PUBLIC INTERNATIONAL LAW

MIDTERMS CASES
PHILIPPINE JURISPRUDENCE

1) POE-LLAMANZARES vs COMELEC
This case questions the eligibility of Mary Grace Poe-Llamanzares for president, whether or not she is a natural born
Filipino.

PIL DOCTRINE: Transformation as a method for international law to be transformed into a domestic law.
Under the 1987 Constitution, an international law can become part of the sphere of domestic law either by
transformation or incorporation. The transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local legislation. On the other hand,
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. Generally accepted
principles of international law include international custom as evidence of a general practice accepted as
law, and general principles of law recognized by civilized nations.

International customary rules are accepted as binding as a result from the combination of two
elements:
(1) the established, widespread, and consistent practice on the part of States; and
(2) a psychological element known as the opinion juris sive necessitates (opinion as to law or
necessity).

"General principles of law recognized by civilized nations" are principles "established by a process of
reasoning" or judicial logic, based on principles which are "basic to legal systems generally," such as
"general principles of equity, i.e., the general principles of fairness and justice," and the "general principle
against discrimination" which is embodied in the "Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All
Forms of Racial Discrimination, the Convention Against Discrimination in Education, the Convention (No.
111) Concerning Discrimination in Respect of Employment and Occupation." These are the same core
principles which underlie the Philippine Constitution itself, as embodied in the due process and equal
protection clauses of the Bill of Rights.

INTERNATIONAL CONVENTIONS AND TREATIES CITED TO PROVE THAT FOUNDLINGS ARE NATURAL
BORN FILIPINOS:
1. Art. 15 of the Universal Declaration of Human Rights ("UDHR") (considered as general principle)
2. Art. 7 of the UN Convention on the Rights of the Child (UNCRC) (PH ratified)
3. Art. 24 of the 1966 International Covenant on Civil and Political Rights (ICCPR) (PH ratified)
4. Art. 14 of the 1930 Hague Convention on Certain Questions Relating to the ConIict of Nationality Laws
(unratified) - foundling is presumed to have the "nationality of the country of birth,"
5. Art. 2 of the 1961 United Nations Convention on the Reduction of Statelessness (unratified) - foundling
is presumed born of citizens of the country where he is found

RATIFICATION AS A FACTOR TO CONSIDER WHEN IDENTIFYING "GENERAL ACCEPTED PRINCIPLES

OF INTERNATIONAL LAW"
Razon v. Tagitis is likewise notable for declaring the ban as a generally accepted principle of international law
although the convention had been ratified by only sixteen states and had not even come into force and which
needed the ratification of a minimum of twenty states.

Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted principles of
international law" are based not only on international custom, but also on "general principles of law recognized
by civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice,
fairness, equity and the policy against discrimination, which are fundamental principles underlying the Bill of
Rights and which are "basic to legal systems generally," support the notion that the right against enforced
disappearances and the recognition of foreign judgments, were correctly considered as "generally accepted
principles of international law" under the incorporation clause.

PIL Digest
Prepared by: Brodit Page 1
2) BAGONG ALYANSANG MAKABAYAN vs. ZAMORA
On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement (MBA)
which formalized, among others, the use of installations in the Philippine territory by United States military personnel.
The Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951. Under the treaty,
the parties agreed to respond to any external armed attack on their territory, armed forces, public vessels, and
aircraft.

In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and the United
States negotiated for a possible extension of the military bases agreement. On September 16, 1991, 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.

PIL DOCTRINE: The exercise by the Senate of its constitutional power to concur with the VFA.
Section 21, Article VII, of the 1987 Constitution
"No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate."

Section 25, Article XVIII, of the 1987 Constitution

"After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when
the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State."

Section 21, Article VII deals with treaties 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 treaties 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 treaties 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.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence
of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the
Senate is only one of the requisites to render compliance with the constitutional requirements and to
consider the agreement binding on the Philippines. 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.

In both instances, the concurrence of the Senate is indispensable to render the treaty or international
agreement valid and effective.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the
following conditions are sufficiently met, viz:
(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.

