Treaties

A. 1987 Constitution
Art. VII, Sec. 20. The President may (1)
contract or (2) guarantee foreign loans on
behalf of the Republic of the Philippines with
the prior concurrence of the Monetary Board,
and subect to such limitations as may be
pro!ided by law" The Monetary Board shall,
within thirty days from the end of e!ery #uarter
of the calendar year, submit to the $ongress a
complete report of its decision on applications
for loans to be contracted or guaranteed by the
%o!ernment or go!ernment&owned and
controlled corporations which would ha!e the
e'ect of increasing the foreign debt, and
containing other matters as may be pro!ided
by law"
Art. VII, Sec.21. (o treaty or international
agreement shall be !alid and e'ecti!e unless
concurred in by at least two&thirds of all the
Members of the )enate"
Art. VIII, Sec. 4.
The )upreme $ourt shall be composed of a
$hief *ustice and fourteen +ssociate *ustices" ,t
may sit en banc or in its discretion, in di!ision
of three, -!e, or se!en Members" +ny !acancy
shall be -lled within ninety days from the
occurrence thereof"
+ll cases in!ol!ing the constitutionality of a
treaty, international or e.ecuti!e agreement, or
law, which shall be heard by the )upreme
$ourt en banc, and all other cases which under
the Rules of $ourt are re#uired to be heard en
banc, including those in!ol!ing the
constitutionality, application, or operation of
presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations,
shall be decided with the concurrence o
a !a"orit# o the $e!bers who actuall#
too% &art in the deliberations on the
issues in the case and 'oted thereon.
$ases or matters heard by a di!ision shall be
decided or resol!ed with the concurrence of a
maority of the Members who actually too/ part
in the deliberations on the issues in the case
and !oted thereon, and in no case without the
concurrence of at least three of such Members"
0hen the re#uired number is not obtained, the
case shall be decided en banc1 Pro!ided, that
no doctrine or principle of law laid down by the
court in a decision rendered en banc or in
di!ision may be modi-ed or re!ersed e.cept by
the court sitting en banc"
Art. (VIII, Sec. 2). +fter the e.piration in
1221 of the +greement between the Republic
of the Philippines and the 3nited )tates of
+merica concerning military bases, foreign
military bases, troops, or facilities shall not be
allowed in the Philippines e.cept under a treaty
duly concurred in by the )enate and, when
the Con*ress so re+uires, rati-ed by a
maority of the !otes cast by the people in a
national referendum held for that purpose, and
recogni4ed as a treaty by the other contracting
)tate"
,. -... 4)9 /0o'. 2), 19971
-... 4)92 3ro'idin* or the 4uidelines in
the 0e*otiation o International
A*ree!ents and its 5ati6cation
78-5-AS, the negotiations of international
agreements are made in pursuance of the
foreign policy of the country5
78-5-AS, 6.ecuti!e 7rder (o" 222,
otherwise /nown as the +dministrati!e $ode of
1289, pro!ides that the :epartment of ;oreign
+'airs shall be the lead agency that shall
ad!ise and assist the President in planning,
organi4ing, directing, coordinating and
e!aluating the total national e'ort in the -eld
of foreign relations5
78-5-AS, 6.ecuti!e 7rder (o" 222 further
pro!ides that the :epartment of ;oreign +'airs
shall negotiate treaties and other agreements
pursuant to the instructions of the President,
and in coordination with other go!ernment
agencies5
78-5-AS, there is a need to establish
guidelines to go!ern the negotiation and
rati-cation of international agreements by the
di'erent agencies of the go!ernment5
(70, T<6R6;7R6, ,, ;,:6= >" R+M7), President
of the Philippines, by !irtue of the powers
!ested in me by the $onstitution, do hereby
order1
Sec 1. 9eclaration o 3olic# ? ,t is hereby
declared the policy of the )tate that the
negotiations of all treaties and e.ecuti!e
agreements, or any amendment thereto, shall
be coordinated with, and made only with the
participation of, the :epartment of ;oreign
+'airs in accordance with 6.ecuti!e 7rder (o"
222" ,t is also declared the policy of the )tate
that the composition of any Philippine
negotiation panel and the designation of the
chairman thereof shall be made in coordination
with the :epartment of ;oreign +'airs"
Sec. 2. 9e6nition o Ter!s &
a" International a*ree!ent shall refer
to a contract or understanding,
regardless of nomenclature, entered
into between the Philippines and
another go!ernment in written form
and go!erned by international law,
whether embodied in a single
instrument or in two or more related
instruments"
b" Treaties : international agreements
entered into by the Philippines which
re#uire legislati!e concurrence after
e.ecuti!e rati-cation" This term may
include compacts li/e con!entions,
declarations, co!enants and acts"
c" -;ecuti'e A*ree!ents ? similar to
treaties e.cept that they do not re#uire
legislati!e concurrence"
d" <ull 3owers ? authority granted by a
<ead of )tate or %o!ernment to a
delegation head enabling the latter to
bind his country to the commitments
made in the negotiations to be
pursued"
e" 0ational Interest ? ad!antage or
enhanced prestige or bene-t to the
country as de-ned by its political
and@or administrati!e leadership"
f" 3ro'isional -=ect ? recognition by
one or both sides of the negotiation
process that an agreement be
considered in force pending compliance
with domestic re#uirements for the
e'ecti!ity of the agreement"
Sec. >. Authorit# to 0e*otiate ? Prior to any
international meeting or negotiation of a treaty
or e.ecuti!e agreement, authori4ation must be
secured by the lead a*enc# from the
President through the )ecretary of ;oreign
+'airs" The re#uest for authori4ation shall be
(1) in writing, (2) proposing the composition of
the Philippine delegation and (A)
recommending the range of positions to be
ta/en by that delegation" ,n case of
negotiations of agreements, changes of
national policy or those in!ol!ing international
arrangements of a permanent character
entered into in the name of the %o!ernment of
the Republic of the Philippines, the
authori?ation shall be in the or! o <ull
3owers and or!al instructions" ,n cases of
other agreements, a written authori4ation from
the President shall be suBcient"
Sec.. 4. <ull 3owers ? The issuance of ;ull
Powers shall be made by the President of the
Philippines who may delegate this function to
the )ecretary of ;oreign +'airs"
The following persons, howe!er, shall not
re+uire ;ull Powers prior to negotiating or
signing a treaty or an e.ecuti!e agreement, or
any amendment thereto, by !irtue of the
nature of their functions1
a" )ecretary of ;oreign +'airs5
b" <eads of Philippine diplomatic
missions, for the purpose of adopting
the te.t of a treaty or an agreement
between the Philippines and the )tate
to which they are accredited5
c" Representati!es accredited by the
Philippines to an international
conference or to an international
organi4ation or one of its organs, for
the purpose of adopting the te.t of a
treaty in that conference, organi4ation
or organ"
Sec. ). 0e*otiations @
a" ,n cases in!ol!ing negotiations of
agreements, the composition of the
Philippine panel or delegation shall be
determined by the President upon the
recommendation of the )ecretary of
;oreign +'airs and the lead agency if it
is not the :epartment of ;oreign
+'airs"
b" The lead agency in the negotiation of a
treaty or an e.ecuti!e agreement, or
any amendment thereto, shall con!ene
a meeting of the panel members prior
to the commencement of any
negotiations for the purpose of
establishing the parameters of the
negotiating position of the panel" (o
de!iation from the agreed parameters
shall be made without prior
consultations with the members of the
negotiating panel"
S-C. A. -ntr# into <orce and 3ro'isional
A&&lication o Treaties and -;ecuti'e
A*ree!ents @
a" + treaty or an e.ecuti!e agreement
enters into force upon compliance with
the domestic re#uirements stated in
this 7rder"
b" (o treaty or e.ecuti!e agreement shall
be gi!en pro!isional e'ect unless it is
shown that a pressing national interest
will be upheld thereby" The :epartment
of ;oreign +'airs, in consultation with
the concerned agencies, shall
determine whether a treaty or an
e.ecuti!e agreement, or any
amendment thereto, shall be gi!en
pro!isional e'ect"
S-C. 7. 9o!estic 5e+uire!ents or the
-ntr# into <orce o a Treat# or an
-;ecuti'e A*ree!ent : The domestic
re#uirements for the entry into force of a treaty
or an e.ecuti!e agreement, or any amendment
thereto, shall be as follows1
+" 6.ecuti!e +greements
i" +ll e.ecuti!e agreements shall be
transmitted to the :;+ after their
signing for the preparation of the
rati-cation papers" The transmittal
shall include the hi*hli*hts of the
agreements and the bene6ts
which will accrue to the Philippines
arising from them"
ii" The :epartment of ;oreign +'airs,
pursuant to the endorsement by
the concerned agency, shall
transmit the agreements to the
President of the Philippines for his
rati-cation" The original signed
instrument of rati-cation shall then
be returned to the :epartment of
;oreign +'airs for appropriate
action"
B" Treaties
i" +ll treaties, regardless of their
designation, shall comply with the
re#uirements pro!ided in sub&
paragraph 1 and 2, item +
(6.ecuti!e +greements) of this
)ection" ,n addition, the
:epartment of ;oreign +'airs shall
submit the treaties to the )enate of
the Philippines for concurrence in
the rati-cation by the President" +
certi-ed true copy of the treaties,
in such numbers as may be
re#uired by the )enate, together
with a certi-ed true copy of the
rati-cation instrument, shall
accompany the submission of the
treaties to the )enate"
ii" 3pon receipt of the concurrence by
the )enate, the :epartment of
;oreign +'airs shall comply with
the pro!ision of the treaties in
e'ecting their entry into force"
Sec. 8. 0otice to Concerned A*encies :
The :epartment of ;oreign +'airs shall inform
the concerned agencies of the entry into force
of the agreement"
Sec. 9. 9eter!ination o the 0ature o the
A*ree!ent : The :epartment of ;oreign
+'airs shall determine whether an agreement
is an e.ecuti!e agreement or a treaty"
Sec. 10. Se&arabilit# Clause ? ,f, for any
reason, any part or pro!ision of this 7rder shall
be held unconstitutional or in!alid, other parts
or pro!isions hereof which are not a'ected
thereby shall continue to be in full force and
e'ect"
Sec. 11. 5e&ealin* Clause : +ll e.ecuti!e
orders, proclamations, memorandum orders or
memorandum circulars inconsistent herewith
are hereby repealed or modi-ed accordingly"
Sec. 12. -=ecti'it# : This 6.ecuti!e 7rder
shall ta/e e'ect immediately upon its appro!al"
:7(6 in the $ity of Manila, this 2Cth day of
(o!ember in the year of 7ur =ord, (ineteen
<undred and (inety&)e!en"
Co!!issioner o Custo!s '. -astern Sea
Tradin*
4.5. 0o. B@14279
.ctober >1, 19A1
<acts2
1" Respondent 6astern )ea Trading was
the consignee of se!eral shipments of
onion and garlic which arri!ed at the
Port of Manila which came from *apan
and <ong Dong"
2" The goods were sei4ed because there
was no certi6cate re#uired by $entral
Ban/ $ir" (o" EE and EC as a result the
goods were subected to forfeiture
proceedings for alleged !iolations of
)ec" 1AFA(f) of the R+$
A" The $ollector of $ustoms rendered a
decision declaring the goods to be
forfeited in fa!or of the go!ernment
and ordered the payment of the
amounts of the surety bonds together
with the +lto )urety ,nsurance $o
ointly and se!erally, to the B7$, within
AG days from notice"
E" 7n appeal, the $ommissioner of
$ustoms aBrmed the decision of the
$ollector
C" Respondent then sought a re!iew of
the decision to the $T+, which re!ersed
the decision and ordered that the
aforementioned bonds be cancelled
and withdrawn
F" <ence, the present petition"
Issue2
7.0 the sei?ure and oreiture o *oods
is "usti6ed under -... >28 /no co!!odit#
!a# be e;&orted to or i!&orted ro!
.ccu&ied Ca&an without an e;&ort or
i!&ort license ro! the Central ,an% o
the 3hili&&ines or the I!&ort Control
Ad!inistration1
7.0 -... >28 is an e;ecuti'e a*ree!ent
or a treat# and 7.0 it is 'alid
8eld2
1" The concurrence of said <ouse of
$ongress is re#uired by our
fundamental law in the ma/ing of
HtreatiesH ($onstitution of the
Philippines, +rticle >,,, )ection 1GI9J),
which are, howe!er, distinct and
di'erent from He.ecuti!e agreements,H
which may be !alidly entered into
without such concurrence"
Treaties -;ecuti'e
A*ree!ent
;ormal documents
which re#uire
rati-cation with the
appro!al of two thirds
of the )enate
Become binding
through e.ecuti!e
action without the
need of a !ote by the
)enate or by $ongress
,nternational
agreements in!ol!ing
(1) political issues or
(2) changes of
national policy and (A)
those in!ol!ing
international
arrangements of a
permanent character
,nternational
agreements
embodying
adustments of detail
carrying out well&
established national
policies and traditions
and those in!ol!ing
arrangements of a
usually ta/e the form
of treaties"
more or less
temporary nature
usually ta/e the form
of e.ecuti!e
agreements"
2" The right of the 6.ecuti!e to enter into
binding agreements without the
necessity of subse#uent $ongressional
appro!al has been con-rmed by long
usage"
A" The !alidity of the e.ecuti!e
agreement in #uestion is thus patent
(ob!ious)" ,n fact, the so&called Parity
Rights pro!ided for in the 7rdinance
+ppended to our $onstitution were,
prior thereto, the subect of an
e.ecuti!e agreement, made without
the concurrence of two&thirds (2@A) of
the )enate of the 3nited )tates"
E" =astly, it would be unreasonable to
re#uire from respondent&appellee an
import license when the ,mport $ontrol
$ommission was no longer in e.istence
and, hence, there was, said court
belie!ed, no agency authori4ed to issue
the aforementioned license" This
conclusion is untenable, for the
authority to issue the aforementioned
licenses was not !ested e.clusi!ely
upon the ,mport $ontrol $ommission or
+dministration"
C" 6"7" A28 pro!ided for e.port or import
licenses Hfrom the $entral Ban/ of the
Philippines or the ,mport $ontrol
+dministrationH or $ommission"
F" ,ndeed, the latter was created only to
perform the tas/ of implementing
certain obecti!es of the Monetary
Board and the $entral Ban/, which
otherwise had to be underta/en by
these two (2) agencies" 3pon the
abolition of said $ommission, the duty
to pro!ide means and ways for the
accomplishment of said obecti!es had
merely to be discharged directly by the
Monetary Board and the $entral Ban/,
e!en if the aforementioned 6"7" had
been silent thereon"
9" 0herefore, the decision appealed from
is hereby R6>6R)6:" The decision of
the $ommissioner of $ustoms is
+;;,RM6:"
9atu <irdausi Abbas '. C.$-B-C
4.5. 0o. 89A)1
0o'e!ber 10, 1989
<acts2
1" The present contro!ersy relates to the
&lebiscite in thirteen /1>1
&ro'inces and nine /91 cities in
$indanao and 3alawan, scheduled
or (o!ember 12, 1282, in
implementation of R"+" F9AE, entitled
H+n +ct Pro!iding for an 7rganic +ct for
the +utonomous Region in Muslim
Mindanao"H
2" +rguments of the petitioners1
a" R"+" F9AE is unconstitutional
b" $ertain pro!isions of R"+" F9AE
conKict with the Tripoli
+greement
A" The Tripoli +greement, more
speci-cally, the +greement Between
the go!ernment of the Republic of the
Philippines and M(=; with the
Participation of the Luadripartie
Ministerial $ommission Members of the
,slamic $onference and the )ecretary
%eneral of the 7rgani4ation of ,slamic
$onferenceH too/ e'ect on :ecember
2A, 129F" ,t pro!ided for HThe
establish!ent o Autono!# in the
southern 3hili&&ines within the
real! o the so'erei*nt# and
territorial inte*rit# o the 5e&ublic
o the 3hili&&inesH and enumerated
the thirteen (1A) pro!inces comprising
the Hareas of autonomy"H
E" ,n 1289, a new $onstitution was
rati-ed, which the for the -rst time
pro!ided for regional autonomy, +rticle
M, section 1C of the charter pro!ides
that HItJhere shall be created
autonomous regions in Muslim
Mindanao and in the $ordilleras
consisting of pro!inces, cities,
municipalities, and geographical areas
sharing common and distincti!e
historical and cultural heritage,
economic and social structures, and
other rele!ant characteristics within
the framewor/ of this $onstitution and
the national so!ereignty as well as
territorial integrity of the Republic of
the Philippines"H
C" To e'ectuate this mandate, the
$onstitution further pro!ides )ec" 1F&
21"
F" Pursuant to the constitutional mandate
R"+" F9AE was enacted and signed into
law on +ugust 1, 1282"
9" Petitioner +bbas argues that R"+" (o"
F9AE unconditionally creates an
autonomous region in Mindanao,
contrary to the afore#uoted pro!isions
of the $onstitution on the autonomous
region which ma/e the creation of such
region dependent upon the outcome of
the plebiscite"
Issue2
1. 7.0 5.A. A7>4 is constitutional
2. 7.0 the &ro'isions o 5.A. A7>4 is
in conDict with the Tri&oli
A*ree!ent
8eld2
1" 0e -nd it neither necessary nor
determinati!e of the case to rule on the
nature of the Tripoli +greement and its
binding e'ect on the Philippine
%o!ernment whether under public
international or internal Philippine law"
2" ,t is not the $onstitution itself that
pro!ides for the creation of an
autonomous region in Muslim
Mindanao"
A" Thus, any conKict between the
pro!isions of R"+" (o" F9AE and the
pro!isions of the Tripoli +greement will
not ha!e the e'ect of enoining the
implementation of the 7rganic +ct
because the Tri&oli A*ree!ent is
not a bindin* treat# or
international a*ree!ent
E" The Tripoli +greement, e!en assuming
that it is a binding treaty or
international agreement, would not
be su&erior to 5.A. A7>4. 5ather, it
would be at the sa!e class as the
other.
C" Thus, if at all, R"+" (o" F9AE would be
amendatory of the Tripoli +greement,
being a subse#uent law" .nl# a
deter!ination b# this Court that
5.A. 0o. A7>4 contra'ened the
Constitution would result in the
*rantin* o the relies sou*ht"
F" 3nder the $onstitution and R"+" (o
F9AE, the creation of the autonomous
region shall ta/e e'ect only when
appro!ed by a maority of the !otes
cast by the constituent units in a
plebiscite, and only those pro!inces
and cities where a maority !ote in
fa!or of the 7rganic +ct shall be
included in the autonomous region" The
pro!inces and cities wherein such a
maority is not attained shall not be
included in the autonomous region"
9" ,t is clear that what is re#uired by the
$onstitution is a simple maority of
!otes appro!ing the organic +ct in
indi!idual constituent units and not a
double maority of the !otes in all
constituent units put together, as well
as in the indi!idual constituent units"
8" ,t is thus clear that what is re#uired by
the $onstitution is a simple maority of
!otes appro!ing the organic +ct in
indi!idual constituent units and not a
double maority of the !otes in all
constituent units put together, as well
as in the indi!idual constituent units"
2" The power to merge administrati!e
regions is a power which has
traditionally been lodged with the
President to facilitate the e.ercise of
the power of general super!ision o!er
local go!ernments5 (o conKict between
the power of the President to merge
administrati!e regions with the
$onstitutional pro!ision re#uiring
plebiscite in the merger of local
go!ernments units"
1G" 0herefore, the petitions are :,)M,))6:
for lac/ of merit"
A*ustin '. -du /Band Trans&ortation
Co!!issioner1
4.5. 0o. B@49112
<ebruar# 2, 1979
<acts2
1" The assailed =7, (o" 222 of Pres"
Marcos issued on :ecember 2, 129E
pro!ides for an early warning de!ice for
motor !ehicles that needs to be
installed some meters away in the front
and rear of the !ehicle when par/ed for
AG minutes"
2" +fter the =7, was amended, respondent
6du created the ,RR for the =7,
A" Respondent 6du issued a Memorandum
$ircular =T$ +dministrati!e 7rder (o" 1,
dated :ecember 1G, 129F5 shall now
be implemented pro!ided that the
de!ice may come from whate!er
source and that it shall ha!e
substantially complied with the 60:
speci-cations contained in )ection 2 of
said administrati!e order5 2" ,n order to
insure that e!ery motor !ehicle, e.cept
motorcycles, is e#uipped with the
de!ice, a pair of serially numbered
stic/ers, to be issued free of charge by
this $ommission, shall be attached to
each 60:" The 60: serial number
shall be indicated on the registration
certi-cate and oBcial receipt of
payment of current registration fees of
the motor !ehicle concerned" +ll
7rders, $irculars, and Memoranda in
conKict herewith are hereby
superseded, This 7rder shall ta/e e'ect
immediately" ,t was for immediate
implementation by respondent +lfredo
=" *uinio, as Minister of Public 0or/s,
transportation, and $ommunications"
E" Petitioner +gustin is an owner of
>ol/swagen Beetle $ar which was
already e#uipped when it came out
from the assembly lines with blin/ing
lights fore and aft, which could ser!e s
an early warning de!ice in case of the
emergencies mentioned in =7, 222
). 3etitioner alle*ed that the B.I
Eclearl# 'iolates the &ro'isions
and dele*ation o &olice &owerF
F" <e contended that they are Hinfected
with arbitrariness because it is harsh,
cruel and unconscionable to the
motoring public5N are Hone&sided,
onerous and patently illegal and
immoral because ItheyJ will ma/e
manufacturers and dealers instant
millionaires at the e.pense of car
owners who are compelled to buy a set
of the so&called early warning de!ice at
the rate of P CF"GG to P92"GG per set"H
9" <e contend that motoring public may
as well come up with practical
alternati!e road safety de!ice, or a
better substitute to the speci-ed set of
60:
8" The court issued a TR7 against the
respondents"
Issue2
1. 7.0 B.I 229 and $e!orandu!
