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NOTES

:

2008 LEI Notes in

Public International Law
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“Nam omnia praeclara tam difficilia quam rara sunt”
For all that is excellent and eminent is as difficult as it is rare
-Spinoza on Ethics

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PUBLIC INTERNATIONAL LAW 2008

INTRODUCTION
Definition
Public v Private International Law
Basis of Public International Law
1. Naturalist
2. Positivists
3. Eccletics
Three Grand Divisions
Relations between International and Municipal
Law
1. From the viewpoint of doctrine
a. Dualist
b. Monists
2. From the view of practice
a. Doctrine of Transformation
b. Doctrine of Incorporation

t of
Dispu
te

through
internatio
nal modes
of
settlemen
t – like
negotiatio
ns
and
arbitratio
n,
reprisals
and even
war

tribunals
through local
administrativ
e and judicial
processes.

3.
Sourc
e

Derived
from such
sources as
internatio
nal
customs,
internatio
nal
conventio
ns and the
general
principles
of law.

Consists
mainly from
the
lawmaking
authority of
each state.

4.
Subje
ct

Applies to
relations
states
inter
se
and other
internatio
nal
persons.

Regulates the
relations of
individuals
whether
of
the
same
nationality or
not.

5.
Respo
nsibil
ity
for
violat
ion

Infractions
are
usually
collective
in
the
sense that
it
attaches
directly to
the state
and not to
its
nationals.

Generally,
entails only
individual
responsibility
.

¯°º°¯
DEFINITION OF Public International Law
It is the body of rules and principles that are
recognized as legally binding and which govern
the relations of states and other entities invested
with international legal personality. Formerly
known as “law of nations” coined by Jeremy
Bentham in 1789.
Public International Law Distinguished From
Private International Law/Conflict of Laws
It is that part of the law of each State which
determines whether, in dealing with a factual
situation, an event or transaction between private
individuals or entities involving a foreign element,
the law of some other State will be recognized.

1.
Natur
e

2.
Settl
emen

Public

Private

Public is
internatio
nal
in
nature. It
is a law of
a
sovereign
over those
subjected
to
his
sway
[Openhei
m

Lauterpac
ht, 38.]

As a rule,
Private
is
national
or
municipal in
character.
Except when
embodied in
a treaty or
convention,
becomes
international
in character.
It is a law,
not
above,
but between,
sovereign
states and is,
therefore, a
weaker law.
[Openheim –
Lauterpacht,
38.]

Disputes
are
resolved

Recourse
with
municipal

is

BASIS OF PIL – 3 SCHOOLS OF THOUGHT [Why are
rules of international law binding?]
1. Naturalist –
★ PIL is a branch of the great law of nature –
the sum of those principles which ought to
control human conduct, being founded on
the very nature of man as a rational and
social being. [Hugo Grotius]
★ PIL is binding upon States

Notes:

3

2. Positivist –
★ Basis is to be found in the consent and
conduct of States.
★ Tacit consent in the case of customary
international law.
★ Express in conventional law.
★ Presumed in the general law of nations.
[Cornelius van Bynkershoek]
3. Groatians or Eclectics –
★ Accepts the doctrine of natural law, but
maintained that States were accountable
only to their own conscience for the
observance of the duties imposed by
natural law, unless they had agreed to be
bound to treat those duties as part of
positive law. [Emerich von Vattel]
★ Middle ground
3 GRAND DIVISIONS
1. Laws of Peace – normal relations between
states in the absence of war.
2. Laws of War – relations between hostile or
belligerent states during wartime.
3. Laws of Neutrality – relations between a nonparticipant state and a participant state during
wartime. This also refers to the relations among
non-participating states.
RELATIONS BETWEEN INTERNATIONAL LAW AND
MUNICIPAL LAW
From the Viewpoint of Doctrine
1. Dualists –
★ International Law and Municipal Law are
two completely separate realms.
★ See distinctions Nos. 1,3 &4.
2. Monists –
★ Denies that PIL and Municipal Law are
essential different.
★ In both laws, it is the individual persons
who in the ultimate analysis are regulated
by the law. That both laws are far from
being essentially different and must be
regarded as parts of the same juristic
conception. For them there is oneness or
unity of all laws.
★ PIL is superior to municipal law—
international law, being the one which
determines the jurisdictional limits of the
personal and territorial competence of
States.
From the Viewpoint of Practice
1. International Tribunals
★ PIL superior to Municipal Law
★ Art. 27, Vienna Convention in the law of
Treaties – A state “may not invoke the
provisions of its internal law as justification
for its failure to perform a treaty”

PUBLIC INTERNATIONAL LAW 2008

State legally bound to observe its treaty
obligations, once signed and ratified

2. Municipal Sphere – depends on what doctrine is
followed:
Doctrine of Incorporation Rules of international law form part of the law of
the land and no further legislative action is
needed to make such rules applicable in the
domestic sphere. [Sec. of Justice v. Lantion GRN
139465, Jan. 18, 2000]
This is followed in the Philippines:
Art. II, Sec. 2 – “The Philippines…adopts the
generally accepted principles of international law
as part of the law of the land…” However, no
primacy is implied.
Q: What are these generally accepted
principles?
A: Pacta sunt servanda, sovereign equality among
states, principle of state immunity; right of states
to self-defense
Secretary Of Justice v. Judge Lantion and
Jimenez [GR 139465, 18 Jan. 2000]
FACTS: A possible conflict between the US-RP
Extradition Treaty and Philippine law
ISSUE: WON, under the Doctrine of Incorporation,
International Law prevails over Municipal Law
HELD: NO.
Under the doctrine of incorporation, rules of
international law form part of the law of the land
and no further legislative action is needed to
make such rules applicable in the domestic
sphere.
The doctrine of incorporation is applied whenever
local courts are confronted with situations in
which there appears to be a conflict between a
rule of international law and the provisions of the
local state’s constitution/statute.
First, efforts should first be exerted to harmonize
them, so as to give effect to both. This is because
it is presumed that municipal law was enacted
with proper regard for the generally accepted
principles of international law in observance of
the incorporation clause.
However, if the conflict is irreconcilable and a
choice has to be made between a rule of
international
law
and
municipal
law,
jurisprudence dictates that the municipal courts
should uphold municipal law.

Notes:

In case of conflict.a treaty may repeal a statute and a statute may repeal a treaty . By their inherent nature. such as in ours.R. they also commonly agree to limit the exercise of their otherwise absolute rights. so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the Incorporation Clause in Section 2. rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. the lease of naval bases. the termination of war. states. like individuals. 1997 [Panganiban]) Doctrine of Transformation – Legislative action is required to make the treaty enforceable in the municipal sphere. it is however subject to restrictions and limitations voluntarily agreed to by the Philippines. The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere.will apply. No.4 This is because such courts are organs of municipal law and are accordingly bound by it in all circumstances. (Secretary of Justice v. In states where the Constitution is the highest law of the land. Notes: . 18. One of the oldest and most fundamental rules in international law is pacta sunt servanda – international agreements must be performed in good faith. In a situation however. decrees that rules of international law PUBLIC INTERNATIONAL LAW 2008 are given equal standing with. In states where the constitution is the highest law of the land. the settling of claims. Lantion. the country is bound by generally accepted principles of international law. the principle of lex posterior derogat priori takes effect – a treaty may repeal a statute and a statute may repeal a treaty. G. (Tanada v. By the doctrine of incorporation. the sale or cession of territory. 1987 Constitution Q: What is the doctrine of incorporation? How is it applied by local courts? Held: Under the doctrine of incorporation. where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law. Angara. Article II of the Constitution. what are its restrictions and limitations? Held: While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level. The doctrine of incorporation. After all. treaties really limit or restrict the absoluteness of sovereignty. the courts should harmonize both laws first and if there exists an unavoidable contradiction between them. the regulation of commercial relations. Ralph C. The fact that international law was made part of the law of the land does not pertain to or imply the primacy of international law over national/municipal law in the municipal sphere. but are not superior to. Art. as applied in most countries. 5(2)(a). But if these laws are found in conflict with the Constitution. Supreme Court has the power to invalidate a treaty – Sec. for example. 139465. VIII. and in pursuit of mutually covenanted objectives and benefits. 272 SCRA 18. national legislative enactments. these laws must be stricken out as invalid. expressly or impliedly. both statutes and treaties may be invalidated if they are in conflict with the constitution. jurisprudence dictates that municipal law should be upheld by the municipal courts for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances. live with coequals. but are not superior to. The doctrine of incorporation. Hon. as a member of the family of nations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. treaties have been used to record agreements between States concerning such widely diverse matters as. Accordingly. such as the Republic of the Philippines. En Banc [Melo]) Q: Is sovereignty really absolute and allencompassing? If not. as applied in most countries. Thus. The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the Constitution or statute of the local state. national legislative enactments. decrees that rules of international law are given equal standing with. Efforts should first be exerted to harmonize them. By their voluntary act. the principle of lex posterior derogat priori . the regulation of conduct of hostilities. May 2. Jan. the laying down of rules governing conduct in peace and the establishment of international organizations. nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. which are considered to be automatically part of our own laws. the formation of alliances. both statutes and treaties may be invalidated if they are in conflict with the Constitution. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations. 2000. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations.

confirming. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the [arties. Q: A treaty was concurred between RP and China. goods and services. Treaties or International Conventions II. COMELEC) Pacta Sunt Servanda International agreements must be performed in Good Faith. which are considered to be automatically part of our own laws. containing practically uniform provisions. the country is bound by generally accepted principles of international law. [GRN L-2662 March 26. or defining their understanding of what the law is on a particular subject." Concept of Sovereignty as Autolimitation When the Philippines joined the United Nations as one of its 51 charter members. General Principles of Law Recognized by Civilized Nations B. a law was passed which has conflicting provisions with the treaty. Article 38 of the Statute of International Court of Justice (SICJ) directs that the following be considered before deciding a case: A. This doctrine runs counter Art. 1997 While sovereignty has traditionally been deemed absolute and all encompassing on the domestic level. Sec. International Custom III. SOURCES Tañada vs. 1949].: Extradition Treaties 2. A: A treaty is part of the law of the land.5 PUBLIC INTERNATIONAL LAW 2008 Generally accepted rules of international law are not per se binding upon the state but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law. Law-Making Treaty [Traite-Loi] – ★ Concluded by a large number of States for purposes of: 1. By the doctrine of incorporation. Stipulating or laying down new general rules for future international conduct. But as internal law. The constitutional policy of a "self-reliant and independent national economy" does not necessarily rule out the entry of foreign investments. A reading of the case of Kuroda v Jalandoni. 2. Later. being a subsequent law under the principle lex posterior derogat priori. and are concluded by a substantial number of States EX. of the 1987 Constitution. II. expressly or impliedly as a member of the family of nations. Secondary IV. The Constitution does not envision a hermit type isolation of the country from the rest of the world. Declaring. for our Constitution has been deliberately general and extensive in its scope and is not cofined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory. the latter law would be considered as amendatory of the treaty. one may say that Supreme Court expressly ruled out the Doctrine of Transformation when they declared that generally accepted principles of international law form a part of the law of our nation even if the Philippines was not a signatory to the convention embodying them. Contract Treaties [Traite-Contrat] – ★ Bilateral arrangements concerning matters of particular or special interest to the contracting parties ★ Source of “Particular International Law” ★ BUT: May become primary sources of international law when different contract treaties are of the same nature. Angara GRN 118295 May 2. Creating new international institutions Notes: . (Abbas vs. it is however subject to restrictions and limitations voluntarily agreed to by the Philippines. it would not be superior to a legislative act. Teachings of authoritative publicists ¯°º°¯ A. A state which has contracted a valid international obligation is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken. Primary I. Judicial Decisions V. Primary I. It contemplates neither “economic seclusion" nor "mendicancy in the international community. Thus. 2. Treaties or International Conventions – 2 KINDS: 1. rather it would be in the same class as the latter. it consented to restrict its sovereign rights under the "concept of sovereignty as autolimitation. Rule. 3.

Alternative A: Reflecting general international law. we may refer to the principle embodied in Article 6 of the Vienna Convention on the Law on Treaties which reads: “Every State possesses capacity to conclude treaties. This includes decisions of national courts.. [Mr. and thus. thus the term should include all nations. US.” It tells us what the law is and the process or method by which it cam into being. Custom is the practice that has grown up between States and has come to be accepted as binding by the mere fact of persistent usage over a long period of time It exists when a clear and continuous habit of doing certain things develops under the CONVICTION that it is obligatory and right.” The primary sources may be considered as formal sources in that they are considered methods by which norms of international law are created and recognized.g. Article 38(1) of the Statute of International Court of Justice is understood as providing for international convention. supplementing treaty rules. but for trustworthy evidence of what the law really is. 175 U. The idea of “civilized nations” was intended to restrict the scope of the provision to European States. International Custom – Matters of international concern are not usually covered by international agreements and many States are not parties to most treaties. General principles of law recognized by civilized nations. B. Justice Gray in Paquete Habana case. international custom. III. international custom remains a significant source of international law.g. although they are not a source of law. accorded with great respect. General Principles of Law Recognized by Civilized Nations Salonga opines that resort is taken from general principles of law whenever no custom or treaty provision is applicable. V. e. Judicial decisions The doctrine of stare decisis is not applicable in international law per Art. prescription. the International conventions. To elevate a mere usage into one of a customary rule of international law. while indicating that judicial decisions and teachings of the most highly qualified publicists as “subsidiary means for the determination of the rules of law. (2003 Bar) A: Under Article 38 of the Statute of International Court of Justice. International customs. pacta sunt servanda. Teachings of authoritative publicists – including learned writers Such works are resorted to by judicial tribunals not for the speculation of their authors concerning what the law ought to be. and teachings of the most highly qualified publicists of various nations. Examples of general principles are: estoppel. however.” This means that these decisions are not a direct source. e. giving an illustration of each. and general principles of law as primary sources of international law. e. and the prohibition against torture. the primary sources of international law are the following: 1. The subsidiary sources of international law are judicial decisions. consent.g.S. cabotage.. International Custom may be concretely illustrated by pacta sunt Notes: .6 PUBLIC INTERNATIONAL LAW 2008 ★ Source of “General International Law” II. there must be a degree of constant and uniform repetition over a period of time coupled with opinio juris. 2. equity and peace. 677. cumulative effect of uniform decisions of the courts of the most important States is to afford evidence of international custom. at present the term no longer have such connotation. Vienna Convention on the Law of Treaties. res judicata and prescription.] Q: State your general understanding of the primary sources and subsidiary sources of international law. res judicata. Human Rights in International Law by Lauterpacht and International Law by Oppenheim-Lauterpacht.g. 3. including the principles of justice. By way of illustrating international Convention as a source of law. Usage is also a usual course of conduct.59 of the ICJ which states that “The decision of the Court has no binding force except between the parties and in respect to that particular case. and due process. the decision in the AngloNorwegian Fisheries Case and Nicaragua v. the prohibition against slavery.g. but they do exercise considerable influence as an impartial and well-considered statement of the law by jurists made in the light of actual problems which arise before them. Secondary IV. This conviction is called “Opinio Juris” When there’s no conviction that it is obligatory and right. A conventional or treaty norm and a customary norm is the product of the formation of general practice accepted as law. a longestablished way of doing things by States. e. subject to the provisions of Article 59. e. there’s only a Usage.

Consequences of Recognition of Belligerents e. People 5. Objective Test – 2. Territory 6. De Jure 2. Declaratory School B. Traditional concept ★ Only States are considered subjects of international law. 3. Forms of Recognition ¯°º°¯ Subject Defined A Subject is an entity that has an international personality. the entity is merely an object not a subject of international law. Contemporary concept ★ Individuals and international organizations are also subjects because they have rights and duties under international law. 2 Senses of Belligerency c. Right to Equality 5. Recognition of State .7 PUBLIC INTERNATIONAL LAW 2008 servanda. Q: When does an entity acquire international personality? A: When it has right and duties under international law. An intermediate agency—the Subject—is required for the enjoyment of its rights and for the discharge of its obligations. as the decision of the Court has demonstrated in the Nicaragua Case. The Japanese government has Notes: . Right to Existence and Self-Defense 4. De Facto C. Constitutive School b. and possessing an organized government to which the great body of inhabitants render habitual obedience. People. An entity has an international personality if it can directly enforce its rights and duties under international law. Belligerency b. Consequences of Recognition of Government Recognition of Belligerency a. it is not directly governed by the rules of international law. can directly enforce its rights. for example.2 Schools of Thought a. and may be held directly accountable for its obligations. SUBJECTS Subject Defined Object Defined 2 Concepts of Subjects of International Law State as Subjects of International Law Elements of a State 4. Criteria for Recognition 1. Right to Property and Jurisdiction. Kelsen or Oppenheim. A decision of the International Court of Justice. a customary or general norm which came about through extensive and consistent practice by a great number of states recognizing it as obligatory. permanently occupying a definite portion of territory. independent of external control. SUBJECTS OF INTERNATIONAL LAW 2 Concepts: 1. Recognition of Government a. may serve as material evidence confirming or showing that the prohibition against the use of force is a customary norm. such as McNair. Filipinas were among those conscripted as “comfort women” (prostitutes) for Japanese troops in various parts of Asia. Objects Defined An Object is a person or thing in respect of which rights are held and obligations assumed by the Subject. Right to Sovereignty and Independence. Requisites of Belligerency d. c. Kinds of Recognition 1. 2. Right to Diplomatic Intercourse Recognition Level of Recognition A. GRN 125865 [26 March 2001]) The STATE as subject of International Law State is a community of persons more or less numerous. Subjective Test (a) Tobar/Wilson Doctrine (b) Estrada Doctrine b. Where there is no direct enforcement of accountability and an intermediate agency is needed. Q: The Japanese government confirmed that during the Second World War. Thus. 2. The status of a principle as a norm of international law may find evidence in the works of highly qualified publicists in international law. (Liang vs. There is no direct enforcement and accountability. Government a) 2 kinds (1) De Jure (2) De Facto – 3 kinds b) 2 functions (1) Constituent (2) Ministrant c) Effects of change in government 7. Sovereignty a) Kinds b) Characteristics c) Effects of change in sovereignty Principle of State Continuity Fundamental Rights of States 1. The subsidiary means serves as evidence of law.

the forerunner of the International Court of Justice: “By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf.. respect for the rules of international law. 1994] The Lateran Treaty established the STATEHOOD of the Vatican City “for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international relations”. The settlement of such claims may be made by executive agreement. to espouse its claims against the Holy See. the latter ceases to be a private cause. From the wordings of the Lateran Treaty. Jr. nutrition and family health care. “while as a general rule. child welfare. The Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. An executive agreement is about to be signed for that purpose. 1994. The Vatican City fits into none of the established categories of states. and the attribution to it of “sovereignty” must be made in a sense different from that in which it is applied to other states. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claims.” Q: Is the Vatican City a state? A: YES! Holy See v. a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. Private respondent can ask the Philippine government. 1. 01 Dec. it is to man who. it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City. (1992 Bar) A: The agreement is valid. Advise him. international law thrusts the responsibilities of law and order. a State is in reality asserting its own rights – its right to ensure. Rosario [GR 101949. and the demands of its mission. Julian Iglesias. 1 Hudson. Of course. the necessary power to make such compromise has been recognized. in conformity with its traditions. it exceptionally applies to individuals because it is to man that the norms of international law apply. The v. According to the Permanent Court of International Justice. Once the Philippine government decides to espouse the claim. through the Foreign Office. 453 US 654.” (The Mavrommatis Palestine Concessions. who is also head of the Roman Catholic Church. with the Pope. descendant of now deceased comfort woman. Despite its size and object. 238 SCRA 524. Reagan. seeks you advise on the validity of the agreement. Rosario. It was noted that the recognition of the Vatican City as a state has significant implication – that it is possible for any entity pursuing objects essentially different from those pursued by states to be invested with international personality. as the Holy See or Head of State. it has an independent government of its own. one Notes: . Dec. Q: What must a person who feels aggrieved by the acts of a foreign sovereign do to espouse his cause? Held: Under both Public International Law and Transnational Law. This may be made without the consent of the nationals or even without consultation with them. Since the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City. 302 [1924]) (Holy See.8 accordingly launched a goodwill campaign and offered the Philippine government substantial assistance for a program that will promote through government and non-governmental organization women’s rights. the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See. the sovereign authority of the state to settle claims of its nationals against foreign countries has repeatedly been recognized. international law has as its subjects states and obliges only immediately. Indeed. its world-wide interests and activities are such as to make it in a sense an “international state”. En Banc [Quiason]) Q: What is the status of an individual under public international law? (1981 Bar) A: According to Hanks Kelson. As stated in Paris Moore v. 533-534. it is to man whom they restrain. World Court PUBLIC INTERNATIONAL LAW 2008 Reports 293. in the person of its subjects. The agreement includes a clause whereby the Philippine government acknowledges that any liability to the comfort women or their descendants are deemed covered by the reparations agreements signed and implemented immediately after the Second World War. Since the continued amity between the State and other countries may require a satisfactory compromise of mutual claims. The comfort woman and their descendant cannot assert individual claims against Japan.

through its Ambassador. Q: Discuss the Status of the Vatican and the Holy See in International Law. In a community of national states. Held: Before the annexation of the Papal States by Italy in 1870. This appears to be the universal practice in international relations. With the loss of the Papal States and the limitation of the territory under the Holy See to an area of 108.” In view of the wordings of the Lateran Treaty. 238 SCRA 524. with the Pope. and the demands of its mission in the world. it is the Holy See that is the international person. but must not be too small as to unable to provide for people’s needs ★ Q: Why important to determine? A: Determines the area over which the State exercises jurisdiction ★ Nomadic tribe not a State Q: What comprises the Philippine Archipelago? A: §1. “The national territory comprises the Philippine archipelago. The Holy See. where Italy recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican City. who is also head of the Roman Catholic Church. and all other territories over which the Philippines has sovereignty or Notes: .7 acres. In 1929. En Banc [Quiason]) ELEMENTS OF A STATE: A. Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City. has had diplomatic representations with the Philippine government since 1957. must not be too big as to be difficult to administer and defend. It also recognized the right of the Holy See to receive foreign diplomats. in conformity with its traditions. Jr. the Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. “hostis humani generis” B. Rosario. (Holy See. it is the Holy See that is the international person. essentially different from those pursued by states to be invested with international personality. The v. This appears to be the universal practice in international relations. People – ★ the inhabitants of the State ★ must be numerous enough to be selfsufficing and to defend themselves and small enough to be easily administered and sustained. 1987 Philippine Constitution. Italy and the Holy See entered into the Lateran Treaty. 1. the Vatican City has an independent government of its own. The Holy See. treated as an enemy of all mankind. Pirates – considered as outside the pale of law. Territory – ★ the fixed portion of the surface of the earth inhabited by the people of the State ★ the size is irrelevant – San Marino v.the Holy See and Vatican City. as the Holy See or Head of State. the Papal Nuncio. the Pope was the monarch and he. has had diplomatic representations with the Philippine government since 1957. to send its own diplomats to foreign countries. ★ the aggregate of individuals of both sexes who live together as a community despite racial or cultural differences ★ groups of people which cannot comprise a State: 1. 1994. cannot perpetuate themselves 2. through its Ambassador. the position of the Holy See in International Law became controversial. Indeed. Article 1. as the Holy See. Some writers even suggested that the treaty created two international persons . practically. 533-534.9 PUBLIC INTERNATIONAL LAW 2008 can conclude that in the Pope's own view. it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City. The Philippines has accorded the Holy See the status of a foreign sovereign. with all the islands and waters embraced therein. was considered a subject of International Law. The Lateran Treaty established the statehood of the Vatican City “for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international relations. and the attribution to it of “sovereignty” must be made in a sense different from that in which it is applied to other states. China ★ BUT. Amazons – not of both sexes. one can conclude that in the Pope's own view.. Despite its size and object. Dec. and to enter into treaties according to International Law. The Vatican City fits into none of the established categories of states. the worldwide interests and activities of the Vatican City are such as to make it in a sense an “international state. the Papal Nuncio.” One authority wrote that the recognition of the Vatican City as a state has significant implication that it is possible for any entity pursuing objects The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign.

the agency or instrumentality through which the will of the State is formulated. Moreover. the confederate government during the American Civil War which. however. it confirmed its sovereign title by the promulgation of Presidential Decree No. C. and connecting the islands of the archipelago. Notes: . between.” Q: The provision deleted the reference to territories claimed “by historic right or legal title. EX. expressed and realized 2 KINDS: De Jure  One with rightful title but not power or control. Japan formally renounced all right and claim to the Spratlys. 4. Philippine sovereignty was displayed by open and public occupation of a number of islands by stationing military forces. the subsoil. the seabed. Instead. 1930 Treaty between the US and the UK over the Turtle and Mangsee Islands 7. The waters around. the Commonwealth established by Oliver Cromwell which supplanted the monarchy under Charles I of England b) By government of paramount force – that which is established in the course of war by the invading forces of one belligerent in the territory of the other belligerent. the Spratlys became terra nullius and was occupied by the Philippines in the title of sovereignty. The San Francisco Treaty or any other international agreement. 1900 Treaty between US and Spain. and other submarine areas. however. Ceded to the US under the Treaty of Paris of 10 Dec.10 PUBLIC INTERNATIONAL LAW 2008 jurisdiction. Sulu. on the following islands. among other political and administrative acts. and by awarding petroleum drilling rights. because: ☀ Power was withdrawn. Government – ★ ★ 1. 5. 3. 1898 2. regardless of their breadth and dimensions. 1596. ☀ Has not yet entered into the exercise of power De Facto  A government of fact  Actually exercises power or control. it nevertheless assumed a de jure status when it subsequently recognized by the international community as the legitimate government of the Republic of the Philippines. Subsequently. fluvial. under the San Francisco Peace Treaty of 1951. which declared the Kalayaan Island Group part of Philippine territory. the Japanese occupation government in the Philippines which replaced the Commonwealth government during WWII c) By secession – that which is established by the inhabitants of a state who cedes therefrom without overthrowing its government EX. but has NO legal title  3 Kinds: a) By revolution – that which is established by the inhabitants who rise in revolt against and depose the legitimate regime. 2. the insular shelves. Sibuto 6. did not designate any beneficiary state following the Japanese renunciation of right. did not seek to depose the union government Q: Is the Cory Aquino Government a de facto or de jure government? A: De Jure! While initially the Aquino Government was a de facto government because it was established thru extra-constitutional measures. the claim was left to a judicial body capable of passing judgment over the issue ★ The definition covers the following territories: 1. form part of the internal waters of the Philippines. In 1978. The Japanese forces occupied the Spratly Islands Group during the Second World War. including its territorial sea. the government of which is also displaced EX. by organizing a local government unit. Defined in the 07 Nov. consisting of its terrestrial.” Does this mean that we have abandoned claims to Sabah? A: NO! This is not an outright or formal abandonment of the claim. Defined in the 02 Jan. Contemplated in the phrase “belonging to the Philippines by historic right or legal title” Q: What is the basis of the Philippine’s claim to a part of the Spratlys Islands? (2000 Bar) A: The basis of the Philippine claim is effective occupation of a territory not subject to the sovereignty of another state. and aerial domains. Cagayan. a new Constitution was drafted and overwhelmingly ratified by the Filipino people and national elections were held for that purpose. However. Island of Batanes 8.

2 Functions: Constituent – constitutes the very bonds of society – COMPULSORY. and interchange of property. whatever harm is done by the government – attributed to the government alone. the obligations of the replaced government are also completely assumed by the former. Aquino. No. Upon learning of the incident. it may lawfully reject the purely personal or political obligations of the predecessor government but not those contracted by it in the ordinary course of official business.R. Examples: (a) Public works.: Payment for arms bought by old government to fight the rebels ★ Q: The Federation of Islamabad concluded an agreement with the republic of Baleria when the leaders of Islamabad made a state visit to the latter. The rule is that where the new government was organized by virtue of a constitutional reform duly ratified in a plebiscite. Change of Government by Constitutional Reform ★ The new government inherits all the rights and obligations of the former government B. and the determination of liabilities for debt and crime. ★ Obligations – distinguish: ★ Contracted in the regular course of business – Inherited. (b) Fixing of legal relations between spouses and between parents and children. Regarding obligations. Thereafter. they are inherited in toto by the successor government. (h) Dealings of the States with foreign powers 2. (c) Regulation of trade and industry Q: Is the distinction still relevant? A: No longer relevant! ACCFA v. Summary: A. (c) Regulation of the holding. privileges.: Payment of postal money orders bought by an individual Purely Personal/Political Obligations – Not bound! May reject! EX. (b) Public charity. (e) Definition and punishment of crimes (f) Administration of justice in civil cases. Most of Balerian contract workers were arrested by Islamabad Immigration officers for not having with them the necessary papers and proper documents. where the new government was established through violence. distinction is made according to the manner of the establishment of the new government.11 PUBLIC INTERNATIONAL LAW 2008 [Lawyers League for a Better Philippines v. EX. II. the government of Baleria lodged a formal protest with the Islamabad revolutionary government invoking certain provisions of the aforementioned agreement. transmission. 4 – “The prime duty of the Government is to serve and protect the people…” Thus. Change by Extra-Constitutional Means ★ Rights – all are inherited. and relations of citizens. Examples: Promote social justice. The latter replied. The agreement concerns the facilitation of entry of Balerian contract workers in Islamabad. (d) Determination of contractual relations between individuals. G. Land reform Provide adequate social services Q: What is the mandate of the Philippine Government? A: Art. however that Notes: . not the State Harm justifies the replacement of the government by revolution – “Direct State Action” EFFECTS OF A CHANGE IN GOVERNMENT: It is well settled that as far as the rights of the predecessor government are concerned. whatever good is done by government – attributed to the State. Conversely. (g) Administration of political duties. Sec. CUGCO [30 SCRA 649] Constitution has repudiated the laissez faire policy Constitution has made compulsory the performance of ministrant functions. 73748 (1986)] ★ The Cory government won! All de facto governments lost in the end! ★ 1. Examples: (a) Keeping of order and providing for the protection of persons and property from violence and robber. as by a revolution. a revolution broke out in Islamabad which is now governed by a revolutionary junta. Ministrant – undertaken to advance the general interests of society – merely OPTIONAL.

12 PUBLIC INTERNATIONAL LAW 2008 the new government is not internationally bound by the agreement that was concluded by the former government of Islamabad and Baleria. D. absoluteness 5. Chief of Staff) ★ Rule applies only to civilians Legal ☀ the authority which has the power to issue final commands ☀ Congress is legal sovereign Political ☀ the power behind the legal sovereign. Internal and External Sovereignty Internal – ☀ the power of a State to control its internal affairs Civil Laws: GR: Remains in force XPN: Amended or superseded by affirmative act of belligerent occupant Q: What happens to judicial decisions made during the occupation? A: Those of a Political Complexion – ★ automatically annulled upon restoration of legitimate authority ★ conviction for treason against the belligerent External ☀ the power of the State to direct its relations with other States ☀ also called “Independenc”e Characteristics of Sovereignty 1.: Conviction for defamation EFFECTS OF A CHANGE IN SOVEREIGNTY 1. The rule is settled that a state cannot evade its international obligation by invoking its internal law. Articles of War. 2. permanent 2. It is presumed that the treaty is in conformity with its internal law. Nor may the new government evade its international obligation on the ground that the agreement is contrary to its Plasmatic law. what are the effects on the laws? A: Political Laws GR: Suspended! ★ Subject to revival under jus postliminium – i. Q: Why? A: They govern relations between the State and the people. once the legitimate authority returns. The facilitation of entry by Balerian contract workers to Islamabad is non political. Islamabad further contended that the agreement was contrary to its plasmatic law. he recovers all those rights again XPN: (a) Laws of Treason – Not suspended! ★ Preservation of allegiance to sovereign does not demand positive action.e. EX. AFP members still covered by National Defense Act. (Ruffy v. Non-Political Laws generally continue operation. Sovereignty – ★ the supreme and uncontrollable power inherent in a State by which that State is governed. Political Laws are deemed ABROGATED. Legal and Political Sovereignty Q: What happens to sovereignty if the acts of authority cannot be exercised by the legitimate authority? A: Sovereignty not suspended. A new government is exempt from obligation of treaties entered into by the previous government only with respect to those whose subject matter is political in nature. If a Roman Citizen is captured. imprescriptibility Non-political ★ remains valid ★ EX. the treaty embodying such agreement is binding on the new government of Islamabad. comprehensiveness 4. exclusivity 3. Is the Islamabad revolutionary government under obligation pursuant to international law. (1985 Bar) A: Yes.: Japanese Occupation during WWII ★ Sovereignty remained with the US ★ Japanese merely took over the exercise of acts of sovereignty Q: In this case. Q: Why? A: Regulates only private relations in Notes: . the political laws are revived Jus Postliminium – roman law concept. individuality 6. etc. or the sum of the influences that operate upon it ☀ the different sectors molding public opinion 2. Moreover. to comply with what was agreed upon and set forth in the agreement concluded between Baleria and its former government? Reasons.. Misa) ★ (b) Combatants – not covered by said rule ★ Thus. but only a passive attitude or forbearance from adhering to the enemy by giving the latter aid and comfort (Laurel v. he loses his rights as a Roman citizen. inalienability 7. May be legal or political ★ KINDS: 1. Hence. but once he returns to Rome.

and in pursuit of mutually covenanted objectives and Notes: . like individuals. 02 May 1997] While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level. By their inherent nature. the Articles of War and other laws relating to the armed forces even during the Japanese occupation.S. Q: Distinguish between Spanish secession to the U. Although the penal code is non-political law.S. Q: What is the effect of Japanese occupation to the sovereignty of the U. it is applicable to treason committed against the national security of the legitimate government. which are considered to be automatically part of our own laws. although the Americans could not exercise any control over the occupied territory at the time. In both cases. but only passive attitude or forbearance from adhering to the enemy by giving the latter aid and comfort. By their voluntary act. By the doctrine of incorporation. subject to revival under jus postliminium upon the end of the occupation. States. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties. the country is bound by generally accepted principles of international law. Thus. as a corollary of the preceding consideration. nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. A: There being no change of sovereignty during the belligerent occupation of Japan. et al. after the occupation. Q: Is sovereignty really absolute? A: In the domestic sphere – YES! In international sphere – NO! Tañada. over the Philippines? A: Sovereignty is not deemed suspended although acts of sovereignty cannot be exercised by the legitimate authority. Since the preservation of the allegiance or the obligation of fidelity and obedience of a citizen or subject to his government or sovereign does not demand from him a positive action. unless they are changed by the new sovereign or are contrary to its institutions. One of the oldest and most fundamental rules in international law is pacta sunt servanda – international agreements must be performed in good faith. Non-political laws. Angara. the occupant has no power. and would be repugnant to the laws of humanity and requirements of public conscience. A person convicted of treason against the Japanese Imperial Forces was. by contrast. live with coequals. these laws fall to the ground ipso facto unless they are retained or re-enacted by positive act of the new sovereign. As they regulate the relations between the ruler and the rules. continue in operation. remains effective. however. for the reason also that they regulate private relations only.S. NOTES: Members of the armed forces are still covered by the National Defense Act. to repeal or suspend the operation of the law of treason. treaties limit or restrict the absoluteness of sovereignty. Q: Was there a case of suspended allegiance during the Japanese occupation? A: None. Adoption of the petitioner's theory of suspended allegiance would lead to disastrous consequences for small and weak nations or states. the political laws of the occupied territory are merely suspended. [GR 118295. for it would allow invaders to legally recruit or enlist the quisling inhabitants of the occupied territory to fight against their own government without the latter incurring the risk of being prosecuted for treason. and Japanese occupation during WWII regarding the political laws of the Philippines.13 PUBLIC INTERNATIONAL LAW 2008 XPN: (a) Changed by the new sovereign (b) Contrary to institutions of the new sovereign Q: What is the effect of change of sovereignty when the Spain ceded the Philippines to the U. Q: May an inhabitant of a conquered State be convicted of treason against the legitimate sovereign committed during the existence of belligerency? A: YES. expressly or impliedly. sovereignty over the Philippines remained with the U.S. What the belligerent occupant took over was merely the exercise of acts of sovereignty. non-political laws. it is however subject to restrictions and limitations voluntarily agreed to by the Philippines. entitled to be released on the ground that the sentence imposed on him for his political offense had ceased to be valid but not on nonpolitical offenses. et al.? A: The effect is that the political laws of the former sovereign are not merely suspended but abrogated. as a member of the family of nations. To allow suspension is to commit political suicide. vs. because the inhabitants of the occupied territory were still bound by their allegiance to the latter during the enemy occupation.

Measures taken by Members in the exercise of this right of selfdefense shall be immediately reported to the SC and shall not in any way affect the authority and responsibility of the SC under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. EX.: (1) Reduction of population due to natural calamity (2) Changes in territory However. or sovereignty. its officials and its citizens.” The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines. led by Amercian and British armed forces. because it had in legal effect been filed by France. the Philippines can exercise its inherent right of existence and self-defense This right is a generally accepted principle of international law – thus. when the Philippines joined the UN as one of its 51 charter members. but he was deposed and replaced as head of State pendent elite. ★ ★ ★ ★ ★ Art. Cruz. when attacked. under the Incorporation Clause (Art. Thus. the disappearance of any of the elements causes the extinction of the state. 2. it consented to restrict its sovereign rights under the “concept of sovereignty as AUTO-LIMITATION. Hence. II. and Limitations imposed by treaty stipulations. they also commonly agree to limit the exercise of their otherwise absolute rights. Sec. it is part of our law of the land.” Principle of State Continuity State is not lost when one of its elements is changed. based on the rationale that the Philippines “adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of . 3. cooperation and amity with all nations. State does not lose its identity but remains one and the same international person notwithstanding changes in the form of its government. A: There are only two occasions when the use of force is allowed under the UN Charter. The second is when it is employed in the exercise of the inherent right of self-defense under conditions prescribed in Art. whose legal existence had not been affected by change in head of its government. See Holy See vs. The first is when it is authorized in pursuance of the enforcement action that may be decreed by the Security Council under Art. Right to Diplomatic Intercourse RIGHT OF EXISTENCE AND SELF-DEFENSE ★ The most elementary and important right of a State ★ All other rights flow from this right ★ Recognized in the UN Charter. Right to Existence and Self-Defense 4. Certain restrictions enter into the picture: Limitations imposed by the very nature of membership in the family of nations. Sec. II. Napoleon had sued not in his personal capacity but officially as sovereign of France. it allows DEFENSIVE WAR! Thus. the State continues as a juristic being. 2003 issue of the Philippines Daily Inquirer) Q: Not too long ago. despite changes in its elements. 51.14 benefits. Thus. Right to Equality 5. “allied forces”. PUBLIC INTERNATIONAL LAW 2008 RIGHTS OF THE STATE Fundamental Rights of States [ S P E E D ] 1. Article 51: “Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the UN. in an article entitled “A New World Order” written in his column “Separate Opinion” published in the March 30. . (Justice Isagani A.” Clearly. territory. Rosario (238 SCRA 524) From the moment of its creation. 1987 Constitution) Q: State the occasions when the use of force may be allowed under the UN Charter. . Was the action abated? (Bar) A: No. Right to Sovereignty and Independence. upon recognition of the duly authorized representative of the new government. it is lost only when at least one of its elements is destroyed. 2 – “The Philippines renounces war as an instrument of national policy…” This prohibits an offensive/aggressive war But. 2. 42. people. Emperor Louis Napoleon filed damage suit on behalf of France in an American Court. until the SC has taken measures necessary to maintain international peace and security. Q: In the famous Sapphire Case. a state’s sovereignty cannot in fact and in reality be considered absolute. Right to Property and Jurisdiction. the litigation could continue. invaded Iraq to “liberate Iraqis and destroy suspected Notes: . a portion of sovereignty may be waived without violating the Constitution.

In response. Alternative A: Under the Security Council Resolution No. of which there was none. (2003 Bar) A: The United States and its allied forces cannot justify their invasion of Iraq on the basis of selfdefense under Article 51. Neither can they justify their invasion on the ground that Article 42 of the Charter of the United Nations permits the use of force against a State if it is sanctioned by the Security Council. speaking through its leader Bin Derdandat. (2) enforcement measure involving the use of armed forces by the UN Security Council under Article 42.” Can the action taken by the allied forces find justification in International Law? Explain. Moreover.” Country X refused to accede to the demand of Country Y. These are: (1) inherent right of individual or collective self-defense under Article 51. the prohibition is addressed to all UN members. The allied forces did not launch military operations and did not occupy Iraq on the claim that their action was in response to an armed attacked by Iraq. The action taken by the allied forces cannot be justified under any of the three exceptions to the prohibition against the use of force which the UN Charter allows. did not authorize the use of armed force. (2002 Bar) A: (1) Country Y may exercise the right of selfdefense. and there was no necessity for anticipatory selfdefense which may be justified under customary international law. Country Y demanded that Country X surrender and deliver Bin Derdandat to the government authorities of Country Y for the purpose of trial and “in the name of justice. as authorized by the UN Security Council. and (3) enforcement measure by regional arrangement under Article 53. or in any other manner inconsistent with the purposes of the United Nations.” The Security Council of the United Nations failed to reach a consensus on whether to support or oppose the “war of liberation. Under Article 4 of the UN Charter. As thus provided. 1368. (2) It may bring the matter to the Security Council which may authorize sanctions against Country X. the use of military Notes: . It is covered by the prohibition against the use of force prescribed by the United Nations Charter and it does not fall under any of the exceptions to that prohibition. Q: On 31 October 2001. members of Ali Baba.15 weapons of mass destruction. so was Iraq’s compliance with such disarmament obligations. Immediately after the incident. The resolution authorizes military and other actions to respond to terrorist attacks. as it did in defining the 11 September 2001 attacks against the United States. However. a political extremist organization based in and under the protection of Country X and espousing violence worldwide as a means of achieving its objective.” This resolution was in the process of implementation. 1441 which set up “an enhanced inspection regime with the aim of bringing to full and verified completion the PUBLIC INTERNATIONAL LAW 2008 disarmament process. is binding on all members of the international community. the action of the alleged allied forces was taken in defiance or disregard of the Security Council Resolution No. The UN Charter in Article 2(4) prohibits the use of force in the relations of states by providing that all members of the UN “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. including measure invoking the use of force. it is now recognized as a fundamental principle in customary international law and.” This mandate does not only outlaw war. which gave Iraq a final opportunity to disarm or face serious consequences.” giving Iraq “a final opportunity to comply with its disarmament obligations. about 2000 people. Ali Baba. as provided under Article 51 of the UN Charter “until the Security Council has taken measure necessary to maintain international peace and security. a member of the United Nations. it encompasses all threats of and acts of force or violence short of war. Alternative A: In International Law. the terrorist attack of Ali Baba may be defined as a threat to peace. the action taken by the allied forces cannot find justification. attack by Iraq. planted high-powered explosives and bombs at the International Trade Tower (ITT) in Jewel City in Country Y. Country Y may use force against Country X as well as against the Ali Baba organization by authority of the UN Security Council. Resolution 1441.” Self-defense enables Country Y to use force against Country X as well as against the Ali Baba organization. Ali Baba threatened to repeat its terrorist acts against Country Y if the latter and its allies failed to accede to Ali Baba’s demands. including women and children were killed or injured and billions of dollars in property were lost. saying that it was done to pressure Country Y to release captured members of the terrorist group. as such. What action or actions can Country Y legally take against Ali Baba and Country X to stop the terrorist activities of Ali Baba and dissuade Country X from harboring and giving protection to the terrorist organization? Support your answer with reasons. However. As a result of the bombing and the collapse of the 100-story twin towers. admitted and owned responsibility for the bombing of ITT.

