1|Page PUBLIC INTERNATIONAL LAW MODULE 3 AND 4
ASYLUM CASE (COLOMBIA/PERU); YEAR
OF THE DECISION: 1950; AND COURT: ICJ.
Overview:
Colombia granted asylum to a Peruvian, accused of
taking part in a military rebellion in Peru. Was Colombia
entitled to make a unilateral and definitive qualification
of the offence (as a political offence) in a manner binding
on Peru and was Peru was under a legal obligation to
provide safe passage for the Peruvian to leave Peru?
Facts of the Case:
Peru issued an arrest warrant against Victor Raul Haya de
la Torre “in respect of the crime of military rebellion”
which took place on October 3, 1949, in Peru. 3 months
after the rebellion, Torre fled to the Colombian Embassy
in Lima, Peru. The Colombian Ambassador confirmed
that Torre was granted diplomatic asylum in accordance
with Article 2(2) of the Havana Convention on Asylum of
1928 and requested safe passage for Torre to leave Peru.
Subsequently, the Ambassador also stated Colombia had
qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of
1933 (note the term refugee is not the same as the
Refugee Convention of 1951). Peru refused to accept the
unilateral qualification and refused to grant safe passage.
Questions before the Court:
(1) Is Colombia competent, as the country that grants
asylum, to unilaterally qualify the offence for the
purpose of asylum under treaty law and international
law?
(2) In this specific case, was Peru, as the territorial State,
bound to give a guarantee of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the
Convention on Asylum of 1928 (hereinafter called the
Havana Convention) when it granted asylum and is
the continued maintenance of asylum a violation of the
treaty?
The Court’s Decision:
Relevant Findings of the Court:
(1) Is Colombia competent, as the country that grants
asylum, to unilaterally qualify the offence for the purpose
of asylum under treaty law and international law?
1. The court stated that in the normal course of granting
diplomatic asylum a diplomatic representative has the
competence to make a provisional qualification of the
offence (for example, as a political offence) and the
territorial State has the right to give consent to this
qualification. In the Torre’s case, Colombia has asserted,
as the State granting asylum, that it is competent to
qualify the nature of the offence in a unilateral and
definitive manner that is binding on Peru. The court had
to decide if such a decision was binding on Peru either
because of treaty law (in particular the Havana
Convention of 1928 and the Montevideo Convention of
1933), other principles of international law or by way of
regional or local custom.
2. The court held that there was no expressed or implied
right of unilateral and definitive qualification of the State
that grants asylum under the Havana Convention or
relevant principles of international law (p. 12, 13). The
Montevideo Convention of 1933, which accepts the right
of unilateral qualification, and on which Colombia relied
to justify its unilateral qualification, was not ratified by
Peru. The Convention, per say, was not binding on Peru
and considering the low numbers of ratifications the
provisions of the latter Convention cannot be said to
reflect customary international law (p. 15).
3. Colombia also argued that regional or local customs
support the qualification. The court held that the burden
of proof on the existence of an alleged customary law
rests with the party making the allegation:
“The Party which relies on a custom of this kind must
prove that this custom is established in such a manner
that it has become binding on the other Party… (that) it
is in accordance with a (1) constant and uniform usage
(2) practiced by the States in question, and that this
usage is (3) the expression of a right appertaining to the
State granting asylum (Colombia) and (4) a duty
incumbent on the territorial State (in this case, Peru). This
follows from Article 38 of the Statute of the Court, which
refers to international custom “as evidence of a general
practice accepted as law(text in brackets added).”
4. The court held that Colombia did not establish the
existence of a regional custom because it failed to prove
consistent and uniform usage of the alleged custom by
relevant States. The fluctuations and contradictions in
State practice did not allow for the uniform usage (see
also Mendelson, 1948 and see also Nicaragua case, p. 98,
the legal impact of fluctuations of State practice). The
court also reiterated that the fact that a particular State
practice was followed because of political expediency
and not because of a belief that the said practice is
binding on the State by way of a legal obligation (opinio
juris) is detrimental to the formation of a customary law
(see North Sea Continental Shelf Cases and Lotus
Case for more on opinio juris):
“[T]he Colombian Government has referred to a large
number of particular cases in which diplomatic asylum
was in fact granted and respected. But it has not shown
that the alleged rule of unilateral and definitive
qualification was invoked or … that it was, apart from
conventional stipulations, exercised by the States
granting asylum as a right appertaining to them and
 2|Page PUBLIC INTERNATIONAL LAW MODULE 3 AND 4
respected by the territorial States as a duty incumbent on
them and not merely for reasons of political expediency.
The facts brought to the knowledge of the Court disclose
so much uncertainty and contradiction, so much
fluctuation and discrepancy in the exercise of diplomatic
asylum and in the official views expressed on various
occasions, there has been so much inconsistency in the
rapid succession of conventions on asylum, ratified by
some States and rejected by others, and the practice has
been so much influenced by considerations of political
expediency in the various cases, that it is not possible to
discern in all this any constant and uniform usage,
mutually accepted as law, with regard to the alleged rule
of unilateral and definitive qualification of the offence.”
5. The court held that even if Colombia could prove that
such a regional custom existed, it would not be binding
on Peru, because Peru “far from having by its attitude
adhered to it, has, on the contrary, repudiated it by
refraining from ratifying the Montevideo Conventions of
1933 and 1939, which were the first to include a rule
concerning the qualification of the offence [as “political”
in nature] in matters of diplomatic asylum.” (See in this
regard, the lesson on persistent objectors. Similarly in
the North Sea Continental Shelf Cases the court held ‘in
any event the . . . rule would appear to be inapplicable as
against Norway in as much as she had always opposed
any attempt to apply it to the Norwegian coast’.)
6. The court concluded that Colombia, as the State
granting asylum, is not competent to qualify the offence
by a unilateral and definitive decision, binding on Peru.
(2) In this specific case, was Peru, as the territorial State,
bound to give a guarantee of safe passage?
7. The court held that there was no legal obligation on
Peru to grant safe passage either because of the Havana
Convention or customary law. In the case of the Havana
Convention, a plain reading of Article 2 results in an
obligation on the territorial state (Peru) to grant safe
passage only after it requests the asylum granting State
(Colombia) to send the person granted asylum outside its
national territory (Peru). In this case the Peruvian
government had not asked that Torre leave Peru. On the
contrary, it contested the legality of asylum granted to
him and refused to grant safe conduct.
8. The court looked at the possibility of a customary law
emerging from State practice where diplomatic agents
have requested and been granted safe passage for
asylum seekers, before the territorial State could request
for his departure. Once more, the court held that these
practices were a result of a need for expediency and
other practice considerations over an existence of a
belief that the act amounts to a legal obligation (see
paragraph 4 above).
“There exists undoubtedly a practice whereby the
diplomatic representative who grants asylum
immediately requests a safe conduct without awaiting a
request from the territorial state for the departure of the
refugee…but this practice does not and cannot mean that
the State, to whom such a request for safe-conduct has
been addressed, is legally bound to accede to it.”
(3) Did Colombia violate Article 1 and 2 (2) of the Havana
Convention when it granted asylum and is the continued
maintenance of asylum a violation of the treaty?
9. Article 1 of the Havana Convention states that “It is not
permissible for States to grant asylum… to persons
accused or condemned for common crimes… (such
persons) shall be surrendered upon request of the local
government.”
10. In other words, the person-seeking asylum must not
be accused of a common crime (for example, murder
would constitute a common crime, while a political
offence would not).The accusations that are relevant are
those made before the granting of asylum. Torre’s
accusation related to a military rebellion, which the court
concluded was not a common crime and as such the
granting of asylum complied with Article 1 of the
Convention.
11. Article 2 (2) of the Havana Convention states
that “Asylum granted to political offenders in legations,
warships, military camps or military aircraft, shall be
respected to the extent in which allowed, as a right or
through humanitarian toleration, by the usages, the
conventions or the laws of the country in which granted
and in accordance with the following provisions: First:
Asylum may not be granted except in urgent cases and
for the period of time strictly indispensable for the
person who has sought asylum to ensure in some other
way his safety.”
12. An essential pre-requisite for the granting of asylum
is the urgency or, in other words, the presence of “an
imminent or persistence of a danger for the person of the
refugee”. The court held that the facts of the case,
including the 3 months that passed between the
rebellion and the time when asylum was sought, did not
establish the urgency criteria in this case (pp. 20 -23). The
court held:
“In principle, it is inconceivable that the Havana
Convention could have intended the term “urgent cases”
to include the danger of regular prosecution to which the
citizens of any country lay themselves open by attacking
the institutions of that country… In principle, asylum
cannot be opposed to the operation of justice.”
13. In other words, Torre was accused of a crime but he
could not be tried in a court because Colombia
granted him asylum. The court held that “protection
 3|Page PUBLIC INTERNATIONAL LAW MODULE 3 AND 4

from the operation of regular legal proceedings” was not

justified under diplomatic asylum.

14. The court held:

“In the case of diplomatic asylum the refugee is within

the territory of the State. A decision to grant diplomatic
asylum involves a derogation from the sovereignty of
that State. It withdraws the offender from the jurisdiction
of the territorial State and constitutes an intervention in
matters which are exclusively within the competence of
that State. Such a derogation from territorial sovereignty
cannot be recognised unless its legal basis is established
in each particular case.”

15. As a result, exceptions to this rule are strictly

regulated under international law.

An exception to this rule (asylum should not be granted

to those facing regular prosecutions) can occur only if, in
the guise of justice, arbitrary action is substituted for the
rule of law. Such would be the case if the administration
of justice were corrupted by measures clearly prompted
by political aims. Asylum protects the political offender
against any measures of a manifestly extra-legal
character which a Government might take or attempt to
take against its political opponents… On the other hand,
the safety which arises out of asylum cannot be
construed as a protection against the regular application
of the laws and against the jurisdiction of legally
constituted tribunals. Protection thus understood would
authorize the diplomatic agent to obstruct the
application of the laws of the country whereas it is his
duty to respect them… Such a conception, moreover,
would come into conflict with one of the most firmly
established traditions of Latin-America, namely, non-
intervention [for example, by Colombia into the internal
affairs of another State like Peru]….

16. Asylum may be granted on “humanitarian grounds to

protect political prisoners against the violent and
disorderly action of irresponsible sections of the
population.” (for example during a mob attack where the
territorial State is unable to protect the offender). Torre
was not in such a situation at the time when he sought
refuge in the Colombian Embassy at Lima.

17. The court concluded that the grant of asylum and

reasons for its prolongation were not in conformity with
Article 2(2) of the Havana Convention (p. 25).

“The grant of asylum is not an instantaneous act which

terminates with the admission, at a given moment of a
refugee to an embassy or a legation. Any grant of asylum
results in, and in consequence, logically implies, a state of
protection, the asylum is granted as long as the
continued presence of the refugee in the embassy
prolongs this protection.”
 4|Page PUBLIC INTERNATIONAL LAW MODULE 3 AND 4
NORTH SEA CONTINENTAL SHELF CASES
Overview: The jurisprudence of the North
Sea Continental Shelf Cases sets out the dual
requirement for the formation of customary
international law: (1) State practice (the objective
element) and (2) opinio juris (the subjective element). In
these cases, the Court explained the criteria necessary to
establish State practice – widespread and representative
participation. It highlighted that the practices of those
States whose interests were specially affected by the
custom were especially relevant in the formation of
customary law. It also held that uniform and consistent
practice was necessary to demonstrate opinio juris –
opinio juris is the belief that State practice amounts to a
legal obligation. The North Sea Continental Self Cases
also dispelled the myth that duration of the practice (i.e.
the number of years) was an essential factor in
forming customary international law.
The case involved the delimitation of the continental shelf
areas in the North Sea between Germany and Denmark
and Germany and Netherlands beyond the partial
boundaries previously agreed upon by these States. The
parties requested the Court to decide the principles and
rules of international law that are applicable to the above
delimitation because the parties disagreed on the
applicable principles or rules of delimitation. Netherlands
and Denmark relied on the principle of equidistance (the
method of determining the boundaries in such a way that
every point in the boundary is equidistant from the
nearest points of the baselines from which the breath of
the territorial sea of each State is measured). Germany
sought to get a decision in favour of the notion that the
delimitation of the relevant continental shelf
was governed by the principle that each coastal state is
entitled to a just and equitable share (hereinafter called
just and equitable principle/method). Contrary to
Denmark and Netherlands, Germany argued that the
principle of equidistance was neither a mandatory rule in
delimitation of the continental shelf nor a rule of
customary international law that was binding on
Germany. The Court was not asked to delimit because the
parties had already agreed to delimit the continental
shelf as between their countries, by agreement, after the
determination of the Court on the applicable principles.
Facts of the Case:
Netherlands and Denmark had drawn partial boundary
lines based on the equidistance principle (A-B and C-D).
An agreement on further prolongation of the boundary
proved difficult because Denmark and Netherlands
wanted this prolongation to take place based on the
equidistance principle (B-E and D-E) where as Germany
was of the view that, together, these two boundaries
would produce an inequitable result for her. Germany
stated that due to its concave coastline, such a line would
result in her loosing out on her share of the continental
shelf based on proportionality to the length of its North
Sea coastline. The Court had to decide the principles and
rules of international law applicable to this delimitation.
In doing so, the Court had to decide if the principles
espoused by the parties were binding on the parties
either through treaty law or customary international law.
North Sea Continental Shelf
Cases (commons.wikimedia.org)
Questions before the Court (as relevant to this post):
Is Germany under a legal obligation to accept the
equidistance-special circumstances principle, contained
in Article 6 of the Geneva Convention on the Continental
Shelf of 1958, either as a customary international law
rule or on the basis of the Geneva Convention?
The Court’s Decision:
The use of the equidistance method had not crystallised
into customary law and the method was not obligatory
for the delimitation of the areas in the North Sea related
to the present proceedings.
Relevant Findings of the Court:
1. Nature of the treaty obligation: Is the 1958 Geneva
Convention, and in particular Article 6, binding on
Germany?
1. Article 6 of the Geneva Convention stated that unless
the parties had already agreed on a method for
delimitation or unless special circumstances exist, the
equidistance method would apply. Germany had signed,
but not ratified, the Geneva Convention, while
Netherlands and Denmark were parties to the
Convention. The latter two States argued that while
Germany is not a party to the Convention (not having
ratified it), she was still bound by Article 6 of the
Convention because:
“…(1) by conduct, by public statements and
proclamations, and in other ways, the Republic has
 5|Page PUBLIC INTERNATIONAL LAW MODULE 3 AND 4
unilaterally assumed the obligations of the Convention;
or has manifested its acceptance of the conventional
regime; or has recognized it as being generally applicable
to the delimitation of continental shelf areas…
(2) the Federal Republic had held itself out as so
assuming, accepting or recognizing, in such a manner as
to cause other States, and in particular Denmark and the
Netherlands, to rely on the attitude thus taken up” (the
latter is called the principle of estoppel).
2. The Court rejected the first argument. It said that only
a ‘very definite very consistent course of conduct on the
part of a State would allow the Court to presume that the
State had somehow become bound by a treaty (by a
means other than in the formal manner: i.e. ratification)
when the State was ‘at all times fully able and entitled
to…’ accept the treaty commitments in a formal manner.
The Court held that Germany had not unilaterally
assumed obligations under the Convention. The court
also took notice of the fact that even if Germany ratified
the treaty, she had the option of entering into a
reservation on Article 6, following which that particular
article would no longer be applicable to Germany (in
other words, even if one were to assume that Germany
had intended to become a party to the Convention, it
does not presuppose that it would have also undertaken
those obligations contained in Article 6).
3. Note: The Vienna Convention on the Law of Treaties of
1969 (VCLT), which came into force in 1980, discusses in
more detail treaty obligations of third States (those
States who are not parties to the treaty). It clearly
stipulates that obligations arise for third States from a
provision of a treaty only if (1) the actual parties to the
treaty intended the provision to create obligations for
third States; and (2) third State expressly accept
those obligations in writing (Article 35 of the VCLT). The
VCLT was not in force when the Court deliberated on this
case. However, as seen above, the Court’s position
is consistent the VCLT. (See the relevant provisions of
the Vienna Convention on the Law of Treaties).
4. The Court held that the existence of a situation of
estoppel would have allowed Article 6 to become
binding on Germany – but held that Germany’s action did
not support an argument for estoppel. The Court also
held that the mere fact that Germany may not have
specifically objected to the equidistance principle as
contained in Article 6, is not sufficient to state that the
principle is now binding upon it.
5. In conclusion, the Court held that Germany had not
acted in any manner so as to incur obligations contained
in Article 6 of the Geneva Convention. The equidistance–
special circumstances rule was not binding on Germany
by way of treaty law.
2. Nature of the customary international law obligation:
Is Germany bound by the provisions of Article 6 of the
Geneva Convention in so far as they reflect customary
international law?
6. Netherlands and Denmark argued that Article 6 also
reflected ‘the accepted rule of general international law
on the subject of continental shelf delimitation’ and that
it existed independently of the Convention. Therefore,
they argued, Germany is bound by the subject matter
of Article 6 by way of customary international law.
7. To decide if the equidistance principle bound Germany
by way of customary international law, the Court
examined (1) the status of the principle contained in
Article 6 as it stood when the Convention was being
drawn up; and (2) its status after the Convention came
into force.
(a) What was the customary law status of Article 6 at the
time of drafting the Convention?
8. The Court held that the principle of equidistance, as
contained in Article 6 did not form a part of existing or
emerging customary international law at the time of
drafting the Convention. The Court supported this
finding based on (1) the hesitation expressed by the
drafters of the Convention, the International Law
Commission, on the inclusion of Article 6 into the
Convention and (2) the fact that reservations to Article
6 was permissible under the Convention. The Court held:
“… Article 6 is one of those in respect of which, under the
reservations article of the Convention (Article 12)
reservations may be made by any State on signing,
ratifying or acceding, – for speaking generally, it is a
characteristic of purely conventional rules and
obligations that, in regard to them, some faculty of
making unilateral reservations may, within certain limits,
be admitted; whereas this cannot be so in the case of
general or customary law rules and obligations which, by
their very nature, must have equal force for all members
of the international community, and cannot therefore be
the subject of any right of unilateral exclusion exercisable
at will by any one of them in its own favor…. The normal
inference would therefore be that any articles that do not
figure among those excluded from the faculty of
reservation under Article 12, were not regarded as
declaratory of previously existing or emergent rules of
law …” (see para 65 for a counter argument and the
Court’s careful differentiation)
(b) Did the provisions in Article 6 on the equidistance
principle attain the customary law status after the
Convention came into force?
9. The Court then examined whether the rule contained
in Article 6 had become customary international law
after the Convention entered into force – either due the
 6|Page PUBLIC INTERNATIONAL LAW MODULE 3 AND 4
Convention itself (i.e., if enough States had ratified the
Convention in a manner so as to fulfil the criteria
specified below), or because of subsequent State
practice (i.e. even if an adequate number of States had
not ratified the Convention, one could find sufficient
State practice to meet the criteria below). The Court held
that Article 6 of the Convention had not attained a
customary law status. (Compare the 1958 Geneva
Convention with the four Geneva Conventions on 1949
relating to international humanitarian law in terms of the
latter’s authority as a pronouncement of customary
international law).
10. For a customary rule to emerge the Court held that it
needed: (1) very widespread and representative
participation in the Convention, including States whose
interests were specially affected (in this case, they were
coastal States) (i.e. generality); and (2) virtually uniform
practice (i.e. consistent and uniform usage) undertaken
in a manner that demonstrates (3) a general recognition
of the rule of law or legal obligation (i.e. opinio juries). In
the North Sea Continental Shelf cases the court held
that the passage of a considerable period of time was
unnecessary (i.e. duration) for the formation of a
customary law.
Widespread and representative participation
11. The Court held that the first criteria was not met. The
number of ratifications and accessions to the Convention
(39 States) were not adequately representative or
widespread.
Duration
12. The Court held that the duration taken for
a customary law rule to emerge is not as important as
widespread and representative participation, uniform
usage, and the existence of an opinio juris. It held that:
“Although the passage of only a short period of time (in
this case, 3 – 5 years) is not necessarily, or of itself, a bar
to the formation of a new rule of customary international
law on the basis of what was originally a purely
conventional rule, an indispensable requirement would
be that within the period in question, short though it
might be, State practice, including that of States whose
interests are specially affected, should have been both
extensive and virtually uniform in the sense of the
provision invoked and should moreover have occurred in
such a way as to show a general recognition that a rule
of law or legal obligation is involved.”
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua
Case) or in omissions (Lotus case), in so far as those acts
or omissions were done following a belief that the said
State is obligated by law to act or refrain from acting in a
particular way. (For more on opinio juris click here).
14. The Court examined 15 cases where States had
delimited their boundaries using the equidistance
method, after the Convention came into force (paras. 75
-77). The Court concluded that even if there were some
State practice in favour of the equidistance principle, the
Court could not deduct the necessary opinio juris from
this State practice. The North Sea Continental Shelf Cases
confirmed that both State practice (the objective
element) and opinio juris (the subjective element) are
essential pre-requisites for the formation of a customary
law rule. This is consistent with Article 38 (1) (b) of the
Statute of the ICJ. The Court explained the concept
of opinio jurisand the difference between customs (i.e.
habits) and customary law:
“Not only must the acts concerned amount to a settled
practice, but they must also be such, or be carried out in
such a way, as to be evidence of a belief that this practice
is rendered obligatory by the existence of a rule of law
requiring it. The need for such a belief, i.e, the existence
of a subjective element, is implicit in the very notion of
the opinio juris sive necessitatis. The States concerned
must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even
habitual character of the acts is not in itself enough.
There are many international acts, e.g., in the field of
ceremonial and protocol, which are performed almost
invariably, but which are motivated only by
considerations of courtesy, convenience or tradition, and
not by any sense of legal duty.” (Para 77).
15. The Court concluded that the equidistance principle
was not binding on Germany by way of treaty or
customary international law. In the case of the latter, the
principle had not attained a customary international law
status at the time of the entry into force of the Geneva
Convention or thereafter. As such, the Court held that
the use of the equidistance method is not obligatory for
the delimitation of the areas concerned in the present
proceedings.
© Ruwanthika Gunaratne
at https://ruwanthikagunaratne.wordpress.com, 2008 –
2017. Unauthorized use and/or duplication of this
material without express and written permission from
this blog’s author and/or owner, or without attribution,
is strictly prohibited. Excerpts and links may be used,
provided that full and clear credit is given to Ruwanthika
Gunaratne with appropriate and specific direction to the
original content.
 7|Page PUBLIC INTERNATIONAL LAW MODULE 3 AND 4

U.S. Supreme Court as they were caught, and kept and sold alive. Each vessel
left Havana on a coast fishing voyage, and sailed along
THE PAQUETE HABANA, 175 U.S. 677 the coast of Cuba about two hundred miles to the west
(1900) end of the island; the sloop there fished for twenty-five
days in the territorial waters of Spain, and the schooner
The Paquete Habana extended her fishing trip a hundred miles farther across
Nos. 895-896 the Yucatan Channel, and fished for eight days on the
coast of Yucatan. On her return, with her cargo of live
Argued November 7-8, 1899 fish, along the coast of Cuba, and when near Havana,
Decided January 8, 1900 each was captured by one of the United States
blockading squadron. Neither fishing vessel had any arms
175 U.S. 677 (1900) or ammunition on board, had any knowledge of the
blockade, or even of the war, until she was stopped by a
Syllabus
blockading vessel, made any attempt to run the
Under the Act of Congress of March 3, 1891, c. 517, this blockade, or any resistance at the time of her capture,
Court has jurisdiction of appeals from all final sentences nor was there any evidence that she, or her crew, was
and decrees in prize causes, without regard to the likely to aid the enemy. Held that both captures were
amount in dispute and without any certificate of the unlawful, and without probable cause.
district judge as to the importance of the particular case.
The cases are stated in the opinion of the Court.
International law is part of our law, and must be
ascertained and administered by the courts of justice of
appropriate jurisdiction as often as questions of right
depending upon it are duly presented for their
determination. For this purpose, where there is no treaty
and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages
of civilized nations, and, as evidence of these, to the
works of jurists and commentators, not for the
speculations of their authors concerning what the law
ought to be, but for trustworthy evidence of what the
law really is.

At the present day, by the general consent of the civilized

nations of the world and independently of any express
treaty or other public act, it is an established rule of
international law that coast fishing vessels, with their
implements and supplies, cargoes and crews, unarmed
and honestly pursuing their peaceful calling of catching
and bringing in fresh fish, are exempt from capture as
prize of war. And this rule is one which prize courts,
administering the law of nations, are bound to take
judicial notice of, and to give effect to, in the absence of
any treaty or other public act of their own government in
relation to the matter.

