether denominated executive agreements or exchange of notes or
otherwise—begin, may sometimes be difficult of ready ascertainment. It would be useless to
undertake to discuss here the large variety of executive agreements as such, concluded from
time to time. Hundreds of executive agreements, other than those entered into under the trade-
agreements act, have been negotiated with foreign governments. x x x”

The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under which bids
above or below a predetermined bid value assessment are automatically disqualified. Succinctly
put, it absolutely prohibits the imposition of ceilings on bids.

Under the fundamental principle of international law of pacta sunt servanda,73 which is, in fact,
embodied in Section 4 of RA 9184 as it provides that “[a]ny treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippine government is a
signatory shall be observed,” the DPWH, as the executing agency of the projects financed by
Loan Agreement No. PH-P204, rightfully awarded the contract for the implementation of civil
works for the CP I project to private respondent China Road & Bridge Corporation.
Sheryl L. Ogoc

No. 35 SECRETARY OF JUSTICE VS. LANTION

G.R. No. 139465. January 18, 2000

Petitioner: Secretary of Justice

Respondents: HON. Ralph C. Lantion, Presiding Judge, RTC of Manila, Branch 25, and

Mark B. Jimenez

Ponente: Justice Mello

FACTS OF THE CASE:

This is a Petition for Review of the decision of the Regional Trial Court of Manila, Branch
25.

On January 13, 1977 Presidential Decree No. 1069 was issued by President Ferdinand
Marcos entitled “Prescribing the Procedure of the Extradition of Persons who have committed
Crimes in a Foreign Country”. The Decree is founded on The Doctrine of Incorporation under the
Constitution Art II, Sec 2 of the 1987 Philippine Constitution. Secretary of Justice Franklin Drilon
signed the ““Extradition Treaty between the Government of the Republic of the Philippines and
the Government of the United States of America” also known as RP-US Extradition Treaty which
was ratified by the Senate on November 13, 1994.

On June 18, 1999, the Department of Justice (DOJ) received from the Department of
Foreign Affairs containing a request for the extradition of private respondent Mark Jimenez to
the United States. Attached to the Note Verbale No. 0522 were the Grand Jury Indictment, the
warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other
supporting documents for said extradition. He was charged in the U.S. with the violation of the
following: conspiracy, attempt to evade tax, fraud by wire, radio, or television, false statement or
entry and election contributions in the name of another. Secretary of Justice then ordered a
technical evaluation and assessment of the extradition request.

Pending evaluation, Mark Jimenez through counsel wrote a letter addressed to herein
petitioner requesting copies of official extradition request from the US Government. He
requested ample time to comment and for the matter to be held in abeyance in the meantime.

The Secretary of Justice denied the said request specifically invoking our country’s responsibility
to the Vienna Convention on the law of Treaties that “every treaty in force is binding upon
parties to it and must be performed by them in good faith,” particularly the RP-US Extradition
Treaty . On Aug 6, 1999 Mark Jimenez filed with the R.T.C against the Secretary of Justice,
Secretary of Foreign Affairs and the Director of the NBI for Mandamus (to compel them to
furnish to Mark Jimenez the extradition documents.), Certiorari (to set aside the Sec. of Justice
letter dated July 13, 1999), Prohibition (to restrain the Sec of Justice from considering the
extradition request). Presiding Judge Lantion ruled in favor of Mark Jimenez and ordered the
Secretary of Justice, Secretary of Foreign Affairs and the Director of the National Bureau of
Investigation to maintain the status quo by refraining from committing the acts complained of,
from conducting further proceedings in connection with the request of the United States
Government, from filing the corresponding Petition with a Regional Trial court and from
performing any act directed to the extradition for a period of 20 days from service of the order.

ISSUE:

Whether or not the entitlement of Mark Jimenez to notice and hearing during the
evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine
Government under the RP-US Extradition Treaty

RULING:

The Supreme Court ruled in the negative. The Extradition Law provides Rules of
Court shall apply, thus the prospective extradite has the basic right of notice and hearing. The
RP-US Extradition Treaty under the Incorporation Clause in case of conflict is not superior over a
national law.

Furthermore, the rights of the accused guaranteed in our Constitution should take
precedence over treaty rights claimed by a contracting state. Whether a citizen or an alien, the
duties of the government to a person deserve preferential consideration when they collide with
its treaty obligations to the government of another state. This is without prejudice to the
recognition of our country to the treaties as a source of binding obligations under generally
accepted principles of international law incorporated in our Constitution as part of the law of the
land.