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. Applying the foregoing
constitutional provisions, 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
PIL Digest
Prepared by: Brodit Page 2
 25, Article XVIII requires, among other things, that the treaty — the VFA, in the instant case — be a "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.

As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in relation to the
provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate
contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the Senate
favorably vote to concur with the treaty — the VFA in the instant case.

Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24)
Senators. Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16)
members, favorably acting on the proposal is an unquestionable compliance with the requisite
number of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three
(23) incumbent Senators at the time the voting was made, will not alter in any significant way the
circumstance that more than twothirds of the members of the Senate concurred with the proposed VFA,
even if the twothirds vote requirement is based on this figure of actual members (23). In this regard, the
fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes, sufice so as to
render compliance with the strict constitutional mandate of giving concurrence to the subject treaty.

PIL DOCTRINE: no difference between treaties and executive agreements

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." Article 2(2) of the
Vienna Convention provides that "the provisions of paragraph 1 regarding the use of terms in the present
Convention are without prejudice to the use of those terms, or to the meanings which may be given to them
in the internal law of the State."

Thus, in international law, there is no difference between treaties and executive agreements in their binding
effect upon states concerned, as long as the negotiating functionaries have remained within their powers.
International law continues to make no distinction between treaties and executive agreements: they are
equally binding obligations upon nations.

PIL DOCTRINE: ratification of the VFA and concurrence of the Senate considered as a clear and unequivocal
expression of our nation's consent to be bound by the said treaty

Ratification is generally held to be an executive act, undertaken by the head of the state or of the government, as
the case may be, through which the formal acceptance of the treaty is proclaimed. A State may provide in its
domestic legislation the process of ratification of a treaty.
The consent of the State to be bound by a treaty is expressed by ratification when:
(a) the treaty provides for such ratification,
(b) it is otherwise established that the negotiating States agreed that ratification should be required,
(c) the representative of the State has signed the treaty subject to ratification, or
(d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative,
or was expressed during the negotiation.

In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the
ratification.

Declaration of Rights and Duties of States

Article 13 provides: "Every State has the duty to carry out in good faith its obligations arising from treaties and other
sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to
perform this duty."

PIL Digest
Prepared by: Brodit Page 3
Article 26 provides that " "Every treaty in force is binding upon the parties to it and must be performed by them in
good faith." --- This is known as the principle of pacta sunt servanda which preserves the sanctity of treaties and
have been one of the most fundamental principles of positive international law, supported
by the jurisprudence of international tribunals.

3) LIM vs EXECUTIVE SECRETARY

Petitioners and the intervenors challenged the constitutionality of the joint exercises, Balikatan 02-1. Petitioners :led
suit in their capacities as citizens, lawyers and taxpayers, while the intervenors claimed that some of their members
are residents of Zamboanga and Sulu where the exercises would be held, and, hence, would be directly affected by
the operations.

The Court, in relaxing the stringent rule on the parties' standing to file suit because of the primordial importance of the
issue involved, held that the Visiting Forces Agreement (VFA) which has been held valid gave legitimacy to the
Balikatan exercises. The Court also held that the holding of Balikatan 02-1 joint military exercise has not intruded into
that penumbra of error that would otherwise call for correction on the part of the court. The petition and petition-in-
intervention were dismissed without prejudice to the filing of a new petition in the proper Regional Trial Court.

PIL DOCTRINE: Interpretation of Treaties must involve an examination of the text, which is presumed to verbalize the
parties' intentions.

Article 31 of the Vienna Convention on the Law of Treaties provide:

SECTION 3. — INTERPRETATION OF TREATIES

Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including
its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the
conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty
and accepted by the other parties as an instrument related to the party.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties
regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty
and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of
article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text,
which is presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used
as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other
elements may be taken into account alongside the aforesaid context.

PIL DOCTRINE: 1987 Constitution in opposite view of the perspective of public international law, where a treaty is
favored over municipal law pursuant to the principle of pacta sunt servanda.

PIL Digest
Prepared by: Brodit Page 4
 Sec. 5 of Article VIII of the 1987 Constitution provides that:
The Supreme Court shall have the following powers:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
In Ichong v. Hernandez, 16 we ruled that the provisions of a treaty are always subject to qualification or
amendment by a subsequent law, or that it is subject to the police power of the State.