At the breaking out of the recent war with Spain, two

fishing smacks -- the one a sloop, 43 feet long on the keel
and of 25 tons burden, and with a crew of three men, and
the other a schooner, 51 feet long on the keel and of 35
tons burden, and with a crew of six men -- were regularly
engaged in fishing on the coast of Cuba, sailing under the
Spanish flag, and each owned by a Spanish subject,
residing in Havana; her crew, who also resided there, had
no interest in the vessel, but were entitled to shares,
amounting in all to two thirds, of her catch, the other
third belonging to her owner, and her cargo consisted of
fresh fish, caught by her crew from the sea, put on board
 8|Page PUBLIC INTERNATIONAL LAW MODULE 3 AND 4
United States Supreme Court
THE PAQUETE HABANA (1900)
No. 395 Argued: Decided: January 8, 1900
[175 U.S. 677, 678] Mr J. Parker Kirlin for appellants.
Assistant Attorney General Hoyt, Solicitor General
Richards, and Messrs. Joseph K. McCammon, James H.
Hayden, George A. King, and William B. King for
appellees.
Mr. Justice Gray delivered the opinion of the court:
These are two appeals from decrees of the district court
of the United States for the southern district of Florida
condemning two fishing vessels and their cargoes as
prize of war.
Each vessel was a fishing smack, running in and out of
Havana, and regularly engaged in fishing on the coast of
Cuba; sailed under the Spanish flag; was owned by a
Spanish subject of Cuban birth, living in the city of
Havana; was commanded by a subject of Spain, also
residing in Havana; and her master and crew had no
interest in the vessel, but were entitled to shares,
amounting in all to two thirds, of her catch, the other
third belonging to her owner. Her cargo consisted of
fresh fish, caught by her crew from the sea, put on board
as they were caught, and kept and sold alive. Until
stopped by the blockading squadron she had no
knowledge of the existence of the war or of any
blockade. She had no arms or ammunition on board, and
made on attempt to run the blockade after she knew of
its existence, nor any resistance at the time of the
capture.
The Paquete Habana was a sloop, 43 feet long on the
keel, [175 U.S. 677, 679] and of 25 tons burden, and had
a crew of three Cubans, including the master, who had a
fishing license from the Spanish government, and no
other commission or license. She left Havana March 25,
1898; sailed along the coast of Cuba to Cape San Antonio,
at the western end of the island, and there fished for
twenty-five days, lying between the reefs off the cape,
within the territorial waters of Spain; and then started
back for Havana, with a cargo of about 40 quintals of live
fish. On April 25, 1898, about 2 miles off Mariel, and 11
miles from Havana, she was captured by the United
States gunboat Castine.
The Lola was a schooner, 51 feet long on the keel, and of
35 tons burden, and had a crew of six Cubans, including
the master, and no commission or license. She left
Havana April 11, 1898, and proceeded to Campeachy
sound, off Yucatan, fished there eight days, and started
back for Havana with a cargo of about 10,000 pounds of
live fish. On April 26, 1898, near Havana, she was
stopped by the United States steamship Cincinnati, and
was warned not to go into Havana, but was told that she
would be allowed to land at Bahia Honda. She then
changed her course, and putfor Bahia Honda, but on the
next morning, when near that port, was captured by the
United States steamship Dolphin.
Both the fishing vessels were brought by their captors
into Key West. A libel for the condemnation of each
vessel and her cargo as prize of war was there filed on
April 27, 1898; a claim was interposed by her master on
behalf of himself and the other members of the crew,
and of her owner; evidence was taken, showing the facts
above stated; and on May 30, 1898, a final decree of
condemnation and sale was entered, 'the court not being
satisfied that as a matter of law, without any ordinance,
treaty, or proclamation, fishing vessels of this class are
exempt from seizure.'
Each vessel was thereupon sold by auction; the Paquete
Habana for the sum of $490; and the Lola for the sum of
$800. There was no other evidence in the record of the
value of either vessel or of her cargo.
It has been suggested, in behalf of the United States,
that [175 U.S. 677, 680] this court has no jurisdiction to
hear and determine these appeals, because the matter
in dispute in either case does not exceed the sum or
value of $2,000, and the district judge has not certified
that the adjudication involves a question of general
importance.
The suggestion is founded on 695 of the Revised
Statutes, which provides that 'an appeal shall be allowed
to the Supreme Court from all final decrees of any district
court in prize causes, where the matter in dispute,
exclusive of costs, exceeds the sum or value of two
thousand dollars; and shall be allowed, without
reference to the value of the matter in dispute, on the
certificate of the district judge that the adjudication
involves a question of general importance.'
The judiciary acts of the United States, for a century after
the organization of the government under the
Constitution, did impose pecuniary limits upon appellate
jurisdiction.
In actions at law and suits in equity the pecuniary limit of
the appellate jurisdiction of this court from the circuit
courts of the United States was for a long time fixed at
$2000. Acts of September 24, 1789, chap. 20, 22; 1 Stat.
at L. 84; March 3, 1803, chap. 40; 2 Stat. at L. 244; Gordon
v. Ogden, 3 Pet. 33, 7 L. ed. 592; Rev. Stat. 691, 692. In
1875 it was raised to $5,000. Act of February 16, 1875,
chap. 77, 3; 18 Stat. at L. 316. And in 1889 this was
modified by providing that, where the judgment or
decree did not exceed the sum of $5,000, this court
should have appellate jurisdiction upon the question of
 9|Page PUBLIC INTERNATIONAL LAW MODULE 3 AND 4
the jurisdiction of the circuit court, and upon that
question only. Act of February 25, 1889, chap. 236, 1; 25
Stat. at L. 693; Parker v. Ormsby, 141 U.S. 81 , 35 L. ed.
654, 11 Sup. Ct. Rep. 912.
As to cases of admiralty and maritime jurisdiction,
including prize causes, the judiciary act of 1789, in 9,
vested the original jurisdiction in the district courts,
without regard to the sum or value in controversy; and in
21 permitted an appeal from them to the circuit courts
where the matter in dispute exceeded the sum or value
of $300. 1 Stat. at L. 77, 83, chap. 20; The Betsey, 3 Dall.
6, 16, sub nom. Glass v. The Betsey, 1 L. ed. 485, 489; The
Amiable Nancy, 3 Wheat. 546, 4 L. ed. 456; Stratton v.
Jarvis, 8 Pet. 44, 11, 8 L. ed. 846, 849. By the act of March
3, 1803, chap. 40, appeals to the circuit court were
permitted from all final decrees of a district court
where [175 U.S. 677, 681] the matter in dispute
exceeded the sum or value of $50; and from the circuit
courts to this court in all cases 'of admiralty and maritime
jurisdiction, and of prize or no prize' in which the matter
in dispute exceeded the sum or value of $2,000. 2 Stat.
at L. 244; Jenks v. Lewis, 3 Mason, 503, Fed. Cas. No.
7,279; Stratton v. Jarvis, above cited; The Admiral, 3 Wall.
603, 612, sub nom. The Admiral v. United States, 18 L. ed.
58, 59. The acts of March 3, 1863, chap. 86, 7, and June
30, 1864, chap. 174, 13, provided that appeals from the
district courts in prize causes should lie directly to this
court, where the amount in controversy exceeded
$2,000, or 'on the certificate of the district judge that the
adjudication involves a question of difficulty and general
importance.' 12 Stat. at L. 760; 13 Stat. at L. 310. The
provision of the act of 1803, omitting the words 'and of
prize or no prize,' was re-enacted in 692 of the Revised
Statutes; and the provision of the act of 1864, concerning
prize causes, was substantially re-enacted in 695 of the
Revised Statutes, already quoted.
But all this has been changed by the act of March 3, 1891,
chap. 517, establishing the circuit courts of appeals, and
creating a new and complete scheme of appellate
jurisdiction, depending upon the nature of the different
cases, rater than upon the pecuniary amount involved.
26 Stat. at L. 826.
By that act, as this court has declared, the entire
appellate jurisdiction from the circuit and district courts
of the United States was distributed, 'according to the
scheme of the act,' between this court and the circuit
courts of appeals thereby established, 'by designating
the classes of cases' of which each of these courts was to
have final jurisdiction. McLish v. Roff, 141 U.S. 661, 666 ,
35 S. L. ed. 893, 894, 12 Sup. Ct. Rep. 118; American
Constr. Co. v. Jacksonville, T. & K. W. R. Co. 148 U.S. 372,
382 , 37 S. L. ed. 486, 490, 13 Sup. Ct. Rep. 758; Carey v.
Houston & T. C. R. Co. 150 U.S. 170, 179 , 37 S. L. ed.
1041, 1043, 14 Sup. Ct. Rep. 63.
The intention of Congress, by the act of 1891, to make
the nature of the case, and not the amount in dispute,
the test of the appellate jurisdiction of this court from
the district and circuit courts, clearly appears upon
examination of the leading provisions of the act.
Section 4 provides that no appeal, whether by writ of
error or otherwise, shall hereafter be taken from a
district court [175 U.S. 677, 682] to a circuit court; but
that all appeals, by writ of error or otherwise, from the
district courts, 'shall only be subject to review' in this
court or in the circuit court of appeal 'as is hereinafter
provided,' and 'the review by appeal, by writ of error, or
otherwise' from the circuit courts, 'shall be had only' in
this court or in the circuit court of appeals, 'according to
the provisions of this act regulating the same.'
Section 5 provides that 'appeals or writs of error may be
taken from the district courts, or from the existing circuit
courts, direct to the Supreme Court, in the following
cases:'
First. 'In any case in which the jurisdiction of the court is
in issue; in such cases the question of jurisdiction alone
shall be certified to the Supreme Court from the court
below for decision.' This clause includes 'any case,'
without regard to amount, in which the jurisdiction of
the court below is in issue; and differs in this respect
from the act of 1889, above cited.
Second. 'From the final sentences and decrees in prize
causes.' This clause includes the whole class of 'the final
sentences and decrees in prize causes,' and omits all
provisions of former acts regarding amount in
controversy, or certificate of a district judge.
Third. 'In cases of conviction of a capital or otherwise
infamous crime.' This clause looks to the nature of the
crime, and not to the extent of the punishment actually
imposed. A crime which might have been punished by
imprisonment in a penitentiary is an infamous crime,
even if the sentence actually pronounced is of a small
fine only. Ex parte Wilson, 114 U.S. 417, 426 , 29 S. L. ed.
89, 92, 5 Sup. Ct. Rep. 935. Consequently, such a
sentence for such a crime was subject to the appellate
jurisdiction of this court, under this clause, until this
jurisdiction, so far as regards infamous crimes, was
transferred to the circuit court of appeals by the act of
January 20, 1897, chap. 68. 29 Stat. at L. 492.
Fourth. 'In any case that involves the construction or
application of the Constitution of the United States.'
Fifth. 'In any case in which the constitutionality of any
law of the United States, or the validity or construction
of any treaty made under its authority, is drawn in
question.' [175 U.S. 677, 683] Sixth. 'In any case in
which the Constitution or law of a state is claimed to be
 10 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
in contravention of the Constitution of the United
States.'
Each of these last three clauses, again, includes 'any case'
of the class mentioned. They all relate to what are
commonly called Federal questions, and cannot
reasonably be construed to have intended that the
appellate jurisdiction of this court over such questions
should be restricted by any pecuniary limit,-especially in
their connection with the succeeding sentence of the
same section: 'Nothing in this act shall affect the
jurisdiction of the Supreme Court in cases appealed from
the highest court of a state, nor the construction of the
statute providing for review of such cases.' Writs of error
from this court to review the judgments of the highest
court of a state upon such questions have never been
subject to any pecuniary limit. Act of September 24,
1789, chap. 20, 25; 1 Stat. at L. 85; Buel v. Van Ness, 8
Wheat. 312, 5 L. ed. 624; Act of February 5, 1867, chap.
28, 2; 14 Stat. at L. 386; Rev. Stat. 709.
By 6 of the act of 1891 this court is relieved of much of
the appellate jurisdiction that it had before; the
appellate jurisdiction from the district and circuit courts
'in all cases other than those provided for in the
preceding section of this act, unless otherwise provided
by law,' is vested in the circuit court of appeals; and its
decisions in admiralty cases, as well as in cases arising
under the cirminal laws, and in certain other classes of
cases, are made final, except that that court may certify
to this court questions of law, and that this court may
order up the whole case by writ of certiorari. It is settled
that the words 'unless otherwise provided by law,' in this
section, refer only to provisions of the same act, or of
contemporaneous or subsequent acts, and do not
include provisions of earlier statutes. Lau Ow Bew v.
United States, 144 U.S. 47, 57 , 36 S. L. ed. 340, 343, 12
Sup. Ct. Rep. 517; Hubbard v. Soby, 146 U.S. 56 , 36 L. ed.
886, 13 Sup. Ct. Rep. 13; American Constr. Co. v.
Jacksonville, T. & K. W. R. Co. 148 U.S. 372, 383 , 37 S. L.
ed. 486, 491, 13 Sup. Ct. Rep. 758.
The act of 1891 nowhere imposes a pecuniary limit upon
the appellate jurisdiction, either of this court or of the
circuit court of appeals, from a district or circuit court of
the United States. The only pecuniary limit imposed is
one of [175 U.S. 677, 684] $1,000 upon the appeal to
this court of a case which has been once decided on
appeal in the circuit court of appeals, and in which the
judgment of that court is not made final by 6 of the act.
Section 14 of the act of 1891, after specifically repealing
691 of the Revised Statutes and 3 of the act of February
16, 1875, further provides that 'all acts and parts of acts
relating to appeals or writs of error, inconsistent with the
provisions for review by appeals or writs of error in the
preceding 5 and 6 of this act, are hereby repealed.' 26
Stat. at L. 829, 830. The object of the specific repeal, as
this court has declared, was to get rid of the pecuniary
limit in the acts referred to. McLish v. Roff, 141 U.S. 661,
667 , 35 S. L. ed. 893, 895, 12 Sup. Ct. Rep. 118. And,
although neither 692 nor 695, of the Revised Statutes is
repealed by name, yet, taking into consideration the
general repealing clause, together with the affirmative
provisions of the act, the case comes within the reason
of the decision in an analogous case, in which this court
said: 'The provisions relating to the subject-matter under
consideration are, however, so comprehensive, as well
as so variant from those of former acts, that we think the
intention to substitute the one for the other is
necessarily to be inferred, and must prevail.' Fisk v.
Henarie, 142 U.S. 459, 468 , 35 S. L. ed. 1079, 1083, 12
Sup. Ct. Rep. 207.
The decision in this court in the recent case of United
States v. Rider, 163 U.S. 132 , 41 L. ed. 101, 16 Sup. Ct.
Rep. 983, affords an important, if not controlling,
precedent. From the beginning of this century until the
passage of the act of 1891, both in civil and in criminal
cases, questions of law upon which two judges of the
circuit court were divided in opinion might be certified
by them to this court for decision. Act of April 29, 1802,
chap. 31, 6; 2 Stat. at L. 159; June 1, 1872, chap. 255, 1;
17 Stat. at L. 196; Rev. Stat. 650-652, 693, 697; New
England M. Ins. Co. v. Dunham, 11 Wall. 1, 21, 20 L. ed.
90, 96; United States v. Sanges, 144 U.S. 310, 320 , 36 S.
L. ed. 445, 449, 12 Sup. Ct. Rep. 609. But in United States
v. Rider it was adjudged by this court that the act of 1891
had superseded and repealed the earlier acts authorizing
questions of law to be certified from the circuit court to
this court; and the grounds of that adjudication
sufficiently appear by [175 U.S. 677, 685] the statement
of the effect of the act of 1891 in two passages of that
opinion: 'Appellate jurisdiction was given in all criminal
cases by writ of error either from this court or from the
circuit courts of appeals, and in all civil cases by appeal
or error, without regard to the amount in controversy,
except as to appeals or writs of error to or from the
circuit courts of appeals in cases not made final as
specified in 6.' 'It is true that repeals by implication are
not favored, but we cannot escape the conclusion that,
tested by its scope, its obvious purpose, and its terms,
the act of March 3, 1891, covers the whole subject-
matter under consideration, and furnishes the exclusive
rule in respect of appellate jurisdiction on appeal, writ of
error, or certificate.' 163 U.S. 138 -140, 41 L. ed. 104, 16
Sup. Ct. Rep. 986.
That judgment was thus rested upon two successive
propositions: First, that the act of 1891 gives appellate
jurisdiction, either to this court or to the circuit court of
appeals, in all criminal cases, and in all civil cases 'without
regard to the amount in controversy;' second, that the
act, by its terms, its scope, and its obvious purpose,
 11 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
'furnishes the exclusive rule in respect of appellate
jurisdiction on appeal, writ of error, or certificate.'
As was long ago said by Chief Justice Marshall, 'the spirit
as well as the letter of a statute must be respected, and
where the whole context of the law demonstrates a
particular intent in the legislature to effect a certain
object, some degree of implication may be called in to
aid that intent.' Durousseau v. United States, 6 Cranch,
307, 314, 3 L. ed. 232, 234. And it is a well-settled rule in
the construction of statutes, often affirmed and applied
by this court, that, 'even where two acts are not in
express terms repugnant, yet if the latter act covers the
whole subject of the first, and embraces new provisions,
plainly showing that it was intended as a substitute for
the first act, it will operate as a repeal of that act.' United
States v. Tynen, 11 Wall. 88, 92, 20 L. ed. 153, 154; King
v. Cornell, 106 U.S. 395, 396 , 27 S. L. ed. 60, 1 Sup. Ct.
Rep. 312; Tracy v. Tuffly, 134 U.S. 206, 223 , 33 S. L. ed.
879, 884, 10 Sup. Ct. Rep. 527; Fisk v. Henarie, 142 U.S.
459, 468 , 35 S. L. ed. 1079, 1083, 12 Sup. Ct. Rep. 207;
District of Columbia v. Hutton, 143 U.S. 18, 27 , 36 S. L.
ed. 60, 62, 12 Sup. Ct. Rep. 369; United States v. Healey,
160 U.S. 136, 147 , 40 S. L. ed. 369, 373, 16 Sup. Ct. Rep.
247.
We are of opinion that the act of 1891, upon its face,
read [175 U.S. 677, 686] in the light of settled rules of
statutory construction and of the decisions of this court,
clearly manifests the intention of Congress to cover the
whole subject of the appellate jurisdiction from the
district and circuit courts of the United States, so far as
regards in what cases, as well as to what courts, appeals
may be taken, and to supersede and repeal, to this
extent, all the provisions of earlier acts of Congress,
including those that imposed pecuniary limits upon such
jurisdiction, and, as part of the new scheme, to confer
upon this court jurisdiction of appeals from all final
sentences and decrees in prize causes, without regard to
the amount in dispute, and without any certificate of the
district judge as to the importance of the particular case.
We are then brought to the consideration of the
question whether, upon the facts appearing in these
records, the fishing smacks were subject to capture by
the armed vessels of the United States during the recent
war with Spain.
By an ancient usage among civilized nations, beginning
centuries ago, and gradually ripening into a rule of
international law, coast fishing vessels, pursuing their
vocation of catching and bringing in fresh fish, have been
recognized as exempt, with their cargoes and crews,
from capture as prize of war.
This doctrine, however, has been earnestly contested at
the bar; and no complete collection of the instances
illustrating it is to be found, so far as we are aware, in a
single published work although many are referred to and
discussed by the writers on international law, notable in
2 Ortolan, Regles Internationales et Diplomatie de la Mer
(4th ed.) lib. 3, chap. 2, pp. 51-56; in 4 Calvo, Droit
International (5th ed.) 2367-2373; in De Boeck, Propriete
Privee Ennemie sous Pavillon Ennemi, 191-196; and in
Hall, International Law (4th ed.) 148. It is therefore worth
the while to trace the history of the rule, from the
earliest accessible sources, through the increasing
recognition of it, with occasional setbacks, to what we
may now justly consider as its final establishment in our
own country and generally throughout the civilized
world.
The earliest acts of any government on the subject,
men- [175 U.S. 677, 687] tioned in the books, either
emanated from, or were approved by, a King of England.
In 1403 and 1406 Henry IV. issued orders to his admirals
and other officers, entitled 'Concerning Safety for
Fishermen-De Securitate pro Piscatoribus.' By an order of
October 26, 1403, reciting that it was made pursuant to
a treaty between himself and the King of France; and for
the greater safety of the fishermen of either country, and
so that they could be, and carry on their industry, the
more safely on the sea, and deal with each other in
peace; and that the French King had consented that
English fishermen should be treated likewise,-it was
ordained that French fishermen might, during the then
pending season for the herring fishery, safely fish for
herrings and all other fish, from the harbor of Gravelines
and the island of Thanet to the mouth of the Seine and
the harbor of Hautoune. And by an order of October 5,
1406, he took into his safe conduct and under his special
protection, guardianship, and defense, all and singular
the fishermen of France, Flanders, and Brittany, with
their fishing vessels and boats, everywhere on the sea,
through and within his dominions, jurisdictions, and
territories, in regard to their fishery, while sailing,
coming, and going, and, at their pleasure, freely and
lawfully fishing, delaying, or proceeding, and returning
homeward with their catch of fish, without any
molestation or hindrance whatever; and also their fish,
nets, and other property and goods soever; and it was
therefore ordered that such fishermen should not be
interfered with, provided they should comport
themselves well and properly, and should not, by color
of these presents, do or attempt, or presume to do or
attempt, anything that could prejudice the King, or his
Kingdom of England, or his subjects. 8 Rymer's Foedera,
336, 451.
The treaty made October 2, 1521, between the Emperor
Charles V. and Francis I. of France, through their
ambassadors, recited that a great and fierce war had
arisen between them, because of which there had been,
both by land and by sea, frequent depredations and
incursions on either side, to the grave detriment and
 12 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
intolerable injury of the innocent [175 U.S. 677,
688] subjects of each; and that a suitable time for the
herring fishery was at hand, and, by reason of the sea
being beset by the enemy, the fishermen did not dare to
go out, whereby the subject of their industry, bestowed
by heaven to allay the hunger of the poor, whould wholly
fail for the year, unless it were otherwise provided,-Quo
fit, ut piscaturoe commoditas, ad pauperum levandam
famen a coelesti numine concessa, cessare hoc anno
cmnino debeat, nisi aliter provideatur. And it was
therefore agreed that the subjects of each sovereign,
fishing in the sea, or exercising the calling of fishermen,
could and might, until the end of the next January,
without incurring any attack, depredation, molestation,
trouble, or hindrance soever, safely and freely,
everywhere in the sea, take herrings and every other
kind of fish, the existing war by land and sea
notwithstanding; and, further, that during the time
aforesaid no subject of either sovereign should commit,
or attempt or presume to commit, any depredation,
force, violence, molestation, or vexation to or upon such
fishermen or their vessels, supplies, equipments, nets,
and fish, or other goods soever truly appeartaining to
fishing. The treaty was made at Calais, then an English
possession. It recites that the ambassadors of the two
sovereigns met there at the earnest request of Henry
VIII. and with his countenance, and in the presence of
Cardinal Wolsey, his chancellor and representative. And
towards the end of the treaty it is agreed that the said
King and his said representative, 'by whose means the
treaty stands concluded, shall be conservators of the
agreements therein, as if thereto by both parties elected
and chosen.' 4 Dumont, Corps Diplomatique, pt. 1, pp.
352, 353.
The herring fishery was permitted, in time of war, by
French and Dutch edicts in 1536. Bynkershoek,
Quaestiones Juris Publicae, lib. 1, chap. 3; 1 Emerigon des
Assurances, chap. 4, 9; chap. 12, 19, 8.
France, from remote times, set the example of alleviating
the evils of war in favor of all coast fishermen. In the
compilation entitled 'Us et Coutumes de la Mer,'
published by Cleirac in 1661, and in the third part
thereof, containing 'Maritime or Admiralty Jurisdiction,-
la Jurisdiction de la [175 U.S. 677, 689] Marine ou d'
Admiraute-as well in time of peace, as in time of war,'
article 80 is as follows: 'The admiral may in time of war
accord fishing truces-tresves pescheresses-to the enemy
and to his subjects; provided that the enemy will likewise
accord them to Frenchmen.' Cleirac, 544. Under this
article, reference is made to articles 49 and 79
respectively of the French ordinances concerning the
admiralty in 1543 and 1584, of which it is but a
reproduction. 4 Pardessus, Collection de Lois Maritimes,
319; 2 Ortolan, 51. And Cleirac adds, in a note, this
quotation from Froissart's Chronicles: 'Fishermen on the
sea, whatever war there were in France and England,
never did harm to one another; so they are friends, and
help one another at need,-Pescheurs sur mer, quelque
guerre qui soit en France et Angleterre, jamais ne se
firent mal l'un a l'autre; aincois sont amis, et s'aydent l'un
a l'autre au besoin.'
The same custom would seem to have prevailed in
France until towards the end of the seventeenth century.
For example, in 1675, Louis XIV. and the States General
of Holland by mutual agreement granted to Dutch and
French fishermen the liberty, undisturbed by their
vessels of war, of fishing along the coats of France,
Holland, and England. D'Hauterive et De Cussy, Traites de
Commerce, pt. 1, vol. 2, p. 278. But by the ordinances of
1681 and 1692 the practice was discontinued, because,
Valin says, of the faithless conduct of the enemies of
France, who, abusing the good faith with which she had
always observed the treaties, habitually carried off her
fishermen, while their own fished in safety. 2 Valin sur
l'Ordonnance de la Marine (1776) 689, 690; 2 Ortolan,
52; De Boeck, 192.
The doctrine which exempts coast fishermen, with their
vessels and cargoes, from capture as prize of war, has
been familiar to the United States from the time of the
War of Independence.
On June 5, 1779, Louis XVI., our ally in that war,
addressed a letter to his admiral, informing him that the
wish he had always had of alleviating, as far as he could,
the hardships of war, had directed his attention to that
class of his subjects [175 U.S. 677, 690] which devoted
itself to the trade of fishing, and had no other means of
livelihood; that he had thought that the example which
he should give to his enemies, and which could have no
other source than the sentiments of humanity which
inspired him, would determine them to allow to
fishermen the same facilities which he should consent to
grant; and that he had therefore given orders to the
commanders of all his ships not to disturb English
fishermen, nor to arrest their vessels laden with fresh
fish, even if not caught by those vessels; provided they
had no offensive arms, and were not proved to have
made any signals creating a suspicion of intelligence with
the enemy; and the admiral was directed to
communicate the King's intentions to all officers under
his control. By a royal order in council of November 6,
1780, the former orders were confirmed; and the
capture and ransom, by a French cruiser, of The John and
Sarah, an English vessel, coming from Holland, laden with
fresh fish, were pronounced to be illegal. 2 Code des
Prises (ed. 1784) 721, 901, 903.
Among the standing orders made by Sir James Marriott,
Judge of the English High Court of Admiralty, was one of
April 11, 1780, by which it was 'ordered that all causes of
prize of fishing boats or vessels taken from the enemy
 13 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
may be consolidated in one monition, and one sentence
or interlocutory, if under 50 tons burthen, and not more
than 6 in number.' Marriott's Formulary, 4. But by the
statements of his successor, and of both French and
English writers, it apears that England, as well as France,
during the American Revolutionary War, abstained from
interfering with the coast fisheries. The Young Jacob and
Johanna, 1 C. Rob. 20; 2 Ortolan, 53; Hall, 148.
In the treaty of 1785 between the United States and
Prussia, article 23 (which was proposed by the American
Commissioners, John Adams, Benjamin Franklin, and
Thomas Jefferson, and is said to have been drawn up by
Franklin), provided that, if war should arise between the
contracting parties, 'all women and children, scholars of
every faculty, cultivators of the earth, artisans,
manufacturers, and fishermen, [175 U.S. 677,
691] unarmed and inhabiting unfortified towns,
villages, or places, and in general all others whose
occupations are for the common subsistence and benefit
of mankind, shall be allowed to continue their respective
employments, and shall not be molested in their
persons, nor shall their houses or goods be burnt or
otherwise destroyed, nor their fields wasted by the
armed force of the enemy, into whose power, by the
events of war, they may happen to fall; but if anything is
necessary to be taken from them for the use of such
armed force, the same shall be paid for at a reasonable
price.' 8 Stat. at L. 96; 1 Kent, Com. 91, note; Wheaton,
History of the Law of Nations, 306, 308. Here was the
clearest exemption from hostile molestation or seizure
of the persons, occupations, houses, and goods of
unarmed fishermen inhabiting unfortified places. The
article was repeated in the later treaties between the
United States and Prussia of 1799 and 1828. 8 Stat. at L.
174, 384. And Dana, in a note to his edition of Wheaton's
International Laws, says: 'In many treaties and decrees,
fishermen catching fish as an article of food are added to
the class of persons whose ocupation is not to be
disturbed in war.' Wheaton, International Law (8th ed.)
345, note 168.
Since the United States became a nation, the only serious
interruptions, so far as we are informed, of the general
recognition of the exemption of coast fishing vessels
from hostile capture, arose out of the mutual suspicions
and recriminations of England and France during the
wars of the French Revolution.
In the first years of those wars, England having
authorized the capture of French fishermen, a decree of
the French National Convention of October 2, 1793,
directed the executive power 'to protest against this
conduct, theretofore without example; to reclaim the
fishing boats seized; and, in case of refusal, to resort to
reprisals.' But in July, 1796, the Committee of Public
Safety ordered the release of English fishermen seized
under the former decree, 'not considering them as
prisoners of war.' La Nostra Segnora de la Piedad (1801)
cited below; 2 De Cussy, Droit Maritime, 164, 165; 1
Masse, Droit Commercial (2d ed.) 266, 267. [175 U.S.
677, 692] On January 24, 1798, the English government
by express order instructed the commanders of its ships
to seize French and Dutch fishermen with their boats. 6
Martens, Recueil des Traites (2d ed.) 505; 6 Schoell,
Histoire des Traites, 119; 2 Ortolan, 53. After the
promulgation of that order, Lord Stowell (then Sir
William Scott) in the High Court of Admiralty of England
condemned small Dutch fishing vessels as prize of war. In
one case the capture was in April, 1798, and the decree
was made November 13, 1798. The Young Jacob and
Johanna, 1 C. Rob. 20. In another case the decree was
made August 23, 1799. The Noydt Gedacht, 2 C. Rob.
137, note.
For the year 1800 the orders of the English and French
governments and the correspondence between them
may be found in books already referred to. 6 Martens,
503-512; 6 Schoell, 118-120; 2 Ortolan, 53, 54. The
doings for that year may be summed up as follows: On
March 27, 1800, the French government, unwilling to
resort to reprisals, re-enacted the orders given by Louis
XVI. in 1780, above mentioned, prohibiting any seizure
by the French ships of English fishermen, unless armed
or proved to have made signals to the enemy. On May
30, 1800, the English government, having received notice
of that action of the French government, revoked its
order of January 24, 1798. But soon afterward the English
government complained that French fishing boats had
been made into fireboats at Flushing, as well as that the
French government had impressed and had sent to Brest,
to serve in its flotilla, French fishermen and their boats,
even those whom the English had released on condition
of their not serving; and on January 21, 1801, summarily
revoked its last order, and again put in force its order of
January 24, 1798. On February 16, 1801, Napoleon
Bonaparte, then First Consul, directed the French
commissioner at London to return at once to France, first
declaring to the English government that its conduct,
'contrary to all the usages of civilized nations, and to the
common law which governs them, even in time of war,
gave to the existing war a character of rage and
bitterness which destroyed even the relations usual in a
loyal war,' [175 U.S. 677, 693] AND 'TENDED ONLY TO
EXASPERATE THE TWO nations, and to put off the term
of peace;' and that the French government, having
always made it 'a maxim to alleviate as much as possible
the evils of war, could not think, on its part, of rendering
wretched fishermen victims of a prolongation of
hostilities, and would abstain from all reprisals.'
On March 16, 1801, the Addington Ministry, having come
into power in England, revoked the orders of its
predecessors against the French fishermen; maintaining,
however, that 'the freedom of fishing was nowise
 14 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
founded upon an agreement, but upon a simple
concession;' that 'this concession would be always
subordinate to the convenience of the moment,' and
that 'it was never extended to the great fishery, or to
commerce in oysters or in fish.' And the freedom of the
coast fisheries was again allowed on both sides. 6
Martens, 514; 6 Schoell, 121; 2 Ortolan, 54; Manning,
Law of Nations (Amos's ed.) 206.
Lord Stowell's judgment in The Young Jacob and
Johanna, 1 C. Rob. 20, above cited, was much relied on
by the counsel for the United States, and deserves
careful consideration.
The vessel there condemned is described in the report as
'a small Dutch fishing vessel taken April, 1798, on her
return from the Dogger bank to Holland;' and Lord
Stowell, in delivering judgment, said: 'In former wars it
has not been usual to make captures of these small
fishing vessels; but this rule was a rule of comity only, and
not of legal decision; it has prevailed from views of
mutual accommodation between neighboring countries,
and from tenderness to a poor and industrious order of
people. In the present war there has, I presume, been
sufficient reason for changing this mode of treatment;
and as they are brought before me for my judgment they
must be referred to the general principles of this court;
they fall under the character and description of the last
class of cases; that is, of ships constantly and exclusively
employed in the enemy's trade.' And he added: 'It is a
further satisfaction to me, in giving this judgment, to
observe that the facts also bear strong marks of a false
and fraudulent transaction.' [175 U.S. 677, 694] Both
the capture and the condemnation were within a year
after the order of the English government of January 24,
1798, instructing the commanders of its ships to seize
French and Dutch fishing vessels, and before any
revocation of that order. Lord Stowell's judgment shows
that his decision was based upon the order of 1798, as
well as upon strong evidence of fraud. Nothing more was
adjudged in the case.
But some expressions in his opinion have been given so
much weight by English writers that it may be well to
examine them particularly. The opinion begins by
admitting the known custom in former wars not to
capture such vessels; adding, however, 'but this was a
rule of comity only, and not of legal decision.' Assuming
the phrase 'legal decision' to have been there used, in the
sense in which courts are accustomed to use it, as
equivalent to 'judicial decision,' it is true that, so far as
appears, there had been no such decision on the point in
England. The word 'comity' was apparently used by Lord
Stowell as synonymous with courtesy or goodwill. But
the period of a hundred years which has since elapsed is
amply sufficient to have enabled what originally may
have rested in custom or comity, courtesy or concession,
to grow, by the general assent of civilized nations, into a
settled rule of international law. As well said by Sir James
Mackintosh: 'In the present century a slow and silent, but
very substantial, mitigation has taken place in the
practice of war; and in proportion as that mitigated
practice has received the sanction of time it is raised
from the rank of mere usage, and becomes part of the
law of nations.' Discourse on the Law of Nations, 38; 1
Miscellaneous Works, 360.
The French prize tribunals, both before and after Lord
Stowell's decision, took a wholly different view of the
general question. In 1780, as already mentioned, an
order in council of Louis XVI. had declared illegal the
capture by a French cruiser of The John and Sarah, an
English vessel coming from Holland, laden with fresh fish.
And on May 17, 1801, where a Portuguese fishing vessel,
with her cargo of fish, having no more crew than was
needed for her management and for serving the nets, on
a trip of several days, had been capt- [175 U.S. 677,
695] ured in April, 1801, by a French cruiser, 3 leagues
off the coast of Portugal, the Council of Prizes held that
the capture was contrary to 'the principles of humanity
and the maxims of international law,' and decreed that
the vessel, with the fish on board, or the net proceeds of
any that had been sold, should be restored to her master.
La Nostra Segnora de la Piedad, 25 Merlin,
Jurisprudence, Prise Maritime, 3, arts. 1, 3; S. C. 1 Pistoye
et Duverdy, Prises Maritimes, 331; 2 De Cussy, Droit
Maritime, 166.
The English government, soon afterwards, more than
once unqualifiedly prohibited the molestation of fishing
vessels employed in catching and bringing to market
fresh fish. On May 23, 1806, it was 'ordered in council
that all fishing vessels under Prussian and other colors,
and engaged for the purpose of catching fish and
conveying them fresh to market, with their crews,
cargoes, and stores, shall not be molested on their
fishing voyages and bringing the same to market; and
that no fishing vessels of this description shall hereafter
be molested. And the Right Honorable the Lords
Commissioners of His Majesty's Treasury, the Lords
Commissioners of the Admiralty, and the Judge of the
High Court of Admiralty, are to give the necessary
directions herein as to them may respectively appertain.'
5 C. Rob. 408. Again, in the order in council of May 2,
1810, which directed that 'all vessels which shall have
cleared out from any port so far under the control of
France or her allies as that British vessels may not freely
trade thereat, and which are employed in the whale
fishery, or other fishery of any description, save as
hereinafter excepted, and are returning, or destined to
return either to the port from whence they cleared, or to
any other port or place at which the British flag may not
freely trade, shall be captured and condemned together
with their stores and cargoes, as prize to the captors,'
there were excepted 'vessels employed in catching and
 15 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
conveying fish fresh to market, such vessels not being
fitted or provided for the curing of fish.' Edw. Adm. appx.
L.
Wheaton, in his Digest of the Law of Maritime Captures
and Prizes, published in 1815, wrote: 'It has been
usual[175 U.S. 677, 696] in maritime wars to exempt
from capture fishing boats and their cargoes, both from
views of mutual accommodation between neighboring
countries, and from tenderness to a poor and industrious
order of people. This custom, so honorable to the
humanity of civilized nations, has fallen into disuse; and
it is remarkable that both France and England mutually
reproach each other with that breach of good faith which
has finally abolished it.' Wheaton, Captures, chap. 2, 18.
This statement clearly exhibits Wheaton's opinion that
the custom had been a general one, as well as that it
ought to remain so. His assumption that it had been
abolished by the differences between France and
England at the close of the last century was hardly
justified by the state of things when he wrote, and has
not since been borne out.
During the wars of the French Empire, as both French and
English writers agree, the coast fisheries were left in
peace. 2 Ortolan, 54; De Boeck, 193; Hall, 148. De Boeck
quaintly and truly adds, 'and the incidents of 1800 and of
1801 had no morrow,-n'eurent pas de lendemain.'
In the war with Mexico, in 1846, the United States
recognized the exemption of coast fishing boats from
capture. In proof of this, counsel have referred to records
of the Navy Department, which this court is clearly
authorized to consult upon such a question. Jones v.
United States, 137 U.S. 202 , 34 L. ed. 691, 11 Sup. Ct.
Rep. 80; Underhill v. Hernandez, 168 U.S. 250, 253 , 42 S.
L. ed. 456, 457, 18 Sup. Ct. Rep. 83.
By those records it appears that Commodore Conner,
commanding the Home Squadron blockading the east
coast of Mexico, on May 14, 1846, wrote a letter from
the ship Cumberland, off Brazos Santiago, near the
southern point of Texas, to Mr. Bancroft, the Secretary
of the Navy, inclosing a copy of the commodore's
'instructions to the commanders of the vessels of the
Home Squadron, showing the principles to be observed
in the blockade of the Mexican ports,' one of which was
that 'Mexican boats engaged in fishing on any part of the
coast will be allowed to pursue their labors unmolested;'
and that on June 10, 1846, those instructions were
approved by the Navy Department, of which Mr.
Bancroft was still the head, and continued to be until he
was appointed Minister to [175 U.S. 677, 697] England
in September following. Although Commodore Conner's
instructions and the Department's approval thereof do
not appear in any contemporary publication of the
government, they evidently became generally known at
the time, or soon after; for it is stated in several treatises
on international law (beginning with Ortolan's second
edition, published in 1853) that the United States in the
Mexican war permitted the coast fishermen of the
enemy to continue the free exercise of their industry. 2
Ortolan (2d ed.) 49, note; (4th ed.) 55; 4 Calvo (5th ed.)
2372; De Boeck, 194; Hall (4th ed.) 148.
As qualifying the effect of those statements, the counsel
for the United States relied on a proclamation of
Commodore Stockton, commanding the Pacific
Squadron, dated August 20, 1846, directing officers
under his command to proceed immediately to blockade
the ports of Mazatlan and San Blas, on the west coast of
Mexico, and saying to them, 'All neutral vessels that you
may find there you will allow twenty days to depart; and
you will make the blockade absolute against all vessels,
except armed vessels of neutral nations. You will capture
all vessels under the Mexican flag that you may be able
to take.' Navy Reports of 1846, pp. 673, 674. But there is
nothing to show that Commodore Stockton intended, or
that the government approved, the capture of coast
fishing vessels.
On the contrary, General Halleck, in the preface to his
work on International Law, or Rules Regulating the
Intercourse of States in Peace and War, published in
1861, says that he began that work, during the war
between the United States and Mexico, 'while serving on
the staff of the commander of the Pacific Squadron' and
'often required to give opinions on questions of
international law growing out of the operations of the
war.' Had the practice of the blockading squadron on the
west coast of Mexico during that war, in regard to fishing
vessels, differed from that approved by the Navy
Department on the east coast, General Halleck could
hardly have failed to mention it, when stating the
prevailing doctrine upon the subject as follows: [175 U.S.
677, 698] 'Fishing boats have also, as a general rule,
been exempted from the effects of hostilities. As early as
1521, while war was raging between Charles V. and
Francis, ambassadors from these two sovereigns met at
Calais, then English, and agreed that, whereas the
herring fishery was about to commence, the subjects of
both belligerents engaged in this pursuit should be safe
and unmolested by the other party, and should have
leave to fish as in time of peace. In the war of 1800, the
British and French governments issued formal
instructions exempting the fishing boats of each other's
subjects from seizure. This order was subsequently
rescinded by the British government, on the alleged
ground that some French fishing boats were equipped as
gunboats, and that some French fishermen who had
been prisoners in England had violated their parole not
to serve, and had gone to join the French fleet at Brest.
Such excuses were evidently mere pretexts; and after
some angry discussions had taken place on the subject
 16 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
the British restriction was withdrawn, and the freedom
of fishing was again allowed on both sides. French writers
consider this exemption as an established principle of the
modern law of war, and it has been so recognized in the
French courts, which have restored such vessels when
captured by French cruisers.' Halleck (1st ed.) chap. 20,
23.
That edition was the only one sent out under the author's
own auspices, except an abridgment, entitled 'Elements
of International Law and the Law of War,' which he
published in 1866, as he said in the preface, to supply a
suitable text-book for instruction upon the subject, 'not
only in our colleges, but also in our two great national
schools,-the Military and Naval Academies.' In that
abridgment the statement as to fishing boats was
condensed as follows: 'Fishing boats have also, as a
general rule, been exempted from the effects of
hostilities. French writers consider this exemption as an
established principle of the modern law of war, and it has
been so recognized in the French courts, which have
restored such vessels when captured by French cruisers.'
Halleck's Elements, chap. 20, 21.
In the treaty of peace between the United States and
Mex- [175 U.S. 677, 699] ico, in 1848, were inserted the
very words of the earlier treaties with Prussia, already
quoted, forbidding the hostile molestation or seizure in
time of war of the persons, occupations, houses, or
goods of fishermen. 9 Stat. at L. 939, 940.