The doctrine of incorporation is applied whenever municipal tribunals are confronted

with situation in which there appears to be a conflict between a rule of international law and the
provision of the constitution or statute of the local state. Although efforts should first be made in
order to harmonize them because of the fact that municipal law was enactedThe fact that
international law has been made part of the law of the land does not mean that the international
law shall supersede over national or municipal law in the municipal sphere. As applied in most
countries, decrees that rules of international law are given equal standing with, but are not
superior to, national legislative enactments. Most importantly, it is a well settled rule that
municipal law should be upheld by the municipal courts because the latter are organs of
municipal law and are bound by it in all circumstances. Accordingly,efforts should first be
exerted to harmonize them to give effect to both since it is to be presumed that municipal law
was enacted with proper regard for the generally accepted principles of international law in
observance of the incorporation clause in a constitutional provision.

The Petition is dismissed. Petitioner is ordered to furnish Mark Jimenez copies of the
extradition request and its supporting papers, and to grant him a reasonable period within which
to file his comment with supporting evidence.
PAGDANGANAN, Joana Heidi, P.

LIM VS.
EXECUTIVE SECRETARY
G.R. No. 151445, April 11, 2002

FACTS:

Beginning January of this year 2002, personnel from the armed forces of the United
States of America started arriving in Mindanao to take part, in conjunction with the Philippine
military, in "Balikatan 02-1." These so-called "Balikatan" exercises are the largest combined
training operations involving Filipino and American troops. In theory, they are a simulation of
joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement
entered into by the Philippines and the United States in 1951.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition
for certiorari and prohibition, attacking the constitutionality of the joint exercise and seeking the
issuance of a writ of prohibition/injunction to prevent US troops from participating in areas of
armed conflict on the ground that such is in gross violation of the Constitution. They argue that:

I. The Philippines and the United States signed the Mutual Defense Treaty (MDT) in
1951 to provide mutual military assistance in accordance with the “Constitutional
Processes” of each country only in the case of an armed attack by an external
aggressor, meaning a third country against one of them.
By no stretch of the imagination can it be said that the Abu Sayyaf bandits in
Basilan constitute an external armed force that has subjected the Philippines to
an armed external attack to warrant US military assistance under the MDT of
1951.
II. Neither does the VFA of 1999 authorize American soldiers to engage in combat
operations in Philippine territory, not even to fire beck “if fired upon.”

They were joined subsequently by SANLAKAS and PARTIDO NGMANGGAGAWA, both

party-list organizations, who filed a petition-in-intervention on February 11, 2002. Lim and
Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO,
on the other hand, aver that certain members of their organization are residents of Zamboanga
and Sulu, and hence will be directly affected by the operations being conducted in Mindanao.

ISSUES:

(1) Whether or not the “Balikatan” activities are covered under the Visiting Forces Agreement
and are therefore valid.
(2)Whether or not the American soldiers are authorized to engage in combat in the Philippines.

HELD:

(1) YES. 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. After studied reflection, it appeared farfetched that the ambiguity surrounding the
meaning of the word "activities" arose from accident. In our view, it was deliberately made that
way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may
sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises
may include training on new techniques of patrol and surveillance to protect the nation's marine
resources, sea search-and-rescue operations to assist vessels in distress, disaster relief
operations, civic action projects such as the building of school houses, medical and humanitarian
missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises.
It is only logical to assume that "Balikatan 02-1," a "mutual antiterrorism advising, assisting and
training exercise," falls under the umbrella of sanctioned or allowable activities in the context of
the agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support
the conclusion that combat-related activities —as opposed to combat itself —such as the one
subject of the instant petition, are indeed authorized.

(3) NO. There is no treaty or agreement allowing US troops to engage in combat in the
Philippines. Paragraph 8 of section I of the VFA stipulates that US exercise participants may not
engage in combat "except in self-defense. Neither the MDT nor the VFA allow foreign troops to
engage in an offensive war on Philippine territory. 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. The present
Constitution contains key provisions useful in determining the extent to which foreign military
troops are allowed in Philippine territory.