Country Y cannot be granted sweeping discretionary powers that include the power to decide what states are behind the terrorist organizations. Unless sooner withdrawn by resolution of the Congress. What the Constitution allows is a declaration of a “State of War”. Cruz. Under Art. to exercise powers necessary and proper to carry out a declared national policy. voting separately. VII. such powers shall cease upon the next adjournment thereof. undertook a “preventive” attack in certain bases on State C located near the border of the two states. 51 of the UN Charter considering that the danger perceived by State B was not imminent. As a result. Q: Is the United States justified in invading Iraq invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction? A: The United States is invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction. It was the United States that made the “armed attack” first. for a limited period and subject to such restrictions as it may prescribe. he may. (Justice Isagani A. It is for the Security Council to decide whether force may be used against specific states and under what conditions the force may be used. shall have the sole power to declare the existence of a state of war. that circumstance will not validate the procedure taken against Iraq. Sec. Art. authorize the President. Any subsequent discovery of the prohibited biological and chemical weapons PUBLIC INTERNATIONAL LAW 2008 will not retroactively legalize that invasion. Q: Who can declare war? A: No one! The Constitution has withheld this power from the government. null and void ab initio.16 force must be proportionate and intended for the purpose of detaining the persons allegedly responsible for the crime and to destroy military objectives used by the terrorists. 51 says. thus becoming the aggressor. VI. in an article entitled “A New World Order” written in his column “Separate Opinion” published in the March 30. It is like searching a person without warrant and curing the irregularity with the discovery of prohibited drugs in his possession. Art. The fundamental principles of international humanitarian law should be respected. by a vote of 2/3 of both Houses. relying on information gathered by its intelligence community to the effect that its neighbor. There is no evidence of such a threat. Sec. State B ought to have exhausted peaceful and pacific methods of settlements instead of resorting to the use of force. The process cannot be reversed. VI. The warrant must first be issued before the search and seizure can be made. which was. but Bush is probably invoking the modern view that a state does not have to wait until the potential enemy fires first. for a period not exceeding 60 days. Sec. (Justice Isagani A. Is State B responsible under International Law? Did State B act within the bounds set forth in the UN Charter on the use of force in selfdefense? (1985 Bar) A: An armed attack is not a requirement for the exercise of the right of self-defense. Art. 2003 issue of the Philippines Daily Inquirer) Q: State B. State B argued that it was acting within the legal bounds of Article 51 of the UN Charter and that it was a permitted use of force in self-defense and against armed attack. The cowboy from Texas says that outdrawing the foe who is about to shoot is an act of selfdefense. by law. Iraq is now not only exercising its inherent right of self-defense as recognized by the UN Charter. that there must first be an “armed attack” before a state can exercise its inherent right of self-defense. 23 – “In times of war…the Congress may. suspend the privilege of the writ of habeas Notes: . State C presented the incident to the UN General Assembly but the latter referred it to the UN Security Council as a matter. legally speaking. to which the aggression should be reported. 23(1) – “Congress. in an article entitled “A New World Order” written in his column “Separate Opinion” published in the March 30. which disturbs or threatens “international peace and security”. 2003 issue of the Philippines Daily Inquirer) Q: Will the subsequent discovery of weapons of mass destruction in Iraq after its invasion by the US justify the attack initiated by the latter? A: Even if Iraq’s hidden arsenal is discovered – or actually used – and the United States is justified in its suspicions. in joint session assembled. This means that we are already under attack Q: What are the effects when Congress declares a state of war? A: 1. however.” 2. The American invasion was made without permission from the Security Council as required by the UN Charter. not Iraq. However. shall have taken the necessary measures to maintain international peace and security. he may call out such armed forces to prevent or suppress… invasion…In case. 18 – “The President shall be the Commander-in-Chief of all armed forces…and whenever it becomes necessary. and only until the Security Council. the attack of State B on State C cannot be justified as an act of self-defense under Art. invasion…when the public safety requires it. is planning an attack on its nuclear plan and research institute. State C. Cruz.

: 1. our Constitution also renounces war as an instrument of national policy RIGHTS OF SOVEREIGNTY AND INDEPENDENCE Intervention It is “the dictatorial interference by a State in the internal affairs of another State. but NATO intervened militarily  Ground: There was ethnic cleansing by Serbs of ethnic minorities 3. it is UN itself that intervened  4. Intervention in Somalia 2. public or private ★ Formulated by Foreign Minister Luis Drago (Argentina). which under Article 35(1) of the UN Charter. Intervention as an Act of Individual and Collective Self-Defense 2.: Hungary  In 1956. but subject to the qualification that the debtor state should not refuse or neglect to reply to an offer of arbitration or after accepting the offer. (1984 Bar) A: The Muslim secessionist movement is not an international dispute. Intervention in Bosnia and Kosovo  No UN Resolution. This principle was later adopted in the Second Hague Conference. Briefly outline your arguments supporting the Philippine position. Tender of Advice Generally Intervention is Prohibited (Drago Doctrine) ★ Prohibits intervention for the collection of contractual debts. which also renounces war As charter-member of the UN. authorizing the US-led multilateral force to intervene On Humanitarian Grounds ★ This has recently evolved by international custom ★ Thus. Exceptions 1. Germany and Italy blockaded Venezuelan ports to compel it to pay its contractual debts leading Foreign Minister Drago to formulate a doctrine that “ a public debt cannot give rise to the right of intervention. in reaction to the Venezuelan Incident Venezuelan Incident In 1902. 1990 Iraqi Annexation of Kuwait There was an SC Resolution. a blockade must not be violated by a neutral State ★ if breached. through Syria. Intervention by Treaty Stipulation or by Invitation “Intervention by Invitation” ★ Presupposes that the inviting State is not a mere puppet of the intervening State ★ EX. fail to submit to the award. the Arab League. which is either forcible or backed by the threat of force. or in the relations between other States. Korean War  In fact. By UN Authorization and Resolution ★ EX. 41 and 42 Art. the neutral vessel is seized WHEN INTERVENTION ALLOWED. The attempt of the Arab League to place on the agenda of the General Assembly the Muslim problem in Mindanao can only be views as an interference with a purely domestic affair. sponsors a move to include in the agenda of the General Assembly the discussion of this matter: “The Muslim population of Mindanao. prevent any compromis from being agreed upon. it was still condemned because the Hungarian government was a mere Soviet puppet 2. has become a primary source of international law ★ EX. UK. Hungary was in internal turmoil. and asked the Soviet forces to intervene  3. Such dispute can arise only between two or more States.: Diplomatic Protest. When Use of Force is Allowed under the UN Charter By UNSC Resolution – Arts. Philippines has expressed the desire to secede from the Republic of the Philippines in order to constitute a separate and independent state and has drawn attention to the probability that the continuation of the armed conflict in Mindanao constitutes a threat to peace.17 PUBLIC INTERNATIONAL LAW 2008 corpus or place the Philippines or any part thereof under martial law…” ☀ ☀ This is in line with the UN Charter. 41 – “The SC may decide what measures not involving the use of armed force are to be employed to give effect to its decisions. While the intervention was upon invitation. a member of the United Nations may bring to the attention of the Security Council or the General Assembly. the qualification is known as the Porter resolution.” Intervention is Different from “Intercession” ☀ Intercession is allowed! ☀ EX.: 1. or after the arbitration. and it Notes: . Pacific Blockade ★ one imposed during times of peace ★ were the countries at war. then a blockade is a legitimate measure ★ in fact.” You are asked by the Philippine Government to draft a position paper opposing the move. Intervention in East Timor  Purpose: To protect the East Timorese Q: At the United Nations. specifically discussing the tenability of Arab League’s action from the standpoint of International Law.

and the severance of diplomatic relations. sea. which carry out acts of armed force against another State of such gravity as to amount to' (inter alia) an actual armed attack conducted by regular forces. and the State is under legal duty to accord recognition Declaratory School recognition merely an act that declares as a fact something that has hitherto been uncertain it simply manifests the recognizing State’s readiness to accept the normal consequences of the fact of Statehood recognition is a political act. the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State.. Recognition of Government C. to demand recognition there is no legal right to demand recognition followed by most nations ★ ★ recognition of a State has now been substituted to a large extent by the act of admission to the United Nations it is the “assurance given to a new State that it will be permitted to hold its place and rank in the character of an independent political organism in the society of nations” Notes: . the exercise of this right is subject to the State concerned having been the victim of an armed attack. as a matter of legal right. Reliance on collective self-defense of course does not remove the need for this. and other means of communication. Recognition of State B. in customary law. groups. There appears now to be general agreement on the nature of the acts which can be treated as constituting armed attacks. but also 'the sending by or on behalf of a State of armed bands. contained in Article 3.18 PUBLIC INTERNATIONAL LAW 2008 may call upon the Members of the UN to apply such measures. The Court sees no reason to deny that. or land forces as may be necessary to maintain or restore international peace and security.” Art. may be taken to reflect customary international law. Such action may include demonstrations.” NOTE: There is a limited definition of armed attacks – Nicargua v. it may take such action by air. Recognition of Belligerency RECOGNITION OF STATE 2 Schools of Thought Constitutive School recognition is the act which gives to a political entity international status as a State.” In the exercise of right of self-defense. recognition is a legal matter—not a matter of arbitrary will on the part of one State whether to recognize or refuse to recognize another entity but that where certain conditions of fact exist. it may be considered to be agreed that an armed attack must be understood as including not merely action by regular armed forces across an international border. Measures taken by Members in the exercise of this right of selfdefense shall be immediately reported to the SC and shall not in any way affect the authority and responsibility of the SC under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. i. sea.” RECOGNITION 3 LEVELS A. 51: “Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the UN. an entity may demand. and that no entity possesses the power. sea. 42 – “Should the SC consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate. paragraph (g). These may include complete or partial interruption of economic relations and of rail. against armed attacks – Art. of the Definition of Aggression annexed to General Assembly resolution 3314 (XXIX). United States “195. irregulars or mercenaries. 'or its substantial involvement therein'.e. because of its scale and effects. postal. or amount to intervention in the internal or external affairs of other States. This description. it is entirely a matter of policy and discretion to give or refuse recognition. blockade. until the SC has taken measures necessary to maintain international peace and security. would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces. In particular. it is only through recognition that a State becomes an International Person and a subject of international law thus. In the case of individual self-defense. telegraphic. if such an operation. and other operations by air. radio. United States Nicaragua v. air. Such assistance may be regarded as a threat or use of force. or land forces of Members of the UN. But the Court does not believe that the concept of 'armed attack' includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support.

Criteria for Recognition 1. RECOGNITION OF GOVERNMENT As to Scope As to Revocabili ty Recognitio n of Governme nt Recogniti on of Does not necessarily signify that recognitio n of a State – to governmen t may not be independe nt Includes recognitio n or governme nt – governme nt an essential element of a State Revocable Generally. Subjective Test – ★ WILLINGNESS and ABILITY ★ the government is willing and able to discharge its international obligations ★ 2 Doctrines Tobar or Wilson Doctrine ☀ suggested by Foreign Minister Tobar (Ecuador). the Declaratory Theory of Recognition Principle. while the declaratory theory is the majority view that recognition affirms the pre-existing fact that the entity being recognized already possesses the status of an international person. (2) Once recognition of state is accorded. on the other hand. In other words. civil war. while the latter recognition is highly political and discretionary. a government established by means revolution. other forms of internal violence. the recognized state already exists and can exist even without such recognition. reiterated by President Woodrow Wilson (US) ☀ recognition is withheld from governments established by revolutionary means – revolution. coup d’ etat or other forms of internal violence will not be recognized until the freely elected representatives of the people have organized a constitutional government. it simply accepts whatever government is in effective control without raising the issue of recognition Q: Distinguish briefly but clearly between the Wilson doctrine and the Estrada doctrine regarding recognition of governments. coup d’etat. civil war. freely elected representatives of the people have organized a constitutional government Estrada Doctrine ☀ a reaction to the Tobar/Wilson Doctrine. In the former recognition is regarded as mandatory and legal and may be demanded as a matter of right by any entity that can establish its possession of the four essential elements of a state. (1991 Bar) A: The declaratory theory of recognition is a theory according to which recognition of a state is merely an acknowledgment of the fact of its existence. Kinds of Recognition Recognition De Jure Recogni tion De Notes: . when other countries recognize Bangladesh.19 PUBLIC INTERNATIONAL LAW 2008 Q: Explain. formulated by Mexican Foreign Minister Genaro Estrada ☀ disclaims right of foreign states to rule upon legitimacy of a government of a foreign State ☀ a policy of never issuing any declaration giving recognition to governments – instead. it is generally irrevocable. Q: Distinguish briefly but clearly between the constitutive theory and the declaratory theory concerning recognition of states. Objective Test – ★ government should be EFFECTIVE and STABLE ★ government is in possession of State machinery ★ there is little resistance to its authority 2. irrevocabl e State Q: Distinguish recognition of State from recognition of Government. may be withheld from a succeeding government brought about by violent or unconstitutional means. (2004 Bar) A: In the Wilson or Tobar doctrine. Bangladesh already existed as a state even without such recognition. Recognition of government. (1975 Bar) A: (1) Recognition of state carries with it the recognition of government since the former implies that a state recognized has all the essential requisites of a state at he time recognition is extended. For example. (2004 Bar) A: The constitutive theory is the minority view which holds that recognition is the last element that converts or constitutes the entity being recognized into an international person. UNTIL. using example. while in the Estrada doctrine any diplomatic representatives in a country where an upheaval has taken place will deal or not deal with whatever government is in control therein at the time and either action shall not be taken as a judgment on the legitimacy of the said government.

The recognized government or State acquires the capacity to enter into diplomatic relations with recognizing States and to make treaties with them 2.” ICMC vs. which formerly belonged to the preceding government at the time of its supercession 5. 1989] The Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry…But nonetheless there remain issues beyond the Court’s jurisdiction the determination of which is exclusively for the President…We cannot. it might have not yet acquired sufficient stability Consequences of Recognition of Government 1. 1990] A categorical recognition by the Executive Branch that ICMC enjoy immunities…is a political question conclusive upon the Courts in order not to embarrass a political department of Government. past and future. In the Philippines. The action of the Executive in recognizing or refusing to recognize a foreign State or government is properly within the scope of judicial notice. The courts are bound by the acts of political department of the government. But since under the Constitution. no matter how premature or improvident such action may appear.20 PUBLIC INTERNATIONAL LAW 2008 Facto As to Durati on Relatively permanent Provisio nal. it does not bring about diploma tic immunit ies As to Effect on Proper ties Abroad Vests title to recognized government in properties abroad Does not vest such title Recognition De Jure ★ Given to a government that satisfies both the objective and subjective criteria Recognition De Facto ★ Given to governments that have not fully satisfied objective and subjective criteria ★ EX.  Thus.. BELLIGERENCY 2 Senses of Belligerency 1. As to Effect on Diplom atic Relatio ns Brings about full diplomatic relations/inter course Limited to certain juridical relation s. for example. there is no explicit provision in the Constitution which vests this power in any department. Actual Hostilities amounting to Civil War within a State ☀ Insurgency ☀ there is just 1 State ☀ presupposes the existence of a rebel movement Developments in a Rebel Movement Stage of Insurgency ★ Earlier/nascent/less-developed stage of rebellion ★ There is not much international complication ★ Matter of municipal law Notes: . question the President’s recognition of a foreign government. it is conceded that by implication. for instance .. [Art. It is immune from the jurisdiction of the courts of law of recognizing State 4. Recognition being retroactive. The recognized government or State acquires the right of suing in the courts of law of the recognizing State 3. Act of State Doctrine now applies Q: Who has the authority to recognize? A: It is a matter to be determined according to the municipal law of each State. 1987 Constitution] The legality and wisdom of recognition accorded any foreign entity is not subject to judicial review.: While wielding effective power. VII. it is the Executive Department that is primarily endowed with the power to recognize foreign governments and States. Q: Is the recognition extended by the President to a foreign government subject to judicial review? A: NO! It is purely a political question. Manglapus [GR 88211 15 Sept. 28 Sept. It becomes entitled to demand and receive possession of property situated within the jurisdiction of a recognizing State. the President is empowered to appoint and receive ambassadors and public ministers. Marcos v. Its effect is to preclude the courts of recognizing State from assign judgment on the legality of its acts. State of War between 2 or more States ☀ Belligerency ☀ the States at war are called “Belligerent States” 2. Calleja [GR 85750.

Rebel government is responsible for the acts of the rebels affecting foreign nationals and properties. this means that there are 2 competing governments in 1 country 5. 2. Consequences of Recognition of Belligerents 1.e. Before recognition as such. Notes: . and administration of justice. must abstain from taking part in the hostilities. ★ more or less permanent occupation ★ legitimate government must use superior military force to dislodge the rebels 3. occupation of a substantial portion of the state’s territory. For example. 2. are constituent functions of the government ★ ★ ★ ★ 4. and are able to maintain such control and conduct themselves according to the laws of war. (1991 Bar) A: Recognition of belligerency is the formal acknowledgment by a third party of the existence of a state of war between the central government and a portion of that state. Camp Abu-Bakr—MILF almost had control of a substantial portion of territory government had to use all its military might and divert its budget CPP/NPA sends message that they are observing the Laws of War Captured soliders are announced as POWs. leaving no doubt as to the outcome ★ Q: Has the CPP/NPA and MILF complied with these conditions? A: NO! BUT. It involves a rebel movement. using example. the recognition of belligerency puts them under responsibility to 3rd States and to the legitimate government for all their acts which do not conform to the laws and customs of war. as the stage of insurgency becomes widespread ★ Already a matter of international law. most acquiesce to restrictions imposed by the rebels. had Red Cross representatives willingness on the part of the rebels to observe the rules and customs of war. and is usually not recognized more serious and widespread and presupposes the existence of war between 2 or more states (1st sense) or actual civil war within a single state (2nd sense) sanctions governed municipal Revised Code. and ★ essentially. Laws and customs of war in conducting the hostilities must be observed. They executed common criminals.: cannot execute captured rebels. an organized civil government that has control and direction over the armed struggle launched by the rebels. Note: Abu Sayaff is not a rebel group it is a mere bandit group. have a political organization. hence. cannot be executed Insurgency Belligerency a mere initial stage of war. Requisites of Belligerency [COWS] 1.: 1. From the point of view of 3 rd States.21 ★ PUBLIC INTERNATIONAL LAW 2008 EX. It is like saying they have a government Note: The maintenance of peace and order.: Captured rebels are prosecuted for rebellion Stage of Belligerency ★ A higher stage. Belligerency exists when a sizable portion of the territory of a state is under the effective control of an insurgent community which is seeking to establish a separate government and the insurgents are in de facto control of a portion of the territory and population. ★ must observe Laws of Neutrality ★ EX. it is the legitimate government that is responsible for the acts of the rebels affecting foreign nationals and their properties. Rebels are enemy combatants and accorded the rights of prisoners of war. On the side of the rebels. such as visit and search of its merchant ships 4. the effect of recognition of belligerency is to put them under obligation to observe strict neutrality and abide by the consequences arising from that position. and ★ must be so widespread. Q: Explain. ★ a “provisional government” 2. ★ EX. seriousness of the struggle. there are some indications they are striving to meet the conditions. Great Britain recognized a state of belligerency in the United States during the Civil War. rebellion governed by the rules on international law as the belligerents may be given international personality are by law – Penal i. not of municipal law ★ EX. considered as combatants. which must be so widespread thereby leaving no doubt as to the outcome.: Captures rebels – must be treated like prisoners of war. after a trial. considered as POWs 3. recognition of belligerency.

from entering the territory. ☀ Q: How is this done and effected? Notes: . High Seas (3) Aerial Domain a. within a reasonable time. Express 2. the people occupying it has a civilization that falls below the European standard. if. Territory the fixed and permanent portion on the earth’s surface inhabited by the people of the state and over which it has supreme authority consists of the portion of the surface of the globe on which that State settles and over which it has supreme authority an exercise of sovereignty. Definite/Indicated with Precision ★ Generally. Why is this mode then important? A: Past occupations are source of modern boundary disputes Q: When is a territory “terra nullius?” A: Under the Old Concept a territory is not necessarily uninhabited! A territory is terra nullius. Once the discovering state begins exercising sovereign rights over the territory. Outer Space b. Prescription b. but also the atmosphere as well CHARACTERISTICS OF TERRITORY 1.. so that the discovering state may establish a settlement therein an commence administration and occupation. Cession c. Big enough to sustain the population 4. Territorial Sea b. this old concept is no longer valid under contemporary international law! ★ 2 REQUISITES (1) Discovery/Possession ☀ Mere discovery gives only an Inchoate Right of Discovery ☀ Q: What is the effect of this right? A: It bars other states.: Holding peach talks in a foreign country. Permanent 2. Air Space b. and the territory becomes terra nullius again. Conquest/Subjugation Other Modes (a) nment (b) (c) (d) Dereliction/Abando Erosion Revolution Natural Causes Discovery and Occupation ★ An original mode of acquisition of territory belonging to no one – “terra nullius” ★ land to be acquired must be terra nullius ★ ★ Q: Today. If a mere insurgency. “Sector Principle” (2) By Derivative Title a. it is a purely internal matter – no need for talks abroad TERRITORY OF STATES Territory Defined Characteristics of Territory Modes of Acquisition of Territory (1) Dereliction/Abandonment (2) Cession (3) Conquest/Subjugation (4) Prescription (5) Erosion (6) Revolution (7) Natural Causes COMPONENTS OF TERRITORY (1) Territorial Domain (2) Maritime and Fluvial Domain a. circumstances may be such as to become an implied recognition EX. and the European colonization of Africa. Implied EX. Exclusive Economic Zone (EEZ) d. even if occupied. Accretion c. This was the justification for the Spanish colonization of the Philippines. But. Contiguous Zone c. and (2) Defend from external aggression Modes of Acquisition of Territory (1) By Original Title a. Proclamation by the legitimate government of a blockade of ports held by the rebels ★ ★ Done by Lincoln during the American Civil War Q: What about peace talks? A: NOT implied recognition. Continental Shelf e.22 PUBLIC INTERNATIONAL LAW 2008 FORMS OF RECOGNITION 1. Rebels call the foreign country a “neutral state”. the territory’s limits define the State’s jurisdiction 3. few. However. if any places are terra nullius. Discovery and Occupation b. Not so extensive as to be difficult to: (1) Administer. the inchoate right ripens and is perfected into a full title ☀ Q: What if the discovering state fails to exercise sovereign rights? A: The inchoate title is extinguished. covering not only land.

very little actual exercise of sovereign rights is needed in the absence of competition Doctrine of Effective Occupation ☀ discovery alone gives only an inchoate title. Effective Occupation ☀ Does not necessarily require continuous display of authority in every part of the territory claimed ☀ Authority must be exercised as and when occasion demands ☀ Thus. ☀ under the “Principle of Effective Occupation. Partial Cession .: Cession of Korea to Japan under the 22 Aug. it must be followed within a reasonable time by effective occupation ☀ effective occupation does not necessarily require continuous display of authority in every part of the territory claimed ☀ an occupation made is valid only with respect to and extends only to the area effectively occupied. 1988 . It may then be effected through a formal proclamation and the symbolic act of raising the state’s national flag. 2. Total Cession .comprises the entirety of 1 State’s domain .EX.: (1) Sale by Russia of Alaska to US (2) Sale by Spain of Caroline Islands to Germany b) Free Gifts EX: (1) Cession of a portion of the Horse-Shoe Reef in Lake Erie by UK to US Conquest ★ derivative mode of acquisition whereby the territory of 1 State is conquered in the course of war and thereafter annexed to and placed under the sovereignty of the conquering State ★ the taking possession of hostile territory through military force in time of war and by which the victorious belligerent compels the enemy to surrender sovereignty of that territory thus occupied ★ acquisition of territory by force of arms ★ however.cession of the Philippine Islands by Spain to the US in the Treaty of Paris of 10 Dec. when the territory is thinly populated and uninhabited.comprises only a fractional portion of the ceding State’s territory . 1910 Treaty 2.Forms: a) Treaty of Sale EX.the ceding State is absorbed by the acquiring State and ceases to exist .g.” the following doctrines/principles are no longer applicable today: a) Hinterland Doctrine Occupation of coasts results to claim on the unexplored interior b) Right of Contiguity Effective occupation of a territory makes the possessor’s sovereignty extend over neighboring territories as far as is necessary for the integrity. conquest alone merely gives an inchoate right. acquisition must be completed by formal act of annexation ★ no longer regarded as lawful ★ UN Charter prohibits resort to threat or use of force against a State’s territorial integrity or political independence Notes: . security and defense of the land actually occupied Prescription ★ acquisition of territory by an averse holding continued through a long term of years ★ derivative mode of acquisition by which territory belonging to 1 State is transferred to the sovereignty of another State by reason of the adverse and uninterrupted possession thereof by the latter for a sufficiently long period of time ★ 2 REQUISITES a) continuous and undisturbed possession ☀ Q: What if there are claims or protests to the State’s possession? A: NOT undisturbed! b) lapse of a period of time ☀ ☀ ★ No rule as to length of time required Question of fact Q: What is the source of this right? A: Roman principle of “usucapio” (long continued use of real property ripened into ownership) Cession ★ a derivative mode of acquisition by which territory belonging to 1 State is transferred to the sovereignty of another State in accordance with an agreement between them ★ a bilateral agreement whereby one State transfers sovereignty over a definite portion of territory to another State E.23 PUBLIC INTERNATIONAL LAW 2008 A: Possession must be claimed on behalf of the State represented by the discoverer. Treaty of cession (maybe an outcome of peaceful negotiations [voluntary] or the result of war[forced]) ★ 2 KINDS: 1.

does not effect an acquisition of territory Accretion ★ the increase in the land area of a State caused by the operation of the forces of nature. and which separate or pass through several States between their sources and mouths  In peacetime. Rivers ☀ Kinds of Rivers (1) National Rivers    Lie wholly within 1 State’s territorial domain – from source to mouth Belongs exclusively to that State EX.24 PUBLIC INTERNATIONAL LAW 2008 Conquest is Different from “Military or Belligerent Occupation” ☀ Act whereby a military commander in the course of war gains effective possession of an enemy territory ☀ By itself.: St.: Congo River. in general. Mekong River (4) International Rivers  navigable from the open sea. such that they are considered as legally equivalent to national land ★ includes: rivers. otherwise. freedom of navigation is allowed or recognized by conventional international law Lakes and Land-locked Seas ☀ If entirely enclosed by territory of 1 state: Part of that State’s territory ☀ If surrounded by territories of several States: Part of the surrounding States Canals ☀ Artificially constructed waterways ☀ GR: Belongs to the State’s territory ☀ XPN: Important Inter-Oceanic Canals governed by Special Regime (1) Suez Canal (2) Panama Canal Historic Waters ☀ Waters considered internal only because of existence of a historic title. or proceeding to or from internal waters or a call at such roadstead or port facility Q: Explain Innocent Passage. or artificially. and polar regions. through human labor ★ Accessio cedat principali (accessory follows the principal) is the rule which.: (1) Reclamation projects in Manila Bay (2) Polders of the Netherlands COMPONENTS OF TERRITORY TERRITORIAL DOMAIN ★ The landmass where the people live Internal Waters ★ These are bodies of water within the land boundaries of a State.Waters adjacent to the coasts of a State to a specified limit 1. exclusive enjoyment of fishing rights and other coastal rights ★ BUT: Subject to the RIGHT OF INNOCENT PASSAGE (a foreign State may exercise its right of innocent passage) ★ Q: When is passage innocent? A: When it is not prejudicial to the peace. Lawrence River between US and Canada (3) Multinational Rivers  Runs through several States  Forms part of the territory of the States through which it passes  EX. lakes and land-locked seas. canals.: Bay of Cancale in France MARITIME AND FLUVIAL DOMAIN Zones of the Sea .: Pasig River (2) Boundary Rivers  Separates 2 Different States  Belongs to both States:  If river is navigable – the boundary line is the middle of the navigable channel “thalweg”  If the river is not navigable – the boundary line is the midchannel  EX. Territorial Sea ★ comprises in the marginal belt adjacent to the land area or the coast and includes generally the bays. or security of the coastal State Right of Innocent Passage The right of continuous and expeditious navigation of a foreign shop through a State’s territorial sea for the purpose of traversing that sea without entering the internal waters or calling at a roadstead or port facility outside the internal waters. ★ EX. or are closely linked to its land domain. should not have that charater ☀ EX. (1991 Bar) Notes: . good order. over which that State exercises jurisdictional control ★ Basis – necessity of self-defense ★ Effect – territorial supremacy over the territorial sea. gulfs and straights which do not have the character of historic waters (waters that are legally part of the internal waters of the State) ★ portion of the open sea adjacent to the State’s shores. governs all the forms of accretion.

2. Normal Baseline Method ☀ Territorial sea is drawn from the lowwater mark. good order or security of the coastal State. 1982 Convention of the Law of the Sea provides the maximum limit of 12 nautical miles from the baseline. Otherwise known as the “baseline. and sought recovery of the cargo and the release of the ship. (2004 Bar) Distinguish briefly but clearly between the territorial sea and the internal waters of the Philippines.25 A: Innocent passage means the right of continuous and expeditious navigation of a foreign ship through the territorial sea of a State for the purpose of traversing that sea without entering the internal waters or calling at a roadstead or port facility outside internal water or proceeding to or from internal waters or a call at such roadstead or port facility. The territorial waters. Formerly. ☀ Q: What is the low-water mark? A: The line on the shore reached by the sea at low tide. Being so. while the outermost points of our archipelago which are connected with baselines and all waters Notes: .” 2. The master of the vessel and the owner of the cargo protested. The Balintang Channel is considered part of our internal waters and thus is within the absolute jurisdiction of the Philippine government. By International Convention certain corals are protected species. Extent and Limitations of Right of Innocent Passage ☀ Extends to ALL ships – merchant and warships ☀ Submarines must navigate on the surface and show their flag ☀ Nuclear-powered ships. from headland to headland. could exploit or explore any of our natural resources in any manner of doing so without the consent of our government. intercepted the vessel and seized its cargo including tuna. a vessel registered in Country TW entered the Balintang Channel north of Babuyan Island and with special hooks and nets dragged up red corrals found near Batanes. Q: What is the extent of the territorial sea? A: 1. or when there is a fringe of islands along the coast in its immediate vicinity. the Coast Guard patrol PUBLIC INTERNATIONAL LAW 2008 A: The claim of the master of the vessel and the owner of the cargo is not meritorious. Is the claim meritorious or not? Reason briefly. (2004 Bar) Territorial water is defined by historic right or treaty limits while internal water is defined by the archipelago doctrine. the baseline must not depart to any appreciable extent from the general direction of the coast ☀ Q: When is this used? A: When the coastline is deeply indented. merchant or otherwise. This has been practically abandoned. ships carrying nuclear and dangerous substances must carry documents and observe special safety measures Q: En route to the tuna fishing grounds in the Pacific Ocean. Although their claim of transit passage and innocent passage through the Balintang Channel is tenable under the 1982 Convention on the Law of the Sea. That straight line then becomes the baseline from which the territorial sea is measured. However. the fact that they attached special hooks and nets to their vessel which dragged up red corrals is reprehensible. The passage is innocent so long as it is not prejudicial to the peace. 3 nautical miles from the low water mark based on the theory that this is all that a State could defend. no foreign vessel. has a uniform breadth of 12 miles measured from the lower water mark of the coast. or from island to island. Q: What is the baseline? A: Depends on the method: 1. ☀ Q: What happens to the waters inside the line? A: Considered internal waters. Just before the vessel reached the high seas. as defined in the Convention on the Law of the Sea. Straight Baseline Method ☀ A straight line is drawn across the sea. claiming the rights of transit passage and innocent passage.

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PUBLIC INTERNATIONAL LAW 2008

comprised therein are
waters.
2.

3.

regarded

as

internal

Contiguous Zone
zone adjacent to the territorial sea, over
which the coastal State may exercise such
control as is necessary to:
 Prevent infringement of its customs,
fiscal, immigration or sanitary laws
within its territory or territorial sea;
 Punish such infringement
extends to a maximum of 24 nautical miles
from the baseline from which the territorial
sea is measured.
Exclusive Economic Zone
a maximum zone of 200 nautical miles from
the baseline from which the territorial sea is
measured, over which, the coastal State
exercises sovereign rights over all the
economic resources of the sea, sea-bed and
subsoil

Rights of other States in the EEZ
(a) Freedom of navigation and overflight
(b) Freedom to lay submarine cables and
pipelines
(c) Freedom to engage in other internationally
lawful uses of the sea related to said
functions
Rights of Land-locked States
Right to participate, on an equitable basis, in the
exploitation of an appropriate part of the surplus
of the living resources of the EEZ of the coastal
States of the same sub-region or region
Distinguish briefly but clearly between the
contiguous zone and exclusive economic zone.
(2004 Bar)
The contiguous zone is the area which is known as
the protective jurisdiction and starts from 12th
nautical mile from low water mark (baseline),
while the EEZ is the area which ends at the 200th
nautical mile from the baseline. In the latter, no
state really has exclusive ownership of it but the
state which has a valid claim on it according to
the UN Convention on the Law of the Seas
agreement has the right to explore and exploit its
natural resources; while in the former the coastal
state may exercise the control necessary to a)
prevent infringement of its customs, fiscal
immigration or sanitary regulations within its
territory b) punish infringement of the above
regulations within its territory or territorial sea.
Q: Enumerate the rights of the coastal state in
the exclusive economic zone. (2005, 2000 Bar)
A: The following are the rights of the coastal state
in the exclusive economic zone:
1. sovereign rights for the purpose of exploring
and exploiting, conserving and managing the
living and non-living resources in the

2.

3.
4.
5.
6.

superjacent waters of the sea-bed and the
resources of the sea-bed and subsoil;
sovereign rights with respect to the other
activities for the economic exploitation and
exploration of the zone or EEZ, such as
production of energy from water, currents
and winds;
jurisdictional
right
with
respect
to
establishment and use of artificial islands;
jurisdictional right as to protection and
preservation of the marine environment; and
jurisdictional right over marine scientific
research
other rights and duties provided for in the
Law of the Sea Convention. (Article 56, Law
of the Sea Convention)

These treaty provisions form part of the Philippine
Law, the Philippines being a signatory to the
UNCLOS.
4. Continental Shelf
Q: Explain the meaning of continental shelf.
(1991 Bar)
A: The continental shelf comprises the seabed and
subsoil of the submarine areas that extend beyond
the territorial sea throughout the natural
prolongation of its land territory to the outer edge
of the continental margin; or to a distance of
more than 200 nautical miles from the baselines
form which the breadth of the territorial sea is
measured where the outer edge of the continental
shelf does not extend up to that distance.
Rights of the Coastal State
☀ sovereign rights for the purpose of
exploring and exploiting its natural
resources
☀ rights are exclusive – if the State does
not explore or exploit the continental
shelf, no one may do so without its
express consent
Archipelagic Doctrine
 2 Kinds of Archipelagos:
1. Coastal Archipelago
☀ situated close to a mainland, and
may be considered part of such
mainland
2. Mid-Ocean Archipelago
☀ groups of islands situated in the
ocean at such distance from the
coasts of firm land (mainland)
☀ EX.: Philippines
 emphasizes the unity of land and waters
by defining an archipelago either as:

A group of island surrounded by
waters; or

A body of water studded with islands
 thus, baselines are drawn by connecting
the appropriate points of the outermost

Notes:

27

PUBLIC INTERNATIONAL LAW 2008

islands to encircle the islands within the
archipelago.
Rules Governing the Baselines
(a) Such baselines should not depart radically
from the general direction of the coast, or
from the general configuration of the
archipelago
(b) Within the baselines are included the main
islands an area with a maximum water area
to land area ratio of 9:1
(c) Length of baselines shall not exceed 1—
nautical miles
 XPN: Up to 3% of the total number of
baselines may have a maximum length of
125 nautical miles
Effect of the Baselines
(a) The waters inside the baselines are
considered internal waters;
(b) The territorial sea, etc. are measured from
such baselines;
(c) Archipelagic State exercises sovereign rights
over all the waters enclosed by the baselines
Limitation – Archipelagic Sealanes
☀ Archipelagic State must designate sea lands
an air route for the continuous and
expeditious passage of foreign ships and
aircraft through or over its archipelagic
waters and adjacent territorial sea

Passage
only
for
continuous,
expeditious,
and
unobstructed
transit between 1 part of the high
seas or an EEX to another part of the
high seas or an EEZ

Q: What if none are designated?
A: Right of archipelagic sealane
passage may still be exercised
through the routes normally used for
international navigation
 The
Philippines
adheres
to
the
Archipelagic Doctrine – Art. I, 1987
Constitution:
“The waters around, between, and
connecting
the
islands
of
the
archipelago, regardless of their breadth
and dimensions, form part of the internal
waters of the Philippines.”
 Also embodied in the 1982 Convention of
the Law of the Sea, Art. 47
 UNCLOS became effective on 16 Nov.
1994, after its ratification by more than
the required 60 of the signatory States
Q: What do you understand by the archipelagic
doctrine? Is this reflected in the 1987
Constitution? (1989, 1979, 1975 Bar)
A: The archipelagic doctrine emphasizes the unity
of land and waters by defining an archipelago
either as a group of islands surrounded by waters
or a body of water with studded with islands. For

this purpose, it requires that baselines be drawn
by connecting the appropriate points of the
outermost islands to encircle the islands within
the archipelago. The waters on the landward side
of the baselines regardless of breadth, or
dimensions are merely internal waters.
Article I, Sec. 1 of the Constitution provides that
the national territory of the Philippines includes
the Philippine archipelago, with all the islands
and waters embraced therein; and the waters
around, between, and connecting the islands of
the archipelago, regardless of their breadth and
dimensions form part of the internal waters of the
Philippines.
5.

The regime of the High Seas
belongs to everyone and to no one – both res
commones and res nullius
everyone may enjoy the following rights over
the high seas:
(a) Navigation
(b) Fishing
(c) Scientific research
(d) Mining
(e) Laying
of
submarine
cables
or
pipelines; and
(f) other human activities in the open
sea and the ocean floor
the freedoms extend to the air space above
the high seas

Doctrine of Hot Pursuit
☀ The pursuit of a foreign vessel undertaken by
the coastal State which has “good reason to
believe that the ship has violated the laws
and regulations of that State.”
☀ The pursuit must:
1. Be commenced when the ship is within the
pursuing State’s:
a. Internal Waters;
b. Territorial Sea; or
c. Contiguous Zone
2. May be continued outside such waters if the
pursuit has not been interrupted
3. Continuous and unabated
4. Ceases as soon as the foreign ship enters the
territorial sea of:
a. Its own State; or
b. That of a 3rd State
5. Be undertaken by:
a. Warships; or
b. Military aircraft; or
c. Other ships/aircraft cleared and
identifiable as being in the government
service and authorized to that effect
☀ Also applies to violations of laws and
regulations of the coastal State applicable to
the EEZ and to the continental shelf.
Deep Sea Bed
☀ The sea-bed beyond the continental shelf

Notes:

28

PUBLIC INTERNATIONAL LAW 2008

Under the UNCLOS – resources of the deep
sea-bed are reserved as the “common
heritage of mankind”

Q: In the Pacific Ocean, while on its way to
Northern Samar to load copra, a Norweigian
freighter collides with Philippine Luxury Liner
resulting in the death of ten (10) Filipino
passengers.
Upon the Norweigian vessel’s
arrival in Catarman, Northern Samar, the
Norweigian captain and the helmsman assisting
were arrested and charged with multiple
homicide through reckless imprudence. Apart
from filing a protest with the Ministry of Foreign
Affairs, the Norweigian Embassy, through a local
counsel helps the accused in filing a motion to
quash. It is pointed out that the incident
happened on the high seas, the accused were
on board a Norweigian vessel and only a
Norweigian court can try the case even if the
death occurred on a Philippine ship. Resolve
the motion stating the reason for your decision.
(1986 Bar)
A: The motion to quash should be sustained. In
the Lotus case [PCIJ Pub 198i2 Series A No 10
p.25], a French mail steamer, Lotus, collided with
a Turkish collier, Boz Kourt. As a result, eight (8)
Turkish subjects died. The collision took place in
the Aegean Sea, outside of Turkish territorial
waters. The Lotus proceeded to Constantinople
where its officers were tried and convicted for
manslaughter. The French government protested
on the ground that Turkey had no jurisdiction over
an act committed on the high seas by foreigners
on board foreign vessels whose flag state has
exclusive jurisdiction as regards such acts. The
dispute was referred by agreement to the
Permanent Court of International Justice which
held in a split decision that Turkey had “not acted
in conflict with the principles of International
Law,” because the act committed produced
affects on board the Boz Kourt under Turkish flag,
and thus on Turkish territory. The principle that
vessels on the high seas are subject to no
authority except that the flag State whose flag
they fly was thus affirmed.
NOTE: Justice Jorge Coquia, in his book however,
opined that the ruling in the Lotus case is no
longer controlling in view of Art. 97 of the UN
Convention on the Law of the Sea which provides
that in the event of collision or any other incident
of navigation concerning a ship on the high seas,
involving the penal or disciplinary responsibility of
the master or any other person in the service of
the ship, the penal or disciplinary proceedings
may be instituted only before State of which such
person is a national. For this purpose, no arrest
or detention of the ship, even as a measure of
navigation shall be ordered by the authorities
other than those of the flag state.
Freedom of Navigation

the right to sail ships on the seas which is open to
all States and land-locked countries
General Rule: vessels sailing on the high seas are
subject only to international law and the laws of
the flag state
Exceptions: a) foreign merchant ships
violating the laws of the coastal State; b)
pirate ships; c) slave trade ships; d) any ship
engaged in unauthorized broadcasting; and e)
ships without nationality, or flying a false flag
or refusing to show its flag.
Flag State
the State whose nationality (ship’s registration)
the ship possesses, for it is nationality which gives
the right to fly a country’s flag
Flags of Convenience –
registration of any ship in return for a payment
fee
Q: Distinguish briefly but clearly between the
flag state and the flag of convenience. (2004
Bar)
A: Flag state means a ship has the nationality of
the flag state it flies, but there must be a genuine
link between the state and the ship. (Article 91 of
the Convention of the Law of the Sea.) Flag of
convenience refers to a state with which a vessel
is registered for various reasons such as low or
non-existent taxation or low operating costs
although the ship has no genuine link with that
state. (Harris, Cases and Materilas on
International Law, 5th ed., 1998, p. 425.)
AERIAL DOMAIN
★ the airspace above the territorial and
maritime domains of the State, to the limits
of the atmosphere
★ does not include the outer space
1.