Wharton's Digest of the International Law of the United
States, published by authority of Congress in 1886 and
1887, embodies General Halleck's fuller statement,
above quoted, and contains nothing else upon the
subject. 3 Whart. Int. Law Dig. 345, p. 315; 2 Halleck (Eng.
eds. 1873 and 1878) p. 151.
France in the Crimean war in 1854, and in her wars with
Italy in 1859 and with Germany in 1870, by general
orders, forbade her cruisers to trouble the coast
fisheries, or to seize any vessel or boat engaged therein,
unless naval or military operations should make it
necessary. Calvo, 2372; Hall, 148; 2 Ortolan (4th ed.) 449;
10 Revue de Droit Interantional (1878) 399. Revne de
Droit International (1878) 399. her alliance with France
and Italy, England did not follow the same line of
conduct; and that her cruisers in the Sea of Azof
destroyed the fisheries, nets, fishing implements,
provisions, boats, and even the cabins of inhabitants of
the coast. Calvo, 2372. And a Russian writer on prize law
remarks that those depredations, 'having brought ruin
on poor fishermen and inoffensive traders, could not but
leave a painful impression on the minds of the
population, without impairing in the least the resources
of the Russian government.' Katchenovsky (Pratt's ed.)
148. But the contemporaneous reports of the English
naval officers put a different face on the matter, by
stating that the destruction in question was part of a
military measure, conducted with the co-operation of
the French ships, and pursuant to instructions of the
English admiral 'to clear the seaboard of all fish stores, all
fisheries and mills, on a scale beyond the wants of the
neighboring population, and indeed of all things destined
to contribute to the maintenance of the enemy's army in
the Crimea;' and that the property destroyed consisted
of large fishing establishments and storehouses of the
Russian government, numbers of heavy launches, and
enormous quantities of nets and gear, salted fish,
corn, [175 U.S. 677, 700] and other provisions intended
for the supply of the Russian army. United Service
Journal of 1855, pt. 3, pp. 108-112.
Since the English orders in council of 1806 and 1810,
before quoted, in favor of fishing vessels employed in
catching and bringing to market fresh fish, no instance
has been found in which the exemption from capture of
private coast fishing vessels honestly pursuing their
peaceful industry has been denied by England or by any
other nation. And the Empire of Japan ( the last state
admitted into the rank of civilized nations), by an
ordinance promulgated at the beginning of its war with
China in August, 1894, established prize courts, and
ordained that 'the following enemy's vessels are exempt
from detention,' including in the exemption 'boats
engaged in coast fisheries,' as well as 'ships engaged
exclusively on a voyage of scientific discovery,
philanthrophy, or religious mission.' Takahashi,
International Law, 11, 178.
International law is part of our law, and must be
ascertained and administered by the courts of justice of
appropriate jurisdiction as often as questions of right
depending upon it are duly presented for their
determination. For this purpose, where there is no treaty
and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages
of eivilized nations, and, as evidence of these, to the
works of jurists and commentators who by years of labor,
research, and experience have made themselves
peculiarly well acquainted with the subjects of which
they treat. Such works are resorted to by judicial
tribunals, not for the speculations of their authors
concerning what the law ought to be, but for trustworthy
evidence of what the law really is. Hilton v. Guyot, 159
U.S. 113, 163 , 164 S., 214, 215, 40 L. ed. 95, 108, 125,
126, 16 Sup. Ct. Rep. 139.
Wheaton places among the principal sourees
international law 'text- writers of authority, showing
what is the approved usage of nations, or the general
opinion respecting their mutual conduct, with the
definitions and modifications introduced by general
consent.' As to these he forcibly observes: 'Without
wishing to exaggerate the importance of these writers,
or to substitute, in any case, their authority for the
 17 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
principles of reason, it may be affirmed that they are
gen- [175 U.S. 677, 701] erally impartial in their
judgment. They are witnesses of the sentiments and
usages of civilized nations, and the weight of their
testimony increases every time that their authority is
invoked by statesmen, and every year that passes
without the rules laid down in their works being
impugned by the avowal of contrary principles.'
Wheaton, International Law ( 8th ed.), 15.
Chancellor Kent says: 'In the absence of higher and more
authoritative sanctions, the ordinances of foreign states,
the opinions of eminent statesmen, and the writings of
distinguished jurists, are regarded as of great
consideration on questions not settled by conventional
law. In cases where the principal jurists agree, the
presumption will be very great in favor of the solidity of
their maxims; and no civilized nation that does not
arrogantly set all ordinary law and justice at defiance will
venture to disregard the uniform sense of the
established writers on international law.' 1 Kent, Com.
18.
It will be convenient, in the first place, to refer to some
leading French treatises on international law, which deal
with the question now before us, not as one of the law
of France only, but as one determined by the general
consent of civilized nations.
'Enemy ships,' say Pistoye and Duverdy, in their Treatise
on Maritime Prizes, published in 1855, 'are good prize.
Not all, however; for it results from the unanimous
accord of the maritime powers that an exception should
be made in favor of coast fishermen. Such fishermen are
respected by the enemy so long as they devote
themselves exclusively to fishing.' 1 Pistoye et Duverdy,
tit. 6, chap. 1, p. 314.
De Cussy, in his work on the Phases and Leading Cases of
the Maritime Law of Nations,-Phases et Causes Celebres
du Droit Maritime des Nations,- published in 1856,
affirms in the clearest language the exemption from
capture of fishing boats, saying, in lib. 1, tit. 3, 36, that 'in
time of war the freedom of fishing is respected by
belligerents; fishing boats are considered as neutral; in
law, as in principle, they are not subject either to capture
or to confiscation;' and that in lib. 2, chap. 20, he will
state 'several facts and several decisions [175 U.S. 677,
702] which prove that the perfect freedom and
neutrality of fishing boats are not illusory.' 1 De Cussy, p.
291. And in the chapter so referred to, entitled De la
Liberte et de la Neutralite Parfaite de la Peche, besides
references to the edicts and decisions in France during
the French Revolution, is this general statement: 'If one
consulted only positive international law,'-le droit des
gens positif,-(by which is evidently meant international
law expressed in treaties, decrees, or other public acts,
as distinguished from what may be implied from custom
or usage) 'fishing boats would be subject, like all other
trading vessels, to the law of prize; a sort of tacit
agreement among all European nations frees them from
it, and several official declarations have confirmed this
privilege in favor of 'a class of men whose hard and ill-
rewarded labor, commonly performed by feeble and
aged hands, is so foreign to the operations of war.' 2 De
Cussy, 164, 165.
Ortolan, in the fourth edition of his Regles
Internationales et Diplomatie de la Mer, published in
1864, after stating the general rule that the vessels and
cargoes of subjects of the enemy are lawful prize, says:
'Nevertheless, custom admits an exception in favor of
boats engaged in the coast fishery; these boats, as well
as their crews, are free from capture and exempt from all
hostilities. The coast-fishing industry is, in truth, wholly
pacific, and of much less importance in regard to the
national wealth that it may produce than maritime
commerce or the great fisheries. Peaceful and wholly
inoffensive, those who carry it on, among whom women
are often seen, may be called the harvesters of the
territorial seas, since they confine themselves to
gathering in the products thereof; they are for the most
part poor families who seek in this calling hardly more
than the means of gaining their livelihood.' 2 Ortolan, 51.
Again, after observing that there are very few solemn
public treaties which make mention of the immunity of
fishing boats in time of war, he says: 'From another point
of view the custom which sanctions this immunity is not
so general that it can be considered as making an
absolute international rule; but it has been so often put
in practice, and, besides, it accords so well with the rule
in use in wars on [175 U.S. 677, 703] land, in regard to
peasants and husbandmen, to whom coast fishermen
may be likened, that it will doubtless continue to be
followed in maritime wars to come.' 2 Ortolan, 55.
No international jurist of the present day has a wider or
more deserved reputation than Calvo, who, though
writing in French, is a citizen of the Argentine Republic,
employed in its diplomatic service abroad. In the fifth
edition of his great work on international law, published
in 1896, he observes, in 2366, that the international
authority of decisions in particular cases by the prize
courts of France, of England, and of the United States is
lessened by the fact that the principles on which they are
based are largely derived from the internal legislation of
each country; and yet the peculiar character of maritime
wars, with other considerations, gives to prize
jurisprudence a force and importance reaching beyond
the limits of the country in which it has prevailed. He
therefore proposes here to group together a number of
particular cases proper to serve as precedents for the
solution of grave questions of maritime law in regard to
the capture of private property as prize of war.
Immediately, in 2367, he goes on to say:
 18 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
'Notwithstanding the hardships to which maritime wars
subject private property, notwithstanding the extent of
the recognized rights of belligerents, there are generally
exempted, from seizure and capture, fishing vessels.' In
the next section he adds: 'This exception is perfectly
justiciable,-Cette exception est parfaitement
justiciable,'-that is to say, belonging to judicial
jurisdiction or cognizance. Littre, Dist. voc. Justiciable;
Hans v. Louisiana, 134 U.S. 1, 15 , 33 S. L. ed. 842, 847, 10
Sup. Ct. Rep. 504. Calvo then quotes Ortolan's
description, above cited, of the nature of the coast-
fishing industry; and proceeds to refer, in detail, to some
of the French precedents, to the acts of the French and
English governments in the times of Louis XVI. and of the
French Revolution, to the position of the United States in
the war with Mexico, and of France in later wars, and to
the action of British cruisers in the Crimean war. And he
concludes his discussion of the subject, in 2373, by
affirming the exemption of the coast fishery, and
pointing out the distinction in this regard between the
coast fishery and [175 U.S. 677, 704] what he calls the
great fishery, for cod, whales, or seals, as follows: 'The
privilege of exemption from capture, which is generally
acquired by fishing vessels plying their industry near the
coasts, is not extended in any country to ships employed
on the high sea in what is called the great fishery, such as
that for the cod, for the whale or the sperm whale, or for
the seal or sea calf. These ships are, in effect, considered
as devoted to operations which are at once commercial
and industrial,-Ces navires sont en effect consideres
comme adonnes a des operations a la fois commerciales
et industrielles.' The distinction is generally recognized.
2 Ortolan, 54; De Boeck, 196; Hall, 148. See also The Susa,
2 C. Rob. 251; The Johan, Edw. Adm. 275, and appx. L.
The modern German books on international law, cited by
the counsel for the appellants, treat the custom by which
the vessels and implements of coast fishermen are
exempt from seizure and capture as well established by
the practice of nations. Heffter, 137; 2 Kalterborn, 237,
p. 480; Bluntschli, 667; Perels, 37, p. 217.
De Boeck, in his work on Enemy Private Property under
Enemy's Flag,- De la Propriete Privee Ennemie sous
Pavillon Ennemi,-published in 1882, and the only
continental treatise cited by the counsel for the United
States, says in 191: 'A usage very ancient, if not universal,
withdraws from the right of capture enemy vessels
engaged in the coast fishery. The reason of this exception
is evident; it would have been too hard to snatch from
poor fishermen the means of earning their bread. . . . The
exemption includes the boats, the fishing implements,
and the cargo of fish.' Again, in 195: 'It is to be observed
that very few treatises sanction in due form this
immunity of the coast fishery. . . . There is, then, only a
custom. But what is its character? Is it so fixed and
general that it can be raised to the rank of a positive and
formal rule of international law?' After discussing the
statements of other writers, he approves the opinion of
Ortolan (as expressed in the last sentence above quoted
from his work), and says that, at bottom, it differs by a
shade only from that formulated by Calvo and by some
of the German jurists, and that 'it is more exact, [175 U.S.
677, 705] without ignoring the imperative character of
the humane rule in question,- elle est plus exacte, sans
meconnaitre le caractere imperatif de la regle
d'humanite dont il s'agit.' And in 196 he defines the limits
of the rule as follows: 'But the immunity of the coast
fishery must be limited by the reasons which justify it.
The reasons of humanity and of harmlessness-les raisons
d'humanite et d'innocuite-which militate in its favor do
not exist in the great fishery, such as the cod fishery;
ships engaged in that fishery devote themselves to truly
commercial operations, which employ a large number of
seamen. And these same reasons cease to be applicable
to fishing vessels employed for a warlike purpose, to
those which conceal arms, or which exchange signals of
intelligence with ships of war; but only those taken in the
fact can be rigorously treated; to allow seizure by way of
preventive would open the door to every abuse, and
would be equivalent to a suppression of the immunity.'
Two recent English text-writers cited at the bar
(influenced by what Lord Stowell said a cantury since)
hesitate to recognize that the exemption of coast fishing
vessels from capture has now become a settled rule of
international law. Yet they both admit that there is little
real difference in the views, or in the practice, of England
and of other maritime nations; and that no civilized
nation at the present day would molest coast fishing
vessels so long as they were peaceably pursuing their
calling and there was no danger that they or their crews
might be of military use to the enemy. Hall, in 148 of the
fourth edition of his Treatise on International Law, after
briefly sketching the history of the positions occupied by
France and England at different periods, and by the
United States in the Mexican war, goes on to say: 'In the
foregoing facts there is nothing to show that much real
difference has existed in the practice of the maritime
countries. England does not seem to have been unwilling
to spare fishing vessels so long as they are harmless, and
it does not appear that any state has accorded them
immunity under circumstances of inconvenience to
itself. It is likely that all nations would now refrain from
molesting them as a general rule, and would cap- [175
U.S. 677, 706] ture them so soon as any danger arose
that they or their crews might be of military use to the
enemy; and it is also likely that it is impossible to grant
them a more distinct exemption.' So, T. J. Lawrence, in
206 of his Principles of International Law, says: 'The
difference between the English and the French view is
more apparent than real; for no civilized belligerent
would now capture the boats of fishermen plying their
avocation peaceably in the territorial waters of their own
 19 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
state; and no jurist would seriously argue that their
immunity must be respected if they were used for
warlike purposes, as were the smacks belonging to the
northern ports of France when Great Britain gave the
order to capture them in 1800.'
But there are writers of various maritime countries, not
yet cited, too important to be passed by without notice.
Jan Helenus Ferguson, Netherlands Minister to China,
and previously in the naval and in the colonial service of
his country, in his Manual of International Law for the
Use of Navies, Colonies, and Consulates, published in
1882, writes: 'An exception to the usage of capturing
enemy's private vessels at sea is the coast fishery. . . . This
principle of immunity from capture of fishing boats is
generally adopted by all maritime powers, and in actual
warfare they are universally spared so long as they
remain harmless.' 2 Ferguson, 212.
Ferdinand Attlmayr, captain in the Austrian Navy, in his
Manual for Naval Officers, published at Vienna in 1872
under the auspices of Admiral Tegetthoff, says:
'Regarding the capture of enemy property, an exception
must be mentioned, which is a universal custom. Fishing
vessels which belong to the adjacent coast, and whose
business yields only a necessary livelihood, are, from
considerations of humanity, universally excluded from
capture.' 1 Attlmayr, 61.
Ignacio de Megrin, First Official of the Spanish Board of
Admiralty, in his Elementary Treatise on Maritime
International Law, adopted by royal order as a text-book
in the naval schools of Spain, and published at Madrid in
1873, concludes his chapter 'Of the lawfulness of prizes'
with these words: 'It remains to be added that the
custom of all civilized peoples excludes from capture and
from all kind of hostility the [175 U.S. 677, 707] fishing
vessels of the enemy's coasts, considering this industry
as absolutely inoffensive, and deserving, from its
hardships and usefulness, of this favorable exception. It
has been thus expressed in very many international
conventions, so that it can be deemed an incontestable
principle of law, at least among enlightened nations.'
Negrin, tit. 3, chap. 1, 310.
Carlos Testa, captain in the Portugese Navy and
professor in the naval school at Lisbon, in his work on
Public International Law, published in French at Paris in
1886, when discussing the general right of capturing
enemy ships, says: 'Nevertheless, in this, customary law
establishes an exception of immunity in favor of coast
fishing vessels. Fishing is so peaceful an industry, and is
generally carried on by so poor and so hardworking a
class of men, that it is likened, in the territorial waters of
the enemy's country, to the class of husbandmen who
gather the fruits of the earth for their livelihood. The
examples and practice generally followed establish this
humane and beneficent exception as an international
rule, and this rule may be considered as adopted by
customary law and by all civilized nations.' Testa, pt. 3,
chap. 2, in 18 Bibliotheque International et
Diplomatique, pp. 152, 153.
No less clearly and decisively speaks the distinguished
Italian jurist, Pasquale Fiore, in the enlarged edition of his
exhaustive work on Public International Law, published
at Paris in 1885-6, saying: 'The vessels of fishermen have
been generally declared exempt from confiscation,
because of the eminently peaceful object of their humble
industry, and of the principles of equity and humanity.
The exemption includes the vessel, the implements of
fishing, and the cargo resulting from the fishery. This
usage, eminently humane, goes back to very ancient
times; and although the immunity of the fishery along
the coasts may not have been sanctioned by treaties, yet
it is considered to-day as so defintely established that the
inviolability of vessels devoted to that fishery is
proclaimed by the publicists as a positive rule of
international law, and is generally respected by the
nations. Consequently we shall lay down the following
rule: (a) Vessels belonging to citizens of the enemy state,
and devoted to fish- [175 U.S. 677, 708] ing along the
coasts, cannot be subject to capture; (b) Such vessels,
however, will lose all right of exemption, when employed
for a warlike purpose; (c) there may, nevertheless, be
subjected to capture vessels devoted to the great fishery
in the ocean, such as those employed in the whale
fishery, or in that for seals or sea calves.' 3 Fiore, 1421
This review of the precedents and authorities on the
subject appears to us abundantly to demonstrate that at
the present day, by the general consent of the civilized
nations of the world, and independently of any express
treaty or other public act, it is an established rule of
international law, founded on considerations of
humanity to a poor and industrious order of men, and of
the mutual convenience of belligerent states, that coast
fishing vessels, with their implements and supplies,
cargoes and crews, unarmed and honestly pursuing their
peaceful calling of catching and bringing in fresh fish, are
exempt from capture as prize of war.
The exemption, of course, does not apply to coast
fishermen or their vessels if employed for a warlike
purpose, or in such a way as to give aid or information to
the enemy; nor when military or naval operations create
a necessity to which all private interests must give way.
Nor has the exemption been extended to ships or vessels
employed on the high sea in taking whales or seals or cod
or other fish which are not brought fresh to market, but
are salted or otherwise cured and made a regular article
of commerce.
 20 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
This rule of international law is one which prize courts
administering the law of nations are bound to take
judicial notice of, and to give effect to, in the absence of
any treaty or other public act of their own government in
relation to the matter.
Calvo, in a passage already quoted, distinctly affirms that
the exemption of coast fishing vessels from capture is
perfectly justiciable, or, in other words, of judicial
jurisdiction or cognizance. Calvo, 2368. Nor are judicial
precedents wanting in support of the view that this
exemption, or a somewhat analogous one, should be
recognized and declared by a prize court. [175 U.S. 677,
709] By the practice of all civilized nations, vessels
employed only for the purposes of discovery or science
are considered as exempt from the contingencies of war,
and therefore not subject to capture. It has been usual
for the government sending out such an expedition to
give notice to other powers; but it is not essential. 1 Kent,
Com. 91, note; Halleck, chap. 20, 22; Calvo, 2376; Hall,
138.
In 1813, while the United States were at war with
England, an American vessel on her voyage from Italy to
the United States was captured by an English ship, and
brought into Halifax, in Nova Scotia, and, with her cargo,
condemned as lawful prize by the court of vice admiralty
there. But a petition for the restitution of a case of
paintings and engravings which had been presented to
and were owned by the Academy of Arts in Philadelphia
was granted by Dr. Croke, the judge of that court, who
said: 'The same law of nations, which prescribes that all
property belonging to the enemy shall be liable to
confiscation, has likewise its modifications and
relaxations of that rule. The arts and sciences are
admitted amongst all civilized nations, as forming an
exception to the severe rights of warfare, and as entitled
to favor and protection. They are considered, not as the
peculium of this or of that nation, but as the property of
mankind at large, and as belonging to the common
interests of the whole species.' And he added that there
had been 'innumerable cases of the mutual exercise of
this courtesy between nations in former wars.' The
Marquis de Somerueles, Stewart Adm. (Nova Scotia) 445,
482.
In 1861, during the war of the Rebellion, a similar
decision was made in the district court of the United
States for the eastern district of Pennsylvania, in regard
to two cases of books belonging and consigned to a
university in North Carolina. Judge Cadwalader, in
ordering these books to be liberated from the custody of
the marshal and restored to the agent of the university,
said: 'Though this claimant, as the resident of a hostile
district, would not be entitled to restitution of the
subject of a commercial adventure in books, the purpose
of the shipment in question gives to it a different [175
U.S. 677, 710] character. The United States, in
prosecuting hostilities for the restoration of their
constitutional authority, are compelled incidentally to
confiscate property captured at sea, of which the
proceeds would otherwise increase the wealth of that
district. But the United States are not at war with
literature in that part of their territory.' He then referred
to the decision in Nova Scotia, and to the French
decisions upon cases of fishing vessels, as precedents for
the decree which he was about to pronounce; and he
added that, without any such precedents, he should have
had no difficulty in liberating these books. The Amelia,1
4 Phila. 417.
In Brown v. United States, 8 Cranch, 110, 3 L. ed. 504,
there are expressions of Chief Justice Marshall which,
taken by themselves, might seem inconsistent with the
position above maintained, of the duty of a prize court to
take judicial notice of a rule of international law,
established by the general usage of civilized nations, as
to the kind of property subject to capture. But the actual
decision in that case, and the leading reasons on which it
was based, appear to us rather to confirm our position.
The principal question there was whether personal
property of a British subject, found on land in the United
States at the beginning of the last war with Great Britain,
could lawfully be condemned as enemy's property, on a
libel filed by the attorney of the United States, without a
positive act of Congress. The conclusion of the court was
'that the power of confiscating enemy property is in the
legislature, and that the legislature has not yet declared
its will to confiscate property which was within our
territory at the declaration of war.' 8 Cranch, 129, 3 L. ed.
510, 511. In showing that the declaration of war did not,
of itself, vest the Executive with authority to order such
property to be confiscated, the Chief Justice relied on the
modern usages of nations, saying: 'The universal practice
of forbearing to seize and confiscate debts and credits,
the principle universally received that the right to them
revives on the restoration of peace, would seem to prove
that war is not an absolute confiscation of this property,
but simply confers the right of confiscation,' and again:
'The modern rule, then, would seem to be that tangible
property[175 U.S. 677, 711] belonging to an enemy, and
found in the country at the commencement of war,
ought not to be immediately confiscated; and in almost
every commercial treaty an article is inserted stipulating
for the right to withdraw such property.' 8 Cranch, 123,
125, 3 L. ed. 509. The decision that enemy property on
land, which by the modern usage of nations is not subject
to capture as prize of war, cannot be condemned by a
prize court, even by direction of the Executive, without
express authority from Congress, appears to us to repel
any inference that coast fishing vessels, which are
exempt by the general consent of civilized nations from
capture, and which no act of Congress or order of the
President has expressly authorized to be taken and
confiscated, must be condemned by a prize court, for
 21 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
want of a distinct exemption in a treaty or other public
act of the government.
To this subject in more than one aspect are singularly
applicable the words uttered by Mr. Justice Strong,
speaking for this court: 'Undoubtedly no single nation
can change the law of the sea. The law is of universal
obligation and no statute of one or two nations can
create obligations for the world. Like all the laws of
nations, it rests upon the common consent of civilized
communities. It is of force, not because it was prescribed
by any superior power, but because it has been generally
accepted as a rule of conduct. Whatever may have been
its origin, whether in the usages of navigation, or in the
ordinances of maritime states, or in both, it has become
the law of the sea only by the concurrent sanction of
those nations who may be said to constitute the
commercial world. Many of the usages which prevail,
and which have the force of law, doubtless originated in
the positive prescriptions of some single state, which
were at first of limited effect, but which, when generally
accepted, became of universal obligation.' 'This is not
giving to the statutes of any nation extraterritorial effect.
It is not treating them as general maritime laws; but it is
recognition of the historical fact that by common
consent of mankind these rules have been acquiesced in
as of general obligation. Of that fact, we think, we may
take judicial notice. Foreign municipal laws [175 U.S. 677,
712] must indeed be proved as facts, but it is not so with
the law of nations.' The Scotia, 14 Wall. 170, 187, 188,
sub nom. Sears v. The Scotia, 20 L. ed. 822, 825, 826.
The position taken by the United States during the recent
war with Spain was quite in accord with the rule of
international law, now generally recognized by civilized
nations, in regard to coast fishing vessels.
On April 21, 1898, the Secretary of the Navy gave
instructions to Admiral Sampson, commanding the North
Atlantic Squadron, to 'immediately institute a blockade
of the north coast of Cuba, extending from Cardenas on
the east to Bahia Honda on the west.' Bureau of
Navigation Report of 1898, appx. 175. The blockade was
immediately instituted accordingly. On April 22 the
President issued a proclamation declaring that the
United States had instituted and would maintain that
blockade, 'in pursuance of the laws of the United States,
and the law of nations applicable to such cases.' 30 Stat.
at L. 1769. And by the act of Congress of April 25, 1898,
chap. 189, it was declared that the war between the
United States and Spain existed on that day, and had
existed since and including April 21, 30 Stat. at L. 364.
On April 26, 1898, the President issued another
proclamation which, after reciting the existence of the
war as declared by Congress, contained this further
recital: 'It being desirable that such war should be
conducted upon principles in harmony with the present
views of nations and sanctioned by their recent practice.'
This recital was followed by specific declarations of
certain rules for the conduct of the war by sea, making
no mention of fishing vessels. 30 Stat. at L. 1770. But the
proclamation clearly manifests the general policy of the
government to conduct the war in accordance with the
principles of international law sanctioned by the recent
practice of nations.
On April 28, 1898 (after the capture of the two fishing
vessels now in question), Admiral Sampson telegraphed
to the Secretary of the Navy as follows: 'I find that a large
number of fishing schooners are attempting to get into
Havana from their fishing grounds near the Florida reefs
and coasts. They are generally manned by excellent
seamen, belonging [175 U.S. 677, 713] to the maritime
inscription of Spain, who have already served in the
Spanish navy, and who are liable to further service. As
these trained men are naval reserves, most valuable to
the Spaniards as artillerymen, either afloat or ashore, I
recommend that they should be detained prisoners of
war, and that I should be authorized to deliver them to
the commanding officer of the army at Key West.' To that
communication the Secretary of the Navy, on April 30,
1898, guardedly answered: 'Spanish fishing vessels
attempting to violate blockade are subject, with crew, to
capture, and any such vessel or crew considered likely to
aid enemy may be detained.' Bureau of Navigation
Report of 1898, appx. 178. The admiral's despatch
assumed that he was not authorized, without express
order, to arrest coast fishermen peaceably pursuing their
calling; and the necessary implication and evident intent
of the response of the Navy Department were that
Spanish coast fishing vessels and their crews should not
be interfered with, so long as they neither attempted to
violate the blockade, nor were considered likely to aid
the enemy.
The Paquete Habana, as the record shows, was a fishing
sloop of 25 tons burden, sailing under the Spanish flag,
running in and out of Havana, and regularly engaged in
fishing on the coast of Cuba. Her crew consisted of but
three men, including the master, and, according to a
common usage in coast fisheries, had no interest in the
vessel, but were entitled to two thirds of her catch, the
other third belonging to her Spanish owner, who, as well
as the crew, resided in Havana. On her last voyage, she
sailed from Havana along the coast of Cuba, about 200
miles, and fished for twenty-five days off the cape at the
west end of the island, within the territorial waters of
Spain, and was going back to Havana, with her cargo of
live fish, when she was captured by one of the blockading
squadron, on April 25, 1898. She had no arms or
ammunition on board; she had no knowledge of the
blockade, or even of the war, until she was stopped by a
blockading vessel; she made no attempt to run the
blockade, and no resistance at the time of the capture;
 22 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
nor was there any ev- [175 U.S. 677, 714] idence
whatever of likelihood that she or her crew would aid the
enemy.
In the case of the Lola, the only differences in the facts
were that she was a schooner of 35 tons burden, and had
a crew of six men, including the master; that after leaving
Havana, and proceeding some 200 miles along the coast
of Cuba, she went on, about 100 miles farther, to the
coast of Yucatan, and there fished for eight days; and
that, on her return, when near Bahia Honda, on the coast
of Cuba, she was captured, with her cargo of live fish, on
April 27, 1898. These differences afford no ground for
distinguishing the two cases.
Each vessel was of a moderate size, such as is not unusual
in coast fishing smacks, and was regularly engaged in
fishing on the coast of Cuba. The crew of each were few
in number, had no interest in the vessel, and received, in
return for their toil and enterprise, two thirds of her
catch, the other third going to her owner by way of
compensation for her use. Each vessel went out from
Havana to her fishing ground, and was captured when
returning along the coast of Cuba. The cargo of each
consisted of fresh fish, caught by her crew from the sea,
and kept alive on board. Although one of the vessels
extended her fishing trip across the Yucatan channel and
fished on the coast of Yucatan, we cannot doubt that
each was engaged in the coast fishery, and not in a
commercial adventure, within the rule of international
law.
The two vessels and their cargoes were condemned by
the district court as prize of war; the vessels were sold
under its decrees; and it does not appear what became
of the fresh fish of which their cargoes consisted.
Upon the facts proved in either case, it is the duty of this
court, sitting as the highest prize court of the United
States, and administering the law of nations, to declare
and adjudge that the capture was unlawful and without
probable cause; and it is therefore, in each case,--
Ordered, that the decree of the District Court be
reversed, and the proceeds of the sale of the vessel,
together with the proceeds of any sale of her cargo, be
restored to the claimant, with damages and costs. [175
U.S. 677, 715]
Mr. Chief Justice Fuller, with whom concurred Mr. Justice
Harlan and Mr. Justice McKenna, dissenting:
The district court held these vessels and their cargoes
liable because not 'satisfied that as a matter of law,
without any ordinance, treaty, or proclamation, fishing
vessels of this class are exempt from seizure.'
This court holds otherwise, not because such exemption
is to be found in any treaty, legislation, proclamation, or
instruction granting it, but on the ground that the vessels
were exempt by reason of an established rule of
international law applicable to them, which it is the duty
of the court to enforce.
I am unable to conclude that there is any such
established international rule, or that this court can
properly revise action which must be treated as having
been taken in the ordinary exercise of discretion in the
conduct of war.
In cannot be maintained 'that modern usage constitutes
a rule which acts directly upon the thing itself by its own
force, and not through the sovereign power.' That
position was disallowed in Brown v. United States, 8
Cranch, 110, 128, 3 L. ed. 510, and Chief Justice Marshall
said: 'This usage is a guide which the sovereign follows or
abandons at his will. The rule, like other precepts of
morality, of humanity, and even of wisdom, is addressed
to the judgment of the sovereign; and although it cannot
be disregarded by him without obloquy, yet it may be
disregarded. The rule is in its nature flexible. It is subject
to infinite modification. It is not an immutable rule of
law, but depends on political considerations which may
continually vary.'
The question in that case related to the confiscation of
the property of the enemy on land within our own
territory, and it was held that property so situated could
not be confiscated without an act of Congress. The Chief
Justice continued: 'Commercial nations in the situation
of the United States have always a considerable quantity
of property in the possession of their neighbors. When
war breaks out, the question, What shall be done with
enemy property in our country?-is a [175 U.S. 677,
716] question rather of policy than of law. The rule
which we apply to the property of our enemy will be
applied by him to the property of our citizens. Like all
other questions of policy, it is proper for the
consideration of a department which can modify it at
will; not for the consideration of a department which can
pursue only the law as it is written. It is proper for the
consideration of the legislature, not of the executive or
judiciary.'
This case involves the capture of enemy's property on
the sea, and executive action, and if the position that the
alleged rule proprio vigore limits the sovereign power in
war be rejected, then I understand the contention to be
that, by reason of the existence of the rule, the
proclamation of April 26 must be read as if it contained
the exemption in terms, or the exemption must be
allowed because the capture of fishing vessels of this
class was not specifically authorized.
The preamble to the proclamation stated, it is true, that
it was desirable that the war 'should be conducted upon
principles in harmony with the present views of nations
and sanctioned by their recent pratice,' but the reference
 23 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
was to the intention of the government 'not to resort to
privateering, but to adhere to the rules of the
Declaration of Paris;' and the proclamation spoke for
itself. The language of the preamble did not carry the
exemption in terms, and the real question is whether it
must be allowed because not affirmatively withheld, or,
in other words, because such captures were not in terms
directed.
These records show that the Spanish sloop Paquete
Habana 'was captured as a prize of war by the U. S. S.
Castine' on April 25, and 'was delivered' by the Castine's
commander 'to Rear Admiral Wm. T. Sampson (
commanding the North Atlantic Squardron),' and
therequpon 'turned over' to a prize master with
instructions to proceed to Key West.
And that the Spanish schooner Lola 'was captured as a
prize of war by the U. S. S. Dolphin,' April 27, and 'was
delivered' by the Dolphin's commander 'to Rear Admiral
Wm. T. Sampson (commanding the North Atlantic
Squardron),' and thereupon 'turned over' to a prize
master with instructions to proceed to Key West. [175
U.S. 677, 717] That the vessels were accordingly taken
to Key West and there libeled, and that the decrees of
condemnation were entered against them May 30.
It is impossible to concede that the Admiral ratified these
captures in disregard of established international law
and the proclamation, or that the President, if he had
been of opinion that there was any infraction of law or
proclamation, would not have intervened prior to
condemnation.
The correspondence of April 28, 30, between the Admiral
and the Secretary of the Navy, quoted from in the
principal opinion, was entirely consistent with the
validity of the captures.
The question put by the Admiral related to the detention
as prisoners of war of the persons manning the fishing
schooners 'attempting to get into Havana.'
Noncombatants are not so detained except for special
reasons. Sailors on board enemy's trading vessels are
made prisoners because of their fitness for immediate
use on ships of war. Therefore the Admiral pointed out
the value of these fishing seamen to the enemy, and
advised their detention. They Secretary replied that if the
vessels referred to were 'attempting to violate blockade'
they were subject 'with crew' to capture, and also that
they might be detained if 'considered likely to aid
enemy.' The point was whether these crews should be
made prisoners of war. Of course they would be liable to
be if involved in the guilt of blockade running, and the
Secretary agreed that they might be on the other ground
in the Admiral's discretion.
All this was in accordance with the rules and usages of
international law, with which, whether in peace or war,
the naval service has always been necessarily familiar.
I come then to examine the proposition 'that at the
present day, by the general consent of the civilized
nations of the world, and independently of any express
treaty or other public act, it is an established rule of
international law, founded on considerations of
humanity to a poor and industrious order of men, and of
the mutual convenience of belligerent states, that coast
fishing vessels, with their implements and supplies [175
U.S. 677, 718] cargoes and crews, undarmed, and
honestly pursuing their peaceful calling of catching and
bringing in of fresh fish, are exempt from capture as prize
of war.'
This, it is said, is a rule 'which prize courts, administering
the law of nations, are bound to take judicial notice of,
and to give effect to, in the absence of treaty or other
public act of their own government.'
At the same time it is admitted that the alleged
exemption does not apply 'to coast fishermen or their
vessels, if employed for a warlike purpose, or in such a
way as to give aid or information to the enemy; nor when
military or naval operations create a necessity to which
all private interests must give way;' and, further, that the
exemption has not 'been extended to ships or vessels
employed on the high sea in taking whales or seals, or
cod or other fish which are not brought fresh to market,
but are salted or otherwise cured and made a regular
article of commerce.'
It will be perceived that the exceptions reduce the
supposed rule to very narrow limits, requiring a careful
examination of the facts in order to ascertain its
applicability; and the decision appears to me to go
altogether too far in respect of dealing with captures
directed or ratified by the officer in command.
But were these two vessels within the alleged
exemption? They were of 25 and 35 tons burden
respectively. They carried large tanks, in which the fish
taken were kept alive. They were owned by citizens of
Havana, and tha owners and the masters and crew were
to be compensated by shares of the catch. One of them
had been 200 miles from Havana, off Cape San Antonio,
for twenty-five days, and the other for eight days off the
coast of Yucatan. They belonged, in short, to the class of
fishing or coasting vessels of from 5 to 20 tons burden,
and from 20 tons upwards, which, when licensed or
enrolled as prescribed by the Revised Statutes. are
declared to be vessels of the United States, and the
shares of whose men, when the vessels are employed in
fishing, are regulated by statute. They were engaged in
what were substantially commercial ventures, and the
mere fact that the fish were kept alive by
 24 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
contrivances [175 U.S. 677, 719] for that purpose-a
practice of considerable antiquity-did not render them
any the less an article of trade than if they had been
brought in cured.
I do not think that, under the circumstances, the
considerations which have operated to mitigate the evils
of war in respect of individual harvesters of the soil can
properly be invoked on behalf of these hired vessels, as
being the implements of like harvesters of the sea. Not
only so as to the owners, but as to the masters and crews.
The principle which exempts the husbandman and his
instruments of labor exempts the industry in which he is
engaged, and is not applicable in protection of the
continuance of transactions of such character and extent
as these.
In truth, the exemption of fishing craft is essentially an
act of grace, and not a matter of right, and it is extended
or denied as the exigency is believed to demand.
It is, said Sir William Scott, 'a rule of comity only, and not
of legal decision.'
The modern view is thus expressed by Mr. Hall: 'England
does not seem to have been unwilling to spare fishing
vessels so long as they are harmless, and it does not
appear that any state has accorded them immumty
under circumstances of inconvenience to itself. It is likely
that all nations would now refrain from molesting them
as a general rule, and would capture them so soon as any
danger arose that they or their crews might be of military
use to the enemy; and it is also likely that it is impossible
to grant them a more distinct exemption.'
In the Crimean war, 1854-55, none of the orders in
council, in terms, either exempted or included fishing
vessels, yet the allied squadrons swept the Sea of Azof of
all craft capable of furnishing the means of
transportation, and the English admiral in the Gulf of
Finland directed the destruction of all Russian coasting
vessels, not of sufficient value to be detained as prizes,
except 'boats or small craft which may be found empty
at anchor, and not trafficking.'
It is difficult to conceive of a law of the sea of universal
obligation to which Great Britain has not acceded. And
I [175 U.S. 677, 720] am not aware of adequate
foundation for imputing to this country the adoption of
any other than the English rule.
In his Lectures on International Law at the Naval Law
College the late Dr. Freeman Snow laid it down that the
exemption could not be asserted as a rule of
international law. These lectures were edited by
Commodore Stockton and published under the direction
of the Secretary of the Navy in 1895, and, by that
department, in a second edition, in 1898, so that in
addition to the well-known merits of their author they
possess the weight to be attributed to the official
imprimatur. Neither our treaties nor settled practice are
opposed to that conclusion.
In view of the circumstances surrounding the breaking
out of the Mexican war, Commodore Conner,
commanding the Home Squadron, on May 14, 1846,
directed his officers, in respect of blockade, not to molest
'Mexican boats engaged exclusively in fishing on any part
of the coast,' presumably small boats in proximity to the
shore; while on the Pacific coast Commodore Stockton in
the succeeding August ordered the capture of 'all vessels
under the Mexican flag.'
The treaties with Prussia of 1785, 1799, and 1828, and of
1848 with Mexico, in exempting fishermen, 'unarmed
and inhabiting unfortified towns, villages, or places,' did
not exempt fishing vessels from seizure as prize; and
