PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
Secretary of Justice v. Hon. Ralph Lantion
GR NO. 139465 January 18, 2000
Facts:
On January 13, 1977, then President
Ferdinand E. Marcos issued Presidential
Decree No. 1069 "Prescribing the
Procedure for the Extradition of Persons
Who Have Committed Crimes in a Foreign
Country".
On November 13, 1994, then Secretary of
Justice Franklin M. Drilon, representing the
Government of the Republic of the
Philippines, signed in Manila the "Extradition
Treaty Between the Government of the
Republic of the Philippines and the
Government of the United States of
America" (hereinafter referred to as the RP-
US Extradition Treaty). The Senate, by way
of Resolution No. 11, expressed its
concurrence in the ratification of said treaty.
On June 18, 1999, the Department of
Justice received from the Department of
Foreign Affairs U.S. Note Verbale No. 0522
containing a request for the extradition of
private respondent Mark Jimenez to the
United States.
On the same day, petitioner issued
Department Order No. 249 designating and
authorizing a panel of attorneys to take
charge of and to handle the case pursuant
to Section 5(1) of Presidential Decree No.
1069. Accordingly, the panel began with the
"technical evaluation and assessment" of
the extradition request and the documents
in support thereof. The panel found that the
"official English translation of some
documents in Spanish were not attached to
the request and that there are some other
matters that needed to be addressed"
Pending evaluation of the aforestated
extradition documents, private respondent,
through counsel, wrote a letter dated July 1,
1999 addressed to petitioner requesting
copies of the official extradition request from
the U.S. Government, as well as all
documents and papers submitted therewith;
and that he be given ample time to
comment on the request after he shall have
received copies of the requested papers.
Private respondent also requested that the
proceedings on the matter be held in
abeyance in the meantime.
Later, private respondent requested that
preliminary, he be given at least a copy of,
or access to, the request of the United
States Government, and after receiving a
copy of the Diplomatic Note, a period of time
to amplify on his request.
In response to private respondent's July 1,
1999 letter, petitioner, in a reply-letter dated
July 13, 1999 (but received by private
respondent only on August 4, 1999), denied
the foregoing requests.
RTC:
Private respondent filed with the Regional
Trial Court of the National Capital Judicial
Region a petition against the Secretary of
Justice, the Secretary of Foreign Affairs,
and the Director of the National Bureau of
Investigation, for mandamus (to compel
herein petitioner to furnish private
respondent the extradition documents, to
give him access thereto, and to afford him
an opportunity to comment on, or oppose,
the extradition request, and thereafter to
evaluate the request impartially, fairly and
objectively); certiorari (to set aside herein
petitioner's letter dated July 13, 1999); and
prohibition (to restrain petitioner from
considering the extradition request and from
filing an extradition petition in court; and to
enjoin the Secretary of Foreign Affairs and
the Director of the NBI from performing any
act directed to the extradition of private
respondent to the United States), with an
application for the issuance of a temporary
restraining order and a writ of preliminary
injunction.
RTC RULING:
This Court hereby Orders the respondents,
namely: the Secretary of Justice, the
Secretary of Foreign Affairs and the Director
of the National Bureau of Investigation, their
agents and/or representatives to maintain
the status quo by refraining from committing
the acts complained of; from conducting
further proceedings in connection with the
request of the United States Government for
the extradition of the petitioner; from filing
the corresponding Petition with a Regional
Trial court; and from performing any act
directed to the extradition of the petitioner to
the United States, for a period of twenty (20)
days from service on respondents of this
Order, pursuant to Section 5, Rule 58 of the
1997 Rules of Court.
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
Issue:
1. Whether or not during the evaluation
stage of the extradition proceedings, is
private respondent entitled to the two basic
due process rights of notice and hearing?
2. Whether or not in the event that private
respondent is adjudged entitled to basic due
process rights at the evaluation stage of the
extradition proceedings, would this
entitlement constitute a breach of the legal
commitments and obligations of the
Philippine Government under the RP-US
Extradition Treaty?
Rulings:
1. No, during the evaluation stage of the
extradition proceedings, private respondent
is not entitled to the two basic due process
rights of notice and hearing?
When the individual himself is involved in
official government action because said
action has a direct bearing on his life, and
may either cause him some kind of
deprivation or injury, he actually invokes the
basic right to be notified under Section 1 of
the Bill of Rights and not exactly the right to
information on matters of public concern. As
to an accused in a criminal proceeding, he
invokes Section 14, particularly the right to
be informed of the nature and cause of the
accusation against him.
The right to information is implemented by
the right of access to information within the
control of the government (Bernas, The
1987 Constitution of the Republic of the
Philippines, 1996 ed., p. 337). Such
information may be contained in official
records, and in documents and papers
pertaining to official acts, transactions, or
decisions.
In the case at bar, the papers requested by
private respondent pertain to official
government action from the U.S.
Government. No official action from our
country has yet been taken. Moreover, the
papers have some relation to matters of
foreign relations with the U.S. Government.
Consequently, if a third party invokes this
constitutional provision, stating that the
extradition papers are matters of public
concern since they may result in the
extradition of a Filipino, we are afraid that
the balance must be tilted, at such particular
time, in favor of the interests necessary for
the proper functioning of the government.
During the evaluation procedure, no official
governmental action of our own government
has as yet been done; hence the invocation
of the right is premature. Later, and in
contrast, records of the extradition hearing
would already fall under matters of public
concern, because our government by then
shall have already made an official decision
to grant the extradition request. The
extradition of a fellow Filipino would be
forthcoming.
Hence, during the evaluation stage of the
extradition proceedings, private respondent
is not entitled to the two basic due process
rights of notice and hearing.
2. No, in the event that private respondent is
adjudged entitled to basic due process
rights at the evaluation stage of the
extradition proceedings, this entitlement
does not constitute a breach of the legal
commitments and obligations of the
Philippine Government under the RP-US
Extradition Treaty.
The rule of pacta sunt servanda, one of the
oldest and most fundamental maxims of
international law, requires the parties to a
treaty to keep their agreement therein in
good faith. The observance of our country's
legal duties under a treaty is also compelled
by Section 2, Article II of the Constitution
which provides that "[t]he Philippines
renounces war as an instrument of national
policy, adopts the generally accepted
principles of international law as part of the
law of the land, and adheres to the policy of
peace, equality, justice, freedom,
cooperation and amity with nations." Under
the doctrine of incorporation, rules of
international law form part of the law of the
and land no further legislative action is
needed to make such rules applicable in the
domestic sphere (Salonga & Yap, Public
International Law, 1992 ed., p. 12).
The doctrine of incorporation is applied
whenever municipal tribunals (or local
courts) are confronted with situations in
which there appears to be a conflict
between a rule of international law and the
provisions of the constitution or statute of
the local state. Efforts should first be
exerted to harmonize them, so as to give
effect to both since it is to be presumed that
municipal law was enacted with proper
regard for the generally accepted principles
of international law in observance of the
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
observance of the Incorporation Clause in
the above-cited constitutional provision
(Cruz, Philippine Political Law, 1996 ed., p.
55). In a situation, however, where the
conflict is irreconcilable and a choice has to
be made between a rule of international law
and municipal law, jurisprudence dictates
that municipal law should be upheld by the
municipal courts (Ichong vs. Hernandez,
101 Phil. 1155 [1957]; Gonzales vs.
Hechanova, 9 SCRA 230 [1963]; In re:
Garcia, 2 SCRA 984 [1961]) for the reason
that such courts are organs of municipal law
and are accordingly bound by it in all
circumstances (Salonga & Yap, op. cit., p.
13). The fact that international law has been
made part of the law of the land does not
pertain to or imply the primacy of
international law over national or municipal
law in the municipal sphere. The doctrine of
incorporation, as applied in most countries,
decrees that rules of international law are
given equal standing with, but are not
superior to, national legislative enactments.
Accordingly, the principle lex posterior
derogat priori takes effect — a treaty may
repeal a statute and a statute may repeal a
treaty. In states where the constitution is the
highest law of the land, such as the
Republic of the Philippines, both statutes
and treaties may be invalidated if they are in
conflict with the constitution (Ibid.).
In the case at bar, private respondent does
not only face a clear and present danger of
loss of property or employment, but of
liberty itself, which may eventually lead to
his forcible banishment to a foreign land.
The convergence of petitioner's favorable
action on the extradition request and the
deprivation of private respondent's liberty is
easily comprehensible.
Hence, in the event that private respondent
is adjudged entitled to basic due process
rights at the evaluation stage of the
extradition proceedings, this entitlement
does not constitute a breach of the legal
commitments and obligations of the
Philippine Government under the RP-US
Extradition Treaty.