Circular issued b# -9G
unconstitutional or bein* 'iolati'e
o due &rocess and undue
dele*ation o le*islati'e &ower
2. 7.0 the 19A8 Vienna Con'entions
o the G0 on road traHc, road
si*ns and si*nals !a# be a basis to
"usti# the B.I
8eld2
1" Police power is the power to prescribe
regulations to promote the health,
morals, peace, education, good order
or safety, and general welfare of the
people"
2" ,t was thus a hea!y burden to be
shouldered by petitioner, compounded
by the fact that the particular police
power measure challenged was clearly
intended to promote public safety" ,t
would be a rare occurrence indeed for
this $ourt to in!alidate a legislati!e or
e.ecuti!e act of that character"
A" Petitioner +gustin failed to lay the
necessary factual foundation to rebut
the presumption of !alidity of the =7,
222 and its ,RR" Thus, the
&resu!&tion o constitutionalit#
!ust &re'ail in the absence o
so!e actual oundation o record
in o'erthrowin* the statute.
E" =7, 222 re#uiring the installation of
early warning de!ices to !ehicles is not
repugnant to the due process clause"
$onectural claims of petitioner as to
number of nighttime !ehicular
collisions cannot be a basis for setting
aside a re#uirement of law that was
promulgated after a careful study by
the 6.ecuti!e :epartment
C" The 3resident certainl# had in his
&ossession the necessar#
statistical inor!ation and data at
the ti!e he issued said letter o
instructions, and such factual
foundation cannot be defeated by
petitionerOs na/ed assertion that early
warning de!ices Oare not too !ital to the
pre!ention of nighttime !ehicular
accidentsO because allegedly only A2G
or 1"C per cent of the supposed 2F,GGG
motor !ehicle accidents that in 129F
in!ol!ed rear&end collisions" ,t admits of
no doubt therefore that there being a
presumption of !alidity, the necessity
for e!idence to rebut it is una!oidable,
unless the statute or ordinance is !oid
on its face, which is not the case here"
F" The rather wild and fantastic nature of
the charge of oppressi!eness of this
=7, was e.posed in the +nswer of the
)olicitor %eneral thus1 H)uch early
warning de!ice re#uirement is not an
e.pensi!e redundancy, nor oppressi!e,
for car owners because1 ,ein*
uni'ersal a!on* the si*nator#
countries to the said 19A8 Vienna
Con'entions, and 'isible e'en
under ad'erse conditions at a
distance o at least 400 !eters,
an# !otorist ro! this countr# or
ro! an# &art o the world, who
sees a reDectori?ed rectan*ular
earl# sea!in* de'ice installed on
the roads, hi*hwa#s or
e;&resswa#s, will conclude,
without thin%in*, that so!ewhere
alon* the tra'elled &ortion o that
road, hi*hwa#, or e;&resswa#,
there is a !otor 'ehicle which is
stationar#, stalled or disabled
which obstructs or endan*ers
&assin* traHc.
9" 7n the other hand, a motorist who sees
any of the aforementioned other built
in warning de!ices or the petroleum
lamps will not immediately get
ade#uate ad!ance warning because he
will still thin/ what that blin/ing light is
all about" ,s it an emergency !ehicleP ,s
it a law enforcement carP ,s it an
ambulanceP )uch confusion or
uncertainty in the mind of the motorist
will thus increase, rather than
decrease, the danger of collision"
8" The principle of separation of powers
has in the main wisely allocated the
respecti!e authority of each
department and con-ned its
urisdiction to such a sphere" There
would then be intrusion not allowable
under the $onstitution if on a matter
left to the discretion of a coordinate
branch, the udiciary would substitute
its own"
2" ,f there be adherence to the rule of law,
as there ought to be, the last o'ender
should be courts of ustice, to which
rightly litigants submit their
contro!ersy precisely to maintain
unimpaired the supremacy of legal
norms and prescriptions" The attac/ on
the !alidity of the challenged pro!ision
li/ewise insofar as there may be
obections, e!en if !alid and cogent on
is wisdom cannot be sustained"
1G" To a!oid the taint of unlawful
delegation of power, the legislature
must be de-ned standards" ,n the case
at bar, the clear obecti!e is public
safety"
11" +pplying +rt" ,,, )ec" 2, the 12F8 >ienna
$on!ention on Road )ign and )ignals is
impressed with the character of
Qgenerally accepted principles of
international lawN which under the
$onstitution the Philippines adopts as
the law of the land"
12" The concept of pacta sunt ser!anda
stands in the way of such an attitude,
which is, at war with the principle of
international morality
1A" 7hereore, the &etition is
dis!issed"
5a!on 4on?ales '. 5u6no 8echano'a
4.5. 0o. 21897
.ctober 22, 19A>
<acts2
1" 7n )ept" 22, 12FA, respondent
6.ecuti!e )ec" <echano!a authori4ed
the importation of F9,GGG tons of
foreign rice to be purchased from
pri!ate sources, and created a rice
procurement committee composed of
other respondents herein for its
implementation"
2" Petitioner %on4ales, president of ,loilo
Palay and $orn Planters +ssociation
-led a petition with R"+" 22G9 as
amended by R"+" AEC2 as basis which
e.plicitly prohibits the importation of
rice and corn Qthe Rice and $orn
+dministration or an# other
*o'ern!ent a*enc#N" Petitioner
alleging that respondents Qare acting
without or in e.cess of urisdictionN
Issue2
07( the 6.ecuti!e )ecretary <echano!a acted
with gra!e abuse of discretion
8eld2
I. SuHcienc# o &etitionerIs
interest
1" Petitioner %on4ales has the legal
standing because R"+" AEC2 declares,
in )ec" 1 thereof, that Hthe policy of the
%o!ernmentH is to Hengage in the
purchase of these basic foods directly
from those tenants, farmers, growers,
producers and landowners in the
Philippines who wish to dispose of their
products at a price that will a'ord them
a fair and ust return for their labor and
capital in!estment"H
2" Pursuant to this pro!ision, petitioner,
as a planter with a rice land of
substantial proportion, is entitled to a
chance to sell to the %o!ernment the
rice it now see/s to buy abroad"
A" Moreo!er, as a rice producer and
landowner, petitioner must necessarily
be a ta.payer and it follows that he has
suBcient personality and interest to
see/ udicial assistance with a !iew to
restraining what he belie!es to be an
attempt to unlawfully disburse said
funds"
II. -;haustion o ad!inistrati'e
re!edies
1" +s a general rule, petitioner should
e.haust all administrati!e remedies
a!ailable to him before coming to
court"
2. (302
(1) ,t is not applicable where the #uestion
in dispute is purely a legal one5
(2) 0here the contro!erted act is Qpatently
illegalN or was performed without
urisdiction or in e.cess of urisdiction5
(A) 0here the respondent is a department
secretary, whose acts as an alter&ego
of the President bear the implied or
assumed appro!al of the latter, unless
actually disappro!ed by him5
(E) 0here there are circumstances
indicating the urgency of udicial
inter!ention"
A" The case at bar fails under each one of
the foregoing e.ceptions to the general
rule
III. $erits o &etitionerIs cause o
action
1" The two +cts are applicable to the
proposed importation in #uestion
because the language of said laws is
such as to include within the pur!iew
thereof all importations of rice and corn
into the PhilippinesH" Pursuant to R"+"
(o" 22G9, Hit shall be unlawful for any
person, association, corporation or
go!ernment agency to import rice and
corn into any point in the PhilippinesH,
although, by way of e.ception, it adds,
that Hthe 3resident o the
3hili&&ines !a# authori?e the
i!&ortation o these co!!odities
throu*h an# *o'ern!ent a*enc#
that he !a# desi*nateH, is the
conditions prescribed in )ec" 2 of said
+ct are present" )imilarly, R"+" AEC2
e.plicitly enoins Hthe Rice and $orn
+dministration or any go!ernment
agencyH from importing rice and corn"
2" The pro!isions of R"+" 22G9 and AEC2 is
applicable to both go!ernment
agencies and the %7>6R(M6(T for the
following reasons1
a" The importation permitted in
R"+" 22G9 is to be authori4ed
by the QPresident of the
PhilippinesN and, hence, by or
on behalf of the %o!ernment of
the Philippines"
b" ,mmediately after enoining the
Rice and $orn administration
and any other go!ernment
agency from importing rice and
corn, )ec" 1G of R"+" AEC2 adds
Hthat the importation of rice
and corn is left to &ri'ate
&arties upon payment of the
corresponding ta.esH, thus
indicating that only Hpri!ate
partiesH may import rice under
its pro!isions5
c" Both R"+" AEC2 and R"+" 22G9,
in its penal pro!ision mentions
Qif the o'ender is a public
and@or employeesN" <ence, the
intent to apply the same to
transactions made by the !ery
go!ernment is patent"
A" 3nder $"+" 1A8, in all purchases by the
%o!ernment, including those made by
and@or for the armed forces, preference
shall be gi!en to materials produced in
the Philippines" The importation
in!ol!ed in the case at bar !iolates this
general policy of our %o!ernment,
aside from the pro!isions of Republic
+cts (os" 22G9 and AEC2"
E" +gain, the pro!isions of )ec" 2 of $"+"
(o" 1, upon which respondents rely so
much, are not self&e.ecutory" They
merely outline the general obecti!es of
said legislation" The means for the
attainment of those obecti!es are
subect to congressional legislation"
Thus, the conditions under which the
ser!ices of citi4ens, as indicated in said
)ec" 2, may be a!ailed of, are pro!ided
for in )ec" A, E and C1 to 88 of said $"+"
(o" 1" )imilarly, )ec" C thereof speci-es
the manner in which resources
necessary for our national defense may
be secured by the %o!ernment of the
Philippines, but only Hduring a national
mobili4ationH, which does not e.ist"
,nferentially, therefore, in the absence
of a national mobili4ation, said
resources shall be produced in such
manner as $ongress may by other laws
pro!ide from time to time" ,nsofar as
rice and corn are concerned, R"+" 22G9
and AEC2, and $"+" (o" 1A8 are such
laws"
C" The =atin ma.im salus populi est
suprema le. has no place because said
importation will not redound to the
bene-t of the public but shall ser!e as
a stoc/pile for the +rmy"
IV. The Contracts with Vietna!
and ,ur!a
1. ,t is contended that the %o!ernment of
the Philippines has already entered into
two contracts for the Purchase of Rice
with Republic of >ietnam and
%o!ernment of Burma and that these
contract constitute !alid e.ecuti!e
agreements under international law" ,n
case of conKict, the contracts should
pre!ail"
2. T8-J A5- 0.T -(-CGTIV-
A45--$-0TS.
>. The parties to said contracts do not
&ear to ha'e re*arded the sa!e as
e;ecuti'e a*ree!ents"
4. But, e!en assuming that said contracts
may properly considered as e.ecuti!e
agreements, the same are unlawful, as
well as null and !oid, from a
constitutional !iewpoint, said
agreements being inconsistent with the
pro!isions of R"+" 22G9 and AEC2"
). Althou*h the 3resident !a#, under
the A!erican constitutional
s#ste! enter into e;ecuti'e
a*ree!ents without &re'ious
le*islati'e authorit#, he !a# not,
b# e;ecuti'e a*ree!ent, enter
into a transaction which is
&rohibited b# statutes enacted
&rior thereto.
A. The President may not interfere in the
performance of the legislati!e powers
of the $ongress, e.cept in the e.ercise
of his !eto power"
7. 8e !a# not deeat le*islati'e
enact!ents that ha'e ac+uired the
status o law, b# indirectl#
re&ealin* the sa!e throu*h an
e;ecuti'e a*ree!ent &ro'idin* or
the &eror!ance o the 'er# act
&rohibited b# said laws.
8. +s regards the #uestion whether an
international agreement may be
in!alidated by our courts, suBce it to
say that the $onstitution of the
Philippines has clearly settled it in the
aBrmati!e, by pro!iding, in )ec" 2 of
+rt" >,,, thereof, that the )upreme
$ourt may not be depri!ed Hof its
urisdiction to re!iew, re!ise, re!erse,
modify, or aBrm on appeal, certiorari,
or writ of error as the law or the rules
of court may pro!ide, -nal udgments
and decrees of inferior courts in R (1)
All cases in which the
constitutionalit# or 'alidit# o an#
treat#, law, ordinance, or
e;ecuti'e order or re*ulation is in
+uestionH" ,n other words, our
$onstitution authori4es the nulli-cation
of a treaty, not only when it conKicts
with the fundamental law, but, also,
when it runs counter to an act of
$ongress"
9. The alleged consummation of the
aforementioned contracts with >ietnam
and Burma does not render this case
academic, Republic +ct (o" 22G9
enoins our %o!ernment not from
entering into contracts for the purchase
of rice, but from importing rice, e.cept
under the conditions Prescribed in said
+ct" 3pon the other hand, Republic +ct
(o" AEC2 has two (2) main features,
namely1 (a) it re#uires the %o!ernment
to purchase rice and corn directly from
our local planters, growers or
landowners5 and (b) it prohibits
importations of rice by the
%o!ernment, and lea!es such
importations to pri!ate parties" The
pi!otal issue in this case is whether the
proposed importation R which has not
been consummated as yet R is legally
feasible"
10. =astly, a "udicial declaration o
ille*alit# o the &ro&osed
i!&ortation would not co!&el our
4o'ern!ent to deault in the
&eror!ance o such obli*ations as
it !a# ha'e contracted with the
sellers o the rice in +uestion,
because, aside from the fact that said
obligations may be complied with
without importing the commodity into
the Philippines, the &ro&osed
i!&ortation !a# still be le*ali?ed
b# co!&l#in* with the &ro'isions
o the aore!entioned laws"
11. 78-5-<.5-, "ud*!ent is hereb#
rendered declarin* that
res&ondent -;ecuti'e Secretar#
had and has no &ower to authori?e
the i!&ortation in +uestionK
,a#an '. La!ora
4.5. 0o. 1>8)70
.ctober 10, 2000
<acts2
1" 7n March 1E, 12E9, the Philippines and
3) forged a Military bases agreement
which formali4ed the use of
installations in the Philippine territory
by 3) military personnel
2" To further strengthen their defense and
security, they entered into a Mutual
:efense Treaty on +ugust AG, 12C1
where they agreed to respond to any
e.ternal armed attac/ on their
territory, armed forces, public !essels,
and aircraft"
A" ,n !iew of the impending e.piration of
the Military Bases +greement in 1221,
they negotiated for a possible
e.tension but the )enate reected the
RP&3) Treaty of ;riendship, $ooperation
and )ecurity" The defense and security
relationship between the Philippines
and 3) continued pursuant to the
Mutual :efense Treaty"
E" 7n *uly 18, 1229, 3) panel headed by
3) :efense :eputy +ssistant )ecretary
for +sia Paci-c Durt $ampbell, met with
the Philippine panel headed by ;oreign
+'airs 3sec" Rodolfo )e!erino *r" Both
sides discussed, among other things,
the possible elements of the >isiting
;orces +greement (>;+ for bre!ity)"
C" (egotiations by both panels on the >;+
led to a consolidated draft te.t, which
in turn resulted to a -nal series of
conferences and negotiations that
culminated in Manila on *anuary 12 and
1A, 1228" Thereafter, then President
;idel >" Ramos appro!ed the >;+, which
was respecti!ely signed by public
respondent )ecretary )ia4on and
3nites )tates +mbassador Thomas
<ubbard on ;ebruary 1G, 1228"
F" 7ctober C, 1228, Pres" 6strada, through
respondent )ec of ;oreign +'airs
rati-ed the >;+
9" 7n 7ctober F, 1228, the President,
acting through respondent 6.ecuti!e
)ecretary Ronaldo Samora, oBcially
transmitted to the )enate of the
Philippines, the ,nstrument of
Rati-cation, the letter of the President
and the >;+, for concurrence pursuant
to )ec" 21, +rt" >,, of the 1289
$onstitution"
8" The )enate, in turn, referred the >;+ to
its $ommittee on ;oreign Relations,
chaired by )enator Blas ;" 7ple, and its
$ommittee on (ational :efense and
)ecurity, chaired by )enator Rodolfo %"
Bia4on, for their oint consideration and
recommendation" Thereafter, oint
public hearings were held by the two
$ommittees"
2" 7n May A, 1222, the $ommittees
submitted Proposed )enate Resolution
(o" EEA8 recommending the
concurrence of the )enate to the >;+
and the creation of a =egislati!e
7!ersight $ommittee to o!ersee its
implementation" :ebates then ensued"
1G" 7n May 29, 1222, Proposed )enate
Resolution (o" EEA was appro!ed by
the )enate, by a two&thirds (2@A) !ote
of its members" )enate Resolution (o"
EEA was then re&numbered as )enate
Resolution (o" 18"
11" 7n *une 1, 1222, the >;+ oBcially
entered into force after an 6.change of
(otes between respondent )ecretary
Bia4on and 3nited )tates +mbassador
<ubbard"
12" The >;+, which consists of a Preamble
and nine (2) +rticles, pro!ides for the
mechanism for regulating the
circumstances and conditions under
which 3) +rmed ;orces and defense
personnel may be present in the
Philippines"
Issues2
1. 7.0 &etitioners ha'e le*al
standin* as concerned citi?ens,
ta;&a#ers, or le*islators to
+uestion the constitutionalit# o
the V<AM
2. 7.0 the V<A *o'erned b# the
&ro'isions o Section 21, Article VII
or o Section 2), Article (VIII o
the ConstitutionM
>. 7.0 the V<A constitute an
abdication o 3hili&&ine
so'erei*nt#M
a. Are 3hili&&ine courts
de&ri'ed o their
"urisdiction to hear and tr#
o=enses co!!itted b# GS
!ilitar# &ersonnelM
b. Is the Su&re!e Court
de&ri'ed o its "urisdiction
o'er o=enses &unishable b#
reclusion &er&etua or
hi*herM
4. 7.0 the V<A 'iolate
a. the e+ual &rotection clause
under Section 1, Article III
o the ConstitutionM
b. the 3rohibition a*ainst
nuclear wea&ons under
Article II, Section 8M
c. Section 28 /41, Article VI o
the Constitution *rantin*
the e;e!&tion ro! ta;es
and duties or the
e+ui&!ent, !aterials
su&&lies and other
&ro&erties i!&orted into or
ac+uired in the 3hili&&ines
b#, or on behal, o the GS
Ar!ed <orcesM
8eld2
Bocus Standi
1" + party bringing a suit challenging the
constitutionality of a law, act, or
statute must show Hnot only that the
law is in!alid, but also that he has
sustained or in is in immediate, or
imminent danger of sustaining some
direct inury as a result of its
enforcement, and not merely that he
su'ers thereby in some inde-nite way"H
<e must show that he has been, or is
about to be, denied some right or
pri!ilege to which he is lawfully
entitled, or that he is about to be
subected to some burdens or penalties
by reason of the statute complained of"
2" ,n this case, the petitioners failed to
show that they ha!e sustained or in
danger of sustaining any direct inury
as a result of the enforcement of the
>;+"
A" <owe!er, in !iew of the paramount
importance and the constitutional
signi-cance of the issues raised in the
petitions, this $ourt, in the e.ercise of
its sound discretion, brushes aside the
procedural barrier and ta/es
cogni4ance of the petitions
E" This $ourt ruled that in cases of
transcendental importance, the $ourt
may rela. the standing re#uirements
and allow a suit to prosper e!en where
there is no direct inury to the party
claiming the right of udicial re!iew"
A&&licable Constitutional 3ro'ision
Art. VII, Sec. 21. (o treaty or international
agreement shall be !alid and e'ecti!e unless
concurred in by at least two&thirds of all the
Members of the )enate"
Art. (VIII, Sec. 2). +fter the e.piration in
1221 of the +greement between the Republic
of the Philippines and the 3nited )tates of
+merica concerning Military Bases, foreign
military bases, troops, or facilities shall not be
allowed in the Philippines e;ce&t under a
treat# dul# concurred in b# the senate
and, when the Con*ress so re+uires,
rati6ed b# a !a"orit# o the 'otes cast b#
the &eo&le in a national reerendu! held
or that &ur&ose, and reco*ni?ed as a
treat# b# the other contractin* State.