Thus, in the Declaration of Principles and State Policies, it is provided that:

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

The aforequoted provisions betray a marked antipathy towards foreign military presence
in the country, or of foreign influence in general. Hence, foreign troops are allowed entry into
the Philippines only by way of direct exception.
Monica Dianne E. Ramirez

SEN. AQUILINO PIMENTEL, et. al., vs OFFICE OF THE EXECUTIVE SECRETARY

G.R. No. 158088, July 6, 2005

FACTS:

The petitioners filed a petition for mandamus to compel the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute
of the International Criminal Court to the Senate of the Philippines for its concurrence pursuant
to Sec. 21, Art VII of the 1987 Constitution.

It is the theory of the petitioners that ratification of a treaty, under both domestic law
and international law, is a function of the Senate. Hence, it is the duty of the executive
department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise
its discretion with respect to ratification of treaties. Moreover, petitioners submit that the
Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary
international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the
states to refrain from acts which would defeat the object and purpose of a treaty when they
have signed the treaty prior to ratification unless they have made their intention clear not to
become parties to the treaty.

The Office of the Solicitor General, commenting for the respondents, questioned
the standing of the petitioners to file the instant suit. It also contended that the petition at bar
violates the rule on hierarchy of courts. On the substantive issue raised by petitioners,
respondents argue that the executive department has no duty to transmit the Rome Statute to
the Senate for concurrence.

ISSUE:

WON the Exec. Secretary and the DFA have the ministerial duty to transmit to the Senate the
copy of the Rome Statute signed by a member of the Philippine mission to the U.N., even
without the signature of the President
RULING:

No.

The Supreme Court ruled that the President, being the head of state, is regarded as the
sole organ and authority in external relations and is the country’s sole representative with
foreign nations. As the chief architect of foreign policy, the President acts as the country’s
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.
In the realm of treaty-making, the President has the sole authority to negotiate with other
states.

Nonetheless, while 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.”

Petitioners’ arguments equate the signing of the treaty by the Philippine representative
with ratification. It should be underscored that the signing of the treaty and the ratification are
two separate and distinct steps in the treaty-making process. As earlier discussed, the signature
is primarily intended as a means of authenticating the instrument and as a symbol of the good
faith of the parties. It is usually performed by the state’s authorized representative in the
diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms
and accepts the provisions of a treaty concluded by its representative.

It should be emphasized that under our Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The role of the Senate, however, is limited
only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within
the authority of the President to refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty
which has been signed in its behalf is a serious step that should not be taken lightly, such
decision is within the competence of the President alone, which cannot be encroached by this
Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties.
RESURRECCION, Kimberly R.

Constantino v. Cuisia and Del Rosario

G.R. No. 106064. October 13, 2005
J. Tinga

Facts:
The Financing Program was the culmination of efforts that began during the term of
former President Corazon Aquino to manage the country’s external debt problem through a
negotiation-oriented debt strategy involving cooperation and negotiation with foreign
creditors Pursuant to this strategy, the Aquino government entered into three
restructuring agreements with representatives of foreign creditor governments during the
period of 1986 to 1991. On 28 February 1992, the Philippine Debt Negotiating Team,
negotiated an agreement with the country’s Bank Advisory Committee, representing all
foreign commercial bank creditors, on the Financing Program which respondents
characterized as a multi-option financing package.

The Program was scheduled to be executed on 24 July 1992 by respondents in

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

The petition sought to enjoin the ratification of the Program, but the Court did not
issue any injunctive relief. Hence, it came to pass that the Program was signed in London as
scheduled. The petition still has to be resolved though as petitioners seek the annulment of
any and all acts done by respondents, their subordinates and any other public officer
pursuant to the agreement and program in question. Even after the signing of the
Program, respondents themselves acknowledged that the remaining principal objective of
the petition is to set aside respondents actions.

Petitioners characterize the Financing Program as a package offered to the country’s

foreign creditors consisting of two debt-relief options. The first option was a cash buyback
of portions of the Philippine foreign debt at a discount. The second option allowed
creditors to convert existing Philippine debt instruments into any of three kinds of
bonds/securities. On the other hand, according to respondents the Financing Program
would cover about U.S. $5.3 billion of foreign commercial debts and it was expected to deal
comprehensively with the commercial bank debt problem of the country and pave the way
for the country’s access to capital markets. They add that the Program carried three basic
options from which foreign bank lenders could choose, namely: to lend money, to exchange
existing restructured Philippine debts with an interest reduction bond; or to exchange the
same Philippine debts with a principal collateralized interest reduction bond.