Air Space
the air space above the State’s terrestrial and
maritime territory
“…Every State has complete and exclusive
sovereignty over the air space above its
territory”
Convention on International Civil Aviation
–“Territory” – includes terrestrial and
maritime territory
thus, includes air space above territorial sea
NOTE: NO right of innocent passage!
the air space above the high seas is open to
all aircraft, just as the high seas is accessible
to ships of all States
the State whose aerial space is violated
can take measures to protect itself, but
it does not mean that States have an
unlimited right to attack the intruding
aircraft (intruding aircraft can be
ordered either to leave the State’s air
space or to land)

Notes:

Cases and Materials on International Law. a State on whose registry an object launched into outer space retains jurisdiction over the astronauts while they are in outer space. the lowest altitude of an artificial satellite. Outer space in this estimate begins from the lowest altitude an artificial satellite can remain in orbit. the boundary between outer space and airspace has remained undetermined. Over that should be outer space. a contiguous zone of 300 miles. because the outer space and celestial bodies found therein including the moon are not susceptible to the national appropriation but legally regarded as res communes. Non-militant flight instrumentalities should be allowed over a second area. The boundary between airspace and outer space has not yet been defined. this has been estimated to be between 80 to 90 kilometers. 251-253) Under Article 8 of the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space. and an altitude approximating aerodynamic lift. the space satellites or objects are under the jurisdiction of States of registry which covers astronauts and cosmonauts. and (e) embark traffic or put down traffic to or from a third state 2. (b) landing for non-traffic purposes. which is completely beyond the sovereignty of any State the moon and the other celestial bodies form part of the outer space (Moon Treaty of 1979) thus. That it should be near the lowest altitude (perigee) at which artificial earth satellites can remain in orbit without being destroyed by friction with the air around 190 km from earth’s surface 2. THE UNITED NATIONS The United Nations Formation of the United Nations Purpose of United Nations Principles of United Nations Notes: .29 PUBLIC INTERNATIONAL LAW 2008 Q: What are the 5 air freedoms? A: (a) overflight without landing. In law. the height of atmospheric space. it is not subject to national appropriation free for all exploration and use by all States and cannot be annexed by any State governed by a regime similar to that of the high seas Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (Outer Space Treaty) ☀ Outer Space is free for exploration and use by States ☀ Cannot be annexed by any State ☀ Its use and exploration must be carried out for the benefit of all countries and in accordance with international law ☀ Celestial bodies shall be used exclusively for peaceful purposes ☀ Nuclear weapons and weapons of mass destruction shall not be placed in orbit around the earth Q: What is the boundary between the air space and the outer space? A: No accepted answer yet! There are different opinions: 1. Alternative A: Outer space is the space beyond the airspace surrounding the Earth or beyond the national airspace. (c) put down traffic from state to airline. (Harris. This matter is covered by the Registration of Objects in Space Convention of 1974 and the Liability for Damage Caused by Spaced Objects Convention of 1972. Including the Moon and Other Celestial Bodies. infinity. such as the limit of air flight. not on a boundary line. but on the nature of the activities Q: What is outer space? Who or which can exercise jurisdiction over astronauts while in outer space? (2003 Bar) A: There are several schools of thought regarding the determination of outer space. Q: May the USA lay exclusive claim over the moon. Functional Approach  The legal regime governing space activities are based.. pp. Another school of thought proceeds by analogy to the law of the sea. But in theory. ★ ★ ★ ★ ★ Outer Space (res commones) the space beyond the airspace surrounding the earth or beyond the national airspace. Under the Moon Treaty of 1979. the moon and the other celestial bodies form part of outer space. having explored it and having planted her flag therein to the exclusion of other states? Explain. It proposes that a State should exercise full sovereignty up to the height to which an aircraft can ascend. (1979 Bar) A: No. In outer space. Theoretical limit of air flights is 90 km above the earth 3. (d) embark traffic destined for state of aircraft. 5 th Ed.

Note: Both SC and GA votes must be complied with. Must be Peace-loving  3.. How is Admission conducted? 1. What are the principles of the UN? 1. cultural and humanitarian problems 4. it meets when the General Assembly is in recess and assists this body in the performance of its functions. 2. Approval of the General Assembly (GA) by a vote of at least 2/3 of those present and voting. Military Staff Committee 3. Secretariat Subsidiary Organs – those which was created by the Charter itself or which it allows to be created whenever necessary by the SC or GA. Human Rights Commission Notes: .” And so. To develop friendly relations among nations 3. Subsequently. To refrain from assisting any State against which the UN is taking preventive or enforcement action. Must be State 2.The affirmative vote of at least 9 members including the Big 5.30 PUBLIC INTERNATIONAL LAW 2008 Membership Principal Organs Privileges and Immunities of the United Nations ¯°º°¯ THE UNITED NATIONS It is an international organization created at the San Francisco Conference which was held in the United States from April 25 to June 26. To achieve international cooperation in solving international economic. be able and willing to carry out such obligation. To be a center of harmonizing the actions of nations towards those common goals. Indonesia resumed its membership. All its members are equal and all are committed to fulfill in good faith their obligations under the Charter 2. recommend suspension to the GA who shall in turn concur with a 2/3 vote of those present and voting. General Assembly (GA) 2. composed originally of only 51 members. Economic and Social Council (ESC) 4. Must accept the obligations as member 4. Expulsion of a Member The penalty of expulsion may be imposed upon a member which has persistently violated the principles in the UN Charter. To settle their disputes with each other by peaceful means 3. Who coined the name UN? It was President Roosevelt who suggested early in 1942 the name UN for the group of countries which were fighting the Axis powers. Security Council (SC) 3. The Principal Organs 1. the UN has grown rapidly to include most of the states in the world. To maintain international peace and security 2. The SC may. Original b. Elective – those subsequently admitted upon the recommendation of the UN Security Council. upon President Sukarno’s overthrow. In the judgment of the Organization. social. succeeded the League of Nations and is governed by a Charter which came into force on October 24. Only the SC may lift the suspension by a qualified majority. Same voting requirement as to suspension. as it is commonly called. 1. To promote respect for human rights 5.N. Little Assembly – Interim Committee. 1945. Withdrawal of Membership – Indonesia Case The Charter is silent regarding withdrawal of membership. Composed of one delegate for each memberstate. Woodrow Wilson called for the establishment of a “general association of nations for world peace under specific covenants for mutual guarantees of political independence and territorial integrity to large and small States alike. Recommendation of a qualified majority in the Security Council . created in 1947 for a term of one eyar and reestablished in 1949 for an indefinite term. 1945. the League of Nations was formed. Indonesia withdrew its membership from the UN and it was not compelled to remain. Who was the advocate of forming the UN? In his famous Fourteen Points for the peace settlement. International Court of Justice (ICJ) 6. Trusteeship Council (TC) 5. Qualifications for Membership 1. 2 Kinds of Membership a. What are the principal purposes of the UN? 1. 2. To refrain form the threat or use of force in their international relations 4. Suspension of Membership Suspension may occur when a preventive or enforcement action has been taken by the SC. Discipline does not suspend the member’s obligations but only the exercise of its rights and privileges as a member. In 1985. by a qualified majority. The U. which was accepted by the UN.

All issues are voted on through resolutions passed in plenary meetings. by 2/3 of a general conference called for this purpose by 2/3 of the GA and any 9 members of the SC. directly. each delegation is entitled only to one vote in the decisions to be made by the GA. by committees and other bodies established by the Assembly to study and report on specific issues.Economic & Financial  3rd . 3. after the committees have completed their consideration of them and submitted draft resolutions to the plenary Assembly. peacekeeping.Administrative & Budgetary  6th . World Health Organization 2. while others are allocated to one of the six main committees. ¯°º°¯ 4. such as disarmament. some GA Main Committees Most questions are then discussed in its six main committees:  1st Committee . or one member with the concurrence of the majority. and with the SC selects the judges of the ICJ.Disarmament & International Security  2nd . Elective – important voting functions are also vested in the GA. the will of the majority of the members as expressed in resolutions adopted by the Assembly. Technical Assistance Board Proposals for Amendments to the UN Charter and Ratification 2 ways of adopting proposals: a. However. Emergency special session – may be called within 24 hours at the request of the SC by vote of any 9 members or by a majority of the members of the UN. Any amendment thus proposed shall be subject to ratification by at least 2/3 of the GA. Humanitarian & Cultural  4th . 2. Some Important Functions of the GA 1. they carry the weight of world opinion. 5. such as: 1. resolutions may be adopted by acclamation. including the determination of whether a question is important or not. b. 3.Special Political & Decolonization  5th . and Notes: . 2. In plenary meetings. Important Questions are decided by 2/3 majority of those present and voting. are decided by simple majority. including the permanent members of the SC. in international conferences called for by the Assembly. Voting in Committees is by a simple majority. development and human rights. The reason for this system of multiple delegates is to enable the members to attend of several meetings that may be taking place at the same time in the different organs or committees of the Organization. International Monetary Fund 3. or the vote may be recorded or taken by roll-call. as well as the moral authority of the world community. without objection or without a vote. The work of the UN year-round derives largely from the decisions of the General Assembly . Budgetary – controls the finances of the UN Constituent – amendment of the charter.Social. such as the election of the non-permanent members of the SC. usually towards the end of the regular session. The principal deliberative body of the organization and is vested with jurisdiction over matters concerning the internal machinery and operations of the UN. a majority of the member states. That work is carried out: a. Important Questions include: a) peace and security b) membership c) election d) trusteeship system e) budget UN General Assembly This is the central organ of the UN. GA Composition Consists of all the members of the UN. Each member is entitled to send no more than 5 delegates and 5 alternates and as many technical and other personnel as it may need. Special sessions – may be called at the request of the SC. GA Sessions 1.that is to say. Regular sessions – every year beginning the third Tuesday of September.31 PUBLIC INTERNATIONAL LAW 2008 Specialized Agencies – not part of the UN. by 2/3 votes of all GA members b. All other matters.Legal Some issues are considered only in plenary meetings. While the decisions of the Assembly have no legally binding force for governments. Supervisory – receives and considers reports from the other organs of the UN. members of the TC and all the members of the ESC. GA Voting Rules Each member or delegation has 1 vote in the GA. Deliberative – discuss principles regarding maintenance of international peace and security and may take appropriate measures toward this end. but have been brought into close contact with it because of their purposes and functions. also participates in the amendment of the Charter.

The other ten members are elected for 2-year terms by the GA. Does enforcement action include sending of fighting troops? A: NO. to call on Members to apply economic sanctions and other measures not involving the use of force to prevent or stop aggression. SC Functions and Powers: 1. to exercise the trusteeship functions of the UN in "strategic areas". even if it has received 9 affirmative votes. to recommend to the General Assembly the appointment of the Secretary-General and.the SecretaryGeneral and his staff of international civil servants. 7. to maintain international peace and security in accordance with the principles and purposes of the UN. and 10. to investigate any dispute or situation which mightlead to international friction. What is the role of a Member of the UN but not a member of the Security Council? Although not a member of the SC. often referred to as “veto”. Chairmanship of the SC is rotated monthly on the basis of the English alphabetical order of the names of the members. SC Composition Composed of 15 members. 4. to recommend the admission of new Members. 9. ¯°º°¯ UN Security Council An organ of the UN primarily responsible for the maintenance of international peace and security. Yalta Voting Formula a. For this purpose. is allowed to vote on questions concerning the pacific settlement of a dispute to which it is a party. PUBLIC INTERNATIONAL LAW 2008 by the Secretariat of the UN . France. SC Sessions The SC is required to function continuously and to hold itself in readiness in case of threat to or actual breach of international peace. Procedural matters – 9 votes of any of SC members b. the United Kingdom. 6. There must be a Notes: . The UN Security Council called for enforcement action against Loolapalooza. all members should be represented at all times at the seat of the Organization. Substantive matters – 9 votes including 5 permanent votes. but distinction is made between the permanent and the nonpermanent members in the decision of substantive questions. 3. and 2 from Western European and other states. These members are not eligible for immediate reelection. b.Abstention or absence of a member is not regarded as veto Procedural and Substantive Matters Distinguished Procedural matters include: a. The so-called Big Five are China. 5. to determine the existence of a threat to the peace or act of aggression and to recommend what action should be taken. to recommend methods of adjusting such disputes or the terms of settlement. means rejection of the draft resolution or proposal. 5 from the African and Asian states. Substantial matters include those that may require the SC under its responsibility of maintaining or restoring world peace to invoke measures of enforcement. to take military action against an aggressor. permanent or not. Rule of Great-Power Unanimity: a negative vote by any permanent member on a non-procedural matter. questions relating to the organization and meetings of the Council. Such member is likewise to be invited by the Council to participate (without vote)in the discussion of any dispute to which the Member is a party. together with the Assembly. Q: Loolapalooza conducted illegal invasion and conquest against Moooxaxa. 2 from Latin American states. to elect the Judges of the International Court of Justice. to formulate plans for the establishment of a system to regulate armaments. Their responsibility makes the SC a key influence in the direction of the affairs not only of the Organization but of the entire international community as well. the participation of states parties to a dispute in the discussion of the SC. it may participate (without vote) in the discussion of any question before the Council whenever the latter feels that the interests of that member are specially affected. No member. . Compliance with the resolution calling for enforcement action does not necessarily call for the sending of fighting troops. 1 from Eastern European states. Their terms have been so staggered as to provide for the retirement of ½ of them every year. the establishment of subsidiary organs. 2. and the United States. SC Voting Rules Each member of the SC has 1 vote.32 c. the European Union. 5 of which are permanent. and c. 8.

Immediate re-election is allowed. The declarations of 65 States are at present in force. they must represent the main forms of civilization and the principal legal systems of the world. The latest version of the Rules dates from 5 December 2000. i. ICJ Composition and Qualifications The Court is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and Security Council sitting independently of each other. Term of Office Term of 9 years. When the Court does not include a judge possessing the nationality of a State party to a case. Candidates obtaining an absolute majority in the GA and SC are considered elected. and 3. or through the reciprocal effect of declarations made by them under the Statute whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. 3. and in the Rules of Court adopted by it under the Statute. which is an integral part of the Charter of the United Nations. No group shall nominate more than four persons and not more than two of whom shall be of their own nationality. International Court of Justice c. b. In the event that more than 1 national of the same state obtain the requisite majorities in both bodies. In cases of doubt as to whether the Court has jurisdiction. when they are parties to a treaty containing a provision whereby. it is the Court itself which decides. It began work in 1946. ICJ Jurisdiction The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one or more of the following ways: a. only the eldest is chosen. International Court of Justice Composition Qualifications Jurisdiction Functions of International Court of Justice Procedure ¯°º°¯ International Court of Justice The International Court of Justice is the principal judicial organ of the United Nations. Its seat is at the Peace Palace in The Hague (Netherlands). the judges elected shall fill the remaining vacancies. Procedure in the ICJ The procedure followed by the Court in contentious cases is defined in its Statute. in which the parties file and exchange pleadings.. As much as possible. The Members of the Court do not represent their governments but are independent magistrates. typically. Several hundred treaties or conventions contain a clause to such effect.33 PUBLIC INTERNATIONAL LAW 2008 special agreement with the SC before sending of fighting troops may be had and such agreement shall govern the numbers and types of forces. Nomination made by national groups in accordance with the Hague Conventions of 1907. may also be re-elected. and retiring judges may be re-elected. a joint conference shall be convened. in the event of a disagreement over its interpretation or application. and the nature of the facilities and assistance to be supplied by UN members. their degree of readiness and general locations. It operates under a Statute largely similar to that of its predecessor. Terms of office of 5 of the 15 members shall expire at the end of every 3 years. by the conclusion between them of a special agreement to submit the dispute to the Court. The proceedings include a written phase. when it replaced the Permanent Court of International Justice which had functioned in the Peace Palace since 1922. The President and the Vice President elected by the Court for three years.e. by virtue of a jurisdictional clause. a number of them having been made subject to the exclusion of certain categories of dispute. 2. six and nine years respectively. and an oral phase consisting Notes: . that State may appoint a person to sit as a judge ad hoc for the purpose of the case. If this still fails. staggered at three year year intervals by dividing the judges first elected into three equal groups and assigning them by lottery terms of three. ICJ Sessions The Court shall remain permanently in session at the Hague or elsewhere as it may decide. They must be of high moral character. It may not include more than one judge of any nationality. In cases when membership is not completed by the regular elections. QUALIFICIATIONS OF JUDGES 1. Elections are held every three years for one-third of the seats. except during the judicial vacations the dates and duration of which it shall fix. one of them may refer the dispute to the Court. 2. Possess the qualifications required in their respective countries for appointment to the highest judicial office or are jurists of recognized competence in international law. How members of ICJ are chosen 1.

was arrested and detained for several years without charges or trial. Article 36(1): The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the UN or in treaties and conventions in force. In July 1993 the Court also established a seven-member Chamber to deal with any environmental cases falling within its jurisdiction ICJ Voting Rules All questions before the Court are decided by a majority of the judges present. In fact.  There is no rule of stare decisis. After the oral proceedings the Court deliberates in camera and then delivers its judgment at a public sitting. and the sources of applicable law are the same. He desires to seek redress from any international forum. to decide contentious case. the quorum being nine when it is sitting en banc. provide in advance that the advisory opinion shall be binding. America placed floating mines on the territorial waters surrounding Nova. To forestall am attack. at the request of the parties. In principle the Court's advisory opinions are consultative in character and are therefore not binding as such on the requesting bodies. or of a commission of injury. Will the action prosper? (1978 Bar) A: No! Only States may be parties in contentious cases before the International Court of Justice. which have not been redeemed until now? May the suit be brought to the ICJ? (1979 Bar) A: No! Even foreign states are entitled to the doctrine of state immunity in the local state. to render advisory opinions. The judgment is final and without appeal. The Member States of the United Nations (at present numbering 191) are so entitled. a private individual like A cannot bring an action before it. or in any other capacity. In case of tie. Functions of ICJ The principal functions of the Court are: 2.  2. only States which are parties to the statute of the ICJ and other states on conditions to be laid down by the Security Council may be such parties. America supported a group of rebels organized to overthrow the government of Nova and to replace it with a friendly government. PUBLIC INTERNATIONAL LAW 2008 On receiving a request.  Only organizations can request advisory opinions [Article 65(1)]: The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the UN to make such a request. Only States may apply to and appear before the Court. Certain instruments or regulations can. and 3. however. another neighboring state. The suit may not be brought before the ICJ without the consent of the United States as jurisdiction of the ICJ in contentious cases is based upon the consent of the parties. counsel or advocate for one of the parties. had been shipping arms and ammunitions to Nova for use in attacking America. Advisory Opinions The advisory procedure of the Court is open solely to international organizations. controlled by an authoritarian government. The Court's advisory procedure is otherwise modelled on that for contentious proceedings. T The Court discharges its duties as a full court but. He goes to you as counsel to file his case with the International Court of Justice. as well as Japan for the “Mickey Mouse” money in payment for private properties. the other party may have recourse to the Security Council. the Court decides which States and organizations might provide useful information and gives them an opportunity of presenting written or oral statements. As the Court has two official languages (English and French) everything written or said in one language is translated into the other.  Article 34(1): Only states may be parties in cases before the Court. Nova decided to file a Notes: . Should one of the States involved fail to comply with it. Therefore. A Chamber of Summary Procedure is elected every year by the Court in accordance with its Statute. Rule for Inhibition of Judges No judge may participate in the decision of a case in which he has previously taken part as agent. it may also establish a special chamber. or as a member of a national or international court. a citizen of State X. He brings his case to the courts of State X. but to no avail. The only bodies at present authorized to request advisory opinions of the Court are five organs of the United Nations and 16 specialized agencies of the United Nations family. Q: May the United States be sued in our courts for the value of private properties requisitioned by its Army during the last World War. the President or his substitute shall have a casting vote. had unfriendly relations with its neighboring state.34 of public hearings at which agents and counsel address the Court. Who may file contentious cases? Only states can file contentious cases and both must agree to the court’s jurisdiction. Q: A. Bresia. Q: The State of Nova. America.

whenever one of the parties does not appear before the court or fails to defends its case. under Art. even if the provision of support is not enough to consider the act a violation of the nonuse of force principle. If America has not accepted the jurisdiction of the ICJ. can State B. it may invoke such limitations of its consent as a bar to the assumption of jurisdiction. satisfy itself that it has jurisdiction and that the claim is well-founded in fact and in law.35 PUBLIC INTERNATIONAL LAW 2008 case against America in the International Court of Justice. Nova can premise its cause of action on a violation of Art. These two states agreed to submit their disputes to the ICJ. the respondent. which requires members to refrain from threat or use of force against the territorial integrity of political independence of any state. the official languages of the Court are English and French. 2) Parties to a case may appoint agents to appear before the ICJ in their behalf. Even if it has accepted the jurisdiction of the ICJ but the acceptance limited and the limitation applies to the case. the petitioner fails to appear at the oral argument. 1) What grounds may Nova’s cause of action against America be based? 2) On what grounds may America move to dismiss the case with the ICJ? 3) Decide the case. A: 1) If Nova and America are members of the UN. In the case concerning the Military and Parliamentary activities in and against Nicaragua (1986 ICJ Report 14). 3) If jurisdiction over America is established. the Court must. because Q: The sovereignty over certain island is disputed between State A and State B. If the jurisdiction has been accepted. OFFICE OF THE EXECUTIVE SECRETARY 462 SCRA 622. 39 of the Statute of ICJ. and these agents need not be their own nationals. 4) Under Art. However. Nova may premise its cause of action of violation of the non-use of force principle in customary international law which exist parallel as to Art. JR. If either or both America and Nova are not members of the UN. The defense of anticipatory self-defense cannot be sustained because there is no showing that Nova had mobilized to such an extent that if America were to wait for Nova to strike first it would not be able to retaliate. before doing so. v. Aggression is the use of armed force by a state against the sovereignty or territorial integrity or political independence of another state or in any other manner inconsistence with the UN Charter. 2(4) of the UN Charter. the Court may authorize a party to use a language other than English or French. At the request of any party. the International Court of Justice considered the planting mines by one state within the territorial waters of another as a violation of Art. no member of the Court may appear as agent in any case. However. 2(4) of the UN Charter. 51 of the Statute of ICJ.. This is a petition for mandamus to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with §21. PIMENTEL. the acts of America can be considered as indirect aggression amount to another violation of Art. 2) By virtue of the principle of sovereign immunity. each party may use the language it prefers. move for the dismissal of the action? (1994 Bar) A: 1) The ICJ has jurisdiction because the parties have jointly submitted the case to it and have thus indicated their consent to its jurisdiction. 1) Does the ICJ have the jurisdiction to take cognizance of the case? 2) Who shall represent the parties before the Court? 3) What language shall be used in the pleading and the oral arguments? 4) In case State A. 2(4). America can involve the principle of anticipatory self-defense recognized under customary international law because Nova is planning to launch an attack against America by using the arms it brought from Bresia. no sovereign state can be made a party to a proceeding before the ICJ unless it has given its consent. 6 July 2005 En Banc. the case should be decided in favor of Nova. Article VII of the 1987 Constitution. the case should be decided in its favor because of the principle of sovereign immunity. it can invoke the defense of lack of jurisdiction. 2(4) of the UN Charter. (1994 Bar) America violated the principle against the use of force and the principle of non-intervention. Notes: . If the support provided by America to rebels of Nova goes beyond the mere giving of monetary or psychological support but consist in the provision of arms and training. the other party may ask the Court to decide in favor of its claim. However. In addition. 3) Under Art. this is a violation of the principle of non-intervention in customary international law. if jurisdiction over America is not established. 16 of the Statute of ICJ. Garcia J. In the absence of an agreement.

Its provisions. and the crime of aggression as defined in the Statute (Article 5. Rome Statute). require that it be subject to ratification. as member of the institution. The other petitioners maintain their standing as advocates and defenders of human rights. is a function of the Senate. The Substantive Issue The core issue in this petition for mandamus is whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President. crimes against humanity. Philippine Amusement and Gaming Corporation. On Locus Standi of Petitioners The petition at bar was filed by Senator Aquilino Pimentel. 1988 and had remained open for signature until December 31. and as citizens of the country.”[Del Mar vs. it has been held that “to the extent the powers of Congress are impaired. Manalo of the Philippine Mission to the United Nations. Factoran. since his office confers a right to participate in the exercise of the powers of that institution. however. PUBLIC INTERNATIONAL LAW 2008 Bianca Hacintha Roque and Harrison Jacob Roque. Moreover. They have not shown. The Rome Statute is intended to complement national criminal laws and courts. aged two (2) and one (1). The Statute was opened for signature by all states in Rome on July 17. Vienna Convention on the Law of Treaties). Jr. The petition at bar invokes the power of the Senate to grant or withhold its concurrence to a treaty entered into by the executive branch. Senator Pimentel. Issues It is the theory of the petitioners that ratification of a treaty. Rome Statute). it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. under both domestic law and international law. in this case. the Task Force Detainees of the Philippines. The Philippines signed the Statute on December 28. and suing under the doctrine of inter-generational rights enunciated in the case of Oposa vs. powers and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim infringes their prerogatives as legislators. so is the power of each member thereof. petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. 346 SCRA 485 (2000)] Thus. 224 SCRA 792 (1993) and a group of fifth year working law students from the University of the Philippines College of Law who are suing as taxpayers. 2000 at the United Nations Headquarters in New York. at the time of filing of the instant petition. only Senator Pimentel has the legal standing to file the instant suit. that they have sustained or will sustain a direct injury from the nontransmittal of the signed text of the Rome Statute to the Senate. a member of the House of Representatives and Chairperson of its Committee on Human Rights.” (Article I. who asserts his legal standing to file the suit as member of the Senate.36 The Rome State of the International Criminal Court The Rome Statute established the International Criminal Court which “shall have the power to exercise its jurisdiction over person for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions. respectively. Rome Statute) Its jurisdiction covers the crime of genocide. Xxx We find that among the petitioners. Hence. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty (Article 18. the Rome Statute. Sufficient remedies are available under our national laws to protect our citizens against human rights violations and petitioners can always seek redress for any abuse in our domestic courts. a juridical entity duly organized and existing pursuant to Philippine Laws with the avowed purpose of promoting the cause of families and victims of human rights violations in the country. Jr. the Families of Victims of Involuntary Disappearances. certainly has the legal standing to assert such authority of the Senate. Congresswoman Loretta Ann Rosales. however. 2000 through Charge d’ Affairs Enrique A. legislators have the standing to maintain inviolate the prerogatives. Their contention that they will be deprived of their remedies for the protection and enforcement of their rights does not persuade. the Philippine Coalition for the Establishment of the International Criminal Court which is composed of individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute. As regards Senator Pimentel. war crimes. acceptance or approval of the signatory states (Article 25. Notes: . a juridical entity with the avowed purpose of promoting the cause of human rights and human rights victims in the country. The petition seeks to order the executive branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority.

Justice Isagani Cruz. signature. xxx The last step in the treaty-making process is the exchange of the instruments of ratification. Article VII of the 1987 Constitution to mean that the power to ratify treaties belongs to the Senate. the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. being the head of state. enter into treaties. In our system of government. It is standard practice for one of the parties to submit a draft of the proposed treaty which. is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations(Cortes. the petitioners interpret Section 21. the Constitution ensures a healthy system of checks and balance necessary in the nation’s pursuit of political maturity and growth [Bayan vs. but. in his book on International Law. p. It is usually performed by the state’s authorized representative in the diplomatic mission. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them. and exchange of the instruments of ratification. We disagree. As earlier discussed. together with the counter-proposals. Hence. depending on the issues involved. the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. xxx The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations (Cortes. although this step is not essential to the validity of the agreement as between the parties. p. 342 SCRA 449 (2000)]. while the President has the sole authority to negotiate and enter into treaties. 187) As the chief architect of foreign policy. It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. the President acts as the country’s mouthpiece with respect to international affairs. and may even “collapse” in case the parties are unable to come to an agreement on the points under consideration. [emphasis supplied] Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification. The negotiations may be brief or protracted. In filing this petition. The document is ordinarily signed in accordance with the alternat. maintain diplomatic relations. which is the next step. The treaty may then be submitted for registration and publication under the U. that is. In the realm of treatymaking. Ratification. the same is opened for signature. 223] . p. The Philippine Presidency: A Study of Executive Power (1966). Zamora. If and when the negotiators finally decide on the terms of the treaty. supra note 12.37 We rule in the negative. and otherwise transact the business of foreign relations [Cruz. which they exhibit to the PUBLIC INTERNATIONAL LAW 2008 other negotiators at the start of the formal discussions. becomes the basis of the subsequent negotiations. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. Charter. on the other hand. which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty. significantly. each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. ratification. describes the treaty-making process in this wise: The usual steps in the treaty-making process are: negotiation. 189).N.). Philippine Political Law (1996 Ed. Ratification. By requiring the concurrence of the legislature in the treaties entered into by the President. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties. pp.). extend or withhold recognition. Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers. it does not indicate the final consent of the state in cases where ratification of the treaty is required. Nonetheless. is the formal act by which a state confirms and accepts the provisions of a treaty concluded Notes: . International Law (1998 Ed. the President. is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. the President is vested with the authority to deal with foreign states and governments. the instrument is deemed effective upon its signature [Cruz. 172-174]. the President has the sole authority to negotiate with other states.

to the ratification (Bayan vs. Territoriality Principle 2. however. which cannot be encroached by this Court via a writ of mandamus. is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. 16 Phil. Public International Law (5th Edition). the requirement of ratification of treaties would be pointless and futile. It is generally held to be an executive act. In fact. the same shall be transmitted to the Department of Foreign Affairs. transactions and occurrences within the territory of a State are under its jurisdiction. International Law. 459 issued by President Fidel V. is limited only to giving or withholding its consent. as well as over certain consequences produced within the territory by persons acting outside it. The role of the Senate. Ramos on November 25. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. Thus. The Court. Otherwise. p. If that were so. Protective Principle 4. There is no legal obligation to ratify a treaty. International Law. having secured its consent for its ratification. It mandates that after the treaty has been signed by the Philippine representative. Governor-General. Zamora.174). Jurisdiction of States Bases of Jurisdiction 1. Nationality Principle 3. p. Hence. Thus. acceptance or approval of the signatory states. Zamora. 1997 provides the guidelines in the negotiation of international agreements and its ratification. Executive Order No. supra note 16. refuse to ratify it (Cruz. the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. 366 (1910)]. therefore. the Department of Foreign Affairs shall submit the same to the Senate for concurrence. the Department of Foreign Affairs shall comply with the provisions of the treaty to render it effective. the power to ratify is vested in the President. undertaken by the head of the state or of the government (Bayan vs. supra note 18). It is the ratification that binds the state to the provisions thereof. PUBLIC INTERNATIONAL LAW 2008 It should be emphasized that under our Constitution. supra note 16.174). The signature does not signify the final consent of the state to the treaty. Universality Principle Exemptions from Jurisdiction Doctrine of Sovereign Immunity Act of State Doctrine Right of Legation Classes of Heads of Missions Diplomatic Corps Privileges and Immunities Letter of Credence Functions of Diplomatic Representatives Waiver of Diplomatic Immunity and Privileges Duration of Immunity Termination of Diplomatic Relation Consular Immunity 2 Kinds of Consuls Consular Privileges and Immunities ¯°º°¯ BASES OF JURISDICTION A. Upon receipt of the concurrence of the Senate. xxx Xxx Petitioners’ submission that the Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis. supra note 15). The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries [Salonga and Yap. cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to the Senate. the President. ☀ vests jurisdiction in state where offense was committed Notes: . 138]. subject to the concurrence of the Senate. being accountable to the people. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly (Salonga and Yap. but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. or concurrence. property. By ratifying a treaty signed in its behalf. After the treaty is signed by the state’s representative. Territoriality Principle ☀ all persons. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. the other state would be justified in taking offense (Cruz. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.38 by its representative. the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification. a state expresses its willingness to be bound by the provisions of such treaty. [See Severino vs. After the President has ratified the treaty. p. such decision is within the competence of the President alone. it is within the authority of the President to refuse to submit a treaty to the Senate or. supra note 15).

Nationality Principle ☀ a State may punish offenses committed by its nationals anywhere in the world. generally considered as forbidden. if serious enough as to compromise the peace of its port. Hijacking is actually piracy. 43 Phil 19 as robbery or forcible depredation in the high seas without lawful authority and done animo furandi and in the spirit and intention of universal hostility. NCC. treason. B. Q: Distinguish “exTERritoriality” and “exTRAterritoriality. or by sanctions allowed under the generally accepted principles of international law. even where the offenses are perpetrated by non-nationals. States are required under international law. Under such situation. defined in People vs. all so Notes: . 14. to respect the territorial integrity of other states. specifically under Article II. Universality Principle ☀ A State has extraterritorial jurisdiction over all crimes regardless of where they are committed or who committed them. ☀ vest jurisdiction in state which has custody of offender of universal crimes ☀ piracy. the aircraft was highjacked by drug traffickers. The hijackers were captured in Damaseus and sent to the Philippines for trial.” A: exTERritoriality exTRAterritoriality exception of persons and property from local jurisdiction on basis of international customs used to denote the status of a person or things physically present on a State’s territory. This is. however. ☀ vest jurisdiction in state of offender ☀ Art. As it is against all. NCC EXTRATERRITORIAL JURISDICTION – ☀ often claimed by States with respect to so-called continuing offenses where the commission of the crime has started in one State and is consummated in another. 15. genocide Q: A Filipino owned construction company with principal office in Manila leased an aircraft registered in England to ferry construction workers to the Middle East. Where can he be tried? (1979 Bar) A: Under both the English and French rules. D. if such acts are adverse to the interest of the national state. Q: A crime was committed in a private vessel registered in Japan by a Filipino against an Englishman while the vessel is anchored in a port of State A. Piracy is a crime against all mankind. tax laws C. Japan if it involves only the members of the crew and is of such a petty nature as not to disturb the peace of the local state. While on a flight to Saudi Arabia with Filipino crew provided by the lessee. it may be punished in the competent tribunal if any country where the offender may be found or into which he may be carried. and upon states? (1979 Bar) A: All persons within our national territory are subject to the jurisdiction of the Philippines. Q: What is the meaning or concept of extraterritoriality? (1977 Bar) A: The term “extraterritoriality has been used to denote the status of a person or things physically present on a State’s territory. for example. paragraph 4 of the UN Charter. The jurisdiction on piracy unlike all other crimes has no territorial limits. but wholly or partly withdrawn from the State’s jurisdiction” by a rule of international law. both states have jurisdiction. but wholly or partly withdrawn from the State’s jurisdiction” by a rule of international law Q: How can the observance of our law on national theory be enforced upon individuals. the crime will be tried by the local state A. whether nationals or non-nationals. Lol-lo.39 PUBLIC INTERNATIONAL LAW 2008 ☀ Art. (1991 Bar) A: Protective Personality Principle is the principle on which the State exercise jurisdiction over the acts of an alien even if committed outside its territory. Do courts of Manila have jurisdiction over the case? (1981 Bar) A: Yes. by a foreign vessel. otherwise by the flag state. Accordingly. may be punished under our own laws. Note: The concept of extraterritoriality is already obsolete. with certain exceptions like heads and diplomatic agents of foreign states. Any encroachments upon our territory. espionage Q: Explain the Protective Personality Principle. Protective Principle ☀ States claim extraterritorial criminal jurisdiction to punish crimes committed abroad which are prejudicial to their national security or vital interests. ☀ vest jurisdiction in state whose national interests is injured or national security compromised ☀ counterfeiting.

Carpenters.000 representing the payment for the 100.000. In one transaction. the Ministry of the Army. the local buyer complained that the Balau goods delivered to him were substandard and he sued the Republic of Balau before the RTC of Pasig for damages.000. it must be set up. In February 1990. Consent to the exercise of jurisdiction of a foreign court does not involve waiver of the separate immunity from execution. when a state wishes to plead sovereign immunity in a foreign court.000 pairs will also be paid for. In the Philippines. 1991. However. The defendant therefore acquires the right to set up a compulsory counterclaim against it. Indonesia moved to dismiss the counterclaim asserting that it is entitled to sovereign immunity from suit. DOCTRINE OF SOVEREIGN IMMUNITY Under this doctrine. otherwise. to compel Marikina Shoe Corporation to perform the balance of its obligation under the contract and for damages. Notes: . it requests the Foreign office of the state where it is being sued to convey to the court that it is entitled to immunity. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state for those limits. Republic of Indonesia. the practice is for the foreign government to first secure an executive endorsement of its claim of immunity. On June 1.000 pairs of combat boots are delivered. A: a) By filing a motion to dismiss in accordance with Section 1 (a) Rule 16 of the Rules of Court on the ground that the court has no jurisdiction over its person.000 pairs or a total of $3. b) Will such defense of sovereign immunity prosper? Explain. The Philippines adheres to restrictive Sovereign Immunity. as held in Froilan vs. In some case. As held by the Supreme Court in the case of USA vs. it was stated that a foreign state couldn’t invoke immunity from suit if it enters into a commercial contract. P2d 705. though neutral to war. the defense of sovereign immunity is submitted directly to the local court by the foreign state through counsel by filing a motion to dismiss on the ground that the court has no jurisdiction over its person.000 pairs of combat boots for the use of the Indonesian Army. in Public International Law. a state enjoys immunity from the exercise of jurisdiction by another state. The Court of Appeals should grant the petition of the Indonesian Government insofar as it sought to annul the garnishment of the funds of Indonesia.000 pairs of combat boots already delivered but unpaid.000 pairs of combat boots at $30 per pair delivered in Jakarta on or before October 1990. it will be barred. it was held that consent to be sued does not give consent to the attachment of the property of sovereign government. the Republic of Indonesia filed an action before the RTC of Pasig. (1996 Bar) a) How can the Republic of Balau invoke its sovereign immunity? Explain. Doctrine of State Immunity. In its Answer. which were deposited in the PNB and BPI. The contract was awarded by the Ministry of the Army to Marikina Shoe Corporation and was PUBLIC INTERNATIONAL LAW 2008 signed by the parties in Jakarta. How would the Court of Appeals decide the case? (1991 Bar) A: The Court of Appeals should dismiss the petition in so far as it seeks to annul the order denying the motion of the Government of Indonesia to dismiss the counterclaim.40 may punish it. The Marikina Shoe Corporation. 95 Phil 905. invited for a bid for the supply of 500. The counterclaim in this case is a compulsory counterclaim since it arises from the same contract involved in the complaint. the state of Indonesia waived its immunity from suit. Marikina Shoe Expo was able to deliver only 200. The Ministry of the Army promised to pay for the other 100. Restrictive Application of the Doctrine of State Immunity Q: The Republic of Balau opened and operated in Manila an office engaged in trading of Balau products with the Philippine products. Indonesia went to the Court of Appeals on a petition for certiorari under Rule 65 of the Rules of Court.000 pairs of combat boots in Jakarta by October 30. Q: Marikina Shoe Corporation failed to deliver any more combat boots. 1990 and received payment for 100. Guinto. Exemptions from Jurisdiction 1. It is not right that it can sue in the courts of the Philippines if in the first place it cannot be sued. at which time the said 300. According to the case of Holy See vs.) Thus as held in the case of Dexter vs. b) No. The sale of Balau products as a contract involves a commercial activity. a Philippine Corporation. Above all. Marikina Shoe Corporation sets up a counterclaim for $3. (You can look but you can’t touch. Pan Oriental Shipping Co. which has a branch office and with no assets in Indonesia. The courts of one state may not assume jurisdiction over another state. The trial court denied the motion to dismiss and issued two writs of garnishment upon Indonesian Government funds deposited in the PNB and BPI. Ruiz and USA vs. submitted a bid to supply 500.000. are not neutral to crimes.000 pairs already delivered as soon as the remaining 300. Rosario. As such. by filing a complaint.

protecting in receiving state interests of sending state and its nationals. cultural and scientific relations. 3. and 6. The foreign secretary or minister. Warships and other public vessels of another State operated for non-commercial purposes. Envoys. Charges d’affaires accredited to Ministers for Foreign Affairs. 4. Exemption from taxation Q: Who are the usual agents of diplomatic intercourse? A: The diplomatic relations of a state are usually conducted through: i. PUBLIC INTERNATIONAL LAW 2008 Act of State Doctrine – court of one state will not sit in judgment over acts of government of another state done in its territory. Exemption from subpoena as witness. promoting friendly relations between sending and receiving states and developing their economic. Immunity of UN Specialized agencies. ascertaining by all lawful means conditions and developments in receiving state and reporting thereon to government of sending state. you cannot sue a sovereign State in the courts of another State. in some cases. 4. Right of an official communication. d. The members of the diplomatic service. and its Officers. Courts cannot pass judgment on acts of State done within its territorial jurisdiction. a policy of isolation would hinder the progress of a state since it would be denying itself of the many benefits available from the international community. such as the negotiation of a treaty or attendance at a state function like a coronation or a funeral. The Doyen or head of this body is usually the Papal Nuncio. Sometimes the state may appoint special diplomatic agents charged with either political or ceremonial duties. 3. other International Organizations. However. Foreign armies passing through or stationed in the territory with the permission of the State. or the oldest accredited ambassador or plenipotentiary. DIPLOMATIC IMMUNITY THE RIGHT OF LEGATION It is the right to send and receive diplomatic missions. An act of State cannot be questioned or made the subject of legal proceedings in court of law. b. Here. Privileges and immunities a. Inviolability of premises and archives. It is different from Sovereign Immunity from Suit. negotiating with government of receiving state. 5. 6. Ambassadors or nuncios accredited to heads of states ii. The head of state. Q: Why? A: Would unduly vex the peace of nations based on the doctrine of sovereign equality of States – “Par in parem non habet imperium” Q: What is the meaning or concept of “Act of State” Doctrine? (1977 Bar) A: The Act of State Doctrine states that every sovereign state is bound to respect the independence of other states and the court of one country will not sit in judgment to the acts of the foreign government done within its territory. It is strictly not a right since no State can be compelled to enter into diplomatic relations with another State. 2. representing sending state in receiving state. within the limits of the power vested in him. as Japan did until the close of the 19th century. ministers and internuncios accredited to heads of states Notes: . Personal inviolability. Diplomatic Immunity. Ambassadors or nuncios accredited to Heads of State and other heads of missions of equivalent rank. as the right of legation is purely consensual. c. representing friendly governments at their request. c. Exemption from local jurisdiction. Q: Is the state obliged to maintain diplomatic relations with other states? A: No. 5. Q: How are the regular diplomatic representatives classified? A: i.41 2. and iii. f. ACT OF STATE DOCTRINE Q: What is an Act of State? A: An act of state is an act done by the sovereign power of a country. ii. 7. Envoys ministers and internuncios accredited to Heads of State. or by its delegate. e. Diplomatic Corps A body formed by all diplomatic envoys accredited to the same State. If it wants to. Foreign Merchant vessels exercising the right of innocent passage. Active right of legation – send diplomatic representatives Passive right of legation – receive diplomatic representatives Resident Missions Classes of heads of missions [ A N E M I C ] a. Diplomatic relations is established by mutual consent between two States. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. b. a state may shut itself from the rest of the world. Functions of Diplomatic Missions 1.