Secretary of Justice v. Hon. Ralph Lantion
GR NO. 139465 October 17, 2000
Facts: On January 18, 2000, petitioner was
ordered to furnish private respondent copies
of the extradition request and its supporting
papers and to grant the latter reasonable
period within which to file his comment with
supporting evidence.
Private respondent states that he must be
afforded the right to notice and hearing as
required by our Constitution. He likens an
extradition proceeding to a criminal
proceeding and the evaluation stage to a
preliminary investigation.
Petitioner filed an Urgent Motion for
Reconsideration assailing the mentioned
decision.
Issue: Whether or not the private
respondent is entitled to the due process
right to notice and hearing during the
evaluation stage of the extradition process
Held: No. Private respondent is bereft of the
right to notice and hearing during the
evaluation stage of the extradition process.
First. P.D. No. 1069 which implements the
RP-US Extradition Treaty provides that the
time when an extraditee shall be furnished a
copy of the petition for extradition as well as
its supporting papers is on after the filing of
the petition for extradition in the extradition
court.
There is no provision in the RP-US
Extradition Treaty and in P.D. No. 1069
which gives an extraditee the right to
demand from the petitioner Secretary of
Justice copies of the extradition request
from the US government and its supporting
documents and to comment thereon while
the request is still undergoing evaluation.
We cannot write a provision in the treaty
giving private respondent that right where
there is none. It is well-settled that a "court
cannot alter, amend, or add to a treaty by
the insertion of any clause, small or great, or
dispense with any of its conditions and
requirements or take away any qualification,
or integral part of any stipulation, upon any
motion of equity, or general convenience, or
substantial justice."
Second. All treaties, including the RP-US
Extradition Treaty, should be interpreted in
light of their intent. Nothing less than the
Vienna Convention on the Law of Treaties
to which the Philippines is a signatory
provides that "a treaty shall be interpreted in
good faith in accordance with the ordinary
meaning to be given to the terms of the
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
treaty in their context and in light of its
object and purpose.
It ought to follow that the RP-US Extradition
Treaty calls for an interpretation that will
minimize if not prevent the escape of
extraditees from the long arm of the law and
expedite their trial. The submission of the
private respondent, that as a probable
extraditee under the RP-US Extradition
Treaty he should be furnished a copy of the
US government request for his extradition
and its supporting documents even while
they are still under evaluation by petitioner
Secretary of Justice, does not meet this
desideratum.
Third. An equally compelling factor to
consider is the understanding of the parties
themselves to the RP-US Extradition Treaty
as well as the general interpretation of the
issue in question by other countries with
similar treaties with the Philippines. The rule
is recognized that while courts have the
power to interpret treaties, the meaning
given them by the departments of
government particularly charged with their
negotiation and enforcement is accorded
great weight. Our executive department of
government, thru the Department of Foreign
Affairs (DFA) and the Department of Justice
(DOJ), has steadfastly maintained that the
RP-US Extradition Treaty and P.D. No.
1069 do not grant the private respondent a
right to notice and hearing during the
evaluation stage of an extradition
process.This understanding of the treaty is
shared by the US government, the other
party to the treaty.
Fourth. Private respondent, however,
peddles the postulate that he must be
afforded the right to notice and hearing as
required by our Constitution. He buttresses
his position by likening an extradition
proceeding to a criminal proceeding and the
evaluation stage to a preliminary
investigation.
An extradition proceeding is sui generis. It is
not a criminal proceeding which will call into
operation all the rights of an accused as
guaranteed by the Bill of Rights. The
process of extradition does not involve the
determination of the guilt or innocence of an
accused. His guilt or innocence will be
adjudged in the court of the state where he
will be extradited. Hence, as a rule,
constitutional rights that are only relevant to
determine the guilt or innocence of an
accused cannot be invoked by an extraditee
especially by one whose extradition papers
are still undergoing evaluation.
Fifth. Private respondent would also impress
upon the Court the urgency of his right to
notice and hearing considering the alleged
threat to his liberty "which may be more
priceless than life."24 The supposed threat to
private respondent’s liberty is perceived to
come from several provisions of the RP-US
Extradition Treaty and P.D. No. 1069 which
allow provisional arrest and temporary
detention.
Both the RP-US Extradition Treaty and P.D.
No. 1069 clearly provide that private
respondent may be provisionally arrested
only pending receipt of the request for
extradition. Our DFA has long received the
extradition request from the United States
and has turned it over to the DOJ. It is
undisputed that until today, the United
States has not requested for private
respondent’s provisional arrest. Therefore,
the threat to private respondent’s liberty has
passed. It is more imagined than real.
Sixth. To be sure, private respondent’s plea
for due process deserves serious
consideration involving as it does his
primordial right to liberty. His plea to due
process, however, collides with important
state interests which cannot also be ignored
for they serve the interest of the greater
majority. Considering that in the case at bar,
the extradition proceeding is only at its
evaluation stage, the nature of the right
being claimed by the private respondent is
nebulous and the degree of prejudice he will
allegedly suffer is weak, we accord greater
weight to the interests espoused by the
government thru the petitioner Secretary of
Justice.
In tilting the balance in favor of the interests
of the State, the Court stresses that it is not
ruling that the private respondent has no
right to due process at all throughout the
length and breadth of the extrajudicial
proceedings. Procedural due process
requires a determination of what process is
due, when it is due, and the degree of what
is due. Stated otherwise, a prior
determination should be made as to
whether procedural protections are at all
due and when they are due, which in turn
depends on the extent to which an individual
will be “condemned to suffer grievous loss.”
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
As aforesaid, P.D. No. 1069 which
implements the RP-US Extradition Treaty
affords an extraditee sufficient opportunity to
meet the evidence against him once the
petition is filed in court.The extraditee’s right
to know is momentarily withheld during the
evaluation stage of the extradition process
to accommodate the more compelling
interest of the State to prevent escape of
potential extraditees which can be
precipitated by premature information of the
basis of the request for his extradition. No
less compelling at that stage of the
extradition proceedings is the need to be
more deferential to the judgment of a co-
equal branch of the government, the
Executive, which has been endowed by our
Constitution with greater power over matters
involving our foreign relations. Needless to
state, this balance of interests is not a static
but a moving balance which can be adjusted
as the extradition process moves from the
administrative stage to the judicial stage and
to the execution stage depending on factors
that will come into play.
In sum, we rule that the temporary hold on
private respondent’s privilege of notice and
hearing is a soft restraint on his right to due
process which will not deprive him of
fundamental fairness should he decide to
resist the request for his extradition to the
United States. There is no denial of due
process as long as fundamental fairness is
assured a party.
Kuroda v. Jalandoni, 83 Phil. 171 (1979)
Facts:
Shigenori Kuroda, Lieutenant General of the
Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in
The Philippines, was prosecuted for war
crimes before the Military Commission set
up by Executive Order No. 68 of the
President of the Philippines. Kuroda
challenged the legality and constitutionality
of the Military Commission and contended
that it lacked jurisdiction to try him for
violation of the Hague and Geneva
Conventions on the Laws of War, since the
Philippines was not a signatory to these
conventions.
Issue: Whether or not the established
Military Commission is legal and
Constitutional.
Held:
The court ruled that the Military Commission
was legal and Constitutional base on the
citation of Article II, Section 3 of the
Philippine Constitution declaring that “the
Philippine adopts the generally accepted
principles of international law as part of the
law of the nation”.
The court ruled that in accordance with the
generally accepted principles of
international law of the present day,
including the Hague Convention, the
Geneva Convention, and significant
precedents of international jurisprudence
established by the United Nations, all those
persons, military or civilian, who had been
guilty of planning, preparing or waging a war
of aggression and of the commission of
crimes and offenses consequential and
incidental thereto, in violation of the laws
and customs of war, of humanity and
civilization, were held accountable therefore.
Although the Philippines was not a signatory
to the conventions embodying them, our
Constitution has been deliberately general
and extensive in its scope and is not
confined to the recognition of rules and
principles of international law as contained
in treaties to which our government may
have been or shall be a signatory.
Consequently, in the promulgation and
enforcement of Executive Order No. 68, the
President of the Philippines had acted in
conformity with the generally accepted
principles and policies of international law
which are part of our Constitution.
Co Kim Cham v. Valdez Tan Keh, 75 Phil.
113 (1945)
Topic : De Facto Governments in
accordance to the Hague Conventions
Facts: This petition for mandamus in which
petitioner prays that the respondent judge of
the lower court be ordered to continue the
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
proceedings in civil case No. 3012 of said
court, which were initiated under the regime
of the so-called Republic of the Philippines
established during the Japanese military
occupation of these Islands.