Issue: Whether or not the debt-relief contracts entered into pursuant to the Financing
Program is beyond the powers granted to the President under Section 20, Article VII of the
Constitution.
Ruling:

The language of the Constitution is simple and clear as it is broad. It allows the
President to contract and guarantee foreign loans. It makes no prohibition on the issuance
of certain kinds of loans or distinctions as to which kinds of debt instruments are more
onerous than others. This Court may not ascribe to the Constitution meanings and
restrictions that would unduly burden the powers of the President. The plain, clear and
unambiguous language of the Constitution should be construed in a sense that will allow
the full exercise of the power provided therein. It would be the worst kind of judicial
legislation if the courts were to misconstrue and change the meaning of the organic act.
 The raison d etre of the Financing Program is to manage debts incurred by
the Philippines in a manner that will lessen the burden on the Filipino taxpayers thus the
term debt-relief agreements. The measures objected to by petitioners were not aimed at
incurring more debts but at terminating pre-existing debts and were backed by the know-
how of the country’s economic managers as affirmed by third party empirical analysis.

That the means employed to achieve the goal of debt-relief do not sit well with
petitioners is beyond the power of this Court to remedy. The exercise of the power of
judicial review is merely to check not supplant the Executive, or to simply ascertain
whether he has gone beyond the constitutional limits of his jurisdiction but not to exercise
the power vested in him or to determine the wisdom of his act. In cases where the main
purpose is to nullify governmental acts whether as unconstitutional or done with grave
abuse of discretion, there is a strong presumption in favor of the validity of the assailed
acts. The heavy onus is in on petitioners to overcome the presumption of regularity.

The court find that petitioners have not sufficiently established any basis for the
Court to declare the acts of respondents as unconstitutional
ROQUE, REGINE JULIENE G.

CASE TITLE:

G.R. No. 173034 October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner, vs. HEALTH
SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO, DR.
MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT
SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T.
GAKO,respondents.

FACTS:

On October 28, 1986, President Corazon Aquino issued the Executive Order No. 51 also
known as Milk Code. Said E.O seeks to give effect to the Article 12 of International Code of
Marketing of Breast milk (ICMBS) ---code adopted by the World Health Assembly (WHA) in 1981.
From 1982 to 2006, the WHA adopted several resolutions to the effect that breastfeeding
supported, promoted and protected, hence, it should be ensured that nutrition and health
claims are not permitted for breast milk 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.

Consequently, May 15, 2006, the DOH issued the RIRR which was to take effect on July 7,
2006. However, on June 28, 2006, Petition for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction was filed by
the petitioner representing its members that are manufacturers of breast milk substitutes. On
August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from
implementing the questioned RIRR. The petitioner alleged that the RIRR provisions were going
beyond the provisions of the Milk Code. However, DOH contends that the RIRR implements not
only the Milk Code but also various international law regarding infant and young child nutrition.
Also, DOH alleges that those international instruments formed part of the law of the land hence,
they may implement those in the RIRR.

ISSUE:

WHETHER OR NOT INTERNATIONAL AGREEMENTS ENTERED INTO BY THE PHILIPPINES

SHALL BE FORM PART OF THE LAW OF THE LAND AND MAY BE IMPLEMENTED BY DOH THROUGH
RIRR.

RULING:
Pursuant to 1987 Constitution, international law can become part of the domestic law
either by transformation method 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.
Treaties on the other hand requires a concurrence of the 2/3 of the Senate in order such
be formed part of the domestic law—transformation, as provided in Article VII Section 21. Thus,
treaties or conventional international law must go through a process prescribed by the
Constitution for it to be transformed into municipal law that can be applied to domestic conflicts.
 The fact alleged by the DOH as to the international instruments covered by the said RIRR
do not contain specific provisions regarding the use or marketing of breast milk substitute but
only provides for the general terms that steps must be taken by the State Parties to diminish
infant and child mortality and inform society of the advantages of the breastfeeding and ensure
health and well-being of the families as well as the women provided with services. Two of these
international instruments are the WHA resolutions and ICMBS. These international instrument
cannot be considered as treaties since they have not concurred by at least two-thirds of all the
members of the Senate.
ICMBS adopted by the WHA in 1981 has been transformed by the domestic law through
local legislation---the Milk Code. It has the force and effect of the law in this jurisdiction and not
the ICMBS per se. The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to
emphasize at this point that the Code did not adopt the provision in the ICMBS absolutely
prohibiting advertising or other forms of promotion to the general public of products within the
scope of the ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or
other marketing materials may be allowed if such materials are duly authorized and approved by
the Inter-Agency Committee (IAC).
On the other hand, the Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all
nations—Section 2, Article II of the Constitution (Incorporation Method). Some legal scholars and
judges look upon certain "general principles of law" as a primary source of international law
because they have the "character of jus rationale" and are "valid through all kinds of human
societies." DOH failed to establish that the provisions of the WHA Resolutions are customary
international law that may be deemed part of the law of the land. For an international law to be
considered as customary law, it must be established that such rule is being followed by the
states because they consider it as obligatory to comply with such rules. The WHO resolutions,
although signed by most of the member states, were enforced or practice by at least a majority
of the member states. Unlike the ICBMS whereby legislature enacted most of the provisions into
the law via the Milk Code, WHA Resolutions have not been adopted as domestic law nor
followed in our country as well. The Filipino have the option on how to take care of their babies
as they see it. WHA Resolutions may be classified as Soft Law which is a non-binding norms,
principles and practices that influence state behaviour.
SALVADOR, JOSELYN S.