known sometimes as letter patent or letre d’ provision. It consist of two acts: i. the dean is the Papal Nuncio. representing friendly governments at their request. c) Negotiating with the government of the receiving state. e) Promoting friendly relations between the sending and receiving state and developing their economic. Letter Patent (Letre d’ Provision) The appointment of a consul is usually evidenced by a commission. except in certain cases as. who is usually the member of the highest rank and the longest service to the state. (See movie “Red Corner” starring Richard Gere). resulting in strained relations between the sending and receiving state. heads it. requisition. by which the receiving state indicates to the sending state that such person. issued by the appointing authority of the sending state and transmitted to the receiving state through diplomatic channels. and consulates of the sending state wherever situated. d) The archives and documents of the mission shall be inviolable at any time and wherever they may be. The Inquiry. also informal. In Catholic countries. Indeed. would be acceptable. It designates his rank and the general object of his mission and asks that he be received favorably and that full credence be given to what he says on behalf of his state. attachment or execution. for example. ii. A doyen du corps or a dean. Q: What is agreation? A: It is a practice of the states before appointing a particular individual to be the chief of their diplomatic mission in order to avoid possible embarrassment. most states now observe the practice of agreation. It is only when the receiving state manifests its agreement or consent that the diplomatic representative is appointed and formally accredited. freedom or dignity. the mission may employ all appropriate means. including diplomatic couriers and messages in code or cipher. PUBLIC INTERNATIONAL LAW 2008 Charges d’ affaires accredited to ministers for foreign affairs The diplomatic corps consists of different diplomatic representatives who have been accredited to the local or receiving state. In communicating with the government and other missions. and The agreement. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person. b) Protecting in the receiving state the interests of the sending state and its nationals. Notes: . civil and administrative jurisdiction of the receiving state. when the civil action deals with property held by him in a private or proprietary capacity. f) In some cases. there have been cases when duly accredited diplomatic representatives have been rejected. their furnishings and other property thereon and the means of transportation of the mission shall be immune from search. usually informal. Q: How are diplomatic representatives chosen? A: The appointment of diplomats is not merely a matter of municipal law for the receiving state is not obliged to accept a representative who is a persona non grata to it. Functions of diplomatic representatives The functions of diplomatic mission consist inter alia in: a) Representing the sending state in the receiving state. d) Ascertainment through lawful means of the conditions and developments in the receiving state and reporting thereon to the government of the sending state. cultural and scientific relations. e) The receiving state shall permit and protect free communication on the part of the mission for all official purposes. c) The diplomatic premises shall be inviolable. addressed by the sending state to the receiving state regarding the acceptability of an individual to be its chief of mission. b) A diplomatic agent shall enjoy immunity from the criminal. Pointers on Diplomatic Immunities and Privileges The more important are the following: a) The person of a diplomatic agent shall be inviolable and he shall not be liable to any form of arrest or detention. Such premises. and the agents of the receiving state may not enter them without the consent of the head of the mission. by means of which inquiries are addressed to the receiving state regarding a proposed diplomatic representative of the sending state. which the envoy receives from his government accrediting him to the foreign state to which he is being sent. Letter of Credence (Letre d’ Creance) The document.42 iii. To avoid such awkward situation. The official correspondence of the mission shall be inviolable.

diplomatic immunities and privileges begin from the moment diplomatic agent arrives in the territory of the receiving state or. Q: Italy. for which he may later be sued or prosecuted should he return in a private capacity to the receiving state or fail to leave it in due time after the end of his mission. baselessly and arbitrarily terminated. if already there. Q: Is Diplomatic Immunity a Political Question? A: Diplomatic immunity is essentially a political question and the courts should refuse to look beyond the determination by the executive branch. entered into a contract with Abad for the maintenance and repair of specified equipment at its Embassy and Ambassador’s Residence. However. (b) The court should reject the defenses. The official staff is made up of the administrative and technical personnel of the mission. Further. water heaters. domestic servants enjoy immunities and privileges only to the extent admitted by the receiving state and insofar as they are connected with the performance of their duties. and water motor pumps. personal or real. the receiving state shall insure to all members of the mission freedom of movement and travel in its territory. Abad sued the State of Italy and its Ambassador before a court in the City of Manila. Since the establishment of a diplomatic mission requires the maintainance and upkeep of the embassy and the residence of the ambassador. I shall argue that the contract is not a sovereign function and that the stipulation that any suit arising under the contract shall be filed with the proper courts of the City of Manila is a waiver of the sovereign immunity from suit of Italy. including the residences of the head of the mission and on his means of transport. what should be the court’s ruling on the said defenses? A: (a) As a counsel of Abad. his immunity from the jurisdiction of the receiving state continues indefinitely as these are the acts attributed not to him but to the sending state. waiver of immunity from jurisdiction with regard to civil and administrative proceedings shall not be held to mean implied waiver of the immunity with respect to the execution of judgment. I shall also argue that the ambassador does not enjoy diplomatic immunity. i) The mission and its head shall have the right to use the flag and emblem of the sending state on the premises of the mission. including those performing clerical work. national. and cooks and chauffeurs employed by the mission. generator sets. Q: Who else besides the head of the mission are entitled to diplomatic immunities and privileges? A: The diplomatic immunities and privileges are also enjoyed by the diplomatic suite or retinue. form the moment his appointment is notified to its government. however. regional. such as air conditioning units. Claiming that the Maintenance Contract was unilaterally. Italy was acting in pursuit of a sovereign activity when it entered into the contract. It may also be done impliedly. for which a separate waiver shall be necessary. With respect to his official acts. which consists of the official and non-official staff of the mission. electrical facilities. butlers. (DFA vs. The provision in the contract Notes: . NLRC. and lasts until he leaves.43 f) PUBLIC INTERNATIONAL LAW 2008 Subject to its laws and regulations concerning national security. through its Ambassador. Among the defenses they raised were “sovereign immunity” and “diplomatic immunity”. Q: Who may waive the diplomatic immunity and privileges? A: The waiver may be made expressly by the sending state. But this rule does not apply to his private acts. The non-official staff is composed of the household help. refute the defenses of “sovereign immunity” and “diplomatic immunity” raised by the State of Italy and its Ambassador. It was stipulated that the agreement shall be effective for a period of four years and automatically renewed unless cancelled. which must be within a reasonable period following the termination of his mission. 1996) Duration of the diplomatic immunities Unless waived. such as the domestic servants. (2005 Bar) (a) As counsel of Abad. as when the person entitled to the immunity from jurisdiction commences litigation in the local courts and thereby opens himself to any counterclaim directly connected with the principal claim. or municipal except in certain specified cases like the imposition of indirect taxes. As a rule. (b) At any rate. because the suit relates to a commercial activity. g) A diplomatic agent is not obliged to give evidence as a witness. it provided that any suit arising from the contract shall be filed with the proper courts in the City of Manila. and the member of their respective families. however. h) A diplomatic agent shall be exempt from all dues and taxes.

The contract does not involve a commercial activity of the ambassador.” Under Article 37 of the Vienna Convention on Diplomatic Relations. The consul is immune from criminal prosecution ONLY for acts committed by him in connection with his official functions. 405 SCRA 126 (2003)] Q: A group of high-ranking officials and rank and file employees stationed in a foreign embassy in Manila were arrested outside embassy grounds and detained at Camp Crame on suspicion that they were actively collaborating with “terrorists” out to overthrow or destabilize the Philippine Government. what advice would you give. For some reason. a diplomatic agent has no immunity in case of a real action relating to private immovable property situated in the territory of the receiving State unless he holds it on behalf of the sending State for purposes of the mission. because it is connected with his official functions. Vinzon. a diplomatic agent shall not be liable to any form of arrest or detention. a) Can the foreign ambassador invoke his diplomatic immunity to resist the lessor’s action? b) The lessor gets hold of evidence that the ambassador is about to return to his home country. Q: A foreign ambassador to the Philippines leased a vacation house in Tagaytay for his personal use. who are assumed to be diplomatic officers or agents. He shall not be liable to any form of arrest or detention. b) No. if they are not nationals of or permanent residents in the receiving State. If invited to express your legal opinion on the matter. Alternative A: Under the Vienna Convention on Diplomatic Relations. This immunity may cover the “high ranking officials” in question. Under Article 9 of the Vienna Convention on Diplomatic Relations. [Republic of Indonesia v. members of the administrative and technical staff of the diplomatic mission. shall. (2003 Bar) A: I shall advise that the high ranking officials and rank and file employees be released because of their diplomatic immunity. It should be interpreted to apply only where Italy elects to sue in the Philippine courts or waives its immunity by a subsequent act. if at the time of the arrest they were in “acts performed in the course of their duties. he failed to pay the rentals for more than one year. Can the lessor ask the court to stop the ambassador’s departure from the Philippine? (2000 Bar) A: a) No. since he is not using the house in Tagaytay City for the purposes of his mission but merely for vacation. With respect to the “rank and file employees” that are covered by the immunity referred to above. Under Article 29 of the Vienna Convention. the remedy is to declare the high-ranking officials and rank and file employees personae non gratae and ask them to leave. the foreign ambassador cannot invoke the diplomatic immunity to resist the action. May the Philippine courts take jurisdiction over them for trial and punishment for the crime they may have committed? (1979 Bar) A: The Ambassador is immune from prosecution for all crimes committed by him whether officially or in his private capacity. Q: The United States Ambassador from the Philippines and the American Consul General also in the Philippines quarreled in the lobby of Manila Hotel and shot each other.44 regarding the venue of lawsuits is not necessarily a wavier of sovereign immunity from suit. Notes: . Article 29 of the Vienna Convention on Diplomatic Relations provides: “The person of a diplomatic agent shall be inviolable. The Foreign Ambassador sought their immediate release. The lessor filed an action for the recovery of his property in court. a diplomatic agent “shall not be liable to any form of arrest or detention (Article 29) and he enjoys immunity from criminal jurisdiction (Article 31). the lessor cannot ask the court to stop the departure of the ambassador from the Philippines. provided that are not nationals or permanent residents of the Philippines pursuant to Article 37(2) of the said Convention.” If a driver was among the said rank and file employees and he was arrested while driving a diplomatic vehicle or engaged in related acts. Under 3(1)(a) of the Vienna Convention on Diplomatic Relations. still he would be covered by the immunity. claiming that the detained embassy officials and employees enjoyed diplomatic immunity. If the said rank and file employees belong to the service staff of the diplomatic mission (such as drivers) they may be covered by the immunity PUBLIC INTERNATIONAL LAW 2008 (even if they are not Philippine nationals or residents) as set out in Article 37(3). enjoy the privileges and immunities specified in Article 29.

they deal directly with local authorities. which is the commission issued by the sending state. which is usually severed before the actual commencement of hostilities. One house is used as the chancery and residence of the ambassador. consuls are liable to arrest and punishment for grave offenses and may be required to give testimony. They look mainly after the commercial interest of their own state in the territory of a foreign state. Consuls belong to a class of state agents distinct from that of diplomatic officers. Q: Do consuls enjoy their own immunities and privileges? Explain. The consular offices are immune only with respect to that part where the consular work is being performed and they may be expropriated for purposes of national defense or public utility. Here. The receiving state is under obligation to facilitate the acquisition on its territory. in so far as the house and lot to be used as quarters of the nationals of State X who are studying in De La Salle University are concerned. However. b) Extinction .the outbreak of war between the sending and receiving states terminates their diplomatic relations. Q: Will the termination of diplomatic relations also terminate consular relations between the sending and receiving states? A: NO. consuls are entitled to the inviolability of their correspondence. Like diplomats. and the other as quarters for nationals of State X who are studying in De La Salle University. the prohibition in the constitution against the transfer of properties to parties other than the Filipino citizens or corporation 60% of the capital of which is owned by such citizens should be followed. Therefore. Notes: . They do not represent their state in its relations with foreign states and are not intermediaries through whom matters of state are discussed between governments. but not to the same extent as those enjoyed by the diplomats. in accordance with its laws.extinction of either the sending state or the receiving state will also automatically terminate diplomatic relations between them. Termination of Diplomatic Relation A diplomatic mission may come to an end by any of the usual methods of terminating official relations like: Under Municipal Law: [ R A D A R ] a) Resignation b) Accomplishment of the purpose c) Death d) e) Abolition of the office Removal Under the International Law: [ W E R ] a) War . Is his refusal justified? A: The prohibition in the Constitution against alienation of lands in favor of aliens does not apply to alienation of the same in favor of foreign governments to be used as chancery and residence of its diplomatic representatives. the receiving state may resort to the more drastic method of dismissal. to wit. Where the demand is rejected by the sending state. They are not clothed with diplomatic character and are not accredited to the government of the country where they exercised their consular functions. the letter patent or letter ‘de provision. archives and other documents. which is the permission given them by the receiving state to perform their functions therein. c) consules electi –may or may not be nationals of the sending state and perform their consular functions only in addition to their regular callings. freedom of movement and travel. OR c) Recall – may be demanded by the receiving state when the foreign diplomat becomes a persona non grata to it for any reason. and the exequator. Makati. However. Q: Where do consuls derive their authority? A: Consuls derive their authority from two principal sources. subject to certain exceptions. or to assist the latter in obtaining accommodation in some other way. by the sending state of premises necessary for its mission.45 PUBLIC INTERNATIONAL LAW 2008 Q: The Ambassador of State X to the Philippines bought in the name of his government two houses and lots at Forbes Park. The Register of Deeds refused to register the sale and to issue Transfer Certificates of Title in the name of State X. the Register of Deeds correctly refused registration. the refusal of the Register of Deeds to register the sale and the issuance of TCT in the name of state X is unjustified. by means of which the offending diplomat is summarily presented with his passport and asked to leave the country. immunity from jurisdiction for acts performed in their official capacity and exemption from certain taxes and customs duties. 2 Kinds of Consuls b) consules missi – professional or career consuls who are nationals of the sending state and are required to devote their full time to the discharge of their duties. A: Yes.

b) No. the action will not prosper. (1991 Bar) A: Exequator is an authorization from the receiving state admitting the head of a consular post to the exercise of his functions. except in the case of: A real action relating to private immovable property situated in the territory of the receiving state. this does not apply in respect of a civil action either: Arising out of a CONTRACT concluded by a consular officer in which he did not enter expressly or impliedly as an agent of the sending state. the vacation house may be considered property held by the Ambassador in behalf of his State (Kingdom of Nepal) for the purposes of the mission. He shall also enjoy immunity from its civil and administrative jurisdiction. Alternative A: No. b) An action relating to succession in which the diplomatic agent is involved as executor. The action falls within the exception to the grant of immunity from the civil and administrative jurisdiction of the Philippines. a writ of attachment cannot be issued against the furniture and any personal property. He shall also enjoy immunity from its civil and administrative jurisdiction except in the case of: a) A real action relating to private immovable property situated in the territory of the receiving state. 1989 Bar) a) Can the action of E prosper? b) Can E ask for the attachment of the furniture and other personal properties of d after getting hold of evidence that D is about to leave the country? c) Can E ask the court to stop D’s departure from the Philippines? A: a) Yes Article 31 of the Vienna Convention on Diplomatic Relations provides: “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. and therefore. he cannot start performing Notes: . nonetheless. On account of military disturbance in Nepal. E. using example. a consular officer does not enjoy immunity from the criminal jurisdiction of the receiving state. Under Article 43 of the Vienna Convention on Consular Relations. including its court. unless he holds it on behalf of the sending state for the purpose of the mission. in the privileges or immunities of diplomatic envoys and consular officers from the civil and criminal jurisdiction of the receiving state. The action against the ambassador is a real action involving private immovable property situated within the territory of the Philippines as the receiving state. b) By a third party for DAMAGES arising from an accident in the receiving state caused by a vehicle. E cannot ask for the attachment of the personal properties of the Ambassador. the lessor. correspondence and the property of the diplomatic agent shall be inviolable. D did not receive his salary and allowances from his government and so he failed to pay his rental for more than one year. a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. administrator. the Ambassador of the Kingdom of Nepal to the Philippines leased a house in Baguio City as his personal vacation home. c) No. Article 30 and 31 of the Vienna Convention on Diplomatic Relations provide that the papers. filed an action for recovery of his property with the RTC of Baguio City. heir or legatee as private person and not on behalf of the sending state. c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside of his official functions. (1995 Bar) A: Under Article 32 of the Vienna Convention of Diplomatic Relations. Moreover. on the assumption that the Kingdom of Nepal grants similar protection to Philippine diplomatic agents. He shall not be liable to any form of arrest or detention. On the other hand. the meaning of exequator.46 PUBLIC INTERNATIONAL LAW 2008 Q: Discuss the differences. Article 29 of the Vienna Convention on Diplomatic Relations provides: “The person of a diplomatic agent shall be inviolable. if the Philippines appoint a consul general for New York. if any. Therefore. Although the action is a real action relating to private immovable property within the territory of the Philippines. a) Q: D. However. E cannot ask the court to stop the departure of the Ambassador of the Kingdom of Nepal from the Philippines. unless he holds it on behalf of the sending state for the purpose of the mission. Q: Explain. under Article 41 of the Vienna Convention on the Consular Relations. For example. (2000. such is beyond the civil and administrative jurisdiction of the Philippines. vessel or aircraft. consular officers are not amenable to the jurisdiction of the judicial or administrative authorities of the receiving state in respect of acts performed in the exercise of consular functions. Section 4 of RA 75 provides that any writ or process issued by any court in the Philippines for the attachment of the goods or chattel of the ambassador of a foreign state to the Philippines shall be void.

PUBLIC INTERNATIONAL LAW 2008 b) Yes. As secretary. and Baker was charged with Violation of the Dangerous Drugs Act. which he later gave as a birthday present to his Filipino girlfriend. Baker then sued Adams for damages for filing trumped-up charges against him. b) Suppose after he was charged. In Schneekenburger vs. Mora. Adams was the prosecution’s principal witness. armed with a Search Warrant authorizing the search of Baker’s house and its premises for dangerous drugs being trafficked to the United States of America. consuls do not enjoy immunity from the criminal jurisdiction of the receiving state. although not necessarily a diplomatic personage. Q: Adams and Baker are American citizens residing in the Philippines. (b) As counsel of defendant Adams. the third state shall accord him inviolability and such other immunities as may be required to ensure his transit. a consular officer is not immune from the criminal jurisdiction of the receiving state. May he claim immunity from jurisdiction of the local court? Explain.R. 11 February 2003 If the acts giving rise to a suit are those of a foreign government done by its foreign agent. He presented Diplomatic Notes from the American Embassy stating that he is an agent of the United States Drug Enforcement Agency tasked with “conducting surveillance operations” on suspected drug dealers in the Philippines believed to be the source of prohibited drugs being shipped to the U. Q: a) A consul of a South American country stationed in Manila was charged with serious physical injuries. It was also stated that after having ascertained the target. A: (a) As a counsel of Baker. I will argue that Adam’s diplomatic immunity cannot be accepted as the sole basis for the dismissal of the Notes: . Adams would then inform the Philippine narcotic agents to make the actual arrest. Upon presentment for payment. No. if a diplomatic agent is in the territory of a third state.47 his functions unless the President of the United States issues an exequator to him. mother. the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. how would you resolve the motion to dismiss? (1997 Bar) A: The motion to dismiss should be granted. as a secretary in the American Embassy. he is a diplomatic agent. After preliminary investigation. The purchase price was paid in check drawn upon the Citibank. because he is not performing diplomatic functions. MUNICHER v. However. The search purportedly yielded positive results. Because X’s failure to make good of the dishonored check.000. a diplomatic agent against enjoys immunity from the criminal jurisdiction of the receiving state. ascendant. Can his newly gained diplomatic status be a ground for the dismissal of his criminal case? Explain. argue for the dismissal of the complaint. B filed a complaint against X in the Office of the City Prosecutor of Manila for violation of BP 22. argue why his complaint should not be dismissed on the ground of defendant Adams’ diplomatic immunity from suit. Under paragraph 3 of Article 41 of the Vienna Conventions. (1995 Bar) A: a) No. Consuls are not liable to arrest and detention pending trial except in the case of grave crime and pursuant to a decision by the competent judicial authority. X filed a motion to dismiss the case against him on the ground that he is a Secretary and Consul in the American Embassy enjoying diplomatic immunity from criminal prosecution in the Philippines. (2005 Bar) (a) As counsel of plaintiff Baker. He is not liable to arrest or detention pending the trial unless the offense was committed against his father. 142396. descendant or spouse. conformably with the Vienna Convention on Diplomatic Relations. Among the defenses raised by Adams is that he has diplomatic immunity. Under paragraph 1 of Article 3 of the Vienna Convention. the information was filed against X in the City Court of Manila. Under Article 41 of the Vienna Convention. Under Article 40 of the Vienna Convention. Q: X. X enjoys diplomatic immunity from the criminal prosecution. which has granted him a passport visa if such was necessary. Adams befriended Baker and became a frequent visitor at his house. a secretary and consul in the American embassy in Manila. If you were the judge. the check was dishonored for insufficiency of funds. As consul. child. X is not immune from criminal prosecution. but acting in his official capacity.S. bought from B a diamond ring in the amount of P 50. 63 Phil 249. Adams arrived with 30 members of the Philippine National Police. Alternative A: (a) As a counsel for Baker. Baker was acquitted. However. it was held that a consul is not exempt from criminal prosecution in the country where he is assigned. CA G. I shall argue that Baker has no diplomatic immunity. for failure to prove his guilt beyond reasonable doubt. The crime of physical injuries is not a grave crime unless it is committed against the above-mentioned persons. One day. while proceeding to take up his post. he was appointed as his country’s ambassador to the Philippines.

Rauscher (119 US 407. Thus.” (Weston. En Banc) Q: Discuss the basis for allowing extradition. and apart from them there was no well-defined obligation on one country to Notes: . The legal duty to extradite a fugitive from justice is based only on treaty stipulations. 630 [1990]. 2000. whether bilateral or multilateral. Q: What is extradition? To whom does it apply? Held: It is the “process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. it was granted due to pacts. which contains a specific list of offenses that a fugitive should have committed in order to be extradited. due to plain good will. 2nd ed.R. cited in Dissenting Opinion. 411. No. Sometimes. in Secretary of Justice v. Chaldeans and AssyroBabylonians but their basis for allowing extradition was unclear. Grotius and Vattel led the school of thought that international law imposed a legal duty called civitas maxima to extradite criminals. by mere presentation of Diplomatic Notes stating that he is an agent of the US Drug Enforcement Agency. 7 S Ct. In sharp contrast. p. It applies to those who are merely charged with an offense but have not been brought to trial. 425 [1886]). D' Amato.. 30 L. The classical commentators on international law thus focused their early views on the nature of the duty to surrender an extraditee --. and those who have been convicted in absentia. Puno. (2003)] JURISDICTIONAL ASSISTANCE Extradition Defined Extradition distinguished from Double Criminality Basis for Allowing Extradition Rules in Interpretation of Extradition Treaty Extradition Distinguished from Deportation Fundamental Principles Governing Extradition Extradition of War Criminals and Terrorists Attentat Clause Five Postulates of Extradition Right of Asylum Asylum Distinguished from Refugees 3 Essentials Elements of Refugees Non-Refoulment Principle Nationality Distinguished from Citizenship Doctrine of Effective Nationality Statelessness ¯°º°¯ Extradition The delivery of an accused or a convicted individual to the State in whose territory he is alleged to have committed a crime by the State on whose territory the alleged criminal or criminal happens to be at the time. Chinese. I shall argue that since he was acting within his assigned functions with the consent of the Philippines. to those who have been tried and convicted and have subsequently escaped from custody. International Law and Order. Lantion. 18. considering that as a matter of diplomatic practice a diplomatic agent may be allowed or authorized to give evidence as a witness by the sending state. J. ed. Jan. 234.48 PUBLIC INTERNATIONAL LAW 2008 damage suit. Hon. the US Supreme Court in US v. 139465.whether the duty is legal or moral in character. [Minucher v. for trial and punishment.. Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no duty to extradite in the absence of treaty. It is enough that the particular act charged is a crime in both jurisdictions. CA. Thus. 397 SCRA 244. which are classified under two major types: Older Type One. Puffendorf and Billot led the school of thought that the so-called duty was but an "imperfect obligation which could become enforceable only by a contract or agreement between states. the suit against him is a suit against the United States without its consent and is barred by state immunity from suit. This has been done generally by treaties x x x Prior to these treaties. G. Held: Extradition was first practiced by the Egyptians. Ralph C. at other times. Falk. His diplomatic status was matter of serious doubt on account of his failure to disclose it when he appeared as principal witness in the earlier criminal (drug) case against Baker. Principle of Double Criminality Sometimes called “no list treaty” The more modern type contains no list of crimes but provides that the offenses in question should be punishable in both states. It should not require that the name of the crime described should be the same in both countries. 236. his diplomatic status was not sufficiently established. (b) As counsel of Adams. It does not apply to persons merely suspected of having committed an offense but against whom no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment. held: “x x x it is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed.

15. An extradition treaty is not a criminal law. For his defense. as a rule. CA. Gibson. Extradition Law at the Crossroads: The Trend Toward Extending Greater Constitutional Procedural Protections To Fugitives Fighting Extradition from the United States.R.” (Wiehl. It cannot be gainsaid that today. 1994 [Kapunan]) Q: The Philippines and Australia entered into a Treaty of Extradition concurred in by the Senate of the Philippines on September 10. Lantion. Article III of the Constitution refers to ex post facto laws. No. 1977]) There are other differences between an extradition proceeding and a criminal proceeding. constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation.” Finally. the process of extradition does not involve the determination of the guilt or innocence of an accused.. in Secretary of Justice v. Hence. Jan. our courts may adjudge an individual extraditable but the President has the final discretion to extradite him.49 deliver up such fugitives to another. 139465. The prohibition in Section 22. a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited “upon showing of the existence of a prima facie case. As held by the US Supreme Court in United States v. and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty. En Banc [Puno]) Q: Will the retroactive application of an extradition treaty violate the constitutional prohibition against "ex post facto" laws? Held: The prohibition against ex post facto law applies only to criminal legislation which affects the substantial rights of the accused. including the RP-US Extradition Treaty. An extradition proceeding is summary in natural while criminal proceedings involve a full-blown trial. should be interpreted in light of their intent. Ralph C. Held: [A]ll treaties. No. citing United States v. the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. Gibson asserts that the retroactive application of the extradition treaty amounts to an ex post facto law. 741 [1998]. En Banc) Q: What is the nature of an extradition proceeding? Is it akin to a criminal proceeding? Held: [A]n extradition proceeding is sui generis. Rule on Gibson’s contention. unlike in a criminal case where judgment becomes executory upon being rendered final. and though such delivery was often made it was upon the principle of comity x x x. This PUBLIC INTERNATIONAL LAW 2008 we hold for the procedural due process required by a given set of circumstances “must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action. Galanis: “An extradition proceeding is not a criminal prosecution. (2005 Bar) A: The contention of Gibson is not tenable. 139465. This being so. 2000. 1990.” The concept of due process is flexible for “not all situations calling for procedural safeguards call for the same kind of procedure. 2000.” X x x. To begin with. the due process safeguards in the latter do not necessarily apply to the former. countries like the Philippines Notes: . 235 SCRA 341. Galanis. 1215 [D. Ralph C. Lantion. In terms of the quantum of evidence to be satisfied. The treaty is neither a piece of criminal legislation nor a criminal procedural statute. G. Both governments have notified each other that the requirements for the entry into force of the Treaty have been complied with. 19 Michigan Journal of International Law 729. in an extradition proceeding. Hon. 17. In contradistinction to a criminal proceeding. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. who has committed in his country the indictable offense of Obtaining Property by Deception in 1985. there is no merit in the contention that the ruling sustaining an extradition treaty’s retroactive application violates the constitutional prohibition against ex post facto laws. Conn. 18.R. 235 SCRA 341 (1994)] Q: Discuss the rules in the interpretation of extradition treaties. Oct. Aug. 429 F. His guilt or innocence will be adjudged in the court of the state where he will be extradited. CA. Nothing less than the Vienna Convention on the Law of Treaties to which the Philippines is a signatory provides that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. J.” (Dissenting Opinion.” (Secretary of Justice v. (Wright v. Puno. The said offense is among those enumerated as extraditable in the Treaty. It took effect in 1990. Supp. The Australian government is requesting the Philippine government to extradite its citizen. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nation's foreign relations before making the ultimate decision to extradite. G. As an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary investigation. Hon. [Wright v.

if any. he set out to destabilize the government of President Harry by means of a series of protest actions. Implicit in the treaties should be the unbending commitment that the perpetrators of these crimes will not be coddled by any signatory state. Extradition treaties provide the assurance that the punishment of these crimes will not be frustrated by the frontiers of territorial sovereignty. Fully convinced that he was cheated. BASIS Nature EXTRADITION Normally committed with criminal offenses in the territory of the requesting state DEPORTATION Even if no crime was committed as long as the alien is extraditable On the eve of the assassination attempt. Northwest Orient Airlines. William. 261 [1992]). (2002 Bar) A: Republic A can refuse to extradite John. G. Noting the systematic acts of harassment committed by government agents against farmers protesting the seizure of their lands. the government charged John with assassination attempt and William with inciting to sedition. Lantion. Benefit Effected for the benefit of the state to which the person being extradited will be surrendered because he is a fugitive criminal in that state Effected for the protection of the state expelling an alien because his presence is inimical to public good John fled to Republic A. to assassinate President Harry. because his offense is a political offense.50 PUBLIC INTERNATIONAL LAW 2008 forge extradition treaties to arrest the dramatic rise of international and transnational crimes like terrorism and drug trafficking. William. If Republic X requests the extradition of John and William. where we stressed that a treaty is a joint executive-legislative act which enjoys the presumption that “it was first carefully studied and determined to be constitutional before it was adopted and given the force of law in the country. His plan was to weaken the government and when the situation became ripe for a take-over. The reason for the rule is laid down in Santos III v. between extradition and deportation? (1995 Bar) A: Where? The alien will be surrendered to the state asking for his extradition The undesirable alien may be sent to any state willing to accept him Fundamental Principles Governing Extradition: a) There is no legal obligation to surrender a fugitive unless there is a treaty. bent on regaining power which he lost to President Harry in an election. The rule is recognized that while courts have the power to interpret treaties. the crime for which a person is extradited must have been committed in the territory of the requesting state. Effected on the basis of an extradition treaty or upon the request of The unilateral act of the state expelling the alien How? Both Republic A and Republic B have conventional extradition treaties with Republic X. President Harry went on air threatening to prosecute plotters and dissidents of his administration. et al. and students seeking free tuition. was advised by his friends to stay in Republic B. Oct. b) Religious and political offenses are generally not extraditable. William organized groups which held peaceful rallies in front of the Presidential Palace to express their grievances. En Banc [Puno]) Q: What is the difference. the meaning given them by the departments of government particularly charged with their negotiation and enforcement is accorded great weight. on the other hand. John’s men were caught by member of the Presidential Security Group. Ralph C. 17. No. (210 SCRA 256. and d) Unless provided for in a treaty. 139465. 2000. is a believer in human rights and a former follower of President Harry. another state It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will minimize if not prevent the escape of extraditees from the long arm of the law and expedite their trial.R. X x x [A]n equally compelling factor to consider is the understanding of the parties themselves to the RP-US Extradition Treaty as well as the general interpretation of the issue in question by other countries with similar treaties with the Philippines. can Republic A deny the request? Why? State your reason fully. laborers complaining of low wages. Hon. Q: John is a former President of the Republic X. John was plotting to take over the government and the Notes: . who was in Republic B attending a lecture on democracy. c) A person extradited can be prosecuted by the requesting state only for the crime for which he was extradited. The next day.” (Secretary of Justice v.

Even if William were in the territorial jurisdiction of Republic A. under the Treaty of extradition between the Philippines and Canada. Decide. Q: The Extradition Treaty between France and the Philippines is silent as to applicability with respect to crimes committed prior to its effectivity. C and D. Patrick protested that he could not be tried for illegal recruitment. a French national residing in the Philippines. the Philippines can request Canada to extradite Filipino who has fled to Canada. It is a standard provision of extradition treaties. 109 Fed 330. because the escapees are sought for political offense and can claim the right of asylum under the Universal Declaration of Human Rights. unless the United States does not object to the trial of Patrick for illegal recruitment. 1976. Upon surrender of Patrick by the US Government to the Philippines. C and D sought political asylum. Republic A can extradite John because under the attentat clause. for an offense committed in France prior to the effectivity of the treaty? Explain. (1998 Bar) A: Under the principle of specialty in extradition. that political offenses are not extraditable. escaped from military custody. his acts were not directly connected to any purely political offense. As territorial sovereign. both charged with attempted assassination of President Marcos before the military tribunal. since murder is a crime both in the Philippines and Canada. he may not be extradited because inciting to sedition. and landed in Jakarta Indonesia. extradition does not define crimes but merely provides a means by which a state may obtain the return and punishment of persons charged with or convicted of having committed a crime who fled the jurisdiction of the state whose law has been violated. A. the United States is not obliged to return them but may decide to do so for reasons of comity. flew to Hong Kong and then to California USA where they are reportedly seeking political asylum. May Indonesia grant asylum or should it extradite A. if the extradition treaty contains an attentat clause. self styled Moro rebels long wanted by the authorities for the fatal ambuscade of a bus load of innocent civilians. invoking the UN Declaration on Human Rights. B. A. Alternative A: Republic B can deny the request the request of Republic X to extradite William. the principle of Double Criminality. For example. However. however. C and D to the Philippines. Patrick cannot be tried for illegal recruitment since this is not included in the list of extraditable offenses in the extradition treaty between the Philippines and the United States. using example. Alternative A: Republic A may or can refuse the request of extradition of William because he is not in its territory and thus it is not in the position to deliver him to Republic X. how can this be legally done under International Law? (1978 Bar) A: The Philippines may only request and cannot demand the surrender of the two fugitives. Reacting. it was held that an extradition treaty applies to Crimes committed before its effectivity unless the extradition treaty expressly exempts them. through proper diplomatic channels sought after their extradition. (1996 Bar) A: a) In Clough vs.Assuming that the Philippine Government desires the surrender of the above-named fugitives to the Philippines to face trial before the military tribunal. If at the time of extradition is requested there is in force between the requesting and the requested state a treaty covering the offense on which the request is based. PUBLIC INTERNATIONAL LAW 2008 Q: Explain. Notes: . This is likely. Assume that there is an extradition treaty between the Philippines and America and it does not include illegal recruitment as one of the extraditable offenses. of which he is charged. constitutes a political offense. the Philippine Government. Q: On November 1. (1991 Bar) A: The principle of double criminality is the rule in extradition which states that for a request to be honored. such as the one between Republic A and Republic X. There is no extradition treaty however between the Philippines and the United States. (1976 Bar) Q: Sergio Osmeña III and Eugenio Lopez Jr. because his offense was not a political offense. B. Strakesh. the taking of the life or attempt against the life of a head of state or that of the members of his family does not constitute a political offense and is therefore extraditable. He jumped bail and managed to escape to America. a) Can France demand the extradition of A. Q: Patrick is charged with illegal recruitment and estafa before the RTC of Manila. the treaty is applicable. B. As Whiteman points out. It is therefore immaterial whether at the time of the commission of the crime for which extradition is sought no treaty was in existence. the crime for which the extradition is requested must be a crime in both the requesting state and the state to which the fugitive fled. In that country.51 plan of John to assassinate President Harry was part of such plan. On the basis of the predominance of proportionality test. b) Can A contest his extradition on the ground that it violates the ex post facto provision in the Philippine Constitution? Explain. hijacked a PAL lane on its Manila-Davao flight which they forcibly diverted to.

SECOND. 295 SCRA 341. Lantion. “a majority of nations in the world community have come to look upon extradition as the major effective instrument of international co-operation in the suppression of crime”. the prohibition against ex post facto laws in Section 22 of Article III of the Constitution applies to penal laws only and does not apply to extradition treaties. the flight of affluent Criminals from one country to another for the purpose of committing crime and evading prosecution have become more frequent. our executive branch of government voluntarily entered into the Extradition Treaty. particularly an extradition treaty that hinges on reciprocity. On the other hand. It is the only regular system hat has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law. the UN General Assembly passed a resolution recommending to members and calling upon all non-members to extradite war criminals. as pointed out in Secretary of Justice vs. the constitutional rights of the accused are at fore. Extradition Is a Major Instrument for the Suppression of Crime. extradition proceedings are not criminal in nature. Extradition of War Criminals and Terrorists (Violators of crimes against international law) As violators of crimes against international law. Today. That signature signifies our full faith that the accused will be given. It is not part of the function of the assisting authorities to enter into questions. or would have been directly attacked for its unconstitutionality. as held in WRIGHT vs. failure to fulfill our obligations thereunder paints a bad image of our country before the world community. war criminals are subject to extradition in 1946. and whether the person sought is extraditable. including traitors. The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty. FIRST. which are the prerogative of that jurisdiction. Such failure would discourage other states from entering into treaties with us. it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited. Attentat Clause A provision in an extradition treaty that stipulates that the murder of the head of a foreign government or the member of his family should not be considered as a political offense. The Proceedings Are Sui Generis. CA.in a class by itself – they are not. governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty. which is sui generis . the detaining state must also surrender its own citizens for trial. Doctrine of Reciprocity If the requesting state is shown to be willing to surrender its own nationals for trial by the courts of another country. all relevant and basic rights in the criminal proceedings that will take place therein. extradition treaty signifies our confidence in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited. Compliance Shall Be in Good Faith. Given the foregoing. and our legislative branch ratified it. in extradition. In criminal proceedings. as set forth Notes: . With the advent of easier and faster means of international travel. Accordingly. THIRD.52 PUBLIC INTERNATIONAL LAW 2008 b) No. our duly authorized representative’s signature on an Verily. the Treaty carries the presumption that its implementation will serve the national interest. extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest and the custodial transfer of a fugitive from one state to the other. Such determination during the extradition proceedings will only result in needless duplication and delay. More pointedly. FOURTH. an extradition treaty presupposes that both parties thereto have examined and that both accept and trust each other’s legal system and judicial process. the treaty would not have been signed. This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition. 5 POSTULATES OF EXTRADITION Extradition is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. Hence. The Requesting State Will Accord Due Process to the Accused. otherwise. Fulfilling our obligations under the Extradition Treaty promotes comity with the requesting state. upon extradition to the requesting state.