The respondent judge, Judge Arsenio
Dizon, refused to continue hearings on the
case which were initiated during the
Japanese military occupation on the ground
that the proclamation issued by General
MacArthur that “all laws, regulations and
processes of any other government in the
Philippines than that of the said
Commonwealth are null and void and
without legal effect in areas of the
Philippines free of enemy occupation and
control” had the effect of invalidating and
nullifying all judicial proceedings and
judgments of the court of the Philippines
during the Japanese military occupation,
and that the lower courts have no
jurisdiction to take cognizance of and
continue judicial proceedings pending in the
courts of the defunct Republic of the
Philippines in the absence of an enabling
law granting such authority.
On February 3, 1945, the City of Manila was
partially liberated and on February 27, 1945,
General MacArthur, on behalf of the
Government of the United States, solemnly
declared "the full powers and responsibilities
under the Constitution restored to the
Commonwealth whose seat is here
established as provided by law."
Issue : Whether or not under the rules of
international law the judicial acts and
proceedings of the courts established in the
Philippines under the Philippine Executive
Commission and the Republic of the
Philippines were good and valid and
remained good and valid even after the
liberation or reoccupation of the Philippines
by the United States and Filipino forces.
Held:
It is a legal truism in political and
international law that all acts and
proceedings of the legislative, executive,
and judicial departments of a de facto
government are good and valid.
There are several kinds of de facto
governments. The first, or government de
facto in a proper legal sense, is that
government that gets possession and
control of, or usurps, by force or by the
voice of the majority, the rightful legal
governments and maintains itself against
the will of the latter, such as the government
of England under the Commonwealth, first
by Parliament and later by Cromwell as
Protector. The second is that which is
established and maintained by military
forces who invade and occupy a territory of
the enemy in the course of war, and which
is denominated a government of paramount
force.. And the third is that established as
an independent government by the
inhabitants of a country who rise in
insurrection against the parent state of such
as the government.
Speaking of government "de facto" of the
second kind, the Supreme Court of the
United States, in the case of Thorington vs.
Smith (8 Wall., 1), said: "But there is another
description of government, called also by
publicists a government de facto, but which
might, perhaps, be more aptly denominated
a government of paramount force. Its
distinguishing characteristics are (1), that its
existence is maintained by active military
power with the territories, and against the
rightful authority of an established and
lawful government; and (2), that while it
exists it necessarily be obeyed in civil
matters by private citizens who, by acts of
obedience rendered in submission to such
force, do not become responsible, or
wrongdoers, for those acts, though not
warranted by the laws of the rightful
government. Actual governments of this sort
are established over districts differing
greatly in extent and conditions. They are
usually administered directly by military
authority, but they may be administered,
also, civil authority, supported more or less
directly by military force.
The powers and duties of de facto
governments of this description are
regulated in Section III of the Hague
Conventions of 1907, which is a revision of
the provisions of the Hague Conventions of
1899 on the same subject of said Section III
provides "the authority of the legislative
power having actually passed into the hands
of the occupant, the latter shall take steps in
his power to reestablish and insure, as far
as possible, public order and safety, while
respecting, unless absolutely prevented, the
laws in force in the country."
According to the precepts of the Hague
Conventions, as the belligerent occupant
has the right and is burdened with the duty
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
to insure public order and safety during his
military occupation, he possesses all the
powers of a de facto government, and he
can suspended the old laws and promulgate
new ones and make such changes in the
old as he may see fit, but he is enjoined to
respect, unless absolutely prevented by the
circumstances prevailing in the occupied
territory, the municipal laws in force in the
country, that is, those laws which enforce
public order and regulate social and
commercial life of the country. On the other
hand, laws of a political nature or affecting
political relations, such as, among others,
the right of assembly, the right to bear arms,
the freedom of the press, and the right to
travel freely in the territory occupied, are
considered as suspended or in abeyance
during the military occupation. Although the
local and civil administration of justice is
suspended as a matter of course as soon as
a country is militarily occupied, it is not usual
for the invader to take the whole
administration into his own hands. In
practice, the local ordinary tribunals are
authorized to continue administering justice;
and judges and other judicial officers are
kept in their posts if they accept the
authority of the belligerent occupant or are
required to continue in their positions under
the supervision of the military or civil
authorities appointed, by the Commander in
Chief of the occupant. These principles and
practice have the sanction of all publicists
who have considered the subject, and have
been asserted by the Supreme Court and
applied by the President of the United
States.
The doctrine upon this subject is thus
summed up by Halleck, in his work on
International Law (Vol. 2, p. 444): "The right
of one belligerent to occupy and govern the
territory of the enemy while in its military
possession, is one of the incidents of war,
and flows directly from the right to conquer.
We, therefore, do not look to the
Constitution or political institutions of the
conqueror, for authority to establish a
government for the territory of the enemy in
his possession, during its military
occupation, nor for the rules by which the
powers of such government are regulated
and limited. Such authority and such rules
are derived directly from the laws war, as
established by the usage of the of the world,
and confirmed by the writings of publicists
and decisions of courts — in fine, from the
law of nations. . . . The municipal laws of a
conquered territory, or the laws which
regulate private rights, continue in force
during military occupation, excepts so far as
they are suspended or changed by the acts
of conqueror. . . . He, nevertheless, has all
the powers of a de facto government, and
can at his pleasure either change the
existing laws or make new ones."
In view of the foregoing, it is evident that the
Philippine Executive Commission, which
was organized by Order No. 1, issued on
January 23, 1942, by the Commander of the
Japanese forces, was a civil government
established by the military forces of
occupation and therefore a de facto
government of the second kind.
The so-called Republic of the Philippines,
apparently established and organized as a
sovereign state independent from any other
government by the Filipino people, was, in
truth and reality, a government established
by the belligerent occupant or the Japanese
forces of occupation. It was of the same
character as the Philippine Executive
Commission, and the ultimate source of its
authority was the same — the Japanese
military authority and government.
The governments by the Philippine
Executive Commission and the Republic of
the Philippines during the Japanese military
occupation being de facto governments, it
necessarily follows that the judicial acts and
proceedings of the courts of justice of those
governments, which are not of a political
complexion, were good and valid, and, by
virtue of the well-known principle of
postliminy (postliminium) in international
law, remained good and valid after the
liberation or reoccupation of the Philippines
by the American and Filipino forces under
the leadership of General Douglas
MacArthur. According to that well-known
principle in international law, the fact that a
territory which has been occupied by an
enemy comes again into the power of its
legitimate government of sovereignty, "does
not, except in a very few cases, wipe out the
effects of acts done by an invader, which for
one reason or another it is within his
competence to do. Thus judicial acts done
under his control, when they are not of a
political complexion, administrative acts so
done, to the extent that they take effect
during the continuance of his control, and
the various acts done during the same time
by private persons under the sanction of
municipal law, remain goo
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
Conlusion: The governments by the
Philippine Executive Commission and the
Republic of the Philippines during the
Japanese military occupation being de facto
governments, it necessarily follows that the
judicial acts and proceedings of the courts
of justice of those governments, which are
not of a political complexion, were good and
valid, and, by virtue of the well-known
principle of postliminy (postliminium) in
international law, remained good and valid
after the liberation or reoccupation of the
Philippines by the American and Filipino
forces under the leadership of General
Douglas MacArthur. According to that well-
known principle in international law, the fact
that a territory which has been occupied by
an enemy comes again into the power of its
legitimate government of sovereignty, "does
not, except in a very few cases, wipe out the
effects of acts done by an invader, which for
one reason or another it is within his
competence to do. Thus judicial acts done
under his control, when they are not of a
political complexion, administrative acts so
done, to the extent that they take effect
during the continuance of his control, and
the various acts done during the same time
by private persons under the sanction of
municipal law, remain good. Were it
otherwise, the whole social life of a
community would be paralyzed by an
invasion; and as between the state and the
individuals the evil would be scarcely less
That not only judicial but also legislative acts
of de facto governments, which are not of a
political complexion, are and remain valid
after reoccupation of a territory occupied by
a belligerent occupant, is confirmed by the
Proclamation issued by General Douglas
MacArthur on October 23, 1944, which
declares null and void all laws, regulations
and processes of the governments
established in the Philippines during the
Japanese occupation, for it would not have
been necessary for said proclamation to
abrogate them if they were invalid ab initio.
Mejoff v. Director of Prisons, 90 Phil 70
(1951)
Lessons applicable: characteristics of
human rights, constitutional guarantee that
no person shall be deprived of liberty
without due process of law
Laws applicable: Bill of Rights
Facts:
Boris Mejoff, an alien of Russian descent
who was brought to this country from
Shanghai as a secret operative by the
Japanese forces during the latter’s regime in
these islands. The petitioner’s entry into the
Philippines was not unlawful; he was
brought by the armed and belligerent forces
of a de facto government whose decrees
were law firing the occupation.
He was arrested on March 18, 1948 as a
Japanese spy, by US Army Counter
Intelligence Corps and later there was an
order for his release.