BAYAN MUNA VS. ROMULO

G.R. No. 159618, February 1, 2011

Facts:

On May 9, 2003, then US Ambassador Francis Ricciardone sent US Embassy Note 0470 to the
Department of Foreign Affairs proposing the terms of the Non-surrender Bilateral Agreement
between the Philippines and the United States. Via Exchange of Notes BFO-028-03, the
Philippines, through DFA Secretary, Blas F. Ople, agreed and accepted the US proposals
embodied under the US Embassy Note, adverted to and put in effect the Non-surrender
Agreement with the US government.

The Non-surrender Agreement aims to protect what it refers to and defines as persons of the
Philippines and the US from frivolous and harassment suits that might be brought against them
in international tribunals. It provides that the persons of one party present in the territory of the
other shall not, absent the express consent of the first party be surrendered or transferred by
any means to any international tribunal for any purpose or by any means to any other entity or
third country or expelled to a third country for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been established by the UN Security Council.

Petitioners argue that the Exchange of Notes BFO-028-03 cannot be a valid medium for
concluding an agreement, that it cannot partake the nature of a treaty without being ratified by
the Senate, that the Non-surrender Agreement does not fall under any subject-categories
enumerated in a previous case, and that the Non-surrender Agreement infringes the effectivity
of the Rome Statute insofar as it unduly restricts the ICC’s jurisdiction.

Issue:
1. Whether or not the Non-surrender Agreement could be validly concluded through exchanges
of notes?
2. Whether or not the Non-surrender Agreement is a violation of the obligation of the
Philippines under the Rome Statute?

Ruling:

The Petition is denied for lack of merit.

1. An exchange of notes falls into the category of inter-governmental agreements which is an

internationally accepted form of international agreement. It as a record of routine
agreement that has many similarities with the private law contract. The agreement consists
of 2 documents, each of the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting State repeats the text
of the offering State to record its assent. The signatories of the letters may be government
ministers, diplomats or departmental heads. The technique of exchange of notes is
frequently resorted to, either because of its speedy procedure, or sometimes to avoid the
process of legislative approval. The terms exchanges of notes and executive agreements
have been used interchangeably, the former being a form of executive agreement that
becomes binding through executive action. The categorization of subject matters that may
be covered by international agreements mentioned in Eastern Sea Trading case is not cast in
 stone. There are no hard and fast rules on the propriety of entering, on a given subject, into
a treaty or executive agreement as an instrument of international relations.

The primary consideration in the choice of the form of agreement is the parties’ intent and
desire to craft an international agreement in the form they so wish to further their respective
interests. There is no difference between treaties and executive agreements in terms of their
binding effects on the contracting parties, as long as the negotiating functionaries have
remained within their powers. The right of the Executive to enter into binding agreements
without the necessity of subsequent Congressional approval has been confirmed by long
usage, the validity of which has never been seriously questioned by the Court. The President
as head of state and government is the sole organ and authority in the external affairs of the
country. The Constitution vests in the President the power to enter into international
agreements, subject to the required concurrence votes of the Senate. But agreements may
be validly entered into without such concurrence as the President wields vast powers and
influence; her conduct in the external affairs of the nation is executive altogether. The
President by ratifying through her deputies the Non-surrender agreement, did nothing more
than discharge a constitutional duty and exercise a prerogative that pertains to the Office.