these captures evidence the convictions entertained and
acted on in the late war with Spain.
In is needless to review the speculations and repetitions
of the writers on international law. Ortolan, De Boeck,
and others admit that the custom relied on as
consecrating the immunity is not so general as to create
an absolute international rule; Heffter, Calvo, and others
are to the contrary. Their lucubrations may be
persuasive, but not authoritative.
In my judgment, the rule is that exemption from the
rigors of war is in the control of the Executive. He is
bound by no immutable rule on the subject. It is for him
to apply, or to modify, or to deny altogether such
immunity as may have been usually extended. [175 U.S.
677, 721] Exemptions may be designated in advance, or
granted according to circumstances, but carrying on was
involves the inflication of the hardships of war, at least
to the extent that the seizure or destruction of enemy's
property on sea need not be specifically authorized in
order to be accomplished.
Being of opinion that these vessels were not exempt as
matter of law, I am constrained to dissent from the
opinion and judgment of the court; and my brothers
Harlan and McKenna concur in this dissent.
(January 29, 1900.)
The court, in each case, on motion of the Solicitor
General in behalf of the United States, and after
argument of counsel thereon, and to secure the carrying
out of the opinion and decree of this court according to
their true meaning and intent, ordered that the decree
be so modified as to direct that the damages to be
allowed shall be compensatory only, and not punitive.
 25 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
[G.R. No. 104768. July 21, 2003]
REPUBLIC OF THE
PHILIPPINES, PETITIONER, VS.
SANDIGANBAYAN, MAJOR GENERAL
JOSEPHUS Q. RAMAS AND ELIZABETH
DIMAANO, RESPONDENTS.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review
on certiorari seeking to set aside the Resolutions of the
Sandiganbayan (First Division)[1] dated 18 November
1991 and 25 March 1992 in Civil Case No. 0037. The first
Resolution dismissed petitioners Amended Complaint
and ordered the return of the confiscated items to
respondent Elizabeth Dimaano, while the second
Resolution denied petitioners Motion for
Reconsideration. Petitioner prays for the grant of the
reliefs sought in its Amended Complaint, or in the
alternative, for the remand of this case to the
Sandiganbayan (First Division) for further proceedings
allowing petitioner to complete the presentation of its
evidence.
Antecedent 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.[2]
Based on its mandate, the AFP Board investigated
various reports of alleged unexplained wealth of
respondent Major General Josephus Q. Ramas
(Ramas). On 27 July 1987, the AFP Board issued a
Resolution on its findings and recommendation on the
reported unexplained wealth of Ramas. The relevant part
of the Resolution reads:
III. FINDINGS and EVALUATION:
Evidence in the record showed that respondent is the
owner of a house and lot located at 15-Yakan St., La Vista,
Quezon City. He is also the owner of a house and lot
located in Cebu City. The lot has an area of 3,327 square
meters.
The value of the property located in Quezon City may be
estimated modestly at P700,000.00.
The equipment/items and communication facilities
which were found in the premises of Elizabeth Dimaano
and were confiscated by elements of the PC Command
of Batangas were all covered by invoice receipt in the
name of CAPT. EFREN SALIDO, RSO Command Coy, MSC,
PA. These items could not have been in the possession of
Elizabeth Dimaano if not given for her use by respondent
Commanding General of the Philippine Army.
Aside from the military equipment/items and
communications equipment, the raiding team was also
able to confiscate money in the amount
of P2,870,000.00 and $50,000 US Dollars in the house of
Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit,
Military Security Command, Philippine Army, stationed
at Camp Eldridge, Los Baos, Laguna, disclosed that
Elizabeth Dimaano is the mistress of respondent. That
respondent usually goes and stays and sleeps in the
alleged house of Elizabeth Dimaano in Barangay Tengga,
Itaas, Batangas City and when he arrives, Elizabeth
Dimaano embraces and kisses respondent. That on
February 25, 1986, a person who rode in a car went to
the residence of Elizabeth Dimaano with four (4) attache
cases filled with money and owned by MGen Ramas.
Sworn statement in the record disclosed also that
Elizabeth Dimaano had no visible means of income and is
supported by respondent for she was formerly a mere
secretary.
Taking in toto the evidence, Elizabeth Dimaano could not
have used the military equipment/items seized in her
house on March 3, 1986 without the consent of
respondent, he being the Commanding General of the
Philippine Army. It is also impossible for Elizabeth
Dimaano to claim that she owns the P2,870,000.00 and
$50,000 US Dollars for she had no visible source of
income.
This money was never declared in the Statement of
Assets and Liabilities of respondent. There was an
 26 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
intention to cover the existence of these money because
these are all ill-gotten and unexplained wealth.Were it
not for the affidavits of the members of the Military
Security Unit assigned at Camp Eldridge, Los Baos,
Laguna, the existence and ownership of these money
would have never been known.
The Statement of Assets and Liabilities of respondent
were also submitted for scrutiny and analysis by the
Boards consultant. Although the amount
of P2,870,000.00 and $50,000 US Dollars were not
included, still it was disclosed that respondent has an
unexplained wealth of P104,134. 60.
IV. CONCLUSION:
In view of the foregoing, 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.
V. RECOMMENDATION:
Wherefore it is 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.[3]
Thus, on 1 August 1987, the PCGG filed a petition for
forfeiture under Republic Act No. 1379 (RA No.
1379) [4] against Ramas.
Before Ramas could answer the petition, then Solicitor
General Francisco I. Chavez filed an Amended Complaint
naming the Republic of the Philippines (petitioner),
represented by the PCGG, as plaintiff and Ramas as
defendant. The Amended Complaint also impleaded
Elizabeth Dimaano (Dimaano) as co-defendant.
The Amended Complaint alleged that Ramas was the
Commanding General of the Philippine Army until 1986.
On the other hand, Dimaano 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.[5]
The Amended Complaint also alleged that the AFP Board,
after a previous inquiry, found reasonable ground to
believe that respondents have violated RA No.
1379.[6] The Amended Complaint prayed for, among
others, the forfeiture of respondents properties, funds
and equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative
Defenses and Compulsory Counterclaim to the Amended
Complaint. In his Answer, Ramas contended that his
property consisted only of a residential house at La Vista
Subdivision, Quezon City, valued at P700,000, which was
not out of proportion to his salary and other legitimate
income. He denied ownership of any mansion in Cebu
City and the cash, communications equipment and other
items confiscated from the house of Dimaano.
Dimaano filed her own Answer to the Amended
Complaint. Admitting her employment as a clerk-typist in
the office of Ramas from January-November 1978 only,
Dimaano claimed ownership of the monies,
communications equipment, jewelry and land titles
taken from her house by the Philippine Constabulary
raiding team.
After termination of the pre-trial,[7] the court set the case
for trial on the merits on 9-11 November 1988.
On 9 November 1988, petitioner asked for a deferment
of the hearing due to its lack of preparation for trial and
the absence of witnesses and vital documents to support
its case. The court reset the hearing to 17 and 18 April
1989.
On 13 April 1989, petitioner filed a motion for leave to
amend the complaint in order to charge the delinquent
properties with being subject to forfeiture as having
been unlawfully acquired by defendant Dimaano alone x
x x.[8]
Nevertheless, in an order dated 17 April 1989, the
Sandiganbayan proceeded with petitioners presentation
of evidence on the ground that the motion for leave to
amend complaint did not state when petitioner would
file the amended complaint. The Sandiganbayan further
stated that the subject matter of the amended complaint
was on its face vague and not related to the existing
complaint. The Sandiganbayan also held that due to the
time that the case had been pending in court, petitioner
should proceed to present its evidence.
After presenting only three witnesses, petitioner asked
for a postponement of the trial.
On 28 September 1989, during the continuation of the
trial, petitioner manifested its inability to proceed to trial
because of the absence of other witnesses or lack of
further evidence to present. Instead, petitioner
reiterated its motion to amend the complaint to conform
to the evidence already presented or to change the
averments to show that Dimaano alone unlawfully
acquired the monies or properties subject of the
forfeiture.
 27 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
The Sandiganbayan noted that petitioner had already
delayed the case for over a year mainly because of its
many postponements. Moreover, petitioner would want
the case to revert to its preliminary stage when in fact
the case had long been ready for trial. The
Sandiganbayan ordered petitioner to prepare for
presentation of its additional evidence, if any.
During the trial on 23 March 1990, petitioner again
admitted its inability to present further evidence. Giving
petitioner one more chance to present further evidence
or to amend the complaint to conform to its evidence,
the Sandiganbayan reset the trial to 18 May 1990. The
Sandiganbayan, however, hinted that the re-setting was
without prejudice to any action that private respondents
might take under the circumstances.
However, on 18 May 1990, petitioner again expressed its
inability to proceed to trial because it had no further
evidence to present. Again, in the interest of justice, the
Sandiganbayan granted petitioner 60 days within which
to file an appropriate pleading. The Sandiganbayan,
however, warned petitioner that failure to act would
constrain the court to take drastic action.
Private respondents then filed their motions to dismiss
based on Republic v. Migrino.[9] The Court held
in Migrino 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.
On 18 November 1991, the Sandiganbayan rendered a
resolution, the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered dismissing
the Amended Complaint, without pronouncement as to
costs. The counterclaims are likewise dismissed for lack
of merit, but the confiscated sum of money,
communications equipment, jewelry and land titles are
ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and
referred 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. This case is also referred to the Commissioner
of the Bureau of Internal Revenue for a determination of
any tax liability of respondent Elizabeth Dimaano in
connection herewith.
SO ORDERED.
On 4 December 1991, petitioner filed its Motion for
Reconsideration.
In answer to the Motion for Reconsideration, private
respondents filed a Joint Comment/Opposition to which
petitioner filed its Reply on 10 January 1992.
On 25 March 1992, the Sandiganbayan rendered a
Resolution denying the Motion for Reconsideration.
Ruling of the Sandiganbayan
The Sandiganbayan dismissed the Amended Complaint
on the following grounds:
(1.) The actions taken by the PCGG are not in accordance
with the rulings of the Supreme Court in Cruz, Jr. v.
Sandiganbayan[10] and Republic v. Migrino[11] which
involve the same issues.
(2.) No previous inquiry similar to preliminary
investigations in criminal cases was conducted against
Ramas and Dimaano.
(3.) The evidence adduced against Ramas does not
constitute a prima facie case against him.
(4.) There was an illegal search and seizure of the items
confiscated.
The Issues
Petitioner raises the following issues:
A. RESPONDENT COURT SERIOUSLY ERRED IN
CONCLUDING THAT PETITIONERS EVIDENCE CANNOT
MAKE A CASE FOR FORFEITURE AND THAT THERE WAS
NO SHOWING OF CONSPIRACY, COLLUSION OR
RELATIONSHIP BY CONSANGUINITY OR AFFINITY BY AND
BETWEEN RESPONDENT RAMAS AND RESPONDENT
DIMAANO NOTWITHSTANDING THE FACT THAT SUCH
CONCLUSIONS WERE CLEARLY UNFOUNDED AND
PREMATURE, HAVING BEEN RENDERED PRIOR TO THE
COMPLETION OF THE PRESENTATION OF THE EVIDENCE
OF THE PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING
THAT THE ACTIONS TAKEN BY THE PETITIONER,
INCLUDING THE FILING OF THE ORIGINAL COMPLAINT
AND THE AMENDED COMPLAINT, SHOULD BE STRUCK
OUT IN LINE WITH THE RULINGS OF THE SUPREME
COURT IN CRUZ, JR. v. SANDIGANBAYAN, 194 SCRA 474
AND REPUBLIC v. MIGRINO, 189 SCRA 289,
NOTWITHSTANDING THE FACT THAT:
1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and
Republic v. Migrino, supra, are clearly not applicable to
this case;
2. Any procedural defect in the institution of the
complaint in Civil Case No. 0037 was cured and/or
waived by respondents with the filing of their respective
answers with counterclaim; and
3. The separate motions to dismiss were evidently
improper considering that they were filed after
commencement of the presentation of the evidence of
the petitioner and even before the latter was allowed to
formally offer its evidence and rest its case;
 28 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING
THAT THE ARTICLES AND THINGS SUCH AS SUMS OF
MONEY, COMMUNICATIONS EQUIPMENT, JEWELRY AND
LAND TITLES CONFISCATED FROM THE HOUSE OF
RESPONDENT DIMAANO WERE ILLEGALLY SEIZED AND
THEREFORE EXCLUDED AS EVIDENCE.[12]
The Courts Ruling
First Issue: PCGGs Jurisdiction to Investigate Private
Respondents
This case involves a revisiting of an old issue already
decided by this Court in Cruz, Jr. v.
[13]
Sandiganbayan and Republic v. Migrino. [14]
The primary issue for resolution is whether the 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.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the
unexplained wealth and corrupt practices of AFP
personnel, whether in the active service or
retired.[15] The PCGG tasked the AFP Board to make the
necessary recommendations to appropriate government
agencies on the action to be taken based on its
findings.[16] The PCGG gave this task to the AFP Board
pursuant to the PCGGs power under Section 3 of EO No.
1 to conduct investigation as may be necessary in order
to accomplish and to carry out the purposes of this
order. EO No. 1 gave the PCGG specific responsibilities,
to wit:
SEC. 2. The Commission shall be charged with the task of
assisting the President in regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by
former President Ferdinand E. Marcos, his immediate
family, relatives, subordinates and close associates,
whether located in the Philippines or abroad, including
the takeover and sequestration of all business
enterprises and entities owned or controlled by them,
during his administration, directly or through nominees,
by taking undue advantage of their public office and/ or
using their powers, authority, influence, connections or
relationship.
(b) The investigation of such cases of graft and
corruption as the President may assign to the
Commission from time to time.
x x x.
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. These are: (1) AFP
personnel who have accumulated ill-gotten wealth
during the administration of former President Marcos by
being the latters immediate family, relative, subordinate
or close associate, taking undue advantage of their public
office or using their powers, influence x x x;[17] or (2) AFP
personnel involved in other cases of graft and corruption
provided the President assigns their cases to the
PCGG.[18]
Petitioner, however, does not claim that the President
assigned Ramas case to the PCGG. Therefore, Ramas
case should fall under the first category of AFP personnel
before the PCGG could exercise its jurisdiction over
him. Petitioner argues that Ramas was undoubtedly a
subordinate of former President Marcos because of his
position as the Commanding General of the Philippine
Army. Petitioner claims that Ramas position enabled him
to receive orders directly from his commander-in-chief,
undeniably making him a subordinate of former
President Marcos.
We hold that Ramas was not a subordinate of former
President Marcos in the sense contemplated under EO
No. 1 and its amendments.
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. Migrino discussed this issue in this wise:
A close reading of EO No. 1 and related executive orders
will readily show what is contemplated within the term
subordinate. The Whereas Clauses of EO No. 1 express
the urgent need to recover the ill-gotten wealth amassed
by former President Ferdinand E. Marcos, his immediate
family, relatives, and close associates both here and
abroad.
EO No. 2 freezes all assets and properties in the
Philippines in which former President Marcos and/or his
wife, Mrs. Imelda Marcos, their close relatives,
subordinates, business associates, dummies, agents, or
nominees have any interest or participation.
Applying the rule in statutory construction known
as ejusdem generis that is-
[W]here general words follow an enumeration of
persons or things by words of a particular and specific
meaning, such general words are not to be construed in
their widest extent, but are to be held as applying only to
persons or things of the same kind or class as those
specifically mentioned [Smith, Bell & Co, Ltd. vs. Register
of Deeds of Davao, 96 Phil. 53, 58, citing Black on
Interpretation of Laws, 2ndEd., 203].
[T]he term subordinate as used in EO Nos. 1 & 2 refers to
one who enjoys a close association with former President
Marcos and/or his wife, similar to the immediate family
member, relative, and close associate in EO No. 1 and
 29 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
the close relative, business associate, dummy, agent, or
nominee in EO No. 2.
xxx
It does not suffice, as in this case, that the respondent is
or was a government official or employee during the
administration of former President Marcos. There must
be a prima facie showing that the respondent
unlawfully accumulated wealth by virtue of his close
association or relation with former Pres. Marcos and/or
his wife. (Emphasis supplied)
Ramas position alone as Commanding General of the
Philippine Army with the rank of Major General[19] does
not suffice to make him a subordinate of former
President Marcos for purposes of EO No. 1 and its
amendments. The PCGG has to provide a prima
facie showing that Ramas was a close associate of former
President Marcos, in the same manner that business
associates, dummies, agents or nominees of former
President Marcos were close to him. Such close
association is manifested either by Ramas complicity
with former President Marcos in the accumulation of ill-
gotten wealth by the deposed President or by former
President Marcos acquiescence in Ramas own
accumulation of ill-gotten wealth if any.
This, the PCGG failed to do.
Petitioners attempt to differentiate the instant case
from Migrino does not convince us. Petitioner argues
that unlike in Migrino, the AFP Board Resolution in the
instant case states that the AFP Board conducted the
investigation pursuant to EO Nos. 1, 2, 14 and 14-A in
relation to RA No. 1379. Petitioner asserts that there is a
presumption that the PCGG was acting within its
jurisdiction of investigating crony-related cases of graft
and corruption and that Ramas was truly a subordinate
of the former President. However, the same AFP Board
Resolution belies this contention. Although the
Resolution begins with such statement, it ends with the
following recommendation:
V. RECOMMENDATION:
Wherefore it is 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.[20]
Thus, although the PCGG sought to investigate and
prosecute private respondents under EO Nos. 1, 2, 14
and 14-A, the result yielded a finding of violation of
Republic Acts Nos. 3019 and 1379 without any relation
to EO Nos. 1, 2, 14 and 14-A. This absence of relation to
EO No. 1 and its amendments proves fatal to petitioners
case. EO No. 1 created the PCGG for a specific and limited
purpose, and necessarily its powers must be construed
to address such specific and limited purpose.
Moreover, the resolution of the AFP Board and even the
Amended Complaint do not show that the properties
Ramas allegedly owned were accumulated by him in his
capacity as a subordinate of his commander-in-
chief. Petitioner merely enumerated 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. Petitioner, in fact, admits that the
AFP Board resolution does not contain a finding that
Ramas accumulated his wealth because of his close
association with former President Marcos, thus:
10. While it is true that the resolution of the Anti-Graft
Board of the New Armed Forces of the Philippines did
not categorically find a prima facie evidence showing
that respondent Ramas unlawfully accumulated wealth
by virtue of his close association or relation with former
President Marcos and/or his wife, it is submitted that
such omission was not fatal. The resolution of the Anti-
Graft Board should be read in the context of the law
creating the same and the objective of the investigation
which was, as stated in the above, pursuant to Republic
Act Nos. 3019 and 1379 in relation to Executive Order
Nos. 1, 2, 14 and 14-a;[21] (Emphasis supplied)
Such omission is fatal. Petitioner forgets that it is
precisely a prima facie showing that the ill-gotten wealth
was accumulated by a subordinate of former President
Marcos that vests jurisdiction on PCGG. EO No.
1[22] clearly premises the creation of the PCGG on the
urgent need to recover all ill-gotten wealth amassed by
former President Marcos, his immediate family,
relatives, subordinates and close associates. Therefore,
to say that such omission was not fatal is clearly contrary
to the intent behind the creation of the PCGG.
In Cruz, Jr. v. Sandiganbayan,[23] the Court outlined the
cases that fall under the jurisdiction of the PCGG
pursuant to EO Nos. 1, 2,[24] 14,[25] 14-A:[26]
A careful reading of Sections 2(a) and 3 of Executive
Order No. 1 in relation with Sections 1, 2 and 3 of
Executive Order No. 14, shows what the authority of the
respondent PCGG to investigate and prosecute covers:
(a) the investigation and prosecution of the civil action
for the recovery of ill-gotten wealth under Republic Act
No. 1379, accumulated by former President Marcos, his
immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad,
including the take-over or sequestration of all business
enterprises and entities owned or controlled by them,
during his administration, directly or through his
nominees, by taking undue advantage of their public
 30 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
office and/or using their powers, authority and
influence, connections or relationships; and
(b) the investigation and prosecution of such offenses
committed in the acquisition of said ill-gotten wealth as
contemplated under Section 2(a) of Executive Order No.
1.
However, other violations of the Anti-Graft and
Corrupt Practices Act not otherwise falling under the
foregoing categories, require a previous authority of
the President for the respondent PCGG to investigate
and prosecute in accordance with Section 2 (b) of
Executive Order No. 1. Otherwise, jurisdiction over such
cases is vested in the Ombudsman and other duly
authorized investigating agencies such as the provincial
and city prosecutors, their assistants, the Chief State
Prosecutor and his assistants and the state
prosecutors. (Emphasis supplied)
The proper government agencies, and not the PCGG,
should investigate and prosecute forfeiture petitions not
falling under EO No. 1 and its amendments. The
preliminary investigation of unexplained wealth amassed
on or before 25 February 1986 falls under the jurisdiction
of the Ombudsman, while the authority to file the
corresponding forfeiture petition rests with the Solicitor
General.[27] The Ombudsman Act or Republic Act No.
6770 (RA No. 6770) vests in the Ombudsman the power
to conduct preliminary investigation and to file forfeiture
proceedings involving unexplained wealth amassed after
25 February 1986.[28]
After the pronouncements of the Court in Cruz, the PCGG
still pursued this case despite the absence of a prima
facie finding that Ramas was a subordinate of former
President Marcos. The petition for forfeiture filed with
the Sandiganbayan should be dismissed for lack of
authority by the PCGG to investigate respondents since
there is no prima facie showing that EO No. 1 and its
amendments apply to respondents. The AFP Board
Resolution and even the Amended Complaint state that
there are violations of RA Nos. 3019 and 1379. Thus, the
PCGG should have recommended Ramas case to the
Ombudsman who has jurisdiction to conduct the
preliminary investigation of ordinary unexplained wealth
and graft cases. As stated in Migrino:
[But] in view of the patent lack of authority of the PCGG
to investigate and cause the prosecution of private
respondent for violation of Rep. Acts Nos. 3019 and
1379, the PCGG must also be enjoined from proceeding
with the case, without prejudice to any action that may
be taken by the proper prosecutory agency. The rule of
law mandates that an agency of government be allowed
to exercise only the powers granted to it.
Petitioners argument that private respondents have
waived any defect in the filing of the forfeiture petition
by submitting their respective Answers with
counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents.
Thus, there is no jurisdiction to waive in the first
place. The PCGG cannot exercise investigative or
prosecutorial powers never granted to it. PCGGs powers
are specific and limited. Unless given additional
assignment by the President, PCGGs sole task is only to
recover the ill-gotten wealth of the Marcoses, their
relatives and cronies.[29] Without these elements, the
PCGG cannot claim jurisdiction over a case.
Private respondents questioned the authority and
jurisdiction of the PCGG to investigate and prosecute
their cases by filing their Motion to Dismiss as soon as
they learned of the pronouncement of the Court
in Migrino. This case was decided on 30 August 1990,
which explains why private respondents only filed their
Motion to Dismiss on 8 October 1990.Nevertheless, we
have held that the parties may raise lack of jurisdiction at
any stage of the proceeding.[30] Thus, we hold that there
was no waiver of jurisdiction in this case. Jurisdiction is
vested by law and not by the parties to an action.[31]
Consequently, the petition should be dismissed for lack
of jurisdiction by the PCGG to conduct the preliminary
investigation. The Ombudsman may still conduct the
proper preliminary investigation for violation of RA No.
1379, and if warranted, the Solicitor General may file the
forfeiture petition with the Sandiganbayan.[32] The right
of the State to forfeit unexplained wealth under RA No.
1379 is not subject to prescription, laches or estoppel.[33]
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence
Petitioner also contends that the Sandiganbayan erred in
dismissing the case before completion of the
presentation of petitioners evidence.
We disagree.
Based on the findings of the Sandiganbayan and the
records of this case, we find that petitioner has only itself
to blame for non-completion of the presentation of its
evidence. First, this case has been pending for four years
before the Sandiganbayan dismissed it. Petitioner filed
its Amended Complaint on 11
August 1987, and only began to present its evidence on
17 April 1989. Petitioner had almost two years to
prepare its evidence. However, despite this sufficient
time, petitioner still delayed the presentation of the rest
of its evidence by filing numerous motions for
postponements and extensions. Even before the date set
for the presentation of its evidence, petitioner filed, on
13 April 1989, a Motion for Leave to Amend the
Complaint.[34]The motion sought to charge the
delinquent properties (which comprise most of
 31 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
petitioners evidence) with being subject to forfeiture as
having been unlawfully acquired by defendant Dimaano
alone x x x.
The Sandiganbayan, however, refused to defer the
presentation of petitioners evidence since petitioner did
not state when it would file the amended complaint. On
18 April 1989, the Sandiganbayan set the continuation of
the presentation of evidence on 28-29 September and 9-
11 October 1989, giving petitioner ample time to prepare
its evidence. Still, on 28 September 1989, petitioner
manifested its inability to proceed with the presentation
of its evidence. The Sandiganbayan issued an Order
expressing its view on the matter, to wit:
The Court has gone through extended inquiry and a
narration of the above events because this case has been
ready for trial for over a year and much of the delay
hereon has been due to the inability of the government
to produce on scheduled dates for pre-trial and for trial
documents and witnesses, allegedly upon the failure of
the military to supply them for the preparation of the
presentation of evidence thereon. Of equal interest is
the fact that this Court has been held to task in public
about its alleged failure to move cases such as this one
beyond the preliminary stage, when, in view of the
developments such as those of today, this Court is now
faced with a situation where a case already in progress
will revert back to the preliminary stage, despite a five-
month pause where appropriate action could have been
undertaken by the plaintiff Republic.[35]
On 9 October 1989, the PCGG manifested in court that it
was conducting a preliminary investigation on the
unexplained wealth of private respondents as mandated
by RA No. 1379.[36]The PCGG prayed for an additional
four months to conduct the preliminary investigation.
The Sandiganbayan granted this request and scheduled
the presentation of evidence on 26-29 March
1990. However, on the scheduled date, petitioner failed
to inform the court of the result of the preliminary
investigation the PCGG supposedly conducted. Again,
the Sandiganbayan gave petitioner until 18 May 1990 to
continue with the presentation of its evidence and to
inform the court of what lies ahead insofar as the status
of the case is concerned x x x.[37] Still on the date set,
petitioner failed to present its evidence. Finally, on 11
July 1990, petitioner filed its Re-Amended
Complaint.[38] The Sandiganbayan correctly observed
that a case already pending for years would revert to its
preliminary stage if the court were to accept the Re-
Amended Complaint.
Based on these circumstances, obviously petitioner has
only itself to blame for failure to complete the
presentation of its evidence. The Sandiganbayan gave
petitioner more than sufficient time to finish the
presentation of its evidence. The Sandiganbayan
overlooked petitioners delays and yet petitioner ended
the long-string of delays with the filing of a Re-Amended
Complaint, which would only prolong even more the
disposition of the case.
Moreover, the pronouncements of the Court
in Migrino and Cruz prompted the Sandiganbayan to
dismiss the case since the PCGG has no jurisdiction to
investigate and prosecute the case against private
respondents. This alone would have been sufficient legal
basis for the Sandiganbayan to dismiss the forfeiture
case against private respondents.
Thus, we hold that the Sandiganbayan did not err in
dismissing the case before completion of the
presentation of petitioners evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in
declaring the properties confiscated from Dimaanos
house as illegally seized and therefore inadmissible in
evidence. This issue bears a significant effect on
petitioners case since these properties comprise most of
petitioners evidence against private respondents.
Petitioner will not have much evidence to support its
case against private respondents if these properties are
inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served
at Dimaanos residence a search warrant captioned Illegal
Possession of Firearms and Ammunition. Dimaano was
not present during the raid but Dimaanos 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 P2,870,000 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.[39]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.[40] 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
 32 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
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.
Petitioner is partly right in its arguments.
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.[41] 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 correct issues are: (1) whether the revolutionary
government was bound by the Bill of Rights of the 1973
Constitution during the interregnum, that is, 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.
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. As the Court explained in Letter of
Associate Justice Reynato S. Puno:[42]
A revolution has been defined as the complete
overthrow of the established government in any country
or state by those who were previously subject to it or as
a sudden, radical and fundamental change in the
government or political system, usually effected with
violence or at least some acts of violence. In Kelsen's
book, General Theory of Law and State, it is defined as
that which occurs whenever the legal order of a
community is nullified and replaced by a new order . . . a
way not prescribed by the first order itself.
It was through the February 1986 revolution, a relatively
peaceful one, and more popularly known as the people
power revolution that the Filipino people tore
themselves away from an existing regime. This
revolution also saw the unprecedented rise to power of
the Aquino government.
From the natural law point of view, the right of
revolution has been defined as an inherent right of a
people to cast out their rulers, change their policy or
effect radical reforms in their system of government or
institutions by force or a general uprising when the legal
and constitutional methods of making such change have
proved inadequate or are so obstructed as to be
unavailable. It has been said that the locus of positive
law-making power lies with the people of the state and
from there is derived the right of the people to abolish,
to reform and to alter any existing form of government
without regard to the existing constitution.
xxx
It is widely known that Mrs. Aquinos rise to the
presidency was not due to constitutional processes; in
fact, it was achieved in violation of the provisions of the
1973 Constitution as a Batasang Pambansa resolution
had earlier declared Mr. Marcos as the winner in the
1986 presidential election. Thus it can be said that the
organization of Mrs. Aquinos Government which was
met by little resistance and her control of the state
evidenced by the appointment of the Cabinet and other
key officers of the administration, the departure of the
Marcos Cabinet officials, revamp of the Judiciary and the
Military signaled the point where the legal system then
in effect, had ceased to be obeyed by the
Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973
Constitution remained operative during the interregnum
would render void all sequestration orders issued by the
Philippine Commission on Good Government (PCGG)
before the adoption of the Freedom Constitution. The
sequestration orders, which direct the freezing and even
the take-over of private property by mere executive
issuance without judicial action, would violate the due
process and search and seizure clauses of the Bill of
Rights.
During the interregnum, the government in power was
concededly a revolutionary government bound by no
constitution. No one could validly question the
sequestration orders as violative of the Bill of Rights
because there was no Bill of Rights during the
interregnum. However, upon the adoption of the
Freedom Constitution, the sequestered companies
 33 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
assailed the sequestration orders as contrary to the Bill
of Rights of the Freedom Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs.
Presidential Commission on Good
Government,[43] petitioner Baseco, while conceding
there was no Bill of Rights during the interregnum,
questioned the continued validity of the sequestration
orders upon adoption of the Freedom Constitution in
view of the due process clause in its Bill of Rights. The
Court ruled that the Freedom Constitution, and later the
1987 Constitution, expressly recognized the validity of
sequestration orders, thus:
If any doubt should still persist in the face of the
foregoing considerations as to the validity and propriety
of sequestration, freeze and takeover orders, it should be
dispelled by the fact that these particular remedies and
the authority of the PCGG to issue them have received
constitutional approbation and sanction. As already
mentioned, the Provisional or Freedom Constitution
recognizes the power and duty of the President to enact
measures to achieve the mandate of the people to . . .
(r)ecover ill-gotten properties amassed by the leaders
and supporters of the previous regime and protect the
interest of the people through orders of sequestration or
freezing of assets or accounts. And as also already
adverted to, Section 26, Article XVIII of the 1987
Constitution treats of, and ratifies the authority to issue
sequestration or freeze orders under Proclamation No. 3
dated March 25, 1986.
The framers of both the Freedom Constitution and the
1987 Constitution were fully aware that the
sequestration orders would clash with the Bill of
Rights. Thus, the framers of both constitutions had to
include specific language recognizing the validity of the
sequestration orders. The following discourse by
Commissioner Joaquin G. Bernas during the
deliberations of the Constitutional Commission is
instructive:
FR. BERNAS: Madam President, there is something
schizophrenic about the arguments in defense of the
present amendment.
For instance, I have carefully studied Minister Salongas
lecture in the Gregorio Araneta University Foundation, of
which all of us have been given a copy. On the one hand,
he argues that everything the Commission is doing is
traditionally legal. This is repeated by Commissioner
Romulo also. Minister Salonga spends a major portion of
his lecture developing that argument. On the other hand,
almost as an afterthought, he says that in the end what
matters are the results and not the legal niceties, thus
suggesting that the PCGG should be allowed to make
some legal shortcuts, another word for niceties or
exceptions.
Now, if everything the PCGG is doing is legal, why is it
asking the CONCOM for special protection? The answer
is clear. What they are doing will not stand the test of
ordinary due process, hence they are asking for
protection, for exceptions. Grandes malos, grandes
remedios, fine, as the saying stands, but let us not say
grandes malos, grande y malos remedios. That is not an
allowable extrapolation. Hence, we should not give the
exceptions asked for, and let me elaborate and give three
reasons:
First, the whole point of the February Revolution and of
the work of the CONCOM is to hasten constitutional
normalization. Very much at the heart of the
constitutional normalization is the full effectivity of the
Bill of Rights. We cannot, in one breath, ask for
constitutional normalization and at the same time ask for
a temporary halt to the full functioning of what is at the
heart of constitutionalism. That would be hypocritical;
that would be a repetition of Marcosian protestation of
due process and rule of law. The New Society word for
that is backsliding. It is tragic when we begin to backslide
even before we get there.
Second, this is really a corollary of the first. Habits tend
to become ingrained. The committee report asks for
extraordinary exceptions from the Bill of Rights for six
months after the convening of Congress, and Congress
may even extend this longer.
Good deeds repeated ripen into virtue; bad deeds
repeated become vice. What the committee report is
asking for is that we should allow the new government
to acquire the vice of disregarding the Bill of Rights.
Vices, once they become ingrained, become difficult to
shed. The practitioners of the vice begin to think that
they have a vested right to its practice, and they will fight
tooth and nail to keep the franchise. That would be an
unhealthy way of consolidating the gains of a democratic
revolution.
Third, the argument that what matters are the results
and not the legal niceties is an argument that is very
disturbing. When it comes from a staunch Christian like
Commissioner Salonga, a Minister, and repeated
verbatim by another staunch Christian like
Commissioner Tingson, it becomes doubly disturbing and
even discombobulating. The argument makes the PCGG
an auctioneer, placing the Bill of Rights on the auction
block. If the price is right, the search and seizure clause
will be sold. Open your Swiss bank account to us and we
will award you the search and seizure clause. You can
keep it in your private safe.
Alternatively, the argument looks on the present
government as hostage to the hoarders of hidden
wealth. The hoarders will release the hidden health if the
ransom price is paid and the ransom price is the Bill of
 34 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
Rights, specifically the due process in the search and
seizure clauses. So, there is something positively
revolving about either argument. The Bill of Rights is not
for sale to the highest bidder nor can it be used to
ransom captive dollars. This nation will survive and grow
strong, only if it would become convinced of the values
enshrined in the Constitution of a price that is beyond
monetary estimation.
For these reasons, the honorable course for the
Constitutional Commission is to delete all of Section 8 of
the committee report and allow the new Constitution to
take effect in full vigor. If Section 8 is deleted, the PCGG
has two options. First, it can pursue the Salonga and the
Romulo argument that what the PCGG has been doing
has been completely within the pale of the law. If
sustained, the PCGG can go on and should be able to go
on, even without the support of Section 8. If not
sustained, however, the PCGG has only one honorable
option, it must bow to the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by
staunch Christians. Let me conclude with what another
Christian replied when asked to toy around with the law.
From his prison cell, Thomas More said, "I'll give the devil
benefit of law for my nations safety sake. I ask the
Commission to give the devil benefit of law for our
nations sake. And we should delete Section 8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas
against the amendment
excepting sequestration orders from the Bill of Rights, t
he Constitutional Commission still adopted the
amendment as Section 26,[44] Article XVIII of the 1987
Constitution. The framers of the Constitution were fully
aware that absent Section 26, sequestration orders
would not stand the test of due process under the Bill of
Rights.
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
States 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 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.[46] Thus, the revolutionary government was
also obligated under international law to observe the
rights[47] 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 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. The Provisional
Constitution adopted verbatim the Bill of Rights of the
1973 Constitution.[48] 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.
During the interregnum when no constitution or Bill of
Rights existed, directives and orders issued by
government officers were valid so long as these officers
did not exceed the authority granted them by the
revolutionary government. The directives and orders
should not have also violated the Covenant or the
Declaration. In this case, the revolutionary government
presumptively sanctioned the warrant since the
revolutionary government did not repudiate it. The
warrant, issued by a judge upon proper application,
specified the items to be searched and seized. The
warrant is thus valid with respect to the items specifically
described in the warrant.
 35 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
However, the Constabulary raiding team seized items not
included in the warrant. As admitted by petitioners
witnesses, the raiding team confiscated items not
included in the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES
Q. According to the search warrant, you are supposed to
seize only for weapons. What else, aside from the
weapons, were seized from the house of Miss Elizabeth
Dimaano?
A. The communications equipment, money in Philippine
currency and US dollars, some jewelries, land titles, sir.
Q. Now, the search warrant speaks only of weapons to
be seized from the house of Elizabeth Dimaano. Do you
know the reason why your team also seized other
properties not mentioned in said search warrant?
A. During the conversation right after the conduct of said
raid, I was informed that the reason why they also
brought the other items not included in the search
warrant was because the money and other jewelries
were contained in attach cases and cartons with
markings Sony Trinitron, and I think three (3) vaults or
steel safes. Believing that the attach cases and the steel
safes were containing firearms, they forced open these
containers only to find out that they contained money.
xxx
Q. You said you found money instead of weapons, do you
know the reason why your team seized this money
instead of weapons?
A. I think the overall team leader and the other two
officers assisting him decided to bring along also the
money because at that time it was already dark and they
felt most secured if they will bring that because they
might be suspected also of taking money out of those
items, your Honor.[49]
Cross-examination
Atty. Banaag
Q. Were you present when the search warrant in
connection with this case was applied before the
Municipal Trial Court of Batangas, Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the
search and seizure of five (5) baby armalite rifles M-16
and five (5) boxes of ammunition?
A. Yes, sir.
xxx
AJ AMORES
Q. Before you applied for a search warrant, did you
conduct surveillance in the house of Miss Elizabeth
Dimaano?
A. The Intelligence Operatives conducted surveillance
together with the MSU elements, your Honor.
Q. And this party believed there were weapons
deposited in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the
search warrant, any other properties or contraband
which could be found in the residence of Miss Elizabeth
Dimaano?
A. They just gave us still unconfirmed report about some
hidden items, for instance, the communications
equipment and money. However, I did not include that
in the application for search warrant considering that we
have not established concrete evidence about that. So
when
Q. So that when you applied for search warrant, you had
reason to believe that only weapons were in the house
of Miss Elizabeth Dimaano?
A. Yes, your Honor.[50]
xxx
Q. You stated that a .45 caliber pistol was seized along
with one armalite rifle M-16 and how many
ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with
the issuing Court, with the fiscals office who charged
Elizabeth Dimaano for Illegal Possession of Firearms and
Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
Q. In the fiscals office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the
.45 caliber pistol had a Memorandum Receipt in the
name of Felino Melegrito, is that not correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not
included in the search warrant, like for instance,
jewelries. Why did you seize the jewelries?
 36 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4