1" Both constitutional pro!isions are
phrased in the negati!e and this, are
deemed prohibitory in mandate and
character" +lso, both re#uires the
concurrence of the )enate as an
indispensable for the !alidity and
e'ecti!ity of a treaty or international
agreement"
2" ,n either case, whether under )ec" 21,
+rt" >,, or )ec" 2C, +rt" M>,,,, the
fundamental law is crystalline that the
concurrence of the )enate is a
mandatory to comply with the strict
constitutional re#uirements"
A" +rt" M>,,,, )ec" 2C should undoubtedly
apply to the >;+ (le. specialis derogant
generali)
E" Gndoubtedl#, Section 2), Article
(VIII, which s&eci6call# deals with
treaties in'ol'in* orei*n !ilitar#
bases, troo&s, or acilities, should
a&&l# in the instant case" To a
certain e.tent and in a limited sense,
howe!er, the pro!isions of section 21,
+rticle >,, will -nd applicability with
regard to the issue and for the sole
purpose of determining the number of
!otes re#uired to obtain the !alid
concurrence of the )enate"
C" ,t is a -nely&imbedded principle in
statutory construction that a special
pro!ision or law pre!ails o!er a general
one" =e. specialis derogat generali"
Thus, where there is in the same
statute a particular enactment and also
a general one which, in its most
comprehensi!e sense, would include
what is embraced in the former, the
particular enactment must be
operati!e, and the general enactment
must be ta/en to a'ect only such cases
within its general language which are
not within the pro!ision of the
particular enactment"
F" )ection 2C, +rticle M>,,, disallows
foreign military bases, troops, or
facilities in the country, unless the
following conditions are suBciently
met, !i41
a" it must be under a treaty5
b" the treaty must be duly
concurred in by the )enate
and, when so re#uired by
congress, rati6ed b# a
!a"orit# o the 'otes cast
b# the &eo&le in a national
reerendu!5
c" and recogni4ed as a treaty by
the other contracting state"
9" +pplying the foregoing constitutional
pro!isions, a two&thirds !ote of all the
members of the )enate is clearly
re#uired so that the concurrence
contemplated by law may be !alidly
obtained and deemed present" 0hile it
is true that )ection 2C, +rticle M>,,,
re#uires, among other things, that the
treaty&the >;+, in the instant case&be
Hduly concurred in by the )enate,H it is
!ery true howe!er that said pro!ision
must be related and !iewed in light of
the clear mandate embodied in )ection
21, +rticle >,,, which in more speci-c
terms, re#uires that the concurrence of
a treaty, or international agreement, be
made by a two @thirds 'ote of all the
members of the )enate" ,ndeed,
)ection 2C, +rticle M>,,, must not be
treated in isolation to section 21,
+rticle, >,,"
8" This $ourt is of the -rm !iew that the
phrase Nreco*ni?ed as a treat#N
means that the other contracting party
accepts or ac/nowledges the
agreement as a treaty" To re#uire the
other contracting state, the 3)+ in this
case, to submit the >;+ to the 3)
)enate for concurrence pursuant to its
$onstitution, is to accord strict
meaning to the phrase"
2" Moreo!er, it is inconse#uential whether
the 3nited )tates treats the >;+ only as
an e.ecuti!e agreement because,
under international law, an e.ecuti!e
agreement is as binding as a treaty" To
be sure, as long as the >;+ possesses
the elements of an agreement under
international law, the said agreement is
to be ta/en e#ually as a treaty"
1G" + treaty, as de-ned by the >ienna
$on!ention on the =aw of Treaties, is
Han international instrument concluded
between )tates in written form and
go!erned by international law, whether
embodied in a single instrument or in
two or more related instruments, and
whate!er its particular designation"H
There are many other terms used for a
treaty or international agreement,
some of which are1 act, protocol,
agreement, compromis dT arbitrage,
concordat, con!ention, declaration,
e.change of notes, pact, statute,
charter and modus !i!endi" +ll writers,
from <ugo %rotius onward, ha!e
pointed out that the names or titles of
international agreements included
under the general term treaty ha!e
little or no legal signi-cance" $ertain
terms are useful, but they furnish little
more than mere description"
11" The records re!eal that the 3nited
)tates %o!ernment, through
+mbassador Thomas $" <ubbard, has
stated that the 3")" go!ernment has
fully committed to li!ing up to the
terms of the >;+" ;or as long as the
3")" accepts or ac/nowledges the >;+
as a treaty, and binds itself further to
comply with its obligations under the
treaty, there is indeed mar/ed
compliance with the mandate of the
$onstitution"
12" 0orth stressing too, is that the
rati-cation, by the President, of the >;+
and the concurrence of the )enate
should be ta/en as a clear an
une#ui!ocal e.pression of our nationTs
consent to be bound by said treaty,
with the concomitant duty to uphold
the obligations and responsibilities
embodied thereunder"
1A" Rati-cation is generally held to be an
e.ecuti!e act, underta/en by the head
of the state or of the go!ernment, as
the case may be, through which the
formal acceptance of the treaty is
proclaimed" + )tate may pro!ide in its
domestic legislation the process of
rati-cation of a treaty" The consent of
the )tate to be bound by a treaty is
e.pressed by rati-cation when1 (a) the
treaty pro!ides for such rati-cation, (b)
it is otherwise established that the
negotiating )tates agreed that
rati-cation should be re#uired, (c) the
representati!e of the )tate has signed
the treaty subect to rati-cation, or (d)
the intention of the )tate to sign the
treaty subect to rati-cation appears
from the full powers of its
representati!e, or was e.pressed
during the negotiation
1E" ,n our urisdiction, the &ower to
rati# is 'ested in the 3resident
and not, as co!!onl# belie'ed, in
the le*islature. The role o the
Senate is li!ited onl# to *i'in* or
withholdin* its consent, or
concurrence, to the rati6cation.
1C" +s a member of the family of nations,
the Philippines agrees to be bound by
generally accepted rules for the
conduct of its international relations"
0hile the international obligation
de!ol!es upon the state and not upon
any particular branch, institution, or
indi!idual member of its go!ernment,
the Philippines is nonetheless
responsible for !iolations committed by
any branch or subdi!ision of its
go!ernment or any oBcial thereof" +s
an integral part of the community of
nations, we are responsible to assure
that our go!ernment, $onstitution and
laws will carry out our international
obligation"E9 <ence, we cannot readily
plead the $onstitution as a con!enient
e.cuse for non&compliance with our
obligations, duties and responsibilities
under international law"
0o 4ra'e Abuse o 9iscretion
1" %ra!e abuse of discretion implies such
capricious and whimsical e.ercise of
udgment as is e#ui!alent to lac/ of
urisdiction, or, when the power is
e.ercised in an arbitrary or despotic
manner by reason of passion or
personal hostility, and it must be so
patent and gross as to amount to an
e!asion of positi!e duty enoined or to
act at all in contemplation of law
2" +s regards the power to enter into
treaties or international agreements,
the $onstitution !ests the same in the
President, subect only to the
concurrence of at least two&thirds !ote
of all the members of the )enate" ,n
this light, the negotiation of the >;+
and the subse#uent rati-cation of the
agreement are e.clusi!e acts which
pertain solely to the President, in the
lawful e.ercise of his !ast e.ecuti!e
and diplomatic powers granted him no
less than by the fundamental law itself"
,nto the -eld of negotiation the )enate
cannot intrude, and $ongress itself is
powerless to in!ade it" $onse#uently,
the acts or udgment calls of the
President in!ol!ing the >;+&speci-cally
the acts of rati-cation and entering
into a treaty and those necessary or
incidental to the e.ercise of such
principal acts & s#uarely fall within the
sphere of his constitutional powers and
thus, may not be !alidly struc/ down,
much less calibrated by this $ourt, in
the absence of clear showing of gra!e
abuse of power or discretion"
A" ,t is the $ourtTs considered !iew that
the President, in ratifying the >;+ and
in submitting the same to the )enate
for concurrence, acted within the
con-nes and limits of the powers
!ested in him by the $onstitution"
E" ,n -ne, absent any clear showing of
gra!e abuse of discretion on the part of
respondents, this $ourt& as the -nal
arbiter of legal contro!ersies and
staunch sentinel of the rights of the
people & is then without power to
conduct an incursion and meddle with
such a'airs purely e.ecuti!e and
legislati!e in character and nature" ;or
the $onstitution no less, maps out the
distinct boundaries and limits the
metes and bounds within which each of
the three political branches of
go!ernment may e.ercise the powers
e.clusi!ely and essentially conferred to
it by law"
C" 0herefore, the instant petitions are
hereby :,)M,))6:
Bi! '. -;ecuti'e Secretar#
4.5. 0o. 1)144)
A&ril 11, 2002
<acts2
1" 7n *anuary 2GG2, personnel from the
armed forces of 3)+ started arri!ing in
Mindanao to ta/e part in QBali/atan G2&
1N which is the largest combined
training operations in!ol!ing ;ilipino
and +merican troops pursuant to the
Mutual :efense Treaty entered into by
both parties in 12C1"
2" Prior to the year 2GG2, the last
HBali/atanH was held in 122C" This was
due to the paucity of any formal
agreement relati!e to the treatment of
3nited )tates personnel !isiting the
Philippines" ,n the meantime, the
respecti!e go!ernments of the two
countries agreed to hold oint e.ercises
on a reduced scale" The lac/ of
consensus was e!entually cured when
the two nations concluded the >isiting
;orces +greement (> ;+) in 1222"
A" The entry of +merican troops into
Philippine soil is pro.imately rooted in
the international anti&terrorism
campaign declared by President
%eorge 0" Bush in reaction to the
tragic e!ents that occurred on
)eptember 11, 2GG1"
E" 7n ;eb" 1, 2GG2, petitioners =im and
6rsando -led this petition for certiorari
and prohibition, attac/ing the
constitutionality of the oint e.ercise"
They were oined subse#uently by
)+(=+D+) and P+RT,:7 (%
M+(%%+%+0+, both party&,ist
organi4ations, who -led a petition&in&
inter!ention on ;eb" 11, 2GG2"
Issue2
1" 07( <6 +B3 )+UU+; B+(:,T) ,(
B+),=+( $7()T,T3T6 +( 6MT6R(+=
+RM6: ;7R$6 T<+T <+) )3B*6$T T<6
P<,=,PP,(6) T7 +( +RM6: 6MT6R(+=
+TT+$D T7 0+RR+(T 3")" M,=,T+RU
+)),)T+($6 3(:6R T<6 M:T 7; 12C1
2" 07( T<6 >;+ +3T<7R,S6 +M6R,$+(
)7=:,6R) T7 6(%+%6 ,( $7MB+T
7P6R+T,7() ,( P<,=,PP,(6 T6RR,T7RU,
(7T 6>6( T7 ;,R6 B+$D Q,; ;,R6:
3P7(N
8eld2
1" 0hile the petitioners do not ha!e the
re#uisite standing, the same has been
rela.ed by the )$ because of the
transcendental importance of the
issue" The $ourt may rela. the
standing re#uirements and allow a suit
to prosper e!en where there is no
direct inury to the party claiming the
right of udicial re!iew"
2" The holding of HBali/atan G2&1H must
be studied in the framewor/ of the
treaty antecedents to which the
Philippines bound itself" The -rst of
these is the Mutual :efense Treaty
(M:T, for bre!ity)" The M:T has been
described as the HcoreH of the defense
relationship between the Philippines
and its traditional ally, the 3")" ,ts aim
is to enhance the strategic and
technological capabilities of our armed
forces through oint training with its
+merican counterparts5 the HBali/atanH
is the largest such training e.ercise
directly supporting the M:TOs
obecti!es" ,t is this treaty to which the
>;+ ad!erts and the obligations
thereunder which it see/s to reaBrm"
As to 7.0 E,ali%atan 02@1 is co'ered b#
the V<AF
1" The >;+ permits 3")" personnel to
engage, on an impermanent basis, in
Hacti!ities,H the e.act meaning of which
was left unde-ned" The e.pression is
ambiguous, permitting a wide scope of
underta/ings subect only to the
appro!al of the Philippine go!ernment"
The sole encumbrance placed on its
de-nition is couched in the negati!e, in
that 3")" personnel must Habstain from
any acti!ity inconsistent with the spirit
of this agreement, and in particular,
from any political acti!ity"H +ll other
acti!ities, in other words, are fair
game"
2" >ienna $on!ention on the =aw of
Treaties, +rt" A1 and A2 pro!ides1
Section >2 Inter&retation o Treaties
Art. >12 4eneral 5ule o Inter&retation
1" + treaty shall be interpreted in good
faith ill accordance with the ordinary
meaning to be gi!en to the tenus of the
treaty in their conte.t and in the light
of its obect and purpose"
2" The conte.t for the purpose of the
interpretation of a treaty shall
comprise, in addition to the te.t,
including its preamble and anne.es1
a" any agreement relating to the
treaty which was made
between all the parties in
conne.ion with the conclusion
of the treaty5
b" any instrument which was
made by one or more parties in
conne.ion with the conclusion
of the treaty and accepted by
the other parties as an
instrument related to the
party "
A" There shall be ta/en into account,
together with the conte.t1
a" any subse#uent agreement
between the parties regarding
the interpretation of the treaty
or the application of its
pro!isions5
b" any subse#uent practice in the
application of the treaty which
establishes the agreement of
the parties regarding its
interpretation5
c" any rele!ant rules of
international law applicable in
the relations between the
parties"
E" + special meaning shall be gi!en to a
term if it is established that the parties
so intended"
Art. >22 Su&&le!entar# !eans o
inter&retation
Recourse may be had to supplementary
means of interpretation, including the
preparatory wor/ of the treaty and the
circumstances of its conclusion, in order to
con-rm the meaning resulting from the
application of article A1, or to determine
the meaning when the interpretation
according to article A11
a" lea!es the meaning ambiguous
or obscure5 or
b" leads to a result which is
manifestly absurd
unreasonable"
A" ,t is clear from the foregoing that the
cardinal rule of interpretation must
in!ol!e an e.amination of the te.t,
which is presumed to !erbali4e the
partiesO intentions" The $on!ention
li/ewise dictates what may be used as
aids to deduce the meaning of terms,
which it refers to as the conte.t of the
treaty, as well as other elements may
be ta/en into account alongside the
aforesaid conte.t"
E" The T.5 ri*htl# all within the
conte;t o the V<A
C" The term Qacti!itiesN was made
ambiguous to gi!e the parties a certain
leeway in negotiation" +s concei!ed,
the oint e.ercises may include training
on new techni#ues of patrol and
sur!eillance to protect the nationOs
marine resources, sea search&and&
rescue operations to assist !essels in
distress, disaster relief operations, ci!ic
action proects such as the building of
school houses, medical and
humanitarian missions, and the li/e"
As to 7.0 A!erican troo&s !a# en*a*e
in co!bat
1" The T7R are e.plicit enough" Par" 8 of
)ec" , stipulates that 3) e.ercise
participants may not engage in combat
He.cept in self&defense"H
2" HBali/atan G2&1H is actually a war
principally conducted by the 3nited
)tates go!ernment, and that the
pro!ision on self&defense ser!es only as
camouKage to conceal the true nature
of the e.ercise" + clear pronouncement
on this matter thereby becomes
crucial"
A" ,n our considered opinion, neither the
M:T nor the > ;+ allow foreign troops
to engage in an o'ensi!e war on
Philippine territory" 0e bear in mind the
salutary proscription stated in the
$harter of the 3nited (ations, to wit1
Article 22 The 7rgani4ation and its Members,
in pursuit of the Purposes stated in +rticle 1,
shall act in accordance with the following
Principles"
E" +ll 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
3nited (ations"
C" The present $onstitution contains /ey
pro!isions useful in determining the
e.tent to which foreign military troops
are allowed in Philippine territory" Thus,
in the :eclaration of Principles and
)tate Policies, it is pro!ided that1
)6$" 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, e#uality, ustice,
freedom, cooperation, and amity with all
nations"
)6$" 9" The )tate shall pursue an independent
foreign policy" ,n its relations with other states
the paramount consideration shall be national
so!ereignty, territorial integrity, national
interest, and the right to self& determination"
)6$" 8" The Philippines, consistent with the
national interest, adopts and pursues a policy
of freedom from nuclear weapons in the
country"
F" ;rom the perspecti!e of public
international law, a treaty is fa!ored
o!er municipal law pursuant to the
principle of pacta sunt ser!anda"
<ence, HIeJ!ery treaty in force is
binding upon the parties to it and must
be performed by them in good faith"H1E
;urther, a party to a treaty is not
allowed to Hin!o/e the pro!isions of its
internal law as usti-cation for its
failure to perform a treaty"H
9" 7ur $onstitution espouses the
opposing !iew" 0itness our urisdiction
as , stated in section C of +rticle >,,,1
8" The )upreme $ourt shall ha!e the
following powers1
(2) Re!iew, re!ise, re!erse, modify, or aBrm on
appeal or certiorari, as the law or the Rules of
$ourt may pro!ide, -nal udgments and order
of lower courts in1
(+) +ll cases in which the constitutionality
or !alidity of any treaty, international
or e.ecuti!e agreement, law,
presidential decree, proclamation,
order, instruction, ordinance, or
regulation is in #uestion"
2" 0<6R6;7R6, the petition and the
petition&in&inter!ention are hereby
:,)M,))6: without preudice to the
-ling of a new petition suBcient in form
and substance in the proper Regional
Trial $ourt"
3i!entel '. -;ecuti'e Secretar#
4.5. 0o. 1)8088
Cul# A, 200)
<acts2
1" The Rome )tatute established the
,nternational $riminal $ourt which
Hshall ha!e the power to e.ercise its
urisdiction o!er persons for the most
serious crimes of international concern
and shall be complementary to the
national criminal urisdictions"H
2" ,ts urisdiction co!ers the crime of
genocide, crimes against humanity,
war crimes and the crime of aggression
as de-ned in the )tatute"
A" The )tatute was opened for signature
by all states in Rome on *uly 19, 1228
and had remained open for signature
until :ecember A1, 2GGG at the 3(
<ead#uarters in (ew Uor/"
E" The Philippines signed the )tatute on
:ecember 28, 2GGG through $harge dT
+'airs 6nri#ue +" Manalo of the
Philippine Mission to the 3nited
(ations" ,ts pro!isions, howe!er,
re#uire that it be subect to rati-cation,
acceptance or appro!al of the
signatory states"
C" Petitioners -led the instant petition to
compel the respondents R the 7Bce of
the 6.ecuti!e )ecretary and the :;+ R
to transmit the signed te.t of the treaty
to the )enate for rati-cation
F" Petitioners in!o/e the >ienna
$on!ention (+rt" 18 to be e.act) on the
=aw of Treaties enoining the states to
refrain from acts which would defeat
the obect and purpose of a treaty
when they ha!e signed the treaty prior
to rati-cation unless they ha!e made
their intention clear not to become
parties to the treaty"
Issue2
7.0 the -;ecuti'e Secretar# and the 9<A
ha'e a !inisterial dut# to trans!it to the
Senate the co&# o the 5o!e Statute
si*ned b# a !e!ber o the 3hili&&ine
$ission to the G0 e'en without the
si*nature o the 3resident
8eld2
As to locus standi
1" + petition for mandamus must ha!e
been instituted by a party aggrie!ed by
the alleged inaction of any tribunal,
corporation, board or person which
unlawfully e.cludes said party from the
enoyment of a legal right" The
petitioner in e!ery case must therefore
be an aggrie!ed party in the sense that
he possesses a clear legal right to be
enforced and a direct interest in the
duty or act to be performed"
2" +mong the petitioners, only )enator
Pimentel has the legal standing to -le
the suit"
As to substanti'e issue
1. 0e rule in the negati!e
2. The President is !ested with the
authority to deal with foreign states
and go!ernments, e.tend or withhold
recognition, maintain diplomatic
relations, enter into treaties, and
otherwise transact the business of
foreign relations" ,n the realm of treaty&
ma/ing, the President has the sole
authority to negotiate with other
states"
>. 0hile the President has the sole
authority to negotiate and enter into
treaties, the $onstitution pro!ides a
limitation which is embodied in +rt" >,,,
)ec" 21
4. 3ur&ose o the li!itation2 to pro!ide
a chec/ on the e.ecuti!e in the -eld of
foreign relations"
). The usual steps in the treaty&ma/ing
process are1 (1) negotiation, (2)
signature, (A) rati-cation, and (E)
e.change of the instruments of
rati-cation" The treaty may then be
submitted for registration and
publication under the 3"(" $harter,
although this step is not essential to
the !alidity of the agreement as
between the parties"
A. 0e*otiation may be underta/en
directly by the head of state but he
now usually assigns this tas/ to his
authori4ed representati!es" These
representati!es are pro!ided with
credentials /nown as full powers, which
they e.hibit to the other negotiators at
the start of the formal discussions" ,t is
standard practice for one of the parties
to submit a draft of the proposed treaty
which, together with the counter&
proposals, becomes the basis of the
subse#uent negotiations" The
negotiations may be brief or
protracted, depending on the issues
in!ol!ed, and may e!en HcollapseH in
case the parties are unable to come to
an agreement on the points under
consideration"
7. ,f and when the negotiators -nally
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 symboli4ing the good
faith of the parties5 but, signi-cantly, it
does not indicate the 6nal consent
o the state in cases where
rati6cation o the treat# is
re+uired. The document is ordinarily
signed in accordance with the alternat,
that is, each of the se!eral negotiators
is allowed to sign -rst on the copy
which he will bring home to his own
state"
8. 5ati6cation, which is the ne.t step, is
the formal act by which a state
con-rms and accepts the pro!isions of
a treaty concluded by its
representati!es" The &ur&ose o
rati6cation is to enable the
contractin* states to e;a!ine the
treat# !ore closel# and to *i'e
the! an o&&ortunit# to reuse to
be bound b# it should the# 6nd it
ini!ical to their interests. It is or
this reason that !ost treaties are
!ade sub"ect to the scrutin# and
consent o a de&art!ent o the
*o'ern!ent other than that which
ne*otiated the!.