But on April 5, 1948, the Board of
Commissioners of Immigration declared that
Mejoff had entered the Philippines illegally
in 1944 and ordered that he be deported on
the first available transportation to Russia.
He was transferred to Cebu Provincial Jail
and the Bilibid Prison at Muntinlupa on
October 1948. He then filed a petition for
writ of habeas corpus on the basis that too
long a detention may justify the issuance of
a writ of habeas corpus - denied.
Over 2 years having elapsed since the
decision aforesaid was promulgated, the
Government has not found ways and means
of removing the petitioner out of the country,
and none are in sight, although it should be
said in justice to the deportation authorities,
it was through no fault of theirs that no ship
or country would take the petitioner. This is
his 2nd petition for writ of habeas corpus.
Issue:
WON the writ of habeas corpus should be
granted since he was detained longer than a
reasonable time.
Ruling:
Yes.
The writ will issue commanding the
respondents to release the petitioner from
custody upon these terms:
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
1. The petitioner shall be placed under
the surveillance of the immigration
authorities or their agents in such
form and manner as may be
deemed adequate to insure that he
keep peace and be available when
the government is ready to deport
him.
2. The surveillance shall be
reasonable and the question of
reasonableness shall be submitted
to this Court or to the Court of First
Instance of Manila for decision in
case of abuse.
3. He shall also put up a bond for the
above purpose in the amount of
P5,000 with sufficient
surety/sureties, which bond the
Commissioner of Immigration is
authorized to exact by Sec. 40 of
Commonwealth Act No. 613.
Aliens illegally staying in the Philippines
have no right of asylum therein even if they
are “stateless,” which the petitioner claims
to be.
The protection against deprivation of liberty
without due process of law and except for
crimes committed against the laws of the
land is not limited to Philippine citizens but
extends to all residents, except enemy
aliens, regardless of nationality.
Moreover, by its Constitution 9Art II, Sec. 3)
the Philippines ‘adopts the generally
accepted principles of international law as
part of the law of Nation.” And in a
resolution entitled “Universal Declaration of
Human Rights” and approved by the
General Assembly of the United Nations of
which the Philippines is a member, at its
plenary meeting, the right to life and liberty
and all other fundamental rights as applied
to all human beings were proclaimed. It was
then resolved that “All human beings are
born free and equal in degree and rights (Art
1); that “Everyone is entitled to all the rights
and freedom set forth in this Declaration,
without distinction of any kind, such as race,
colour, sex, language, religion, political or
other opinion, nationality or social origin,
property, birth, or other status” (Art 2); that
“Every one has the right to an effective
remedy by the competent national tribunals
for acts violating the fundamental rights
granted him by the Constitution or by law”
(Art 8); that “No one shall be subjected to
arbitrary arrest, detention or exile.” (Art 9);
etc.
Petitioners unduly prolonged detention
would be unwarranted by law and the
Constitution, if the only purpose of the
detention be to eliminate a danger that is by
no means actual, present, or uncontrollable.
Imprisonment to protect society from
predicted but unconsummated offenses is
so unprecedented in this country and so
fraught with danger of excesses and
injustice that it is in loath to resort it, even as
a discretionary judicial technique to
supplement conviction of such offenses as
those of which defendants stand convicted.
If that case is not comparable with ours on
the issues presented, its underlying principle
is of universal application.
As already noted, not only are there no
charges pending against the petitioner, but
the prospects of bringing any against him
are slim and remote.
Baer v. Tizon 57 SCRA 1 (1974)
Facts:
On November 17, 1964, respondent
Edgardo Gener, as plaintiff, filed a complaint
for injunction with the Court of First Instance
of Bataan against petitioner, Donald Baer,
Commander of the United States Naval
Base in Olongapo. He alleged that he was
engaged in the business of logging in an
area situated in Barrio Mabayo, Municipality
of Morong, Bataan and that the American
Naval Base authorities stopped his logging
operations. He prayed for a writ of
preliminary injunction restraining petitioner
from interfering with his logging operations.
A restraining order was issued by
respondent Judge. Counsel for petitioner,
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
upon instructions of the American
Ambassador to the Philippines, entered their
appearance for the purpose of contesting
the jurisdiction of respondent Judge on the
ground that the suit was one against a
foreign sovereign without its consent.
Petitioner contends that he is the chief or
head of an agency or instrumentality of the
United States of America, with the subject
matter of the action being official acts done
by him for and in behalf of the United States
of America.
Respondent argues that "a private citizen
claiming title and right of possession of
certain property may, to recover possession
of said property, sue as individuals, officers
and agents of the Government, who are
said to be illegally withholding the same
from him, though in doing so, said officers
and agents claim that they are acting for the
Government."
Issue:
Whether or not the doctrine of immunity
from suit without consent is applicable in
this case.
Ruling:
Yes, and the petitioner should prevail.
The invocation of the doctrine of immunity
from suit of a foreign state without its
consent is appropriate, more specifically,
insofar as alien armed forces is concerned.
It is well settled that a foreign army,
permitted to march through a friendly
country or to be stationed in it, by
permission of its government or sovereign,
is exempt from the civil and criminal
jurisdiction of the place.
Accuracy demands the clarification that after
the conclusion of the Philippine-American
Military Bases Agreement, the treaty
provisions should control on such matter,
the assumption being that there was a
manifestation of the submission to
jurisdiction on the part of the foreign power
whenever appropriate.
The solidity of the stand of petitioner is
therefore evident. What was sought by
private respondent and what was granted by
respondent Judge amounted to an
interference with the performance of the
duties of petitioner in the base area in
accordance with the powers possessed by
him under the Philippine-American Military
Bases Agreement.
The doctrine of state immunity is not limited
to cases which would result in a pecuniary
charge against the sovereign or would
require the doing of an affirmative act by it.
Prevention of a sovereign from doing an
affirmative act pertaining directly and
immediately to the most important public
function of any government - the defense of
the state — is equally as untenable as
requiring it to do an affirmative act."
There should be no misinterpretation of the
scope of the decision reached by the Court.
Petitioner, as the Commander of the United
States Naval Base in Olongapo, does not
possess diplomatic immunity. He may
therefore be proceeded against in his
personal capacity, or when the action taken
by him cannot be imputed to the
government which he represents.
Tanada v. Angara, 272 SCRA 18
G.R. No. 118295 May 2, 1997
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
WIGBERTO E. TAÑADA, et.al. vs.
EDGARDO ANGARA, et.al.
FACTS:
Following World War II, global financial
leaders held a conference in Bretton Woods
to discuss global economy. This led to the
establishment of three great institutions:
International Bank for Reconstruction and
Development (World Bank), International
Monetary Fund and International Trade
Organization. However, the ITO failed to
materialize. Instead, there was the General
Agreement on Trades and Tariffs. It was on
the Uruguay Round of the GATT that the
WTO was then established. The WTO is an
institution regulating trade among nations,
including the reduction of tariffs and
barriers.
The members of the Philippine Senate
received a from the President of the
Philippines (then President Fidel V.
Ramos),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."
The President of the Philippines then
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
The Philippine Senate adopted a resolution
concurring in the ratification by the
President of the Philippines of the
Agreement Establishing the World Trade
Organization."6 The President of the
Philippines also signed THE Instrument of
Ratification. On the other hand, the Final Act
signed by Secretary Navarro (then
Secretary of the Department of Trade and
Industry) emobodies not only the WTO
Agreement (and its integral annexes
aforementioned) but also (1) the Ministerial
Declarations and (2) the Understanding on
Commitments in Financial Services.
The Petitioners then filed a case assailing
the WTO Agreement for violating the
mandate of the 1987 Constitution to
“develop a self-reliant and independent
national economy effectively controlled by
Filipinos, to give preference to qualified
Filipinos and to promote the preferential use
of Filipino labor, domestic materials and
locally produced goods.”
It is petitioner’s position that the “national
treatment” and “party 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.”
Petitioner’s contention: Petitioners 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.
This is in view of the most-favored nation
clause (MFN) of the TRIMS (trade-related
investment measures), TRIPS (Trade
Related aspects of intellectual property
rights), Trade in Services, and par. 4 of
Article III of GATT 1994 –“shall be accorded
treatment no less favourable than that
accorded to like products of national origin.”
-Article II DECLARATION OF PRINCIPLES
AND STATE POLICIES - Sec. 19. The State
shall develop a self-reliant and independent
national economy effectively controlled by
Filipinos.
-Article XII NATIONAL ECONOMY AND
PATRIMONY - Sec. 10. . . . 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.
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.
ISSUE:
DO THE PROVISIONS OF THE WTO
AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
SECS. 10 AND 12, ARTICLE XII, OF THE
PHILIPPINE CONSTITUTION?