A. I think it was the decision of the overall team leader SO ORDERED.

and his assistant to bring along also the jewelries and
other items, sir. I do not really know where it was taken
but they brought along also these articles. I do not really
know their reason for bringing the same, but I just
learned that these were taken because they might get
lost if they will just leave this behind.

xxx

Q. How about the money seized by your raiding team,

they were not also included in the search warrant?

A. Yes sir, but I believe they were also taken considering

that the money was discovered to be contained in attach
cases. These attach cases were suspected to be
containing pistols or other high powered firearms, but in
the course of the search the contents turned out to be
money. So the team leader also decided to take this
considering that they believed that if they will just leave
the money behind, it might get lost also.

Q. That holds true also with respect to the other articles

that were seized by your raiding team, like Transfer
Certificates of Title of lands?

A. Yes, sir. I think they were contained in one of the

vaults that were opened.[51]

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.[52] 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,[53] 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.

WHEREFORE, the petition for certiorari

is DISMISSED. The questioned Resolutions of the
Sandiganbayan dated 18 November 1991 and 25 March
1992 in Civil Case No. 0037, remanding the records of this
case to the Ombudsman for such appropriate action as
the evidence may warrant, and referring this case to the
Commissioner of the Bureau of Internal Revenue for a
determination of any tax liability of respondent Elizabeth
Dimaano, are AFFIRMED.
 37 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
REPUBLIC VS. SANDIGANBAYAN, G.R. NO.
104768, JULY 21, 2003
SEPTEMBER 12, 2018
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. 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”). Later, the AFP Board issued a Resolution on
its findings and recommendation on the reported
unexplained wealth of Ramas.
On 3 March 1986, the Constabulary raiding team served
at Dimaano’s 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. The raiding team seized firearms,
jewelry, and land titles.
Thus, on 1 August 1987, the PCGG filed a petition for
forfeiture under Republic Act No. 1379 (“RA No.
1379”) against Ramas. The complaint was amended to
include Elizabeth Dimaano, the alleged mistress of
Ramas, as co-defendant.
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.” The Amended Complaint prayed for, among
others, the forfeiture of respondents’ properties, funds
and equipment in favor of the State.
Trial ensured. However, the Sandiganbayan
subsequently dismissed the complaint because there
was an illegal search and seizure of the items
confiscated, among others.
Hence, this appeal.
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 or not the search of Dimaano’s home was legal
Held:
The search and seizure of Dimaano’s home were NOT
legal.
The Bill of Rights under the 1973 Constitution was not
operative during the interregnum.
The EDSA Revolution took place on 23-25 February 1986.
As succinctly stated in President Aquino’s 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.
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
 38 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
right under a Bill of Rights because there was neither a
constitution nor a Bill of Rights during the interregnum.
To hold that the Bill of Rights under the 1973
Constitution remained operative during the interregnum
would render void all sequestration orders issued by the
Philippine Commission on Good Government (“PCGG”)
before the adoption of the Freedom Constitution. The
sequestration orders, which direct the freezing and even
the take-over of private property by mere executive
issuance without judicial action, would violate the due
process and search and seizure clauses of the Bill of
Rights.
During the interregnum, the government in power was
concededly a revolutionary government bound by no
constitution. No one could validly question the
sequestration orders as violative of the Bill of Rights
because there was no Bill of Rights during the
interregnum.
The protection accorded to individuals under the
International Covenant on Civil and Political Rights
(ICCPR) and the Universal Declaration of Human Rights
(UDHR) remained in effect during the interregnum.
Nevertheless, even during the interregnum the Filipino
people continued to enjoy, under the ICCPR and the
UDHR, 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 ICCPR to which
the Philippines is a signatory. Article 2(1) of the ICCPR
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 ICCPR.”
Under Article 17(1) of the ICCPR, 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 UDHR, 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 UDHR did not intend it as a legally
binding document, being only a UDHR, the Court has
interpreted the UDHR 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 UDHR.
The revolutionary government did not repudiate the
ICCPR or the UDHR during the interregnum. Whether the
revolutionary government could have repudiated all its
obligations under the ICCPR or the UDHR is another
matter and is not the issue here. Suffice it to say that the
Court considers the UDHR 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 ICCPR. The fact is the revolutionary
government did not repudiate the ICCPR or the UDHR 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.
During the interregnum when no constitution or Bill of
Rights existed, directives and orders issued by
government officers were valid so long as these officers
did not exceed the authority granted them by the
revolutionary government. The directives and orders
should not have also violated the ICCPR or the UDHR. In
this case, the revolutionary government presumptively
sanctioned the warrant since the revolutionary
government did not repudiate it. The warrant, issued by
a judge upon proper application, specified the items to
be searched and seized. The warrant is thus valid with
respect to the items specifically described in the warrant.
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.
 39 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
577 F. Supp. 860 (1984)
DOLLY M.E. FILARTIGA AND JOEL
FILARTIGA, PLAINTIFFS, V.
AMERICO NORBERTO PENA-IRALA,
DEFENDANT.
No. 79 C 917.
United States District Court, E.D. New York.
January 10, 1984.
*861 Center for Constitutional Rights, New York City
(Peter Weiss, Rhonda Copelon, Betty Lawrence Bailey,
New York City of counsel), Michael Maggio,
Washington, D.C., for plaintiffs.
Steven M. Schneebaum, Washington, D.C., for amicus
curiae Intern. Human Rights Law Group.
MEMORANDUM AND ORDER
NICKERSON, District Judge.
Plaintiffs, Dolly M.E. and Dr. Joel Filartiga, citizens of
Paraguay, brought this action against defendant Pena,
also a Paraguayan citizen, and the former Inspector
General of Police of Asuncion. They alleged that Pena
tortured and murdered Joelito Filartiga, the seventeen
year old brother and son, respectively, of plaintiffs, in
retaliation for Dr. Filartiga's opposition to President
Alfredo Stroessner's government. Plaintiffs invoked
jurisdiction under, among other provisions, 28 U.S.C. §
1350, giving the district court "original jurisdiction of any
civil action by an alien for a tort only, committed in
violation of the law of nations or a treaty of the United
States."
This court followed what it deemed the binding
precedents of IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir.
1975) and Dreyfus v. von Finck, 534 F.2d 24 (2d Cir.), cert.
denied, 429 U.S. 835, 97 S. Ct. 102, 50 L. Ed. 2d 101
(1976), and dismissed for lack of jurisdiction on the
ground that violations of the law of nations "do not occur
when the aggrieved parties are nationals of the acting
state," id. at 31.
The Court of Appeals reversed and remanded,
concluding that the above quoted language from
the Dreyfus opinion was "clearly out of tune with the
current usage and practice of international
law." Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d
Cir.1980). The Court of Appeals held that "deliberate
torture perpetrated under color of official authority
violates universally accepted norms of the international
law of human rights, regardless of the nationality of the
parties," and that 28 U.S.C. § 1350 gave jurisdiction over
an action asserting such a tort committed in violation of
the law of nations. Id. at 878.
Following remand Pena took no further part in the
action. This court granted a default and referred the
question of damages to Magistrate John L. Caden for a
report. The Magistrate, after a hearing, recommended
damages of $200,000 for Dr. *862 Joel Filartiga and
$175,000 for Dolly Filartiga. Plaintiffs filed objections to
the report, and the matter is now here for
determination.
I
Before addressing damages the court considers two
matters urged before but not decided by the Court of
Appeals. Both go to whether the court should decline to
exercise jurisdiction.
The first is whether the court should abstain in deference
to the so-called act of state doctrine. See Banco Nacional
de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923, 11 L.
Ed. 2d 804 (1964). Were the government of Paraguay
concerned that a judgment by the court as to the
propriety of Pena's conduct would so offend that
government as to affect adversely its relations with the
United States, presumably Paraguay would have had the
means so to advise the court.
In any event, the Court of Appeals held that the alleged
acts constitute, by the "general assent of civilized
nations," a "clear and unambiguous" violation of the law
of nations. 630 F.2d at 881, 884. As the Supreme Court
noted in discussing the act of state doctrine in
the Sabbatino decision, "the greater the degree of
codification or consensus concerning a particular area of
international law, the more appropriate it is for the
judiciary to render decisions regarding it." 376 U.S. at
428, 84 S. Ct. at 940. Where the principle of international
law is as clear and universal as the Court of Appeals has
found it to be, there is no reason to suppose that this
court's assumption of jurisdiction would give justifiable
offense to Paraguay.
Moreover, as the Court of Appeals noted, Paraguay has
not ratified Pena's acts, 630 F.2d at 889, and this alone is
sufficient to show that they were not acts of
state. See Alfred Dunhill of London, Inc. v. Republic of
Cuba, 425 U.S. 682, 684, 694, 96 S. Ct. 1854, 1856, 1861,
48 L. Ed. 2d 301 (1976).
 40 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
Pena argued here on the original motion and in the Court
of Appeals that this court should decline to proceed
because Paraguay and not the United States is the
convenient forum. Pena's default now casts doubt on the
good faith of this contention. Its merits depend on
whether the courts of Paraguay are not only more
convenient than this court but as available and prepared
to do justice. Piper Aircraft Co. v. Reyno, 454 U.S. 235,
254 n. 22, 102 S. Ct. 252, 265 n. 22, 70 L. Ed. 2d 419
(1981). Pena submitted nothing to cast doubt on
plaintiffs' evidence showing that further resort to
Paraguayan courts would be futile. This court will
therefore retain jurisdiction.
II
The Court of Appeals decided only that Section 1350
gave jurisdiction. We must now face the issue left open
by the Court of Appeals, namely, the nature of the
"action" over which the section affords jurisdiction. Does
the "tort" to which the statute refers mean a wrong "in
violation of the law of nations" or merely a wrong
actionable under the law of the appropriate sovereign
state? The latter construction would make the violation
of international law pertinent only to afford jurisdiction.
The court would then, in accordance with traditional
conflict of laws principles, apply the substantive law of
Paraguay. If the "tort" to which the statute refers is the
violation of international law, the court must look to that
body of law to determine what substantive principles to
apply.
The word "tort" has historically meant simply "wrong" or
"the opposite of right," so-called, according to Lord Coke,
because it is "wrested" or "crooked," being contrary to
that which is "right" and "straight". Sir Edward Coke on
Littleton 158b; see also W. Prosser, Law of Torts 2 (1971).
There was nothing about the contemporary usage of the
word in 1789, when Section 1350 was adopted, to
suggest that it should be read to encompass wrongs
defined as such by a national state but not by
international law. Even before the adoption of the
Constitution piracy was defined as a crime by the law of
nations. *863 United States v. Smith, 18 U.S. (5 Wheat.)
153, 157, 5 L. Ed. 57 (1820). As late as 1819 Congress
passed legislation, now 18 U.S.C. § 1651, providing for
punishment of "the crime of piracy, as defined by the law
of nations." 3 Stat. 510 (1819). Congress would hardly
have supposed when it enacted Section 1350 that a
"crime," but not the comparable "tort," was definable by
the law of nations. Nor is there any legislative history of
the section to suggest such a limitation.
Accordingly, there is no basis for adopting a narrow
interpretation of Section 1350 inviting frustration of the
purposes of international law by individual states that
enact immunities for government personnel or other
such exemptions or limitations. The court concludes that
it should determine the substantive principles to be
applied by looking to international law, which, as the
Court of Appeals stated, "became a part of the common
law of the United States upon the adoption of the
Constitution." 630 F.2d at 886 (emphasis in original); see
also The Nereide, 13 U.S. (9 Cranch) 388, 422, 3 L. Ed. 769
(1815) (Marshall, C.J.); The Paquete Habana, 175 U.S.
677, 700, 20 S. Ct. 290, 299, 44 L. Ed. 320 (1900).
The international law described by the Court of Appeals
does not ordain detailed remedies but sets forth norms.
But plainly international "law" does not consist of mere
benevolent yearnings never to be given effect. Indeed,
the Declaration on the Protection of All Persons from
Being Subjected to Torture, General Assembly Resolution
3452, 30 U.N. GAOR Supp. (No. 34) 91, U.N. Doc. A/1034
(1975), adopted without dissent by the General
Assembly, recites that where an act of torture has been
committed by or at the instigation of a public official, the
victim shall be afforded redress and compensation "in
accordance with national law," art. 11, and that "[e]ach
state" shall ensure that all acts of torture are offenses
under its criminal law, art. 7.
The international law prohibiting torture established the
standard and referred to the national states the task of
enforcing it. By enacting Section 1350 Congress
entrusted that task to the federal courts and gave them
power to choose and develop federal remedies to
effectuate the purposes of the international law
incorporated into United States common law.
In order to take the international condemnation of
torture seriously this court must adopt a remedy
appropriate to the ends and reflective of the nature of
the condemnation. Torture is viewed with universal
abhorrence; the prohibition of torture by international
consensus and express international accords is clear and
unambiguous; and "for purposes of civil liability, the
torturer has become like the pirate and the slave trader
before him hostis humani generis, an enemy of all
mankind." 630 F.2d at 884, 888, 890. We are dealing not
with an ordinary case of assault and battery. If the courts
of the United States are to adhere to the consensus of
the community of humankind, any remedy they fashion
must recognize that this case concerns an act so
monstrous as to make its perpetrator an outlaw around
the globe.
III
The common law of the United States includes, of course,
the principles collected under the rubric of conflict of
 41 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
laws. For the most part in international matters those
principles have been concerned with the relevant
policies of the interested national states, and with "the
needs" of the "international systems." Restatement
(Second) of Conflict of Laws (1971) § 6(2). The chief
function of international choice-of-law rules has been
said to be to further harmonious relations and
commercial intercourse between states. Id., comment d.
However, where the nations of the world have adopted
a norm in terms so formal and unambiguous as to make
it international "law," the interests of the global
community transcend those of any one state. That does
not mean that traditional choice-of-law principles are
irrelevant. Clearly the court should consider the interests
of *864 Paraguay to the extent they do not inhibit the
appropriate enforcement of the applicable international
law or conflict with the public policy of the United States.
In this case the torture and death of Joelito occurred in
Paraguay. The plaintiffs and Pena are Paraguayan and
lived in Paraguay when the torture took place, although
Dolly Filartiga has applied for permanent asylum in the
United States. It was in Paraguay that plaintiffs suffered
the claimed injuries, with the exception of the emotional
trauma which followed Dolly Filartiga to this country. The
parties' relationships with each other and with Joelito
were centered in Paraguay.
Moreover, the written Paraguayan law prohibits torture.
The Constitution of Paraguay, art. 50. The Paraguayan
Penal Code, art. 337, provides that homicide by torture
is punishable by a imprisonment for 15 to 20 years.
Affidavit of Alejandro Miguel Garro, December 9, 1982
(Garro Aff.), ¶ 31. Paraguay is a signatory to the American
Convention on Human Rights, which proscribes the use
of torture. Paraguayan law purports to allow recovery for
wrongful death, including specific pecuniary damages,
"moral damage," and court costs and attorney's fees.
Thus, the pertinent formal Paraguayan law is
ascertainable.
All these factors make it appropriate to look first to
Paraguayan law in determining the remedy for the
violation of international law. See Lauritzen v.
Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed. 1254 (1953);
Restatement (Second) of Conflict of Laws (1971) §
145(2). It might be objected that, despite Paraguay's
official ban on torture, the "law" of that country is what
it does in fact, Holmes, The Path of the Law, 10
Harv.L.Rev. 457, 461 (1897), and torture persists
throughout the country. Amnesty International Report
on Torture (1975) 214-16; D. Helfield and W. Wipfler,
Mbarete: The Higher Law of Paraguay (The International
League for Human Rights, 1980).
Where a nation's pronouncements form part of the
consensus establishing an international law, however, it
does not lie in the mouth of a citizen of that nation,
though it professes one thing and does another, to claim
that his country did not mean what it said. In concert
with the other nations of the world Paraguay prohibited
torture and thereby reaped the benefits the
condemnation brought with it. Paraguayan citizens may
not pretend that no such condemnation exists. If there
be hypocrisy, we can only say with La Rochefoucauld that
"hypocrisy is the homage which vice pays to virtue."
Reflections; or Sentences and Moral Maxims 218 (1678).
To the extent that Pena might have expected that
Paraguay would not hold him responsible for his official
acts, that was not a "justified" expectation, Restatement
(Second) of Conflict of Laws (1971) § 6(2) (d) and
comment g, so as to make unfair the application to him
of the written law of Paraguay.
IV
Plaintiffs claim punitive damages, and the Magistrate
recommended they be denied on the ground that they
are not recoverable under the Paraguayan Civil Code.
While compensable "moral" injuries under that code
include emotional pain and suffering, loss of
companionship and disruption of family life, Paraguayan
Civil Code, arts. 1102, 1103, 1112, plaintiffs' expert
agrees that the code does not provide for what United
States courts would call punitive damages. Paraguayan
law, in determining the intensity and duration of the
suffering and the consequent "moral" damages, takes
into account the heinous nature of the tort. However,
such damages are not justified by the desire to punish
the defendant. They are designed to compensate for the
greater pain caused by the atrocious nature of the act.
Garro Aff. ¶¶ 33, 34.
Yet because, as the record establishes, Paraguay will not
undertake to prosecute Pena for his acts, the objective
of the international law making torture punishable as a
crime can only be vindicated by imposing punitive
damages.
*865 It is true, as plaintiffs concede, that damages
designated punitive have rarely been awarded by
international tribunals. As explained in M. Whiteman,
Damages in International Law 716-17 (1937), the
international law of damages has developed chiefly in
the resolution of claims by one state on behalf of its
nationals against the other state, and the failure to
assess exemplary damages as such against a respondent
government may be explained by the absence of malice
or mala mens on the part of an impersonal government.
Here Pena and not Paraguay is the defendant. There is
no question of punishing a sovereign state or of
 42 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
attempting to hold the people of that state liable for a
governmental act in which they played no part.
Moreover, there is some precedent for the award of
punitive damages in tort even against a national
government. In I'm Alone (Canada v. United States), U.N.
Rep.Int.Arb. Awards, vol. 3, at 1609, the American and
Canadian claims Commissioners recommended, in
addition to compensatory damages, payment of $25,000
by the United States to Canada for intentionally sinking a
Canadian ship. In de Letelier v. Republic of Chile, 502 F.
Supp. 259, 266, 267 (D.D.C.1980), the court awarded
$2,000,000 in punitive damages against the Republic of
Chile and various of its employees to the survivors and
personal representatives of the former Chilean
Ambassador to the United States and a passenger in his
car, both killed by the explosion of a bomb. While the
court imposed the damages under domestic laws, it
mentioned that the "tortious actions" proven were "in
violation of international law." Id. at 266.
Where the defendant is an individual, the same
diplomatic considerations that prompt reluctance to
impose punitive damages are not present. The Supreme
Court in dicta has recognized that punishment is an
appropriate objective under the law of nations, saying
in The Marianna Flora, 24 U.S. (11 Wheat.) 1, 41, 6 L. Ed.
405 (1826), that "an attack from revenge and malignity,
from gross abuse of power, and a settled purpose of
mischief ... may be punished by all the penalties which
the law of nations can properly administer." In
developing common law remedies to implement the
rights secured by the Constitution, the Supreme Court
has stated that courts may award punitive damages in
actions based on the Constitution alone, Carlson v.
Green, 446 U.S. 14, 21-22, 100 S. Ct. 1468, 1472-1473, 64
L. Ed. 2d 15 (1980), and based on 42 U.S.C. § 1983, where
the legislation makes no reference to the nature and
extent of the damages to be awarded. Smith v.
Wade, ___ U.S. ___, 103 S. Ct. 1625, 75 L. Ed. 2d 632
(1983); Carey v. Piphus, 435 U.S. 247, 257 n. 11, 98 S. Ct.
1042, 1049 n. 11, 55 L. Ed. 2d 252 (1978).
This court concludes that it is essential and proper to
grant the remedy of punitive damages in order to give
effect to the manifest objectives of the international
prohibition against torture.
V
In concluding that the plaintiffs were entitled only to
damages recoverable under Paraguayan law, the
Magistrate recommended they be awarded $150,000
each as compensation for emotional pain and suffering,
loss of companionship and disruption of family life. He
also suggested that Dolly Filartiga receive $25,000 for her
future medical expenses for treatment of her psychiatric
impairment and that Dr. Filartiga receive $50,000 for
past expenses related to funeral and medical expenses
and to lost income. The Magistrate recommended
against an award of punitive damages and of $10,364 in
expenses incurred in connection with this action.
Plaintiffs object only to these last recommendations.
The court finds no reason to reject the opinion of the
plaintiffs' expert that the expenses incurred by them in
prosecuting this action are compensable under
Paraguayan law. Garro Aff. ¶¶ 21, 22. The United States
policy against forum shopping does not warrant a denial.
Plaintiffs could get no redress in Paraguay and sued Pena
where they found him.
In deciding to grant punitive damages the court is aware
of the concern that *866 such awards, designed to attain
objectives fostered chiefly by the criminal law, are
nevertheless made without at least some of the
safeguards afforded by that law, such as proof beyond a
reasonable doubt and the presumption of
innocence. Cf. Curtis Publishing Co. v. Butts, 388 U.S.
130, 159, 87 S. Ct. 1975, 1993, 18 L. Ed. 2d 1094
(1967); Malandris v. Merrill Lynch, Pierce, Fenner &
Smith, 703 F.2d 1152, 1172-73 (10th Cir.1981). However,
this concern, which may obtain increasing attention in
the future, is not pertinent here. Pena has defaulted and
has not sought such protections.
In determining the amount of punitive damages the
court must consider a variety of factors. Pena's assets are
pertinent. Brink's Inc. v. City of New York, 546 F. Supp.
403, 413 (S.D.N.Y.1982), but the burden is on the
defendant to show his modest means if he wishes them
considered in mitigation. Zarcone v. Perry, 572 F.2d 52,
56 (2d Cir.1978). The court has received no evidence on
the subject.
The nature of the acts is plainly important. Flaks v.
Koegel, 504 F.2d 702, 707 (2d Cir.1974); Promovoyage,
S.A.R.L. v. Bosco, 557 F. Supp. 1366, 1372 (S.D.N.Y. 1983).
The court need not comment upon the malice that
prompts one man to torture another in reprisal for the
deeds of his father or to say to the dead man's sister as
she left the corpse "shut up. Here you have what you
have been looking for and deserved." (Transcript at 16).
Nor would any purpose be served by detailing Pena's
conduct. Spread upon the records of this court is the
evidence of wounds and of fractures, of burning and
beating and of electric shock, of stabbing and whipping
and of mutilation, and finally, perhaps mercifully, of
death, in short, of the ultimate in human cruelty and
brutality.
Chief among the considerations the court must weigh is
the fact that this case concerns not a local tort but a
wrong as to which the world has seen fit to speak.
 43 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4

Punitive damages are designed not merely to teach a that the potential of injury to others was minimal
defendant not to repeat his conduct but to deter others because there was little likelihood of a recurrence, and
from following his example. Zarcone v. Perry, supra, 572 the injury, even assuming repetition, was loss of money
F.2d at 55. To accomplish that purpose this court must "not death or severe personal injury." 546 F. Supp. at
make clear the depth of the international revulsion 413-14.
against torture and measure the award in accordance
The record in this case shows that torture and death are
with the enormity of the offense. Thereby the judgment
bound to recur unless deterred. This court concludes
may perhaps have some deterrent effect.
that an award of punitive damages of no less than
There are no binding precedents to guide the court in $5,000,000 to each plaintiff is appropriate to reflect
determining what amount lies within those respectable adherence to the world community's proscription of
bounds that hedge the judiciary and yet may serve to torture and to attempt to deter its practice.
come to the attention of those who think to practice
torture. There have been large jury verdicts for punitive
damages against the press for conduct that no one would
claim is comparable to Pena's, for example, $25,000,000, VI
reduced by the district court to $12,500,000, Pring v.
Penthouse International, Ltd., No. 79-351 (D.Wyo. May Judgment may be entered for plaintiff Dolly M.E. Filartiga
23, 1979), to Miss Wyoming who claimed that Penthouse in the amount of $5,175,000 and for plaintiff Joel
Magazine unfavorably identified her in a fictional piece; Filartiga in the amount of $5,210,364, a total judgment
$2,500,000 against the Alton Telegraph in Illinois for of $10,385,364. So ordered.
reporting alleged wrongdoing of a contractor to the
Justice Department; and $1,300,000 to an actress who
asserted that the National Enquirer had implied she had
been drunk in a restaurant. Goodale, Getting Even with
the Press, N.Y.Law J., Aug. 11, 1982, at 1, col. 2. But often
such verdicts have been overturned as inconsistent with
the First Amendment, see, e.g., Pring v. Penthouse
International, Ltd., 695 F.2d 438 (10th Cir.1982), and
they are hardly persuasive here.

More pertinent is the punitive award of $2,000,000 by

the court in de Letelier v. Republic of Chile, supra, for the
murder by bombing of the former Chilean Ambassador
and his companion. Also germane is Malandris v. Merrill
Lynch, Pierce, Fenner & Smith, 447 F. Supp. 543 (D.Colo.
1977), where the District Court sustained a verdict of
$3,000,000 in punitive damages for acts far less
reprehensible than those of Pena. There the defendant
deceived the plaintiff and invested her life savings of
$60,000 in stock options, thereby causing a loss of
$30,000 and emotional injury. The court upheld the
verdict of $1,030,000 in *867 compensatory damages
and $3,000,000 in punitive damages. The Court of
Appeals affirmed on condition that plaintiff accept a
reduction in the punitive award to $1,000,000 and a total
judgment of $2,030,000. 703 F.2d 1152 (10th Cir.1981).