9. The last step in the treaty&ma/ing
process is the e;chan*e o the
instru!ents o rati6cation, which
usually also signi-es the e'ecti!ity of
the treaty unless a di'erent date has
been agreed upon by the parties"
0here rati-cation is dispensed with
and no e'ecti!ity clause is embodied in
the treaty, the instrument is deemed
e'ecti!e upon its signature"
10. -... 4)9, Sec. 72
S-C. 7. 9o!estic 5e+uire!ents or the
-ntr# into <orce o a Treat# or an
-;ecuti'e A*ree!ent : The domestic
re#uirements for the entry into force of a treaty
or an e.ecuti!e agreement, or any amendment
thereto, shall be as follows1
$" 6.ecuti!e +greements"
iii" +ll e.ecuti!e agreements shall be
transmitted to the :epartment of
;oreign +'airs after their signing
for the preparation of the
rati-cation papers" The transmittal
shall include the highlights of the
agreements and the bene-ts which
will accrue to the Philippines
arising from them"
i!" The :epartment of ;oreign +'airs,
pursuant to the endorsement by
the concerned agency, shall
transmit the agreements to the
President of the Philippines for his
rati-cation" The original signed
instrument of rati-cation shall then
be returned to the :epartment of
;oreign +'airs for appropriate
action"
:" Treaties"
iii" +ll treaties, regardless of their
designation, shall comply with the
re#uirements pro!ided in sub&
paragraph 1 and 2, item +
(6.ecuti!e +greements) of this
)ection" ,n addition, the
:epartment of ;oreign +'airs shall
submit the treaties to the )enate of
the Philippines for concurrence in
the rati-cation by the President" +
certi-ed true copy of the treaties,
in such numbers as may be
re#uired by the )enate, together
with a certi-ed true copy of the
rati-cation instrument, shall
accompany the submission of the
treaties to the )enate"
i!" 3pon receipt of the concurrence by
the )enate, the :epartment of
;oreign +'airs shall comply with
the pro!ision of the treaties in
e'ecting their entry into force"
11. ,t should be emphasi4ed that under our
$onstitution, the power to ratify is
!ested in the President, subect to the
concurrence of the )enate" The role of
the )enate, howe!er, is limited only to
gi!ing or withholding its consent, or
concurrence, to the rati-cation"
12. <ence, it is within the authority of the
President to refuse to submit a treaty
to the )enate or, ha!ing secured its
consent for its rati-cation, refuse to
ratify it" +lthough the refusal of a state
to ratify a treaty which has been signed
in its behalf is a serious step that
should not be ta/en lightly, such
decision is within the competence of
the President alone, which cannot be
encroached by this $ourt !ia a writ of
mandamus"
1>. This $ourt has no urisdiction o!er
actions see/ing to enoin the President
in the performance of his oBcial duties"
The $ourt, therefore, cannot issue the
writ of mandamus prayed for by the
petitioners as it is beyond its
urisdiction to compel the e.ecuti!e
branch of the go!ernment to transmit
the signed te.t of Rome )tatute to the
)enate"
14. ,( >,60 0<6R67;, the petition is
:,)M,))6:"
Constantino '. Cuisia and 9el 5osario
4.5. 0o. 10A0A4
.ctober 1>, 200)
<acts2
1" Petitioners spouses Renato
$onstantino, *r" and =ourdes
$onstantino and their minor children
Renato Redentor, +nna Mari/a =issa,
(ina 6lissa, ;ilomeno )ta" +na ,,,, and
the ;reedom from :ebt $oalition
2" Philippine $omprehensi!e ;inancing
Program for 1222 was the culmination
of e'orts that began during the term of
former President $ora4on +#uino to
manage the countryTs e.ternal debt
problem through a negotiation&oriented
debt strategy in!ol!ing cooperation
and negotiation with foreign creditors"
A" Pursuant to this strategy, the +#uino
go!ernment entered into three
restructuring agreements with
representati!es of foreign creditor
go!ernments during the period of 128F
to 1221" :uring the same period, three
similarly&oriented restructuring
agreements were e.ecuted with
commercial ban/ creditors"
E" 7n 28 ;ebruary 1222, the Philippine
:ebt (egotiating Team, chaired by
respondent Pelae4, negotiated an
agreement with the countryTs Ban/
+d!isory $ommittee, representing all
foreign commercial ban/ creditors, on
the ;inancing Program which
respondents characteri4ed as Ha multi&
option -nancing pac/age"H
C" The Program was scheduled to be
e.ecuted on 2E *uly 1222 by
respondents in behalf of the Republic"
(onetheless, petitioners alleged that
e!en prior to the e.ecution of the
Program respondents had already
implemented its Hbuybac/ componentH
when on 1C May 1222, the Philippines
bought bac/ P1"2F billion of e.ternal
debts pursuant to the Program"
F" The petition sought to enoin the
rati-cation of the Program, but the
$ourt did not issue any inuncti!e relief"
<ence, it came to pass that the
Program was signed in =ondon as
scheduled"
9" The petition still has to be resol!ed
though as petitioners see/ the
annulment Hof any and all acts done by
respondents, their subordinates and
any other public oBcer pursuant to the
agreement and program in #uestion"H
6!en after the signing of the Program,
respondents themsel!es ac/nowledged
that the remaining principal obecti!e
of the petition is to set aside
respondentsT actions"
8" Petitioners characteri4e the ;inancing
Program as a pac/age o'ered to the
countryTs foreign creditors consisting of
two debt&relief options"
2" The -rst option was a cash buybac/ of
portions of the Philippine foreign debt
at a discount"
1G" The second option allowed creditors to
con!ert e.isting Philippine debt
instruments into any of three /inds of
bonds@securities1 (1) new money bonds
with a -!e&year grace period and 19
years -nal maturity, the purchase of
which would allow the creditors to
con!ert their eligible debt papers into
bearer bonds with the same terms5 (2)
interest&reduction bonds with a
maturity of 2C years5 and (A) principal&
collaterali4ed interest&reduction bonds
with a maturity of 2C years"
11" 7n the other hand, according to
respondents the ;inancing Program
would co!er about 3")" VC"A billion of
foreign commercial debts and it was
e.pected to deal comprehensi!ely with
the commercial ban/ debt problem of
the country and pa!e the way for the
countryTs access to capital mar/ets"
They add that the Program carried
three basic options from which foreign
ban/ lenders could choose, namely1 to
lend money, to e.change e.isting
restructured Philippine debts with an
interest reduction bond5 or to e.change
the same Philippine debts with a
principal collaterali4ed interest
reduction bond"
Issues2
1. 7.0 the debt@relie contracts
entered into &ursuant to the
<inancin* 3ro*ra! as be#ond the
&owers *ranted to the 3resident
under Sec. 20
2. 7.0 onl# the 3resident who !a#
e;ercise the &ower to enter into
these contracts and such &ower
!a# not be dele*ated to
res&ondents
A" 7.0 the <inancin* 3ro*ra!
'iolates se'eral constitutional
&olicies and that contracts
e;ecuted or to be e;ecuted
&ursuant thereto were or will be
done b# res&ondents with *ra'e
abuse o discretion a!ountin* to
lac% or e;cess o "urisdiction
8eld2
1" The $ourt set aside the legal standing
of petitioners in so far as the
determination of the issues presented
will ha!e a bearing on the state of the
countryTs economy, its international
-nancial ratings, and perhaps e!en the
;ilipinosT way of life" )een in this light,
the transcendental importance of the
issues herein presented cannot be
doubted"
2" Petitioners ha!e no real basis to fret
o!er a possible wai!er of the right to
repudiate !oid contracts" 6!en
assuming that spurious loans had
become the subect of debt&relief
contracts, respondents une#ui!ocally
assert that the Republic did not wai!e
any right to repudiate !oid or
fraudulently contracted loans, it ha!ing
incorporated a Hno&wai!erH clause in
the agreements"
Substanti'e Issues
The Sco&e o Art. VII, Sec. 20
1" Petitioners submit that the buybac/
and bond&con!ersion schemes do not
constitute the loan HcontractH or
HguaranteeH contemplated in the
$onstitution and are conse#uently
prohibited" +rt" >,,, )ec" 2G1
The President may contract or guarantee
foreign loans in behalf of the Republic of the
Philippines with the prior concurrence of the
Monetary Board and subect to such limitations
as may be pro!ided under law" The Monetary
Board shall, within thirty days from the end of
e!ery #uarter of the calendar year, submit to
the $ongress a complete report of its decisions
on applications for loans to be contracted or
guaranteed by the go!ernment or go!ernment&
owned and controlled corporations which would
ha!e the e'ect of increasing the foreign debt,
and containing other matters as may be
pro!ided by law"
+" 7n Bond $on!ersion
1" Bonds are interest&bearing or
discounted go!ernment or corporate
securities that obligate the issuer to
pay the bondholder a speci-ed sum of
money, usually at speci-c inter!als,
and to repay the principal amount of
the loan at maturity"
2" +n in!estor who purchases a bond is
lending money to the issuer, and the
bond represents the issuerTs
contractual promise to pay interest and
repay principal according to speci-c
terms" + short&term bond is often called
a note"
A" The language of the $onstitution is
simple and clear as it is broad" ,t allows
the President to contract and
guarantee foreign loans" ,t ma/es no
prohibition on the issuance of certain
/inds of loans or distinctions as to
which /inds of debt instruments are
more onerous than others" This $ourt
may not ascribe to the $onstitution
meanings and restrictions that would
unduly burden the powers of the
President" The plain, clear and
unambiguous language of the
$onstitution should be construed in a
sense that will allow the full e.ercise of
the power pro!ided therein" ,t would be
the worst /ind of udicial legislation if
the courts were to misconstrue and
change the meaning of the organic act"
E" The only restriction that the
$onstitution pro!ides, aside from the
prior concurrence of the Monetary
Board, is that the loans must be
subect to limitations pro!ided by law"
,n this regard, we note that Republic
+ct (R"+") (o" 2EC as amended by Pres"
:ecree (P":") (o" 1E2, s" 129A, entitled
+n +ct +uthori4ing the )ecretary of
;inance to Borrow to Meet Public
6.penditures +uthori4ed by =aw, and
for 7ther Purposes, allows foreign loans
to be contracted in the form of, inter
alia, bonds" )ec" 1 pro!ides1
,n order to meet public e.penditures
authori4ed by law or to pro!ide for the
purchase, redemption, or refunding of
any obligations, either direct or
guaranteed of the Philippine
%o!ernment, the )ecretary of ;inance,
with the appro!al of the President of
the Philippines, after consultation with
the Monetary Board, is authori4ed to
borrow from time to time on the credit
of the Republic of the Philippines such
sum or sums as in his udgment may
be necessary, and to issue therefor
e!idences of indebtedness of the
Philippine %o!ernment"H
)uch e!idences of indebtedness may
be of the following types1
" " " "
c" Treasury bonds, notes,
securities or other e!idences of
indebtedness ha!ing maturities
of one year or more but not
e.ceeding twenty&-!e years
from the date of issue"
C" The negotiable character of the subect
bonds is not mutually e.clusi!e with
the RepublicTs freedom to negotiate
with bondholders for the re!ision of the
terms of the debt" Moreo!er, the
securities mar/et pro!ides some
Ke.ibility?if the Philippines wants to
pay in ad!ance, it can buy out its
bonds in the mar/et5 if interest rates go
down but the Philippines does not ha!e
money to retire the bonds, it can
replace the old bonds with new ones5 if
it defaults on the bonds, the
bondholders shall organi4e and bring
about a re&negotiation or settlement" ,n
fact, se!eral countries ha!e
restructured their so!ereign bonds in
!iew either of inability and@or
unwillingness to pay the indebtedness"
Petitioners ha!e not presented a
plausible reason that would preclude
the Philippines from acting in a similar
fashion, should it so opt"
F" This theory may e!en be dismissed in a
perfunctory manner since petitioners
are merely e.pecting that the
Philippines would opt to restructure the
bonds but with the negotiable
character of the bonds, would be
pre!ented from so doing" This is a
contingency which petitioners do not
assert as ha!ing come to pass or e!en
imminent" $onsummated acts of the
e.ecuti!e cannot be struc/ down by
this $ourt merely on the basis of
petitionersT anticipatory ca!ils"
B" 7n the Buybac/ )cheme
1" ,t is true that in the balance of power
between the three branches of
go!ernment, it is $ongress that
manages the countryTs co'ers by
!irtue of its ta.ing and spending
powers" <owe!er, the law&ma/ing
authority has promulgated a law
ordaining an automatic appropriations
pro!ision for debt ser!icing by !irtue of
which the President is empowered to
e.ecute debt payments without the
need for further appropriations"
2" :ebt ser!ice is not included in the
%eneral +ppropriation +ct, since
authori4ation therefor already e.ists
under R+ (os" E8FG and 2EC, as
amended, and P: 12F9" Precisely in
the light of this subsisting authori4ation
as embodied in said Republic +cts and
P: for debt ser!ice, $ongress does not
concern itself with details for
implementation by the 6.ecuti!e, but
largely with annual le!els and appro!al
thereof upon due deliberations as part
of the whole obligation program for the
year" 3pon such appro!al, $ongress
has spo/en and cannot be said to ha!e
delegated its wisdom to the 6.ecuti!e,
on whose part lies the implementation
or e.ecution of the legislati!e wisdom"
)ec" 2 of R"+" 2EG pro!ides1
)ec" 2" The )ecretary of ;inance shall cause to
be paid out of any moneys in the (ational
Treasury not otherwise appropriated, or from
any sin/ing funds pro!ided for the purpose by
law, any interest falling due, or accruing, on
any portion of the public debt authori4ed by
law" <e shall also cause to be paid out of any
such money, or from any such sin/ing funds
the principal amount of any obligations which
ha!e matured, or which ha!e been called for
redemption or for which redemption has been
demanded in accordance with terms prescribed
by him prior to date of issue1 Pro!ided,
howe!er, That he may, if he so chooses and if
the holder is willing, e.change any such
obligation with any other direct or guaranteed
obligation or obligations of the Philippine
%o!ernment of e#ui!alent !alue" ,n the case of
interest&bearing obligations, he shall pay not
less than their face !alue5 in the case of
obligations issued at a discount he shall pay
the face !alue at maturity5 or, if redeemed
prior to maturity, such portion of the face !alue
as is prescribed by the terms and conditions
under which such obligations were originally
issued"
A" Buybac/ is a necessary power which
springs from the grant of the foreign
borrowing power" 6!ery statute is
understood, by implication, to contain
all such pro!isions as may be
necessary to e'ectuate its obect and
purpose, or to ma/e e'ecti!e rights,
powers, pri!ileges or urisdiction which
it grants, including all such collateral
and subsidiary conse#uences as may
be fairly and logically inferred from its
terms" The President is not empowered
to borrow money from foreign ban/s
and go!ernments on the credit of the
Republic only to be left bereft of
authority to implement the payment
despite appropriations therefor"
E" 6!en petitioners concede that HItJhe
$onstitution, as a rule, does not
enumerate?let alone enumerate all?the
acts which the President (or any other
public oBcer) may not do,H and HItJhe
fact that the $onstitution does not
e.plicitly bar the President from
e.ercising a power does not mean that
he or she does not ha!e that power"H ,t
is inescapable from the standpoint of
reason and necessity that the authority
to contract foreign loans and
guarantees without restrictions on
payment or manner thereof coupled
with the a!ailability of the
corresponding appropriations, must
include the power to e'ect payments
or to ma/e payments una!ailing by
either restructuring the loans or e!en
refusing to ma/e any payment
altogether"
C" More fundamentally, when ta/en in the
conte.t of so!ereign debts, a buybac/
is simply the purchase by the so!ereign
issuer of its own debts at a discount"
$learly then, the obection to the
!alidity of the buybac/ scheme is
without basis"
9ele*ation o 3ower
1" The e!ident e.igency of ha!ing the
)ecretary of ;inance implement the
decision of the President to e.ecute the
debt&relief contracts is made manifest
by the fact that the process of
establishing and e.ecuting a strategy
for managing the go!ernmentTs debt is
deep within the realm of the e.pertise
of the :epartment of ;inance, primed
as it is to raise the re#uired amount of
funding, achie!e its ris/ and cost
obecti!es, and meet any other
so!ereign debt management goals"
2" +s it was, the bac/drop consisted of a
maor policy determination made by
then President +#uino that so!ereign
debts ha!e to be respected and the
concomitant reality that the Philippines
did not ha!e enough funds to pay the
debts" ,ne!itably, it fell upon the
)ecretary of ;inance, as the alter ego
of the President regarding Hthe sound
and eBcient management of the
-nancial resources of the %o!ernment,H
to formulate a scheme for the
implementation of the policy publicly
e.pressed by the President herself"
A" 0ithal, at -rst blush, the argument of
rati-cation may seem plausible under
the circumstances, it should be
obser!ed that there are certain acts
which, by their !ery nature, cannot be
!alidated by subse#uent appro!al or
rati-cation by the President" There are
certain constitutional powers and
prerogati!es of the $hief 6.ecuti!e of
the (ation which must be e.ercised by
him in person and no amount of
appro!al or rati-cation will !alidate the
e.ercise of any of those powers by any
other person" )uch, for instance, in his
&ower to sus&end the writ o
habeas cor&us and &roclai!
!artial law (P+R" A, )6$" 11, +rt" >,,)
and the e;ercise b# hi! o the
beni*n &rero*ati'e o !erc# (par" F,
sec" 11, idem)"
E" ,t bears emphasis that apart from the
$onstitution, there is also a rele!ant
statute, R"+" (o" 2EC, that establishes
the parameters by which the alter ego
may act in behalf of the President with
respect to the borrowing power" This
law e.pressly pro!ides that the
)ecretary of ;inance may enter into
foreign borrowing contracts" This law
neither amends nor goes contrary to
the $onstitution but merely
implements the subect pro!ision in a
manner consistent with the structure of
the 6.ecuti!e :epartment and the alter
ego doctine" ,n this regard,
respondents ha!e declared that they
ha!e followed the restrictions pro!ided
under R"+" (o" 2EC, which include the
re#uisite presidential authori4ation and
which, in the absence of proof and
e!en allegation to the contrary, should
be regarded in a fashion congruent
with the presumption of regularity
bestowed on acts done by public
oBcials"
C" )ec" 1 of R"+" 2EC empowers the )ec"
of ;inance with the appro!al of the
President and after consultation of the
Monetary Board, Qto borrow from time
to time on the credit of the Republic of
the Philippines such sum or sums as in
his udgment may be necessary, and to
issue therefor e!idences of
indebtedness of the Philippine
%o!ernmentN
F" The $onstitution allocates to the
President the e.ercise of the foreign
borrowing power Qsubect to such
limitations as may be pro!ided under
the lawN " )aid presidential prerogati!e
may be e.ercised by the PresidentTs
alter ego, who in this case is the )ec" of
;inance
Conclusion
1" The raison dT etre of the ;inancing
Program is to manage debts incurred
by the Philippines in a manner that will
lessen the burden on the ;ilipino
ta.payers?thus the term Hdebt&relief
agreements"H The measures obected
to by petitioners were not aimed at
incurring more debts but at terminating
pre&e.isting debts and were bac/ed by
the /now&how of the countryTs
economic managers as aBrmed by
third party empirical analysis"
2" That the means employed to achie!e
the goal of debt&relief do not sit well
with petitioners is beyond the power of
this $ourt to remedy" The e.ercise of
the power of udicial re!iew is merely
to chec/?not supplant?the 6.ecuti!e,
or to simply ascertain whether he has
gone beyond the constitutional limits of
his urisdiction but not to e.ercise the
power !ested in him or to determine
the wisdom of his act"98 ,n cases
where the main purpose is to nullify
go!ernmental acts whether as
unconstitutional or done with gra!e
abuse of discretion, there is a strong
presumption in fa!or of the !alidity of
the assailed acts" The hea!y onus is in
on petitioners to o!ercome the
presumption of regularity"
A" 0e -nd that petitioners ha!e not
suBciently established any basis for
the $ourt to declare the acts of
respondents as unconstitutional"
E" 0herefore, the petition is hereby
:,)M,))6:
Aba#a '. -bdane
4.5. 0o. 1A7919
<ebruar# 14, 2007
<acts2
1" Based on the 6.change of (otes dated
:ecember 29, 1222, the %o!ernment
of *apan and the %o!ernment of the
Philippines, through their respecti!e
representati!es, namely, Mr" Uoshihisa
+ra, +mbassador 6.traordinary and
Plenipotentiary of *apan to the Republic
of the Philippines, and then )ecretary
of ;oreign +'airs :omingo =" )ia4on,
ha!e reached an understanding
concerning *apanese loans to be
e.tended to the Philippines" These
loans were aimed at promoting our
countryTs economic stabili4ation and
de!elopment e'orts"
2" The 6.change of (otes consisted of
two documents1 (1) a =etter from the
%o!ernment of *apan, signed by
+mbassador +ra, addressed to then
)ecretary of ;oreign +'airs )ia4on,
con-rming the understanding reached
between the two go!ernments
concerning the loans to be e.tended by
the %o!ernment of *apan to the
Philippines5 and (2) a document
denominated as Records of :iscussion
where the salient terms of the loans as
set forth by the %o!ernment of *apan,
through the *apanese delegation, were
reiterated and the said terms were
accepted by the Philippine delegation"
Both +mbassador +ra and then
)ecretary )ia4on signed the Records of
:iscussion as representati!es of the
%o!ernment of *apan and Philippine
%o!ernment, respecti!ely"
A" Thus, in accordance with the
agreement reached by the %o!ernment
of *apan and the Philippine
%o!ernment, as e.pressed in the
6.change of (otes between the
representati!es of the two
go!ernments, the Philippines obtained
from and was granted a loan by the
*B,$" =oan +greement (o" P<&P2GE
dated :ecember 28, 1222"
E" 3nder the terms and conditions of =oan
+greement (o" P<&P2GE, *B,$ agreed to
lend the Philippine %o!ernment an
amount not e.ceeding ;,;T66( B,==,7(
T<R66 <3(:R6: 6,%<TU&;73R
M,==,7( *apanese Uen (U
1C,A8E,GGG,GGG) as principal for the
implementation of the +rterial Road
=in/s :e!elopment Proect (Phase ,>)
on the terms and conditions set forth in
the =oan +greement and in accordance
with the rele!ant laws and regulations
of *apan"
C" +s mentioned earlier, the proceeds of
=oan +greement (o" P<&P2GE was to be
used to -nance the +rterial Road =in/s
:e!elopment Proect (Phase ,>), of
which the Catanduanes
Circu!erential 5oad was a part"
F" :P0< caused the publication for the
Qin!itation to pre#ualify to bidN" 2A
foreign and local contractors
responded, 8 were considered
#uali-ed, 1 withdrew"
9" +fter the bidding process, the B+$ of
:P0< issued the assailed Resolution
declaring Pri!ate respondent $hina
Road and Bridge $orp as the winning
bidder" + contract of agreement was
entered into by :P0< and $hina Road"
Issue2
8eld2
1" ,n addition to these laws, R+ E8FG, as
amended, must be mentioned as
)ection E thereof pro!ides that HIiJn the
contracting of any loan, credit or
indebtedness under this +ct, the
President of the Philippines may, when
necessary, agree to wai!e or modify
the application of any law granting
preferences or imposing restrictions on
international competiti!e bidding"
Pro!ided, -nally, That the method and
procedure in the comparison of bids
shall be the subect of agreement
between the Philippine %o!ernment
and the lending institution"H
2" R"+" 218E cannot be applied
retroacti!ely to go!ern the
procurement process relati!e to a
proect that was commenced e!en
before the law too/ e'ect"
A" 3nder 67 EG, the award of the contract
to $hina Road was !alid1
E" )ection 2C of 67 EG pro!ides that
HItJhe appro!ed budget of the contract
shall be the upper limit or ceiling of the
bid price" Bid prices which e.ceed this
ceiling shall be dis#uali-ed outright
from further participating in the
bidding" There shall be no lower limit to
the amount of the award" . . .H ,t
should be obser!ed that this te.t is
almost similar to the wording of )ection
A1 of R+ 218E, relied upon by the
petitioners in contending that since the
bid price of pri!ate respondent $hina
Road W Bridge $orporation e.ceeded
the +B$, then it should not ha!e been
awarded the contract for the $P ,
proect"
C" The go!ernment is obliged to obser!e
and enforce the terms and conditions
which are made part of a =oan
+greement in the procurement of
goods and ser!ices for the proect
subect of the +greement"
F" $onse#uently, in accordance with
these applicable laws, the procurement
of goods and ser!ices for the $P ,
proect is go!erned by the
corresponding loan agreement entered
into by the go!ernment and the *B,$,
i"e", =oan +greement (o" P<&P2GE" The
said loan agreement stipulated that the
procurement of goods and ser!ices for
the +rterial Road =in/s :e!elopment
Proect (Phase ,>), of which $P , is a
component, is to be go!erned by the
*B,$ Procurement %uidelines" )ection
C"GF, Part ,, (,nternational $ompetiti!e
Bidding) thereof #uoted earlier reads1
9" The petitioners mainly argue that =oan
+greement (o" P<&P2GE does not fall
under any of the three categories
because to be any of the three, an
agreement had to be one where the
parties are the Philippines as a )tate
and another )tate" The *B,$, the
petitioners maintain, is a *apanese
ban/ing agency, which presumably has
a separate uridical personality from
the *apanese %o!ernment"
8" To recall, =oan +greement (o" P<&P2GE
was e.ecuted by and between the *B,$
and the Philippine %o!ernment
pursuant to the 6.change of (otes
e.ecuted by and between Mr" Uoshihisa
+ra, +mbassador 6.traordinary and
Plenipotentiary of *apan to the
Philippines, and then ;oreign +'airs
)ecretary )ia4on, in behalf of their
respecti!e go!ernments" The 6.change
of (otes e.pressed that the two
go!ernments ha!e reached an
understanding concerning *apanese
loans to be e.tended to the Philippines
and that these loans were aimed at
promoting our countryTs economic
stabili4ation and de!elopment e'orts"
2" =oan +greement (o" P<&P2GE was
subse#uently e.ecuted and it declared
that it was so entered by the parties
HIiJn the light of the contents of the
6.change of (otes between the
%o!ernment of *apan and the
%o!ernment of the Republic of the
Philippines dated :ecember 29, 1222,
concerning *apanese loans to be
e.tended with a !iew to promoting the
economic stabili4ation and
de!elopment e'orts of the Republic of
the Philippines"HFC 3nder the
circumstances, the *B,$ may well be
considered an adunct of the *apanese
%o!ernment" ;urther, =oan +greement
(o" P<&P2GE is indubitably an integral
part of the 6.change of (otes" ,t forms
part of the 6.change of (otes such that
it cannot be properly ta/en
independent thereof"
1G" ,n this connection, it is well to
understand the de-nition of an
He.change of notesH under
international law" The term is de-ned in
the 3nited (ations Treaty $ollection in
this wise1
11" +n He.change of notesH is a record of a
routine agreement that has many
similarities with the pri!ate law
contract" The agreement consists of
the e.change of two documents, each
of the parties being in the possession
of the one signed by the representati!e
of the other" 3nder the usual
procedure, the accepting )tate repeats
the te.t of the o'ering )tate to record
its assent" The signatories of the letters
may be go!ernment Ministers,
diplomats or departmental heads" The
techni#ue of e.change of notes is
fre#uently resorted to, either because
of its speedy procedure, or, sometimes,
to a!oid the process of legislati!e
appro!al"
12" +lthough these instruments di'er from
each other by title, they all ha!e
common features and international law
has applied basically the same rules to
all these instruments" These rules are
the result of long practice among the
)tates, which ha!e accepted them as
binding norms in their mutual relations"
Therefore, they are regarded as
international customary law" )ince
there was a general desire to codify
these customary rules, two
international con!entions were
negotiated" The 12F2 >ienna
$on!ention on the =aw of Treaties
(H12F2 >ienna $on!entionH), which
entered into force on 29 *anuary 128G,
contains rules for treaties concluded
between )tates" The 128F >ienna
$on!ention on the =aw of Treaties
between )tates and ,nternational
7rgani4ations (H128F >ienna
$on!entionH), which has still not
entered into force, added rules for
treaties with international organi4ations
as parties" Both the 12F2 >ienna
$on!ention and the 128F >ienna
$on!ention do not distinguish between
the di'erent designations of these
instruments" ,nstead, their rules apply
to all of those instruments as long as
they meet the common re#uirements"
1A" )igni-cantly, an e.change of notes is
considered a form of an e.ecuti!e
agreement, which becomes binding
through e.ecuti!e action without the
need of a !ote by the )enate or
$ongress" The following dis#uisition by
;rancis B" )ayre, former 3nited )tates
<igh $ommissioner to the Philippines,
entitled HThe $onstitutionality of Trade
+greement +cts,H +greements
concluded by the President which fall
short of treaties are commonly referred
to as e.ecuti!e agreements and are no
less common in our scheme of
go!ernment than are the more formal
instruments ? treaties and con!entions"
They sometimes ta/e the form of
e.change of notes and at other times
that of more formal documents
denominated HagreementsH or
HprotocolsH" The point where ordinary
correspondence between this and other
go!ernments ends and agreements ?