RULING:
No, the provisions do not contravene the
Philippine Constitution.
Declaration of Principles
Not Self-Executing
Article II of the Constitution is a "declaration
of principles and state policies." These
principles in Article II are not intended to be
self-executing principles ready for
enforcement through the courts. 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
the, 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. 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.”
Mr. Justice Florentino P. Feliciano in his
concurring opinion in Oposa vs. Factoran,
Jr., 26 explained these reasons as follows:
“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.”
Economic Nationalism Should Be
Read with
Other Constitutional Mandates to
Attain
Balanced Development of Economy
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:
Sec. 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
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
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. . . .
xxx xxx xxx
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.
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 Filipinos."
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 rule for its
enforcement. 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
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 member's vote equal in weight to
that of any other. There is no WTO
equivalent of the UN Security Council.
Hence, poor countries can protect their
common interests more effectively through
the WTO than through one-on-one
negotiations with developed countries.
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
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."
Specific WTO Provisos
Protect Developing Countries
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.
Constitution Does Not
Rule Out Foreign Competition
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 down to whether WTO/GATT
will favor the general welfare of the public at
large.
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
Constitution Designed to Meet
Future Events and Contingencies
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.
Constitutions are designed to meet not only
the vagaries of contemporary events. They
should be interpreted to cover even future
and unknown circumstances. 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 frame-work 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.”
Arthur Lim et al v. Executive Secretary, GR
No. 151445, April 11, 2002
In January 2002, personnel from the armed
forces of the United States of America
started arriving in Mindanao to take part, in
conjunction with the Philippine military, in
"Balikatan 02-1." These so-called
"Balikatan" exercises are the largest
combined training operations involving
Filipino and American troops. In theory, they
are a simulation of joint military maneuvers
pursuant to the Mutual Defense Treaty,  a
bilateral defense agreement entered into by
the Philippines and the United States in
1951.
Petitioners Arthur D. Lim and Paulino P.
Ersando filed this petition for certiorari and
prohibition, attacking the constitutionality of
the joint exercise. Partylists Sanlakas and
Partido Ng Manggagawa as residents of
Zamboanga and Sulu directly affected by
the operations filed a petition-in-intervention.
It is the contention of the petitioners and the
petitioners-intervenors that the Mutual
Defense Treaty was signed to provide
mutual military assistance in accordance
with the 'constitutional processes' of each
country only in the case of an armed attack
by an external aggressor, meaning a third
country against one of them; and neither
does the VFA of 1999 authorize American
soldiers to engage in combat operations in
Philippine territory, not even to fire back "if
fired upon".
The Solicitor General commented the
prematurity of the action as it is based only
on a fear of future violation of the Terms of
Reference and impropriety of availing of
certiorari to ascertain a question of fact
specifically interpretation of the VFA
whether it is covers "Balikatan 02-1” and no
question of constitutionality is involved.
Moreover, there is lack of locus standi since
it does not involve tax spending and there is
no proof of direct personal injury.
ISSUES:
1. Whether or not the “Balikatan 02-1”
activities are covered by the VFA.
2. WON the Mutual Defense Treaty and the
VFA are unconstitional? May American
troops actually engage in combat in
Philippine territory?
RULING:
1. The VFA permits United States personnel
to engage, on an impermanent basis, in
"activities," the exact meaning of which was
left undefined. The expression is
ambiguous, permitting a wide scope of
undertakings subject only to the approval of
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
the Philippine government. The sole
encumbrance placed on its definition is
couched in the negative, in that United
States personnel must "abstain from any
activity inconsistent with the spirit of this
agreement, and in particular, from any
political activity." All other activities, in other
words, are fair game.
To aid in this, the Vienna
Convention on the Law of Treaties Article 31
SECTION 3 and Article 32 contains provisos
governing interpretations of international
agreements. It is clear from the foregoing
that the cardinal rule of interpretation must
involve an examination of the text, which is
presumed to verbalize the parties'
intentions. The Convention likewise dictates
what may be used as aids to deduce the
meaning of terms, which it refers to as the
context of the treaty, as well as other
elements may be taken into account
alongside the aforesaid context. According
to Professor Briggs, writer on the
Convention, the distinction between the
general rule of interpretation and the
supplementary means of interpretation is
intended rather to ensure that the
supplementary means do not constitute an
alternative, autonomous method of
interpretation divorced from the general rule.
The meaning of the word “activities" was
deliberately made that way to give both
parties a certain leeway in negotiation.
Thus, the VFA gives legitimacy to the
current Balikatan exercises. Both the
history and intent of the Mutual Defense
Treaty and the VFA support the conclusion
that combat-related activities -as opposed to
combat itself -such as the one subject of the
instant petition, are indeed authorized.
The Terms of Reference are explicit
enough. Paragraph 8 of section I stipulates
that US exercise participants may not
engage in combat "except in self-
defense." .
The indirect violation is actually
petitioners' worry, that in reality, "Balikatan
02-1" is actually a war principally conducted
by the United States government, and that
the provision on self-defense serves only as
camouflage to conceal the true nature of the
exercise. A clear pronouncement on this
matter thereby becomes crucial. In our
considered opinion, neither the MDT nor the
VFA allow foreign troops to engage in an
offensive war on Philippine territory. Under
the salutary proscription stated in Article 2 of
the Charter of the United Nations.
Both the Mutual Defense Treaty and
the Visiting Forces Agreement, as in all
other treaties and international agreements
to which the Philippines is a party, must be
read in the context of the 1987 Constitution
especially Sec. 2, 7 and 8 of Article 2:
Declaration of Principles and State Policies
in this case.
The VFA gives legitimacy to the current
Balikatan exercises. It is only logical to
assume that “Balikatan 02-1” – a mutual anti
terrorism advising assisting and training
exercise falls under the umbrella of
sanctioned or allowable activities in the
context of the agreement. Both the history
and intent of the Mutual Defense Treaty and
the VFA support the conclusion that
combat-related activities – as opposed to
combat itself – such as the one subject of
the instant petition, are indeed authorized.
2. YES, the MDT and the VFA are
constitutional because neither the MDT nor
the VFA allow foreign troops to engage in
an offensive war on Philippine territory. We
bear in mind the salutary proscription stated
in the Charter of the United Nations, to wit:
4. All Members shall
refrain in their
international relations
from the threat or use of
force against the
territorial integrity or
political independence of
any state, or in any other
manner inconsistent with
the Purposes of the
United Nations.
The present Constitution contains key
provisions useful in determining the extent
to which foreign military troops are allowed
in Philippine territory. Thus, in the
Declaration of Principles and State Policies,
it is provided that:
xxx xxx xxx xxx
SEC. 2. The Philippines renounces war as
an instrument of national policy, adopts the
generally accepted principles of
international law as part of the law of the
land and adheres to the policy of peace,
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
equality, justice, freedom, cooperation, and Nuncio. While private respondent, Starbright
amity with all nations. Sales Enterprises, Inc., is a domestic
corporation engaged in the real estate
xxx xxx xxx xxx business.
SEC. 7. The State shall pursue an
independent foreign policy. In its relations
with other states the paramount
consideration shall be national sovereignty, This petition arose from a controversy over
territorial integrity, national interest, and the a parcel of land (lot 5-A) located in the
right to self- determination. Municipality of Parañaque, Metro Manila
and registered in the name of petitioner.
SEC. 8. The Philippines, consistent with the
national interest, adopts and pursues a
policy of freedom from nuclear weapons in
the country.
Said lot is contiguous to two other lots which
Under the doctrine of incorporation as are registered in the name of the Philippine
applied in most countries, rules of Realty Corporation (PRC). The three lots
international law are given a standing equal, were then sold to Ramon Licup, through
not superior, to national legislation, Msgr. Domingo A. Cirilos, Jr., acting as
however, from the perspective of public agent to the sellers. Later, Licup assigned
international law, a treaty is favored over
his rights to the sale to private respondent.
municipal law pursuant to the principle of
pacta sunt servanda. Hence, "[e]very treaty
in force is binding upon the parties to it and
must be performed by them in good faith." 
Further, a party to a treaty is not allowed to The squatters refuse to vacate the lots sold
"invoke the provisions of its internal law as to private respondent thus, a dispute arose
justification for its failure to perform a as to who of the parties has the
treaty." responsibility of evicting and clearing the
land of squatters. Complicating the relations
our Constitution authorizes the nullification
of a treaty, not only when it conflicts with the of the parties was the sale by petitioner of
fundamental law, but, also, when it runs Lot 5-A to Tropicana.
counter to an act of Congress.”

The foregoing premises leave us no doubt

that US forces are prohibited / from Hence, private respondent filed a complaint
engaging in an offensive war on Philippine with the RTC for annulment of the sale of
territory.
the three parcels of land, and specific
performance and damages against
petitioner.