These circumstances point to an ever-present. the presiding judge shall hear the case or set another date for the hearing thereof. In other words. From the knowledge and the material then available to it. if only the accused were willing to submit to trial in the requesting country. where it has done all that the treaty and the law require it to do. persons to be extradited are presumed to be flight risks.eloquently speak of his aversion to the processes in the requesting state. and giving them time to prepare and present such facts and arguments.53 PUBLIC INTERNATIONAL LAW 2008 in the Treaty. the court is expected merely to get a good first impression . as soon as practicable.” Accordingly. the law could have easily so provided. Issuance of Summons. receiving facts and arguments from them. Indeed. and the other government is under obligation to make the surrender. from fleeing a second time? Q: Is the respondent in extradition proceeding entitled to notice and hearing before the issuance of a warrant of arrest? A: Both parties cite section 6 of PD 1069 in support of their arguments. the presiding judge of the court shall. and Remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable . shall be promptly served each upon the accused and the attorney having charge of the case. as well as his predisposition to avoid them at all cost. immediately upon the filling of the petition. 6. In connection with the matter of immediate arrest. Having fled once. Service of Notices (1) Immediately upon receipt of the petition. is satisfied. Hearing entails sending notices to the opposing parties. the demanding government.” Does this provision sanction RTC Judge Purganan’s act of immediately setting for hearing the issuance of a warrant of arrest? We rule in the negative: A. or should the accused after having received the summons fail to answer within the time fixed. On the Basis of the Extradition law It is significant to note that Section 6 of PD 1069. He may issue a warrant for the immediate arrest of the accused which may be served any where within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. By using the phrase “if it appears. Evidently. is entitled to the delivery of the accused on the issue of the proper warrant. (2) The order and notice as well as a copy of the warrant of arrest. summon the accused to appear and to answer the petition on the day and hour fixed in the order. should it be found proper. Temporary Arrest. It also bears emphasizing at this point that Notes: . for issuing an arrest warrant was already evident from the petition itself and its supporting documents.a prima facie finding . however. uses the word “immediate” to qualify the arrest of the accused. had the holding of a hearing at that stage been intended. It states: “SEC. Upon receipt of the answer. what is there to stop him. after having already determined therefrom that a prima facie finding did not exist. The trial court is not expected to make an exhaustive determination to ferret out the true and actual situation. Prior acts of herein respondent: c) d) Leaving the requesting state right before the conclusion of his indictment proceedings there. the word “hearing” is notably absent from the provision. The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee. the Philippines must be ready and in a position to deliver the accused. Moreover. There Is an Underlying Risk of Flight FIFTH. if issued. This “qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. He has demonstrated that he has the capacity and the will to flee. Hearing. underlying high risk of flight. We stress that the prima facie existence of probable cause for hearing the petition and.” the law further conveys that accuracy is not as important as speed at such early stage. respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez.sufficient to make a speedy initial determination as regards the arrest and detention of the accused. This prima facie presumption finds reinforcement in the experience of the executive branch nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. Hence. given sufficient opportunity. the law specifies that the court se a hearing upon receipt of the answer or upon failure of the accused to answer after receiving the summons. our Extradition Law. a priori. extradition hearings would not even begin. The law could not have intended the word as a mere superfluity but on the whole as a means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should be issued. Arrest subsequent to a hearing can no longer be considered “immediate”.

unless his guilt be proved beyond reasonable doubt. and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. judges merely further examine complainants and their witnesses. De Leon. as well as Section 4 of Rule 114 pf the Rules of Court. where the presumption of innocence is not at issue. never was a judge required to go to the extent of conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. On the Basis of the Constitution Even Section 2 of Article III of our Constitution. and particularly describing the place to be searched and the persons or things to be seized. we stress that before issuing warrants of arrest. In doing so. Verily.” the constitutional provision on bail quoted above. in cases of clear insufficiency of evidence on record. People and in all the cases cited therein. Neither the Treaty nor the Law could have intended that consequence. which is invoked by Jimenez. sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute an escape. the constitutional right to bail “flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal. The provision in the Constitution stating that the “right to bail shall not be impaired even when the privilege of the writ of habeas corpus is Notes: . If a different procedure were called for at all. 2 .of complainants and the witnesses they may produce. houses. as argued by petitioner.” To determine probable cause for the issuance of arrest warrants. or at the very least. the Constitution itself requires only the examination . not the certainty of guilt of an accused.54 PUBLIC INTERNATIONAL LAW 2008 extradition proceedings are summary in nature.if he so desires -. In Ho vs. It does not apply to extradition proceedings. This scenario is also anathema to the summary nature of extraditions. upon which to verify the findings of the prosecutor as to the existence of probable cause.under oath or affirmation . It follows that the constitutional provision on bail will not apply to a case like extradition. the Court categorically stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest: “Again. judges merely determine personally the probability.” In Webb vs. what would stop him from presenting his entire plethora of defenses at this stage -. Hence.” At most. does not require a notice or a hearing before the issuance of a warrant of arrest. the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings. There is no requirement to notify and hear the accused before the issuance of warrants of arrest. because extradition courts do not render judgments of conviction or acquittal. If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest. papers. Moreover. In the present case validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. applies only when a person has been arrested and detained for violation of Philippine criminal laws. It provides: “Sec. Q: Is respondent Mark Jimenez entitled to bail during the pendency of the Extradition Proceeding? A: We agree with petitioner: As suggested by the use of the word “conviction. B. for the very purpose of both would have been defeated by the escape of the accused from the requested state. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. and effects against unreasonable searches and seizures and seizures of whatever nature and for any purpose shall be inviolable. That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption of a set of procedures more protective of the accused. a more restrictive one – not the opposite – would be justified in view of respondent’s demonstrated predisposition to flee. All we required was that the “judge must have sufficient supporting documents upon which to make his independent judgment. judges do not conduct a de novo hearing to determine the existence of probable cause.The right of the people to be secure in their persons.in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous.

to apply for bail as an exception to the no-initial-bail rule. yet instead of taking it. his detention prior to the conclusion of the extradition proceedings does not amount to a violation of his right to due process. the law or the treaty expressly guaranteeing the right to bail in extradition proceedings. adopting the practice of not granting them bail. would be a step towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors. either. he ran away. But because he left the jurisdiction of the requesting state before those proceedings could be completed. their detention pending the resolution of extradition proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases and the need for their speedy disposition. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application “only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. and 3) His opportunity. “constitutional liberties do not exist in a vacuum. point out that the doctrine does not always call for a prior opportunity to be heard. through overprotection or excessively liberal treatment. would it be proper and just for the government to increase the risk of violating its treaty obligations in order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve the Petition for Extradition? His supposed immediate deprivation of liberty without the due process that he had previously shunned pales against the government’s interest in fulfilling its Extradition Treaty obligations and in cooperating with the world community in the suppression of crime. there is no violation of his right to due process and fundamental fairness. In this light. we repeat. In the absence of any provision . respondent will be given full opportunity to be heard subsequently. 2) The extradition judge’s independent prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest. Indeed. cowards and weaklings who. a subsequent opportunity to be heard is enough. However. not before the extradition court. It is also worth noting that before the US government requested the extradition of respondent. He should apply for bail before the courts trying the criminal cases against him. is that bail is not a matter of right in extradition cases. In the present case. That his arrest and detention will not be arbitrary is sufficiently ensured by: 1) The DOJ’s filing in court of the Petition with its supporting documents after a determination that the extradition request meets the requirements of the law and the relevant treaty. the due process rights accorded to individuals must be carefully balanced against exigent and palpable government interests. We reiterate the familiar doctrine that the essence of due process is the opportunity to be heard but. it would not be good policy to increase the risk of violating our treaty obligations if. when the extradition court hears the Petition for Extradition. persons sought to be extradited are able to evade arrest or escape from our custody. extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. as well as the power to promulgate rules to protect Notes: . it was hindered from continuing with the due processes prescribed under its laws. Contrary to the contention of Jimenez. once he is under the court’s custody. Likewise. The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14 of the Treaty. He already had that opportunity in the requesting state. Q: Will Mark Jimenez detention prior to the conclusion of the extradition proceedings not amount of his right to due process? A: Contrary to his contention. at the same time. choose to run and hide. Q: What are the exceptions to the “No Bail” Rule in Extradition Proceedings? A: The rule.” Hence. Where the circumstances—such as those present in an extradition case – call for it. since this practice would encourage the accused to voluntarily surrender to the requesting state to cut short their detention here. proceedings had already been conducted in that country. To stress. we cannot allow our country to be a haven for fugitives. we find no arbitrariness. instead of facing the consequences of their actions. the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. Hence. His invocation of due process now has thus become hollow. That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. in the immediate deprivation of his liberty prior to his being heard.in the Constitution. Hence.55 PUBLIC INTERNATIONAL LAW 2008 suspended” does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. as a general rule. the judiciary has the constitutional duty to curb grave abuse of discretion and tyranny.” Too.

Yet. Neither is it. Hence. in bad faith. and That there exist special. he has not fled the country. Again we are not convinced. while this Court is ever protective of “the sporting idea of fair play. precision and emphatic forcefulness. we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. responsibility arising from the presidential power to conduct foreign relations. We have carefully examined these circumstances and shall now discuss them. after a potential extraditee has been arrested or placed under the custody of the law. However. To support this claim. it was already of public knowledge that the United States was requesting extradition. it partakes of the nature of police assistance amongst states. we are constrained to rule against his claim that his election to public office is by itself a compelling reason to grant him bail. it is settled that bail may be applied for and granted by the trial court at anytime after Notes: . Indeed. upon the resolution of the Petition for Extradition. 1. It must be noted that even before private respondent ran for and won a congressional seat in Manila. the right to due process extends to the “life. the extraditee will abide with all the orders and processes of the extradition court. yet. with all the more reason would the grant of bail not be justified. It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more. unduly delay the proceedings. They are resorted to merely to determine whether the extradition petition and its annexes conform to the Extradition Treaty. which is not normally a judicial prerogative. so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. humanitarian and compelling circumstances including. this fact cannot be taken to mean that he will not flee as the process moves forward to its conclusion. not to determine guilt or innocence. as he hears the footsteps of the requesting government inching closer and closer. as a matter of reciprocity. the Court has already debunked the disenfranchisement argument xxx. that is. adaptable to every situation calling for its application. Hence. Jalosjos. This we cannot allow. It is “dynamic and resilient. Thus. This is another matter that is not at issue here. Not a Flight Risk? Jimenez further claims that he is not a flight risk. his constituents were or should have been prepared for the consequences of the extradition case against their representative. as a rule. In short. bail may be applied for and granted as an exception. Alleged Disenfranchisement While his extradition was pending. Since this exception has no express or specific statutory basis. Along this line. That. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be within reach of our government if and when it matters. 2. once granted bail. The Court realizes that extradition is basically an executive. only upon a clear and convincing showing of the following: 1) 2) 3) That. In People vs. if the delay were due to maneuverings of respondent. We are not persuaded. In any event. On that basis.56 PUBLIC INTERNATIONAL LAW 2008 and enforce constitutional rights. those cited by the highest court in the requesting state when it grants provisional liberty in extradition case therein. we believe and so hold that. not a judicial. any intrusion by the courts into the exercise of this power should be characterized by caution. Furthermore.” it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. he claims that his detention will disenfranchise his Manila district of 600. liberty or property” of every person. Jimenez contends that there are special circumstances that are compelling enough for the Court to grant his request for provisional release on bail.” Accordingly and to best serve the ends of justice. Premises considered and in line with Jalosjos. including his detention pending the final resolution of the case. he stresses that he learned of the extradition request in June 1999. We must emphasize that extradition cases are summary in nature. In its barest concept. Respondent Jimenez was elected as a member of the House of Representatives. the applicant will not be a flight risk or a danger to the community. True. he has not actually fled during the preliminary stages of the request for his extradition. it would be unfair to confine him during the pendency of the case. Anticipated Delay Respondent Jimenez further contends that because the extradition proceedings are lengthy. intended to address issues relevant to the constitutional rights available to the accused in a criminal action. We are not overruling the possibility that petitioner may. 3. and since it is derived essentially from general principles of justice and fairness.000 residents. any further discussion of this point would be merely anticipatory and academic. Giving premium to delay by considering it as a special circumstance for the grant of bail would be tantamount to giving him the power to grant bail to himself. the applicant bears the burden of proving the above two-tiered requirement with clarity.

9) On the other hand.or the fugitive who has illegally escaped -. Having once escaped the jurisdiction of the requesting state. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered. But it is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-equal and co-independent organs of government. 2) By entering into an extradition treaty. It is more akin. extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. whether it complies with the Extradition Treaty and the Law. even after bail has been previously denied. 1) The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition. Consequently. checkmate and defeat the quest for bilateral justice and international cooperation. the judge immediately issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearing on the petition. complies with the Extradition Treaty and Law and whether the person sought is extraditable. responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. potential extraditees may apply for bail. 6) Potential extraditees are entitled to the rights to due process and to fundamental fairness. if at all. In extradition cases. Since the applicants have a history of absconding. to avoid the legalistic contortions. 5) After being taken into custody. so that the criminal process may proceed therein. delays and “over-due process” every little step of the way. If convinced that a prima facie case exists. The magistrate has discretion to require the petitioner to submit further documentation. 3) By nature then. frustrate. delays and technicalities that may negate that purpose. the reasonable prima facie presumption is that the person would escape again if given the opportunity. humanitarian or compelling circumstances. A subsequent opportunity to be heard is sufficient due process to the flight risk involved. to a court’s request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. and (b) 10) At the bottom. Notes: . Indeed. mock. it is subject to judicial discretion in the context of the peculiar facts of each case. and whether the person sought is extraditable. the extradition court may continue hearing evidence on the application for bail. In the present case. mummify. extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and the Law. and while safeguarding basic individual rights. PUBLIC INTERNATIONAL LAW 2008 there exist a special. bail is not a matter of right. a bastion of liberty. 4) Immediately upon receipt of the petition for extradition and its supporting documents. as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein. not a judicial. the judge shall make a prima facie finding whether the petition is sufficient in form and in substance. The proceedings are intended merely to assist the requesting state in bringing the accused -. a bulwark of democracy and the conscience of society. supported by its annexes and the evidence that may be adduced during the hearing of the petition. 7) This Court will always remain a protector of human rights. or to personally examine the affiants or witnesses. Due process does not always call for a prior opportunity to be heard.back to its territory. courts merely perform oversight functions and exercise review authority to prevent the exercise of grave abuse and tyranny. they have the burden of showing that (a) their is no flight risk and no danger to the community. the Executive Department of government has broad discretion in its duty and power of implementation.57 the applicant has been taken into custody and prior to judgment. Discuss the Ten Points in Extradition proceedings. lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partner’s simple request to return a fugitive. an extradition case is not one in which the constitutional rights of the accused are necessarily available. Worse our country should not be converted into a dubious haven where fugitives and escapes can unreasonably delay. under the principle of reciprocity as a special circumstance. the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner. available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. They should not allow contortions. Thus. which may be granted in accordance with the guidelines in this Decision. 8) We realize that extradition is essentially an executive.

1999. Respondent also avers that his mother’s impending death makes it impossible for him to leave the country. he may be punished with seven (7) and fourteen (14) years imprisonment. respectively. It is. The process of preparing a formal request for extradition and its accompanying documents. and would motivate respondent to flee the Philippines before the request for extradition could be made. contrary to the common law of Hong Kong.R. nor when the warrant for his arrest was issued by the Hong Kong ICAC in August 1997. for each count of which. However. 140520. respondent’s pending application for the discharge of a restraint order over certain assets held in relation to the offenses with which he is being charged. This may be gleaned from the fact that while Article 11(1) does not require the accompanying documents of a request for provisional arrest to be authenticated. Cap 201 of Hong Kong. (2) the text of a warrant of arrest or judgement of conviction against that person. RTC granted the application. he may be punished with seven (7) and fourteen (14) years imprisonment. However. Such conditions exist in Munoz’s case. The pertinent provision of the RP-Hong Kong Extradition Agreement enumerates the documents that must accompany the request. In other words. JUAN ANTONIO MUÑOZ is charged with seven (7) counts of accepting an advantage as an agent contrary to Section 9(1)(a) of the Prevention of Bribery Ordinance of. Respondent is about to leave the protective sanctuary of his mother state to face criminal charges in another jurisdiction. De Leon. CA declared the Order of Arrest null and void. it has also not possessed of sufficient resources to facilitate an escape from this jurisdiction. and seven (7) counts of conspiracy to defraud. That respondent did not flee despite the investigation conducted by the Central bank and the NBI way back in 1994. for each count of which. There is also the fact that respondent is charged with seven (7) counts of accepting an advantage as an agent and seven (7) counts of conspiracy to defraud. At the time the request for provisional arrest was made. and (4) such further information as would justify the issue of a warrant of arrest had the offense been committed or the person convicted within the jurisdiction of the requested party.58 CUEVAS V. the gravity of the imposable penalty PUBLIC INTERNATIONAL LAW 2008 upon an accused is a factor to consider in determining the likelihood that the accused will abscond if allowed provisional liberty. J. (3) a statement of penalty for that offense. is not a mere omission of law. after all. his mother finally expired at the Cardinal Santos Hospital in Madaluyong City last December 5. The Hong Kong DOJ was concerned that the pending request for the extradition of the respondent would be disclosed to the latter during the said proceedings. is not a guarantee that he will no flee now that proceedings for his extradition are well on the way. the provisions of PD 1069 and the RP-Hong Kong Extradition Agreement. and transmitting them Notes: . respectively. the Philippine DOJ received a request for the provisional arrest of MUÑOZ pursuant to the RP-Hong Kong Extradition Agreement. Second Division. was set to be heard by the Court of First Instance of Hong Kong on September 17. The Hong Kong Magistrate’s Court issued a warrant for his arrest. authentication is required for the request for surrender or extradition but not for the request for provisional arrest. if found guilty. if found guilty. That the enumeration does not specify that these documents must be authenticated copies. No. The Philippine DOJ forwarded the request for provisional arrest to the NBI. Article 9 of the same Extradition Agreement makes authentication a requisite for admission in evidence of any document accompanying a request for surrender or extradition. serve the purpose sought to be achieved by treaty stipulations for provisional arrest. “Urgency" connotes such conditions relating to the nature of the offense charged and the personality of the prospective extraditee which would make him susceptible to the inclination if he were to learn about the impending request for his extradition and/or likely to destroy the evidence pertinent to the said request or his eventual prosecution and without which the latter could not proceed. It cannot be denied that this is sufficient impetus for him to flee the country as soon as the opportunity to do so arises. Furthermore. Thereafter. if not a lifetime. by respondent’s own admission. There is no requirement for the authentication of a request for provisional arrest and its accompanying documents. 1999. 18 December 2000. but human to fear a lengthy. as follows: (1) an indication of the intention to request the surrender of the person sought. MUŇOZ G. incarceration. ISSUE: Whether Munoz should be provisionally arrested HELD: There was urgency for the provisional arrest of the respondent. which filed an application for the provisional arrest of MUÑOZ with RTC of Manila for and in behalf of the government of Hong Kong. Undoubtedly. as they are worded.24 The request for provisional arrest of respondent and its accompanying document are valid despite lack of authentication.

speedier initial steps in the form of treaty stipulations for provisional arrest were formulated. 9 (1) (a) of the Prevention of Bribery Ordinance. Branch 8 to determine whether Juan Antonio Muñoz is entitled to bail on the basis of “clear and convincing evidence. Cap. particulars of his birth and address. JUDGE OLALIA. GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION V. and April 10. 2002 Order denying the motion to vacate the said Order filed by the Government of Hong Kong Special Administrative Region. the trial court should order the cancellation of his bail bond and his immediate detention. Jr. He also faces seven counts of the Notes: . the transmission by the Hong Kong DOJ of the request for respondent’s provisional arrest and the accompanying documents. The extradites right to know is momentarily withheld during the evaluation stage of the extradition process to accommodate the more compelling interest of the State to prevent escape of potential extradites which can be precipitated by premature which can be precipitated by premature information of the basis of the request for his extradition. GR No. 2007 Bail Can Be Granted to Potential Extraditee on Basis of Clear and Convincing Evidence In its petition. P. which in turn depends on the extent to which an individual will be condemned to suffer grievous loss. 201 of Hong Kong. Stated otherwise. There is naturally a great likelihood of flight by criminals who get an intimation of the pending request for their extradition. The time for the extraditee to know the basis of the request for his extradition is merely moved to the filing in court of the formal petition for extradition. and thereafter. is not only timeconsuming but also leakage-prone. the Court stresses that it is not ruling that the private respondent has no right to due process at all throughout the length and breath of the extrajudicial proceedings. the Executive. JR. A potential extraditee may be granted bail on the basis of clear and convincing evidence that the person is not a flight risk and will abide with all the orders and processes of the extradition court. In sum. April 19. No Less compelling at that stage of the extradition proceedings is the need to be more deferential to the judgement of a co-equal branch of the governments. more than serves this purpose of expediency. the practically of the use of which in conceded. conduct the extradition proceedings with dispatch. by fax machine. 153675). namely.59 through diplomatic channels.” If Muñoz is not entitled to such. the telegraph or cable have been conveniently replaced by the facsimile machine. represented by the Philippine Department of Justice. Therefore. There is no denial of due process as long as fundamental fairness is assured a party. Procedural due process requires a determination of what process is due when it is due and the degree of what is due. which has been endowed by our Constitution with greater power over matters involving our foreign relations. we rule that the temporary hold on private respondent’s privilege of notice and hearing is a soft retrains on his right to due process which will not deprive him of fundamental fairness should he decide to resist the request for his extradition to the United States. the Court also remanded to the Manila RTC. a summary of the facts of the case against him. Thus held the Supreme Court in dismissing the petition of the Government of Hong Kong Special Administrative Region to nullify two orders by a Manila Regional Trial Court (RTC) allowing a potential extraditee to post bail. In a unanimous decision penned by Justice Angelina Sandoval-Gutierrez in Government of Hong Kong v. 1069 xxx affords an extraditee sufficient opportunity to meet the evidence against him once the petition is filed in court. As aforesaid. it is an accepted practice for the requesting state to rush its request in the form of a telex or diplomatic cable. Needless to state. To solve this problem. Muñoz was charged before the Hong Kong Court with three counts of the offense of “accepting an advantage as agent. Hong Kong sought the nullification of the Manila RTC’s December 20.” in violation of sec. In the advent of modern technology. a copy of the warrant of arrest against respondent. Hong Kong alleged that both Orders were issued by the judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee. Thus. this balance of interests is not a static but a moving balance which can be adjusted as the extradition process moves from PUBLIC INTERNATIONAL LAW 2008 the administrative stage to the execution stage depending on factors that will come into play. In tilting the balance in favor of the interests of the State.’ We have explained why an extraditee has not right to notice and hearing during the evaluation stage of the extradition process. AND MUÑOZ.D. Judge Olalia. and Muñoz (GR No. 2001 Order allowing Muñoz to post bail. a statement of the intention to request his provisional arrest and the reason therefor. 153675. a prior determination should be made as to whether procedural protections are at all due and when they are due. even our own Extradition Law (PD 1069) allows the transmission of a request for provisional arrest via telegraph.

It said that while our extradition law does not provide for the grant of bail to an extraditee. “The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty…. and due process. Because a refugee approximates a stateless person. In the absence of any international treaty stipulating the contrary. by international laws. or. therefore. PUBLIC INTERNATIONAL LAW 2008 trial to determine the guilt or innocence of potential extraditee.60 offense of conspiracy to defraud. the Court saw the need to reexamine its ruling in Government of United States of America v. (Bar) A: The right of asylum is the competence of every state inferred from its territorial supremacy to allow a prosecuted alien to enter and to remain on its territory under its protection and thereby grant asylum to him. 2) The person lacks national protection. It added that “extradition is not a Q: Explain the right of asylum in international law. Likewise.” the Court said. if he has no nationality. Asylum and Refugees A refugee is any person who is outside the country of his nationality or the country of his former habitual residence because he has or had well founded fear of persecution by reason of his race. is unwilling to avail himself of the protection of the government of the country of his nationality.” said the Court. being a signatory to the 1996 UN General Assembly which adopted the International Covenant on Civil and Political Rights.However. he can be compared to a vessel on the open sea not sailing under the flag of any state. because of such fear. Rempillo (SC website) The Right of Asylum Every foreign State can be at least a provisional asylum for any individual. it is just a privilege granted by a state to allow an alien escaping from the persecution of his country for political reasons to remain and to grant him asylum. More so. Nor is it a full-blown civil action. obliged to refuse admission into its territory to such a fugitive or in case he has been admitted. to expel him or deliver him up to the prosecuting state. the Philippines should diminish a potential extraditee’s rights to life. The Court noted that Munoz had been detained from September 23. there is no reason why it cannot be invoked in extradition cases. an extradition proceeding is not by its nature criminal. 3 Essential Elements to be considered a Refugee: 1) The person is outside the country of his nationality. Only a person who is granted asylum by another state can apply for refugee status. both are administrative proceeding where the innocence or guilt of the person detained is not in issue. Judge Purganan which limited the exercise of the right to bail to criminal proceedings. or in the case of stateless persons. who. 1999 to December 20. is “under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. Citing the various international treaties giving recognition and protection to human rights. provided that a certain standard for the grant is satisfactorily met. to which the Philippines is a party. goes to another State. penalized by the common law of Hong Kong. After all. religion. The RP and Hong Kong signed in 1995 an extradition treaty which became effective in 1997. it does not necessarily mean that in keeping with its treaty obligations. not only by our Constitution. At present. a right under the Constitution. We should not. where these rights are guaranteed. “If bail can be granted in deportation cases. for it is not punishment for a crime. 3) The person fears persecution in his own country. 2001. deprive an extraditee of his right to apply for bail. It further said that even if a potential extradite is a criminal. even though such punishment may follow extradition. outside the country of habitual residence. The right of asylum is not a right possessed by an alien to demand that a state protect him and grant him asylum. Notes: . nationality or political opinion and is unable or. being persecuted in his home State. we see no justification why it should not also be allowed in extradition cases. there is no provision prohibiting him or her from filing a motion for bail. or be called flotsam and res nullius. a refugee a stateless person. to return to the country of his former habitual residence. By Jay B. thus the refugee treaties imply the principle of asylum. RP. but also by international conventions. The second element makes. but one that is merely administrative in character. or for over two years without having been convicted of any crime. no state is. liberty. considering that the Universal Declaration of Human Rights applies to deportation cases.” the Court said.

Non-Refoulment Principle Non-refoulment non-contracting state expel or return (refouler) a refugee. in the case of Holy See vs. iii. for the state. Q: Who are stateless persons under International Law? (1995 Bar) A: They are those who are not considered as national by any state under the operation of its laws. This remedy would not be available to a stateless person who will have no state with international personality to intercede for him under the laws of nations. Korchnoi is not a Swiss national but a stateless person. is subsequently denaturalized and thereafter denied repatriation by his former country. Citizenship Nationality is the membership in a political community with all its concomitant rights and obligations. It is the tie that binds an individual to his state.61 Q: Sandoval’s Open Question No. In this case. protection or recourse under the Law of Nations? Explain. Nationality is the basis of the right of state to espouse such claim. Rosario. He cannot avail himself of the protection and benefits of citizenship like securing for himself a passport or visa and personal documents. a stateless resident of Switzerland. which he attributes as the main case of his defeat. was the challenger to the world chess title held by Russian Anatoly Karpov. Korchnoi protested no-payment of his prize money and alleged unfair treatment he received from the tournament organizers in the Philippines particularly in the 32nd crucial game. DOCTRINE OF EFFECTIVE NATIONALITY Within a third state. Example. from which he can claim protection from the laws. Under the Convention in Relation to the Status of Stateless Persons. An example of the first case would be that of an individual born in a state where only the jus sanguinis is recognized to parents whose state observes only jus soli. which will espouse his cause of action in his behalf. the third state shall recognized conclusively in its territory either the nationality of the country in which he is habitually and principally present or the nationality of the country with which he appears to be in fact most closely connected. in any manner whatsoever. the Contracting States Notes: . after renouncing his original nationality in order to be naturalized in another state. that is. After 32 grueling games were played in Baguio city. PUBLIC INTERNATIONAL LAW 2008 Statelessness Statelessness is the condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another. Citizenship has a more exclusive meaning in that it applies only to certain members of the state accorded more privileges than the rest of the people who owe it allegiance. Switzerland even if she so desires. Q: Is a stateless person entirely without right. Q: What are the consequences of statelessness? (1995 Bar) A: These are: i. He cannot be expelled by the state if he is lawfully in its territory except on grounds of national security or public order. which he is also obliged to follow. Q: Victor Korchnoi. 1 Is a refugee is included in the term stateless person or is it the other way around? Suggested Answer: Analyze the elements before one could be considered a refugee. to the frontiers of territories where his life or freedom would be threatened. Under the principle of effective nationality. May he press for his right to the prize money against the Philippine government through the Swiss government? (1978 Bar) A: No. The second case may be illustrated by an individual who. the defendant in this case can invoke his rights against the Holy See not under the Municipal Law but under International Law through his government. cannot espouse a diplomatic claim against the Philippines in behalf of Victor Korchnoi. Its significance is municipal and not international. a person having more than one nationality shall be treated as if he had only one. Nationality v. Nationality is Important in Int’l Law It is important because an individual can ordinarily participate in international relations only through the instrumentality of the state to which he belongs. his concern ceases to be a private one but becomes one for the public. ii. (Article 33 of the Convention Relating to the Status of Refugees) The Principle of the non-refoulment was declared to be a generally accepted principle by the Convention relating to the status of stateless persons. (1995 Bar) A: No. If this happens. as when his government asserts a claim on his behalf for injuries suffered by him in foreign jurisdiction. No state can intervene or complain in behalf of the stateless person for an international delinquency committed by another state in inflicting injury upon him. Karpov finally retained his title of a close 6 to 5 win.

It is not the treaty itself. The Law on International Obligations Sources of International Obligations The Law of Treaties Treaty Defined 2 Kinds of Treaties Parties Requisites for Validity Peremptory Norm Process of Treaty Making Principle of Alternat Subject Matters of Treaties Subject Matters of Executive Agreements Most Favored Nation Clause Pacta Sunt Servanda Rebus Sic Stantibus Effect of Territorial Changes Interpretation of Treaties Termination of Treaties State Responsibility for Injury to Aliens Doctrine of State Responsibility Conditions for Enforcement of Claim 1. Q: What measures. b) Access to the courts. e) Public relief and assistance. from Hugo Grotius onward. Oct. Held: A treaty. the doctrine of rebus sic stantibus A. The convention on the Reduction of Statelessness of 1961 provides that if the law of the Contracting States results in the loss of nationality. It will not require the concurrence Notes: . treaties concluded between States 2) Customary international law – e. waiver 4. concordat. pact. All writers. It is rather a summary of the proceedings of a protracted conference which may have taken place over several years. exhaustion of local remedies 3. G. En Banc [Buena]) Protocol de Clôture A final act. protocol. charter and modus vivendi. THE LAW OF TREATIES Treaty Defined Q: What is a Treaty? Discuss. or to the meanings which may be given to them in the internal law of the State. has International Law taken to prevent statelessness? (1995 Bar) A: In the Convention on the Conflict of Nationality Laws of 1930. d) Elementary education. and g) Social Security They also agree to accord them treatment not less favorable than that accorded to aliens generally in the same circumstances. 2000. It is rather a summary of the proceedings of a protracted conference which may have taken place over several years. compromis d' arbitrage. 10. a) Freedom of religion. recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference. is “an international instrument concluded between States in written form and governed by international law. have pointed out that the names or titles of international agreements included under the general term treaty have little or no significance. improper behavior by the injured alien Methods of Pressing Claims Nature and Measure of Damages ¯°º°¯ Sources: 1) International agreements – e. 138570. is an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties.62 PUBLIC INTERNATIONAL LAW 2008 agree to accord the stateless persons within their territories treatment at least as favorable as that accorded their nationals with respect to. f) Labor legislation. unreasonable delay 5. Q: What is a "protocol de cloture"? Will it require concurrence by the Senate? Held: A final act.” (BAYAN [Bagong Alyansang Makabayan] v. No. conventions. nationality of the claim 2. agreement. It is not the treaty itself.g. the Contracting States agree to accord nationality to persons born in their territory who would otherwise be stateless. but they furnish little more than mere description Article 2(2) of the Vienna Convention provides that “the provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms. sometimes called protocol de cloture is an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties. some of which are: act. as a consequence of marriage or termination of marriage. declaration. if any. Executive Secretary Ronaldo Zamora.g. recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference. exchange of notes. such loss must be conditional upon possession or acquisition of another nationality. conventions. Certain terms are useful.R. whether embodied in a single instrument or in two or more related instruments. and whatever its particular designation. c) Rationing of products in short supply. statute. as defined by the Vienna Convention on the Law of Treaties. sometimes called protocol de cloture. convention. The Convention also provides for the issuance of identity papers and travel documents to the stateless persons.” There are many other terms used for a treaty or international agreement.

force. or When it is limited by some other international arrangements respecting some matters. Consent How Given a) through a signature b) exchange of instruments c) ratification d) acceptance Notes: . Thus. intimidation.63 PUBLIC INTERNATIONAL LAW 2008 of the Senate. May 2. the treaty would be VOIDABLE. PARTIES Rule: Only States may enter into treaties or international agreements. Entered into force on January 27. 1997 [Panganiban]) Treaty as main instrument “The treaty is the main instrument with which the society of States is equipped for the purpose of carrying out its multifarious transactions.exercising its rights and respecting the obligations in the treaty notwithstanding knowledge of facts that vitiate its consent and exercises them without protest. c) Prescription – filing of protest after the lapse of allowable period within which the same may be entertained. Agreements between State and individuals or entities other than States DO NOT come within the category of treaties. the erring State must as soon as possible or within the time given in the treaty. or corruption. it is the Head of State who possesses the treaty-making power to be concurred in by the legislative branch.” LORD McNAIR a) b) 2) Synonymous words a) Convention b) Pact c) Protocol d) Agreement e) Arrangement f) Accord g) Final Act h) General Act i) Exchange of Notes ☀ 1969 Convention on the Law of Treaties Adopted by the Conference of the Law of Treaties (Vienna Convention). The use of particular terminology has no legal significance in international law. withdraw or correct its consent. Remedy: Where the consent of a party has been given in error or induced through fraud on the part of the other party. As a rule. (Tanada v.  Matters usually dealt with by treaties: a) lease of naval bases b) the sale or cession of territory c) the regulation of conduct of hostilities d) the termination of war e) the formation of alliances f) the regulation of commercial relations g) the settling of claims h) the establishment of international organizations 2 Kinds of Treaties a) traites-lois – law making treaties b) traits-contrats – contract treaties When it limits itself. The documents contained therein are deemed adopted without need for ratification. Exceptions: States may enter into treaties or international agreements with: a) International Organizations b) Belligerent States 4 Essentials of Validity 1) Capacity of parties Rule: Every State possesses capacity to conclude treaties as an attribute of its sovereignty. 1960. coercion. Angara. Exceptions: a) When it is in estoppel b) When it has performed acts validating or curing the defects in competence. Exceptions: a) Ratification – waiving the right to withdraw from the treaty and declaring its consent thereon as valid. Thus. b) Estoppel . c) When it has received benefits or has exercised its rights under the subject treaty without expressly reserving its non-liability or without interposing other valid reasons for receiving or exercising it. 3) Reality of Consent Rule: The plenipotentiaries of States or the State itself must possess the capacity to consent which consent is given in a manner that is voluntary and free from fear. Exceptions: Competence of particular organs concluding the treaty Rule: The municipal law of the State concerned shall determine what organ may conclude a treaty. the State is deemed to have ratified its consent. 272 SCRA 18.

Oral treaties are NOT prohibited. the practice is usually to arrange the names alphabetically in English or in French. 103 of the UN Charter provides that in the event of conflict between the obligations of the Members under the UN Charter and their obligations under any international agreement. Exceptions: a) If the immorality. jus dispositivum. However. with respect to treaties with many parties. ☀ There is no moral duty on the part of the States to ratify a treaty notwithstanding that its plenipotentiaries have signed the same. (1991 Bar) A: Jus cogens is a peremptory norm of general international law accepted and recognized by the international community as a whole. or c) the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiations. INCONSISTENCY Inconsistency raises the problem of conflict of obligations. however. a State expresses its willingness to be bound by the provisions of such treaty.g. At present.” PROCESS OF TREATY-MAKING Usual Steps Taken 1) Negotiation of parties 2) Signature of the agreed text 3) Ratification or accession made by the treaty-making organs of States concerned 4) Exchange or deposit of the instruments of ratification or accession.64 PUBLIC INTERNATIONAL LAW 2008 e) f) 4) approval or accession.g. using example. b) If it does not contravene or depart from an absolute or imperative rule or prohibition of international law. PEREMPTORY NORM A norm generally accepted by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Note: The Vienna Convention. Ratification The act by which the provisions of a treaty are formally confirmed and approved by a State. jus cogens in international law. orally agreed treaties are a rarity. Art. defines a “treaty” as “an international agreement concluded between States in written form and governed by international law. This step. the order of the naming of the parties. INCOMPATIBILITY v. e. e.g.g. illegality or impossibility does not run counter to a universally recognized peremptory norm of international law but only against a remote and minor norm. ★ However. a treaty by which a State agrees with another to appropriate a portion of the high seas. e. jus cogens Q: Explain. b) it is otherwise established that the negotiating States were agreed that signatures should have that effect. treaties are prepared and adopted by means of international diplomatic conferences. ☀ State may ratify a treaty only when it is a signatory to it. By ratifying a treaty signed in its behalf. Incompatibility. Significance of Signature Rule: The act of signature has little legal significance except as a means of authenticating the text of the treaty. e. and of the signatures of the plenipotentiaries is varied so that each party is named and its plenipotentiary signs first in the coy of the instrument to be kept by it. whether embodied in a singe instrument or in two or more related instruments and whatever its particular designation (is). illegality or impossibility of purpose or obligations makes a treaty null and void. Legality of Object Rule: Immorality. It is the act of ratification that is required to make a treaty binding. Exceptions: a) the treaty provides that signature shall have such effect. the prohibition against the use of force in dealing with States. ☀ A treaty may provide that it shall not be valid even ratified but shall be valid only after the exchange or deposit of ratification has transpired. a large number of multilateral conventions have been adopted by international organizations such as the General Assemble of the UN. or by other means so agreed. Notes: . e. however. Effect of Form on Validity There is no rule that treaties should be in written form. Principle of Alternat According to this principle. raises the question of nullity. Also. on the other hand. should not be taken lightly. their obligations under the UN Charter shall prevail.g.

which.VII. (b) it is otherwise established that the negotiating States agreed that ratification should be required. who has NOT SIGNED a treaty. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations. 1987 Phil. or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and. A. 10. Executive Secretary Ronaldo Zamora. 10. Constitution The President may contract or guarantee foreign loans on behalf of the RP with the prior concurrence of the Monetary Board. Constitution All exiting treaties or international agreements which have not been ratified shall not be renewed or extended without the concurrence of at least 2/3 of ALL the Members of the Senate.R. However. Executive Secretary Ronaldo Zamora. which is a sovereign function. (BAYAN [Bagong Alyansang Makabayan] v. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification. Constitution After the expiration in 1991 of the Agreement between the RP and the USA concerning the Military Bases. 1987 Phil.XVIII. §25. En Banc [Buena]) Q: Does the Philippines recognize the binding effect of executive agreements even without the concurrence of the Senate or Congress? Notes: . A. The MB shall. When a treaty is a mere formal expression of customary international law. Constitution No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of ALL the Members of the Senate. Held: Ratification is generally held to be an executive act. or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative. Under Article 2 of its charter. Q: Discuss the binding effect of treaties and executive agreements in international law. (BAYAN [Bagong Alyansang Makabayan] v. through which the formal acceptance of the treaty is proclaimed. 4. ratified by a majority of the votes cast by the people in a national referendum held for that purpose. Under Article 103. A State may provide in its domestic legislation the process of ratification of a treaty. have been allowed by its terms to sign it later by a process known as accession. including not only the original signatories but also other states. Binding Effects of a Treaty As a rule. although they may not have participated in the negotiation of the agreement. submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government or governmentowned and controlled corporations which would have the effect of increasing the foreign debt. Oct.XVIII. a treaty is binding only on the contracting parties.R. as the case may be. the stationing of troops and facilities of foreign countries in the Philippines. A. G. Oct. when the Congress so requires. the holding of combined military exercise is connected with defense. §21. G. §4. accedes to it. 3. A: 1. obligations of member-states shall prevail in case of conflict with any other international agreement including those concluded with non-members. No. Non-parties are usually not bound under the maxim of pacta tertiis nec noceat nec prosunt. troops. there is no difference between treaties and executive agreements in their binding effect upon states concerned.VII. as long as the functionaries have remained within their powers. No. foreign military bases. 2000. NOTE: This section prohibits. in the absence of a treaty. 138570. and subject to such limitations as may be provided by law. 138570. The treaty itself may expressly extend its benefits to non-signatory states. §20. which. 1987 Phil.65 PUBLIC INTERNATIONAL LAW 2008 Q: What is ratification? Discuss its function in the treaty-making process. undertaken by the head of state or of the government. Held: [I]n international law. 1987 Phil. and containing other matters as may be provided by law. within 30 days from the end of every quarter of the calendar year. the UN shall ensure that non-member States act in accordance with the principles of the Charter so far as may be necessary for the maintenance of international peace and security. (c) the representative of the State has signed the treaty subject to ratification. as such is enforceable on all civilized states because of their membership in the family of nations. 2. it DOES NOT INCLUDE the temporary presence in the Philippines of foreign troops for the purpose of a combined military exercise. Besides. Q: Enumerate instances when a third State who is non-signatory may be bound by a treaty. and recognized as a treaty by the other contracting State. 2000. En Banc [Buena]) Accession or Adherence When a State. Parties to apparently unrelated treaties may also be linked by the mostfavored nation clause. A. or was expressed during the negotiation.

66
Held: In our jurisdiction, we have recognized the
binding effect of executive agreements even
without the concurrence of the Senate or
Congress. In Commissioner of Customs v. Eastern
Sea Trading (3 SCRA 351, 356-357 [1961]), we had
occasion to pronounce:
“x x x the right of the Executive to enter into
binding agreements without the necessity of
subsequent Congressional approval has been
confirmed by long usage. From the earliest days
of our history we have entered into executive
agreements covering such subjects as commercial
and consular relations, most-favored-nation
rights, patent rights, trademark and copyright
protection, postal and navigation arrangements
and the settlement of claims.
The validity of
these has never been seriously questioned by our
courts. " (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No.
138570, Oct. 10, 2000, En Banc [Buena])
Q: An Executive Agreement was executed
between the Philippines and a neighboring
State. The Senate of the Philippines took it
upon itself to procure a certified true copy of
the Executive Agreement and after deliberating
on it, declared, by a unanimous vote, that the
agreement was both unwise and against the
best interest of the country. Is an Executive
Agreement binding from the standpoints a) of
Philippine law and b) of international law?
Explain. (2003 Bar)
A: a) YES, from the standpoint of Philippine law,
the Executive Agreement is binding. According to
Commissioner of Customs v. Eastern Sea Trading, 3
S 351 [1961], the President can enter into an
Executive Agreement WITHOUT the necessity of
concurrence by the Senate.
b) YES, it is also binding from the standpoint of
international law. As held in Bayan V. Zamora,
342 S 449 [2000], in international law executive
agreements are equally binding as treaties uon
the States who are parties to them. Additionally,
under Article 2(1)(a) of the Vienna Convention on
the Law of Treaties, whatever may be the
designation of a written agreement between
States, whether it is indicated as a Treaty,
Convention or Executive Agreement is not legally
significant. Still it is considered a treaty and
governed by the international law of treaties.
Q: The President authorized the Secretary of
Public Works and Highways to negotiate and sign
a loan agreement with the German Government
for the construction of a dam. The Senate, by a
resolution, asked that the agreement be
submitted to it for ratification. The Secretary
of Public Works and Highways did not comply
with the request of the Senate. (1994 Bar)
a)
Under the Constitution,
what is the role of the Senate in the
conduct of foreign affairs?

PUBLIC INTERNATIONAL LAW 2008

b)

A:
a)

b)

Is the president bound to
submit the agreement to the Senate for
ratification?
The Senate plays a
role in the conduct of foreign affairs, because
of the requirement in Section 21 Article VII of
the Constitution that to be valid and
effective, a treaty or international agreement
must be concurred in by at least 2/3 of all
members of the senate.
No, the President
is not bound to submit the agreement to the
Senate for ratification. Under Section 20
Article VII of the Constitution, only the prior
concurrence of the Monetary Board is
required for the President to contract foreign
loans on behalf of the Republic of the
Philippines.

Q: In accordance with the opinion of the
Secretary of Justice, and believing that it would
be good for the country, the President enters
into an agreement with the Americans for an
extension for another five (5) years of their stay
at their military bases in the Philippines, in
consideration of:
a)
A yearly rental of one billion US dollars,
payable to Philippine government in
advance;
b)
An undertaking on the part of the
American
government
to
implement
immediately the min-Marshall plan for the
country involving ten billion US dollars in
aids and concessional loans, and
c)
An undertaking to help persuade
American banks to condone interests and
other charges on the country’s outstanding
loans.
In return, the President agreed to allow
American nuclear vessels to stay for short visits
at Subic, and in case of vital military need, to
store nuclear weapons at Subic and at Clark
Field. A vital military need comes, under the
agreement, when hostile military forces
threaten the sea-lanes from the Persian Gulf to
the Pacific.
The Nuclear Free Philippines Coalition comes to
you for advice on how they could legally
prevent the same agreement entered into by
the President with the US government from
going into effect. What would you advice them
to do? Give your reasons. (Bar)
A: If the agreement is not in the form of treaty, it
is not likely to be submitted to the Senate for
ratification as required in Article VII, Section 21.
It may not, therefore, be opposed in that branch
of the government. Nor a judicial review is
feasible at this stage because there is no
justiciable controversy. While Article VIII, Section
1, paragraph 2 states that judicial power includes

Notes:

67
the duty of courts of justice to “determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the government,” it is clear
that this provision does not do away with the
political question doctrine. It was inserted in the
Constitution to prevent courts from making use of
the doctrine to avoid what otherwise are
justiciable controversies, albeit involving the
Executive Branch of the government during the
martial law period. On the other hand, at this
stage, no justiciable controversy can be framed to
justify judicial review. I would therefore advice
the Nuclear Free Philippines Coalition to resort to
the media to launch a campaign against
Agreement
Subject Matter of Treaties
1) Political Issues
2) Changes in National Policies
3) Involve International Agreements of a
Permanent Character
Subject Matter of EAs
1) Have transitory effectivity
2) Adjustment of details carrying out wellestablished national policies and traditions
3) Arrangements of temporary nature
4) Implementation of treaties, statutes, well
established policies.
Q: How does a treaty differ from executive
agreement?
A: An executive agreement is not a treaty in so
far as its ratification may not be required under
the Constitution. However, the distinction is
purely municipal and has no international
significance. From the standpoint of international
law, “treaties and executive agreement are alike
in that both constitute equally binding obligations
upon the nations.” (FB Sayre, 39 Columbia Law
Review, p. 75, 1939)
An executive agreement is NOT a treaty. As such,
concurrence by two-thirds vote (2/3) of all the
members of the Senate is not necessary for it to
become binding and effective.
Q: Is VFA a treaty or a mere executive
agreement?
A: In the case of Bayan vs. Zamora, VFA was
considered a treaty because the Senate concurred
in via 2/3 votes of all its members. But in the
point of view of the US Government, it is merely
an executive agreement.
Q: What is the implication if only the senate of
the Philippines concur but not the senate of
USA?
A: None, it is only a matter of policy and the same
is governed by their respective Municipal Law.