whether denominated e.ecuti!e
agreements or e.change of notes or
otherwise ? begin, may sometimes be
diBcult of ready ascertainment" ,t
would be useless to underta/e to
discuss here the large !ariety of
e.ecuti!e agreements as such,
concluded from time to time" <undreds
of e.ecuti!e agreements, other than
those entered into under the trade&
agreements act, ha!e been negotiated
with foreign go!ernments" . . .9G
1E" The 6.change of (otes dated
:ecember 29, 1222, stated, inter alia,
that the %o!ernment of *apan would
e.tend loans to the Philippines with a
!iew to promoting its economic
stabili4ation and de!elopment e'orts5
=oan , in the amount of
U92,8FC1,GGG,GGG would be e.tended
by the *B,$ to the Philippine
%o!ernment to implement the proects
in the =ist + (including the +rterial Road
=in/s :e!elopment Proect & Phase ,>)5
and that such loan (=oan ,) would be
used to co!er payments to be made by
the Philippine e.ecuting agencies to
suppliers, contractors and@or
consultants of eligible source countries
under such contracts as may be
entered into between them for
purchases of products and@or ser!ices
re#uired for the implementation of the
proects enumerated in the =ist +"91
0ith respect to the procurement of the
goods and ser!ices for the proects, it
bears reiterating that as stipulated1
A" The %o!ernment of the Republic of the
Philippines will ensure that the products and@or
ser!ices mentioned in sub&paragraph (1) of
paragraph A of Part , and sub&paragraph (1) of
paragraph E of Part ,, are procured in
accordance with the guidelines for
procurement of the Ban/, which set forth, inter
alia, the procedures of international tendering
to be followed e.cept where such procedures
are inapplicable or inappropriate"92
1C" The *B,$ Procurements %uidelines, as
#uoted earlier, forbids any procedure
under which bids abo!e or below a
predetermined bid !alue assessment
are automatically dis#uali-ed"
)uccinctly put, it absolutely prohibits
the imposition of ceilings on bids"
1F" 3nder the fundamental principle of
international law of pacta sunt
ser!anda,9A which is, in fact, embodied
in )ection E of R+ 218E as it pro!ides
that HIaJny treaty or international or
e.ecuti!e agreement a'ecting the
subect matter of this +ct to which the
Philippine go!ernment is a signatory
shall be obser!ed,H the :P0<, as the
e.ecuting agency of the proects
-nanced by =oan +greement (o" P<&
P2GE, rightfully awarded the contract
for the implementation of ci!il wor/s
for the $P , proect to pri!ate
respondent $hina Road W Bridge
$orporation"
19" 0<6R6;7R6, premises considered, the
petition is :,)M,))6:"
3har!aceutical and 8ealth Care
Association '. 9u+ue III
4.5. 0o. 17>0>4
.ctober 9, 2007
<acts2
1" The Mil/ $ode was issued by Pres"
+#uino by !irtue of the legislati!e
power granted to her by the ;reedom
$onstitution"
2" ,t see/s to gi!e e'ect to +rt 11 of the
,nternational $ode of Mar/eting of
Breastmil/ )ubstitutes which is
adopted by the 0<+ in 1281
A" ,nternational $on!ention on the Rights
of the $hild was li/ewise rati-ed by the
Philippines"
E" Pursuant to the Mil/ $ode and these
international agreements, :7< issued
the assailed R,RR
C" Petitioner -led this petition,
representing its members that are
manufacturers of breastmil/
substitutes"
Issue2
7.0 9.8 acted without or in e;cess o
"urisdiction in issuin* the 5I55
7.0 the 5I55 is in accord with the
&ro'isions o the $il% Code
7.0 &ertinent international a*ree!ents
entered into b# the 3hili&&ines are &art o
the law o the land and !a# be
i!&le!ented b# the 9.8 throu*h the
5I55K I in the aHr!ati'e, whether the
5I55 is in accord with the international
a*ree!ents
8eld2
1" 3nder the 1289 $onstitution, international
law can become part of the sphere of
domestic law either by transformation or
incorporation" The transformation method
re#uires that an international law be
transformed into a domestic law through a
constitutional mechanism such as local
legislation" The incorporation method
applies when, by mere constitutional
declaration, international law is deemed to
ha!e the force of domestic law"
2" Treaties become part of the law of the land
through transformation pursuant to +rticle
>,,, )ection 21 of the $onstitution which
pro!ides that HInJo treaty or international
agreement shall be !alid and e'ecti!e
unless concurred in by at least two&thirds
of all the members of the )enate"H Thus,
treaties or con!entional international law
must go through a process prescribed by
the $onstitution for it to be transformed
into municipal law that can be applied to
domestic conKicts"
A" The ,$MB) and 0<+ Resolutions are not
treaties as they ha!e not been concurred in
by at least two&thirds of all members of the
)enate as re#uired under )ection 21,
+rticle >,, of the 1289 $onstitution"
E" <owe!er, the ,$MB) which was adopted by
the 0<+ in 1281 had been transformed
into domestic law through local legislation,
the Mil/ $ode" $onse#uently, it is the Mil/
$ode that has the force and e'ect of law in
this urisdiction and not the ,$MB) per se"
C" The Mil/ $ode is almost a !erbatim
reproduction of the ,$MB), but it is well to
emphasi4e at this point that the $ode did
not adopt the pro!ision in the ,$MB)
absolutely prohibiting ad!ertising or other
forms of promotion to the general public of
products within the scope of the ,$MB)"
,nstead, the Mil/ $ode e.pressly pro!ides
that ad!ertising, promotion, or other
mar/eting materials may be allowed if such
materials are duly authori4ed and appro!ed
by the ,nter&+gency $ommittee (,+$)"
F" )ome legal scholars and udges loo/ upon
certain Hgeneral principles of lawH as a
primary source of international law
because they ha!e the Hcharacter of us
rationaleH and are H!alid through all /inds
of human societies"H (*udge Tana/a in his
dissenting opinion in the 12FF )outh 0est
+frica $ase, 12FF ,"$"*" 22F)" 7O$onnell
holds that certain priniciples are part of
international law because they are Hbasic
to legal systems generallyH and hence part
of the us gentium" These principles, he
belie!es, are established by a process of
reasoning based on the common identity of
all legal systems" ,f there should be doubt
or disagreement, one must loo/ to state
practice and determine whether the
municipal law principle pro!ides a ust and
acceptable solution"
9" $ustom or customary international law
means Ha general and consistent practice
of states followed by them from a sense of
legal obligation Iopinio urisJ"H
(Restatement) This statement contains the
two basic elements of custom1 the material
factor, that is, how states beha!e, and the
psychological or subecti!e factor, that is,
why they beha!e the way they do"
8" 7nce the e.istence of state practice has
been established, it becomes necessary to
determine why states beha!e the way they
do" :o states beha!e the way they do
because they consider it obligatory to
beha!e thus or do they do it only as a
matter of courtesyP 7pinio uris, or the
belief that a certain form of beha!ior is
obligatory, is what ma/es practice an
international rule" 0ithout it, practice is not
law"
2" Regulations, along with con!entions and
agreements, duly adopted by the 0<+ bind
member states
1G" 7n the other hand, under +rticle 2A,
recommendations of the 0<+ do not come
into force for members, in the same way
that con!entions or agreements under
+rticle 12 and regulations under +rticle 21
come into force"
+rticle 2A" The <ealth +ssembly shall ha!e
authority to ma/e recommendations to
Members with respect to any matter within the
competence of the 7rgani4ation" (6mphasis
supplied)
11" The absence of a pro!ision in +rticle 2A of
any mechanism by which the
recommendation would come into force for
member states is conspicuous"
12" +pparently, the 0<+ Resolution adopting
the ,$MB) and subse#uent 0<+
Resolutions urging member states to
implement the ,$MB) are merely
recommendatory and legally non&binding"
Thus, unli/e what has been done with the
,$MB) whereby the legislature enacted
most of the pro!isions into law which is the
Mil/ $ode, the subse#uent 0<+
Resolutions,AG speci-cally pro!iding for
e.clusi!e breastfeeding from G&F months,
continued breastfeeding up to 2E months,
and absolutely prohibiting ad!ertisements
and promotions of breastmil/ substitutes,
ha!e not been adopted as a domestic law"
1A" ,t is propounded that 0<+ Resolutions may
constitute Hsoft lawH or non&binding norms,
principles and practices that inKuence
state beha!ior"A1
1E" H)oft lawH does not fall into any of the
categories of international law set forth in
+rticle A8, $hapter ,,, of the 12EF )tatute
of the ,nternational $ourt of *ustice"A2 ,t is,
howe!er, an e.pression of non&binding
norms, principles, and practices that
inKuence state beha!ior"AA $ertain
declarations and resolutions of the 3(
%eneral +ssembly fall under this
category"AE The most notable is the 3(
:eclaration of <uman Rights, which this
$ourt has enforced in !arious cases,
speci-cally, %o!ernment of <ong/ong
)pecial +dministrati!e Region !" 7lalia,AC
Meo' !" :irector of Prisons,AF Miares !"
RaXadaA9 and )hangri&la ,nternational
<otel Management, =td" !" :e!elopers
%roup of $ompanies, ,nc""A8
1C" Respondents failed to establish that the
pro!isions of pertinent 0<+ Resolutions
are customary international law that may
be deemed part of the law of the land"
1F" $onse#uently, legislation is necessary to
transform the pro!isions of the 0<+
Resolutions into domestic law" The
pro!isions of the 0<+ Resolutions cannot
be considered as part of the law of the land
that can be implemented by e.ecuti!e
agencies without the need of a law enacted
by the legislature"
3ro'ince o 0orth Cotabato '. 453 3eace
3anel on Ancestral 9o!ain
4.5. 0o. 18>)91
.ctober 14, 2008
<acts2
1" ,n 2GG8, the %RP and M,=;, were
scheduled to sign to sign M7+&+: of
the %RP&M,=; Tripoli +greement at
Malaysia
2" The M7+&+: was not e.ecuted because
of the motion -led by petitioners" The
)$ issued a TR7 enoining the %RP
from signing the same
A" The 7)% summari4es the M7+&+: by
stating that the same contained,
among others, the commitment of the
parties to pursue peace negotiations,
protect and respect human rights,
negotiate with sincerity in the
resolution and paci-c settlement of the
conKict, and refrain from the use of
threat or force to attain undue
ad!antage while the peace
negotiations on the substanti!e agenda
are on&going"
E" <owe!er, it was e!ident that there will
be no settlement between M,=;&%RP
because of the attac/s of M,=;"
C" ;ormal peace tal/s between the parties
were held in Tripoli, =ibya from *une 2G&
22, 2GG1, the outcome of which was
the %RP&M,=; Tripoli +greement on
Peace (Tripoli +greement 2GG1)
containing the basic principles and
agenda on the following aspects of the
negotiation1 )ecurity +spect,
Rehabilitation +spect, and +ncestral
:omain +spect" 0ith regard to the
+ncestral :omain +spect, the parties in
Tripoli +greement 2GG1 simply agreed
Hthat the same be discussed further by
the Parties in their ne.t meeting"H
Issue2
7hether b# si*nin* the $.A, the
4o'ern!ent o the 5e&ublic o the
3hili&&ines would be ,I09I04 itsel
a1 to create and reco*ni?e the
,an*sa!oro Curidical -ntit# /,C-1 as a
se&arate state, or a "uridical, territorial or
&olitical subdi'ision not reco*ni?ed b#
lawK
b1 to re'ise or a!end the Constitution
and e;istin* laws to conor! to the $.AK
c1 to concede to or reco*ni?e the clai! o
the $oro Isla!ic Biberation <ront or
ancestral do!ain in 'iolation o 5e&ublic
Act 0o. 8>71 /T8- I09I4-0.GS 3-.3B-S
5I48TS ACT .< 19971, &articularl#
Section >/*1 O Cha&ter VII /9-BI0-ATI.0,
5-C.40ITI.0 .< A0C-ST5AB 9.$AI0S1
PKQ
8eld2
1" M7+&+: contains many pro!isions
which are consistent with the
international legal concept of
association"
2" ,n international practice, the
Hassociated stateH arrangement has
usually been used as a transitional
de!ice of former colonies on their way
to full independence" 6.amples of
states that ha!e passed through the
status of associated states as a
transitional phase are +ntigua, )t"
Ditts&(e!is&+nguilla, :ominica, )t"
=ucia, )t" >incent and %renada" +ll
ha!e since become independent
states"
A" Bac/ to the M7+&+:, it contains many
pro!isions which are consistent with
the international legal concept of
association, speci-cally the following1
the B*6Os capacity to enter into
economic and trade relations with
foreign countries, the commitment of
the $entral %o!ernment to ensure the
B*6Os participation in meetings and
e!ents in the +)6+( and the
speciali4ed 3( agencies, and the
continuing responsibility of the $entral
%o!ernment o!er e.ternal defense"
Moreo!er, the B*6Os right to participate
in Philippine oBcial missions bearing
on negotiation of border agreements,
en!ironmental protection, and sharing
of re!enues pertaining to the bodies of
water adacent to or between the
islands forming part of the ancestral
domain, resembles the right of the
go!ernments of ;)M and the Marshall
,slands to be consulted by the 3")"
go!ernment on any foreign a'airs
matter a'ecting them"
E" These pro!isions of the M7+ indicate,
among other things, that the Parties
aimed to !est in the B*6 the status of
an associated state or, at any rate, a
status closely appro.imating it"
C" The $onstitution does not contemplate
any state in this urisdiction other than
the Philippine )tate, much less does it
pro!ide a transitory status that aims to
prepare any part of the Philippine
territory for independence"
F" (o pro!ince, city, or municipality, not
e!en the +RMM, is recogni4ed under
our laws as ha!ing an Hassociati!eH
relationship with the national
go!ernment" ,ndeed, the concept
implies powers that go beyond
anything e!er granted by the
$onstitution to any local or regional
go!ernment" ,t also implies the
recognition of the associated entity as
a state" The $onstitution, howe!er,
does not contemplate any state in this
urisdiction other than the Philippine
)tate, much less does it pro!ide for a
transitory status that aims to prepare
any part of Philippine territory for
independence"
9" )imilarly, that the M7+&+: would ha!e
been signed by representati!es of
)tates and international organi4ations
not parties to the +greement would not
ha!e suBced to !est in it a binding
character under international law"
8" The mere fact that in addition to the
parties to the conKict, the peace
settlement is signed by representati!es
of states and international
organi4ations does not mean that the
agreement is internationali4ed so as to
create obligations in international law"
2" The M7+&+: may not be considered a
unilateral declaration under
international law
1G" ,n one important respect, the
circumstances surrounding the M7+&+:
are closer to that of Bur/ina ;aso
wherein, as already discussed, the Mali
PresidentOs statement was not held to
be a binding unilateral declaration by
the ,$*" +s in that case, there was also
nothing to hinder the Philippine panel,
had it really been its intention to be
bound to other )tates, to manifest that
intention by formal agreement" <ere,
that formal agreement would ha!e
come about by the inclusion in the
M7+&+: of a clear commitment to be
legally bound to the international
community, not ust the M,=;, and by
an e#ually clear indication that the
signatures of the participating states&
representati!es would constitute an
acceptance of that commitment"
6ntering into such a formal agreement
would not ha!e resulted in a loss of
face for the Philippine go!ernment
before the international community,
which was one of the diBculties that
pre!ented the ;rench %o!ernment from
entering into a formal agreement with
other countries" That the Philippine
panel did not enter into such a formal
agreement suggests that it had no
intention to be bound to the
international community" 7n that
ground, the M7+&+: may not be
considered a unilateral declaration
under international law"
,a#an $una '. 5o!ulo
4.5. 0o. 1)9A18
<ebruar# 1, 2011
<acts2
1" 7n :ecember 28, 2GGG, the RP,
through $harge d +'aires Manalo,
signed the Rome )tatute which, by its
terms, is Qsubect to rati-cation,
acceptance or appro!alN by the
signatory states
2" +s of the -ling of the instant petition,
only 22 out of the 1A2 signatory
countries appear to ha!e completed
the rati-cation, appro!al and
concurrence process" The Philippines is
not among the 22"
A" 7n May 2, 2GGA, then +mbassador
;rancis *" Ricciardone sent 3) 6mbassy
(ote (o" GE9G to the :epartment of
;oreign +'airs (:;+) proposing the
terms of the non&surrender bilateral
agreement (+greement, hereinafter)
between the 3)+ and the RP"
E" ,n response to a #uery of then )olicitor
%eneral +lfredo =" Benipayo on the
status of the non&surrender agreement,
+mbassador Ricciardone replied in his
letter of 7ctober 28, 2GGA that the
e.change of diplomatic notes
constituted a legally binding
agreement under international law5 and
that, under 3) law, the said agreement
did not re#uire the ad!ice and consent
of the 3) )enate"
C" ,n this proceeding, petitioner imputes
gra!e abuse of discretion to
respondents in concluding and ratifying
the +greement and prays that it be
struc/ down as unconstitutional, or at
least declared as without force and
e'ect"
F" >ia 6.change of (otes (o" B;7&G28&
GAI9J dated May 1A, 2GGA (6@( B;7&
G28&GA, hereinafter), the RP,
represented by then :;+ )ecretary
7ple, agreed with and accepted the 3)
proposals embodied under the 3)
6mbassy (ote ad!erted to and put in
e'ect the +greement with the 3)
go!ernment" ,n esse, the +greement
aims to protect what it refers to and
de-nes as QpersonsN of the RP and 3)
from fri!olous and harassment suits
that might be brought against them in
international tribunals"I8J ,t is
reKecti!e of the increasing pace of the
strategic security and defense
partnership between the two countries"
+s of May 2, 2GGA, similar bilateral
agreements ha!e been e'ected by and
between the 3) and AA other
countries"I2J
Issue2
7.0 the A*ree!ent was contracted
'alidl#, which resol'es itsel into the
+uestion o whether or not res&ondents
*ra'el# abused their discretion in
concludin* it
7.0 the A*ree!ent, which has not
sub!itted to the Senate or concurrence,
contra'enes and under!ines the 5o!e
Statute and other treaties
8eld2
1" There are no hard and fast rules on the
propriety of entering, on a gi!en
subect, into a treaty or an e.ecuti!e
agreement as an instrument of
international relations" The primary
consideration in the choice of the form
of agreement is the partiesT intent and
desire to craft an international
agreement in the form they so wish to
further their respecti!e interests"
>erily, the matter of form ta/es a bac/
seat when it comes to e'ecti!eness
and binding e'ect of the enforcement
of a treaty or an e.ecuti!e agreement,
as the parties in either international
agreement each labor under the pacta
sunt ser!anda principle"
2" +n e.ecuti!e agreement that does not
re#uire the concurrence of the )enate
for its rati-cation may not be used to
amend a treaty that, under the
$onstitution, is the product of ratifying
acts of the 6.ecuti!e and the )enate"
A" +s it were, the +greement is but a form
of aBrmance and con-rmance of the
PhilippinesT national criminal
urisdiction" (ational criminal
urisdiction being primary, as e.plained
abo!e, it is always the responsibility
and within the prerogati!e of the RP
either to prosecute criminal o'enses
e#ually co!ered by the Rome )tatute or
to accede to the urisdiction of the ,$$"
Thus, the Philippines may decide to try
QpersonsN of the 3), as the term is
understood in the +greement, under
our national criminal ustice system"
7r it may opt not to e.ercise its
criminal urisdiction o!er its erring
citi4ens or o!er 3) QpersonsN
committing high crimes in the country
and defer to the secondary criminal
urisdiction of the ,$$ o!er them" +s to
QpersonsN of the 3) whom the
Philippines refuses to prosecute, the
country would, in e'ect, accord
discretion to the 3) to e.ercise either
its national criminal urisdiction o!er
the QpersonN concerned or to gi!e its
consent to the referral of the matter to
the ,$$ for trial" ,n the same breath,
the 3) must e.tend the same pri!ilege
to the Philippines with respect to
QpersonsN of the RP committing high
crimes within 3) territorial urisdiction"
E" ,n the conte.t of the $onstitution, there
can be no serious obection to the
Philippines agreeing to underta/e the
things set forth in the +greement"
)urely, one )tate can agree to wai!e
urisdictionRto the e.tent agreed upon
Rto subects of another )tate due to
the recognition of the principle of
e.traterritorial immunity"
C" Persons who may ha!e committed acts