In Re: Letter of Associate Justice Puno 210

SCRA 589 (1992) Petitioner moved to dismiss the complaint
— petitioner for lack of jurisdiction based on
Holy See v. Hon Eriberto Tosario Jr. 238 sovereign immunity from suit.
SCRA 524 (1994)

Facts: The DFA filed a Motion for Intervention,

claiming that it has a legal interest in the
Holy See who exercises sovereignty over outcome of the case as regards the
the Vatican City in Rome, Italy, and is diplomatic immunity of petitioner, and that it
represented in the Philippines by the Papal "adopts by reference, the allegations
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
contained in the petition of the Holy See
insofar as they refer to arguments relative to
its claim of sovereign immunity from suit".
Issue:
1. Whether or not the DFA has a
personality or legal interest to intervene in
the case on behalf of the Holy See.
2. Whether or not petitioner, being a
foreign state, can invoke sovereign
immunity.
3. If petitioner can invoke state immunity,
can private respondent.
Ruling:
1. Yes, DFA has the legal interest to
intervene.
In Public International Law, when a state or
international agency wishes to plead
sovereign or diplomatic immunity in a
foreign court, it requests the Foreign Office
of the state where it is sued to convey to the
court that said defendant is entitled to
immunity.
In the Philippines, the practice is for the
foreign government or the international
organization to first secure an executive
endorsement of its claim of sovereign or
diplomatic immunity. But how the Philippine
Foreign Office conveys its endorsement to
the courts varies. In International Catholic
Migration Commission v. Calleja, the
Secretary of Foreign Affairs just sent a letter
directly to the Secretary of Labor and
Employment, informing the latter that the
respondent-employer could not be sued
because it enjoyed diplomatic immunity. In
World Health Organization v. Aquino, the
Secretary of Foreign Affairs sent the trial
court a telegram to that effect. In Baer v.
Tizon, the U.S. Embassy asked the
Secretary of Foreign Affairs to request the
Solicitor General to make, in behalf of the
Commander of the United States Naval
Base at Olongapo City, Zambales, a
"suggestion" to respondent Judge. The
Solicitor General embodied the "suggestion"
in a Manifestation and Memorandum as
amicus curiae.
In the case at bench, the Department of
Foreign Affairs, through the Office of Legal
Affairs moved with this Court to be allowed
to intervene on the side of petitioner. The
Court allowed the said Department to file its
memorandum in support of petitioner's claim
of sovereign immunity.
2. Yes, petitioner can invoke state
immunity
As expressed in Section 2 of Article II of the
1987 Constitution, we have adopted the
generally accepted principles of
International Law. Even without this
affirmation, such principles of International
Law are deemed incorporated as part of the
law of the land as a condition and
consequence of our admission in the society
of nations.
There are two conflicting concepts of
sovereign immunity, each widely held and
firmly established. According to the classical
or absolute theory, a sovereign cannot,
without its consent, be made a respondent
in the courts of another sovereign.
According to the newer or restrictive theory,
the immunity of the sovereign is recognized
only with regard to public acts or acts jure
imperii of a state, but not with regard to
private acts or acts jure gestionis.
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
In the absence of legislation defining what
activities and transactions shall be
considered "commercial" and as constituting
acts jure gestionis, we have to come out
with our own guidelines, tentative they may
be. Certainly, the mere entering into a
contract by a foreign state with a private
party cannot be the ultimate test. Such an
act can only be the start of the inquiry. The
logical question is whether the foreign state
is engaged in the activity in the regular
course of business. If the foreign state is not
engaged regularly in a business or trade,
the particular act or transaction must then
be tested by its nature. If the act is in pursuit
of a sovereign activity, or an incident
thereof, then it is an act jure imperii,
especially when it is not undertaken for gain
or profit.
In the case at bench, Lot 5-A was acquired
by petitioner as a donation from the
Archdiocese of Manila. The donation was
made not for commercial purpose, but for
the use of petitioner to construct thereon the
official place of residence of the Papal
Nuncio. The right of a foreign sovereign to
acquire property, real or personal, in a
receiving state, necessary for the creation
and maintenance of its diplomatic mission,
is recognized in the 1961 Vienna
Convention on Diplomatic Relations.
The decision to transfer the property and the
subsequent disposal thereof are likewise
clothed with a governmental character.
Petitioner did not sell Lot 5-A for profit or
gain. It merely wanted to dispose off the
same because the squatters living thereon
made it almost impossible for petitioner to
use it for the purpose of the donation.
The privilege of sovereign immunity in this
case was sufficiently established by the
Memorandum and Certification of the
Department of Foreign Affairs. As the
department tasked with the conduct of the
Philippines' foreign relations, the
Department of Foreign Affairs has formally
intervened in this case and officially certified
that the Embassy of the Holy See is a duly
accredited diplomatic mission to the
Republic of the Philippines exempt from
local jurisdiction and entitled to all the rights,
privileges and immunities of a diplomatic
mission or embassy in this country. The
determination of the executive arm of
government that a state or instrumentality is
entitled to sovereign or diplomatic immunity
is a political question that is conclusive upon
the courts. Where the plea of immunity is
recognized and affirmed by the executive
branch, it is the duty of the courts to accept
this claim so as not to embarrass the
executive arm of the government in
conducting the country's foreign relations.
Lawyers League for a Better Philippines
v. Corazon Aquino, GR No. 73748, May
22, 1986
Note: no full text of the case, just a minute
resolution
Facts:
Petitioners questioned the legitimacy of the
Aquino government because it was not
established according to the 1973
Constitution.
Issue:
Whether or not the Aquino government is
legitimate.
Ruling:
Yes. The issue of its legitimacy is not a
justiciable matter.
Petitioners have no personality to sue and
their petitions state no cause of action. For
the legitimacy of the Aquino government is
not a justiciable matter. It belongs to the
realm of politics where only the people of
the Philippines are the judge. And the
people have made the judgment; they have
accepted the government of President
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
Corazon C. Aquino which is in effective
control of the entire country so that it is not
merely a de facto government but is in fact
and law a de jure government. Moreover,
the community of nations has recognized
the legitimacy of the present government.
All the eleven members of this Court, as
reorganized, have sworn to uphold the
fundamental law of the Republic under her
government.
People v. Perfecto, 43 Phil. 887
FACTS:
ISSUE:
RULING:
Vilas v. City of Manila 229 Phil. 345
(Tinoco Case) Great Britain v. Costa
Rica, Arbitral Tribunal, 18 October 1923
Facts:
The Government of Costa Rica, under
President Alfredo Gonzalez, was
overthrown by Frederico Tinoco, the
Secretary of War. Gonzalez fled. Tinoco
assumed power, called an election, and
established a new constitution in June,
1917. His government continued until
August, 1919, when Tinoco retired, and left
the country. His government fell in
September following. After a provisional
government under one Barquero, the old
constitution was restored and elections held
under it. The Constitutional Congress of the
restored Costa Rican Government passed a
law known as Law of Nullities No. 41. It
invalidated all contracts between the
executive power and private persons, made
with or without approval of the legislative
power covering the period of Tinoco
Government.
The Nullities Law also invalidated the
legislative decree of the Tinoco government
authorizing the circulation of notes of the
nomination of 1000 colones, and annulled
all transactions with such colones bills
between holders and the state, directly and
indirectly, by means of negotiation or
contracts, if thereby the holders received
value as if they were ordinary bills of current
issue.
Great Britain claims that that the Royal Bank
of Canada and the Central Costa Rica
Petroleum Company are Britain
corporations whose shares are owned by
British subjects; that the Banco
Internacional of Costa Rica and the
Government of Costa Rica are both
indebted to the Royal Bank in the sum of
998,000 colones, evidenced by 998 one
thousand colones bills held by the Bank;
that the Central Costa Rica Petroleum
Company owns, by due assignment, a grant
by the Tinoco government in 1918 of the
right to explore for an exploit oil deposits in
Costa Rica, and that both the indebtedness
and the concession have been annulled
without right by the Law of Nullities and
should be excepted from its operation.
Further, Great Britain contends:
1. that the Tinoco
government was the only
government of Costa Rica
de facto and de jure for two
years and nine months; that
during that time there is no
other government disputing
its sovereignty, that it was in
peaceful administration of
the whole country, with the
acquiescence of its people.
2. that the succeeding
government could not by
legislative decree avoid
responsibility for acts of that
government affecting British
subjects, or appropriate or
confiscate rights and
property by that government
except in violation of
international law; that the
act of Nullities is as to
British interests, therefore
itself a nullity, and is to be
disregarded, with the
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
consequence that the
contracts validly made with
the Tinoco government
must be performed by the
present Costa Rican
Government, and that the
property which have been
invaded or the rights
nullified must be restored.