PUBLIC INTERNATIONAL LAW 2008

Q: Senate Bill No. 1234 was passed creating a
joint legislative-executive commission to give
on behalf of the Senate, its advice, consent and
concurrence to treaties entered into by the
President. The bill contains the guidelines to
be followed by the commission in the discharge
of its functions. Is the bill constitutional? (1996
Bar)
A: NO, the bill is not constitutional. The Senate
cannot delegate its power to concur to treaties
ratified by the President.
Q: Can the House of Representatives take active
part in the conduct of foreign relations,
particularly in entering into treaties and
international agreements? (1996 Bar)
A: NO. As held in US v. Curtiss Wright Export
Corporation 299 US 304, it is the President alone
who can act as representative of the nation in the
conduct of foreign affairs. Although the Senate
has the power to concur in treaties, the President
alone can negotiate treaties and Congress is
powerless to intrude into this. However, if the
matter involves a treaty or an executive
agreement, the HR may pass a resolution
expressing its views on the matter.
Reservations
A unilateral statement, however phrased or
named, made by a State, when signing, ratifying,
accepting, approving, or acceding to a treaty,
whereby it purports to exclude or modify the legal
effect of certain provisions of the treaty in their
application to that State.
When Reservation cannot be made
a) If the treaty itself provides that NO
reservation shall be admissible, or
b) the treaty allows only specified reservations
which do not include the reservation in
question, or
c) the reservation is incompatible with the
object and purpose of the treaty.
Form and Time of Reservation
Written statement or declaration recorded at the
time of signing or ratifying or acceding to the
treaty.
Objected Reservations
Parties to the treaty may object to the
reservations of a State entering the treaty. A 1951
Advisory Opinion of the ICJ held that a reserving
State may be a party to a treaty notwithstanding
that one or more parties to the convention, but
not all, objects to its reservations and such
reservations are not contrary to the object and
purpose of said convention.
REGISTRATION & PUBLICATION
Article 102, UN Charter
1. Every treaty and every international agreement
entered into by any Member of the UN after the
present Charter comes into force shall as soon as
possible be registered with the Secretariat and
published by it.

Notes:

68

PUBLIC INTERNATIONAL LAW 2008

2. No party to any such treaty or international
agreement which has not been registered in
accordance with the provisions of para.1 of this
Article may invoke that treaty or agreement
before any organ of the UN.

The treaty, however, remains valid although
not registered and not published in the UN.

Entry into Force
Means the date of effectivity of a treaty as
provided in the stipulations of the parties. In the
absence of such stipulation, it is deemed in force
as soon as the consent of ALL the parties are
established.
Q: Are Treaties Self-Executing?
A: Qualified answer. In international law, it selfexecutes from the time of its entry into force.
However, there is NO absolute rule that treaties
are self-executing within the sphere of municipal
law. Some municipal laws require further steps
such as publication and promulgation before it
can produce legal effect.

Nevertheless, in the Philippines, treaties are
part of the law of the land. INCORPORATION
CLAUSE.

MOST-FAVORED-NATION CLAUSE
Q: What is the “most-favored-nation” clause?
What is its purpose?
A: 1. The most-favored-nation clause may be
defined, in general, as a pledge by a contracting
party to a treaty to grant to the other party
treatment not less favorable than that which has
been or may be granted to the “most favored”
among other countries. The clause has been
commonly included in treaties of commercial
nature.
There are generally two types of most-favorednation
clause,
namely,
conditional
and
unconditional. According to the clause in its
unconditional form, any advantage of whatever
kind which has been or may in future be granted
by either of the contracting parties to a third
State shall simultaneously and unconditionally be
extended to the other under the same or
equivalent conditions as those under which it has
been granted to the third State. (Salonga & Yap,
Public International Law, 5th Edition, 1992, pp.
141-142)
2. The purpose of a most favored nation clause is
to grant to the contracting party treatment not
less favorable than that which has been or may be
granted to the "most favored" among other
countries. The most favored nation clause is
intended to establish the principle of equality of
international treatment by providing that the
citizens or subjects of the contracting nations may
enjoy the privileges accorded by either party to

those of the most favored nation (Commissioner
of Internal Revenue v. S.C. Johnson and Son, Inc.,
309 SCRA 87, 107-108, June 25, 1999, 3rd Div.
[Gonzaga-Reyes])
Q: Explain the meaning of the concept of “most
favored nation” treatment? (1997 Bar)
A: The most favored nation treatment is that
granted by one country to another not less
favorable than that which has been or may be
granted to the most favored among other
countries.
It usually applies to commercial
transactions such as international trade and
investments.
Q: What is the essence of the principle behind
the "most-favored-nation" clause as applied to
tax treaties?
Held: The essence of the principle is to allow the
taxpayer in one state to avail of more liberal
provisions granted in another tax treaty to which
the country of residence of such taxpayer is also a
party provided that the subject matter of taxation
x x x is the same as that in the tax treaty under
which the taxpayer is liable.
In Commissioner of Internal Revenue v. S.C.
Johnson and Son, Inc., 309 SCRA 87, June 25,
1999, the SC did not grant the claim filed by S.C.
Johnson and Son, Inc., a non-resident foreign
corporation based in the USA, with the BIR for
refund of overpaid withholding tax on royalties
pursuant to the most-favored-nation clause of the
RP-US Tax Treaty in relation to the RP-West
Germany Tax Treaty. It held:
Given the purpose underlying tax treaties and the
rationale for the most favored nation clause, the
concessional tax rate of 10 percent provided for in
the RP-Germany Tax Treaty should apply only if
the taxes imposed upon royalties in the RP-US Tax
Treaty and in the RP-Germany Tax Treaty are paid
under similar circumstances. This would mean
that private respondent (S.C. Johnson and Son,
Inc.) must prove that the RP-US Tax Treaty grants
similar tax reliefs to residents of the United
States in respect of the taxes imposable upon
royalties earned from sources within the
Philippines as those allowed to their German
counterparts under the RP-Germany Tax Treaty.
The RP-US and the RP-West Germany Tax Treaties
do not contain similar provisions on tax crediting.
Article 24 of the RP-Germany Tax Treaty x x x
expressly allows crediting against German income
and corporation tax of 20% of the gross amount of
royalties paid under the law of the Philippines.
On the other hand, Article 23 of the RP-US Tax
Treaty, which is the counterpart provision with
respect to relief for double taxation, does not
provide for similar crediting of 20% of the gross
amount of royalties paid. X x x

Notes:

Lisstzyn.J. EDU (1979) t is not for this country to repudiate a commitment to which it had pledged its word. Q: Explain the “pacta sunt servanda” rule. Pugh. TAÑADA V. at war with the principle of international morality. ROBERTSON (1986) "The obligation to fulfill in good faith a treaty engagement requires that the stipulations be observed in their spirit as well as according to their letter and that what has been promised be performed without evasion. freedom. which is." SEC.I. 1997 [Panganiban]) Influences to ensure observance to PSS a) national self-interest b) a sense of duty c) respect for promises solemnly given d) desire to avoid the obloquy attached to breach of contracts ▪ Breach involves the obligation to make reparations. May 2. INC. “A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties x x x. The observance of our country's legal duties under a treaty is also compelled by Section 2. Somehow. honestly and to the best of the ability of the party which made the promise. PACTA SUNT SERVANDA (PSS) (AGREEMENT MUST BE KEPT) Means that treaties must be performed in good faith. ANGARA (1997) One of the oldest and most fundamental rules in international law is pacta sunt servanda international agreements must be performed in good faith. firms despite the absence of matching credit (20% for royalties) would derogate from the design behind the most favored nation clause to grant equality of international treatment since the tax burden laid upon the income of the investor is not the same in the two countries. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken. 2 Types a) Unconditional – any advantage of whatever kind which has been or may in future be granted by either of the contracting parties to a third State shall simultaneously and unconditionally be extended to the other under the same or equivalent conditions as those under which it has been granted to the third State. Angara.S. Held: One of the oldest and most fundamental rules in international law is pacta sunt servanda – international agreements must be performed in good faith. OF JUSTICE V. CIR V. requires the parties to a treaty to keep their agreement therein in good faith. p. however. adopts the generally accepted principles of international law as part of the law of the land. "A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties x x x. The Meaning and Range of the Norm (Pacta Sunt Servanda. LANTION (2000) The rule of pacta sunt servanda. International Law (1969) 329). A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken. equality. no necessity to state this rule of reparation in the treaty itself because they are indispensable complement of failure to comply to one’s obligations. the ruling becomes an anacoluthon and a persiflage.69 PUBLIC INTERNATIONAL LAW 2008 X x x The entitlement of the 10% rate by U." Under the doctrine of incorporation. cooperation and amity with all nations.L. 272 SCRA 18. Public International Law. Notes: . 180 (1945). justice. The most favored nation clause is intended to establish the principle of equality of international treatment by providing that the citizens or subjects of the contracting nations may enjoy the privileges accorded by either party to those of the most favored nation. cited in Freidmann." (citing Kunz. One of the oldest and most fundamental rules of international law. 29 A. JOHNSON & SON. AGUSTIN V. rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere (citing Salonga & Yap. (1999) The purpose of a most favored nation clause is to grant to the contracting party treatment not less favorable than that which has been or may be granted to the "most favored" among other countries. There is. or subterfuge. CIR V.” (Tanada v. 12). one of the oldest and most fundamental maxims of international law. 1992 ed.. Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy. b) Conditional – advantages are specified and limited not universal. The similarity in the circumstances of payment of taxes is a condition for the enjoyment of most favored nation treatment precisely to underscore the need for equality of treatment. and adheres to the policy of peace. moreover. The concept of pacta sunt servanda stands in the way of such an attitude.

Simply stated. Northwest Orient Airlines. the disappearance of the foundation upon which it rests. PNCC V. which would endanger the security of contractual relations. with a statement of the reasons why compliance with the treaty is no longer required. and PUBLIC INTERNATIONAL LAW 2008 c) the change has radically transformed the extent of the obligations still to be performed under the treaty. Authors. however. Does it operate automatically to render a treaty inoperative? Held: According to Jessup. A majority. and d) It cannot operate retroactively upon the provisions of a treaty already executed prior to the change in circumstances. The conclusion and renunciation of treaties is the prerogative of the political departments and may not be usurped by the judiciary. is NOT a function of the courts but of the other branches of government. the contract also ceases to exist. an absolute application of the principle of rebus sic stantibus. rejection of the treaty. Under this theory. usually made by the head of state. The courts are concerned only with the interpretation and application of laws and treaties in force and not with their wisdom or efficacy. b) the existence of those circumstances constituted the basis of the consent of the parties to be bound by the treaty.70 REBUS SIC STANTIBUS (RSS) (THINGS REMAINING AS THEY ARE) This doctrine involves the legal effect of change in conditions underlying the purposes of a treaty. SANTOS V. (Santos III v. 1267. This theory is said to be the basis of Article 1267 of the Civil Code. under this doctrine. 1992) Limitations to RSS a) It applies only to treaties of indefinite duration. c) It must be invoked within reasonable time. is NOT. a treaty terminates if the performance of obligations thereof will injure fundamental rights or interests of any one of the parties.g. the doctrine constitutes an attempt to formulate a legal principle which would justify non-performance of a treaty obligation if the conditions with relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable. e. and tribunals are varied in the application of this doctrine. which provides: “ART. treaties dealing with boundaries between States. CA (1997) The principle of rebus sic stantibus neither fits in with the facts of the case. The parties to the contract must be presumed to have assumed the risks of unfavorable developments. Explain the "rebus sic stantibus" rule (i. according to the intention or will of the parties. Rules Governing Termination of RSS a) a fundamental change (FC) must have occurred with respect to circumstances existing at the time of the conclusion of the treaty. a condition of the continuing validity of the treaty. It is therefore only in absolutely exceptional changes of circumstances that equity demands assistance for the debtor EFFECT OF TERRITORIAL CHANGES (1978 CONVENTION ON SUCCESSION OF STATES IN RESPECT TO TREATIES) Dispositive Treaties These are treaties which deal with rights over territory and are deemed to run with the land and are not affected by changes of sovereignty. hold that “the obligation of a treaty terminates when a change occurs in circumstances which existed at the time of the conclusion of the treaty and whose continuance formed.” The change must be vital or fundamental. the obligor may also be released therefrom. When the service has become so difficult as to be manifestly beyond the contemplation of the parties.. the parties stipulate in the light of certain prevailing conditions. There is a necessity for a formal act of rejection. When FC cannot be invoked a) if the treaty establishes a boundary b) if the FC is the result of the breach by the party invoking it of an obligation owed to any other party to the treaty. and once these conditions cease to exist. things remaining as they are). NORTHWEST AIRLINES (1992) Obviously. which enunciates the doctrine of unforeseen events.e. 210 SCRA 256. This is a political act. Also. jurists. The doctrine of rebus sic stantibus does not operate automatically to render the treaty inoperative. whether on the ground of rebus sic stantibus or pursuant to Article 39. Notes: .” This article. b) The vital change must have been unforeseen or unforeseeable and should have not been caused by the party invoking the doctrine. The key element of this doctrine is the vital change in the condition of the contracting parties that they could not have foreseen at the time the treaty was concluded. in whole or in part. however. June 23.

TRAVAUX PREPARATOIRES Preparatory works as a method of historical interpretation of a treaty. Such. e. New States Formed Through Decolonization a) a new State is under NO obligation to succeed to the old State as a party to a multilateral treaty. g) Violation of the treaty. Expulsion may be predicated on the ground that the presence of the alien in the territory will menace the security of the State. As a State cannot refuse to receive such of its subjects as are expelled from abroad. a) Transient b) Domiciled/Residents – domicile creates a sort of qualified or temporary allegiance. it does not succeed to the predecessor State’s treaties. however. when the rights and obligations under the treaty would not devolve upon the State that may succeed to the extinct State. Notes: . NO TECHNICAL RULES. Exception: If there is a treaty stipulation imposing that duty. equity and common sense to the text for the purpose of discovering its meaning. may be implied from the conduct of both States. ☀ “Clean Slate” Doctrine – Under this doctrine. ★ The interpretation of one State. f) Conclusion of a subsequent inconsistent treaty between the same parties. b) In bipartite treaties. e) Supervening impossibility of performance. quota system ★ State may expel aliens within its territory. ★ State may subject admission of aliens to certain legal conditions. is NOT BINDING to the other party unless the latter accepts it. ★ A treaty may be authoritatively interpreted: a) by interpretation given by the treaty itself b) by mutual agreement or c) through international court arbitration TERMINATION OF TREATIES Most Common Causes: a) Termination of the treaty or withdrawal of a party in accordance with the terms of the treaty. j) Severance of diplomatic or consular relations. c) Mutual agreement of ALL the parties. they are subject to the municipal laws of the receiving State. Position of Aliens After Reception When aliens are received. seceding or disintegrating States DOES NOT make succession to an existing treaty automatic. k) Emergence of a new peremptory norm contrary to the existing treaty.” Reconduction It means the forcible conveying of aliens. Interpretation of Treaties A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. d) Denunciation of the treaty by one of the parties. B. even according to its municipal laws and given by its authorized organs within the State. This flows from sovereignty. ★ This is subject to the “Non-Refoulement Principle. the extinction of one of the parties terminates the treaty. i) War between the parties – war does not abrogate ipso facto all treaties between the belligerents.g. Moreover. RIGHT OF DENUNCIATION – the right to give notice of termination or withdrawal which must be exercised if provided for in the treaty itself or impliedly. however. Subjected to restrictions not usually imposed against transient aliens. h) Doctrine of RSS. New States Formed Through Secession or Disintegration Succeeds AUTOMATICALLY to most of the predecessor’s treaties applicable to the territory that has seceded or disintegrated. l) Voidance of the treaty because of defects in its conclusion or incompatibility with international law or the UN Charter. but its own treaties becomes applicable to the newly acquired territory.71 PUBLIC INTERNATIONAL LAW 2008 ▪ When an existing State acquires a territory. ★ No interpretation is needed when the text is clear and unambiguous. These works are examined for the purpose of ascertaining the intention of the parties. b) a new State can be a party to an existing treaty between the predecessor State and another State only if the other State and the new State both agree. STATE RESPONSIBILITY FOR INJURY TO ALIENS Rule: NO State is under obligation to admit aliens. it has to notify the depository that it regards itself as a succeeding party to the treaty. the home State of such aliens as are reconducted has the obligation to receive them. CANONS OF INTERPRETATION Generally regarded by publicists as applicable to treaties consist largely of the application of principles of logic. but if it wants to do so. There are.

in the general world interest. Exception: If the injury is not directly attributable to the receiving State and when it was proximately caused by the alien himself. NEER’S CASE.aliens’ rights are not at par with citizens’ as regards political or civil rights. It is bond of nationality between the state and by the the the Notes: .72 PUBLIC INTERNATIONAL LAW 2008 ★ Limitations . b) it must be accompanied by payment of compensation for the full value of the property that is prompt. the State cannot be regarded as an absolute insurer of the morality and behavior of all persons within its jurisdiction. should amount to an outrage. obstruction or denial of access of courts. resorting to diplomatic actions on his behalf. are inclined to accept Western view. investigate the case. on the other hand. b) gross deficiency in the administration of judicial or remedial process. Denial of Justice This term has been restrictively construed as an injury committed by a court of justice. and the law does not lightly hold a State responsible for error committed by the courts. or d) a manifestly unjust judgment. adequate and effective. State is in reality asserting its own right. ★ Developing countries. in order to constitute an international delinquency. USMEXICAN CLAIMS COMMISSION Expropriation of Foreign-Owned Property Western countries maintain that MIS requires: a) expropriation must be for a public purpose. Acts or Omissions Imputable to the State It is necessary to distinguish acts of private individuals and those of government officials and organs. Rule: A State is responsible for the maintenance of law and order within its territory. ★ a) b) c) Bases of Grant of Rights Principle of Reciprocity MFN treatment Nationality treatment – equality between nationals and aliens in certain matters. c) failure to provide those guarantees usually considered indispensable to the proper administration of justice. trade and intercourse may be facilitated. ★ When acts of violence occur therein. it may be said that the State is indirectly responsible. Minimum International Standard (MIS) NO PRECISE DEFINITION The treatment of an alien. distribution and exchange without paying compensation. Function To provide. Essential Elements: 1) an act or omission in violation of international law 2) which is imputable to the State 3) which results in injury to the claimant either directly or indirectly through damage to a national. ★ Communist countries. to bad faith. maintain that States may expropriate the means of production. Why is there no denial of justice unless misconduct is extremely gross? – The reason is that the independence of the courts is an accepted canon of democratic government. in accordance with international law. Q: Is the State liable for death and injury to aliens? A: NO. however. 1948 UDHR and other treaties d) DOCTRINE OF STATE RESPONSIBILITY A State is under obligation to make reparation to another State for the failure to fulfill its primary obligation to afford. hoping to attract foreign investments. punish the guilty. to the end that travel. adequate protection for the stranger. or to enable the victim or his heirs to pursue civil remedies. unless it participates directly or is remiss or negligent in taking measures to prevent injury. There is denial of justice when there is: a) unwarranted delay. CONDITIONS FOR ENFORCEMENT OF CLAIMS 1) nationality claim 2) exhaustion of local remedies 3) no waiver 4) no reasonable delay in filing the claim 5) no improper behavior by injured alien Nationality of claim In asserting the claims of its nationals. to willful neglect of duty or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency. the proper protection due to an alien who is a national of the latter State.

HAGUE CONVENTION OF 1903. generally refugees into war zones and other disaster areas. Without prejudice to the application of its law in matters of personal status and of any convention in force. marriage c. appointment as government official 3) Resumption or Repatriation – recovery of the original nationality upon fulfillment of certain conditions. usual repatriation guidelines could not be followed in part due to non-refoulement principles. Doctrine of Genuine Link The bond of nationality must be real and effective in order that a State may claim a person as its national for the purpose of affording him diplomatic protection. 5. We can decide this question alone as sovereign of our own territory. non-refoulement refers to the generic repatriation of people. 23 June 1989 The Nottobohm Case is not relevant in the petition before us because it dealt with a conflict between the nationality laws of two states as decided by a third State. in fact. regardless of other nationality laws. Within a third State a person having more than one nationality shall be treated as if he had only one. legitimation d. conformable the Sec. Notes: . specifically refugee law. (Source: Wikipedia) FRIVALDO v. jus soli (by place) 2) Naturalization a. jus sanguinis (by blood) b. 1 of the Hague Convention (1903) which provides: “it is for each State to determine under its laws who are its nationals. a third State shall. 5. even the US is not claiming Frivaldo as its national. that concerns the protection of refugees from being returned to places where their lives or freedoms could be threatened. June 23. It may be treated alike. 174 SCRA 245. which applies to those who can prove a well-grounded fear of persecution based on membership in a social group or class of persons. After some 200 were determined to not be a threat. recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. COMELEC. No third State is involved in the case at bar. Many of them were released to Israeli collective farms called kibbutzim and moshavim to work until the conflict subsides enough for their return. Constitution The following are citizens of the Philippines: 1) Those who are citizens of the Philippines at the time of the adoption of the Constitution. The sole question presented to us is WON Frivaldo is a citizen of the Philipines under our own laws. Unlike political asylum. acquisition of domicile f.” 3 Modes of Acquiring Nationality 1) Birth a. COMELEC 174 SCRA 245. An example of the non-refoulement principle can be found in the 2007 issue of Israel jailing 320 refugees from the Darfur conflict in Western Sudan. (Frivaldo v. 1987 Phil. AIV.73 PUBLIC INTERNATIONAL LAW 2008 individual which confers upon the State the right of diplomatic protection. * ☀ These two doctrines are used interchangeably by authors and commentators without any effort to make a distinction between the two. 2) Those whose fathers or mothers are citizens of the Philippines. 1989) Non-Refoulement Principle Non-refoulement is a principle in international law. refugees fleeing to Israel in avoidance of the Darfur conflict were jailed in the interest of national security. ART. NOTTEBOHN CASE 1955 ICJ * Doctrine of Effective Nationality When a person who has more than one nationality is within a third State. 5 Modes of Losing Nationality 1) Release 2) Deprivation 3) Expiration 4) Renunciation 5) Substitution §1. option e. he shall be treated as if had only one – either the nationality of the country which he is habitually and principally a resident or the nationality of the country with which in the circumstances he appears to be most closely connected – without prejudice to the application of its (3rd State’s) law in matters of personal status and of any convention in force. Q: What is the “doctrine of effective nationality” (genuine link doctrine)? Held: This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows: Art. of the nationalities which any such person possesses. Due to laws erected for the protection of Israel from the anti-Semitic atmosphere in the region. naturalization proceedings b.

Measure – estimate of the loss caused to the injured individual.74 3) 4) PUBLIC INTERNATIONAL LAW 2008 Those who elect Philippine citizenship pursuant to the provisions of the Constitution of 1935. a law imposing death penalty for a petty theft would fall short of the international standard. It may refer to the intrinsic validity Q: What is the principle of attribution? (1992 Bar) A: The acts of private citizens or groups cannot themselves constitute a violation by the Philippines if said acts cannot be legally attributed to the Philippines as a State. b) When there are no remedies to exhaust. or. 1. 2. (1995 Bar) A: 1. replacing the lawful Government that was toppled. Methods of Pressing Claims 1) Diplomatic Intervention 2) International judicial settlement – The ICJ is authorized to assume jurisdiction to determine “the nature or extent of the reparation to be made for the breach of an international obligation. Q: In a raid conducted by rebels in a Cambodian town. of the laws passed by the state or to the manner in which such laws are administered and enforced. it can not be held responsible for the acts of the rebels for the rebels are not their agents and their acts were done without its Notes: . Q: Is the Calvo clause lawful? A: Insofar as it requires alien to exhaust the remedies available in the local state. Those who are naturalized in accordance with law. it may be enforced as a lawful stipulation. Government troopers immediately launched pursuit operations and killed several rebels. it may not be interpreted to deprive the alien’s state of the right to protect or vindicate his interests in case they are injured by local state. if there be any. waiver of individual does not preclude the State to pursue the claim. He who comes to court for redress must come with clean hands. Nature and Measure of Damages Reparation may consist of restitution: a) in kind b) specific performance c) apology d) punishment of the guilty e) pecuniary compensation f) or the combination of the above No waiver The claim belongs to the State and not to the individual. the Cambodian Government contended that under International Law it was not responsible for acts of the rebels. Thus. may the new government be held responsible for the injuries or losses suffered by the American businessman? Explain. Within minutes two truckloads of government troops arrived prompting the rebels to withdraw. if he has lost his life. However. YES. Suppose the rebellion is successful and a new government gained control of the entire State. c) The application for remedies would result in no redress. Exceptions: a) When the injury is inflicted directly by the State such as when its diplomats are attacked. So to would one calling for the arbitrary punishment of accused persons without compliance with the usual requisites of due process. Unless it clearly appears that the Cambodian government has failed to use promptly and with appropriate force its constituted authority. on the loss caused by the death to his dependents. For example. CALVO CLAUSE Named after an Argentinean lawyer and statesman who invented it stipulating that the alien agrees in advance not to seek diplomatic intervention. No improper behavior by injured alien. Is the contention of the Cambodian Government correct? Explain. In an action for indemnity filed by the US Government in behalf of the businessman for injuries and losses in cash and property.” but only after the State-parties agree thereto. ☀ disregarded by international arbitral tribunals because the alien cannot waive a claim that does not belong to him but to his government. What is the International standard of justice? It is defined as the standard of the reasonable state and calls for compliance with the ordinary norms of official conduct observed in civilized jurisdictions. an American businessman who has been a long-time resident of the place was caught by the rebels and robbed of his cash and other valuable personal belongings. No cash or other valuable property taken from the American businessman was recovered. Exhaustion of Local Remedies Rule: The alien himself must have first exhausted the remedies provided by the municipal law.

the government troopers immediately pursued the rebels and killed several of them. any question of international law. TYPES OF Pacific Settlement I. the existence of any fact which. Conciliation 6. without its consent. if established. The nature or extent of the reparation to be made for the breach of an international obligation. or c) Individuals or eminent citizens of a third State. or to any other kind of pacific settlement (PS). Mediation 4. This is NOT to be regarded as an unfriendly act. Victorious rebel movements are responsible for the illegal acts of their forces n the course of the rebellion. Confronted with such a situation. Tender of good office A tender of good office may be made by: a) Third State b) international organs such as the UN. 3. by contrast. be compelled to submit its disputes with other States either to mediation or arbitration. creates an international dispute as “there has thus arisen a situation in which the two sides hold clearly opposite views concerning the questions of the performance or nonperformance of their treaty obligations. (PCIJ on STATUS OF EASTERN CARELIA. ii. ▪ The charging of one State and the denial of another of the dispute as charged. the parties seek a solution of their differences by direct exchange of views between themselves. YES. In this case. Good Offices Notes: .” ICJ Reports 1950 Legal Dispute – the following are deemed constitutive of a legal dispute: i. 2. II. Negotiation The legal and orderly administrative process by which governments. Interpretation of a treaty. Good Offices An attempt of a third party to bring together the disputing States to effect a settlement of their disputes. conduct their relations with one another and discuss. 2. Enquiry 5.75 PUBLIC INTERNATIONAL LAW 2008 volition. Pacific Settlement of International Disputes Nature International Dispute Defined Optional Clause Types 1. III.) Dispute – is a disagreement on a point of law or fact. The acts of the rebels are imputable to them when they assume as duly constituted authorities of the State. Judicial Settlement ¯°º°¯ Nature It is well established in international law that no State can. if established. International Dispute – if the dispute arises between two or more States. The mere denial of the existence of a dispute does not prove its non-existence because disputes are matters for objective determination. Negotiation 2. Optional Clause [OPTIONAL JURISDICTION CLAUSE] The following are deemed legal disputes: 1. the nature or extent of the reparation to be made for the breach of an international obligation. Mediation v. A situation. and 4. a conflict of legal views or interests between two persons. Any question of international law. adjust and settle their differences. would constitute a breach of an international obligation. though not necessarily. Mediation This is the action of a third party in bringing the parties to a dispute together and helping them in a more or less informal way to find a basis for the settlement of their dispute. iii. The existence of any fact which. interpretation of a treaty. This is the very essence of diplomacy. the Court must conclude that international disputes have arisen. Dispute v. is a state of affairs which has not yet assumed the nature of conflict between the parties but which may. Good Offices 3. would constitute a breach of an international obligation. come to have that character. By this method. The chief and most common method of settling international disputes. in the exercise of their unquestionable powers. iv. Situation A dispute can properly be considered as a disagreement on a matter at issue between two or more States which has reached a stage at which the parties have formulated claims and counterclaims sufficiently definite to be passed upon by a court or other body set up for the purpose of pacific settlement. Arbitration 7.

but not the severance of consular relations. offers his advice and in general attempts to conciliate differences. Forcible Measures Short of War Severance of Diplomatic Relations Retorsion Reprisals Embargo Boycott Non-intercourse Pacific Blockade Collective Measures under the Charter ¯°º°¯ I. b) to influence the offending State to remedy the consequences of some unfriendly or illegal act. IV. It involves withdrawal of diplomatic representation. on the other hand. for he proposes solution. the main object is not only to elucidate the facts but to bring the parties to an agreement. II. severance of an existing relation does not tantamount to breach of international law. OPPENHEIM ▪ Conciliation v. ☀ ☀ ☀ Princ iple of Free Determination – this principle applies to the competence of the arbitral tribunal. the law to be applied and the procedure to be followed. VI. the third party tendering good offices has no further functions to perform. f) rules of procedure. Contains the following: a) the questions to be settled. Retorsion Notes: . Suspension of Relations– has been used to denote a less drastic step than complete severance of diplomatic ties. ☀ compromis d’ arbitrage – the agreement to arbitrate. the parties should have been given the opportunity of a free choice of arbitrators. It is the charter of the arbitral tribunal. Severance of Diplomatic Relations Severance may take place: a) to mark severe disapproval of a State’s conduct. Choice of Arbitrators – the arbitrators should be either freely selected by the parties or. V.76 PUBLIC INTERNATIONAL LAW 2008 In good offices. Arbitration This is a procedure for the settlement of disputes between States by a binding award on the basis of law and as the result of an undertaking voluntarily accepted. once the parties have been brought together. e) the arbitral award. No breach in int’l. c) to serve notice on the other State that the issue between them has reached a point where normal diplomatic intercourse is no longer possible and that sterner measures might possibly follow. in accordance with judicial methods. which. the third party mediates and is the more active one. Judicial Settlement This means settlement by a permanent international court of justice. and g) the law to be applied. the main object is to establish the facts. thus. Enquiry Enquiry is the establishment of the facts involved in a dispute and the clarification of the issues in order that their elucidation might contribute to its settlement. Conciliation This is the process of settling disputes by referring them to commissions or other international bodies. VII. ▪ Basis – it rests on the theory that certain disputes could be settled if the facts of the case were established. In conciliation. at least. Enquiry – in enquiry. In mediation. c) venue. b) the method of selecting arbitrators and their number. States are under no legal obligation to arbitrate their disputes.to ascertain the facts underlying a dispute and thereby prepare the way for a negotiated adjustment or settlement of the dispute. whose task is to elucidate the facts and make a report containing proposals. Arbitration proceedings may be similar to the functions and process of judicial settlement but the arbitral tribunal is NOT a permanent body as compared to the body referred to in this type of PS. d) expenses. however. usually consisting of persons designated by agreement between the parties to the conflict. for a settlement. law – there exists no obligation to maintain diplomatic intercourse with other States. have no binding character. ▪ Object of Enquiry .

Embargo (Sequestration / Hostile Embargo) This is originally a form of reprisal consisting of forcible detention of the vessels of the offending State or of its nationals which happened to be lying in the ports of the injured or aggrieved State. which under international law constitutes an international delinquency. Later. Consists of retaliatory conduct which is legitimate or is not in violation of international law. 2 Kinds of Reprisals: a) Reprisal as a form of self-help – is resorted to for the purpose of settling a dispute or redressing a grievance without going to war. This may be: a) collective embargo on import or export of narcotic drugs b) collective embargo by way of enforcement action under the UN Charter V. consequently no state of war exists between the State resorting to reprisals and the State against whom such acts are directed. authorizing them to perform acts of self-help against the offending State or its nationals for the purpose of obtaining satisfaction for the wrong sustained. It does not involve the use States resorting to retorsion retaliate by acts of the same or similar kind as those complained of. VI. it presupposes. the practice was extended to such vessels also as were seized in the high seas. Collective Embargo Embargo by a group of States directed against an offending State. the existence of a state of war between the parties concerned. Boycott A comparatively modern form of reprisal which consists of a concerted suspension of trade and business relations with the nationals of the offending State. Non-intercourse Notes: . Civic or Pacific Embargo A form of embargo employed by a State to its own vessels within its national domain or of resources which otherwise might find their way into foreign territory. therefore. Criteria for Legitimacy a) that the State against which reprisals are taken must have been guilty of a breach of international law. III. but must be returned when the delinquent State makes the necessary reparation. to obtain redress from the delinquents State for the consequences of its illegal conduct. Forms of Reprisals a) military occupation b) display of force c) naval bombardment d) seizure of ships at sea e) seizure of properties of nationals of the delinquent State f) freezing of assets of its citizens g) embargo h) boycott i) pacific blockade Letters Of Marque or Special Reprisals Act of a State granting their subjects who could not obtain redress for injury suffered abroad. b) Reprisal taken by belligerents in the course of war – the purpose of the latter kind of reprisals is to compel a belligerent to observe or desist from violating the laws of warfare. for the consequences of the illegal acts of another State. ☀ Vessels sequestered are not considered condemned or confiscated. but not international of one State against another in for the latter’s unfriendly or conduct. It is resorted to by States usually in cases of unfair treatment of their citizens abroad. without success. Reprisals Any kind of forcible or coercive measures whereby one State seeks to exercise a deterrent effect or to obtain redress or satisfaction. and c) That acts of reprisals must not be excessive. b) that prior to recourse to reprisals an adequate attempt must have been made. an unfriendly. directly or indirectly. or even within the territorial waters of the offending State.77 PUBLIC INTERNATIONAL LAW 2008 Consists of illegal act retaliation inequitable of force. which has refused to make amends for such illegal conduct. Generally resorted to by a State in consequence of an act or omission of another State Acts which give rise to retorsion though obnoxious do not amount to an international delinquency. IV. Reprisals Retorsion Consists of acts which would ordinarily be illegal.

that there exists a “threat to peace. both in scope and method. Nature of Enforcement Action under UN UN Forces must behave in a manner consistent with the purposes and ideals of the Organization and must obey the rules of war which represent a general international attempt to humanize armed conflict. a breach of the peace. UN Charter The SC may decide what measures not involving the use of armed forces are to be employed to give effect to its decisions. has rendered many of the traditional rules of warfare obsolete. sea. or in pursuance of a decision or recommendation of the SC to take forcible action against an aggressor.78 PUBLIC INTERNATIONAL LAW 2008 Consists of suspension of ALL commercial intercourse with a State. The enforcement provisions of the Charter are brought into play only in the event that the SC determines. or at any rate frightfully inadequate. under Article 39. of compulsive measures to maintain or restore peace. VII. who wear distinctive insignia and who are subjected to military discipline under responsible command. but to all armed conflicts. As Self-Defense – the use of force in self-defense is permitted only while the SC has not taken the necessary measures to maintain or restore international peace and security. or land forces of Members of the UN. telegraphic. consisting of individuals who are armed. and other means of communication. or land forces as may be necessary to maintain or restore international peace and security. Quarantine [See movie “Thirteen Days”] The right to stop and search vessels of third States suspected of carrying specified cargo to the “quarantined” State has been asserted by the blockading State. VIII. sea. These may include complete or partial interruption of: a) economic relations and of rail. These measures may or may not involve the use of armed forces.” Article 41. air. Collective Measures under the Charter A system of peace enforcement under the UN Charter. Article 42. Rules of War Obsolete The radical change in the character of war. It may only be used collectively by or on behalf of the UN as an enforcement action under Article 41 of the UN Charter. Such action may include: a) demonstrations b) blockade and c) other operations by air. Pacific Blockade A naval operation carried out in time of peace whereby a State prevents access to or exit from particular ports or portions of the coast of another State for the purpose of compelling the latter to yield to certain demands made upon it by the blockading State. radio. sea. Sanctions of the laws of war Notes: . ☀ Third States do not acquire the status of neutrals because there is no belligerency between the blockader and the State. The Laws of War Definition of War Legality of War Rules of Warfare Sanctions of the Laws of War Commencement and Termination of War Effects of Outbreak of War Conduct of Warfare ¯°º°¯ War INGRID DETTER DE LUPIS A sustained struggle by armed forces of a certain intensity between groups of certain size. It envisages the employment. Legality of War under UN The use of armed force is allowed under the UN Charter only in case of individual or collective self-defense. ★ The laws of war are not applicable to war alone in its technical sense. it may take such action by air. religion and farsighted policy. or an act of aggression. postal. if necessary. THE CUBAN QUARANTINE. Temperamenta of Warfare Grotius advocated moderation in the conduct of hostilities for reasons of humanity. UN Charter Should the SC consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate. A complete or partial interruption of economic relations with the offending State as a form of enforcement measure. and it may call upon the Members of the UN to apply such measures. and b) severance to the diplomatic relations. ☀ Blockade may no longer be resorted to by States Members as a measure of selfhelp.

22 Nov. Q: By what agreements may hostilities be suspended between the belligerents? A: Hostilities may be superceded by a suspension of arms. animo belligerendi From the point of view of international law. TERMINATION a) by simple cessation of hostilities. Suspension of Arms It is the temporary cessation of hostilities by agreement of the local commanders for such purposes as the gathering of the wounded and the burial of the dead. a truce. It may be a negotiated peace treaty. It is a functional and utilitarian body of laws. as opposed to the responsibility of the State which is covered by Public International Law proper. Azcuna) COMMENCEMENT ☀ It was customary to notify an intended war by letters of defiance. usually for the purpose of arranging terms of peace. b) by a treaty of peace – this is the usual method of terminating war. (IHL: A Field Guide to the Basics. Q: What are some kinds of non-hostile intercourse between the belligerents? A: Among the kinds of non-hostile intercourse are flags of truce. War Anglo-American Rule Bound by a statement by the executive as to when a state of war is commenced. c) by unilateral declaration – if the war results in the complete defeat or unconditional surrender of a belligerent the formal end of the war depends on the decision of the victor. The 2007 Metrobank Lecture on International Law. International Humanitarian Law (IHL) These are the laws of armed conflict. Or a peace treaty thru a dictated treaty. ☀ 1907 2nd Hague Conference – The contracting States recognized that hostilities between them ought not to commence without previous and unequivocal warning which might take the form of either: a) a declaration of war giving reasons. formerly considered a legitimate means of enforcing observance of the laws of war. but is now understood to refer to a ceasefire with conditions attached. or preliminary warning by declaration or ultimatum. It used to be called the laws of war. 2007 by Associate Justice Adolfo S. ARMISTICE It is the suspension of all hostilities within a certain area (local) or in the entire region of the war (general) agreed upon by the belligerent governments. without the conclusion of a formal treaty of peace – since no formal treaty of peace is concluded. herald. uti possidetis Each belligerent is regarded as legally entitled to such property as are actually in its possession at the time hostilities ceased. cartels. or a capitulation. the problems concerning ownership of property which have changed hands during the course of the war are generally settled by the application of the rule of uti possidetis. is no longer permitted at present time. b) an ultimatum with a conditional declaration of war. an armistice. passports. war commences upon the commission of an act of force by one party done in animo belligerendi. CEASEFIRE It is the unconditioned stoppage of hostilities by order of an international body like the Security Council for the purpose of employing peaceful means of settling the conflict. a cease-fire. safeguards and license to trade. forts or districts in accordance with the rules of military honor. TRUCE Sometimes use interchangeably with armistice. status quo ante bellum Notes: . not just humanitarian. It is part of International Criminal Law and deals with breaches of international rules on the laws of armed conflict entailing the personal liability of the individuals concerned. CAPITULATION It is the surrender of military troops. safe-conduct. It regulates the conduct of actual conflict (jus in bello) as distinguished from laws providing for the instances of the lawful resort to force (jus ad bellum).79 PUBLIC INTERNATIONAL LAW 2008 Observance of the rules of warfare by belligerents is secured through several means recognized by international law: 1) reprisals 2) punishment of war crimes committed by enemy soldiers and other enemy subjects 3) protest lodged with the neutral powers 4) compensation ☀ The taking of hostages.

or 2) is controlled by individuals bearing enemy character. The official residence of the envoy. Q: What is the meaning or concept of uti possidetis? (1977 Bar) A: The problem concerning ownership of property which have changed hands during the course of the war are generally settled by the application of the rule of uti possidetis. Rules for interment of enemy aliens (1) to provide for the internees’ safety and welfare. hence. within wide limits. On enemy persons International law leaves each belligerent free. c) activities test – whether national or not. together with all its laws. 2. BARREDO Termination of war when used in private contracts refers to the formal proclamation of peace by the US and not the cessation of hostilities between RP and Japan during the WWII. the legitimate government is ousted from authority. Thus. Q: When is the principle of postliminium applied? (1979 Bar) A: Where the territory of one belligerent state is occupied by the enemy during war. End of War NAVARRO VS. Determination of enemy character a) territorial test – enemy character depends on the residence or domicile of the person concerned b) nationality test – this is the preferred continental practice.g. and consular archives are usually left under the protection of another foreign envoy or consul of another State. War also brings about the cessation of consular activity. (2) to furnish adequate food and clothing (3) to provide family accommodations with due privacy and facilities. resident or not. 3. subjects of a neutral State may be treated as enemies because of certain activities where they participate. 6. Rupture of diplomatic relations and termination of consular activities On enemy persons On enemy properties On trading and intercourse On contracts On treaties Rupture of diplomatic relations / termination of consular activities The respective diplomatic envoys are allowed to leave for their home countries. Postliminium (See movie: “The Gladiator”) A term borrowed from Roman Law concept which meant that persons or properties captured or seized and taken beyond (post) the boundary (limen) could be enslaved or appropriated. to designate the persons whom it will treat as having enemy character. Notes: . 5. but upon return they recovered their former status. after having come under the authority of the enemy. Modern Practice To denote the doctrine that territory. Dictated Treaty This happens where the decisive victory of one of the belligerents leads it to impose its will on the other. by virtue of the jus postliminium. Legitimate Acts of Military Occupant Postliminium has no effects upon the acts of a military occupant during the occupation which under international law it is competent to perform e. When the belligerent occupation ceases to be effective. individuals and property. However. The subjects of the belligerent are deemed enemy persons regardless of where they are. EFFECTS OF WAR OUTBREAK 1.80 PUBLIC INTERNATIONAL LAW 2008 Each of the belligerents is entitled to the territory and property which it HAD possession of at the commencement of the war. appropriation of property is not allowed to be performed by the military occupant. the ownership of the property reverts back after the military occupancy without payment of compensation. revert to the authority of the original sovereign ipso facto upon retaking possession. the authority of the legitimate government is automatically restored. the archives of the mission. by which each belligerent is regarded as legally entitled to such property as are actually in its possession at the time hostilities ceased. 4. collection of ordinary taxes. e) controlling interest test – this is the test as to corporations in addition to the place of incorporation test. Imposed by the victor. A corporation is regarded as enemy person if it: 1) is incorporated in an enemy teriroty. d) territorial or commercial domicile test – in matters pertaining to economic warfare.