2. The Non-surrender agreement does not undermine the Rome Statute. The jurisdiction of the
ICC is to be complementary to national criminal jurisdiction of signatory states. It is the duty
of every State to exercise its criminal jurisdiction over those responsible for international
crimes. The 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. The Non-surrender agreement does not violate the Philippines’ duty
required by the imperatives of good faith to refrain from performing any act tending to
impair the Rome Statute. The Philippines has not abdicated its sovereignty by bargaining
away the jurisdiction of the ICC to prosecute US national who commit serious crimes of
international concerns in the Philippines. The Non-surrender agreement is an affirmance of
the Philippines’ national criminal jurisdiction. The Philippines may decide to try persons of
the US under our national criminal jurisdiction. Or the country may opt not to exercise its
criminal jurisdiction and defer to the ICC. As to persons of the US whom the Philippines
refuses to prosecute, the country would in effect accord discretion to the US to exercise
wither its national criminal jurisdiction or consent to the referral of the matter to the ICC for
trial. By their nature, international agreements actually have a limiting effect on the
otherwise encompassing nature of sovereignty. By their voluntary act, nations may decide to
surrender or waive some aspects of their state power. In this partial surrender, greater
benefits are derived from a pact or reciprocal undertaking. Evidently, there is as yet, no
overwhelming consensus, let alone prevalent practice, among the different countries in the
world that the prosecution of internationally recognized crimes should be handled by a
particular international criminal court.
Justin G. Sambile

Paquete Habana Case Brief 175 U.S. 677 (1900)

Facts:

Two fishing vessels that were fishing out of Havana, Cuba, sailed under a Spanish flag were fishing off the
Cuba coast. They were owned a Spanish subject that was born in Cuba and living in Havana. The vessels
were commanded by a subject of Spain, also residing in Havana. Their cargo consisted of fresh fish,
caught by their crew. The fish were kept alive to be sold alive. Until stopped by the blockading squadron
they had no knowledge of the existence of the war or of any blockade. She had no arms or ammunition
on board, and made no attempt to run the blockade after she knew of its existence, nor any resistance at
the time of the capture.

Procedural History: DC for the Southern District of Florida condemned the two fishing vessels and their
cargos as prizes of war.

Issues:

Whether a court may look to established rules of other nations when their own nation lacks any treaty,
legislation, proclamation, or instruction that is on point for a particular matter?

Held:

Yes. A court may look to established rules of other nations when their own nation lacks any treaty,
legislation, proclamation, or instruction that is on point for a particular matter.

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.
Joel G. Santos

MARILOU S. LAUDE AND MESEHILDA S. LAUDE

versus HON. ROLINE M. GINEZ-JABALDE, et. al.
G.R. No. 217456, November 24, 2015

Facts:

This is a Petition for Certiorari under Rule 65, with prayer for the issuance of a writ of
mandatory injunction filed by Marilou S. Laude and Mesehilda S. Laude.

On October 11, 2014, Jeffrey "Jennifer" Laude was killed at the Celzone Lodge on Ramon
Magsaysay Drive in Olongapo City allegedly by 19-year-old US Marine L/CPL Joseph Scott
Pemberton. On October 15, 2014, a Complaint for murder was filed by Jennifer's sibling, Marilou
S. Laude, against Pemberton before the Olongapo City Office of the City Prosecutor. On October
22, 2014, Pemberton was detained in Camp Aguinaldo, the general headquarters of the Armed
Forces of the Philippines.

On December 15, 2014, the Public Prosecutor filed an Information for murder against
Pemberton before the Regional Trial Court in Olongapo City. The case was docketed as Case No.
865-14, and was raffled to Branch 74. A warrant of arrest against Pemberton was issued on
December 16, 2014. Pemberton surrendered personally to Judge Roline M. Ginez-Jabalde on
December 19, 2014, and he was then arraigned.

On the same day, Marilou S. Laude filed an Urgent Motion to Compel the Armed Forces
of the Philippines to Surrender Custody of Accused to the Olongapo City Jail and a Motion to
Allow Media Coverage.

On December 23, 2014, Judge Ginez-Jabalde denied petitioners' Urgent Motion for lack
of merit.

Petitioners received a copy of the Order on January 5, 2015. On January 9, 2015,

petitioners filed a Motion for Reconsideration. On February 18, 2015, Judge Ginez-Jabalde issued
an Order denying petitioners' Motion for Reconsideration for lack of merit.