4) PIMENTEL vs EXECUTIVE SECRETARY

This is a petition for mandamus filed by petitioners 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 in accordance with Section 21, Article VII of the 1987 Constitution.

PIL DOCTRINE: The President has the sole authority to negotiate with other states.
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."

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. By requiring the concurrence of the legislature in the treaties entered into by
the President, the Constitution ensures a healthy system of checks and balance necessary in the nation's
pursuit of political maturity and growth.

ISAGANI CRUIZ DESCRIPTION OF TREATY-MAKING PROCESS:

The usual steps in the treaty-making process are:
(1) NEGOTIATION
- undertaken directly by the head of state but he now usually assigns this task to his authorized
representatives.
- It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the
counter-proposals, becomes the basis of the subsequent negotiations.
(2) SIGNATURE
- This step is primarily intended as a means of authenticating the instrument and for the purpose of
symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state
in cases where ratification of the treaty is required.
(3) RATIFICATION
-It is the he formal act by which a state confirms and accepts the provisions of a treaty concluded by its
representatives.
- The purpose of ratification is to enable the contracting states to examine the treaty more closely and to
give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this
reason that most treaties are made subject to the scrutiny and consent of a department of the government
other than that which negotiated them.
(4) EXCHANGE OF THE INSTRUMENTS OF RATIFICATION
- signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where
ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed
effective upon its signature.

PIL DOCTRINE: Ratification is different from signing of the treaty

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 is generally held to be an executive act, undertaken by the head of
the
state or of the government.
E.O. No. 459 provides the guidelines in the negotiation of international agreements and its ratification. It
mandates that after the treaty has been signed by the Philippine representative, the same shall be
transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the
ratification papers and forward the signed copy of the treaty to the President for ratification. After the
President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for
PIL Digest
Prepared by: Brodit Page 5
 concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply
with the provisions of the treaty to render it effective.

The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of
the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It
has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its
plenipotentiaries. There is no legal obligation to ratify a treaty, but it goes without saying that the
refusal must be based on substantial grounds and not on superficial or whimsical reasons.
Otherwise, the other state would be justified in taking offense.

The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to
compel the executive branch of the government to transmit the signed text of Rome Statute to the Senate.

5) PHARMACEUTICAL vs DEPARTMENT OF HEALTH

President Corazon Aquino issued Executive No. 51, otherwise known as the Milk Code to give effect to Article 11
of the International Code of Marketing of Breastmilk Substitutes (ICMBS). The World Health Assembly (WHA)
adopted several resolutions to effect that breasfeeding should be supported and promoted.

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.

The Court notes that the following international instruments invoked by respondents, namely:
(1) The United Nations Convention on the Rights of the Child;
(2) The International Covenant on Economic, Social and Cultural Rights; and
(3) the Convention on the Elimination of All Forms of Discrimination Against Women

PIL DOCTRINE: International law can become part of the sphere of domestic law either by transformation or
incorporation.
The transformation method requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. (Article VII, Section 21 of the Constitution)
The incorporation method applies when, by mere constitutional declaration, international law is deemed to
have the force of domestic law. (Section 2, Article II of the 1987)

Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the
Constitution which provides that "[n]o treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the Senate." 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.

Section 2, Article II of the 1987 Constitution embodies the incorporation method;

"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."

The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-thirds
of all members of the Senate as required under Section 21, Article VII of the 1987 Constitution.

PIL DOCTRINE: "Generally accepted principles of international law" refers to norms of general or customary
international law which are binding on all states

"General accepted principles of International Law" as depicted by scholars:

JUDGE TANAKA: "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."
O'Connell: certain priniciples are part of international law because they are "basic to legal systems
generally" and hence part of the jus gentium. These principles, he believes, are established by a
process of reasoning based on the common identity of all legal systems. If there should be doubt or
PIL Digest
Prepared by: Brodit Page 6
 disagreement, one must look to state practice and determine whether the municipal law principle
provides a just and acceptable solution
Fr. BERNAS: "a general and consistent practice of states followed by them from a sense of legal
obligation [opinio juris]." (Restatement) This statement contains the two basic elements of
custom: the material factor, that is, how states behave, and the psychological or subjective
factor, that is, why they behave the way they do.