Principle of Humanity [THE ETHICS OF WARFARE] Forbid the use of weapons which cause indiscriminate destruction or injury or inflict unnecessary pain or suffering. On contracts International law leaves each belligerent free to regulate this matter by his own domestic law. Some consider the enemy persons ex lege during the whole duration of the hostilities. Chivalry Doctrine of Military Necessity A belligerent is justified in resorting to all measures which are indispensable to bring about the complete submission of the enemy. they carry arms openly. they wear a fixed distinctive sign recognizable for his subordinates. as soon as possible. ☀ Treaties dealing with political matters. ☀ Treaties may contain provisions to the effect that it will remain in force notwithstanding the existence of war. except as such as are permitted under license. war suspends the operation of the statute of limitations.81 PUBLIC INTERNATIONAL LAW 2008 (4) to provide facilities for religious. Further. Hostilities conducted by armed bodies of men who do not form part of an organized army. In the Philippines.  public – confiscated  private – sequestered only and subject to return or reimbursement On trading and intercourse The practice of belligerents in modern wars of forbidding by legislation all intercourse with alien enemies. Some allowed them to sue and be sued subject to so many exceptions. In general. 1949 GENEVA CONVENTION Locus standi during occupation The practice of states are varied. They are treated as lawful combatants provided that: a) b) c) d) they are commanded by a person responsible for his subordinates. Guerilla warfare – considered as IF. navy. 2) Irregular Forces (IF) – also known as franc-tireurs consist of militia and voluntary corps. such as treaties of alliance. (8) to make transfers only in a humane manner. Non-combatant members of the armed forces include: chaplains. 3) Non-privileged Combatants (NPC) – individuals who take up arms or commit hostile acts against the enemy without Notes: . (7) the refrain from excessive or inhuman penal and disciplinary measures. when an enemy subject is unable to sue during war. time and money. and air force. (10) to release internees when the reasons for internment cease or when hostilities terminate. and to inquire into deaths other than from natural causes. (9) to record and duly certify deaths. Q: Who constitute combatants? A: They are the following: 1) Regular Forces (RF)– the army. by means of regulated violence not forbidden by conventional or customary rules of war and with the least possible loss of lives. Principle of Chivalry This principle requires the belligerents to give proper warning before launching a bombardment or prohibit the use of perfidy in the conduct of hostilities. intellectual and physical activities. On enemy property In general. The main object of such laws was to prohibit transactions which would benefit the enemy or enemy persons. On treaties Modern view is that war does NOT ipso facto terminate all treaties between belligerents. it may be stated that States treat as void contracts which may give aid to the enemy or add to his resources. goods belonging to enemy persons are considered enemy property. and with commercial relations are deemed abrogated by the outbreak of war between the parties thereto. Humanity 3. and they conduct their operations in accordance with the laws and customs of war. (6) to permit a degree of communication with the outside world. This principle does not prohibit espionage. army services and medical personnel. CONDUCT OF WARFARE (See movie: “The Patriot”) 3 Basic Principles of IHL: 1. a right of action which has accrued to him before the war is deemed suspended for the duration of the war. Military necessity 2. (5) to permit the use of their personal properties and financial resources. or necessitate intercourse or communication with enemy persons.

1) Mercenaries – considered as NPC Those who. EX: Aland Islands. they are not entitled to the status of prisoners of war. or nuclear electric plants. poisonous. hospital ships and medical units – a clear marking or a Red Cross to show their status. or other gases. Spies – A soldier employing false pretenses or acts through clandestine means to gather information from the enemy.” are not covered by protection. certain places and objectives are not subject to attack. and all analogous liquids. materials or devices 4) the use of bacteriological methods of warfare. the Spitzbergen. When caught. Restrictions on weapons Prohibited weapons: 1) explosive bullets 2) use of dum-dum bullets 3) employment of projectiles whose only object is diffusion of asphyxiating. having been recruited in another country. they are not to be regarded as prisoners of war. IF and Levee may be treated as prisoners of war under Protocol I of 1977. churches and the like as shield from attack.82 PUBLIC INTERNATIONAL LAW 2008 belonging to the armed forces or forming part of the irregular forces. These are acts of vengeance by a belligerent directed against groups of civilians or POWs in retaliation of or response to an attack by other civilians against the belligerent. NOTE: Only RF. have permanently joined the civilian population. 3) Cultural property and places of worship 4) Civil defense – includes personnel. LIMITATION ON TARGETS OF ATTACK Only military targets are subject to attack by the armed forces of a belligerent as a basic rule of warfare. from military forces for “personal gain. 3) Laser weapons which cause burns and blindness 4) Infrasound devices that cause damage to the central nervous system. Likewise. 2) Open towns – also known as “non defended locality. g) Area bombing Notes: . 6) Civilians and persons hors de combat – persons hors de combat are those who are either wounded or. such as: Neutralized areas or zones – these are zones in the theater of operations established by special agreement between the belligerents for treatment of the wounded and civilians. the Suez Canal and Panama Canal. for other reasons. If captured. Must only be treated as POW. Starvation Reprisals – are not reprisals as a form of selfhelp. Perfidy on treachery – this includes: a) Improper use of white flag b) Feigning surrender or pretending to have been wounded or to have a civilian status c) Using the uniform of the enemy d) Claiming neutral status e) Falsely flying the Red Cross flag f) Making hospitals. 4) Levee en masse Takes place when the population spontaneously rises in mass to resist the invader. See this reviewer’s section on POW. A soldier not wearing uniform during hostilities runs the risk of being treated as a spy and not entitled to prisoner of war status. dikes. buildings and assets. 5) The laying of “contact” mines 6) Explosives from balloons 3 Protocols on Restrictions Protocol I on Fragmentation Weapons Protocol II on Treacherous Weapons Protocol III on Incendiary Weapons Other Questionable weapons 1) Fuel explosive weapons that kill by air shock waves 2) Flame blast munitions that combine fuel air explosive effect with radiation in chemical fireball munitions. 8) Hospitals. 9) Food supplies and crops FORBIDDEN METHODS No Quarter – such orders implying that no survivors are to be left after an attack. Military Scouts are not spies. 7) Parachutists – those who bail out from aircrafts in distress. instead. clearly indicated by a blue triangle on an orange background distinctive sign. They enjoy privileges due to armed forces.” A place free of combatants. belligerent reprisals are of a completely different type. the Magellan Straits. 5) Dangerous installations – dams.

The 2007 Metrobank Lecture on International Law.” even if any of the combatant powers do not recognize the existence of a state of war and even though these conflicts are “not of an international character. including those of organized resistance movements. POWs facing criminal trial may be detained until the termination of the proceedings or punishment. Notes: . 5) members of the crew of merchant vessels and civilian aircraft who do not benefit by more favorable treatment under any other provisions of internal law. DIRECTOR OF POSTS NOTE: Although the Philippines has signed but not yet ratified the Rome Statute establishing the ICC. the occupant is empowered to collect taxes. provided they are authorized to be with the army or unit. 2) They have a fixed distinctive emblem recognizable at a distance. 2007 by Associate Justice Adolfo S. who do not form part of an organized army. etc. Rights & Duties of a Belligerent Occupant to continue orderly government to exercise control over the occupied territory and its inhabitants. CO KIM CHAN V. These core crimes are specified in the Statues of the ICC (or the Rome Statute for an ICC) which describes them as the most serious crimes of concern to the international community as a whole. annex the territory or set it up as an independent State. Guerillas are entitled to be treated as prisoners of war provided they fulfill the following conditions: 1) They are commanded by a person responsible for his subordinates. such as civilian members of military aircraft crew.83 PUBLIC INTERNATIONAL LAW 2008 PRISONERS OF WAR (POW) The following persons captured must be treated as POW: 1) members of the armed forces. 6) members of the population of non-occupied territory who take up arms as a levee en masse against an invading army. hence he cannot.” and he is bound to defray the “expenses of administration” out of the proceeds. as far as possible in accordance with “the rules of assessment and incidence in force. 4) various categories of persons accompanying an army unit. 3) They carry arms openly. VALDEZ TAN KEH 75 Phil 371 1949 Geneva Convention III The rules of POW applies to prisoners of war who are captured in a properly declared war or any other kind of “armed conflict. which consists in hostilities conducted in territory occupied by the enemy by armed bodies of men Q: Can the belligerent occupant impose and collect taxes or contributions? A: YES. 3) members of regular armed forces professing allegiance to a government or an authority not recognized by the capturing State. NOTE: The belligerent occupant cannot compel the inhabitants to swear allegiance to him. the ICC Statute’s and definitions of the core crimes are authoritative statements for us since they are practically lifted from customary international law sources and from the Geneva Conventions of 1949 and other treaties to which we are parties. Azcuna) When POW should be returned Upon cessation of war or hostilities.” His rights over the occupied territory are merely that of administration. (IHL: A Field Guide to the Basics. war correspondents. guerilla warfare. as well as members of militias or volunteer corps forming part of such armed forces. When is a Territory Deemed Under Military Occupation? Territory is deemed to be occupied when it is placed as a matter of fact under the authority of the hostile army. dues and tolls. Under the Hague Regulations.. NOTE: Belligerent occupation is different from Military occupation. TAN SE CHIANG v. while the war continues. crimes against humanity. Under Article 4 of the 1949 Geneva Convention on Prisoners of War. (1982 Bar) Q: What are the core crimes in IHL? A: The core crimes in IHL are genocide. war crimes and aggression. However. 2) members of other militias or volunteer groups. Belligerent occupation becomes an accomplished fact the moment the government of the invaded territory is rendered incapable of publicly exercising its authority and the invader is in a position to substitute and has substituted his own authority for that of the legitimate government of the occupied territory. 22 Nov. These crimes are within the jurisdiction of the ICC. subject to compliance with certain conditions. is recognized. Q: Is guerilla warfare recognized under International Law and may a captured guerilla demand treatment afforded a prisoner of war under the 1949 Geneva Convention? Explain. A: Yes. and 4) They conduct their operations in accordance with the laws and custom of war.

A state seeks neutralization where it is weak and does not wish to take an active part in international politics. belligerent warships cannot take shelter in a neutral port for any undue length of time in order Notes: . the neutral state may allow it as long as such repairs are absolutely necessary to render them seaworthy. 2) duty of prevention (positive) – places the neutral State under obligation to prevent its territory from becoming a base for hostile operations by one belligerent against the other. or enter into such international obligations as would indirectly involve it in war. such attitude creating rights and duties between the impartial States and the belligerents. Neutrality Neutrality Defined Neutrality v. What is prohibited is the passage upon its national rivers or canals. however. Q: Switzerland and Austria are outstanding examples of neutralized states. Neutralization Rights and Duties of Neutrals and Belligerents Passage of Belligerent Warships Prohibition of Warlike Activities in Neutral Territory Neutral Asylum to Land and Naval Forces of Belligerent Right of Angary Blockade Contraband Unneutral Service Right of Visitation Neutrality An attitude of impartiality adopted by third States towards belligerents and recognized by the belligerents. What are the characteristics of neutralized states? (1988 Bar) A: Whether simple or composite. Conditions on levying taxes: 1) they must be for the needs of the army or local administration. Neutralization (1988 Bar) Neutrality Neutralization Obtains only during war A condition that applies in peace and war A status created under international law.84 PUBLIC INTERNATIONAL LAW 2008 Contributions – are money impositions on the inhabitants over and above such taxes. 4) the levy must be made as far as possible. and a right of a belligerent corresponds to a duty of the neutral. Also. direct or indirect. in contradistinction to requisitions which may be demanded by the Commander in a locality. that is. Rights and Duties of Neutrals & Belligerents The nature of their rights are correlative. PROHIBITION OF WARLIKE ACTIVITIES IN NEUTRAL TERRITORY The Hague Convention No. a right of a neutral gives rise to a corresponding duty on the part of the belligerents. Neutrality vs. not repairs which would add in any way to their fighting force. are the canals which have become international waterways (such as the Suez Canal and the Panama Canal). The exception. 3) a receipt must be given to each contributor. XIII provides that “belligerents are forbidden to use neutral ports and waters as base of naval operations against their adversaries.” Thus. except for self-defense. 1) duty of abstention (negative) – should not give assistance. PASSAGE OF BELLIGERENT WARSHIPS A neutral State may allow passage of belligerent warships through the maritime belt forming part of its territorial waters. a state is said to be neutralized where its independence and integrity are guaranteed by an international convention on the condition that such state obligates itself never to take up arms against any other state. to either belligerent in their war efforts. The power that guarantees its neutralization may be motivated either by balance of power considerations or by desire to make the state a buffer between the territories of the great powers. 3) duty of acquiescence (passive) – requires a neutral to submit to acts of belligerents with respect to the commerce of its nationals if such acts are warranted under the law of nations. a neutral must prevent belligerent warships from cruising within its maritime belt for the purpose of capturing enemy vessels as soon as they leave it. by means of a stand on the part of a state not to side with any of the parties at war A status created by means of a treaty Brought about by a unilateral declaration by neutral state Cannot be effected by unilateral act only but must be recognized by other states. in accordance with the rules in existence and the assessment in force for taxes. In the event that a neutral port or roadstead is used for repairs. 2) they can be imposed by written order of the Commander-in-Chief only.

it may assign them a place of residence so as to prevent them from rejoining their forces. However. Doctrine of Ultimate Consumption Goods intended for civilian use which may ultimately find their way to and be consumed by Notes: . either in the ship itself or in another vessel or on land. and which are found by that belligerent on its way to assist the war operations or war effort of the enemy. Neutral States have the duty to acquiesce in the suppression by belligerents of trade in contraband. and the neutral State shall leave such prisoners at liberty. NEUTRAL ASYLUM TO LAND AND NAVAL FORCES OF BELLIGERENT POW’s who escape into neutral territory or are brought into neutral territory by enemy troops who themselves take refuge there shall become free ipso facto. STONE Requisites: a) susceptible of use in war b) destined for the use of a belligerent in its war effort. except under certain circumstances.85 PUBLIC INTERNATIONAL LAW 2008 to evade capture. b. must be interned. e. Innocent cargo belonging to the same owner would also be subject to confiscation. Kinds of Contrabands a) absolute – goods which by their very nature are intended to be used in war. 3 Conditions a. Hostile destination In case of absolute contraband it is necessary only to prove that the goods had as their destination any point within enemy or enemy-controlled territory. The maximum length of stay permissible is 24 hours. c. horses. the property is within the territory or jurisdiction of the belligerent. fuel. although it is not forbidden to do so. In both. BLOCKADE An operation of war carried out by belligerent seacraft or other means. but if it allows them to remain in its territory. Consequences of contraband carriage Neutral States are not under obligation to prevent their subjects from carrying contraband to belligerents. compensation must be paid to the owner. b) conditional – goods which by their nature are not destined exclusively for use in war. Doctrine of Infection Under the British and American practice. the penalty for carriage of contraband would be confiscation of the contraband cargo. neutral property found in its territory. NOTE: A neutral subject within the territory of a belligerent is not entitled to indemnity from either side against the loss of property occasioned by legitimate acts of war. there must be an urgent need for the property in connection with the offensive or defensive war. the destination as of moment of seizure is critical. CONTRABAND A term used to designate those goods which are susceptible of use in war and declared to be contraband by a belligerent. Neutral ports may not become places of asylum or permanent rendezvous for belligerent prizes. RIGHT OF ANGARY A right of a belligerent to requisition and use. subject to certain conditions. clothing. unless the neutral state has prescribed otherwise in their municipal laws or unless the nature of repairs to be done or the stress of weather would require a longer time. the neutral State is not obliged to grant them asylum. the neutral State concerned has the right to take such measures as it deems necessary to render the ship incapable of putting to sea for the duration of the war. Doctrine of continuous voyage Goods which are destined to a neutral port cannot be regarded as contraband of war.g. or even to destroy in case of necessity. etc. In the case of conditional contraband. but without compensation for delay and detention in the Prize Court. but which are nevertheless of great value to a belligerent in the prosecution of the war. it is required that the goods be destined to the authorities or armed forces of the enemy. foodstuff. if they are compelled to land in neutral territory. and may be subjected to such restrictions as may be necessary. When the belligerent ship is detained by a neutral State. In case a belligerent men-of-war refuses to leave neutral port in which it is not entitled to remain. As regards fugitive soldiers. for the purpose of preventing ingress and egress of vessels or aircraft of all nations to and from the enemy coast or any part thereof. in enemy territory or in the high seas. Belligerent aircraft and their personnel. The rule is that a prize may not be brought into a neutral port. the officers and crew are likewise interned. Innocent cargo belonging to another owner would be released.

to search neutral merchantmen for the purpose of ascertaining whether they really belong to the merchant marine of neutral States. ALTHOUGH THIS IS MAINLY OUTLINED FOR PUBLIC INTERNATIONAL LAW CLASS UNDER ATTY. The City Mayor issues an Executive Order declaring that the city promotes responsible parenthood and upholds natural family planning. UNNEUTRAL SERVICE Denotes carriage by neutral vessels of certain persons and dispatches for the enemy and also the taking of direct part in the hostilities and doing a number of other acts for the enemy. He prohibits all hospitals operated by the city from prescribing the use of artificial methods of contraception. Only private or merchant vessels may be subjected to visit and search. EDWIN REY SANDOVAL. . WE SALUTE ATTY. As a result. THIS IS PURELY FOR ACADEMIC PURPOSES AND IS STRICTLY NOT FOR SALE. a. must be brought before a Prize Court for trial. Is the Philippines in breach of any obligation under international law? Explain. Private clinics! however. carrying contraband or rendering unneutral service. BARRISTERS. are liable to confiscation. including condoms. TRIAL BEFORE A PRIZE COURT The captured vessel and cargo. pills. Is the Executive Order in any way constitutionally infirm? Explain. THIS MATERIAL MAY ALSO BE OF GOOD USE UNDER OTHER PROFESSORS HANDLING THE SAME SUBJECT AS WELL AS THOSE TAKING REVIEW SUBJECT ON POLITICAL AND PUBLIC INTERNATIONAL LAW. LAWYERS. if it be needed. PROFESSORS. A neutral vessel engaged in unneutral service may be captured by a belligerent and treated. or if grave suspicion requires further search which can only be undertaken in a port. Even if the vessel stops at an intermediate neutral port. b. whether they are attempting to break blockade. continue to render family planning counsel and devices to paying clients. or both. THERE ARE DIFFERENT DISCUSSIONS WHICH WERE CULLED FROM AUTHORS ASIDE FROM ATTY. in general.  END 2007 BAR. SANDOVAL FOR HIS NEVER FADING BRILLIANCE IN THE FIELD OF POLITICAL LAW. and if this is found to be the case.86 PUBLIC INTERNATIONAL LAW 2008 the belligerent forces are also liable to seizure on the way. Notes: ACKNOWLEDGMENTS / ATTRIBUTIONS THIS IS A PRODUCT OF LIBERTAS ET IUSTICIA COMPILED BY ITS ACADEMICS COMMITTEE 20072008. in the same way as neutral vessels captured for carriage of contraband. SANDOVAL’S LECTURES AND CASES SUCH AS SALONGA & YAP AND CRUZ. intrauterine devices and surgical sterilization. RIGHT OF VISITATION The right of belligerents (exercised only by menof-war and military aircraft of belligerents) to visit and. AND TO WHOM WE OFFER THIS MATERIAL WITH HUMILITY AND PRIDE. CAPTURE Takes place if the cargo. or the vessel. it will still be considered as one continuous voyage provided it can be shown that its cargo will ultimately be delivered to a hostile destination. poor women in his city lost their access to affordable family planning programs. Doctrine of Ultimate Destination The liability of contraband to capture is determined not by their ostensible but by their real destination. WE ENCOURAGE THE FREE CIRCULATION OF THIS MATERIAL AMONGST THE RANKS OF STUDENTS. LEGAL ENTHUSIASTS AND THE LIKE.

Innocent cargo: 1. Notes: COMPARATIVE TABLE OF PROHIBITED ACTS PROHIBITED ACTS OF A NEUTRAL STATE CONSEQUENCES ON THE CONSEQUENCES ON THE VESSEL CARGO 1. Carriage of Contraband Performance of Unneutral Service Exception: When the cargo consists of both contrabands and innocent goods. 2. Same as in Carriage of Contrabands . weight. Same as in Carriage of Contrabands confiscated/condemned If owned by a different owner - shall be confiscated IF: a) it consists of contrabands. volume and freight. If owned by a different person. it shall not be confiscated but it shall be released without compensation due to the delay of release and detention in the Prize Court.87 PUBLIC INTERNATIONAL LAW 2008 c. If owned by the owner of the vessel. or b) the owner knew that the goods shipped is going to a blockaded point and is going to be blockaded. it shall be confiscated (Doctrine of Infection). May the Commission on Human Rights order the Mayor to stop the implementation of the Executive Order? Explain. If owned by the owner of the vessel - 2. Breach of Blockade Confiscated or brought to a prize court General Rule: Shall be confiscated and seized. Contraband cargo: confiscated. it (vessel) may only be confiscated if the contraband cargo is more than ½ of the total cargo by value.

vs. Assume that in July 2005.R. MARCOS. MARCOS. FERDINAND E. Assume that the extradition request was made after the Philippines adopted its anti-hacker legislation. in return. Is the Philippines under an obligation to extradite Lawrence? State the applicable rule and its rationale. 152154 July 15. the Philippines adopted its own anti-hacker law. However. and often suffered from severe beatings and venereal diseases. received war reparations and. February 07. petitioner. Lawrence is a Filipino computer expert based in Manila who invented a virus that destroys all the files stored in a computer. MARIA IMELDA [IMEE] MARCOS-MANOTOC. b. c. and not by the Japanese military." a.2007 BAR. under the 1951 San Francisco Peace Agreement -the legal instrument that ended the state of war between Japan and the Allied Forces -all the injured states. Name at least one basic principle or norm of international humanitarian law that was violated by the Japanese military in the treatment of the "comfort women. HONORABLE SANDIGANBAYAN (SPECIAL FIRST DIVISION). FERDINAND R. There were many Filipina "comfort women. The Japanese government contends that the "comfort stations" were run as "onsite military brothels" (or prostitution houses) by private operators. Will that change your answer? 2007 BAR. this virus spread all over the world and caused $50 million in damage to property in the United States. In 1993. to strengthen existing sanctions already provided against damage to property. waived all claims against Japan arising from the war. MARCOS (REPRESENTED BY HIS ESTATE/HEIRS: IMELDA R. Will that case prosper? Today is Saturday. and that in June 2005." The surviving Filipina "comfort women" demand that the Japanese government apologize and pay them compensation. Is that a valid defense? The surviving Filipina "comfort women" sue the Japanese government for damages before Philippine courts. and eventually forced against their will to have sex with Japanese soldiers on a daily basis during the course of the war. No. b. These women were either abducted or lured by false promises of jobs as cooks or waitresses. Assume that in May 2005. historians confirmed that during World War II. "comfort women" were forced into serving the Japanese military. 2015 Republic of the Philippines SUPREME COURT Manila EN BANC G. a. JR . he was criminally charged before United States courts under their anti-hacker law. 2003 REPUBLIC OF THE PHILIPPINES. including the Philippines. The United States has requested the Philippines to extradite him to US courts under the RP-US Extradition Treaty.

Ferdinand E. granting petitioner's request for legal assistance. docketed as Civil Ca 0141 entitled Republic of the Philippines vs.S. 1995 for the approval of said agreements and for the enforcement thereof. Before the case was set for pre-trial. that the Three Hundred Fifty-six Million U. the petition sought the forfeiture of US$25 million and US$5 million in treasury notes which exceeded the Ma couple's salaries. Marcos. J. represented by his Estate/Heirs and Imelda R. 1. by virtue of the freeze order issued by the PCGG. cause the inventory of and distribute all as presumed to be owned by the Marcos family under the conditions contained therein.2 2.IRENE MARCOS-ARANETA) AND IMELDA ROMUALDEZ MARCOS. CORONA. Araneta and Ferdinand R.3 144 and 14-A. 7 Con declared the various deposits in the name of the enumerated foundations to be of illegal provenance and ordered that th . Irene M. al. Marcos. and (2) reinstate its earlier decision dated September 19. repres by the Office of the Solicitor General (OSG). 1993." The said decision of the Swiss Federal Supre affirmed the decision of Zurich District Attorney Peter Consandey. Manotoc. Ma filed their answer. (3) Trinidad-Rayby-Palmy Foundation accounts. respondents Imelda R. dollars (US$356 million) belongs in principl Republic of the Philippines provided certain conditionalities are met x x x. et.373. Maria Imelda M. other lawful income as well as income from legitimately acquired property.5 In said case. as ill-gotten wealth. now Bangko Sentral ng Pilipinas. petitioner Republic. Ferdinand E. 199 executed by the Marcos children and then PCGG Chairman Magtanggol Gunigundo for a global settlement of the assets Marcos family.60 as of January 31. respondents. Subsequently. On October 18.175. through the Presidential Commission on Good Government (PCGG). collate. BACKGROUND OF THE CASE On December 17. (4) Rosalys-Aguamina Foundation accounts and (5) Maler Foundation accounts. The funds were previously held following five account groups. The treasury notes are froze Central Bank of the Philippines. petitioner sought the declaration of the aggregate amount of US$356 million (now estimated to be more tha US$658 million inclusive of interest) deposited in escrow in the PNB. respondent Marcos children filed a motion dated December 7. Marco pursuant to RA 13791 in relation to Executive Order Nos. 1991. The General Agreement/Supplemental Agreements sought to identify. (2) Xandy-Wintrop: Charis-Scolari-Valamo-Spinus. 2002. 1990. 0141 entitled Republic of the Philippines vs. The aforementioned General Agree specified in one of its premises or "whereas clauses" the fact that petitioner "obtained a judgment from the Swiss Federa Tribunal on December 21.. Marcos. In addition. using various foreign foundations in certain Swiss banks: (1) Azio-Verso-Vibur Foundation accounts. filed a petition for forfeiture before the Sandiganbayan.: This is a petition for certiorari under Rule 65 of the Rules of Court seeking to (1) set aside the Resolution dated January issued by the Special First Division of the Sandiganbayan in Civil Case No.Avertina Foundation accounts. a General Agreement and the Supplemental Agreements 6 dated December 28. 2000 which forfeited in favor of pe Republic of the Philippines (Republic) the amount held in escrow in the Philippine National Bank (PNB) in the aggregate of US$658.

on March 10. 2000.8 Petitioner contended that. 1995. Respondent Mrs. Switzerland. 1996.frozen to await the final verdict in favor of the parties entitled to restitution. On March 24. Mrs. Resp Ferdinand. Marcos filed her opposition to the petitioner's motion for summary judgment. In a decision9 dated September 19. In 1998. upheld the ruling of the District Attorney of Zurich granting the request for the transfer of the funds. the funds were remitted to the Philippines in escrow.A. 1998 claiming she was not a party to the motion for approval o Compromise Agreement and that she owned 90% of the funds with the remaining 10% belonging to the Marcos estate. the Sandiganbayan granted petitioner's motion for summary judgment: . THU WARRANTING THE RENDITION OF SUMMARY JUDGMENT. 1379 ARE ADMITTED BY RESPONDENTS IN THEIR PLEADINGS AND O SUBMISSIONS MADE IN THE COURSE OF THE PROCEEDING. 1997. Subseque respondent Marcos children moved that the funds be placed in custodia legis because the deposit in escrow in the PNB allegedly in danger of dissipation by petitioner. 1998. 2000. The Sandiganbayan. 1997." Respondent Mrs. Marcos filed a manifestation on May 26. On October 18. filed another motion summary judgment pertaining to the forfeiture of the US$356 million. After several resettings. certain facts were established. in a decision dated December 10. II RESPONDENTS' ADMISSION MADE DURING THE PRE-TRIAL THAT THEY DO NOT HAVE ANY INTE OR OWNERSHIP OVER THE FUNDS SUBJECT OF THE ACTION FOR FORFEITURE TENDERS NO GENUINE ISSUE OR CONTROVERSY AS TO ANY MATERIAL FACT IN THE PRESENT ACTION. on August 10. Jr. Araneta and Ferdinand. a hearing on the motion for summary judgment was conducted. Respondent Mr Marcos filed her opposition thereto which was later adopted by respondents Mrs. Manotoc. petitioner filed with the District Attorney in Zurich. Mrs. which opposition was late adopted by her co-respondents Mrs. the Sandiganbayan denied petitioner's motion for summary judgment and/or on the pleadings on the ground that the motion to approve the compromise agreement "(took) precedence over the motio summary judgment. Manotoc. After the pre-trial and the issuance of the pre-trial order and supplemental pre-trial order dated October 28. granted t motion. On appeal by the Marcos Swiss Federal Supreme Court. the case was set for trial. Hearings were conducted by the Sandiganbayan on the motion to approve the General/Supplemental Agreements. The request was granted. In its resolution dated November 20. an additional request for immediate transfer of the deposits to an escrow account in the PNB. 1999 and Jan 2000. petitioner filed a motion for summary judgment and/or judgment on the pleadings. NO. Jr. Meanwhile. based on the following grounds: I THE ESSENTIAL FACTS WHICH WARRANT THE FORFEITURE OF THE FUNDS SUBJECT OF THE PETITION UNDER R. petitioner. warranting a summary judgment funds sought to be forfeited. was presented as witness for the purpose of establishing the partial implementation of said agreements. respectively. after the pre-trial conference. in its resolution dated September 8. Araneta and Ferdinand. 2000.

Jr. 10 Respondent Mrs. 2000 is reconsidered and set aside. 1379: A.12 Hence. MARCOS AS PUBLIC OFFIC BUT ALSO THE EXTENT OF THEIR SALARIES AS SUCH PUBLIC OFFICIALS. judgment is hereby rendered in favor of the Republic of the Philippines and against the respondents. In a resolution11 dated January 31. The basis for the forfeiture in favor of the government cannot be deemed to have been established and o judgment thereon. NO. Marcos filed a motion for reconsideration dated September 26. WHO UNDER T .544. The Motion for Summary Judgment is hereby granted. 2000 decision.95 as of August 31. the instant petition. in reversing its September 19. Subsequently. and t is now being set for further proceedings.A. The Swiss deposits which were transmitted to and now held in escrow at the PNB are deemed unlawfully acquired as ill-gotten wealth. Araneta filed a manifestation dated October 4. must also have been without basis. committed grave abuse of discretion amounting to lack or excess of jurisdiction considering that -I PETITIONER WAS ABLE TO PROVE ITS CASE IN ACCORDANCE WITH THE REQUISITES OF SECT AND 3 OF R. Manotoc and Ferd Jr. 2 together with the increments thereof forfeited in favor of the State. WHEREFORE. 2000. 2 decision. perforce. In filing the same. Mrs. thus denying pe motion for summary judgment: CONCLUSION In sum. petitioner filed its opposition thereto.CONCLUSION There is no issue of fact which calls for the presentation of evidence. filed their own motion for reconsideration dated October 5. MARCOS AND IMELDA R. the Sandiganbayan reversed its September 19. the decision of this Court dated September 19. the evidence offered for summary judgment of the case did not prove that the money in the Swiss belonged to the Marcos spouses because no legal proof exists in the record as to the ownership by the M of the funds in escrow from the Swiss Banks. Mrs. adopting the motion for reconsideration of Mrs. 2002. petitioner argues that the Sandiganbayan. declaring the Swiss deposits which were transferred to and now deposited in escrow at the Philippine National Bank in the total aggregate value equivalent to US$627. Likewise. Mrs. Marcos.608. Manotoc and Ferdinand. PRIVATE RESPONDENTS CATEGORICALLY ADMITTED NOT ONLY THE PERSONAL CIRCUMSTANCES OF FERDINAND E. DISPOSITION WHEREFORE. 2000.

C. WERE PROHIBITED FROM ENGAGING IN THE MANAGEMENT OF FOUND B. PRIVATE RESPONDENTS ABANDONED THEIR SHAM DEFENSE OF LEGITIMATE ACQUISITION. ADMISSION IN THE GENERAL / SUPPLEMENTAL AGREEMENTS THEY SIGNED AN SOUGHT TO IMPLEMENT. IN SUBSEQUENTLY DISCLAIMING OWNERSHIP OF THE SWISS DEPOSITS.CONSTITUTION. D. MARCO IN THE MOTION TO PLACE THE RES IN CUSTODIA LEGIS. ADMISSION IN A MANIFESTATION OF PRIVATE RESPONDENT IMELDA R.000. 3.000. MARCOS AS PUBLIC OFFICIALS. 1999 WHEN IT DENIED THE MOTIO RELEASE ONE HUNDRED FIFTY MILLION US DOLLARS ($150. ADMISSIONS IN PRIVATE RESPONDENTS' ANSWER. ADMISSION IN THE UNDERTAKING TO PAY THE HUMAN RIGHTS VICTIMS. AND B. 2. AND 4. II SUMMARY JUDGMENT IS PROPER SINCE PRIVATE RESPONDENTS HAVE NOT RAISED ANY GEN ISSUE OF FACT CONSIDERING THAT: A. PRIVATE RESPONDENTS' DEFENSE THAT SWISS DEPOSITS WERE LAWFULLY ACQUIR DOES NOT ONLY FAIL TO TENDER AN ISSUE BUT IS CLEARLY A SHAM. PETITIONER HAS ESTABLISHED A PRIMA FACIE PRESUMPTION OF UNLAWFULLY ACQU WEALTH. PRIVATE RESPONDENTS ALSO ADMITTED THE EXISTENCE OF THE SWISS DEPOSITS THEIR OWNERSHIP THEREOF: 1. IV THE HONORABLE PRESIDING JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION IN REVERS HIMSELF ON THE GROUND THAT ORIGINAL COPIES OF THE AUTHENTICATED SWISS DECISIONS THEIR "AUTHENTICATED TRANSLATIONS" HAVE NOT BEEN SUBMITTED TO THE COURT. PETITIONER HAS PROVED THE EXTENT OF THE LEGITIMATE INCOME OF FERDINAND MARCOS AND IMELDA R. AND FURTHER JUSTIFIED THE RENDITION OF A SUMMARY JUDGMENT. V . III THE FOREIGN FOUNDATIONS NEED NOT BE IMPLEADED.00) TO THE HUMAN RIGHTS VICTIMS. WHEN E THE SANDIGANBAYAN HAS QUOTED EXTENSIVELY A PORTION OF THE TRANSLATION OF ONE O THESE SWISS DECISIONS IN HIS "PONENCIA" DATED JULY 29.

Marcos asserts that the petition should be denied on the following grounds: A. IT ALREADY BARRED FROM DOING SO. this particular issue relating to the translation Swiss court decisions could not be resurrected anymore because said decisions had been previously utilized by the Sandiganbayan itself in resolving a "decisive issue" before it. accuracy and admissibility of the Swiss decisions ever challenged. Since petitioner has a speedy and adequate remedy. Jr. Mrs.. AND ADEQUATE REMEDY AT THE SANDIGANBAYAN. Marcos. (1) The Motion for Summary Judgment was based on private respondents' Answer and other documents long been in the records of the case. estoppel laches had already set in against petitioner. Jr. Thus. the comment of Mrs. in their comment. B. Manotoc and Ferdinand. to proceed to trial and submit authenticated translations of the Swiss decisions. Corollarily. In compliance with the order of this Court. asserts that nowhere in the respondents' motions for reconsideration and supplemental motion fo reconsideration were the authenticity. in the main. its before this Court must be dismissed.PRIVATE RESPONDENTS ARE DEEMED TO HAVE WAIVED THEIR OBJECTION TO THE AUTHENTIC THE SWISS FEDERAL SUPREME COURT DECISIONS.14 Mrs. Mrs. THE SANDIGANBAYAN DID NOT ABUSE ITS DISCRETION IN SETTING THE CASE FOR FURTHER PROCEEDINGS. Marcos contends that petitioner has a plain. petitioner now elevates the matter to this Court. Likewise. 2000 directing petitioner to submit the authenticated translations of th decisions. After several m for extension which were all granted. Manotoc and Ferdinand. Furthermore. Petitioner faults the Sandiganbayan for questioning the non-production of the authenticated translations of the Swiss Fed Supreme Court decisions as this was a marginal and technical matter that did not diminish by any measure the conclusiv and strength of what had been proven and admitted before the Sandiganbayan. that the funds deposited by the M constituted ill-gotten wealth and thus belonged to the Filipino people. According to Mrs. Otherwise state incorrect for the Sandiganbayan to use the issue of lack of authenticated translations of the decisions of the Swiss Feder Supreme Court as the basis for reversing itself because respondents themselves never raised this issue in their motions reconsideration and supplemental motion for reconsideration. SPEEDY. Mrs. that is. speedy and adequate remedy in the ordinary course of law in view of th resolution of the Sandiganbayan dated January 31. prayed for the dismissal of the petition on the grounds that (A) BY THE TIME PETITIONER FILED ITS MOTION FOR SUMMARY JUDGMENT ON 10 MARCH 2000. and the separate comment of Mrs Araneta were filed on May 27. PETITIONER HAS A PLAIN. 2002. by the time the Motion was filed on 10 March 2000.13 Petitioner. . the Sandiganbayan's ruling to set the case for further proceedings cann should not be considered a capricious and whimsical exercise of judgment. Instead of availing of said remedy. that is. petition for certiorari which does not comply with the requirements of the rules may be dismissed. 2002. Marcos filed her comment to the petition on May 22.

the General and Supplemental Agreements. (D) SINCE PETITIONER HAS NOT (YET) PROVEN ALL THE ESSENTIAL ELEMENTS TO ESTABLISH A P FACIE CASE FOR FORFEITURE. it clearly waive whatever right it had to move for summary judgment. THE SANDIGANBAYAN IS CORRECT IN RULING THAT PETITIONER HAS N ESTABLISHED A PRIMA FACIE CASE FOR THE FORFEITURE OF THE SWISS FUNDS. and approximate amount of the property which the Marcos couple alleged "acquired during their incumbency". R. the inescapable conclusion is that the prima facie presumption of unlawful acquisiti Swiss funds has not yet attached. 1379 with to the identification.16 and (e)1 Section 3. (2) Had petitioner bothered to weigh the alleged admissions together with the other statements on record would be a demonstrable showing that no such "judicial admissions" were made by private respondents. (1) Republic Act No. (1) Under Section 27.A.A. (b) Even assuming. are mandatory in nature. (C) IT WAS ONLY BY ARBITRARILY ISOLATING AND THEN TAKING CERTAIN STATEMENTS MADE BY P RESPONDENTS OUT OF CONTEXT THAT PETITIONER WAS ABLE TO TREAT THESE AS "JUDICIAL ADMISSIONS" SUFFICIENT TO ESTABLISH A PRIMA FACIE AND THEREAFTER A CONCLUSIVE CAS JUSTIFY THE FORFEITURE OF THE SWISS FUNDS. 1379. be no premature forfeiture of the funds. (3) In contravention of the essential element stated in Section 3 (e) of R. therefore.(2) By its positive acts and express admissions prior to filing the Motion for Summary Judgment on 10 Ma 1990. petition categorically admitted that it has no evidence showing how much of the Swiss funds was acquire the incumbency" of the Marcos couple from 31 December 1965 to 25 February 1986.A. (2) Petitioner has failed to establish the third and fourth essential elements in Section 3 of R. Thus. (B) EVEN ASSUMING THAT PETITIONER WAS NOT LEGALLY BARRED FROM FILING THE MOTION FO SUMMARY JUDGMENT. (a) Petitioner has failed to prove that the Marcos couple "acquired" or own the Swiss funds. Rule 130 of the Rules of Court. 1379. ownership. is a penal statute. as we other written and testimonial statements submitted in relation thereto. that the fact of acquisition has been proven. are expressly barred from being ad in evidence against private respondents. petitioner has fa establish the other proper earnings and income from legitimately acquired property of the Marcos over and above their government salaries. AND PRIVATE RESPONDENTS HAVE NOT MADE ANY JUDICIAL . particularly the e elements stated in section 3 thereof. 1379. (4) Since petitioner failed to prove the three essential elements provided in paragraphs (c) 15 (d). These should be strictly construed against petitioner and liberally in favor of private respondents. the applicable law. for the sake of argument. As such. petitioner had legally bound itself to go to trial on the basis of existing issues. its provisions. There can.

including the takeover or sequestration of all business enterprises and entities owned or controlled them during his administration. Normally. their relatives. in her comment to the petition. authority. not mere legalisms or perfection of form.ADMISSION THAT WOULD HAVE FREED IT FROM ITS BURDEN OF PROOF. THEREFORE. She says the authenticated official English ve the Swiss Court decisions should be presented. Almo decades have passed since the government initiated its search for and reversion of such ill-gotten wealth definitive resolution of such cases on the merits is thus long overdue. the very first Executive Order (EO) issued by then President Corazon Aquino upon her assumption to office after th of the Marcoses was EO No. ESPECIALLY AS THIS COURT IS NOT A TRIER OF FAC For her part. let it be brought out now. we would like to stress that we are treating this case as an exception to the general rule governing petition certiorari. 20 But whe case is undeniably ingrained with immense public interest. his immediate family.the national coffers were emp nearly so. free from all the delaying technicalities annoying procedural sidetracks. are irrelevant and impertinent as far as this C concerned. not Rule 65. claims that obviously petitioner is unable to comply with a very requirement of respondent Sandiganbayan. THE SANDIGANBAYAN NOT COMMIT GRAVE ABUSE OF DISCRETION IN DENYING THE MOTION FOR SUMMARY JUDGME CERTIORARI. This should stop all speculations on what indeed is contained therein. the question regarding the propriety of petitioner Republic's ac certiorari under Rule 6519 of the 1997 Rules of Civil Procedure assailing the Sandiganbayan Resolution dated January 21 should be threshed out. Marcos. in elaborated fa are impertinent and improper before this Court. by taking undue advantage of their public office and/or usin powers. fraud or illicit conduct. it was attended by "great expectations". Lobregat22: surely x x x an enterprise "of great pith and moment". If there is proof of illegal acquisition accumulation." The urgency of this undertaking was tersely described by this C Republic vs. Marcos. It created the Presidential Commission on Good Governm (PCGG) and charged it with the task of assisting the President in the "recovery of all ill-gotten wealth accumulated by for President Ferdinand E. Araneta prays that the petition be denied for lack of merit and for raising matters which. At the outset. To respondent Mrs. Let the ownership of the and other assets be finally determined and resolved with dispatch. misappropriation. influence.23 . In all the alleged ill-gotten wealth cases filed by the PCGG. Araneta. directly or through nominees. public policy and deep historical repercussions. friends and business asso Thus. it was initia only out of considerations of simple justice but also out of sheer necessity . PROPRIETY OF PETITIONER'S ACTION FOR CERTIORARI But before this Court discusses the more relevant issues. 1986. Ferdinand E. is and incidents which should be properly threshed out at the Sandiganbayan. whether located in th Philippines or abroad. Respondent Mrs. all other matter that pertaining to the authentication of the translated Swiss Court decisions. Araneta. certiorari is al notwithstanding the existence and availability of the remedy of appeal. DOES NOT LIE. should now be relentlessly and firmly pursued. Araneta manifests that she is as eager as respondent Sandiganbayan or any interested pe have the Swiss Court decisions officially translated in our known language. But substantial justice to the Filipino people and to all parti concerned. 21 One of the foremost concerns of the Aquino Government in February 1986 was the recovery of the unexplained or ill-got wealth reputedly amassed by former President and Mrs. connections or relationship. issued on February 28. subordinates and close associates. The instant petition is allegedly an attempt to elevate to this Court matters. decisions of the Sandiganbayan are brought before this Court under Rule 45. This Court prefers to have such cas resolved on the merits at the Sandiganbayan. 1. relatives. Th respondent Mrs. Mrs. this Court has seen fit to set aside technicaliti formalities that merely serve to delay or impede judicious resolution.

and (2) whether or not petitioner Republic was able to prove its case fo forfeiture in accordance with Sections 2 and 3 of RA 1379. Thus. 26 The theory of summary judgment is that. Respondent Imelda Romualdez Marcos (Imelda. summary judgment should take place as a matter of right. depositions or admissions that those issues are not genuine but sham or fictitious.A party seeking to recover upon a claim. supported by affidavits. 1986.We thus take cognizance of this case and settle with finality all the issues therein. Senate President and President of the Republic of the Philippines from December 31. depo or other documents. or claim or to obtain a declaratory relief may. the Court is justified in disp with the trial and rendering summary judgment for petitioner Republic. Senator. Marcos (now deceased and represented by his Estate/Heirs) was a public o several decades continuously and without interruption as Congressman. P100. Estenzo 24. summary judgment was described as a judgment which a court may render be but after both parties have pleaded.. She likewise served once as a member of the Interim Batas Pambansa during the early years of martial law from 1978 to 1984 and as Metro Manila Governor in conc capacity as Minister of Human Settlements. if it is demonstrate affidavits. (1) THE PROPRIETY OF SUMMARY JUDGMENT We hold that respondent Marcoses failed to raise any genuine issue of fact in their pleadings.000 a year. 1965 up to his ouster by direct action of t people of EDSA on February 22-25. Summary judgment is sanctioned in this jurisdiction by Section 1.000 a year and from 1 1985. Rule 35 of the Rules of Civil Procedure: SECTION 1. At the outset. depositions or other documents. occupied the position of Minister of Human Settlements from June 1976 up to peaceful revolution in February 22-25. with notice upon the adverse party who may in turn file an opposition supported also by affidavits. Imelda R. counterclaim. however. Respondent Ferdinand E. while that of the former First Lady. depositions or admissions for a summary judgment in his favor upon all o part thereof. for short) the former First Lady who ruled with FM du 14-year martial law regime. In the early case of Auman vs. The Solicitor General made a very thorough presentation of its case for forfeiture: xxx 4. as Minister of Human Settl .25 Summary judgment is proper when there is clearly no genuine issue as to any material fact in the action. Summary judgment for claimant. 1986. at any time after the pleading in answer thereto has been serv move with supporting affidavits. 5. x x x xxx xxx xxx 11. It is ordered by the court upon application by one party. although an answer may on its face appear to tender issues requiring trial. This is after the court summarily hears both parties with their respective proofs and find there is no genuine issue between them. Marcos. ISSUES BEFORE THIS COURT The crucial issues which this Court must resolve are: (1) whether or not respondents raised any genuine issue of fact wh would either justify or negate summary judgment. it must be pointed out that based on the Official Report of the Minister of Budg total salaries of former President Marcos as President form 1966 to 1976 was P60. on motion of petition Republic.