penali4ed under the Rome )tatute can
be prosecuted and punished in the
Philippines or in the 3)5 or with the
consent of the RP or the 3), before the
,$$, assuming, for the nonce, that all
the formalities necessary to bind both
countries to the Rome )tatute ha!e
been met" ;or perspecti!e, what the
+greement conte.tually prohibits is the
surrender by either party of indi!iduals
to international tribunals, li/e the ,$$,
without the consent of the other party,
which may desire to prosecute the
crime under its e.isting laws" 0ith the
!iew we ta/e of things, there is nothing
immoral or !iolati!e of international
law concepts in the act of the
Philippines of assuming criminal
urisdiction pursuant to the non&
surrender agreement o!er an o'ense
considered criminal by both Philippine
laws and the Rome )tatute"
F" ,n thus agreeing to conclude the
+greement thru 6@( B;7&G28&GA, then
President %loria Macapagal&+rroyo,
represented by the )ecretary of ;oreign
+'airs, acted within the scope of the
authority and discretion !ested in her
by the $onstitution" +t the end of the
day, the President??by ratifying, thru
her deputies, the non&surrender
agreement??did nothing more than
discharge a constitutional duty and
e.ercise a prerogati!e that pertains to
her oBce"
9" More importantly, an act of the
e.ecuti!e branch with a foreign
go!ernment must be a'orded great
respect" The power to enter into
e.ecuti!e agreements has long been
recogni4ed to be lodged with the
President" +s 0e held in (eri !" )enate
$ommittee on +ccountability of Public
7Bcers and ,n!estigations, QItJhe
power to enter into an e.ecuti!e
agreement is in essence an e.ecuti!e
power" This authority of the President
to enter into e.ecuti!e agreements
without the concurrence of the
=egislature has traditionally been
recogni4ed in Philippine
urisprudence"NI12GJ The rationale
behind this principle is the in!iolable
doctrine of separation of powers
among the legislati!e, e.ecuti!e and
udicial branches of the go!ernment"
Thus, absent any clear contra!ention of
the law, courts should e.ercise utmost
caution in declaring any e.ecuti!e
agreement in!alid"
China 0ational $achiner# '. Santa!aria
4.5. 0o. 18))72
<ebruar# 1, 2011
<acts2
1" Petitioner $(M6% represented by Ren
<ongbin entered into a M73 with (orth
=u4on Railways $orporation for the
conduct of feasibility study on a
possible railway line from Manila to =a
3nion
2" The 6.port ,mport Ban/ of $hina (6M,M
Ban/) and the :epartment of ;inance
of the Philippines (:7;) entered into a
Memorandum of 3nderstanding (+ug
AG M73), wherein $hina agreed to
e.tend Preferential BuyerTs $redit to
the Philippine go!ernment to -nance
the (orthrail Proect"
A" 6M,M Ban/ agreed to e.tend an amount
not e.ceeding 3): EGG,GGG,GGG in
fa!or of the :7;, payable in 2G years,
with a C&year grace period, and at the
rate of AY per annum
E" Respondent -led a complaint for the
annulment of the contract
C" ,n the $omplaint, respondents alleged
that the $ontract +greement and the
=oan +greement were !oid for being
contrary to (a) the $onstitution5 (b)
Republic +ct (o" 218E (R"+" (o" 218E),
otherwise /nown as the %o!ernment
Procurement Reform +ct5 (c)
Presidential :ecree (o" 1EEC,
otherwise /nown as the %o!ernment
+uditing $ode5 and (d) 6.ecuti!e 7rder
(o" 222, otherwise /nown as the
+dministrati!e $ode"
F" ,n the RT$, motion for reconsideration
was denied" $+ aBrmed RT$s decision"
Issue2
7.0 C0$-4 is entitled to i!!unit#,
&recludin* it ro! bein* sued beore a
local court
7.0 the Contract o A*ree!ent is an
e;ecuti'e a*ree!ent, such that it cannot
be +uestioned b# or beore a local court
8eld2
1" The doctrine of state immunity from
suit has undergone further
metamorphosis" The !iew e!ol!ed that
the e.istence of a contract does not,
per se, mean that so!ereign states
may, at all times, be sued in local
courts" The comple.ity of relationships
between so!ereign states, brought
about by their increasing commercial
acti!ities, mothered a more restricti!e
application of the doctrine"
2" +s it stands now, the application of the
doctrine of immunity from suit has
been restricted to so!ereign or
go!ernmental acti!ities (ure imperii)"
The mantle of state immunity cannot
be e.tended to commercial, pri!ate
and proprietary acts (ure gestionis)"
A" )ince the Philippines adheres to the
restricti!e theory, it is crucial to
ascertain the legal nature of the act
in!ol!ed ? whether the entity claiming
immunity performs go!ernmental, as
opposed to proprietary, functions" +s
held in 3nited )tates of +merica !" Rui4
?29
QThe restricti!e application of )tate immunity is
proper only when the proceedings arise out of
commercial transactions of the foreign
so!ereign, its commercial acti!ities or
economic a'airs" )tated di'erently, a )tate
may be said to ha!e descended to the le!el of
an indi!idual and can thus be deemed to ha!e
tacitly gi!en its consent to be sued only when it
enters into business contracts" ,t does not
apply where the contract relates to the
e.ercise of its so!ereign functions"N
E" it is readily apparent that $(M6%
cannot claim immunity from suit, e!en
if it contends that it performs
go!ernmental functions" ,ts designation
as the Primary $ontractor does not
automatically grant it immunity, ust as
the term Himplementing agencyH has
no precise de-nition for purposes of
ascertaining whether %TS was immune
from suit" +lthough $(M6% claims to
be a go!ernment&owned corporation, it
failed to adduce e!idence that it has
not consented to be sued under
$hinese law" Thus, following this
$ourtTs ruling in :eutsche %esellschaft,
in the absence of e!idence to the
contrary, $(M6% is to be presumed to
be a go!ernment&owned and
&controlled corporation without an
original charter" +s a result, it has the
capacity to sue and be sued under
)ection AF of the $orporation $ode"
C" ,n the 3nited )tates, the ;oreign
)o!ereign ,mmunities +ct of 129F
pro!ides for a wai!er by implication of
state immunity" ,n the said law, the
agreement to submit disputes to
arbitration in a foreign country is
construed as an implicit wai!er of
immunity from suit" +lthough there is
no similar law in the Philippines, there
is reason to apply the legal reasoning
behind the wai!er in this case"
F" +rticle 2(1) of the >ienna $on!ention
on the =aw of Treaties (>ienna
$on!ention) de-nes a treaty as follows1
9"
8" I+Jn international agreement
concluded between )tates in written
form and go!erned by international
law, whether embodied in a single
instrument or in two or more related
instruments and whate!er its particular
designation"
2"
1G" ,n Bayan Muna !" Romulo, this $ourt
held that an e.ecuti!e agreement is
similar to a treaty, e.cept that the
former (a) does not re#uire legislati!e
concurrence5 (b) is usually less formal5
and (c) deals with a narrower range of
subect matters"CG
11"
12" :espite these di'erences, to be
considered an e.ecuti!e agreement,
the following three re#uisites pro!ided
under the >ienna $on!ention must
ne!ertheless concur1 (a) the agreement
must be between states5 (b) it must be
written5 and (c) it must go!erned by
international law" The -rst and the third
re#uisites do not obtain in the case at
bar"
1A" +rticle 2 of the $onditions of
$ontract,CE which under +rticle 1"1 of
the $ontract +greement is an integral
part of the latter, states1
1E" +PP=,$+B=6 =+0 +(: %7>6R(,(%
=+(%3+%6
1C" The contract shall in all respects be
read and construed in accordance with
the laws of the Philippines"
1F" The contract shall be written in 6nglish
language" +ll correspondence and
other documents pertaining to the
$ontract which are e.changed by the
parties shall be written in 6nglish
language"
19" )ince the $ontract +greement e.plicitly
pro!ides that Philippine law shall be
applicable, the parties ha!e e'ecti!ely
conceded that their rights and
obligations thereunder are not
go!erned by international law"
18" ,t is therefore clear from the foregoing
reasons that the $ontract +greement
does not parta/e of the nature of an
e.ecuti!e agreement" ,t is merely an
ordinary commercial contract that can
be #uestioned before the local courts"
12" 0herefore, the petition is denied"
<isheries Curisdiction Case
/GR '. Iceland1
ICC 5-3 197> >
<acts2
1" The 3"D", as part of what was /nown as
Qthe $od 0arsN, applied to the ,$*
claiming that the proposed e.tension of
,celandTs e.clusi!e -sheries urisdiction
from 12 to CG miles was a breach of an
agreement between the two states,
e!idenced by an 6.change of (otes in
12F1"
2" ,celand contended that the $ourt had
no urisdiction to hear the case and it
also submitted that any agreement
which it had with the 3D not to e.tend
its -sheries urisdiction, was no longer
binding due to a fundamental change
of circumstances since that agreement"
Issue2
7.0 Iceland !a# e;tend its 6shin*
"urisdiction based on chan*e o
circu!stances since the a*ree!ent
8eld2
1" 7ne of the basic re#uirements
embodied in +rt" F2 is that the change
of circumstances must ha!e been
fundamental one"
2" The %o!ernment of ,celand with
regards to de!elopments of -shing
techni#ues to increase its e.ploitation
of the -shery resources in the seas
surrounding ,celand
A" The ,celandic statements recall the
e.ceptional dependence of that
country on its -shing for its e.istence
and economic de!elopment
E" ,celandTs in!ocation of Q!ital interestN
which were not subect to the
6.change of (otes in 12F1 must be
interpreted in the conte.t of the
assertion of changed circumstances, as
an indication by ,celand of the reason
why it regards as fundamental the
changes which in its !iew ha!e ta/en
place in pre!iously e.isting -shing
techni#ues"
C" >ital or fundamental changes are those
which imperil the e.istence of !ital
de!elopment of the parties"
F" Moreo!er, The e'ect of the change is
radically to transform the e.tent of
obligations still to be performed under
the treaty" This condition is not
satis-ed"
9" The change of circumstances alleged
by ,celand cannot be said to ha!e
transformed radically the e.tent of the
urisdictional obligation which is
imposed in the 12F1 6.change of
(otes"
8" (ot only has the urisdictional
obligation not been radically
transformed in its e.tent5 it has
remained precisely what it was in 12F1"
0a!ibia Case
ICC 5-3 1971 1A
<acts2
1" The )ecurity $ouncil had resol!ed that
)" +fricaTs Mandate o!er )outh&0est
+frica ((amibia) was terminated, but
this had been ignored by )" +frica"
2" The )$ then resol!ed, by Resolution
29F (129G), that the continued
presence of )" +frica in (amibia was
illegal"
Issue2
,t sought an ad!isory opinion from the court,
as/ing what were the legal conse#uences for
)tates of the continued presence of )" +frica in
(amibia notwithstanding Res" 29F"
8eld2
1" The $ourt held that )" +frica was under
an obligation to withdraw its
administration of (amibia"
2" ,t also held that other )tates where
under the obligation not to recogni4e
any acts of )" +fricaTs administration in
(amibia"
A" ;or e!en if the M+(:+T6 is !iewed as
ha!ing the character of an institution,
as is maintained, it depends on those
international agreements which
created the system and regulated its
application"
E" This M+(:+T6, li/e practically all other
similar Mandate was a special type of
instrument composite in nature and
instituting a no!el regime" ,t
incorporates a de-nite agreement" ,t
has the character of a treaty or
international agreement"
C" ,n this respect, a material breach of
treaty usti-ed the termination
Article A02 Ter!ination or sus&ension o
the o&eration o a treat# as a
conse+uence o its breach
1" + material breach of a bilateral treaty
by one of the parties entitles the other
to in!o/e the breach as a ground for
terminating the treaty or suspending
its operation in whole or in part"
2" + material breach of a multilateral
treaty by one of the parties entitles1
a" The other parties by unanimous
agreement to suspend the operation of
the treaty in whole or in part or to
terminate it either1
i" ,n the relations between themsel!es
and the defaulting )tate, or
ii" +s between all the parties5
b" + party specially a'ected by the
breach to in!o/e it as a ground for
suspending the operation of the treaty
in whole or in part in the relations
between itself and the defaulting )tate5
c" +ny party other than the defaulting
)tate to in!o/e the breach as a ground
for suspending the operation of the
treaty in whole or in part with respect
to itself if the treaty is of such a
character that a material breach of its
pro!isions by one party radically
changes the position of e!ery party
with respect to the further performance
of its obligations under the treaty"
A" + material breach of a treaty, for the
purposes of this article, consists in1
i" + repudiation of the treaty not
sanctioned by the present $on!ention5
or
ii" The !iolation of a pro!ision essential to
the accomplishment of the obect or
purpose of the treaty"
E" The foregoing paragraphs are without
preudice to any pro!ision in the treaty
applicable in the e!ent of a breach"
C" Paragraphs 1 to A do not apply to
pro!isions relating to the protection of
the human person contained in treaties
of a humanitarian character, in
particular to pro!isions prohibiting any
form of reprisals against persons
protected by such treaties"
F" There is material breach when )" +frica
disa!owed the Mandate" ,t repudiated
it under Par" A(i)
9" ,t -rst recalls that the entry into force
of the 3nited (ations $harter
established a relationship between all
Members of the 3nited (ations on the
one side, and each mandatory Power
on the other, and that one of the
fundamental principles go!erning that
relationship is that the party which
disowns or does not ful-l its obligations
cannot be recogni4ed as retaining the
rights which it claims to deri!e from
the relationship" Resolution 21EC (MM,)
determined that there had been a
material breach of the Mandate, which
)outh +frica had in fact disa!owed"
8" ,t has been contended (a) that the
$o!enant of the =eague of (ations did
not confer on the $ouncil of the =eague
power to terminate a mandate for
misconduct of the mandatory and that
the 3nited (ations could not deri!e
from the =eague greater powers than
the latter itself had, (b) that, e!en if
the $ouncil of the =eague had
possessed the power of re!ocation of
the Mandate, it could not ha!e been
e.ercised unilaterally but only in co&
operation with the Mandatory5 (c) that
resolution 21EC (MM,) made
pronouncements which the %eneral
+ssembly, not being a udicial organ,
was not competent to ma/e5 (d) that a
detailed factual in!estigation was
called for (e) that one part of resolution
21EC (MM,) decided in e'ect a transfer
of territory"
2" ;or ob!ious reasons, the consent of the
wrongdoers to such a form of
termination cannot be re#uired"
9anube 9a! Case
8un*ar# '. Slo'a%ia
>7 IB$ 1A2 /19981
<acts2
1" ,n 1299, <ungary and $4echoslo!a/ia
concluded a treaty to facilitate the
construction of :ams in :anube Ri!er"
2" <ungary later on suspended wor/s
because of en!ironmental concerns
and in response to which
$4echoslo!a/ia carried out unilateral
measures
A" <ungary then claimed the right to
terminate the treaty, the case was
submitted to the ,$*"
E" ,t contended that it has the right
because it !iolated the +rticles of
Treaty by unilaterally underta/ing
measures, culminating in the di!ersion
of the :anube
C" )lo!a/ia became a party to the 1299
Treaty as successor of $4echoslo!a/ia"
F" The treaty does not pro!ide any
pro!ision for its termination
Issue2
7.0 8un*ar# !a# ter!inate due to
en'iron!ental concerns and 'iolations o
Articles o the Treat#
8eld2
1" ,t may not in!o/e state of necessity
because this may only be in!o/ed to
e.onerate from its responsibility a
)tate which has failed to implement a
treaty
2" ,f the oint e.ploitation of in!estment
was no longer possible, this was
because <ungary did not carry out
most of the wor/s for which it was
impossible"
Q,mpossibility of performance may not be
in!o/ed by a party as a ground for terminating,
withdrawing from or suspending the operation
of a treaty if the impossibility is the result of a
breach by that party either of an obligation
under the treaty or of any other international
obligation owed to any other party to the
treaty"Q
A" The fundamental change of
circumstances cannot be in!o/ed by
<ungary because it is not of such
nature that will e'ect a radical
transformation the e.tent of which the
obligation still to be performed in order
to accomplish the Proect"
E" The !iolation of other treaty rules or of
rules of general international law may
ustify the ta/ing of certain measures,
including countermeasures, by the
inured )tate, but it does not constitute
a ground for termination under the law
of treaties"
C" The noti-cation of termination by
<ungary was premature"
Sei <u"ii '. Caliornia
19)2
<acts2
1" Plainti', )ei ;uii, is an alien *apanese
who is ineligible to citi4enship under
our naturali4ation laws, appeals from a
udgment declaring that certain land
purchased by him in 12E8 had
escheated to the state"
2" There is no treaty between this country
and *apan which confers upon plainti'
the right to own land, and the sole
#uestion presented on this appeal is
the !alidity of the $alifornia +lien =and
=aw
Issue2
7.0 the Caliornia Alien Band Baw 'oid
8eld2
1" ,t is -rst contended that the land law
has been in!alidated and superseded
by the pro!isions of the 3nited (ations
$harter pledging the member nations
to promote the obser!ance of human
rights and fundamental freedoms
without distinction as to race" Plainti'
relies on statements in the preamble
and in articles 1, CC and CF of the
charter"
2" ,t is not disputed that the charter is a
treaty, and our federal $onstitution
pro!ides that treaties made under the
authority of the 3nited )tates are part
of the supreme law of the land and that
the udges in e!ery state are bound
thereby"
A" <owe!er, it does not automatically
supersede local laws which are
inconsistent with it unless the treaty
are self&e.ecuting"
E" ,n determining whether a treaty is self&
e.ecuting courts loo/ to the intent of
the signatory parties as manifested by
the language of the instrument, and, if
the instrument is uncertain, recourse
may be had to the circumstances
surrounding its e.ecution
C" The humane and enlightened
obecti!es of the 3nited (ations
$harter are, of course, entitled to
respectful consideration by the courts
and legislatures of e!ery member
nation, since that document e.presses
the uni!ersal desire of thin/ing men for
peace and for e#uality of rights and
opportunities" The charter represents a
moral commitment of foremost
importance, and we must not permit
the spirit of our pledge to be
compromised or disparaged in either
our domestic or foreign a'airs" IFJ 0e
are satis-ed, howe!er, that the charter
pro!isions relied on by plainti' were
not IA8 $al"2d 92CJ intended to
supersede e.isting domestic
legislation, and we cannot hold that
they operate to in!alidate the +lien
=and =aw"
F" Plainti' asserts, -rst, that the statutory
classi-cation of aliens on the basis of
eligibility to citi4enship is arbitrary for
the reason that discrimination against
an ineligible alien bears no reasonable
relationship to promotion of the safety
and welfare of the state" <e points out
that the land law distinguishes not
between citi4ens and aliens, but
between classes of aliens, and that
persons eligible to citi4enship are gi!en
all the rights of citi4ens regardless of
whether they desire or intend to
become naturali4ed" )econdly, he
contends that the e'ect of the statute,
as well as its purpose, is to
discriminate against aliens solely on
the basis of race and that such
discrimination is arbitrary and
unreasonable"
9" The $alifornia +lien =and =aw is
ob!iously designed and administered
as an instrument for racial
discrimination, and the most searching
e.amination discloses no
circumstances ustifying classi-cation
on that basis" There is nothing to
indicate that those alien residents who
are racially ineligible for citi4enship
possess characteristics which are
dangerous to the legitimate interests of
the state, or that they, as a class,
might
8" The $alifornia +lien =and =aw is
ob!iously designed and administered
as an instrument for racial
2" discrimination, and the most searching
e.amination discloses no
circumstances ustifying classi-cation
on that basis" There is nothing to
indicate that those alien residents who
are racially ineligible for citi4enship
possess characteristics which are
dangerous to the legitimate interests of
the state, or that they, as a class,
might
State 3ractice2 Custo!