PIL DOCTRINE: WHA Resolutions as "soft law" or non-binding norms that influence state behavior
"Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter III of the
1946 Statute of the International Court of Justice. It is, however, an expression of non-binding norms,
principles, and practices that influence state behavior.

Legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. Said
provisions cannot be considered as part of the law of the land that can be implemented by executive
agencies without the need of a law enacted by the legislature.

6) PROVINCE OF NORTH COTABATO vs GRP PEACE PANEL

Scheduled signing of the Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRPMILF
Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended
and the government sought a resumption of the peace talks. The MILF, according to a leading MILF member, initially
responded with deep reservation, but when President Arroyo asked the Government of Malaysia through Prime
Minister Mahathir Mohammad to help convince the MILF to return to the negotiating table, the MILF convened its
Central Committee to seriously discuss the matter and, eventually, decided to meet with the GRP.

PIL DOCTRINE: right to self-determination of "peoples", understood not merely as the entire population of a State but
also a portion thereof.

REFERENCE RE SECESSION OF QUEBEC had occasion to acknowledge that "the right of a people to self-
determination is now so widely recognized in international conventions that the principle has acquired a status
beyond 'convention' and is considered a general principle of international law"

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

Indigenous peoples, this term has been used, in scholarship as well as international, regional, and state practices,
to refer to groups with distinct cultures, histories, and connections to land (spiritual and otherwise) that have been
forcibly incorporated into a larger governing society. These groups are regarded as "indigenous" since they are the
living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous
peoples, nations, or communities are culturally distinctive groups that find themselves engulfed by settler societies
born of the forces of empire and conquest.

United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly Resolution
61/295. The vote was 143 to 4, the Philippines being included among those in favor, and the four voting against being
Australia, Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of indigenous peoples to
self-determination, encompassing the right to autonomy or self-government. Assuming the UNDRIP is a general
customary law, it does not obligate States to grant indigenous peoples the near-independent status of an associated
state.

PIL DOCTRINE: Public statements of a state representative may be construed as a unilateral declaration only when
the following conditions are present:
(1) the statements were clearly addressed to the international community,
(2) the state intended to be bound to that community by its statements, and
(3) that not to give legal effect to those statements would be detrimental to the security of international intercourse.

PIL Digest
Prepared by: Brodit Page 7
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. As
held in the Lomé Accord case, 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.

7) BAYAN MUNA vs ROMULO

The Philippines (RP) through, Charge d’Affaires Enrique A. Manalo, signed the Rome Statute which, by its terms, is
"subject to ratification, acceptance or approval" by the signatory states. On May 9, 2003, then Ambassador
Ricciardone sent US Embassy Note to the DFA proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP. Via Exchange of Notes dated May 13, 2003, the RP,
represented by Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note
adverted to and put in effect the Agreement with the US government. In esse, the Agreement aims to protect what it
refers to and defines as "persons" of the RP and US from frivolous and harassment suits that might be brought
against them in international tribunals. It is reflective of the increasing pace of the strategic security and defense
partnership between the two countries.

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

PIL DOCTRINE: An exchange of notes falls "into the category of inter-governmental agreements," which is an
internationally accepted form of international agreement.

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

The terms "exchange of notes" and "executive agreements" have been used interchangeably, exchange of
notes being considered a form of executive agreement that becomes binding through executive action.
Executive
agreements concluded by the President "sometimes take the form of exchange of notes and at other times
that of more formal documents denominated 'agreements' or 'protocols.'"

PIL DOCTRINE: There is no difference between treaties and executive agreements in terms of their binding effects
on the contracting states concerned, as long as the negotiating functionaries have remained within their powers.
Neither, on the domestic sphere, can one be held valid if it violates the Constitution. As has been observed
by US constitutional scholars, a treaty has greater "dignity" than an executive agreement, because its
constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the Senate,
and the people; 38 a ratified treaty, unlike an executive agreement, takes precedence over any prior
statutory enactment.