The Government of Costa Rica denies its
liability for the acts or obligations of the
Tinoco government and maintains that the
Law of Nullities was a legitimate exercise of
its legislative governing power. It further
denies the validity of such claims on the
merits, unaffected by the Law of Nullities. To
wit:
1.) that the Tinoco government was
not a de facto or de jure government
according to the rules of international law.
This raises an issue of fact.
2.) that the contracts and
obligations of the Tinoco government, set up
by Great Britain on behalf of its subjects, are
void, and do not create a legal obligation,
because the government of Tinoco and its
acts were in violation of the constitution of
Costa Rica of 1871.
3.) that Great Britain is stopped by
the fact that it did not recognize the Tinoco
government during its incumbency, to claim
on behalf of its subjects that Tinoco's was a
government which could confer rights
binding on its successor.
4.) that the subjects of Great Britain,
whose claims are here in controversy, were
either by contract or the law of Costa Rica
bound to pursue their remedies before the
courts of Costa Rica and. not to seek
diplomatic interference on the part of their
home government.
Issue: Whether or not the non-recognition of
a new government by other governments
destroy the de facto status of the
government?
Reasoning:
No. Changes in the government or
the internal policy of a state do not as a rule
affect its position in international law.
Although the government changes, the
nation remains, with rights and obligations
unimpaired. The principle of the continuity of
states has important results. The state is
bound by engagements entered into by
governments that have ceased to exist; the
restored government is generally liable for
the acts of the usurper.
Considering the characteristics and
attributes of the de facto government, a
general government de facto having
completely taken the place of the regularly
constituted authorities in the state binds the
nation. It succeeds to the debts of the
regular government it has displaced and
transmits its own obligations to succeeding
titular governments. Its loans and contracts
bind the state and the state is responsible
for the governmental acts of the de facto
authorities. An exception to these rules
which declare null and void the acts of a
usurping de facto intermediary government,
when the regular government it has
displaced succeeds in restoring its control.
Nevertheless, acts validly undertaken in the
name of the state and having an
international character cannot lightly be
repudiated and foreign governments
generally insist on their binding force.
Republic of the Philippines v. Ferdinand
Marcos, 806 Fd. 344, US Court of
Appeals
SGS Societe Generale de Surveillance
S.A v. Republic of the Philippines 
Facts:
The Societe Generale de Surveillance, S.A.
(hereinafter, SGS) was a corporation
dealing mainly with certification services
provided for a wide range of applications
including preshipment inspections
conducted in behalf of contracting
governmental authorities. As part of the
service provided, the SGS likewise
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
determines compliance with standard import
regulations, the valuation of goods, and their
classification for the proper implementation
of custom and tariff legislation.
· The claimant corporation is registered
in Switzerland, and is considered to be a
sizeable corporation. SGS entered into a
service contract with the Republic of the
Philippines. From September to March
2009, SGS claims to have rendered
inspection services invoiced at
CHF206,150,238.14 which the corporation
claims to be unpaid. The Philippine
government (hereinafter, the State) initially
disputed this claim and directed the Bureau
of Customs to establish a joint review team
with the SGS to determine the total amount
due. The BOC recommended the payment
of CHF192,420,782.26, with
CHF3,737,190.78 to be withheld in favor of
the State, and the balance of
CHF9,992,265.10 was unresolved. SGS
offered to waive the payment of the balance
upon agreement between the parties as to
the financing and subsequent payment of
the principal amount.
· A letter was sent by the State
department involved with the evaluation of
the team in cooperation with the SGS,
containing an “admission” of the amounts
stipulated and the State subsequently made
a “token of Good Faith Payment” of
PHP1,000,000.00 to SGS. No other
payment towards the prescribed claim
followed, which prompted SGS to bring this
matter up for arbitration in the International
Centre for the Settlement of Investment
Disputes.
· The parties agreed to a Arbitral
Tribunal comprised of three members: One
chosen exclusively by SGS, one chosen
exclusively by the contracting State, and
another chosen upon agreement of both
parties to the dispute. The third member of
the panel, if no agreement is reached
between the parties to the dispute, the
ICSID shall choose for the parties.
· The case stems from an alleged
breach of the Comprehensive Import
Supervision Services Agreement (CISS
Agreement), in light of this, the claimant
corporation invoked the provisions of the
bilateral agreement of 1997 between the
Swiss Confederation and the Republic of
the Philippines governing the protection of
Swiss Investments (BIT). According to
Article 12 of the CISS Agreement between
the parties:
“The provisions of this agreement shall be
governed in all respects by and construed in
accordance
with the laws of the Philippines. All actions
concerning disputes in connection with the
obligations of either party to this agreement
shall be filed at the Regional Trial Courts of
Makati or Manila.
· The respondent State raised objections
to the jurisdiction of the tribunal during the
Initial Submission on Jurisdiction due to the
express provision in the contract. The
claimant corporation however submitted that
while an exclusive “forum-only” choice of
law exists in the CISS Agreement, the claim
took on the character of a dispute which
falls under the “umbrella clause” embodied
in the BIT, which the ICSID had jurisdiction
over, specifically, Article 25 (1) of the treaty:
“The jurisdiction of the Centre shall extend
to any legal dispute arising directly out of an
investment, between a Contracting State (or
any constituent subdivision or agency of a
Contracting State designated to the Centre
by that State) and a national of another
Contracting State, which the parties to the
dispute consent in writing to submit to the
Centre. When the parties have given their
consent, no party may withdraw its consent
unilaterally.”
The respondent State entered its objection
to the filing of the case in the ICSID, citing
that such an “umbrella clause” is not
applicable in this case, and as such, the
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
ICSID cannot exercise jurisdiction over the
Republic of the Philippines.
Issue:
· Which among two conflicting sources
of law should be made to apply: a contract
containing an exclusive forum law provision,
or a treaty between two parties for the
protection of investments?
Ruling:
· The ICSID decided that it had
jurisdiction, however, the tribunal deferred to
the law of the forum as stipulated in the
contract and as such, effectively stayed the
proceedings.
· The rationalization of the tribunal
stemmed from the nature of the dispute:
holding that the SGS was correct in
establishing the elements necessary for the
acquisition of jurisdiction. The claimant
corporation proved that there was (a) a legal
issue, (b) that it arises directly out of an
investment, (c) that the dispute is between a
contracting state and a national of another
contracting state, and that (d) the parties
have consented to ICSID arbitration, with
said consent made in writing.
· The Tribunal held that in accordance
with its previous decision in the case of
SGS v. Pakistan, the existence of an
exclusive jurisdiction clause in the CISS
does not divest the tribunal of its jurisdiction
to hear and decide cases arising from
disputes concerning foreign investments.
However, the Tribunal expressed
reservations regarding the submission of
the claimant corporation that the general
language of the BIT meant that it
supersedes all otherwise non- ICSID forum
selection clauses in contracts entered into
by contracting States and their citizens.
· The Tribunal considered that the bulk
of the services provided by the claimant
corporation constituted an investment as far
as the BIT was concerned. Thus, the ICSID
may exercise jurisdiction over the case.
However, the ICSID determined that
pursuant to international law principles, “a
violation of a contract entered into by a
State with an investor of another State, is
not, by itself, a violation of international
law.”, and that too broad a reading of the
provisions in the BIT would have the effect
of “indefinite expansion”. The ICSID chose
to construe the provisions in relation with
Article 12 of the CISS, which provides for
the exclusive choice of law favoring the
Regional Trial Courts of either Makati or
Manila in deciding cases involving claims
which are contractual in nature
Santos III v. Northwest Orient Lines, 210
SCRA 256
Tanada v. Angara, 272 SCRA 18
Arthur Lim et al v. Executive Secretary, GR
No. 151445, April 11, 2002
(SUPRA)(Repeated case)
FACTS:
On Feb 1,2002, petitioners filed a petition to
enjoin the BALIKATAN 02-1 from
proceeding their activities and attacking the
constitutionality of the joint exercises for the
lack of any specific regulation on the latitude
of activity US personnel. . Together with
some party-lists groups as petitioner-
intervenors.
Petitioner Lim and Ersando filed suit in their
capacities as citizens, lawyers and
taxpayers.
The Armed forces of America came to
Mindanao to participate in the "BALIKATAN
02-1".
BALIKATAN, in theory, is a simulation of a
joint military maneuvers pursuant to Mutual
Defense treaty entered by PH and US. The
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
purpose of balikatan is: the Exercise shall
involve the conduct of mutual military
assisting, advising and training of RP and
US Forces with the primary objective of
enhancing the operational capabilities of
both forces to combat terrorism.
The last Balikatan was held in 1995. To
Reduce the scale of such, they concluded
with the VFA in 1999.