+rticle A8
1" The $ourt, whose function is to decide
in accordance with international law
such disputes as are submitted to it,
shall apply1
a" international con!entions, whether
general or particular, establishing rules
e.pressly recogni4ed by the contesting
states5
b" international custom, as e!idence of a
general practice accepted as law5
c" the general principles of law
recogni4ed by ci!ili4ed nations5
d" subect to the pro!isions of +rticle C2,
udicial decisions and the teachings of
the most highly #uali-ed publicists of
the !arious nations, as subsidiary
means for the determination of rules of
law"
2" This pro!ision shall not preudice the
power of the $ourt to decide a case e.
ae#uo et bono, if the parties agree
thereto"

5e&ublic '. Sandi*anba#an
4.5. 0o. 1047A8
Cul# 21, 200>
<acts2
1" P$%% a go!t" entity organi4ed during the
onset of ;reedom $onstitution, under the
decree of then Pres" +#uino is tas/ to reco!er
all ill&gotten wealth of former Pres" Marcos, his
immediate family, relati!es, subordinates and
close associati!e"
2" Based on its mandate, the +;P board
in!estigates !arious reports of alleged
une.plained wealth of respondent Maor
%eneral *osephus Ramas"
A" +rmed with search warrant for Q,llegal
possession of -rearms and ammunitionsN, the
Phil" constabulary raided the alleged mistress
of Maor %eneral Ramas" Ms" :imaanoTs
property and reco!ered there the detailed
items in sei4ure receipts plus other items such
as ewelries and cash which is not included in
the search warrant"
E" ,n !iolation of )ei4e and sei4ure the
respondent court declare that the sei4e
property is inadmissible as e!idence"
C" (ow, the petitioner wants the court to ta/e a
udicial notice that the raiding team conducted
the search and sei4ure -!e days after the
successful re!olution, arguing that the
re!olutionary go!t" during that time e'ecti!ely
withheld the operation of 129A constitution,
which guaranteed pri!ate respondentTs
e.clusionary right"
Issues2
1. 7hether the re'olutionar# *o't.
was bound b# bill o ri*hts o the
197> constitution durin* the
interre*nu!, that is, ater the
actual and e=ecti'e ta%eo'er o
&ower b# the re'olutionar# *o't
ollowin* the cessation o
resistance o lo#alistK and
2. 7hether the &rotection accorded
to indi'iduals under the
international con'ention on ci'il
and &olitical ri*hts and the
Gni'ersal 9eclaration o 8u!an
5i*hts re!ained in e=ect durin*
the interre*nu!.
8eld2
1. To rule that the bill of rights of the 129A
constitution remained in force during the
interregnum, absent a constitutional pro!ision
e.cepting se#uestrian orders from such bill of
rights, would clearly render all se#uestration
orders !oid during the interregnum"
2" (e!ertheless, e!en during the interregnum
the ;ilipino People continued to enoy, under
the co!enant and the declaration, almost
continued to enoy, under the $o!enant and
:eclaration, almost the same rights found in
the bill of rights of the 129A constitution" The
re!olutionary go!ernment, after installing itself
as the de ure go!ernment, assumed
responsibility for the stateTs good faith
compliance with the co!enant to which the
Philippines is a signatory" +rticle 2(1) of the
co!enant re#uires each signatory state Qto
respect and to ensure to all indi!iduals within
its territory and subect to its urisdiction the
rights recogni4ed in the present co!enant"N
3nder to art" 19 (1) of the co!enant that QInJo
one shall be subect to arbitrary or unlawful
interference with his pri!acy, family, home or
correspondence"N The declaration, to which
Philippines is also a signatory, pro!ides in its
article 12(2) that QInJo one shall be arbitrarily
depri!ed of his property"N +lthough the
signatories to the declaration did not intend it
as legally binding document, only a
declaration, the $ourt has interpreted the
:eclaration as part of the generally accepted
principles of international law and binding on
the )tate" Thus, the re!olutionary go!ernment
was also obligated under the international law
to obser!e the rights of indi!iduals under the
declaration"
A" )uBce it to say that the court considers the
declaration as part of customary international
law, and that ;ilipinos as <uman beings are
proper subects of the rule of ,nternational law
laid down in the $o!enant" The fact is the
re!olutionary go!ernment did not repudiate the
co!enant or the declaration in the same way it
repudiated 129A constitution" +s the de ure
go!ernment, the re!olutionary go!ernment
could not escape responsibility for the )tateTs
good faith compliance with its treaty
obligations under ,nternational law"
The 3a+uete 8abana
17) GS A77, 1900
<acts2
1" + the brea/ing out of 3) and )pain war, two
-shing !essels, one crewed by three men and
by si. men, were regularly engaged in -shing
around the coast of $uba, sailing under the
)panish Kag and each owned by )panish
subect residing in <a!ana"
2" +fter -shing for eight days on the east of
Uucatan, oh her return, with her li!e -sh, along
the coast of $uba each was captured by the 3)
bloc/ading s#uadron" (either -shing !essel
had any arms in ammunition on board, had any
/nowledge about the bloc/age nor about the
war"
A" These are two appeals from the decrees of
the district court of the 3) of the southern
district of ;lorida, condemning two -shing
!essels and her cargoes as 3ri?e o war.
Issue2 7hether or not the 6shin* 'essel
that was cau*ht b# the GS ar!# are
considered as &ri?e o war
Ruling1
1" (o, by ancient usage among ci!ili4ed nations
beginning centuries ago and gradually ripening
into a rule of international court, coast -shing
!essels pursuant their !ocation of catching and
bringing fresh -sh ha!e been recogni4ed as
e.empt with their cargoes and crews from
capture as pri4e of war

2" (umerous prominent urist and
commentators such as 0heaton, :e Boec/,
<allec/, $al!o, Datcheno!s/y, $hancellor Dent
has e.pressed and concurs from their writing,
digest and analysis that -shing !essels as a
general custom should be an e.emption since
-shing by a profession is a profession of peace
and by principle of humanity and e#uity"
A" ,nternational law is part of the law of the
land and must be comply and administered by
the courts of ustice appropriate urisdiction as
often as #uestions of right depending upon it
are duly presented for their determination" ;or
this purpose, where there is no treaty and no
controlling e.ecuti!e or legislati!e act or
udicial decision, resort must be had to the
customs and usages of ci!ili4ed nations, used
as e!idence of those, to the wor/ of urist and
commentators who by years labor, research
and e.perience" <a!e made themsel!es
peculiarly well ac#uainted with the subects of
which they treat" )uch wor/s are resorted by
udicial tribunals not for the speculations of
their authors concerning what the law out to
be, but for trustworthy e!idence of what the
law is see/ing"
E" ;rom the facts pro!ed in either case, it is the
duty of this court, setting as the highest pri4e
court of the 3) and and administering the laws
of the nation, the declare and adudge that the
capture was unlawful and without probable
cause, and is therefore, in each case ordered
that the decree of the district court be
re!ersed, and the proceeds of the sale of the
!essel, together with the proceeds of sale of
her cargo be restored to them"
Colu!bia '. 3eru
As#lu! Case
17 I.B.5. 28
<acts2
1" 7n 7ctober A, 12E8, a military rebellion
bro/e out of Peru
2" 7n the following day a decree is
published charging a political party, the
+merican PeopleTs Re!olutionary Party,
with ha!ing prepared and directed the
rebellion"
A" The head of the Party, Victor 5aul
8a#a de la Torre, was denounced as
being responsible"
E" 0ith other members of the party, he
was prosecuted on a charge of military
rebellion
C" 7n *anuary E, 12E2, the $olombian
+mbassador in =ima informed the
Peru!ian %o!ernment of the asylum
granted to <aya de la Torre, at the
same time he as/ed that a safe&
conduct be issued to enable the
refugee to lea!e the country"
F" 7n *anuary 1E
th
, he further stated that
the refugee had been #uali-ed as a
political refugee"
9" The Peru!ian %o!ernment disputed this
#uali-cation and refused to grant a
safe&conduct"
8" + diplomatic correspondence ensued
which terminated in the signature, in
=ima, on +ugust A1, 12E2, of an +ct by
which the two %o!ernments agreed to
submit the case to the ,$*"
Issue2
7.0 Colo!bia !a# unilaterall# declare
that 8a#a de la Torre as a &olitical
reu*ee
8eld2
1" +s regards +merican ,nternational law,
$olombia had not pro!ed the
e.istence, either regionally or locally,
of a constant uniform practice of
unilateral #uali-cation as a right of the
)tate of refuge and an obligation upon
the territorial )tate
2" The facts submitted to the $ourt
disclosed too much contradiction and
Kuctuation to ma/e it possible to
discern therein a usage peculiar to
=atin +merica and accepted as law
A" ,t therefore followed that $olombia, as
the )tate granting asylum, was not
competent to #ualify the nature of the
o'ense by a unilateral and de-niti!e
decision binding Peru"
(orth )ea $ontinental )helf $ases
(;ederal Republic of %ermany@:enmar/,
;ederal Republic of %ermany@(etherlands)
,"$"*" Reports 12F2
;acts
a" The ,nternational $ourt of *ustice deli!ered
udgment, by 11 !otes to F"
b" Both :enmar/ and the (etherlands
submitted an indi!idual dispute with %ermany
to
the ,$* in!ol!ing claims to the (orth )ea
$ontinental )helf" These two separate
claims were oined by the ,$*, and decided as
one case" The parties sought a method
by which the $ontinental )helf could be fairly
delimited" +ll parties agreed the $ourt
was not to physically apportion claims, but
merely prescribe a method of
delimitation for the parties to follow"
c" :enmar/ and the (etherlands argued that
the method of e#uidistance should be
implemented" This is that each )tate claimed
all areas that are closer to itself than
any other state" They claimed that the %ene!a
$on!ention supported this method"
Moreo!er, it was alleged to ha!e been an a
priori rule of law, a rule of customary
international law, and a general rule of
con!entional practicality"
d" %ermany, who had not rati-ed the %ene!a
$on!ention, claimed that the rule of
e#uidistance was unfair" The )tate also argued
for an apportionment of the shelf that
was proportional to the si4e of each stateTs
adacent land"
Luestions
a" ,s the %ene!a $on!ention binding on a )tate
that has not rati-ed itP
b" ,s the e#uidistance rule international lawP
:ecisions
a" The $ourt found that the %ene!a $on!ention
is not binding on %erman, as it did not
ratify it"
b" 0hile the %ene!a $on!ention does call for
the rule of e#uidistance, the $ourt found
that the %ene!a $on!ention was not binding
upon %ermany" Moreo!er, the
stipulations outlined in the %ene!a $on!ention
would ha!e allowed %ermany to opt
out in this area, so its membership in the treaty
is a moot point"
3pon inspection of the language of both the
%ene!a $on!ention and the Truman
Proclamation, e#uidistance was found to be a
last resort rather than an a priori rule"
+lso loo/ing to these sources, the $ourt
reected claims which included e#uidistance
in customary international law" Theses te.ts
which originally included the rule of
e#uidistance only did so for secondary
purposes, and the utili4ation of it was
insuBcient to pro!e it to be either customary
international law, or a general law of
practicality" The $ourt also pointed out
mathematical problems of contradiction
under the rule"
The $ourt reected %ermanyTs claim of
proportional apportionment because doing so
would intrude upon the natural claims due to
)tates based on natural prolongations of
land" +lso, the $ourtTs role was to outline a
mechanism of delimitation only"
The $ourt found, therefore, that the two
parties must draw up an agreement ta/ing
both the ma.imi4ation of area and
proportionality into account" These were to be
based upon Qe#uitable principles"N The holding
here is somewhat inconclusi!e, but
the opinion is signi-cant to international law,
regardless"
Principles
a" The international law elements of the case
are the power of treaties, customary
international law, and the principle of
e#uidistance in claims to sea territory"
b" The rule of law upheld in this case is the
%ene!a $on!ention"
c" There are se!eral principles in this case
manifested in the %ene!a $on!ention" The
court reected the principle of e#uidistance" ,t
upheld, rather, the idea of Qe#uitable
principles,N which is only de-ned as those
which ma.imi4es land claims based
on se!eral cooperati!e factors" The $ourt also
upholds the principle of customary
international law by using the te.t of the
%ene!a $on!ention and its purpose to
e.clude the mechanism of e#uidistance"
$onclusions
The $ourtTs ruling has a terminal impact on the
principle of e#uidistance and its
utili4ation through the %ene!a $on!ention" The
$ourt does not proscribe its use, but
eliminates its legal credibility" This, of course,
has no impact on the rest of the
%ene!a $on!ention" +s the holding does not
prescribe any speci-c remedy, this case
does not signi-cantly aid in any future
decisions, other than for the purpose of
denying the e#uidistance principle legal
weight" ,f this case were used as precedent
otherwise, it would merely direct the disputing
states to loo/ to customary
international law and cooperati!e action"
Bibliography
(orth )ea $ontinental )helf, *udgment, ,"$"*"
Reports 12F2
)ubmitted
Rudolph > PZemyslid, March 1E, 2GG2
0uclear Test Case
Australia '. <rance, 0ew Lealand '. <rance
1974 ICC 5e&
(uclear Tests $ase (+ustralia W (ew Sealand !"
;rance) case brief
(uclear Tests $ase (+ustralia W (ew Sealand !"
;rance)
Procedural <istory1
Proceeding before the ,nternational $ourt of
*ustice"
7!er!iew1
+ustralia and (ew Sealand (P) demanded that
;rance (:) cease atmospheric nuclear tests in
the )outh Paci-c" ;rance (:) completed a
series of nuclear tests in the )outh Paci-c"
+ustralia and (ew Sealand (P) applied to
the ["$")" demanding that ;rance (:) cease
testing immediately" 0hile the case was
pending, ;rance (:) announced the series of
tests was complete and that it did not plan any
further such tests" ;rance (:) mo!ed to dismiss
the applications"
,ssue1
May declarations made by way of unilateral
acts ha!e the e'ect of creating legal
obligationsP
Rule1
declerations made by way of unilateral acts
may ha!e the e'ect of creating legal
obligations"
+nalysis1
The unilateral statements made by ;rench
authorities were -rst communicated to the
go!ernment of +ustralia" To ha!e legal e'ect
there was no need tor the statements to be
directed to any particular state" The general
nature and characteristics of the statements
alone were rele!ant for e!aluation of their legal
implications"
7utcome1
Ues" :eclarations made by way of unilateral
acts may ha!e the e'ect of creating legal
obligations" The sole rele!ant #uestion is
whether the language employed in any gi!en
declaration re!eals a clear intention" 7ne of
the basic principles go!erning the creation and
performance of legal obligations is the principle
of good faith" The statements made by the
President of the ;rench Republic must be held
to constitute an engagement of the )tate in
regard to the circumstances and intention with
which they were made" The statements made
by the ;rench authorities are therefore rele!ant
and legally binding" +pplications dismissed
0icara*ua '. G.S.
ICC 5e&orts 198A
,n *uly 1292 the %o!ernment of President
)omo4a collapsed following an armed
opposition led by the ;rente )andinista de
=iberacibn (acional (;)=() " The new
go!ernment ? installed by ;)=( ? began to
meet armed opposition from supporters of the
former )omo4a %o!ernment and e.&members
of the (ational %uard" The 3) ? initially
supporti!e of the new go!ernment ? changed
its attitude when, according to the 3nited
)tates, it found that (icaragua was pro!iding
logistical support and weapons to guerrillas in
6l )al!ador" ,n +pril 1281 it terminated 3nited
)tates aid to (icaragua and in )eptember
1281, according to (icaragua, the 3nited
)tates Qdecided to plan and underta/e
acti!ities directed against (icaraguaN"
The armed opposition to the new %o!ernment
was conducted mainly by (1) ;uer4a
:emocratica (icarag\ense (;:(), which
operated along the border with <onduras, and
(2) +lian4a Re!olucionaria :emocratica (+R:6),
which operated along the border with $osta
Rica, (see map of the region)" ,nitial 3) support
to these groups -ghting against the
(icaraguan %o!ernment (called QcontrasN) was
co!ert" =ater, the 3nited )tates oBcially
ac/nowledged its support (for e.ample1 ,n
128A budgetary legislation enacted by the
3nited )tates $ongress made speci-c pro!ision
for funds to be used by 3nited )tates
intelligence agencies for supporting Qdirectly or
indirectly military or paramilitary operations in
(icaraguaN)"
(icaragua also alleged that the 3nited )tates is
e'ecti!ely in control of the contras, the 3nited
)tates de!ised their strategy and directed their
tactics and that they were paid for and directly
controlled by 3nited )tates personal" (icaragua
also alleged that some attac/s were carried out
by 3nited )tates military ? with the aim to
o!erthrow the %o!ernment of (icaragua"
+ttac/s against (icaragua included the mining
of (icaraguan ports and attac/s on ports, oil
installations and a na!al base" (icaragua
alleged that aircrafts belonging to the 3nited
)tates Kew o!er (icaraguan territory to gather
intelligence, supply to the contras in the -eld
and to intimidate the population"
The 3nited )tates did not appear before the ,$*
at the merit stages, after refusing to accept the
,$*Ts urisdiction to decide the case" The 3nited
)tates at the urisdictional phase of the
hearing, howe!er, stated that it relied on an
inherent right of collecti!e self&defence
guaranteed in +" C1 of the 3( $harter by
Qpro!iding, upon re#uest, proportionate and
appropriate assistance]N to $osta Rica,
<onduras and 6l )al!ador in response to
(icaraguaTs alleged acts aggression against
those countries (paras" 12F, 128)"
Issue2
:id the 3nited )tates breach its customary
international law obligation ? not to inter!ene
in the a'airs of another )tate ? when it trained,
armed, e#uipped and -nanced the contra
forces or encouraged, supported and aided the
military and paramilitary acti!ities against
(icaraguaP
:id the 3nited )tates breach its customary
international law obligation ? not to use force
against another )tate ? when it directly
attac/ed (icaragua in 128A ? 128E and when
its acti!ities in bullet point 1 abo!e resulted in
the use of forceP
,f so, can the military and paramilitary
acti!ities that the 3nited )tates undertoo/ in
and against (icaragua be usti-ed as collecti!e
self&defenceP
:id the 3nited )tates breach its customary
international law obligation ? not to !iolate the
so!ereignty of another )tate ? when it directed
or authori4ed its aircrafts to Ky o!er
(icaraguan territory and by acts referred to in
bullet point 2 abo!eP
:id the 3nited )tates breach its customary
international law obligations ? not to !iolate the
so!ereignty of another )tate, not to inter!ene
in its a'airs, not to use force against another
)tate and not to interrupt peaceful maritime
commerce ? when it laid mines in the internal
waters and the territorial sea of (icaraguaP
8eld2
1" ,n order to deduce the e.istence of
customary rules, the $ourt deems it
suBcient that the conduct of states
should, in general, be consistent with
such rules, and that instance of state
conduct inconsistent with a gi!en rule
should generally ha!e been treated as
breaches of that rule, not as indications
of the recognition of a new rule
2" 7pinio uris, or the belief that a certain
form of beha!ior is obligatory, is what
ma/es practice an international rule"
0ithout it practice is not law" 6!en
humanitarian consideration by itself
does not constitute opinion uris" (fr"
Bernas)
A" ;or a new customary rule to be formed,
not only must the acts concerned
^amount to settled practiceT, but they
must be accompanied by the opinion
uris si!e necessitasis"
E" 6ither the )tates ta/ing such action or
other )tates in a position to react to it,
must ha!e beha!ed so that their
conduct is Qe!idence of a belief that
this practice is rendered obligatory by
the e.istence of a rule of law re#uiring
itN
C" The need for such belief (i"e" the
e.istence of a subecti!e element), is
implicit in the !ery notion of the
opinion uris si!e necessitasis (opinion
of law or necessity)
F" ,t considers that this opio uris may be
deduced from, inter alia, the attitude of
the Parties and )tates towards certain
%eneral +ssembly resolutions, and
particularly Resolution 2F2C entitle
Q:eclaration on Principles of
,nternational =aw concerning ;riendly
Relations and $o&operation among
)tates in +ccordance with the $harter
of the 3("N
9" $onsent to such resolutions is one of
the forms of e.pression of an opinion
uris with regard to the principle of non&
use of force, regarded as a principle of
customary international law,
independently of the pro!isions,
especially those of an institutional /ind,
to which it is subect on the treaty&law
plane of the $harter
8" +dherence to treaties can be indicati!e
of adherence to practice as opinion
uris"
,$* decision1 The 3nited )tates !iolated
customary international law in relation to bullet
points 1, 2, E and C abo!e" 7n bullet point A,
the $ourt found that the 3nited )tates could
not rely on collecti!e self&defence to ustify its
use of force against (icaragua"
Rele!ant ;indings of the $ourt1
1" The court held that the 3nited )tates
breached its customary international law
obligation ? not to use force against another
)tate1 (1) when it directly attac/ed (icaragua
in 128A ? 128E5 and (2) when its acti!ities with
the contra forces resulted in the threat or use
of force (see paras 189 &2G1)"
The $ourt held that1
The prohibition on the use of force is found in
+rticle 2(E) of the 3( $harter and in customary
international law"
,n a contro!ersial -nding the court sub&
classi-ed the use of force as1 (1) the Qmost
gra!e forms of the use of forceN (i"e" those that
constitute an armed attac/) and (2) the Qless
gra!e formN (i"e" organi4ing, instigating,
assisting or participating in acts of ci!il strife
and terrorist acts in another )tate ? when the
acts referred to in!ol!e a threat or use of force
not amounting to an armed attac/)"
The 3nited )tates !iolated the customary
international law prohibition on the use of force
when it laid mines in (icaraguan ports" ,t
!iolated this prohibition when it attac/ed
(icaraguan ports, oil installations and a na!al
base (see below)" The 3nited )tates could
ustify its action on collecti!e self&defence, if
certain criteria were met ? this aspect is
discussed below"
The 3nited )tates !iolated the customary
international law prohibition on the use of force
when it assisted the contras by Qorgani4ing or
encouraging the organi4ation of irregular forces
and armed bands] for incursion into the
territory of another stateN and participated Qin
acts of ci!il strife]in another )tateN when
these acts in!ol!ed the threat or use of force"
The supply of funds to the contras did not
!iolate the prohibition on the use of force"
(icaragua argued that the timing of the
o'ensi!es against it was determined by the
3nited )tates1 i"e" an o'ensi!e could not be
launched until the re#uisite funds were
a!ailable" The $ourt held that Q]it does not
follow that each pro!ision of funds by the
3nited )tates was made to set in motion a
particular o'ensi!e, and that that o'ensi!e
was planned by the 3nited )tates"N The $ourt
held further that while the arming and training
of the contras in!ol!ed the threat or use of
force against (icaragua, the supply of funds, in
it self, only amounted to an act of inter!ention
in the internal a'airs of (icaragua (para 229) ?