US legal scholars: "[I]nternational agreements involving political issues or changes of national policy and
those involving international arrangements of a permanent character usually take the form of treaties [while]
those embodying adjustments of detail carrying out well established national policies and traditions and
those involving arrangements of a more or less temporary nature take the form of executive agreements."

PIL Digest
Prepared by: Brodit Page 8
 Moreover, under international law, there is a considerable difference between a State Party and a signatory
to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only obliged to refrain
from acts which would defeat the object and purpose of a treaty; whereas a State-Party, on the other hand,
is legally obliged to follow all the provisions of a treaty in good faith.

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

PIL DOCTRINE: By their voluntary act, nations may decide to surrender or waive some aspects of their state power
or agree to limit the exercise of their otherwise exclusive and absolute jurisdiction.
The Agreement is but a form of affirmance and confirmance of the Philippines' national criminal jurisdiction.
National criminal jurisdiction being primary, as explained above, it is always the responsibility and within the
prerogative of the RP either to prosecute criminal offenses equally covered by the Rome Statute or to
accede
to the jurisdiction of the ICC. Thus, the Philippines may decide to try "persons" of the US, as the term is
understood in the Agreement, under our national criminal justice system. Or it may opt not to exercise its
criminal jurisdiction over its erring citizens or over US "persons" committing high crimes in the country and
defer to the secondary criminal jurisdiction of the ICC over them.

On the rationale that the Philippines has adopted the generally accepted principles of international law as
part of the law of the land, a portion of sovereignty may be waived without violating the Constitution. Such
waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts.

PIL DOCTRINE: Agreement amends existing municipal laws on the State's obligation in relation to grave crimes
against the law of nations, i.e., genocide, crimes against humanity and war crimes.
The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for
violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the proper
international tribunal; or (2) surrender the accused to another State if such surrender is "pursuant to the
applicable extradition laws and treaties." But the Philippines may exercise these options only in cases where
"another court or international tribunal is already conducting the investigation or undertaking the prosecution
of such crime;" otherwise, the Philippines must prosecute the crime before its own courts pursuant to RA
9851.

PIL DOCTRINE: genocide, war crimes and crimes against humanity have attained the status of customary
international law. Some even go so far as to state that these crimes have attained the status of jus cogens

State practice refers to the continuous repetition of the same or similar kind of acts or norms by States.It is
demonstrated upon the existence of the following elements:
(1) generality;
(2) uniformity and consistency; and
(3) duration.

While, opinio juris, the psychological element, requires that the state practice or norm "be carried out in such
a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it." "The term ' jus cogens' means the 'compelling law.'" Corollary, "a jus cogens norm holds the
highest hierarchical position among all other customary norms and principles." As a result, jus cogens norms
are deemed "peremptory and non-derogable." When applied to international crimes, " jus cogens crimes
have been deemed so fundamental to the existence of a just international legal order that states cannot
derogate from them, even by agreement."

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may exercise
jurisdiction over an individual who commits certain heinous and widely condemned offenses, even when no
other recognized basis for jurisdiction exists." "The rationale behind this principle is that the crime committed
is so egregious that it is considered to be committed against all members of the international community"
111 and thus granting every State jurisdiction over the crime.
PIL Digest
Prepared by: Brodit Page 9
 Therefore, even with the current lack of domestic legislation on the part of the US, it still has both
the doctrine of incorporation and universal jurisdiction to try these crimes.

8) CHINA NATIONAL MACHINERY AND EQUIPMENT CORP. vs SANTAMARIA

China National Machinery & Equipment Corp. (CNMEG) entered into a Memorandum of Understanding with the
North Luzon Railways Corporation (Northrail), represented by its president, Jose L. Cortes, Jr. for the conduct of a
feasibility study on a possible railway line from Manila to San Fernando, La Union (the Northrail Project).

The Export Import Bank of China (EXIM Bank) and the Department of Finance of the Philippines (DOF) entered into a
Memorandum of Understanding wherein China agreed to extend Preferential Buyers Credit to the Philippine
government to finance the Northrail Project. Chinese Ambassador wrote a letter to DOF Secretary Camacho
informing him of CNMEGs designation as the Prime Contractor for the Northrail Project. The Philippine government
and EXIM Bank entered into a counterpart financial agreement — Buyer Credit Loan Agreement. In the Loan
Agreement, EXIM Bank agreed to extend Preferential Buyer's Credit in the amount of USD400,000,000 in favor of the
Philippine government in order to finance the construction of Phase I of the Northrail Project.