The decision in Brink's Inc. v. City of New York, supra, is

also apposite, particularly for the reasoning
distinguishing it from this case. There employees of a
firm collecting parking meter coins for the City stole
some of the proceeds. The jury found punitive damages
of $5,000,000 because the firm's management, knowing
of repeated illicit activities, recklessly failed to
investigate and discharge the employees. The court
granted a new trial unless the City agreed to a remittitur
in punitive damages to $1,500,000. The court reasoned
 44 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4

Facts. A suit claiming that Pena-Irala (D) had tortured

Filartiga’s (P) decedent to death while he was a police
Inspector General, was brought by Filartiga (P). All
parties were Paraguayan citizens. Jurisdiction was based
on the Allen Tort Statute, 28 U.S.C. S 1350, which
provided jurisdiction for tort committed in violation of
“the law of nations.”� The case was dismissed by the
district court for lack of jurisdiction to which Filartiga (P)
appealed.

Issue. For purpose of the Allen Tort Statute, may torture

be considered as a violation of the law of nations?

Held. (Judge not stated in casebook excerpt). Yes. For

purpose of the Allen Tort Statute, torture may be
considered to violate law of nations. The prohibition
against torture has become part of customary
international law. Various United Nations declarations
such as the Universal Declaration of Human Rights and
the 1975 Declaration on the Protection of All Persons
from Torture further portrays the fact that prohibition
against torture has become part of customary
international law. Torture has been officially renounced
in the vast majority of nations and this is the reason why
this court concluded that torture violates the law of
nations.

Discussion. It is not new for many members of the

United Nations to make pronouncements and not be
pronouncements into action. It is no secret that torture
is still widely practiced if not by a majority of countries
then in a significant manner. Actual practice, and not
U.N. declarations have been argued by commentators as
what constitute international law.
 45 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
WIGBERTO E. TAADA and ANNA DOMINIQUE
COSETENG, as members of the Philippine Senate and as
taxpayers; GREGORIO ANDOLANA and JOKER ARROYO
as members of the House of Representatives and as
taxpayers; NICANOR P. PERLAS and HORACIO R.
MORALES, both as taxpayers; CIVIL LIBERTIES UNION,
NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION,
CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES,
LIKAS-KAYANG KAUNLARAN FOUNDATION, INC.,
PHILIPPINE RURAL RECONSTRUCTION MOVEMENT,
DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG
PILIPINAS, INC., and PHILIPPINE PEASANT INSTITUTE, in
representation of various taxpayers and as non-
governmental organizations, petitioners, vs. EDGARDO
ANGARA, ALBERTO ROMULO, LETICIA RAMOS-
SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO,
RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO
HERRERA, JOSE LINA, GLORIA MACAPAGAL-ARROYO,
ORLANDO MERCADO, BLAS OPLE, JOHN OSMEA,
SANTANINA RASUL, RAMON REVILLA, RAUL ROCO,
FRANCISCO TATAD and FREDDIE WEBB, in their
respective capacities as members of the Philippine
Senate who concurred in the ratification by the
President of the Philippines of the Agreement
Establishing the World Trade Organization; SALVADOR
ENRIQUEZ, in his capacity as Secretary of Budget and
Management; CARIDAD VALDEHUESA, in her capacity
as National Treasurer; RIZALINO NAVARRO, in his
capacity as Secretary of Trade and Industry; ROBERTO
SEBASTIAN, in his capacity as Secretary of Agriculture;
ROBERTO DE OCAMPO, in his capacity as Secretary of
Finance; ROBERTO ROMULO, in his capacity as
Secretary of Foreign Affairs; and TEOFISTO T.
GUINGONA, in his capacity as Executive
Secretary, respondents.
DECISION
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade
Organization, abetted by the membership thereto of the
vast majority of countries has revolutionized
international business and economic relations amongst
states. It has irreversibly propelled the world towards
trade liberalization and economic
globalization. Liberalization, globalization, deregulation
and privatization, the third-millennium buzz words, are
ushering in a new borderless world of business by
sweeping away as mere historical relics the heretofore
traditional modes of promoting and protecting national
economies like tariffs, export subsidies, import quotas,
quantitative restrictions, tax exemptions and currency
controls. Finding market niches and becoming the best in
specific industries in a market-driven and export-
oriented global scenario are replacing age-old beggar-
thy-neighbor policies that unilaterally protect weak and
inefficient domestic producers of goods and services. In
the words of Peter Drucker, the well-known
management guru, Increased participation in the world
economy has become the key to domestic economic
growth and prosperity.
Brief Historical Background
To hasten worldwide recovery from the devastation
wrought by the Second World War, plans for the
establishment of three multilateral institutions --
inspired by that grand political body, the United Nations
-- were discussed at Dumbarton Oaks and Bretton
Woods. The first was the World Bank (WB) which was to
address the rehabilitation and reconstruction of war-
ravaged and later developing countries; the second, the
International Monetary Fund (IMF) which was to deal
with currency problems; and the third, the International
Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral
protectionist policies that invite challenge, even
retaliation, from other states. However, for a variety of
reasons, including its non-ratification by the United
States, the ITO, unlike the IMF and WB, never took
off. What remained was only GATT -- the General
Agreement on Tariffs and Trade. GATT was a collection
of treaties governing access to the economies of treaty
adherents with no institutionalized body administering
the agreements or dependable system of dispute
settlement.
After half a century and several dizzying rounds of
negotiations, principally the Kennedy Round, the Tokyo
Round and the Uruguay Round, the world finally gave
birth to that administering body -- the World Trade
Organization -- with the signing of the Final Act in
Marrakesh, Morocco and the ratification of the WTO
Agreement by its members.[1]
Like many other developing countries, the Philippines
joined WTO as a founding member with the goal, as
articulated by President Fidel V. Ramos in two letters to
the Senate (infra), of improving Philippine access to
foreign markets, especially its major trading partners,
through the reduction of tariffs on its exports,
particularly agricultural and industrial products. The
President also saw in the WTO the opening of new
opportunities for the services sector x x x, (the reduction
of) costs and uncertainty associated with exporting x x x,
and (the attraction of) more investments into the
country. Although the Chief Executive did not expressly
mention it in his letter, the Philippines - - and this is of
 46 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
special interest to the legal profession - - will benefit
from the WTO system of dispute settlement by judicial
adjudication through the independent WTO settlement
bodies called (1) Dispute Settlement Panels and (2)
Appellate Tribunal.Heretofore, trade disputes were
settled mainly through negotiations where solutions
were arrived at frequently on the basis of relative
bargaining strengths, and where naturally, weak and
underdeveloped countries were at a disadvantage.
The Petition in Brief
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.
Simply stated, does the Philippine Constitution prohibit
Philippine participation in worldwide trade liberalization
and economic globalization? Does it prescribe Philippine
integration into a global economy that is liberalized,
deregulated and privatized? These are the main
questions raised in this petition for certiorari, prohibition
and mandamus under Rule 65 of the Rules of Court
praying (1) for the nullification, on constitutional
grounds, of the concurrence of the Philippine Senate in
the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization
(WTO Agreement, for brevity) and (2) for the prohibition
of its implementation and enforcement through the
release and utilization of public funds, the assignment of
public officials and employees, as well as the use of
government properties and resources by respondent-
heads of various executive offices concerned
therewith. This concurrence is embodied in Senate
Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then
Secretary of the Department of Trade and Industry
(Secretary Navarro, for brevity), 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, for brevity).
By signing the Final Act,[2] Secretary Navarro on behalf of
the Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for
the consideration of their respective competent
authorities, with a view to seeking approval of the
Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine
Senate received a letter dated August 11, 1994 from the
President of the Philippines,[3] stating among others that
the Uruguay Round Final Act is hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article
VII of the Constitution.
On August 13, 1994, the members of the Philippine
Senate received another letter from the President of the
Philippines[4] likewise dated August 11, 1994, which
stated among others that the Uruguay Round Final Act,
the Agreement Establishing the World Trade
Organization, the Ministerial Declarations and Decisions,
and the Understanding on Commitments in Financial
Services are hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the
Constitution.
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.[5]
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
[6]
Organization. The text of the WTO Agreement is
written on pages 137 et seq. of Volume I of the 36-
volume Uruguay Round of Multilateral Trade
Negotiations and includes various agreements and
associated legal instruments (identified in the said
Agreement as Annexes 1, 2 and 3 thereto and collectively
referred to as Multilateral Trade Agreements, for
brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
 47 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and
Annexes
Annex 1C: Agreement on Trade-Related Aspects of
Intellectual Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing the
Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines
signed[7] the Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS,
President of the Republic of the Philippines, after having
seen and considered the aforementioned Agreement
Establishing the World Trade Organization and the
agreements and associated legal instruments included in
Annexes one (1), two (2) and three (3) of that Agreement
which are integral parts thereof, signed at Marrakesh,
Morocco on 15 April 1994, do hereby ratify and confirm
the same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the
President of the Philippines 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. In
his Memorandum dated May 13, 1996,[8] the Solicitor
General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-
five declarations and decisions on a wide range of
matters, such as measures in favor of least developed
countries, notification procedures, relationship of WTO
with the International Monetary Fund (IMF), and
agreements on technical barriers to trade and on dispute
settlement.
The Understanding on Commitments in Financial
Services dwell on, among other things, standstill or
limitations and qualifications of commitments to existing
non-conforming measures, market access, national
treatment, and definitions of non-resident supplier of
financial services, commercial presence and new
financial service.
On December 29, 1994, the present petition was
filed. After careful deliberation on respondents
comment and petitioners reply thereto, the Court
resolved on December 12, 1995, to give due course to
the petition, and the parties thereafter filed their
respective memoranda. The Court also requested the
Honorable Lilia R. Bautista, the Philippine Ambassador to
the United Nations stationed in Geneva, Switzerland, to
submit a paper, hereafter referred to as Bautista
Paper,[9] for brevity, (1) providing a historical background
of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the
Court directed:
(a) the petitioners to submit the (1) Senate Committee
Report on the matter in controversy and (2) the
transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to
file (1) a list of Philippine treaties signed prior to the
Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of
the multi-volume WTO Agreement and other documents
mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said
it would consider the case submitted for resolution. In a
Compliance dated September 16, 1996, the Solicitor
General submitted a printed copy of the 36-
volume Uruguay Round of Multilateral Trade
Negotiations, and in another Compliance dated October
24, 1996, he listed the various bilateral or multilateral
treaties or international instruments involving
derogation of Philippine sovereignty. Petitioners, on the
other hand, submitted their Compliance dated January
28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners
summarized the issues as follows:
A. Whether the petition presents a political question or
is otherwise not justiciable.
B. Whether the petitioner members of the Senate who
participated in the deliberations and voting leading to
the concurrence are estopped from impugning the
 48 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
validity of the Agreement Establishing the World Trade
Organization or of the validity of the concurrence.
C. Whether 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.
D. Whether provisions of the Agreement Establishing the
World Trade Organization unduly limit, restrict and
impair Philippine sovereignty specifically the legislative
power which, under Sec. 2, Article VI, 1987 Philippine
Constitution is vested in the Congress of the Philippines;
E. Whether provisions of the Agreement Establishing the
World Trade Organization interfere with the exercise of
judicial power.
F. Whether the respondent members of the Senate acted
in grave abuse of discretion amounting to lack or excess
of jurisdiction when they voted for concurrence in the
ratification of the constitutionally-infirm Agreement
Establishing the World Trade Organization.
G. Whether the respondent members of the Senate
acted in grave abuse of discretion amounting to lack or
excess of jurisdiction when they concurred only in the
ratification of the Agreement Establishing the World
Trade Organization, and not with the Presidential
submission which included the Final Act, Ministerial
Declaration and Decisions, and the Understanding on
Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for
respondents synthesized the several issues raised by
petitioners into the following:[10]
1. Whether or not the provisions of the Agreement
Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included
in Annexes one (1), two (2) and three (3) of that
agreement cited by petitioners directly contravene or
undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the 1987
Constitution.
2. Whether or not certain provisions of the Agreement
unduly limit, restrict or impair the exercise of legislative
power by Congress.
3. Whether or not certain provisions of the Agreement
impair the exercise of judicial power by this Honorable
Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate in the
ratification by the President of the Philippines of the
Agreement establishing the World Trade Organization
implied rejection of the treaty embodied in the Final Act.
By raising and arguing only four issues against the seven
presented by petitioners, the Solicitor General has
effectively ignored three, namely: (1) whether the
petition presents a political question or is otherwise not
justiciable; (2) whether petitioner-members of the
Senate (Wigberto E. Taada and Anna Dominique
Coseteng) are estopped from joining this suit; and (3)
whether the respondent-members of the Senate acted in
grave abuse of discretion when they voted for
concurrence in the ratification of the WTO
Agreement. The foregoing notwithstanding, this Court
resolved to deal with these three issues thus:
(1) The political question issue -- being very fundamental
and vital, and being a matter that probes into the very
jurisdiction of this Court to hear and decide this case --
was deliberated upon by the Court and will thus be ruled
upon as the first issue;
(2) The matter of estoppel will not be taken up because
this defense is waivable and the respondents have
effectively waived it by not pursuing it in any of their
pleadings; in any event, this issue, even if ruled in
respondents favor, will not cause the petitions dismissal
as there are petitioners other than the two senators,
who are not vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the
part of the respondent senators will be taken up as an
integral part of the disposition of the four issues raised
by the Solicitor General.
During its deliberations on the case, the Court noted that
the respondents did not question the locus standi of
petitioners. Hence, they are also deemed to have waived
the benefit of such issue. They probably realized that
grave constitutional issues, expenditures of public funds
and serious international commitments of the nation are
involved here, and that transcendental public interest
requires that the substantive issues be met head on and
decided on the merits, rather than skirted or deflected
by procedural matters.[11]
To recapitulate, the issues that will be ruled upon shortly
are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE
PETITION INVOLVE A POLITICAL QUESTION OVER WHICH
THIS COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND
ITS THREE ANNEXES CONTRAVENE SEC. 19, ARTICLE II,
AND SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE
CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS
ANNEXES LIMIT, RESTRICT, OR IMPAIR THE EXERCISE OF
LEGISLATIVE POWER BY CONGRESS?
 49 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE
WITH THE EXERCISE OF JUDICIAL POWER BY THIS COURT
IN PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO
AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR
VALID, CONSIDERING THAT IT DID NOT INCLUDE THE
FINAL ACT, MINISTERIAL DECLARATIONS AND
DECISIONS, AND THE UNDERSTANDING ON
COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court Have Jurisdiction Over
the Controversy?
In seeking to nullify an act of the Philippine Senate on the
ground that it contravenes the Constitution, the petition
no doubt raises a justiciable controversy. Where an
action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the
dispute. The question thus posed is judicial rather than
political. The duty (to adjudicate) remains to assure that
the supremacy of the Constitution is upheld.[12] Once a
controversy as to the application or interpretation of a
constitutional provision is raised before this Court (as in
the instant case), it becomes a legal issue which the Court
is bound by constitutional mandate to decide.[13]
The jurisdiction of this Court to adjudicate the
matters[14] raised in the petition is clearly set out in the
1987 Constitution,[15] as follows:
Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
government.
The foregoing text emphasizes the judicial departments
duty and power to strike down grave abuse of discretion
on the part of any branch or instrumentality of
government including Congress. It is an innovation in our
political law.[16] As explained by former Chief Justice
Roberto Concepcion,[17] the judiciary is the final arbiter
on the question of whether or not a branch of
government or any of its officials has acted without
jurisdiction or in excess of jurisdiction or so capriciously
as to constitute an abuse of discretion amounting to
excess of jurisdiction. This is not only a judicial power but
a duty to pass judgment on matters of this nature.
As this Court has repeatedly and firmly emphasized in
many cases,[18] it will not shirk, digress from or abandon
its sacred duty and authority to uphold the Constitution
in matters that involve grave abuse of discretion brought
before it in appropriate cases, committed by any officer,
agency, instrumentality or department of the
government.
As the petition alleges grave abuse of discretion and as
there is no other plain, speedy or adequate remedy in the
ordinary course of law, we have no hesitation at all in
holding that this petition should be given due course and
the vital questions raised therein ruled upon under Rule
65 of the Rules of Court. Indeed, certiorari, prohibition
and mandamus are appropriate remedies to raise
constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and
executive officials. On this, we have no equivocation.
We should stress that, in deciding to take jurisdiction
over this petition, this Court will not review
the wisdom of the decision of the President and the
Senate in enlisting the country into the WTO, or pass
upon the merits of trade liberalization as a policy
espoused by said international body. Neither will it rule
on the propriety of the governments economic policy of
reducing/removing tariffs, taxes, subsidies, quantitative
restrictions, and other import/trade barriers. Rather, it
will only exercise its constitutional duty to determine
whether or not there had been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of the Senate in ratifying the WTO Agreement
and its three annexes.
Second Issue: The WTO Agreement and Economic
Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and
intent of the Constitution mandating economic
nationalism are violated by the so-called parity
provisions and national treatment clauses scattered in
various parts not only of the WTO Agreement and its
annexes but also in the Ministerial Decisions and
Declarations and in the Understanding on Commitments
in Financial Services.
Specifically, the flagship constitutional provisions
referred to are Sec. 19, Article II, and Secs. 10 and 12,
Article XII, of the Constitution, which are worded as
follows:
Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
xx xx xx xx
Sec. 19. The State shall develop a self-reliant and
independent national economy effectively controlled by
Filipinos.
xx xx xx xx
Article XII
 50 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
NATIONAL ECONOMY AND PATRIMONY
xx xx xx xx
Sec. 10. x x x. The Congress shall enact measures that will
encourage the formation and operation of enterprises
whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the State
shall give preference to qualified Filipinos.
xx xx xx xx
Sec. 12. The State shall promote the preferential use of
Filipino labor, domestic materials and locally produced
goods, and adopt measures that help make them
competitive.
Petitioners aver that these sacred constitutional
principles are desecrated by the following WTO
provisions quoted in their memorandum:[19]
a) In the area of investment measures related to trade
in goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations
under GATT 1994. no Member shall apply any TRIM that
is inconsistent with the provisions of Article III or
Article XI of GATT 1994.
2. An Illustrative list of TRIMS that are inconsistent with
the obligations of general elimination of quantitative
restrictions provided for in paragraph I of Article XI of
GATT 1994 is contained in the Annex to this
Agreement. (Agreement on Trade-Related Investment
Measures, Vol. 27, Uruguay Round, Legal Instruments,
p.22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of
national treatment provided for in paragraph 4 of
Article III of GATT 1994 include those which are
mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is
necessary to obtain an advantage, and which require:
(a) the purchase or use by an enterprise of products of
domestic origin or from any domestic source, whether
specified in terms of particular products, in terms of
volume or value of products, or in terms of proportion of
volume or value of its local production; or
(b) that an enterprises purchases or use of imported
products be limited to an amount related to the volume
or value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of
general elimination of quantitative restrictions provided
for in paragraph 1 of Article XI of GATT 1994 include
those which are mandatory or enforceable under
domestic laws or under administrative rulings, or
compliance with which is necessary to obtain an
advantage, and which restrict:
(a) the importation by an enterprise of products used in
or related to the local production that it exports;
(b) the importation by an enterprise of products used in
or related to its local production by restricting its access
to foreign exchange inflows attributable to the
enterprise; or
(c) the exportation or sale for export specified in terms
of particular products, in terms of volume or value of
products, or in terms of a preparation of volume or value
of its local production. (Annex to the Agreement on
Trade-Related Investment Measures, Vol. 27, Uruguay
Round Legal Documents, p.22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is
quoted as follows:
The products of the territory of any contracting party
imported into the territory of any other contracting
party shall be accorded treatment no less favorable
than that accorded to like products of national origin in
respect of laws, regulations and requirements affecting
their internal sale, offering for sale, purchase,
transportation, distribution or use. the provisions of this
paragraph shall not prevent the application of
differential internal transportation charges which are
based exclusively on the economic operation of the
means of transport and not on the nationality of the
product. (Article III, GATT 1947, as amended by the
Protocol Modifying Part II, and Article XXVI of GATT, 14
September 1948, 62 UMTS 82-84 in relation to paragraph
1(a) of the General Agreement on Tariffs and Trade 1994,
Vol. 1, Uruguay Round, Legal Instruments p.177,
emphasis supplied).
b) In the area of trade related aspects of intellectual
property rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other
Members treatment no less favourable than that it
accords to its own nationals with regard to the
protection of intellectual property... (par. 1, Article 3,
Agreement on Trade-Related Aspect of Intellectual
Property rights, Vol. 31, Uruguay Round, Legal
Instruments, p.25432 (emphasis supplied)
 51 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
(c) In the area of the General Agreement on Trade in
Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to
any conditions and qualifications set out therein, each
Member shall accord to services and service suppliers of
any other Member, in respect of all measures affecting
the supply of services, treatment no less favourable
than it accords to its own like services and service
suppliers.
2. A Member may meet the requirement of paragraph I
by according to services and service suppliers of any
other Member, either formally identical treatment or
formally different treatment to that it accords to its own
like services and service suppliers.
3. Formally identical or formally different treatment shall
be considered to be less favourable if it modifies the
conditions of completion in favour of services or service
suppliers of the Member compared to like services or
service suppliers of any other Member. (Article XVII,
General Agreement on Trade in Services, Vol. 28,
Uruguay Round Legal Instruments, p.22610 emphasis
supplied).
It is petitioners position that the foregoing national
treatment and parity provisions of the WTO Agreement
place nationals and products of member countries on the
same footing as Filipinos and local products, in
contravention of the Filipino First policy of the
Constitution. They allegedly render meaningless the
phrase effectively controlled by Filipinos. The
constitutional conflict becomes more manifest when
viewed in the context of the clear duty imposed on the
Philippines as a WTO member to ensure the conformity
of its laws, regulations and administrative procedures
with its obligations as provided in the annexed
agreements.[20] Petitioners further argue that these
provisions contravene constitutional limitations on the
role exports play in national development and negate the
preferential treatment accorded to Filipino labor,
domestic materials and locally produced goods.
On the other hand, respondents through the Solicitor
General counter (1) that such Charter provisions are not
self-executing and merely set out general policies; (2)
that these nationalistic portions of the Constitution
invoked by petitioners should not be read in isolation but
should be related to other relevant provisions of Art. XII,
particularly Secs. 1 and 13 thereof; (3) that read properly,
the cited WTO clauses do not conflict with the
Constitution; and (4) that the WTO Agreement contains
sufficient provisions to protect developing countries like
the Philippines from the harshness of sudden trade
liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
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[21] is
called the basic political creed of the nation by Dean
Vicente Sinco.[22] These principles in Article II are not
intended to be self-executing principles ready for
enforcement through the courts.[23] 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. As held in the leading case of Kilosbayan,
Incorporated vs. Morato,[24] the 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.
In the same light, we held in Basco vs. Pagcor[25] that
broad constitutional principles need legislative
enactments to implement them, thus:
On petitioners allegation that P.D. 1869 violates Sections
11 (Personal Dignity) 12 (Family) and 13 (Role of Youth)
of Article II; Section 13 (Social Justice) of Article XIII and
Section 2 (Educational Values) of Article XIV of the 1987
Constitution, suffice it to state also that these are merely
statements of principles and policies. As such, they are
basically not self-executing, meaning a law should be
passed by Congress to clearly define and effectuate such
principles.
In general, therefore, the 1935 provisions were not
intended to be self-executing principles ready for
enforcement through the courts. They were rather
directives addressed to the executive and to the
legislature. If the executive and the legislature failed to
heed the directives of the article, the available remedy
was not judicial but political. The electorate could
express their displeasure with the failure of the executive
and the legislature through the language of the
ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged
infringement of broad constitutional principles are
sourced from basic considerations of due process and
the lack of judicial authority to wade into the uncharted
ocean of social and economic policy making. Mr. Justice
Florentino P. Feliciano in his concurring opinion in Oposa
vs. Factoran, Jr.,[26] explained these reasons as follows:
My suggestion is simply that petitioners must, before the
trial court, show a more specific legal right -- a right cast
in language of a significantly lower order of generality
than Article II (15) of the Constitution -- that is or may be
violated by the actions, or failures to act, imputed to the
 52 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
public respondent by petitioners so that the trial court
can validly render judgment granting all or part of the
relief prayed for. To my mind, the court should be
understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of law,
considering the general policy principles found in the
Constitution and the existence of the Philippine
Environment Code, and that the trial court should have
given petitioners an effective opportunity so to
demonstrate, instead of aborting the proceedings on a
motion to dismiss.
It seems to me important that the legal right which is an
essential component of a cause of action be a specific,
operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons.One is that
unless the legal right claimed to have been violated or
disregarded is given specification in operational terms,
defendants may well be unable to defend themselves
intelligently and effectively; in other words, there are
due process dimensions to this matter.
The second is a broader-gauge consideration -- where a
specific violation of law or applicable regulation is not
alleged or proved, petitioners can be expected to fall
back on the expanded conception of judicial power in the
second paragraph of Section 1 of Article VIII of the
Constitution which reads:
Section 1. x x x
Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government. (Emphases supplied)
When substantive standards as general as the right to a
balanced and healthy ecology and the right to health are
combined with remedial standards as broad ranging as a
grave abuse of discretion amounting to lack or excess of
jurisdiction, the result will be, it is respectfully submitted,
to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast
area of environmental protection and management, our
courts have no claim to special technical competence
and experience and professional qualification. Where no
specific, operable norms and standards are shown to
exist, then the policy making departments -- the
legislative and executive departments -- must be given a
real and effective opportunity to fashion and promulgate
those norms and standards, and to implement them
before the courts should intervene.
Economic Nationalism Should Be Read with Other
Constitutional Mandates to Attain Balanced
Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart
from merely laying down general principles relating to
the national economy and patrimony, should be read
and understood in relation to the other sections in said
article, especially Secs. 1 and 13 thereof which read:
Section 1. The goals of the national economy are a more
equitable distribution of opportunities, income, and
wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the
people; and an expanding productivity as the key to
raising the quality of life for all, especially the
underprivileged.
The State shall promote industrialization and full
employment based on sound agricultural development
and agrarian reform, through industries that make full
and efficient use of human and natural resources, and
which are competitive in both domestic and foreign
markets. However, the State shall protect Filipino
enterprises against unfair foreign competition and trade
practices.
In the pursuit of these goals, all sectors of the economy
and all regions of the country shall be given optimum
opportunity to develop. x x x
xxxxxxxxx
Sec. 13. The State shall pursue a trade policy that serves
the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and
reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down
the basic goals of national economic development, as
follows:
1. A more equitable distribution of opportunities,
income and wealth;
2. A sustained increase in the amount of goods and
services provided by the nation for the benefit of the
people; and
3. An expanding productivity as the key to raising the
quality of life for all especially the underprivileged.
With these goals in context, the Constitution then
ordains the ideals of economic nationalism (1) by
expressing preference in favor of qualified Filipinos in the
grant of rights, privileges and concessions covering the
national economy and patrimony[27] and in the use of
Filipino labor, domestic materials and locally-produced
goods; (2) by mandating the State to adopt measures
that help make them competitive;[28] and (3) by requiring
the State to develop a self-reliant and independent
national economy effectively controlled by
[29]
Filipinos. In similar language, the Constitution takes
into account the realities of the outside world as it
requires the pursuit of a trade policy that serves the
 53 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
general welfare and utilizes all forms and arrangements
of exchange on the basis of equality and
reciprocity;[30] and speaks of industries which are
competitive in both domestic and foreign markets as well
as of the protection of Filipino enterprises against unfair
foreign competition and trade practices.
It is true that in the recent case of Manila Prince Hotel vs.
Government Service Insurance System, et al.,[31] this
Court held that Sec. 10, second par., Art. XII of the 1987
Constitution is a mandatory, positive command which is
complete in itself and which needs no further guidelines
or implementing laws or rules for its enforcement. From
its very words the provision does not require any
legislation to put it in operation. It is per se judicially
enforceable. However, as the constitutional provision
itself states, it is enforceable only in regard to the grants
of rights, privileges and concessions covering national
economy and patrimony and not to every aspect of trade
and commerce. It refers to exceptions rather than the
rule. The issue here is not whether this paragraph of Sec.
10 of Art. XII is self-executing or not. Rather, the issue is
whether, as a rule, there are enough balancing provisions
in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement. And we
hold that there are.
All told, while the Constitution indeed mandates a bias in
favor of Filipino goods, services, labor and enterprises, at
the same time, it recognizes the need for business
exchange with the rest of the world on the bases of
equality and reciprocity and limits protection of Filipino
enterprises only against foreign competition and trade
practices that are unfair.[32] In other words, the
Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and
services in the development of the Philippine
economy. While the Constitution does not encourage
the unlimited entry of foreign goods, services and
investments into the country, it does not prohibit them
either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign
competition that is unfair.
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the
WTO itself has some built-in advantages to protect weak
and developing economies, which comprise the vast
majority of its members. Unlike in the UN where major
states have permanent seats and veto powers in the
Security Council, in the WTO, decisions are made on the
basis of sovereign equality, with each members vote
equal in weight to that of any other. There is no WTO
equivalent of the UN Security Council.
WTO decides by consensus whenever possible,
otherwise, decisions of the Ministerial Conference and
the General Council shall be taken by the majority of the
votes cast, except in cases of interpretation of the
Agreement or waiver of the obligation of a member
which would require three fourths vote. Amendments
would require two thirds vote in general. Amendments
to MFN provisions and the Amendments provision will
require assent of all members. Any member may
withdraw from the Agreement upon the expiration of six
months from the date of notice of withdrawals.[33]
Hence, poor countries can protect their common
interests more effectively through the WTO than
through one-on-one negotiations with developed
countries. Within the WTO, developing countries can
form powerful blocs to push their economic agenda
more decisively than outside the Organization. This is not
merely a matter of practical alliances but a negotiating
strategy rooted in law. Thus, the basic principles
underlying the WTO Agreement recognize the need of
developing countries like the Philippines to share in the
growth in international trade commensurate with the
needs of their economic development. These basic
principles are found in the preamble[34] of the WTO
Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and
economic endeavour should be conducted with a view to
raising standards of living, ensuring full employment and
a large and steadily growing volume of real income and
effective demand, and expanding the production of and
trade in goods and services, while allowing for the
optimal use of the worlds resources in accordance with
the objective of sustainable development, seeking both
to protect and preserve the environment and to enhance
the means for doing so in a manner consistent with their
respective needs and concerns at different levels of
economic development,
Recognizing further that there is need for positive efforts
designed to ensure that developing countries, and
especially the least developed among them, secure
a share in the growth in international trade
commensurate with the needs of their economic
development,
Being desirous of contributing to these objectives by
entering into reciprocal and mutually advantageous
arrangements directed to the substantial reduction of
tariffs and other barriers to trade and to the elimination
of discriminatory treatment in international trade
relations,
Resolved, therefore, to develop an integrated, more
viable and durable multilateral trading system
encompassing the General Agreement on Tariffs and
Trade, the results of past trade liberalization efforts, and
 54 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
all of the results of the Uruguay Round of Multilateral
Trade Negotiations,
Determined to preserve the basic principles and to
further the objectives underlying this multilateral trading
system, x x x. (underscoring supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to
and consistent with the foregoing basic principles, the
WTO Agreement grants developing countries a more
lenient treatment, giving their domestic industries some
protection from the rush of foreign competition. Thus,
with respect to tariffs in general, preferential treatment
is given to developing countries in terms of the amount
of tariff reduction and the period within which the
reduction is to be spread out. Specifically, GATT requires
an average tariff reduction rate of 36% for developed
countries to be effected within a period of six (6)
years while developing countries -- including the
Philippines -- are required to effect an average tariff
reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed
countries to reduce domestic support to agricultural
products by 20% over six (6) years, as compared to only
13% for developing countries to be effected within ten
(10) years.
In regard to export subsidy for agricultural products,
GATT requires developed countries to reduce their
budgetary outlays for export subsidy by 36% and export
volumes receiving export subsidy by 21% within a period
of six (6) years. For developing countries, however, the
reduction rate is only two-thirds of that prescribed for
developed countries and a longer period of ten (10)
years within which to effect such reduction.
Moreover, GATT itself has provided built-in protection
from unfair foreign competition and trade practices
including anti-dumping measures, countervailing
measures and safeguards against import surges. Where
local businesses are jeopardized by unfair foreign
competition, the Philippines can avail of these
measures. There is hardly therefore any basis for the
statement that under the WTO, local industries and
enterprises will all be wiped out and that Filipinos will be
deprived of control of the economy. Quite the contrary,
the weaker situations of developing nations like the
Philippines have been taken into account; thus, there
would be no basis to say that in joining the WTO, the
respondents have gravely abused their discretion.True,
they have made a bold decision to steer the ship of state
into the yet uncharted sea of economic
liberalization. But such decision cannot be set aside on
the ground of grave abuse of discretion, simply because
we disagree with it or simply because we believe only in
other economic policies. As earlier stated, the Court in
taking jurisdiction of this case will not pass upon the
advantages and disadvantages of trade liberalization as
an economic policy. It will only perform its constitutional
duty of determining whether the Senate committed
grave abuse of discretion.
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a self-reliant
and independent national economy[35] does not
necessarily rule out the entry of foreign investments,
goods and services. It contemplates neither economic
seclusion nor mendicancy in the international
community. As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this
constitutional policy:
Economic self-reliance is a primary objective of a
developing country that is keenly aware of
overdependence on external assistance for even its most
basic needs. It does not mean autarky or economic
seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the
freedom from undue foreign control of the national
economy, especially in such strategic industries as in the
development of natural resources and public utilities.[36]
The WTO reliance on most favored nation, national
treatment, and trade without discrimination cannot be
struck down as unconstitutional as in fact they are rules
of equality and reciprocity that apply to all WTO
members. Aside from envisioning a trade policy based on
equality and reciprocity,[37] the fundamental law
encourages industries that are competitive in both
domestic and foreign markets, thereby demonstrating a
clear policy against a sheltered domestic trade
environment, but one in favor of the gradual
development of robust industries that can compete with
the best in the foreign markets. Indeed, Filipino
managers and Filipino enterprises have shown capability
and tenacity to compete internationally. And given a free
trade environment, Filipino entrepreneurs and managers
in Hongkong have demonstrated the Filipino capacity to
grow and to prosper against the best offered under a
policy of laissez faire.
Constitution Favors Consumers, Not Industries or
Enterprises
The Constitution has not really shown any unbalanced
bias in favor of any business or enterprise, nor does it
contain any specific pronouncement that Filipino
companies should be pampered with a total
proscription of foreign competition. On the other hand,
respondents claim that WTO/GATT aims to make
available to the Filipino consumer the best goods and
services obtainable anywhere in the world at the most
reasonable prices. Consequently, the question boils
 55 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
down to whether WTO/GATT will favor the general
welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of
favoring the general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos
general welfare because it will -- as promised by its
promoters -- expand the countrys exports and generate
more employment?
Will it bring more prosperity, employment, purchasing
power and quality products at the most reasonable rates
to the Filipino public?
The responses to these questions involve judgment calls
by our policy makers, for which they are answerable to
our people during appropriate electoral exercises. Such
questions and the answers thereto are not subject to
judicial pronouncements based on grave abuse of
discretion.
Constitution Designed to Meet Future Events and
Contingencies
No doubt, the WTO Agreement was not yet in existence
when the Constitution was drafted and ratified in
1987. That does not mean however that the Charter is
necessarily flawed in the sense that its framers might not
have anticipated the advent of a borderless world of
business. By the same token, the United Nations was not
yet in existence when the 1935 Constitution became
effective. Did that necessarily mean that the then
Constitution might not have contemplated a diminution
of the absoluteness of sovereignty when the Philippines
signed the UN Charter, thereby effectively surrendering
part of its control over its foreign relations to the
decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions
are designed to meet not only the vagaries of
contemporary events. They should be interpreted to
cover even future and unknown circumstances. It is to
the credit of its drafters that a Constitution can
withstand the assaults of bigots and infidels but at the
same time bend with the refreshing winds of change
necessitated by unfolding events. As one eminent
political law writer and respected jurist[38] explains:
The Constitution must be quintessential rather than
superficial, the root and not the blossom, the base and
framework only of the edifice that is yet to rise. It is but
the core of the dream that must take shape, not in a
twinkling by mandate of our delegates, but slowly in the
crucible of Filipino minds and hearts, where it will in time
develop its sinews and gradually gather its strength and
finally achieve its substance. In fine, the Constitution
cannot, like the goddess Athena, rise full-grown from the
brow of the Constitutional Convention, nor can it conjure
by mere fiat an instant Utopia. It must grow with the
society it seeks to re-structure and march apace with the
progress of the race, drawing from the vicissitudes of
history the dynamism and vitality that will keep it, far
from becoming a petrified rule, a pulsing, living law
attuned to the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
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.[39] Petitioners
maintain that this undertaking unduly limits, restricts
and impairs Philippine sovereignty, specifically the
legislative power which under Sec. 2, Article VI of the
1987 Philippine Constitution is vested in the Congress of
the Philippines. It is an assault on the sovereign powers
of the Philippines because this means that Congress
could not pass legislation that will be good for our
national interest and general welfare if such legislation
will not conform with the WTO Agreement, which not
only relates to the trade in goods x x x but also to the flow
of investments and money x x x as well as to a whole slew
of agreements on socio-cultural matters x x x.[40]
More specifically, petitioners claim that said
WTO proviso derogates from the power to tax, which is
lodged in the Congress.[41] And while the Constitution
allows Congress to authorize the President to fix tariff
rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts, such authority is
subject to specified limits and x x x such limitations and
restrictions as Congress may provide,[42] as in fact it did
under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by International Law and Treaties
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."[43] 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.[44] 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
 56 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
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.[45]
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. Thus, treaties have been used to record
agreements between States concerning such widely
diverse matters as, for example, the lease of naval bases,
the sale or cession of territory, the termination of war,
the regulation of conduct of hostilities, the formation of
alliances, the regulation of commercial relations, the
settling of claims, the laying down of rules governing
conduct in peace and the establishment of international
organizations.[46] 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. As aptly put by John F. Kennedy,
Today, no nation can build its destiny alone. The age of
self-sufficient nationalism is over. The age of
interdependence is here.[47]
UN Charter and Other Treaties Limit Sovereignty
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.47-A 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. Another example: although sovereign equality
and domestic jurisdiction of all members are set forth as
underlying principles in the UN Charter,
such provisos are however subject to enforcement
measures decided by the Security Council for the
maintenance of international peace and security under
Chapter VII of the Charter. A final example: under Article
103, (i)n the event of a conflict between the obligations
of the Members of the United Nations under the present
Charter and their obligations under any other
international agreement, their obligation under the
present charter shall prevail, thus unquestionably
denying the Philippines -- as a member -- the sovereign
power to make a choice as to which of conflicting
obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered
into many other international pacts -- both bilateral and
multilateral -- that involve limitations on Philippine
sovereignty. These are enumerated by the Solicitor
General in his Compliance dated October 24, 1996, as
follows:
(a) Bilateral convention with the United States regarding
taxes on income, where the Philippines agreed, among
others, to exempt from tax, income received in the
Philippines by, among others, the Federal Reserve Bank
of the United States, the Export/Import Bank of the
United States, the Overseas Private Investment
Corporation of the United States. Likewise, in said
convention, wages, salaries and similar remunerations
paid by the United States to its citizens for labor and
personal services performed by them as employees or
officials of the United States are exempt from income tax
by the Philippines.
(b) Bilateral agreement with Belgium, providing, among
others, for the avoidance of double taxation with respect
to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for
the avoidance of double taxation.
(d) Bilateral convention with the French Republic for the
avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where
the Philippines agreed to exempt from all customs
duties, inspection fees and other duties or taxes aircrafts
of South Korea and the regular equipment, spare parts
and supplies arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the
Philippines agreed to exempt from customs duties,
excise taxes, inspection fees and other similar duties,
taxes or charges fuel, lubricating oils, spare parts, regular
equipment, stores on board Japanese aircrafts while on
Philippine soil.
 57 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
(g) Bilateral air service agreement with Belgium where
the Philippines granted Belgian air carriers the same
privileges as those granted to Japanese and Korean air
carriers under separate air service agreements.
(h) Bilateral notes with Israel for the abolition of transit
and visitor visas where the Philippines exempted Israeli
nationals from the requirement of obtaining transit or
visitor visas for a sojourn in the Philippines not exceeding
59 days.
(I) Bilateral agreement with France exempting French
nationals from the requirement of obtaining transit and
visitor visa for a sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where
the Philippines agreed that premises of Special Missions
in the Philippines are inviolable and its agents can not
enter said premises without consent of the Head of
Mission concerned. Special Missions are also exempted
from customs duties, taxes and related charges.
(k) Multilateral Convention on the Law of Treaties. In this
convention, the Philippines agreed to be governed by the
Vienna Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines
accepting compulsory jurisdiction of the International
Court of Justice. The International Court of Justice has
jurisdiction in all legal disputes concerning the
interpretation of a treaty, any question of international
law, the existence of any fact which, if established, would
constitute a breach of international obligation.
In the foregoing treaties, the Philippines has effectively
agreed to limit the exercise of its sovereign powers of
taxation, eminent domain and police power. The
underlying consideration in this partial surrender of
sovereignty is the reciprocal commitment of the other
contracting states in granting the same privilege and
immunities to the Philippines, its officials and its
citizens. The same reciprocity characterizes the
Philippine commitments under WTO-GATT.
International treaties, whether relating to nuclear
disarmament, human rights, the environment, the law of
the sea, or trade, constrain domestic political
sovereignty through the assumption of external
obligations. But unless anarchy in international relations
is preferred as an alternative, in most cases we accept
that the benefits of the reciprocal obligations involved
outweigh the costs associated with any loss of political
sovereignty. (T)rade treaties that structure relations by
reference to durable, well-defined substantive norms
and objective dispute resolution procedures reduce the
risks of larger countries exploiting raw economic power
to bully smaller countries, by subjecting power relations
to some form of legal ordering. In addition, smaller
countries typically stand to gain disproportionately from
trade liberalization. This is due to the simple fact that
liberalization will provide access to a larger set of
potential new trading relationship than in case of the
larger country gaining enhanced success to the smaller
countrys market.[48]
The point is that, as shown by the foregoing treaties, a
portion of sovereignty may be waived without violating
the Constitution, based on the rationale that the
Philippines adopts the generally accepted principles of
international law as part of the law of the land and
adheres to the policy of x x x cooperation and amity with
all nations.
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the
General Provisions and Basic Principles of the Agreement
on Trade-Related Aspects of Intellectual Property Rights
(TRIPS)[49]intrudes on the power of the Supreme Court to
promulgate rules concerning pleading, practice and
procedures.[50]
To understand the scope and meaning of Article 34,
TRIPS,[51] it will be fruitful to restate its full text as
follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the
infringement of the rights of the owner referred to in
paragraph 1(b) of Article 28, if the subject matter of a
patent is a process for obtaining a product, the judicial
authorities shall have the authority to order the
defendant to prove that the process to obtain an
identical product is different from the patented
process. Therefore, Members shall provide, in at least
one of the following circumstances, that any identical
product when produced without the consent of the
patent owner shall, in the absence of proof to the
contrary, be deemed to have been obtained by the
patented process:
(a) if the product obtained by the patented process is
new;
(b) if there is a substantial likelihood that the identical
product was made by the process and the owner of the
patent has been unable through reasonable efforts to
determine the process actually used.
2. Any Member shall be free to provide that the burden
of proof indicated in paragraph 1 shall be on the alleged
infringer only if the condition referred to in
subparagraph (a) is fulfilled or only if the condition
referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the
legitimate interests of defendants in protecting their
 58 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
manufacturing and business secrets shall be taken into
account.
From the above, a WTO Member is required to provide a
rule of disputable (note the words in the absence of
proof to the contrary) presumption that a product shown
to be identical to one produced with the use of a
patented process shall be deemed to have been obtained
by the (illegal) use of the said patented process, (1)
where such product obtained by the patented product is
new, or (2) where there is substantial likelihood that the
identical product was made with the use of the said
patented process but the owner of the patent could not
determine the exact process used in obtaining such
identical product. Hence, the burden of proof
contemplated by Article 34 should actually be
understood as the duty of the alleged patent infringer to
overthrow such presumption. Such burden, properly
understood, actually refers to the burden of
evidence (burden of going forward) placed on the
producer of the identical (or fake) product to show that
his product was produced without the use of the
patented process.
The foregoing notwithstanding, the patent owner still
has the burden of proof since, regardless of the
presumption provided under paragraph 1 of Article 34,
such owner still has to introduce evidence of the
existence of the alleged identical product, the fact that it
is identical to the genuine one produced by the patented
process and the fact of newness of the genuine product
or the fact of substantial likelihood that the identical
product was made by the patented process.
The foregoing should really present no problem in
changing the rules of evidence as the present law on the
subject, Republic Act No. 165, as amended, otherwise
known as the Patent Law, provides a similar presumption
in cases of infringement of patented design or utility
model, thus:
SEC. 60. Infringement. - Infringement of a design patent
or of a patent for utility model shall consist in
unauthorized copying of the patented design or utility
model for the purpose of trade or industry in the article
or product and in the making, using or selling of the
article or product copying the patented design or utility
model. Identity or substantial identity with the patented
design or utility model shall constitute evidence of
copying. (underscoring supplied)
Moreover, it should be noted that the requirement of
Article 34 to provide a disputable presumption applies
only if (1) the product obtained by the patented process
is NEW or (2) there is a substantial likelihood that the
identical product was made by the process and the
process owner has not been able through reasonable
effort to determine the process used. Where either of
these two provisos does not obtain, members shall be
free to determine the appropriate method of
implementing the provisions of TRIPS within their own
internal systems and processes.
By and large, the arguments adduced in connection with
our disposition of the third issue -- derogation of
legislative power - will apply to this fourth issue
also. Suffice it to say that the reciprocity clause more
than justifies such intrusion, if any actually
exists. Besides, Article 34 does not contain an
unreasonable burden, consistent as it is with due process
and the concept of adversarial dispute settlement
inherent in our judicial system.
So too, since the Philippine is a signatory to most
international conventions on patents, trademarks and
copyrights, the adjustment in legislation and rules of
procedure will not be substantial.[52]
Fifth Issue: Concurrence Only in the WTO Agreement
and Not in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the
WTO Agreement and its annexes -- but not in the other
documents referred to in the Final Act, namely the
Ministerial Declaration and Decisions and the
Understanding on Commitments in Financial Services --
is defective and insufficient and thus constitutes abuse
of discretion. They submit that such concurrence in the
WTO Agreement alone is flawed because it is in effect a
rejection of the Final Act, which in turn was the
document signed by Secretary Navarro, in
representation of the Republic upon authority of the
President. They contend that the second letter of the
President to the Senate[53] which enumerated what
constitutes the Final Act should have been the subject of
concurrence of the Senate.
A final act, sometimes called protocol de clture, is an
instrument which records the winding up of the
proceedings of a diplomatic conference and usually
includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed
upon and signed by the plenipotentiaries attending the
conference.[54] It is not the treaty itself. It is rather a
summary of the proceedings of a protracted conference
which may have taken place over several years. The text
of the Final Act Embodying the Results of the Uruguay
Round of Multilateral Trade Negotiations is contained in
just one page[55] in Vol. I of the 36-
volume Uruguay Round of Multilateral Trade
Negotiations. By signing said Final Act, Secretary Navarro
as representative of the Republic of the Philippines
undertook:
"(a) to submit, as appropriate, the WTO Agreement for
the consideration of their respective competent
 59 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
authorities with a view to seeking approval of the
Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed
concurrence in exactly what the Final Act required from
its signatories, namely, concurrence of the Senate in the
WTO Agreement.
The Ministerial Declarations and Decisions were deemed
adopted without need for ratification. They were
approved by the ministers by virtue of Article XXV: 1 of
GATT which provides that representatives of the
members can meet to give effect to those provisions of
this Agreement which invoke joint action, and generally
with a view to facilitating the operation and furthering
the objectives of this Agreement.[56]
The Understanding on Commitments in Financial
Services also approved in Marrakesh does not apply to
the Philippines. It applies only to those 27 Members
which have indicated in their respective schedules of
commitments on standstill, elimination of monopoly,
expansion of operation of existing financial service
suppliers, temporary entry of personnel, free transfer
and processing of information, and national treatment
with respect to access to payment, clearing systems and
refinancing available in the normal course of business.[57]
On the other hand, the WTO Agreement itself expresses
what multilateral agreements are deemed included as its
integral parts,[58] as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional
framework for the conduct of trade relations among its
Members in matters to the agreements and associated
legal instruments included in the Annexes to this
Agreement.
2. The Agreements and associated legal instruments
included in Annexes 1, 2, and 3 (hereinafter referred to
as Multilateral Agreements) are integral parts of this
Agreement, binding on all Members.
3. The Agreements and associated legal instruments
included in Annex 4 (hereinafter referred to as
Plurilateral Trade Agreements) are also part of this
Agreement for those Members that have accepted them,
and are binding on those Members. The Plurilateral
Trade Agreements do not create either obligation or
rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as
specified in annex 1A (hereinafter referred to as GATT
1994) is legally distinct from the General Agreement on
Tariffs and Trade, dated 30 October 1947, annexed to the
Final Act adopted at the conclusion of the Second Session
of the Preparatory Committee of the United Nations
Conference on Trade and Employment, as subsequently
rectified, amended or modified (hereinafter referred to
as GATT 1947).
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. After reading the letter
of President Ramos dated August 11, 1994,[59] the
senators of the Republic minutely dissected what the
Senate was concurring in, as follows: [60]
THE CHAIRMAN: Yes. Now, the question of the validity of
the submission came up in the first day hearing of this
Committee yesterday. Was the observation made by
Senator Taada that what was submitted to the Senate
was not the agreement on establishing the World Trade
Organization by the final act of the Uruguay Round which
is not the same as the agreement establishing the World
Trade Organization?And on that basis, Senator Tolentino
raised a point of order which, however, he agreed to
withdraw upon understanding that his suggestion for an
alternative solution at that time was acceptable. That
suggestion was to treat the proceedings of the
Committee as being in the nature of briefings for
Senators until the question of the submission could be
clarified.
And so, Secretary Romulo, in effect, is the President
submitting a new... is he making a new submission which
improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear
cut and there should be no misunderstanding, it was his
intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later
on Senator Tolentino since they were the ones that
raised this question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, 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.
I am now satisfied with the wording of the new
submission of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
 60 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
THE CHAIRMAN. Thank you, Senator Taada. Can we hear
from Senator Tolentino? And after him Senator Neptali
Gonzales and Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen the new
submission actually transmitted to us but I saw the draft
of his earlier, and I think it now complies with the
provisions of the Constitution, and with the Final Act
itself. The Constitution does not require us to ratify the
Final Act. It requires us to ratify the Agreement which is
now being submitted. The Final Act itself specifies what
is going to be submitted to with the governments of the
participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives
agree: (a) to submit as appropriate the WTO Agreement
for the consideration of the respective competent
authorities with a view to seeking approval of the
Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to
be submitted to the governments for ratification or
acceptance as whatever their constitutional procedures
may provide but it is the World Trade Organization
Agreement. And if that is the one that is being submitted
now, I think it satisfies both the Constitution and the
Final Act itself.
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call
on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter
are already a matter of record. And they had been
adequately reflected in the journal of yesterdays session
and I dont see any need for repeating the same.
Now, I would consider the new submission as an act ex
abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator
Lina, do you want to make any comment on this?
SEN. LINA. Mr. President, I agree with the observation
just made by Senator Gonzales out of the abundance of
question. Then the new submission is, I believe, stating
the obvious and therefore I have no further comment to
make.
Epilogue
In praying for the nullification of the Philippine
ratification of the WTO Agreement, petitioners are
invoking this Courts constitutionally imposed duty to
determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of the Senate in giving its concurrence therein
via Senate Resolution No. 97. Procedurally, a writ
of certiorari grounded on grave abuse of discretion may
be issued by the Court under Rule 65 of the Rules of
Court when it is amply shown that petitioners have no
other plain, speedy and adequate remedy in the ordinary
course of law.
By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction.[61] Mere abuse of discretion is not enough. It
must be grave abuse of discretion as when the power is
exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and must be so patent and
so gross as to amount to an evasion of a positive duty or
to a virtual refusal to perform the duty enjoined or to act
at all in contemplation of law.[62] Failure on the part of
the petitioner to show grave abuse of discretion will
result in the dismissal of the petition.[63]
In rendering this Decision, this Court never forgets that
the Senate, whose act is under review, is one of two
sovereign houses of Congress and is thus entitled to
great respect in its actions. It is itself a constitutional
body independent and coordinate, and thus its actions
are presumed regular and done in good faith. Unless
convincing proof and persuasive arguments are
presented to overthrow such presumptions, this Court
will resolve every doubt in its favor. Using the foregoing
well-accepted definition of grave abuse of discretion and
the presumption of regularity in the Senates processes,
this Court cannot find any cogent reason to impute grave
abuse of discretion to the Senates exercise of its power
of concurrence in the WTO Agreement granted it by Sec.
21 of Article VII of the Constitution.[64]
It is true, as alleged by petitioners, that broad
constitutional principles require the State to develop an
independent national economy effectively controlled by
Filipinos; and to protect and/or prefer Filipino labor,
products, domestic materials and locally produced
goods. But it is equally true that such principles -- while
serving as judicial and legislative guides -- are not in
themselves sources of causes of action. Moreover, there
are other equally fundamental constitutional principles
relied upon by the Senate which mandate the pursuit of
a trade policy that serves the general welfare and utilizes
all forms and arrangements of exchange on the basis of
equality and reciprocity and the promotion of industries
which are competitive in both domestic and foreign
markets, thereby justifying its acceptance of said
treaty. So too, the alleged impairment of sovereignty in
the exercise of legislative and judicial powers is balanced
by the adoption of the generally accepted principles of
international law as part of the law of the land and the
adherence of the Constitution to the policy of
cooperation and amity with all nations.
That the Senate, after deliberation and voting,
voluntarily and overwhelmingly gave its consent to the
WTO Agreement thereby making it a part of the law of
 61 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4