this aspect is discussed below"
0hat is an armed attac/P
+ contro!ersial but interesting aspect of the
$ourtTs udgement was its de-nition of an
armed attac/" The $ourt held that an armed
attac/ included1
(1) action by regular armed forces across an
international border5 and
(2) Qthe sending by or on behalf of a )tate of
armed bands, groups, irregulars or
mercenaries, which carry out acts of armed
force against another )tate of such gra!ity as
to amount to (inter alia) an actual armed attac/
conducted by regular forces, or its (the )tateTs)
substantial in!ol!ement thereinN
(B1 The second point somewhat resembles
+rticle A (g) of the 3(%+ Resolution AA1E
(MM,M) on the :e-nition of +ggression"
Mere frontier incidents are not considered as
an armed attac/ ? unless because of its scale
and e'ects it would ha!e been classi-ed as an
armed attac/ if it was carried out by regular
forces"
+ssistance to rebels in the form of pro!ision of
weapons or logistical support did not constitute
an armed attac/ ? it can be regarded as a
threat or use of force, or an inter!ention in the
internal or e.ternal a'airs of other )tates (see
paras 12C, 2AG)"
3nder +rticle C1 of the 3( $harter and under
$,= ? self&defence is only a!ailable against a
use of force that amounts to an armed attac/
(para 211)"
(B1 ,n in the $ase $oncerning 7il Platforms
and the ad!isory opinion on the =egal
$onse#uences of of the $onstruction of a 0all
in the 7ccupied Palestinian Territory
(hereinafter called the Palestine wall case) the
,$* upheld the de-nition of Qarmed attac/N
proposed in the (icaragua case" ,n the
Palestinian wall case, the attac/s from which
,srael was claiming self defence originated
from non&)tate actors" <owe!er, the $ourt held
that +rticle C1_s inherent right of self defence
was a!ailable to one )tate only against
another )tate (para 1A2)" *udges <iggins,
Buergenthal and Dooimans opposed this
narrow !iew" +rticles on )tate Responsibility,
prepared by the ,nternational =aw $ommission,
pro!ided signi-cant guidance as to when acts
of non&)tate actors may be attributed to
)tates" These articles, together with recent
)tate practice relating attac/s on terrorists
operating from other countries (see legal
opinions surrounding the 3nited )tates attac/
on +fghanistan), may ha!e widened the scope
of an armed attac/, and conse#uently, the
right of self defence, en!isaged by the ,$*"
2" The $ourt held that the 3nited )tates could
not ustify its military and paramilitary
acti!ities on the basis of collecti!e self&defence"
$ustomary international law allows for
e.ceptions to the prohibition on the use of
force ? including the right to indi!idual or
collecti!e self&defence (for a di'erence
between the two forms of self defence, clic/
here)" The 3nited )tates, at an earlier stage of
the proceedings, had asserted that the $harter
itself ac/nowledges the e.istence of this
customary international law right when it tal/s
of the QinherentN right of a )tate under +rticle
C1 of the $harter (para"12A)"
0hen a )tate claims that it used force in
collecti!e self&defence, the $ourt would loo/
into two aspects1
(1) whether the circumstances re#uired for the
e.ercise of self&defence e.isted and
(2) whether the steps ta/en by the )tate, which
was acting in self&defence, corresponds to the
re#uirements of international law (i"e" did it
comply with the principles of necessity and
proportionality)"
)e!eral criteria must be met for a )tate to
e.ercise the right of indi!idual or collecti!e
self&defence1
(1) + )tate must ha!e been the !ictim of an
armed attac/5
(2) This )tate must declare itself as a !ictim of
an armed attac/5 I(B1 the assessment whether
an armed attac/ too/ place nor not is done by
the state who was subected to the attac/" +
third )tate cannot e.ercise a right of collecti!e
self&defence based its (the third )tateTs) own
assessmentJ5 and
(A) ,n the case of collecti!e self&defence ? the
!ictim )tate must re#uest for assistance
(Qthere is no rule permitting the e.ercise of
collecti!e self&defence in the absence of a
re#uest by the )tate which regards itself as the
!ictim of an armed attac/N)"
(E) The )tate does not, under customary
international law, ha!e the same obligation as
under +rticle C1 of the 3( $harter to report to
the )ecurity $ouncil that an armed attac/
happened ? but Qthe absence of a report may
be one of the factors indicating whether the
)tate in #uestion was itself con!inced that it
was acting in self&defenceN (see below)"
Q+t this point, the $ourt may consider whether
in customary international law there is any
re#uirement corresponding to that found in the
treaty law of the 3nited (ations $harter, by
which the )tate claiming to use the right of
indi!idual or collecti!e self&defence must report
to an international body, empowered to
determine the conformity with international law
of the measures which the )tate is see/ing to
ustify on that basis" Thus +rticle C1 of the
3nited (ations $harter re#uires that measures
ta/en by )tates in e.ercise of this right of self&
defence must be Qimmediately reportedN to the
)ecurity $ouncil" +s the $ourt has obser!ed
abo!e (paragraphs 198 and 188), a principle
enshrined in a treaty, if reKected in customary
international law, may well be so
unencumbered with the conditions and
modalities surrounding it in the treaty"
0hate!er inKuence the $harter may ha!e had
on customary international law in these
matters, it is clear that in customary
international law it is not a condition of the
lawfulness of the use of force in self&defence
that a procedure so closely dependent on the
content of a treaty commitment and of the
institutions established by it, should ha!e been
followed" 7n the other hand, if self&defence is
ad!anced as a usti-cation for measures which
would otherwise be in breach both of the
principle of customary international law and of
that contained in the $harter, it is to be
e.pected that the conditions of the $harter
should be respected" Thus for the purpose of
en#uiry into the customary law position, the
absence of a report may be one of the factors
indicating whether the )tate in #uestion was
itself con!inced that it was acting in self&
defence ()ee paras 2GG, 2A2 &2AF)N"
The $ourt loo/ed e.tensi!ely into the conduct
of (icaragua, 6l )al!ador, $osta Rica and
<onduras in determining whether an armed
attac/ was underta/en by (icaragua against
the three countries ? which in turn would
necessitate self&defence (paras 2AG & 2AF)" The
$ourt referred to statements made by 6l
)al!ador, $osta Rica, <onduras and the 3nited
)tates before the )ecurity $ouncil" (one of the
countries who were allegedly subect to an
armed attac/ by (icaragua (1) declared
themsel!es as a !ictim of an armed attac/ or
re#uest assistance from the 3nited )tates in
self&defence ? at the time when the 3nited
)tates was allegedly acting in collecti!e self&
defence5 and (2) the 3nited )tates did not
claim that it was acting under +rticle C1 of the
3( $harter and it did not report that it was so
acting to the )ecurity $ouncil" The $ourt
concluded that the 3nited )tates cannot ustify
its use of force as collecti!e self&defence"
The criteria with regard to necessity and
proportionality, that is necessary when using
force in self&defence ? was also not ful-lled
(para 2A9)"
A" The $ourt held that the 3nited )tates
breached its $,= obligation ? not to inter!ene in
the a'airs of another )tate ? when it trained,
armed, e#uipped and -nanced the contra
forces or encouraged, supported and aided the
military and paramilitary acti!ities against
(icaragua"
The principle of non& inter!ention means that
e!ery )tate has a right to conduct its a'airs
without outside interference ? i"e it Q]forbids
)tates or groups of )tates to inter!ene directly
or indirectly in internal or e.ternal a'airs of
other )tates"N " This is a corollary of the
principle of so!ereign e#uality of )tates"
+ prohibited inter!ention must accordingly be
one bearing on matters in which each )tate is
permitted, by the principle of )tate so!ereignty
to decide freely" 7ne of these is the choice of a
political, economic, social and cultural system,
and the formulation of foreign policy"
,nter!ention is wrongful when it uses methods
of coercion in regard to such choices, which
must remain free ones" The element of
coercion, which de-nes, and indeed forms the
!ery essence of, prohibited inter!ention, is
particularly ob!ious in the case of an
inter!ention which uses force, either in the
direct form of military action, or in the indirect
form of support for sub!ersi!e or terrorist
armed acti!ities within another )tate (para
2GC)"
(icaragua stated that the acti!ities of the
3nited )tates were aimed to o!erthrow the
go!ernment of (icaragua and to substantially
damage the economy and wea/en the political
system to coerce the %o!ernment of (icaragua
to accept !arious political demands of the
3nited )tates" The $ourt held1
Q]-rst, that the 3nited )tates intended, by its
support of the contras, to coerce the
%o!ernment of (icaragua in respect of matters
in which each )tate is permitted, by the
principle of )tate so!ereignty, to decide freely
(see paragraph 2GC abo!e) 5 and secondly that
the intention of the contras themsel!es was to
o!erthrow the present %o!ernment of
(icaragua] The $ourt considers that in
international law, if one )tate, with a !iew to
the coercion of another )tate, supports and
assists armed bands in that )tate whose
purpose is to o!erthrow the go!ernment of that
)tate, that amounts to an inter!ention by the
one )tate in the internal a'airs of the other,
whether or not the political obecti!e of the
)tate gi!ing such support and assistance is
e#ually far reaching"N
The -nancial support, training, supply of
weapons, intelligence and logistic support
gi!en by the 3nited )tates to the contras was a
breach of the principle of non&interference" Q]
no such general right of inter!ention, in
support of an opposition within another )tate,
e.ists in contemporary international lawN, e!en
if such a re#uest for assistance is made by an
opposition group of that )tate (see para 2EF for
more)"
<owe!er, in a contro!ersial -nding, the $ourt
held that the 3nited )tates did not de!ise the
strategy, direct the tactics of the contras or
e.ercise control on them in manner so as to
ma/e their acts committed in !iolation of
international law imputable to the 3nited
)tates (see in this respect Q:etermining 3)
responsibility for contra operations under
international lawN 81 +M*,= 8F)"T he $ourt
concluded that Qa number of military and
paramilitary operations of the contras were
decided and planned, if not actually by 3nited
)tates ad!isers, then at least in close
collaboration with them, and on the basis of
the intelligence and logistic support which the
3nited )tates was able to o'er, particularly the
supply aircraft pro!ided to the contras by the
3nited )tatesN but not all contra operations
reKected strategy and tactics wholly de!ised
by the 3nited )tates"
Q,n sum, the e!idence a!ailable to the $ourt
indicates that the !arious forms of assistance
pro!ided to the contras by the 3nited )tates
ha!e been crucial to the pursuit of their
acti!ities, but is insuBcient to demonstrate
their complete dependence on 3nited )tates
aid" 7n the other hand, it indicates that in the
initial years of 3nited )tates assistance the
contra force was so dependent" <owe!er,
whether the 3nited )tates %o!ernment at any
stage de!ised the strategy and directed the
tactics of the contras depends on the e.tent to
which the 3nited )tates made use of the
potential for control inherent in that
dependence" The $ourt already indicated that
it has insuBcient e!idence to reach a -nding
on this point" ,t is a fortiori unable to determine
that the contra force may be e#uated for legal
purposes with the forces of the 3nited )tates]
The $ourt has ta/en the !iew (paragraph 11G
abo!e) that 3nited )tates participation, e!en if
preponderant or decisi!e, in the -nancing,
organi4ing, training, supplying and e#uipping
of the contras, the selection of its military or
paramilitary targets, and the planning of the
whole of its operation, is still insuBcient in
itself, on the basis of the e!idence in the
possession of the $ourt, for the purpose of
attributing to the 3nited )tates the acts
committed by the contras in the course of their
military or paramilitary operations in
(icaragua" +ll the forms of 3nited )tates
participation mentioned abo!e, and e!en the
general control by the respondent )tate o!er a
force with a high degree of dependency on it,
would not in themsel!es mean, without further
e!idence, that the 3nited )tates directed or
enforced the perpetration of the acts contrary
to human rights and humanitarian law alleged
by the applicant )tate" )uch acts could well be
committed by members of the contras without
the control of the 3nited )tates" ;or this
conduct to gi!e rise to legal responsibility of
the 3nited )tates, it would in principle ha!e to
be pro!ed that that )tate had e'ecti!e control
of the military or paramilitary"N
,nteresting, howe!er, the $ourt also held that
pro!iding Q]humanitarian aid to persons or
forces in another country, whate!er their
political aBliations or obecti!es, cannot be
regarded as unlawful inter!ention, or as in any
other way contrary to international lawN (para
2E2)"
,n the e!ent one )tate inter!enes in the a'airs
of another )tate, the !ictim )tate has a right to
inter!ene in a manner that is short of an armed
attac/ (21G)"
Q0hile an armed attac/ would gi!e rise to an
entitlement to collecti!e self&defence, a use of
force of a lesser degree of gra!ity cannot as
the $ourt has already obser!ed (paragraph 21
1 abo!e)" produce any entitlement to ta/e
collecti!e countermeasures in!ol!ing the use of
force" The acts of which (icaragua is accused,
e!en assuming them to ha!e been established
and imputable to that )tate, could only ha!e
usti-ed proportionate counter&measures on the
part of the )tate which had been the !ictim of
these acts, namely 6l )al!ador, <onduras or
$osta Rica" They could not ustify counter&
measures ta/en by a third )tate, the 3nited
)tates, and particularly could not ustify
inter!ention in!ol!ing the use of force"N
E" The 3nited )tates breached its customary
international law obligation ? not to !iolate the
so!ereignty of another )tate ? when it directed
or authori4ed its aircrafts to Ky o!er
(icaraguan territory and when it laid mines in
the internal waters of (icaragua and its
territorial sea"
The ,$* e.amined e!idence and found that in
early 128E mines were laid in or close to ports
of the territorial sea or internal waters of
(icaragua Qby persons in the pay or acting ion
the instructionsN of the 3nited )tates and
acting under its super!ision with its logistical
support" The 3nited )tates did not issue any
warning on the location or e.istence of mines
and this resulted in inuries and increases in
maritime insurance rates"
The court found that the 3nited )tates also
carried out high&altitude reconnaissance Kights
o!er (icaraguan territory and certain low&
altitude Kights, complained of as causing sonic
booms"
The basic concept of )tate so!ereignty in
customary international law is found in +rticle
2(1) of the 3( $harter" )tate so!ereignty
e.tends to a )tateTs internal waters, its
territorial sea and the air space abo!e its
territory" The 3nited )tates !iolated customary
international law when it laid mines in the
territorial sea and internal waters of (icaragua
and when it carried out unauthorised
o!erKights o!er (icaraguan airspace by
aircrafts that belong to or was under the
control of the 3nited )tates"
Material on the (icaragua case
The following contains a list of scholarly
articles and other material that discuss the
(icaragua case" ,f you would li/e to add to the
list, please note your suggestions in the
comment bo."
The udgment including separate opinions of
indi!idual udges and summaries of the
udgment and orders
The 0orld $ourt and *us $ogens, 81 +M*,= 2A,
%orden +" $hristenson" $hristenson argues that
an independent de!elopment of the customary
law right di!orced from the treaty can ha!e
wider conse#uences1
0e ha!e then a double irony" The $ourt uses
the 3nited )tates position accepting the treaty
norm against the threat or use of force also as
a customary norm possibly ha!ing us cogens
#uality, in part, to ustify ta/ing urisdiction as a
matter #uite independent of the norm that
otherwise falls under the multilateral treaty
reser!ation" )ince there are two separate
sources of the law, the choice of the one source
rather than the other means that the norm
relied upon sur!i!es the urisdictional bar to
the use of the other" Uet the two norms are not
di'erent enough to undermine completely the
content of the $harter norm" This formalism
simply mas/s the more interesting #uestion of
the $ourtTs institutional claim, gi!en the
ine'ecti!eness of the 3( )ecurity system, to
de!elop an international public order case by
case, by brea/ing away form the strictures of
the $harter and treaty norms" The $ourt untied
the treaty norms from their constraints within
the 3nited (ations or regional collecti!e
security systems, a potentially destabili4ing
decision, one whose conse#uences are
unforeseen" The decision based on the !alidity
of an autonomous norm of customary
international law free from the $harter is a
constituti!e one of potential great signi-cance
(81 +M*,= 1GG, 1289)"
Trashing customary international law, +ntony
:T+mato, 81 +M*,= 1G2 (1289) (full te.t)1
(:T+mato discusses the paucity of )tate
practice e.amined by the international court of
ustice before concluding that the principle
non&inter!ention formed part of customary
international law" <e argues that the
acceptance of %eneral +ssembly resolutions do
not manifest opinio uris" <e states that the
$ourt failed to consider that +rticle 2(E)
continued to e!ol!e through the years")
The 0orld $ourtTs +chie!ement, Richard ;al/,
81 +M*,= 1GF (;al/ ta/es a generally positi!e
approach to the udgment, gi!es a good
o!er!iew of the case and *udge )hwebelTs
dissent)
:rawing the right line, Tom *" ;arer, 81 +M*,=
112 (;arer ta/es a cold&war conte.tual
approach to the udgment and supports the
$ourtTs narrow !iew of an armed attac/ and
self defence)"
)ome obser!ations on the ,$*Ts procedural and
substanti!e inno!ations, Thomas M" ;ranc/, 81
+M*,= 11F (critici4es the determination of
rele!ant )tate practice in relation to non&
inter!ention and the reliance on 3( resolutions
to illicit opinio uris (it alleges that the $ourt
sought to harden soft law prematurely)" ;ran/
points out that the inter!entions falling short of
armed attac/s would not allow )tates to target
rebel groups in another )tateTs territory e!en if
the insurgency is planned, trained, armed and
directed from that territory)"
Protecting the $ourtTs institutional interests1
0hy not the Marbury approachP Michael *"
%lennon, 81 +M*,= 121 (discusses reser!ations
before the ,$* and the $ourtTs prerogati!e to
determine its own urisdiction)
:iscretion to decline to e.ercise urisdiction,
6dward %orden, 81 +M*,= 122 (discusses the
discretionary power of the court to decline to
e.ercise its urisdiction at the merit stages)"
The (icaragua udgment and the future of the
law of force and self&defense, *ohn =awrence
<argro!e 81+M*,= 1AC (<argro!e critici4es the
,$*Ts construction of the notion of collecti!e self
defense, armed attac/ and forcible
countermeasures)"
)omber reKections on the compulsory
urisdiction of the international court, Mar/
0eston *anis, 81 +M*,= 1EE
$ustom on a sliding scale, ;rederic =" Dirgis 81
+M*,= 1EF (Dirgis discusses the relationship
between )tate practice and opinio uris,
critici4es the methods (or lac/ thereof) of the
$ourt in determining the customary law nature
of +rticle 2(E) of the $harter" Points out that
actual )tate practice on inter!ention did not
support the $ourtTs -ndings)"
The ,nternational $ourt li!es unto its name,
<erbert 0" Briggs, 81 +M*,= 98"
:etermining 3) responsibility for contra
operations under international law, ;rancis >"
Boyle
=e peuple, cTest moi[The world court and
human rights, 81 +M*,= 19A
=*,= )ymposium1 :iscussion of the ,$*
(icaragua *udgment
The ,mpact of the (icaragua $ase on the $ourt
and ,ts Role1 <armful, <elpful, or ,n BetweenP,
=ori ;isler :amrosch (+bstract1 +t the time the
3nited )tates withdrew from participation in
the (icaragua case at the ,nternational $ourt of
*ustice, the 3) go!ernment e.pressed concern
that ^the course on which the $ourt may now
be embar/ed could do enormous harm to it as
an institution and to the cause of international
lawT" This essay e.amines whether or to what
e.tent the anticipated negati!e e'ects came to
pass" ,t concludes that dire predictions of harm
to the $ourt were o!erstated" Twenty&-!e years
later, the rate at which states accept the
$ourtTs urisdiction has held steady" 7nly a few
states ha!e added urisdictional reser!ations
concerning military acti!ities" The mi. of cases
being brought to the $ourt has shifted towards
a more representati!e distribution" )tates are
generally complying with the $ourtTs decisions,
though some compliance problems remain" The
most serious negati!e impact has been on the
willingness of the 3nited )tates (still the
$ourtTs most acti!e litigant) to participate fully
in international dispute settlement")
=*,= )ymposium1 The (icaragua $ase1 ,ts
,mpact, *ohn :ugard
=*,= )ymposium1 Response of =ori ;" :amrosch
to $omments by *ohn :ugard, =ori ;" :amrosch
The Principle of (on&,nter!ention 2C Uears after
the (icaragua *udgment, by Marcelo
Dohen(+bstract1 This article focuses on the
analysis by the ,nternational $ourt of *ustice of
the principle of non&inter!ention in domestic
a'airs in its udgment of 29 *une 128F in the
case concerning Military and Paramilitary
+cti!ities in and against (icaragua and
contrasts it with the e!olution of international
law and practice in this -eld" ,t is proposed that
the $ourtTs 128F analysis not only remains of
actuality today, but also constitutes a
precursor to legal de!elopments that ha!e
since ta/en place" This is particularly the case
with regard to the relationship between the
protection of human rights on the one hand
and the safeguard of state so!ereignty and the
collecti!e security regime on the other" The
128F udgment helped to clarify the content of
humanitarian assistance" ,t constituted the
starting point for the de!elopment of this
concept in a series of %+ resolutions that were
subse#uently adopted" The contro!ersial
doctrine of ^humanitarian inter!entionT, as well
as state practice in !iolation of this principle, in
no way led to modifying e.isting international
law" )imilarly, the new concept of
^responsibility to protectT, which places
emphasis on collecti!e security and discounts
unilateral action, has not led to the
disappearance of the principle of non&
inter!ention either")
=*,= )ymposium1 ;rom (icaragua to R2P1
$ontinuity and $hange, +ndr` (oll/aemper