Respondents filed a Complaint for Annulment of Contract alleging that the Contract Agreement and the Loan
Agreement were void for being contrary to (a) the Constitution and several other laws

WON CNMEG IS ENTITLED TO IMMUNITY?

PIL DOCTRINE: The application of the doctrine of immunity from suit has been restricted to sovereign or
governmental activities (jure imperii). The mantle of state immunity cannot be extended to commercial, private and
proprietary acts
(jure gestionis).

In Holy See v. Rosario: There are two conflicting concepts of sovereign immunity, each widely held and
firmly established. According to the classical or absolute theory, a sovereign cannot, without its consent,
be made a respondent in the courts of another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not
with regard to private acts or acts jure gestionis

Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the
act involved — whether the entity claiming immunity performs governmental, as opposed to
proprietary, functions

In United States of America v. Ruiz, the SC held that the restrictive application of State immunity is proper
only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a State may be said to have 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. It does not apply where the contract relates to the exercise of its sovereign functions.

The principle of state immunity from suit, whether a local state or a foreign state, is reflected in Section 9,
Article XVI of the Constitution, which states that "the State may not be sued without its consent." Who or
what consists of "the State"? For one, the doctrine is available to foreign States insofar as they are sought to
be sued in the courts of the local State, necessary as it is to avoid "unduly vexing the peace of nations."

In Deutsche Gesellschaft, Germany and the Philippines entered into a Technical Cooperation Agreement,
pursuant to which both signed an arrangement promoting the Social Health Insurance-Networking and
Empowerment (SHINE) project. The two governments named their respective implementing organizations:
the Department of Health (DOH) and the Philippine Health Insurance Corporation (PHIC) for the Philippines,
and GTZ for the implementation of Germany's contributions. In ruling that GTZ was not immune from suit,
this Court held:

The activities performed by GTZ pertaining to the SHINE project are governmental in nature,
related as they are to the promotion of health insurance in the Philippines. The fact that GTZ

PIL Digest
Prepared by: Brodit Page 10
 entered into employment contracts with the private respondents did not disqualify it from invoking
immunity from suit.
Counsel for GTZ characterizes GTZ as "the implementing agency of the Government of the Federal
Republic of Germany," a depiction similarly adopted by the OSG. Assuming that the
characterization is correct, it does not automatically invest GTZ with the ability to invoke State
immunity from
suit. The distinction lies in whether the agency is incorporated or unincorporated.

State immunity from suit may be waived by general or special law. The special law can take the
form of the original charter of the incorporated government agency. Jurisprudence is replete with
examples of incorporated government agencies which were ruled not entitled to invoke immunity
from suit, owing to provisions in their charters manifesting their consent to be sued.

PIL DOCTRINE: The determination by the Executive that an entity is entitled to sovereign or diplomatic immunity is a
political question conclusive upon the courts.
In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court
that said defendant is entitled to immunity .

In the Philippines, the practice is for the foreign government or the international organization to first secure
an executive endorsement of its claim of sovereign or diplomatic immunity . But how the Philippine Foreign
Office conveys its endorsement to the courts varies.

WON THE CONTRACT AGREEMENT IS AN EXECUTIVE AGREEMENT

PIL DOCTRINE: An executive agreement is similar to a treaty

In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a treaty, except that the
former
(a) does not require legislative concurrence;
(b) is usually less formal; and
(c) deals with a narrower range of subject matters.

Despite these differences, to be considered an executive agreement, the following three requisites provided
under the Vienna Convention must nevertheless concur:
(a) the agreement must be between states;
(b) it must be written; and
(c) it must governed by international law.

The first and the third requisites do not obtain in the case at bar.