the land is a legitimate exercise of its sovereign duty and

power. We find no patent and gross arbitrariness or
despotism by reason of passion or personal hostility in
such exercise. It is not impossible to surmise that this
Court, or at least some of its members, may even agree
with petitioners that it is more advantageous to the
national interest to strike down Senate Resolution No.
97. But that is not a legal reason to attribute grave abuse
of discretion to the Senate and to nullify its decision. To
do so would constitute grave abuse in the exercise of our
own judicial power and duty.Ineludably, what the Senate
did was a valid exercise of its authority. As to whether
such exercise was wise, beneficial or viable is outside the
realm of judicial inquiry and review. That is a matter
between the elected policy makers and the people. As to
whether the nation should join the worldwide march
toward trade liberalization and economic globalization is
a matter that our people should determine in electing
their policy makers. After all, the WTO Agreement allows
withdrawal of membership, should this be the political
desire of a member.

The eminent futurist John Naisbitt, author of the best

seller Megatrends, predicts an Asian
[65]
Renaissance where the East will become the dominant
region of the world economically, politically and
culturally in the next century. He refers to the free
market espoused by WTO as the catalyst in this coming
Asian ascendancy. There are at present about 31
countries including China, Russia and Saudi Arabia
negotiating for membership in the
WTO. Notwithstanding objections against possible
limitations on national sovereignty, the WTO remains as
the only viable structure for multilateral trading and the
veritable forum for the development of international
trade law. The alternative to WTO is isolation,
stagnation, if not economic self-destruction. Duly
enriched with original membership, keenly aware of the
advantages and disadvantages of globalization with its
on-line experience, and endowed with a vision of the
future, the Philippines now straddles the crossroads of
an international strategy for economic prosperity and
stability in the new millennium. Let the people, through
their duly authorized elected officers, make their free
choice.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.
 62 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
[G.R. No. 139325. April 12, 2005]
Mijares v. Ranada Recognition of Foreign Judgments
SEPTEMBER 3, 2018
FACTS:
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, filed with the US District Court,
Hawaii, against the Estate Ferdinand E. Marcos.
Trial ensued, and subsequently a jury rendered a Final
Judgment and an award of compensatory and exemplary
damages in favor of the plaintiff class with an award of 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 present petitioners filed Complaint with the Makati
RTC for the enforcement of the Final Judgment.
Respondent Judge Ranada of the Makati RTC issued the
subject Orderdismissing the complaint without
prejudice. He opined that the subject matter of the
complaint was 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.
The RTC estimated the proper amount of filing fees was
approximately Four Hundred Seventy Two Million Pesos,
which obviously had not been paid.
Petitioners submit that their action is incapable of
pecuniary estimation as the subject matter of the suit is
the enforcement of a foreign judgment, and not an
action for the collection of a sum of money or recovery
of damages. They also point out that to require the class
plaintiffs to pay Four Hundred Seventy Two Million Pesos
(P472,000,000.00) in filing fees would negate and render
inutile the liberal construction ordained by the Rules of
Court, particularly the inexpensive disposition of every
action.
ISSUE:
What provision, if any, then should apply in determining
the filing fees for an action to enforce a foreign
judgment?
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.
A proper understanding is required on the nature and
effects of a foreign judgment in this jurisdiction.
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.
The conditions required by the Philippines for
recognition and enforcement of a foreign judgment has
remained unchanged.
SEC. 48. Effect of foreign judgments. The effect of a
judgment of a tribunal of a foreign country, having
jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the
judgment is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment
is presumptive evidence of a right as between the parties
and their successors in interest by a subsequent title;
In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of
law or fact.
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 inpersonam, the foreign judgment is presumptive,
and not conclusive, of a right as between the parties and
their successors in interest by a subsequent title.
Thus, the party aggrieved by the foreign judgment is
entitled to defend against the enforcement of such
 63 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
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.
Consequently, the party attacking a foreign judgment
has the burden of overcoming the presumption of its
validity.
Petition is GRANTED.
PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA
B. NARCISO, SR. MARIANI DIMARANAN, SFIC, and JOEL
C. LAMANGAN in their behalf and on behalf of the Class
Plaintiffs in Class Action No. MDL 840, United States
District Court of Hawaii, petitioners, vs. HON.
SANTIAGO JAVIER RANADA, in his capacity as Presiding
Judge of Branch 137, Regional Trial Court, Makati City,
and the ESTATE OF FERDINAND E. MARCOS, through its
court appointed legal representatives in Class Action
MDL 840, United States District Court of Hawaii,
namely: Imelda R. Marcos and Ferdinand Marcos,
Jr., respondents.
DECISION
TINGA, J.:
Our martial law experience bore strange unwanted
fruits, and we have yet to finish weeding out its bitter
crop. While the restoration of freedom and the
fundamental structures and processes of democracy
have been much lauded, according to a significant
number, the changes, however, have not sufficiently
healed the colossal damage wrought under the
oppressive conditions of the martial law period. The cries
of justice for the tortured, the murdered, and
the desaparecidos arouse outrage and sympathy in the
hearts of the fair-minded, yet the dispensation of the
appropriate relief due them cannot be extended through
the same caprice or whim that characterized the ill-wind
of martial rule. The damage done was not merely
personal but institutional, and the proper rebuke to the
iniquitous past has to involve the award of reparations
due within the confines of the restored rule of law.
The petitioners in this case are prominent victims of
human rights violations[1] who, deprived of the
opportunity to directly confront the man who once held
absolute rule over this country, have chosen to do battle
instead with the earthly representative, his estate. The
clash has been for now interrupted by a trial court ruling,
seemingly comported to legal logic, that required the
petitioners to pay a whopping filing fee of over Four
Hundred Seventy-Two Million Pesos (P472,000,000.00)
in order that they be able to enforce a judgment awarded
them by a foreign court. There is an understandable
temptation to cast the struggle within the simplistic
confines of a morality tale, and to employ short-cuts to
arrive at what might seem the desirable solution. But
easy, reflexive resort to the equity principle all too often
leads to a result that may be morally correct, but legally
wrong.
Nonetheless, the application of the legal principles
involved in this case will comfort those who maintain
that our substantive and procedural laws, for all their
perceived ambiguity and susceptibility to myriad
interpretations, are inherently fair and just. The relief
sought by the petitioners is expressly mandated by our
laws and conforms to established legal principles. The
granting of this petition for certiorari is warranted in
order to correct the legally infirm and unabashedly
unjust ruling of the respondent judge.
The essential facts bear little elaboration. 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 Courts
jurisdiction over the complaint, as it involved a suit by
aliens for tortious violations of international law.[4] 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 institution of a class action suit was warranted under
Rule 23(a) and (b)(1)(B) of the US Federal Rules of Civil
Procedure, the provisions of which were invoked by the
plaintiffs. Subsequently, the US District Court certified
the case as a class action and created three (3) sub-
classes of torture, summary execution and
disappearance victims.[5] Trial ensued, and subsequently
a jury rendered a verdict and an award of compensatory
and exemplary damages in favor of the plaintiff class.
 64 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4

Then, on 3 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 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, in a decision rendered on 17 December
1996.[6]
On 20 May 1997, the present petitioners
filed Complaint with the Regional Trial Court, City of
Makati (Makati RTC) for the enforcement of the Final
Judgment. They alleged that they are members of the
plaintiff class in whose favor the US District Court
awarded damages.[7] They argued that 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.[8]
On 5 February 1998, 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 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). The Marcos Estate cited Supreme Court Circular
No. 7, pertaining to the proper computation and
payment of docket fees. In response, the petitioners
claimed that an action for the enforcement of a foreign
judgment is not capable of pecuniary estimation; hence,
a filing fee of only Four Hundred Ten Pesos (P410.00) was
proper, pursuant to Section 7(c) of Rule 141.[9]
On 9 September 1998, respondent Judge Santiago Javier
Ranada[10] 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.
Not surprisingly, petitioners filed a Motion for
Reconsideration, which Judge Ranada denied in
an Order dated 28 July 1999. From this denial,
petitioners filed a Petition for Certiorariunder Rule 65
assailing the twin orders of respondent judge.[11] They
prayed for the annulment of the questioned orders, and
an order directing the reinstatement of Civil Case No. 97-
1052 and the conduct of appropriate proceedings
thereon.
Petitioners submit that their action is incapable of
pecuniary estimation as the subject matter of the suit is
the enforcement of a foreign judgment, and not an
action for the collection of a sum of money or recovery
of damages. They also point out that to require the class
plaintiffs to pay Four Hundred Seventy Two Million Pesos
(P472,000,000.00) in filing fees would negate and render
inutile the liberal construction ordained by the Rules of
Court, as required by Section 6, Rule 1 of the Rules of Civil
Procedure, particularly the inexpensive disposition of
every action.
Petitioners invoke Section 11, Article III of the Bill of
Rights of the Constitution, which provides that Free
access to the courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any
person by reason of poverty, a mandate which is
essentially defeated by the required exorbitant filing fee.
The adjudicated amount of the filing fee, as arrived at by
the RTC, was characterized as indisputably unfair,
inequitable, and unjust.
The Commission on Human Rights (CHR) was permitted
to intervene in this case.[12] It urged that the petition be
granted and a judgment rendered, ordering the
enforcement and execution of the District Court
judgment in accordance with Section 48, Rule 39 of the
1997 Rules of Civil Procedure. For the CHR, the Makati
RTC erred in interpreting the action for the execution of
a foreign judgment as a new case, in violation of the
principle that once a case has been decided between the
same parties in one country on the same issue with
finality, it can no longer be relitigated again in another
country.[13] The CHR likewise invokes the principle of
comity, and of vested rights.
The Courts disposition on the issue of filing fees will
prove a useful jurisprudential guidepost for courts
confronted with actions enforcing foreign judgments,
particularly those lodged against an estate. There is no
basis for the issuance a limited pro hac vice ruling based
on the special circumstances of the petitioners as victims
of martial law, or on the emotionally-charged allegation
of human rights abuses.
An examination of Rule 141 of the Rules of Court readily
evinces that the respondent judge ignored the clear
letter of the law when he concluded that the filing fee be
computed based on the total sum claimed or the stated
value of the property in litigation.
 65 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
In dismissing the complaint, the respondent judge relied
on Section 7(a), Rule 141 as basis for the computation of
the filing fee of over P472 Million. The provision states:
SEC. 7. Clerk of Regional Trial Court.-
(a) For filing an action or a permissive counterclaim or
money claim against an estate not based on judgment,
or for filing with leave of court a third-party, fourth-
party, etc., complaint, or a complaint in intervention, and
for all clerical services in the same time, if the total sum
claimed, exclusive of interest, or the started value of the
property in litigation, is:
1. Less than P 100,00.00 P 500.00
2. P 100,000.00 or more - P 800.00
but less than P 150,000.00
3. P 150,000.00 or more but - P 1,000.00
less than P 200,000.00
4. P 200,000.00 or more but
less than P 250,000.00 - P 1,500.00
5. P 250,000.00 or more but
less than P 300,00.00 - P 1,750.00
6. P 300,000.00 or more but
not more than P 400,000.00 - P 2,000.00
7. P 350,000.00 or more but not
more than P400,000.00 - P 2,250.00
8. For each P 1,000.00 in excess of
P 400,000.00 - P 10.00
...
(Emphasis supplied)
Obviously, the above-quoted provision covers, on one
hand, ordinary actions, permissive counterclaims, third-
party, etc. complaints and complaints-in-interventions,
and on the other, money claims against estates which are
not based on judgment. Thus, the relevant question for
purposes of the present petition is whether the action
filed with the lower court is a money claim against an
estate not based on judgment.
Petitioners complaint may have been lodged against an
estate, but it is clearly based on a judgment, the Final
Judgment of the US District Court. The provision does not
make any distinction between a local judgment and a
foreign judgment, and where the law does not
distinguish, we shall not distinguish.
A reading of Section 7 in its entirety reveals several
instances wherein the filing fee is computed on the basis
of the amount of the relief sought, or on the value of the
property in litigation. The filing fee for requests for
extrajudicial foreclosure of mortgage is based on the
amount of indebtedness or the mortgagees claim.[14] In
special proceedings involving properties such as for the
allowance of wills, the filing fee is again based on the
value of the property.[15] The aforecited rules evidently
have no application to petitioners complaint.
Petitioners rely on Section 7(b), particularly the proviso
on actions where the value of the subject matter cannot
be estimated. The provision reads in full:
SEC. 7. Clerk of Regional Trial Court.-
(b) For filing
1. Actions where the value
of the subject matter
cannot be estimated --- P 600.00
2. Special civil actions except
judicial foreclosure which
shall be governed by
paragraph (a) above --- P 600.00
3. All other actions not
involving property --- P 600.00
In a real action, the assessed value of the property, or if
there is none, the estimated value, thereof shall be
alleged by the claimant and shall be the basis in
computing the fees.
It is worth noting that the provision also provides that in
real actions, the assessed value or estimated value of the
property shall be alleged by the claimant and shall be the
basis in computing the fees. Yet again, this provision does
not apply in the case at bar. A real action is one where
the plaintiff seeks the recovery of real property or an
action affecting title to or recovery of possession of real
property.[16] Neither the complaint nor the award of
damages adjudicated by the US District Court involves
any real property of the Marcos Estate.
Thus, 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?
To resolve this question, a proper understanding is
required on the nature and effects of a foreign judgment
in this jurisdiction.
 66 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
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.[17] This principle was prominently
affirmed in the leading American case of Hilton v.
Guyot[18] and expressly recognized in our jurisprudence
beginning with Ingenholl v. Walter E. Olsen & Co.[19] The
conditions required by the Philippines for recognition
and enforcement of a foreign judgment were originally
contained in Section 311 of the Code of Civil Procedure,
which was taken from the California Code of Civil
Procedure which, in turn, was derived from the California
Act of March 11, 1872.[20] Remarkably, the procedural
rule now outlined in Section 48, Rule 39 of the Rules of
Civil Procedure has remained unchanged down to the
last word in nearly a century. Section 48 states:
SEC. 48. Effect of foreign judgments. The effect of a
judgment of a tribunal of a foreign country, having
jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the
judgment is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment
is presumptive evidence of a right as between the parties
and their successors in interest by a subsequent title;
In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of
law or fact.
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.[21]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,[22] collusion, fraud,[23] or clear mistake of law
or fact.[24] 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.[25]
It is clear then that it is usually necessary for an action to
be filed in order to enforce a foreign judgment[26], 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.[27] Consequently, the party attacking a foreign
judgment has the burden of overcoming the
presumption of its validity.[28]
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,[29] 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.[30] 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.[31]
There are distinctions, nuanced but discernible, between
the cause of action arising from the enforcement of a
foreign judgment, and that arising from the facts or
allegations that occasioned the foreign judgment. They
may pertain to the same set of facts, but there is an
essential difference in the right-duty correlatives that are
sought to be vindicated. For example, in a complaint for
damages against a tortfeasor, the cause of action
emanates from the violation of the right of the
complainant through the act or omission of the
respondent. On the other hand, in a complaint for the
enforcement of a foreign judgment awarding damages
from the same tortfeasor, for the violation of the same
right through the same manner of action, the cause of
action derives not from the tortious act but from the
foreign judgment itself.
More importantly, the matters for proof are different.
Using the above example, the complainant will have to
establish before the court the tortious act or omission
committed by the tortfeasor, who in turn is allowed to
rebut these factual allegations or prove extenuating
circumstances. Extensive litigation is thus conducted on
the facts, and from there the right to and amount of
damages are assessed. On the other hand, in an action to
enforce a foreign judgment, the matter left for proof is
the foreign judgment itself, and not the facts from which
it prescinds.
As stated in Section 48, Rule 39, the actionable issues are
generally restricted to a review of jurisdiction of the
foreign court, the service of personal notice, collusion,
fraud, or mistake of fact or law. The limitations on review
is in consonance with a strong and pervasive policy in all
legal systems to limit repetitive litigation on claims and
issues.[32] Otherwise known as the policy of preclusion, it
seeks to protect party expectations resulting from
previous litigation, to safeguard against the harassment
of defendants, to insure that the task of courts not be
increased by never-ending litigation of the same
 67 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4