(The lack of consensus was eventually
cured when the two nations concluded the
Visiting Forces Agreement (V FA) in 1999.)
This Balikatan was also a means of the Anti-
terrorism campaign of the US by Pres. G.
Bush since the twin-tower in 2001 incident.
On February 7, 2002 the Senate conducted
a hearing for such, wherein VP Guingona,
Jr., who is concurrently Secretary of
Foreign. Affairs, presented the Draft Terms
of Reference (TOR); which was approved 5
days later.
(pls see Case #8 for the Main issues)
ISSUES:
1. WON petitioners have locus standi in
filing the suit.
2. WON the suit is raised prematurely.
3. WON the petition is of transcendental
importance as to avail certiorari to ascertain
a question of fact.
RULING :
1. WON petitioners have locus
standi in filing the suit.
No. The Court agrees the arguments of the
Solicitor General: First, they may not file suit
in their capacities as, taxpayers inasmuch
as it has not been shown that "Balikatan 02-
1 " involves the exercise of Congress' taxing
or spending powers. Second, their being
lawyers does not invest them with sufficient
personality to initiate the case, citing our
ruling in Integrated Bar of the Philippines v.
Zamora.5 Third, Lim and Ersando have
failed to demonstrate the requisite showing
of direct personal injury.
2. WON the suit is raised
prematurely.
YES. The Solicitor General is of the view
that since the Terms of Reference are clear
as to the extent and duration of "Balikatan
02-1," the issues raised by petitioners are
premature, as they are based only on a fear
of future violation of the Terms of
Reference. Even petitioners' resort to a
special civil action for certiorari is assailed
on the ground that the writ may only issue
on the basis of established facts.
3. WON the petition is of
transcendental importance as to avail
certiorari to ascertain a question of fact.
NO.
In cases of transcendental importance, the
Court may relax the standing
requirements and allow a suit to prosper
even where there is no direct injury to
the party claiming the right of judicial
review.
According to the court, it is all too apparent
that the determination thereof involves
basically a question of fact. On this point,
we must concur with the Solicitor General
that the present subject matter is not a fit
topic for a special civil action for certiorari.
We have held in too many instances that
questions of fact are not entertained in such
a remedy. The sole object of the writ is to
correct errors of jurisdiction or grave abuse
of discretion: The phrase "grave abuse of
discretion" has a precise meaning in law,
denoting abuse of discretion "too patent and
gross as to amount to an evasion of a
positive duty, or a virtual refusal to perform
the duty enjoined or act in contemplation of
law, or where the power is exercised in an
arbitrary and despotic manner by reason of
passion and personal hostility.
BAYAN et.al., v. Executive Secretary, GR
No 138570, Oct 10, 2000
Pimentel v. Executive Secretary, GR No.
158088, July 6, 2005
Facts:
This is a petition for mandamus filed by
petitioners to compel the Office of the
Executive Secretary and the Department of
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
Foreign Affairs to transmit the signed copy
of the Rome Statute of the International
Criminal Court to the Senate of the
Philippines for its concurrence in
accordance with Section 21, Article VII of
the 1987 Constitution.
The Rome Statute established the
International Criminal Court which “shall
have the power to exercise its jurisdiction
over persons for the most serious crimes of
international concern and shall be
complementary to the national criminal
jurisdictions.” Its jurisdiction covers the
crime of genocide, crimes against humanity,
war crimes and the crimes of aggression.
The Philippines signed the Statute on
December 28, 2000. Its provisions,
however, require that it be subject to
ratification, acceptance or approval of the
signatory states.
It is the theory of the petitioners that
ratification of a treaty, under both domestic
law and international law, is a function of the
Senate. Hence, it is the duty of the
executive department to transmit the signed
copy of the Rome Statute to the Senate to
allow it to exercise its discretion with respect
to ratification of treaties. Moreover,
petitioners submit that the Philippines has a
ministerial duty to ratify the Rome Statute
under treaty law and customary international
law. Petitioners invoke the Vienna
Convention on the Law of Treaties enjoining
states to refrain from acts which would
defeat the object and purpose of a treaty
when they have signed the treaty prior to
ratification unless they have made their
intention clear not to become parties to the
treaty.
Issue:
Whether or not the Executive
Secretary and the Department of Foreign
Affairs have a ministerial duty to transmit to
the Senate the copy of the Rome Statute
signed by a member of the Philippine
Mission to the United Nations even without
the signature of the President.
Ruling:
No, the Executive Secretary and the
Department of Foreign Affairs don’t have a
ministerial duty to transmit to the Senate the
copy of the Rome Statute without the
signature of the President. The President is
vested with the authority to deal with foreign
states and governments, extend or withhold
recognition, maintain diplomatic relations,
enter into treaties, and otherwise transact
the business of foreign relations. In the
realm of treaty-making, the President has
the sole authority to negotiate with other
states.
Nonetheless, while the President has the
sole authority to negotiate and enter into
treaties, the Constitution provides a
limitation to his power by requiring the
concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered
into by him. Section 21, Article VII of the
1987 Constitution provides that “no treaty or
international agreement shall be valid and
effective unless concurred in by at least two-
thirds of all the Members of the Senate.”
In filing this petition, the petitioners interpret
Section 21, Article VII of the 1987
Constitution to mean that the power to ratify
treaties belong to the Senate. We disagree.
Justice Isagani Cruz, in his book on
International Law, describes the treaty-
making process in this wise:
The usual steps in the treaty-making
process are: negotiation, signature,
ratification, and exchange of the instruments
of ratification. Negotiation may be
undertaken directly by the head of state but
now he usually assigns this task to his
authorized representatives. If and when the
negotiators finally decide on the terms of the
treaty, the same is opened for signature.
This step is primarily intended as a means
of authenticating the instrument and for the
purpose of symbolizing the good faith of the
parties; but significantly, it does not indicate
the final consent of the state in cases where
ratification of the treaty is required.
Ratification, which is the next
step, is the formal act by which the state
confirms and accepts the provisions of a
treaty concluded by its representatives. The
purpose of ratification is to enable the
contracting states to examine the treaty
more closely and to give them an
opportunity to refuse to be bound by it
should they find it inimical to their interests.
The last step in the treaty-making process is
the exchange of the instruments of
ratification, which usually also signifies the
effectivity of the treaty unless a different
date has been agreed upon by the parties.
Where ratification is dispensed with and no
effectivity clause is embodied in the treaty,
PUBLIC INTERNATIONAL LAW
2L CASE DIGEST
A.Y. 2019-2020
then instrument is deemed effective upon its lightly, such decision is within the
signature. competence of the President alone, which
cannot be encroached by this Court via a
Petitioners’ arguments equate the signing of writ of mandamus. This Court has no
the treaty by the Philippine representative jurisdiction over actions seeking to enjoin
with ratification. It should be underscored the President in the performance of his
that the signing of the treaty and the official duties. The Court, therefore, cannot
ratification are two separate and distinct issue the writ of mandamus prayed for by
steps in the treaty-making process. the petitioners as it is beyond its jurisdiction
Executive Order No. 459 issued by to compel the executive branch of the
President Fidel V. Ramos on November 25, government to transmit the signed text of
1997 provides the guidelines in the Rome Statute to the Senate.
negotiation of international agreements and
its ratification. It mandates that after the IN VIEW WHEREOF, the petition is
treaty has been signed by the Philippine DISMISSED.
representative, the same shall be
transmitted to the Department of Affairs.
The Department of Affairs shall then
prepare the ratification papers and forward
the signed copy of the treaty to the Constantino v. Cuisia, GR No. 106064,
President for ratification. After the President October 13, 2005
has ratified the treaty, the Department of
Foreign Affairs shall submit to the Senate
for concurrence. Upon receipt of the
concurrence of the Senate, the Department
of Foreign Affairs shall comply with the
provisions of the treaty to render it effective.

Petitioners’ submission that the Philippines

is bound under treaty law and international
law to ratify the treaty which it signed is
without basis. The signature does not signify
the final consent of the state to the treaty. It
is the ratification that binds the state to the
provisions thereof.

The President has the discretion even after

the signing of the treaty by the Philippine
representative whether or not to ratify the
same. The Vienna Convention on the Law
of Treaties does not contemplate to defeat
or even restrain this power of the head of

states. If that were so, the requirement of

ratification of treaties would be pointless and
futile.

It should be emphasized that under our

Constitution, the power to ratify is vested in
the President, subject to the concurrence of
the Senate. The role of the Senate,
however, is limited only to giving or
withholding its consent, or concurrence, to
the ratification. Hence, it is within the
authority of the President to refuse to submit
a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it.
Although the refusal of a state to ratify a
treaty which has been signed in its behalf is
a serious step that should not be taken