9) REPUBLIC vs SANDIGANBAYAN
The AFP Anti-Graft Board was created by the Presidential Commission on Good Government (PCGG) to investigate
reports of unexplained wealth and corrupt practices by AFP personnel. Based on its mandate, the AFP Board
investigated various reports of alleged unexplained wealth of respondent Major General Josephus Ramas and his
alleged mistress Elizabeth Dimaano. The value of the property located in Quezon City may be estimated modestly at
P700,000.00. The PCGG filed a petition for forfeiture against Ramas, but the same was amended to implead
Dimaano as co-defendant.

After so many postponements due to inability of petitioner to show further evidence, private respondents filed their
motion to dismiss based on Republic vs. Migrino. In the Migrino case, the Court held that the PCGG does not have
jurisdiction to investigate and prosecute military officers by reason of mere position held without showing that they are
"subordinates" of former President Marcos. The Sandiganbayan dismissed the amended complaint and ordered the
return of the confiscated items to respondent Dimaano. It remanded the records of the case to the Ombudsman for
such appropriate action as the evidence warrants and also referred the case to the Commissioner of the Bureau of
Internal Revenue for a determination of any tax liability of respondent Dimaano. The petitioner's motion for
reconsideration was likewise denied.
PIL Digest
Prepared by: Brodit Page 11
Hence, this petition for review seeking to set aside the resolutions of the Sandiganbayan. The primary issue for
resolution herein is whether PCGG has jurisdiction to investigate and cause the filing of a forfeiture petition against
Ramas and Dimaano for unexplained wealth under RA No. 1379. The other issues involved the propriety of the
dismissal of the case before the presentation of evidence and the legality of the search and seizure. The Supreme
Court affirmed the questioned resolutions of the Sandiganbayan. The Court ruled that the PCGG had no jurisdiction
to investigate Ramas as he was not a "subordinate" of President Marcos as contemplated under EO No. 1, which
created PCGG.

WON PCGG has the jurisdiction to investigate and cause the filing of a forfeiture petition against Ramas and
Dimaano for unexplained wealth under RA No. 1379.
NO, The PCGG, through the AFP Board, can only investigate the unexplained wealth and corrupt practices of AFP
personnel who fall under either of the two categories mentioned in Section 2 of EO No. 1.

WON Ramas was a subordinate of Pres. Marcos.

NO, Mere position held by a military officer does not automatically make him a "subordinate" as this term is used in
EO Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association with former President Marcos.

WON AFB Board was able to prove that Ramas violated RA. 1379.
NO, the board was merely able to enumerate the properties Ramas allegedly owned and suggested that these
properties were disproportionate to his salary and other legitimate income without showing that Ramas amassed
them because of his close association with former President Marcos.

WON the Sandiganbayan erred in declaring the property illegally seized, therefore inadmissible.
PETITIONER'S CONTENTION: 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.

BUT, The search warrant presented by the Constabulary 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. 52 Clearly, the raiding team exceeded its
authority when it seized these items.

WON the revolutionary government was bound by the Bill of Rights of the 1973 Constitution during the
Interregnum after the revolutionary government take-over.
NO, 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.

WON the protection accorded in the International Covenant on Civil and Political Rights ("Covenant") and the
Universal Declaration of Human Rights (UDHR) remained in effect during the Interregnum.
PIL DOCTRINE: 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 45 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 revolutionary government did not repudiate the Covenant or the Declaration during the interregnum.
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.
PIL Digest
Prepared by: Brodit Page 12
 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.

10) TANADA vs ANGARA

Secretary of the Department of Trade and Industry Navarro, representing the Government of the Republic of the
Philippines, signed in Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round of Multilateral
Negotiations (Final Act). On December 9, 1994, the President of the Philippines certified the necessity of the
immediate adoption of P.S. 1083, a resolution entitled "Concurring in the Ratification of the Agreement Establishing
the World Trade Organization." On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which
"Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of
the Philippines of the Agreement Establishing the World Trade Organization."

The WTO Agreement ratified by the President is composed of the Agreement Proper and "the associated legal
instruments included in Annexes one (1), two (2) and three (3) of that Agreement which are integral parts thereof." On
the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and its integral
annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the Understanding on
Commitments in Financial Services.

WON the WTO Agreement impairs Philippine sovereignty.