disputes, and in a larger sense to promote what Lord cognizable exclusively by courts of first instance (now
Coke in the Ferrers Case of 1599 stated to be the goal of Regional Trial Courts).
all law: rest and quietness.[33] If every judgment of a
On the other hand, petitioners cite the ponencia of
foreign court were reviewable on the merits, the plaintiff
Justice JBL Reyes in Lapitan v. Scandia,[36] from which the
would be forced back on his/her original cause of action,
rule in Singsong and Raymundo actually derives, but
rendering immaterial the previously concluded
which incorporates this additional nuance omitted in the
litigation.[34]
latter cases:
Petitioners appreciate this distinction, and rely upon it to
xxx However, where the basic issue is something other
support the proposition that the subject matter of the
than the right to recover a sum of money, where the
complaintthe enforcement of a foreign judgmentis
money claim is purely incidental to, or a consequence of,
incapable of pecuniary estimation. Admittedly the
the principal relief sought, like in suits to have the
proposition, as it applies in this case, is counter-intuitive,
defendant perform his part of the contract (specific
and thus deserves strict scrutiny. For in all practical
performance) and in actions for support, or for
intents and purposes, the matter at hand is capable of
annulment of judgment or to foreclose a mortgage, this
pecuniary estimation, down to the last cent. In the
Court has considered such actions as cases where the
assailed Order, the respondent judge pounced upon this
subject of the litigation may not be estimated in terms of
point without equivocation:
money, and are cognizable exclusively by courts of first
The Rules use the term where the value of the subject instance.[37]
matter cannot be estimated. The subject matter of the
Petitioners go on to add that among the actions the
present case is the judgment rendered by the foreign
Court has recognized as being incapable of pecuniary
court ordering defendant to pay plaintiffs definite sums
estimation include legality of conveyances and money
of money, as and for compensatory damages. The Court
deposits,[38] validity of a mortgage,[39] the right to
finds that the value of the foreign judgment can be
support,[40] validity of documents,[41] rescission of
estimated; indeed, it can even be easily determined. The
contracts,[42] specific performance,[43] and validity or
Court is not minded to distinguish between the
annulment of judgments.[44] It is urged that an action for
enforcement of a judgment and the amount of said
enforcement of a foreign judgment belongs to the same
judgment, and separate the two, for purposes of
class.
determining the correct filing fees. Similarly, a plaintiff
suing on promissory note for P1 million cannot be This is an intriguing argument, but ultimately it is self-
allowed to pay only P400 filing fees (sic), on the evident that while the subject matter of the action is
reasoning that the subject matter of his suit is not the P1 undoubtedly the enforcement of a foreign judgment, the
million, but the enforcement of the promissory note, and effect of a providential award would be the adjudication
that the value of such enforcement cannot be of a sum of money. Perhaps in theory, such an action is
estimated.[35] primarily for the enforcement of the foreign judgment,
but there is a certain obtuseness to that sort of argument
The jurisprudential standard in gauging whether the
since there is no denying that the enforcement of the
subject matter of an action is capable of pecuniary
foreign judgment will necessarily result in the award of a
estimation is well-entrenched. The Marcos Estate
definite sum of money.
cites Singsong v. Isabela Sawmill and Raymundo v. Court
of Appeals, which ruled: But before we insist upon this conclusion past beyond
the point of reckoning, we must examine its possible
[I]n determining whether an action is one the subject
ramifications. Petitioners raise the point that a
matter of which is not capable of pecuniary estimation
declaration that an action for enforcement of foreign
this Court has adopted the criterion of first ascertaining
judgment may be capable of pecuniary estimation might
the nature of the principal action or remedy sought. If it
lead to an instance wherein a first level court such as the
is primarily for the recovery of a sum of money, the claim
Municipal Trial Court would have jurisdiction to enforce
is considered capable of pecuniary estimation, and
a foreign judgment. But under the statute defining the
whether jurisdiction is in the municipal courts or in the
jurisdiction of first level courts, B.P. 129, such courts are
courts of first instance would depend on the amount of
not vested with jurisdiction over actions for the
the claim. However, where the basic issue is something
enforcement of foreign judgments.
other than the right to recover a sum of money, where
the money claim is purely incidental to, or a consequence Sec. 33. Jurisdiction of Metropolitan Trial Courts,
of, the principal relief sought, this Court has considered Municipal Trial Courts and Municipal Circuit Trial Courts
such actions as cases where the subject of the litigation in civil cases. Metropolitan Trial Courts, Municipal Trial
may not be estimated in terms of money, and are Courts, and Municipal Circuit Trial Courts shall exercise:
 68 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
(1) Exclusive original jurisdiction over civil actions and
probate proceedings, testate and intestate, including the
grant of provisional remedies in proper cases, where the
value of the personal property, estate, or amount of the
demand does not exceed One hundred thousand pesos
(P100,000.00) or, in Metro Manila where such personal
property, estate, or amount of the demand does not
exceed Two hundred thousand pesos (P200,000.00)
exclusive of interest damages of whatever kind,
attorney's fees, litigation expenses, and costs, the
amount of which must be specifically alleged: Provided,
That where there are several claims or causes of action
between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the
totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of
the same or different transactions;
(2) Exclusive original jurisdiction over cases of forcible
entry and unlawful detainer: Provided, That when, in
such cases, the defendant raises the question of
ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue
of ownership, the issue of ownership shall be resolved
only to determine the issue of possession.
(3) Exclusive original jurisdiction in all civil actions which
involve title to, or possession of, real property, or any
interest therein where the assessed value of the
property or interest therein does not exceed Twenty
thousand pesos (P20,000.00) or, in civil actions in Metro
Manila, where such assessed value does not exceed Fifty
thousand pesos (P50,000.00) exclusive of interest,
damages of whatever kind, attorney's fees, litigation
expenses and costs: Provided, That value of such
property shall be determined by the assessed value of
the adjacent lots.[45]
Section 33 of B.P. 129 refers to instances wherein the
cause of action or subject matter pertains to an assertion
of rights and interests over property or a sum of money.
But as earlier pointed out, the subject matter of an action
to enforce a foreign judgment is the foreign judgment
itself, and the cause of action arising from the
adjudication of such judgment.
An examination of Section 19(6), B.P. 129 reveals that the
instant complaint for enforcement of a foreign
judgment, even if capable of pecuniary estimation,
would fall under the jurisdiction of the Regional Trial
Courts, thus negating the fears of the petitioners.
Indeed, an examination of the provision indicates that it
can be relied upon as jurisdictional basis with respect to
actions for enforcement of foreign judgments, provided
that no other court or office is vested jurisdiction over
such complaint:
Sec. 19. Jurisdiction in civil cases. Regional Trial Courts
shall exercise exclusive original jurisdiction:
xxx
(6) In all cases not within the exclusive jurisdiction of any
court, tribunal, person or body exercising jurisdiction or
any court, tribunal, person or body exercising judicial or
quasi-judicial functions.
Thus, we are comfortable in asserting the obvious, that
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 another consideration of supreme relevance in
this case, one which should disabuse the notion that the
doctrine affirmed in this decision is grounded solely on
the letter of the procedural rule. We earlier adverted to
the the internationally recognized policy of
preclusion,[46] as well as the principles of comity, utility
and convenience of nations[47] as the basis for the
evolution of the rule calling for the recognition and
enforcement of foreign judgments. The US Supreme
Court in Hilton v. Guyot[48] relied heavily on the concept
of comity, as especially derived from the landmark
treatise of Justice Story in his Commentaries on the
Conflict of Laws of 1834.[49] Yet the notion of comity has
since been criticized as one of dim contours[50] or
suffering from a number of fallacies.[51] Other conceptual
bases for the recognition of foreign judgments have
evolved such as the vested rights theory or the modern
doctrine of obligation.[52]
There have been attempts to codify through treaties or
multilateral agreements the standards for the
recognition and enforcement of foreign judgments, but
these have not borne fruition. The members of the
European Common Market accede to the Judgments
Convention, signed in 1978, which eliminates as to
participating countries all of such obstacles to
recognition such as reciprocity and rvision au
fond.[53] The most ambitious of these attempts is
the Convention on the Recognition and Enforcement of
 69 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
Foreign Judgments in Civil and Commercial Matters,
prepared in 1966 by the Hague Conference of
International Law.[54] While it has not received the
ratifications needed to have it take effect,[55] it is
recognized as representing current scholarly thought on
the topic.[56] Neither the Philippines nor the United
States are signatories to the Convention.
Yet even if there is no unanimity as to the applicable
theory behind the recognition and enforcement of
foreign judgments or a universal treaty rendering it
obligatory force, there is consensus that the viability of
such recognition and enforcement is essential. Steiner
and Vagts note:
. . . The notion of unconnected bodies of national law on
private international law, each following a quite separate
path, is not one conducive to the growth of a
transnational community encouraging travel and
commerce among its members. There is a contemporary
resurgence of writing stressing the identity or similarity
of the values that systems of public and private
international law seek to further a community interest in
common, or at least reasonable, rules on these matters
in national legal systems. And such generic principles as
reciprocity play an important role in both fields.[57]
Salonga, whose treatise on private international law is of
worldwide renown, points out:
Whatever be the theory as to the basis for recognizing
foreign judgments, there can be little dispute that the
end is to protect the reasonable expectations and
demands of the parties. Where the parties have
submitted a matter for adjudication in the court of one
state, and proceedings there are not tainted with
irregularity, they may fairly be expected to submit,
within the state or elsewhere, to the enforcement of the
judgment issued by the court.[58]
There is also consensus as to the requisites for
recognition of a foreign judgment and the defenses
against the enforcement thereof. As earlier discussed,
the exceptions enumerated in Section 48, Rule 39 have
remain unchanged since the time they were adapted in
this jurisdiction from long standing American rules. The
requisites and exceptions as delineated under Section 48
are but a restatement of generally accepted principles of
international law. Section 98 of The Restatement,
Second, Conflict of Laws, states that a valid judgment
rendered in a foreign nation after a fair trial in a
contested proceeding will be recognized in the United
States, and on its face, the term valid brings into play
requirements such notions as valid jurisdiction over the
subject matter and parties.[59] Similarly, the notion that
fraud or collusion may preclude the enforcement of a
foreign judgment finds affirmation with foreign
jurisprudence and commentators,[60] as well as the
doctrine that the foreign judgment must not constitute a
clear mistake of law or fact.[61] And finally, it has been
recognized that public policy as a defense to the
recognition of judgments serves as an umbrella for a
variety of concerns in international practice which may
lead to a denial of recognition.[62]
The viability of the public policy defense against the
enforcement of a foreign judgment has been recognized
in this jurisdiction.[63] This defense allows for the
application of local standards in reviewing the foreign
judgment, especially when such judgment creates only a
presumptive right, as it does in cases wherein the
judgment is against a person.[64] The defense is also
recognized within the international sphere, as many civil
law nations adhere to a broad public policy exception
which may result in a denial of recognition when the
foreign court, in the light of the choice-of-law rules of the
recognizing court, applied the wrong law to the
case.[65] The public policy defense can safeguard against
possible abuses to the easy resort to offshore litigation if
it can be demonstrated that the original claim is noxious
to our constitutional values.
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.[66] 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.[67]
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.[68] As earlier demonstrated, there is a widespread
practice among states accepting in principle the need for
such recognition and enforcement, albeit subject to
limitations of varying degrees. The fact that there is no
binding universal treaty governing the practice is not
indicative of a widespread rejection of the principle, but
only a disagreement as to the imposable specific rules
governing the procedure for recognition and
enforcement.
Aside from the widespread practice, it is indubitable that
the procedure for recognition and enforcement is
 70 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
embodied in the rules of law, whether statutory or
jurisprudential, adopted in various foreign jurisdictions.
In the Philippines, this is evidenced primarily by Section
48, Rule 39 of the Rules of Court which has existed in its
current form since the early 1900s. Certainly, the
Philippine legal system has long ago accepted into its
jurisprudence and procedural rules the viability of an
action for enforcement of foreign judgment, as well as
the requisites for such valid enforcement, as derived
from internationally accepted doctrines. Again, there
may be distinctions as to the rules adopted by each
particular state,[69] but they all prescind from the premise
that there is a rule of law obliging states to allow for,
however generally, the recognition and enforcement of
a foreign judgment. The bare principle, to our mind, has
attained the status of opinio juris in international
practice.
This is a significant proposition, as it acknowledges that
the procedure and requisites outlined in Section 48, Rule
39 derive their efficacy not merely from the procedural
rule, but by virtue of the incorporation clause of the
Constitution. Rules of procedure are promulgated by the
Supreme Court,[70] and could very well be abrogated or
revised by the high court itself. Yet the Supreme Court is
obliged, as are all State components, to obey the laws of
the land, including generally accepted principles of
international law which form part thereof, such as those
ensuring the qualified recognition and enforcement of
foreign judgments.[71]
Thus, relative to the enforcement of foreign judgments
in the Philippines, it emerges that there is a general right
recognized within our body of laws, and affirmed by the
Constitution, to seek recognition and enforcement of
foreign judgments, as well as a right to defend against
such enforcement on the grounds of want of jurisdiction,
want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
The preclusion of an action for enforcement of a foreign
judgment in this country merely due to an exhorbitant
assessment of docket fees is alien to generally accepted
practices and principles in international law. Indeed,
there are grave concerns in conditioning the amount of
the filing fee on the pecuniary award or the value of the
property subject of the foreign decision. Such pecuniary
award will almost certainly be in foreign denomination,
computed in accordance with the applicable laws and
standards of the forum.[72] The vagaries of inflation, as
well as the relative low-income capacity of the Filipino,
to date may very well translate into an award virtually
unenforceable in this country, despite its integral
validity, if the docket fees for the enforcement thereof
were predicated on the amount of the award sought to
be enforced. The theory adopted by respondent judge
and the Marcos Estate may even lead to absurdities, such
as if applied to an award involving real property situated
in places such as the United States or Scandinavia where
real property values are inexorably high. We cannot very
well require that the filing fee be computed based on the
value of the foreign property as determined by the
standards of the country where it is located.
As crafted, Rule 141 of the Rules of Civil Procedure avoids
unreasonableness, as it recognizes that the subject
matter of an action for enforcement of a foreign
judgment is the foreign judgment itself, and not the
right-duty correlatives that resulted in the foreign
judgment. In this particular circumstance, given that the
complaint is lodged against an estate and is based on the
US District Courts Final Judgment, this foreign judgment
may, for purposes of classification under the governing
procedural rule, be deemed as subsumed under Section
7(b)(3) of Rule 141, i.e., within the class of all other
actions not involving property. Thus, only the blanket
filing fee of minimal amount is required.
Finally, petitioners also invoke Section 11, Article III of
the Constitution, which states that [F]ree access to the
courts and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by reason of
poverty. Since the provision is among the guarantees
ensured by the Bill of Rights, it certainly gives rise to a
demandable right. However, now is not the occasion to
elaborate on the parameters of this constitutional right.
Given our preceding discussion, it is not necessary to
utilize this provision in order to grant the relief sought by
the petitioners. It is axiomatic that the constitutionality
of an act will not be resolved by the courts if the
controversy can be settled on other grounds[73] or unless
the resolution thereof is indispensable for the
determination of the case.[74]
One more word. It bears noting that Section 48, Rule 39
acknowledges that the Final Judgment is not conclusive
yet, but presumptive evidence of a right of the
petitioners against the Marcos Estate. Moreover, the
Marcos Estate is not precluded to present evidence, if
any, of want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. This
ruling, decisive as it is on the question of filing fees and
no other, does not render verdict on the enforceability
of the Final Judgment before the courts under the
jurisdiction of the Philippines, or for that matter any
other issue which may legitimately be presented before
the trial court. Such issues are to be litigated before the
trial court, but within the confines of the matters for
proof as laid down in Section 48, Rule 39. On the other
hand, the speedy resolution of this claim by the trial
court is encouraged, and contumacious delay of the
decision on the merits will not be brooked by this Court.
WHEREFORE, the petition is GRANTED. The assailed
orders are NULLIFIED and SET ASIDE, and a new order
 71 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
REINSTATING Civil Case No. 97-1052 is hereby issued. No
costs.
SO ORDERED.
MEDELLIN v. TEXAS
Brief Fact Summary. Jose Medellin (D) appealed after
Texas (P) convicted him of rape and murder on the
ground that the plaintiff failed to inform him of his right
to have consular personnel notified of his detention by
the state as it was required under the Vienna
Convention. During his appeal at the Supreme Court,
Medellin (D) argued that a case decided by the
international Court of Justice suggested that his
conviction must be reconsidered to comply with the
Vienna Convention.
Synopsis of Rule of Law. (1). States courts are not
required under the U.S. Constitution to honor a treaty
obligation of the United States by enforcing a decision of
the International Court of Justice.
(2) State courts are not required by the U.S. Constitution
to provide review and reconsideration of a conviction
without regard to state procedural default rules as
required by a Memorandum by the President.
Facts. Jose Medellin (D), a Mexican national was found
guilty for being part of the gang rape and murder of two
teenage girls in Houston. He argued that the state had
violated his rights under the Vienna Convention in which
the United States is a party. Under the Vienna
Convention, any foreign national detained for any crime
has a right to contact his consulate.
Though his appeal was dismissed by the Supreme Court,
the Court took up his case again and Medellin (D)
argument rested in part on a holding by the International
Court of Justice in Case Concerning Avena and Other
Mexican Nationals (Mex v U.S.), 2004 I.C.J. 12 that the
U.S. had violated the Vienna Convention rights of 51
Mexican national (including Medellin (D) and that their
state-court convictions must be reconsidered, regardless
of any forfeiture of the right to raise the Vienna
Convention claims because of a failure to follow state
rules governing criminal convictions.
Based on these, Medellin (D) argued that the Vienna
Convention granted him an individual right that state
courts must respect. A memorandum from the U.S.
President that instructed state courts to comply with the
I.C.J’s rulings by rehearsing the cases was also cited by
Medellin (D). He further argued that the Constitution
gives the President broad power to ensure that treaties
are enforced, and that this power extends to the
treatment of treaties in state court proceedings.
Issue. Are state courts required under the U.S.
Constitution to honor a treaty obligation of the United
States by enforcing a decision of the International Court
of Justice?
(2) Are states courts required by the U.S. Constitution to
provide review and reconsideration of a conviction
without regard to state procedural default rules as
required by a memorandum by the President?
Held. (Roberts, C.J). (1). No. States courts are not
required under the U.S. Constitution to honor a treaty
obligation of the United States by enforcing a decision of
the International Court of Justice. What the Vienna
Convention stipulate is that if a person detained by a
foreign country asks, the authorities of the detaining
national must, without delay, inform the consular post of
the detainee of the detention.
(2). State courts are not required by the U.S. Constitution
to provide review and reconsideration of a conviction
without regard to state procedural default rules as
required by a Memorandum by the President. The
presidential memorandum was an attempt by the
Executive Branch to enforce a non-self-executing treaty
without the necessary congressional action, giving it no
binding authority on state courts.
Dissent. (Breyer, J.) Texas (P) is required by the
Supremacy law to enforce the I.C.J’s judgment in Avena.
The relevant treaty should be found to be self-executing
because the language supports direct judicial
enforcement, the optional protocol is applicable to
disputes about the meaning of a provision that is itself
self-executing and judicially enforceable, logic requires a
conclusion that the provision is self-executing since it is
final and binding, the majority decision has negative
practical implications, the I.C.J. judgment is well suited to
direct judicial enforcement, such a holding would not
threaten constitutional conflict with other branches and
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neither the President nor Congress has expressed
concern about direct judicial enforcement of the I.C.J.
decision.
Concurrence. (Stevens, J.) Texas failure to provide
consular notice in accordance with the Vienna
Convention got the U.S. into this mess and since the
violation did not prejudice Medellin (D), Texas (P) ought
to comply with Avena.
Discussion. After last minutes appeals to the U.S.
Supreme Court were rejected, Medellin (D) was
executed on the August 5, 2008. The request made to
Governor Rick Perry by Secretary of State Condoleezza
Rice and Mexico and the Attorney General Michael
Mukassey to delay the execution citing the torture, rape
and strangulation of two teenage girls in Houston as just
cause for the death penalty. Congress took no action
even when a bill was introduced in the House of
Representatives to respond to the Court’s ruling.
MEDELLIN v. TEXAS
Certiorari to the court of criminal appeals of texas
No. 06–984. Argued October 10, 2007—Decided March
25, 2008
In the Case Concerning Avena and Other Mexican
Nationals (Mex. v. U. S.), 2004 I. C. J. 12 (Avena), the
International Court of Justice (ICJ) held that the United
States had violated Article 36(1)(b) of the Vienna
Convention on Consular Relations (Vienna Convention or
Convention) by failing to inform 51 named Mexican
nationals, including petitioner Medellín, of their Vienna
Convention rights. The ICJ found that those named
individuals were entitled to review and reconsideration
of their U. S. state-court convictions and sentences
regardless of their failure to comply with generally
applicable state rules governing challenges to criminal
convictions. In Sanchez-Llamas v. Oregon, 548 U. S.
331—issued after Avena but involving individuals who
were not named in the Avena judgment—this Court
held, contrary to the ICJ’s determination, that the
Convention did not preclude the application of state
default rules. The President then issued a memorandum
(President’s Memorandum or Memorandum) stating
that the United States would “discharge its international
obligations” under Avena “by having State courts give
effect to the decision.”
Relying on Avena and the President’s Memorandum,
Medellín filed a second Texas state-court habeas
application challenging his state capital murder
conviction and death sentence on the ground that he had
not been informed of his Vienna Convention rights. The
Texas Court of Criminal Appeals dismissed Medellín’s
application as an abuse of the writ, concluding that
neither Avena nor the President’s Memorandum was
binding federal law that could displace the State’s
limitations on filing successive habeas applications.
Held: Neither Avena nor the President’s Memorandum
constitutes directly enforceable federal law that pre-
empts state limitations on the filing of successive habeas
petitions. Pp. 8–37.
1. The Avena judgment is not directly enforceable as
domestic law in state court. Pp. 8–27.
(a) While a treaty may constitute an international
commitment, it is not binding domestic law unless
Congress has enacted statutes implementing it or the
treaty itself conveys an intention that it be “self-
executing” and is ratified on that basis.
See, e.g., Foster v. Neilson, 2 Pet. 253, 314.
The Avena judgment creates an international law
obligation on the part of the United States, but it is not
automatically binding domestic law because none of the
relevant treaty sources—the Optional Protocol, the U. N.
Charter, or the ICJ Statute—creates binding federal law
in the absence of implementing legislation, and no such
legislation has been enacted.
The most natural reading of the Optional Protocol is
that it is a bare grant of jurisdiction. The Protocol says
nothing about the effect of an ICJ decision, does not
commit signatories to comply therewith, and is silent as
to any enforcement mechanism. The obligation to
comply with ICJ judgments is derived from Article 94 of
the U. N. Charter, which provides that “[e]ach … Member
… undertakes to comply with the [ICJ’s] decision … in any
case to which it is a party.” The phrase “undertakes to
comply” is simply a commitment by member states to
take future action through their political branches. That
language does not indicate that the Senate, in ratifying
the Optional Protocol, intended to vest ICJ decisions with
immediate legal effect in domestic courts.
This reading is confirmed by Article 94(2)—the
enforcement provision—which provides the sole remedy
for noncompliance: referral to the U. N. Security Council
by an aggrieved state. The provision of an express
diplomatic rather than judicial remedy is itself evidence
that ICJ judgments were not meant to be enforceable in
domestic courts. See Sanchez-Llamas, 548 U. S., at 347.
Even this “quintessentially international remed[y],” id.,
at 355, is not absolute. It requires a Security Council
resolution, and the President and Senate were
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undoubtedly aware that the United States retained the
unqualified right to exercise its veto of any such
resolution. Medellín’s construction would eliminate the
option of noncompliance contemplated by Article 94(2),
undermining the ability of the political branches to
determine whether and how to comply with an ICJ
judgment.
The ICJ Statute, by limiting disputes to those involving
nations, not individuals, and by specifying that ICJ
decisions have no binding force except between those
nations, provides further evidence that
the Avena judgment does not automatically constitute
federal law enforceable in U. S. courts. Medellín, an
individual, cannot be considered a party to
the Avena decision. Finally, the United States’
interpretation of a treaty “is entitled to great
weight,” Sumitomo Shoji America, Inc. v. Avagliano, 457
U. S., at 184–185, and the Executive Branch has
unfailingly adhered to its view that the relevant treaties
do not create domestically enforceable federal law.
Pp. 8–17.
(b) The foregoing interpretive approach—parsing a
treaty’s text to determine if it is self-executing—is hardly
novel. This Court has long looked to the language of a
treaty to determine whether the President who
negotiated it and the Senate that ratified it intended for
the treaty to automatically create domestically
enforceable federal law. See, e.g., Foster, supra. Pp. 18–
20.
(c) The Court’s conclusion that Avena does not by
itself constitute binding federal law is confirmed by the
“post ratification understanding” of signatory countries.
See Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226.
There are currently 47 nations that are parties to the
Optional Protocol and 171 nations that are parties to the
Vienna Convention. Yet neither Medellín nor
his amici have identified a single nation that treats ICJ
judgments as binding in domestic courts. The lack of any
basis for supposing that any other country would treat
ICJ judgments as directly enforceable as a matter of their
domestic law strongly suggests that the treaty should not
be so viewed in our courts. See Sanchez-Llamas, 548 U.
S., at 343–344, and n. 3.
The Court’s conclusion is further supported by general
principles of interpretation. Given that the forum state’s
procedural rules govern a treaty’s implementation
absent a clear and express statement to the contrary,
see e.g., id., at 351, one would expect the ratifying
parties to the relevant treaties to have clearly stated any
intent to give ICJ judgments such effect. There is no
statement in the Optional Protocol, the U. N. Charter, or
the ICJ Statute that supports this notion. Moreover, the
consequences of Medellín’s argument give pause:
neither Texas nor this Court may look behind an ICJ
decision and quarrel with its reasoning or result, despite
this Court’s holding in Sanchez-Llamas that “[n]othing in
the [ICJ’s] structure or purpose … suggests that its
interpretations were intended to be conclusive on our
courts.” id., at 354. Pp. 20–24.
(d) The Court’s holding does not call into question the
ordinary enforcement of foreign judgments. An
agreement to abide by the result of an international
adjudication can be a treaty obligation like any other, so
long as the agreement is consistent with the
Constitution. In addition, Congress is up to the task of
implementing non-self-executing treaties, even those
involving complex commercial disputes. Medellín
contends that domestic courts generally give effect to
foreign judgments, but the judgment Medellín asks us to
enforce is hardly typical: It would enjoin the operation of
state law and force the State to take action to “review
and reconside[r]” his case. Foreign judgments awarding
injunctive relief against private parties, let alone
sovereign States, “are not generally entitled to
enforcement.” Restatement (Third) of Foreign Relations
Law of the United States §481, Comment b, p. 595
(1986). Pp. 24–27.
2. The President’s Memorandum does not
independently require the States to provide review and
reconsideration of the claims of the 51 Mexican nationals
named in Avena without regard to state procedural
default rules. Pp. 27–37.
(a) The President seeks to vindicate plainly
compelling interests in ensuring the reciprocal
observance of the Vienna Convention, protecting
relations with foreign governments, and demonstrating
commitment to the role of international law. But those
interests do not allow the Court to set aside first
principles. The President’s authority to act, as with the
exercise of any governmental power, “must stem either
from an act of Congress or from the Constitution
itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
579, 585.
Justice Jackson’s familiar tripartite scheme provides
the accepted framework for evaluating executive action
in this area. First, “[w]hen the President acts pursuant to
an express or implied authorization of Congress, his
authority is at its maximum, for it includes all that he
possesses in his own right plus all that Congress can
delegate.” Youngstown, 343 U. S., at 635 (Jackson, J.,
concurring). Second, “[w]hen the President acts in
absence of either a congressional grant or denial of
authority, he can only rely upon his own independent
powers, but there is a zone of twilight in which he and
Congress may have concurrent authority, or in which its
distribution is uncertain.” Id., at 637. In such a
circumstance, Presidential authority can derive support
from “congressional inertia, indifference or
 74 | P a g e P U B L I C I N T E R N A T I O N A L L A W M O D U L E 3 A N D 4
quiescence.” Ibid. Finally, “[w]hen the President takes
measures incompatible with the expressed or implied
will of Congress, his power is at its lowest ebb,” and the
Court can sustain his actions “only by disabling the
Congress from acting upon the subject.” Id., at 637–638.
Pp. 28–29.
(b) The United States marshals two principal
arguments in favor of the President’s authority to
establish binding rules of decision that preempt contrary
state law. The United States argues that the relevant
treaties give the President the authority to implement
the Avena judgment and that Congress has acquiesced in
the exercise of such authority. The United States also
relies upon an “independent” international dispute-
resolution power. We find these arguments, as well as
Medellín’s additional argument that the President’s
Memorandum is a valid exercise of his “Take Care”
power, unpersuasive. Pp. 29–37.
(i) The United States maintains that the President’s
Memorandum is implicitly authorized by the Optional
Protocol and the U. N. Charter. But the responsibility for
transforming an international obligation arising from a
non-self-executing treaty into domestic law falls to
Congress, not the Executive. Foster, 2 Pet., at 315. It is a
fundamental constitutional principle that “ ‘[t]he power
to make the necessary laws is in Congress; the power to
execute in the President.’ ” Hamdan v. Rumsfeld, 548 U.
S. 557, 591. A non-self-executing treaty, by definition, is
one that was ratified with the understanding that it is not
to have domestic effect of its own force. That
understanding precludes the assertion that Congress has
implicitly authorized the President—acting on his own—
to achieve precisely the same result. Accordingly, the
President’s Memorandum does not fall within the first
category of the Youngstown framework. Indeed,
because the non-self-executing character of the relevant
treaties not only refutes the notion that the ratifying
parties vested the President with the authority to
unilaterally make treaty obligations binding on domestic
courts, but also implicitly prohibits him from doing so,
the President’s assertion of authority is
within Youngstown’s third category, not the first or even
the second.
The United States maintains that congressional
acquiescence requires that the President’s
Memorandum be given effect as domestic law. But such
acquiescence is pertinent when the President’s action
falls within the second Youngstown category, not the
third. In any event, congressional acquiescence does not
exist here. Congress’ failure to act following the
President’s resolution of prior ICJ controversies does not
demonstrate acquiescence because in none of those
prior controversies did the President assert the authority
to transform an international obligation into domestic
law and thereby displace state law. The United States’
reliance on the President’s “related” statutory
responsibilities and on his “established role” in litigating
foreign policy concerns is also misplaced. The President’s
statutory authorization to represent the United States
before the U. N., the ICJ, and the U. N. Security Council
speaks to his international responsibilities, not to any
unilateral authority to create domestic law.
The combination of a non-self-executing treaty and the
lack of implementing legislation does not preclude the
President from acting to comply with an international
treaty obligation by other means, so long as those means
are consistent with the Constitution. But the President
may not rely upon a non-self-executing treaty to
establish binding rules of decision that pre-empt
contrary state law. Pp. 30–35.
(ii) The United States also claims that—independent
of the United States’ treaty obligations—the
Memorandum is a valid exercise of the President’s
foreign affairs authority to resolve claims disputes.
See, e.g., American Ins. Assn. v. Garamendi, 539 U. S.
396, 415. This Court’s claims-settlement cases involve a
narrow set of circumstances: the making of executive
agreements to settle civil claims between American
citizens and foreign governments or foreign nationals.
They are based on the view that “a systematic, unbroken,
executive practice, long pursued to the knowledge of the
Congress and never before questioned,” can “raise a
presumption that the [action] had been [taken] in
pursuance of its consent.” Dames & Moore v. Regan, 453
U. S. 654, 668. But “[p]ast practice does not, by itself,
create power.” Ibid. The President’s Memorandum—a
directive issued to state courts that would compel those
courts to reopen final criminal judgments and set aside
neutrally applicable state laws—is not supported by a
“particularly longstanding practice.” The Executive’s
limited authority to settle international claims disputes
pursuant to an executive agreement cannot stretch so
far. Pp. 35–37.
(iii) Medellín’s argument that the President’s
Memorandum is a valid exercise of his power to “Take
Care” that the laws be faithfully executed, U. S. Const.,
Art. II, §3, fails because the ICJ’s decision in Avena is not
domestic law. P. 37.
223 S. W. 3d 315, affirmed.
Roberts, C. J., delivered the opinion of the Court, in
which Scalia, Kennedy, Thomas, and Alito, JJ., joined.
Stevens, J., filed an opinion concurring in the judgment.
Breyer, J., filed a dissenting opinion, in which Souter and
Ginsburg, JJ., joined.
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