Petitioners further argue that Judge Ginez-Jabalde should not have dismissed the Urgent
Motion to Compel the Armed Forces of the Philippines to Surrender Custody of Accused to the
Olongapo City Jail considering that the Urgent Motion raised issues that are of transcendental
importance and of primordial public interest. Petitioners aver that under international human
rights law, in particular the International Covenant on Civil and Political Rights and the United
Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, they
have the right to access to justice, which is distinct from the power of the Public Prosecutors to
prosecute criminal case.

Furthermore, petitioners advance that Philippine authorities ought to have primary

jurisdiction over respondent Pemberton's person while he is being tried in a Philippine Court, in
accordance with Article V, paragraph (3)(b) of the Visiting Forces Agreement.

Petitioners justify the separate filing of the Motion as a right granted by Article 2,
paragraph (3) of the International Covenant on Civil and Political Rights, which states that:
“3. Each State Party to the present Covenant undertakes:c

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall
have an effective remedy, notwithstanding that the violation has been committed by persons
acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.”

Issues:

(1) Whether or not petitioners’ contention that the State failed to observe Article 2,
paragraph (3) of the International Covenant on Civil and Political Rights.

(2) Whether or not petitioners’ act of questioning the constitutionality of the Visiting
Forces Agreement is a lis mota of the petition.

Ruling:

(1) No. There is no need to discuss whether this provision has attained customary status,
since under treaty law, the Philippines, as a State Party, is obligated to comply with its
obligations under the International Covenant on Civil and Political Rights. However, petitioners
went too far in their interpretation, ignoring completely the nature of the obligation
contemplated by the provision in an attempt to justify their failure to comply with a domestic
procedural rule aimed to protect a human right in a proceeding, albeit that of the adverse party.

The obligation contemplated by Article 2, paragraph (3) is for the State Party to establish
a system of accessible and effective remedies through judicial and administrative mechanisms.
The present trial of Pemberton, to which petitioner, Marilou S. Laude, is included as a private
complainant, indicates that there is a legal system of redress for violated rights. That petitioners
chose to act on their own, in total disregard of the mechanism for criminal proceedings
established by this court, should not be tolerated under the guise of a claim to justice. This is
especially in light of petitioners' decision to furnish the accused in the case a copy of her Motion
only during the hearing. Upholding human rights pertaining to access to justice cannot be
eschewed to rectify an important procedural deficiency that was not difficult to comply with.
Human rights are not a monopoly of petitioners. The accused also enjoys the protection of these
rights.

(2) The constitutionality of the Visiting Forces Agreement is not the lis mota of this
Petition. Petitioners started their Petition with a claim that their right to access to justice was
violated, but ended it with a prayer for a declaration of the Visiting Forces Agreement's
unconstitutionality. They attempt to create the connection between the two by asserting that
the Visiting Forces Agreement prevents the transfer of Pemberton to Olongapo City Jail, which
allegedly is tantamount to the impairment of this court's authority.

First, this Petition is not the proper venue to rule on the issue of whether the Visiting
Forces Agreement transgresses the judicial authority of this court to promulgate rules pertaining
to criminal cases. Second, the issues of criminal jurisdiction and custody during trial as contained
in the Visiting Forces Agreement were discussed in Nicolas v. Secretary Romulo that the VFA
being a valid and binding agreement, the parties are required as a matter of international law to
abide by its terms and provisions.

Principle:

The rule in international law is that a foreign armed forces allowed to enter one's
territory is immune from local jurisdiction, except to the extent agreed upon. The Status of
Forces Agreements involving foreign military units around the world vary in terms and
conditions, according to the situation of the parties involved, and reflect their bargaining power.
But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the
sending State only to the extent agreed upon by the parties.

As a result, the situation involved is not one in which the power of this Court to adopt
rules of procedure is curtailed or violated, but rather one in which, as is normally encountered
around the world, the laws (including rules of procedure) of one State do not extend or apply —
except to the extent agreed upon — to subjects of another State due to the recognition of
extraterritorial immunity given to such bodies as visiting foreign armed forces.

Nothing in the Constitution prohibits such agreements recognizing immunity from

jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized
subjects of such immunity like Heads of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter another State's territory. On the contrary, the
Constitution states that the Philippines adopts the generally accepted principles of international
law as part of the law of the land. (Art. II, Sec. 2).