The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws, regulations and
administrative procedures with its obligations as provided in the annexed Agreements."
PIL DOCTRINE: 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.
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 automatically 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 . . . 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.

The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions
enter into the picture:
(1) limitations imposed by the very nature of membership in the family of nations and
(2) limitations imposed by treaty stipulations.

WON Senate's concurrence on the WTO Agreement done in grave abuse of discretion?
No, It should be added that the Senate was well-aware of what it was concurring in as shown by the members'
deliberation on August 25, 1994. Sen. Tanada: " it would now clearly appear that what is being submitted to the
Senate for ratification is not the Final Act of the Uruguay Round, but rather the Agreement on the World Trade
Organization as well as the Ministerial Declarations and Decisions, and the Understanding and Commitments in
Financial Services."

What the Senate did was a valid exercise of its authority. As to whether such exercise was wise, beneficial or viable
is
PIL Digest
Prepared by: Brodit Page 13
outside the realm of judicial inquiry and review.

11) MIJARES vs RANADA

On 9 May 1991, a complaint was filed with the United States District Court (US District Court), District of Hawaii,
against the Estate of former Philippine President Ferdinand E. Marcos (Marcos Estate). The action was brought forth
by ten Filipino citizens 2 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. 3 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.

Then, on 3 On February 1995, the US District Court, presided by Judge Manuel L. Real, rendered a Final Judgment
(Final Judgment) awarding the plaintiff class a total of $1,964,005,859.90. On 20 May 1997, the present petitioners
filed Complaint with RTC of Makati for the enforcement of the Final Judgment. Since the Marcos Estate failed to file a
petition for certiorari with the US Supreme Court after the Ninth Circuit Court of Appeals had affirmed the Final
Judgment, the decision of the US District Court had become final and executory, and hence should be recognized
and enforced in the Philippines, pursuant to Section 50, Rule 39 of the Rules of Court then in force.

The 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 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 US$2.25 Billion. Respondent Judge Ranada dismissed
the complaint stating that the subject matter of the complain 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

WON Judge Ranada erred in dismissing the complaint for failure to pay the correct amount of docket fees.
PIL DOCTRINE: The rules of comity, utility and convenience of nations have established a usage among civilized
states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered
efficacious under certain conditions that may vary in different countries.
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.

It is clear then that it is usually necessary for an action to be filed in order to enforce a foreign judgment ,
even if such judgment has conclusive effect as in the case of in rem actions, if only for the purpose of
allowing the losing party an opportunity to challenge the foreign judgment, and in order for the court to
properly determine its efficacy. Consequently, the party attacking a foreign judgment has the burden of
overcoming the presumption of its validity.

The rules are silent as to what initiatory procedure must be undertaken in order to enforce a foreign
judgment in the Philippines. But there is no question that the filing of a civil complaint is an
appropriate measure for such purpose. A civil action is one by which a party sues another for the
enforcement or protection of a right, and clearly an action to enforce a foreign judgment is in essence a
vindication of a right prescinding either from a "conclusive judgment upon title" or the "presumptive evidence
of a right." Absent perhaps a statutory grant of jurisdiction to a quasi-judicial body, the claim for enforcement
of judgment must be brought before the regular courts.

WON the instant complaint for enforcement of a foreign judgment is capable of pecuniary estimation.
YES, in Singsong v. Isabela Sawmill and Raymundo v. Court of Appeals the court ruled that:
In determining whether an action is one the subject matter of which is not capable of pecuniary estimation this Court
has adopted the criterion of first ascertaining the nature of the principal action or remedy sought. If it is primarily for
PIL Digest
Prepared by: Brodit Page 14
the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is
in the municipal courts or in the courts of first instance would depend on the amount of the claim.

It is self-evident that while the subject matter of the action is undoubtedly the enforcement of a foreign judgment, the
effect of a providential award would be the adjudication of a sum of money. Perhaps in theory, such an action is
primarily for "the enforcement of the foreign judgment," but there is a certain obtuseness to that sort of argument
since there is no denying that the enforcement of the foreign judgment will necessarily result in the award of a definite
sum of money. 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. 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.

PIL Digest
Prepared by: Brodit Page 15