16. Inc.00 or US$2.71% Farm Income - 149.00 in reported income from legal practice.442. 13.420.408. Schedule B: Schedule of Income Tax Paid (Annex "T-1" hereof).581. reported salaries and allowances only for the years 1979 to 1984 in the amount of P1. Schedule C: Schedule of Net Disposable Income (Annex "T-2" hereof).325.000 a year xxx.00 . Schedule D: Schedule of Networth Analysis (Annex "T-3" hereof).00 - . The sources of income are follows: Official Salaries - P 2. 1365-055-1.649. 14.000.109.836. As summarized in Schedule A (Annex "T" hereof).700.627.191. the returns were filed under Tax Identificatio 6221-J 1117-A-9. the Marcoses reported P16.00 or 96% .408.00% 15. Based on available documents.from June 1976 to February 22-25. On the other hand.37% Total P16..93 and P1. National Food Authority Counci Rail Transit Authority and Home Development Mutual Fund.100.91% Others - 2.00 - 67. Of the P11.836. ANALYSIS OF RESPONDENTS LEGITIMATE INCOME xxx 12.414.00 - 16. The re indicate that the reported income came from her salary from the Ministry of Human Settlements and allow from Food Terminal.521.91 in total income over a period of 20 years from 1965 to 1984. National Home Mortgage Finance Corporation. FM's official salary pertains to his compensation as Senate President in 1965 in the amount of P15.484.00. the amount of P10. For the years 1976 until 1984.646.836.442. The data contained in the ITRs and Balance Sheet filed by the "Marcoses are summarized and attach the reports in the following schedules: Schedule A: Schedule of Income (Annex "T" hereof).109.01% Legal Practice - 11. the ITRs of the Marcoses for the years 1965-1975 were filed under T Identification No. 1986 was P75.00 as President of the Philippines during the period 1966 until 1984.00 - 15.

4A.220. In Schedule B. 19. The Marcoses paid income taxes totaling P8. incredibly. they did not find any records involving the tax transactions of sp Ferdinand and Imelda in Revenue Region No. 1965. Spouses Ferdinand and Imelda did not declare any income from any deposits and placements which subject to a 5% withholding tax. 22.595.00 which represents 88% of the gross income. therefore.994.00 in December. As previously stated.00 as Other Income for the years 1972 up to 1976 which he referre his return as "Miscellaneous Items" and "Various Corporations. Finally.521. the networth analysis in Schedule D. In computing for the networth. Revenue No.77. 17. BIR attested that no records were found on any filing of capital gains tax return involving s FM and Imelda covering the years 1960 to 1965. There are no documents showing withholding tax certificates.845. depending upon the inco earned or loss incurred. indicates an ending networth of P120. the net cumulative disposable income amounts to P6.00 or US$1. Respondent's Balance Sheet attached to their 1965 ITR.748. 18. 1.59. fronts .233.00 or US$980. taxes and licenses.325. Manila. Computations establish the total networth of spouses Ferdinand and Imelda.000. Likewise.756. for years 1965 until 1984 in the total amount of US$957. Baguio City. represents the total accumulated networth of spouses. conceal the skeletons of their kleptocracy." There is no indication of any payor of the dividends or earnings. FM made it appear that he had an extremely profitable legal practice before he became a Presiden being barred by law from practicing his law profession during his entire presidency) and that.301. 21. Revenue Region No. The following presentation very clearly and overwhelmingly show in detail how both respondents clandestinely stashed away the country's wealth to Switzerland and hid the same under layers upon laye foundations and other corporate entities to prevent its detection. Ferdinand and Imelda. Further.000.667. the amount that represents that portion of the Marcoses income that is free for consumption. The total deductions in the amount of P1. there is nothing on record that will show any known Marcos client a no known law office.00 represents 12% of the total gross income.463. postage. U approach.487. The Bureau of Internal Revenue attested that after a diligent search of pe records on file with the Records Division. his networth was a mere P120. Likewise. stationeries and contributions while the other deductions in the amount of P567.09 represents interest charges. as well as the tax-exempt salary of the President for the years 1966 1972.00 which FM de as Library and Miscellaneous assets.65-M that he decided to later recognize as income.75. Through their dummies/nominees. Quezon City and Revenue No. as the case may be. Leyte. THE SECRET MARCOS DEPOSITS IN SWISS BANKS 23. In Schedule C.296. medicare fees. the Office of the Revenue Collecto Batac. the taxable reported income over the twenty-year period was P14. The amount is arrived at by adding back to the net income after tax the personal and additio exemptions for the years 1965-1984. The income tax returns of FM and Imelda cannot. 4B1. 20. the beginning capital is increased or decreased. 8. G. covering the year immed preceding their ascendancy to the presidency. Tacloban.709. h still receiving payments almost 20 years after. In the guise of reporting income using the cash method under Section 38 of the National Internal Rev Code. FM reported a total of P2. The only problem is that in his Balance Sheet attached to h ITR immediately preceeding his ascendancy to the presidency he did not show any Receivables from clie much less the P10. the income approach was utilized.represents "receivables from prior years" during the period 1967 up to 1984. The business expenses in the amount of P861. assuming the income from legal practice is valid x x x.00 represent expenses incurred fo subscription. savings and investments.

they opened and maintained numerous bank accounts. Apparently. In an undated instrument. On March 11. Benedicto empowering him to transact business in behalf of the said foundation. Marcos changed the first and sole beneficiary to CHARIS FOUNDATION. with balances amounting to about $356-M with a reservation for the filing of a suppleme separate forfeiture complaint should the need arise. also known as Swiss Credit Bank. H. XANDY-WINTROP: CHARIS-SCOLARI- . In an apparent maneuver to bury further the secret deposits beneath the thick layers of corporate ent effected the establishment of VIBUR FOUNDATION on May 13. On June 11. was second beneficiary. Marcos executed a power of attorney in favor of Roberto S. T change was recorded on December 4. 1981 with that of VIBUR FOUN as of December 31. But due to the difficulty if not the impossibility of detecting and documenting all those secret ac as well as the enormity of the deposits therein hidden. 1986. FM again issued another written order naming Austrahil PTY Ltd. 469857 totaled $3.597. 1981. 1981. Zuric the General Account No. The Board of remained the same. Walter Fessler and Ernst Scheller. 29. However. Another document signed by G. As of December 31. the Marcos-designated Board of Trustees decided to liquidate VIBUR FOUNDAT notice of such liquidation was sent to the Office of the Public Register on March 21. Pursuant to the said Marcos mand AZIO Foundation was formed on June 21. 1986. also of SKA Service.00 I. The beneficial owner was not made to the bank since Fides Trust Company acted as fiduciary. 28. 26. 1981. One of the latest documents ob by the PCGG from the Swiss authorities is a declaration signed by Dr. comparison of the listing of the secu the safe deposit register of the VERSO FOUNDATION as of February 27. 1971. 1981 readily reveals that exactly the same securities were listed. the balance of the bank accounts of VIBUR FOUNDATION with SKA. Ferdinand Marcos was named first beneficiary and the Marcos Foundation. Ivo Beck (the trustee) stating that t beneficial owner of VIBUR FOUNDATION is Ferdinand E. the following presentation is confined to five identi accounts groups. as the foundation's first and sole beneficiary. Theo Bertheau. Ferdinand Marcos issued a written order to Dr. a wholly-owned subsidiary of Fides Trust. it is certain that the VIBUR FOUNDATION is the beneficial succe VERSO FOUNDATION. 1971. 27. Atty. the AZIO FOUNDATION was renamed to VERSO FOUNDATION. legal counsel of Schweizeresche Kreditanstalt or SKA. In Australia. Under the foregoing circumstances. 1978.544. the b accounts and respective balances of the said VIBUR FOUNDATION remained with SKA. 1989. 1971. 1981 in Vaduz. 1971 in Vaduz. 25. Inc. Marcos issued a written directive to liquidated VERSO FOUNDA and to transfer all its assets to account of FIDES TRUST COMPANY at Bank Hofman in Zurich under the "Reference OSER. On November 12. 1972.agents who formed those foundations or corporate entities. However." The Board of Trustees decided to dissolve the foundation on June 25. were designated as members of the Board of Tr The account was officially opened with SKA on September 10. THE AZIO-VERSO-VIBUR FOUNDATION ACCOUNTS 24. Helmuth Merling from Schaan were designated as members of the Board of Trustees of foundation. for him to establish the AZIO Foundation. Ivo Beck and Limag Management. On August 29. the liquidation was an attempt by the Marcoses to transfer the foundation's funds to another account or bank was prevented by the timely freeze order issued by the Swiss authorities. This was recorded on December 14. Marcos. On the same date. On March 18. and Dr. Rabe shows that VIBUR FOUNDATION is owned by the "Marcos Familie" 30.

Found among the voluminous documents in Malacañang shortly after they Hawaii in haste that fateful night of February 25. which started with the CHARIS FOUNDATION. Under the caption "signature(s)" Ferdinand and Imelda sign real names as well as their respective aliases underneath.00.Under the circumstances. Later. This is the most intricate and complicated account group. Jr. 36. acted as fiduciary. 1980.VALAMO-SPINUS-AVERTINA FOUNDATION ACCOUNTS 31. Ferdinand. the Marcos spouses were named the first benefici the surviving spouse as the second beneficiary and the Marcos children – Imee. The other groups of foundations that eventually joined AVERTINA were also established by FM throug dummies. However. P Ritter. These accounts were actively operated and maintained by the Marcoses for about two (2) years until their closure sometime in February. Mrs. 1970 and th balances transferred to XANDY FOUNDATION. were the same as those listed in the register of AVERTINA FOUNDATION Category CAR as of Decembe 1981. . On March 10. Marcos opened bank accounts with SKA an alias or pseudonym WILLIAM SAUNDERS. apparently to hide his true identity. Likewise. 33. 1968. it is certain that the beneficial successor of WINTROP FOUNDATION is AVERTINA FOUNDATION. Another document signed by G. The balance of Category CAR as of December 31. C. 1970 in Vaduz.190. Fessler. Ferdinand and Imelda Marcos issued a written order to the Board of Wintrop t liquidate the foundation and transfer all its assets to Bank Hofmann in Zurich in favor of FIDES TRUST COMPANY. t securities listed in the safe deposit register of WINTROP FOUNDATION Category R as of December 31. JANE RYAN. Imelda Marcos also opened her own bank accounts with the same bank using an Am sounding alias. on March 27. March 2 his First Lady. In the handwritten Regulations signed by the Marcos couple as well as in the type-written Regulatio signed by Markus Geel both dated February 13. 1981. namely: CAR and NES. 35. 1981 in Vaduz with Atty.894. The AVERTINA FOUNDATION was established on May 13. Souviron was replaced by Dr. Ivo Beck and Lim Management. However. 1978. Souviron a Scheller were named as members of the Board of Trustees. As the Flow Chart hereof shows. 1989 amounted to US$231. The XANDY FOUNDATION was renamed WINTROP FOUNDATION on August 29. C. T account categories.00 while that of Category NES as of 12-31-83 was US$8. were accomplished forms for "Declaration/Specim Signatures" submitted by the Marcos couple. FM and Imelda issued the written mandate to establish the foundation to Markus Geel of SKA on Mar 1970. On March 20.. WINTROP FOUNDATION was dissolved. Raber of SKA indicates th Avertina Foundation is owned by the "Marcos Families. 1980 were the same as those listed in the register of Avertina Category NES as of Decem 1981. 1986. Latest documents received from Swiss authorities included a declaration signed by IVO Beck stating that the beneficial own AVERTINA FOUNDATION are FM and Imelda.366. The beneficial owner AVERTINA was not made known to the bank since the FIDES TRUST CO. The Board Trustees remained the same at the outset. The next day. 1970. 34. 1981. The XANDY FOUNDATION was established on March 3." 37. a wholly-owned subsidiary of FIDES TRUST CO.W. two (2) gro under the foundation organized by Marcos dummies/nominees for FM's benefit. the securities listed in the safe deposit register of WINTROP FOUNDATION Category S December 31. 32. after his second year in the presidency. eventually joined togethe became one (1) account group under the AVERTINA FOUNDATION for the benefit of both FM and Imeld the biggest group from where the $50-M investment fund of the Marcoses was drawn when they bought t Central Bank's dollar-denominated treasury notes with high-yielding interests. as members of the Board of Trustees.647. (Bongbon Irene – as equal third beneficiaries. were opened on September 10.

40 The SPINUS FOUNDATION was established on May 13. Imelda issued a written mandate to establish the foundation to Markus Geel on August 26. Imelda was named the first beneficiary and her children Imelda (Im Ferdinand. 1981. Theo Bertheau to establish the foundatio note that the foundation's capitalization as well as the cost of establishing it be debited against the accou Trinidad Foundation. However. 1971. 1982 show the securities of Spinus were transferred to Avertina. Moreover. 41. On December 13. 1981 FM ordered in writing that the Valamo Foundation be liquidated and all its asse transferred to Bank Hofmann. On March 11. acted as fiduciary. In July/August. 1981 in Vaduz with Dr. 43. thus the establishment of Rayby Foundation. 1981 and was liquidated on August 3. On March 10. as members of the Foundation's Board of D The account was officially opened with SKA on September 10. 1980 are practically the same with those listed safe deposit register of Spinus Foundation as of December 31. Imelda issued a written order to transfer all the a Rayby Foundation to Trinidad Foundation and to subsequently liquidate Rayby. as members of the Foundation's Board of Dir The account was officially opened with the SKA on September 10. 1988. 1981. 1981. Ivo Beck and Limag Management. On September 6. 1981. Jr. AG in favor of Fides Trust Company under the account "Reference OMAL" Board of Directors decided on the immediate dissolution of Valamo Foundation on June 25. 1970 in Vaduz with C. she is written order to the board of Trinidad to dissolve the foundation and transfer all its assets to Bank Hofman favor of Fides Trust Co. Rayby Foundation was established on June 22. a wholly-owned subsidiary of Fides Trust Co. 1981.. Charis Foundation was renamed Scolari Foundation but the directors remain same. The beneficial owner of the foundat not made known to the bank since Fides Trust Co. it is certa the Spinus Foundation is the beneficial successor of the Valamo Foundation. The beneficial owner was not m known to the bank since Fides Trust Co. act founding director in behalf of FM by virtue of the mandate and agreement dated November 12. (Bongbong) and. 1981 in Vaduz with Atty. Irene were named as equal second beneficiaries. 1970. Otto Tondury as the foundation's directors.38. The Trinidad Foundation was organized on August 26. 1971 and the Regulations.W. Theo Bertheau. Fessler and E. SKA legal counsel. Ho transfer of assets never took place. However. 1982 with the safe deposit slips of the Avertina Foundation Category CAR as of August 19. Imelda apparently had the intention in 1973 to transfer the assets of Trinidad Foundation to another foundation. Scheller and Ritter as me of the board of directors. Peter Ritter were named as directors. 1972 to act in his behalf with regard to Charis Foundation. 1982." Rayby was dissolved on April 6. Under the circumstances. FM gave a power of attorney to Roberto S Benedicto on February 15. 44. several transfers fr foundation's German marks and US dollar accounts were made to Avertina Category CAR totaling DM 29 and $58-M. Ivo Beck and Limag Management. 1982. there was a written instruction from Spinus Foundation to SKA to close its Sw Franc account and transfer the balance to Avertina Foundation. According to w information from SKA dated November 28. The CHARIS FOUNDATION was established in VADUZ on December 27. Imelda issued a written mandate to Dr. 1974. a comparison of the list of securities of the Spinus Foundation as of F 3. respectively. both dated Au 1970 were likewise signed by Imelda. Dr. when one compares the listing of s . acted as fiduciary. Schel SKA and Dr. the list of securities in the deposit register of Valamo Foundation as of December 31. a wholly-owned subsidiary of Fides Trust Co. 39. On the same date. Under the account "Reference Dido. Imelda was named the first and only beneficiary of Rayby foundation. Walter Fessler and E Scheller of SKA and Dr. TRINIDAD-RAYBY-PALMY FOUNDATION ACCOUNTS 42. 1981. 1973 in Vaduz with Fessler. 1971. The PALMY FOUNDATION was established on May 13. FM was named the first beneficiary and Xandy Foundation as second beneficiary in accordance with the han instructions of FM on November 12. The regulations as well as the agreement. J.

Geneva. Maler Foundation cancelled the power of for the management of its assets in favor of SBC and transferred such power to Sustrust Investment Co.1980 with that of the Palmy Found of December 31.432. of SBC. which the remaining 50% will be divided in equal parts am their children. 1989. FM remains the beneficiary of Agu Corporation Account No. Its Articles of Incorporation w executed on September 24. stating that all instructions to be transmitted with regard Maler will be signed with the word "JOHN LEWIS". 1971 and its By-Laws on October 3. However.214.00. Christinaz and R. Another Malacañang document dated October 19.L. Maler Establishment opened and maintained bank accounts with SBC. K. They further confirmed that no change of beneficial owner involved while transferring the assets of Rosalys to Aguamina. 1981. 48. Hence. 1985. the ending balance of the bank accounts of Palmy Foundation under Gene Account No. Rosalys Foundation was established in 1971 with FM as the beneficiary. Rossier. it is certain that the Palmy Foundation is the beneficial successor of the Trinidad Foundat 45. Latest documents received from Swiss Authorities included a declaration signed by Dr.in the safe deposit register of Trinidad Foundation as of December 31. Lik the attorneys were changed to Michael Amaudruz. It stated. Barbey and Mr. et. FM and Imel issued a letter addressed to Maler Establishment. Sunnier as authorized signatories.00. Geneva. Maler was first created as an establishment. 1971. The opening bank documents were signed by Dr. Under the circumstances. 1984. A statement of its rules and regulations was found amon Malacañang documents. 1991. Andre Barbey and Jean Louis Sunier as attorneys of the company and administrator and manager of all assets held by the company.1968 and signed by Ferdinand and Imeld pertains to the appointment of Dr. 53300. Another document signed by Raber shows that the s Palmy Foundation is owned by "Marcos Familie". The Marcos couple. This word will have the same value as the couple's ow personal signature. As of August 30. 391528 is $17. al. J. Geneva issued a declaration dated Septembe 1991 stating that the by-laws dated October 3. 1971 governing Rosalys Foundation was the same by-law to Aguamina Corporation Account No. L. Ivo Beck statin the beneficial owner of Palmy Foundation is Imelda. 1980. 53300. that 50% of the Company's assets will be for sole and f disposal of FM and Imelda during their lifetime. among others. administration of the assets was left t The articles of incorporation of Maler Foundation registered on November 17. 50. On the same date. On December 19. This foundation maintained sever accounts with Swiss Bank Corporation (SBC) under the general account 51960 where most of the bribe m from Japanese suppliers were hidden. also mentioned in the document that they bought the Maler Establishment from SBC.. one can clearly see that practically the same securities were listed. As of December 31. 53300 amounted to $80. 51. On November 17.566. The ownership by Aguamina Corporation of Accou 53300 is evidenced by an opening account documents from the bank. On February 28. 53300 with SBC.483. Rosalys Foundation was liquidated and all its assets were transferred to Agu Corporation's (Panama) Account No. The letter was signed by FM and Imelda in their signatures and as John Lewis. 46. . 1981 appear to be the sam articles applied to Maler Establishment. MALER FOUNDATION ACCOUNTS 49. respectively. the ending balance of Account No. it became necessary to transform Maler Establishment into a foundation. Firs President and Senior Vice President. ROSALYS-AGUAMINA FOUNDATION ACCOUNTS 47.

and ADMIT the rest. for being false. Respondents ADMIT paragraph 11 of the Petition.508 BT and 98. Respondents specifically DENY paragraph 16 of the Petition for lack of knowledge or information suff form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con the alleged ITRs. Manotoc. Respondents specifically DENY paragraph 17 of the Petition insofar as it attributes willful duplicity on of the late President Marcos. Metro Manila.278. Marcos.083. 53. Burgos Street.258. Irene M. Araneta and Ferdinand Marcos.195. respectively. Jr. the ending balance of Maler Foundation's Account Nos. Respondents ADMIT paragraphs 3 and 4 of the Petition. 11.000.. Respondents specifically DENY paragraph 14 of the Petition for lack of knowledge or information suff form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con the alleged ITRs. 14. 16. 15.52.567 and SG 16. xxx xxx xxx 10.00. 5. As of June 6. Marcos may be served with summons and other processes at No. All the five (5) group accounts in the over-all flow chart have a total balance of about Three Hundred F Million Dollars ($356. Respondents specifically DENY paragraph 15 of the Petition for lack of knowledge or information suff form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con the alleged ITRs. Respondents specifically DENY paragraph 12 of the Petition for lack of knowledge sufficient to form a as to the truth of the allegation since Respondents were not privy to the transactions and that they canno remember exactly the truth as to the matters alleged. This account was opened by Maler when it was still an establishment which was subsequently transformed into a foundation. 1980. 13. Respondents specifically DENY paragraph 13 of the Petition for lack of knowledge or information suff form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con the alleged ITRs and Balance Sheet. Respondents specifically deny paragraph 5 of the Petition in so far as it states that summons and othe processes may be served on Respondent Imelda R.00) as shown by Annex "R-5" hereto attached as integral part hereof. the following: xxx xxx xxx 4. 254.000. GM only until De 31. and specifically DENY the rest for lack of knowledge or information sufficient to form a to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alle . for a total of SF 25. 12. 1991. Marcos at the stated address the truth of the matter that Respondent Imelda R.825. Maria Imelda M. Makati. 10-B Bel A Condominium 5022 P.27 Respondents Imelda R. xxx x x x.929 N amount SF 9. in their answer. the same being pure conclusions based on pure assumption allegations of fact.

20. 24. 26. Marcos she specifically remembers th funds involved were lawfully acquired. 50. Upon careful perusal of the foregoing. except that as to Respondent Imelda R. 29 and 30 of the Petition for lack of kn or information sufficient to form a belief as to the truth of the allegation since Respondents were not privy transactions regarding the alleged Azio-Verso-Vibur Foundation accounts. Respondents specifically DENY paragraph 19 of the Petition for lack of knowledge or information suff form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con the alleged ITRs and that they are not privy to the activities of the BIR. 34. Marcos she specifically remembers that the funds involved were lawfully acquired. 18. Respondents specifically DENY paragraph 18 of the Petition for lack of knowledge or information suff form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con the alleged ITRs. Marcos she specifically remembers th funds involved were lawfully acquired. 36. 39. Respondents specifically DENY paragraphs 49. 32. Respondents specifically DENY paragraphs 42. 51 and 52. 35. 26.37. the Court finds that respondent Mrs. 21. Respondents specifically DENY paragraph 21 of the Petition for lack of knowledge or information suff form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con the alleged ITRs. except that as to Respondent Imelda R. 45. 38. except that as to Respondent Imelda R. the truth being that Respondents aforesaid properties were lawfully acquired. 22. Marcos and the Marcos children indubitably f . 27. of the Petition for lack of knowledge o information sufficient to form a belief as to the truth of the allegations since Respondents were not privy t transactions and as to such transaction they were privy to they cannot remember with exactitude the sam occurred a long time ago. 23. except that as to Respondent R. 28. and 41 of the Petitio lack of knowledge or information sufficient to form a belief as to the truth of the allegations since Respond not privy to the transactions and as to such transaction they were privy to they cannot remember with exa the same having occurred a long time ago. 40. and 46. 25. 33. Respondents specifically DENY paragraph 20 of the Petition for lack of knowledge or information suff form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con the alleged ITRs. 43. Marcos she specifica remembers that the funds involved were lawfully acquired. 17. Respondents specifically DENY paragraphs 31. 44. Respondents specifically DENY paragraph 23 insofar as it alleges that Respondents clandestinely sta the country's wealth in Switzerland and hid the same under layers and layers of foundation and corporate for being false. Respondents specifically DENY paragraph 22 of the Petition for lack of knowledge or information suff form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con the alleged ITRs. 25. Respondents specifically DENY paragraphs 24. 19.ITRs or the attachments thereto. of the Petition for lack of knowled information sufficient to form a belief as to the truth of the allegations since Respondents were not privy t transactions and as to such transaction they were privy to they cannot remember with exactitude the sam occurred a long time ago.

1999 of Mrs. A genuine issue is an issue of fact which calls for the presentation of evidence as distinguished from an issue which is fictitious and contrived." without stating the ba such assertions. Manotoc and Ferdinand. Marcos.28 The purpose of requiring respondents to make a specific denial is to make them disclose facts which will disprove the all ." and. 1993. Marcos and adopted by the Marcos children. Marcos and Memorandum dated December 17. Marcos. and Manifestat dated October 19. 1993. Marcos which the o respondents (Marcos children) adopted. An examination of the foregoing pleadings is in order. respondents failed to specifically deny each and every allegation contained in the petition for forfeiture in manner required by the rules. (g) Manifestation dated May 26. 2000 of Mrs. as to Mrs. he shall specify so much of it as is true and materia shall deny the remainder. Motion for Reconsiderati October 5. Respondent Marcoses' defenses were a sham and evidently calibrated to compound and confuse the issues. Where defendant desires to deny only a part of an averment. and Supplemental Motion for Reconside dated October 9. 1999 of Irene Marcos-Araneta adopting the pre-trial briefs of her co. 2000 filed by Mrs. and (h) General/Supplemental Agreement dated December 23. whene practicable. The following pleadings filed by respondent Marcoses are replete with indications of a spurious defense: (a) Respondents' Answer dated October 18.tender genuine issues in their answer to the petition for forfeiture.. Manotoc and Ferdinand. (f) Memorandum dated December 12.respondents. 2000 filed by Mrs. shall set forth the substance of the matters upon which he relies to support his denial. set up in bad faith or patently la substance so as not to constitute a genuine issue for trial. 1993. Respondents' defenses of "lack of knowledge for lack of privity "(inability to) recall because it happened a long time ago" or. 2000 Marcos children. Section 10. Where a defendant is without knowledge or information sufficient to form a beli the truth of a material averment made in the complaint. that "the funds were lawfully acq are fully insufficient to tender genuine issues. Marcos. • Respondents' Answer dated October 18. In their answer. Jr. Marcos. "the funds were lawfully acquired. 2000. on the part of Mrs. 2000 jointly filed by Mrs.. he shall so state. Rule 8 of the 1997 Rules of Civil Procedure. (d) Demurrer to Evidence dated May 2. Jr. and Mrs. (b) Pre-trial Brief dated October 4. Marcos. 2000 likewise jointly filed by Mrs. All they gave were stock answers like "they have no sufficient knowledge" or "they could n because it happened a long time ago. (c) Opposition to Motion for Summary Judgment dated March 21. Jr. filed by Mrs. Imee Marcos-Manotoc adopting the pre-trial brief of Mrs. and this shall have the effect of denial. (e) Motion for Reconsideration dated September 26. Supplemental Pre-trial Brief dated October 19. 1 Ferdinand. 1998. provides: A defendant must specify each material allegation of fact the truth of which he does not admit and.

Even in this case before us. with balances amounting to about $356-M with a reservation for the filing of a suppleme separate forfeiture complaint should the need arise. asks that justice be done upon the merits. Villamor. Respondents specifically DENY paragraph 23 insofar as it alleges that Respondents clandestinely sta the country's wealth in Switzerland and hid the same under layers and layers of foundations and corpora entities for being false. The question however. the truth being that Respondents' aforesaid properties were lawfully acquired. Court of Appeals. Respondent Marcoses should positively stated how it was that they were supposedly ignorant of the facts alleged. brushing aside as wholly trivial and indecisive imperfections of form and technicalities of procedure. despite the serious and specific allegations against them. the allegation of petitioner Republic in paragraph 23 of the petition for forfeiture stated: 23. the Marcoses responded by simply saying that they had knowledge or information sufficient to form a belief as to the truth of such allegations. Marcos. Simply put. this particular denial had the earmark of what is called in the law on pleadings as a negative pregnant. However. Respondents' denials in their answer at the Sandiganbayan were based on their alleged lack of knowledge or information sufficient to form a belief as to the truth of the allegations of the petition. more deeply schooled and skilled in the subtle art movement and position. 33 Evidently. performed or committed a particular act which the latter did not in fact do. they opened and maintained numerous bank accounts. Here. she failed to particularly state th ultimate facts surrounding the lawful manner or mode of acquisition of the subject funds. 31 To elucidate. she claimed that the funds were lawfully acquired. that inde funds were acquired legitimately by the Marcos family. Such a general. . But due to the difficulty if not the impossibility of detecting and documenting all those secret ac as well as the enormity of the deposits therein hidden. she merely stated in answer with the other respondents that the funds were "lawfully acquired" without detailing how exactly these funds were supposedly acquired legally by them. that is. entraps and destroys the other.30 this Court ruled that if an allegation directly and specifically charges a party w having done. th reducing the controversy to its true terms. 32 Respondents' lame denial of the aforesaid allegation was: 22. In Morales vs. Lawsuits duels. It is rather a contest in which each contending p and fairly lays before the court the facts in issue and then. Our jurisdiction adheres to this avoid and prevent unnecessary expenses and waste of time by compelling both parties to lay their cards on the table. are not to be won by a rapier's thrust. fronts agents who formed those foundations or corporate entities. As explained in Alonso vs. by the presentation of evidence at a hearing. We d think so. perform or commit. together with the matters they rely upon in support of such denial. a categorical express denial must be made. The following presentation very clearly and overwhelmingly show in detail how both respondents clandestinely stashed away the country's wealth to Switzerland and hid the same under layers upon laye foundations and other corporate entities to prevent its detection. her assertion that the funds were lawfully acquired rem bare and unaccompanied by any factual support which can prove. is whether the kind of denial in respondents' answer qualifies as the specific denial called for by the rules. It is true that one of the modes of specific denial under the rules is a denial through a statement that the defendant is with knowledge or information sufficient to form a belief as to the truth of the material averment in the complaint.of petitioner at the trial. self-serving claim ignorance of the facts alleged in the petition for forfeiture was insufficient to raise an issue. On the part of Mrs. the following presentation is confined to five identi accounts groups.29 A litigation is not a game of technicalities in which one. Through their dummies/nominees.

38. a negative pregnant is a form of negative expressio carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It was in an admission of the averments it was directed at. Respondents specifically DENY paragraphs 49.35 In the instant case. except as to respondent Imelda R. 36 By the same token. 28. 50. 25. she specifically remembers tha funds involved were lawfully acquired. Rule 8 of the 1997 Revised Rules on Civil Procedure: Material averment in the complaint. xxx shall be deemed admitted when not specifically denied. 1990. except that. 36. 26. Respondents specifically DENY paragraphs 42. 37. she specifically reme that the funds involved were lawfully acquired. 25. were deemed admitted by them pursuant to S 11. Respondents specifically DENY paragraphs 24. not having been specifically denied by respondents in their answer. The denial contained in paragraph 22 of the answer was focused on the averment in parag of the petition for forfeiture that "Respondents clandestinely stashed the country's wealth in Switzerland and hid the sam layers and layers of foundations and corporate entities. has been held that the qualifying circumstances al denied while the fact itself is admitted. 41 of the Petition fo knowledge or information sufficient to form a belief as to the truth of the allegations since respondents we privy to the transactions and as to such transactions they were privy to. 29 and 30 of the Petition for lack of kn or information sufficient to form a belief as to the truth of the allegation since respondents were not privy transactions regarding the alleged Azio-Verso-Vibur Foundation accounts. 32. they cannot remember with exactitude. the material allegations in paragraph 23 of the said petition were not specifically denied by responden paragraph 22 of their answer. 35." Paragraph 22 of the respondents' answer was thus a denial pre with admissions of the following substantial facts: (1) the Swiss bank deposits existed and (2) that the estimated sum thereof was US$356 million as of December. the sa having occurred a long time ago. 27. Marcos. they cannot remember with exac same having occurred a long time ago. Marcos. 34. Marcos. she specifically remem the funds involved were lawfully acquired. and 46 of the petition for lack of knowledge o information sufficient to from a belief as to the truth of the allegations since respondents were not privy to transactions and as to such transaction they were privy to. Where a fact is alleged with qualifying or modifying language a words of the allegation as so qualified or modified are literally denied. 45. xxx. the allegations in the petition for forfeiture on the existence of the Swiss bank deposits in the sum of about US million. as to respondent I R. 39. the following unsupported denials of respondents in their answer were pregnant with admissions of t substantial facts alleged in the Republic's petition for forfeiture: 23. except that as to respondent Imelda R. 51 and 52 of the petition for lack of knowledge an information sufficient to form a belief as to the truth of the allegations since respondents were not privy to transactions and as to such transaction they were privy to they cannot remember with exactitude the sam occurred a long time ago. Therefore. It is a denial pregnant admission of the substantial facts alleged in the pleading. The matters referred to in paragraphs 23 to 26 of the respondents' answer pertained to the creation of five groups of acc . 43. she specifically remembers that the funds involved were lawfully acquired. Marcos. 26.34 Stated otherwise.pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. Respondents specifically DENY paragraphs 31. 40. except that as to respondent Imelda R. 24. 33.

Marcos and Imelda R. it is equivalent to an admission. Nee Bon Sing. Marcos. their alleged ignorance or lack of information will not be considered a specific denial. Petitioner correctly points out that respondents' denial wa really grounded on lack of knowledge or information sufficient to form a belief but was based on lack of recollection. As held in Galofa vs. indicating that said documents were within their knowledge. Respondents' answer also technically admitted the genuineness and due execution of the Income Tax Ret (ITRs) and the balance sheets of the late Ferdinand E. Jr. unexplained denial of information within the control of the pleader. Ferdinand E.43 How could respondents therefore claim lack of sufficient knowledge or information regarding the existence of the Swiss b deposits and the creation of five groups of accounts when Mrs. respondents' denial of the allegations in the petition for forfeiture "for lack of knowledge or information sufficien a belief as to the truth of the allegations since respondents were not privy to the transactions" was just a pretense.well as their respective ending balances and attached documents alleged in paragraphs 24 to 52 of the Republic's petitio forfeiture. respondent Marcoses could have easily determined the genuineness and due execution of the ITRs a balance sheets. Marcos failed to specifically deny as required by the rules. As correctly pointed out by Sandiganbayan Justice Francisco Villaruz. By r their own records. Mrs. 5) changing the n the Foundations. Moreover. 2) use of pseudonyms and dummies. Marcos never specifically denied the existence of the Swiss funds. using th Foundations as dummies. Marcos attached to the petition for forfeitur well as the veracity of the contents thereof. When matters regarding which respondents claim to have no knowledge or information sufficient to form a belief are plai necessarily within their knowledge. They also had the means and opportunity of verifying the same from the records of the BIR and the Offic President. Marcos and her late husband personally masterminded a participated in the formation and control of said foundations? This is a fact respondent Marcoses were never able to exp Not only that. They did not. or is readily accessible to him. 6) transferring funds and assets of the Foundations to other Foundations or Fides Trust liquidation of the Foundations as substantiated by the Annexes U to U-168. Marcos and her late husband. nature and amount of the funds were therefore deemed admitted by them.45 . Her claim that "the f involved were lawfully acquired" was an acknowledgment on her part of the existence of said deposits. The allegations in paragraphs 4737 and 4838 of the petition for forfeiture referring to the creation and amount of the deposi Rosalys-Aguamina Foundation as well as the averment in paragraph 52-a 39 of the said petition with respect to the sum o Swiss bank deposits estimated to be US$356 million were again not specifically denied by respondents in their answer. T respondents did not at all respond to the issues raised in these paragraphs and the existence.40 if a defendant's denial is a negativ pregnant. M privity to the transactions was in fact evident from her signatures on some of the vital documents 41 attached to the petitio forfeiture which Mrs. is evasive and is insuff constitute an effective denial. This only reinforc earlier admission of the allegation in paragraph 23 of the petition for forfeiture regarding the existence of the US$356 mil Swiss bank deposits. 3) approving regulations of Foundations for the distribution of capital and income of the Foundations to the First and Second benefic are no other than FM and his family). Respondent Imelda R. in his dissenting opinion: The pattern of: 1) creating foundations. The answer again premised its denials of said ITRs and balance sheets on the ground of lack of knowledge or informatio sufficient to form a belief as to the truth of the contents thereof. Petition [for forfeiture] strongl indicate that FM and/or Imelda were the real owners of the assets deposited in the Swiss banks. 4) opening of bank accounts for the Foundations. 42 It is worthy to note that the pertinent documents attached to the petition for forfeiture were even signed personally by res Mrs.

Simply put. in addition to the particula of fact and law. Inc. stating the purpose thereof. 49 It is unquestionably within the court's power to require the parties to submit their pre-trial briefs and to state the number o witnesses intended to be called to the stand. and the substance of their respective testimonies. 50 The pre-trial brief of Mrs. The tenor and character of th testimony of the witnesses and of the documents to be deduced at the trial thus made known. 1993 The pre-trial brief of Mrs. Marcos and are there bound by the acts of their father vis-a-vis the Swiss funds. x x x their respective pre-trial briefs which shall conta among others: xxx (d) the documents or exhibits to be presented. As held in J. Mrs. when such matters were plainly within its knowledge and it could logically pretend ignorance as to the same. Juan & Sons. But. Lianga Industries. Marcos. 48 Thus. and a brief summary of the evidence each of them is expected to give as w disclose the number of documents to be submitted with a description of the nature of each. and certainly not for the p of confusing the adverse party as to what allegations of the petition are really being challenged. In said brief. failed to properly tender on issue. it becomes apparent if genuine issues are being put forward necessitating the holding of a trial. a profession of ignorance about a fact which is patently and necessarily within the pleader's knowledge or me knowing is as ineffective as no denial at all.The form of denial adopted by respondents must be availed of with sincerity and in good faith. Likewise parties are obliged not only to make a formal identification and specification of the issues and their proofs. vs.P. xxx (f) the number and names of the witnesses.46 In the instant case. They failed to present and attach even a single document that would show and prove the truth of their allegation Section 6. the Marcoses did not only present unsubstantiated assertions but in truth attempt mislead and deceive this Court by presenting an obviously contrived defense. as subsequently adopted by respondent Marcos children. Marcos stressed that the involved were lawfully acquired. Rule 18 of the 1997 Rules of Civil Procedure provides: The parties shall file with the court and serve on the adverse party. as in their answer. therefore. they failed to state and substantiate how these funds were acqui lawfully. the general denial of the Marcos children of the allegations in the petition for forfeiture "for lack of knowledge or inf sufficient to form a belief as to the truth of the allegations since they were not privy to the transactions" cannot rightfully b accepted as a defense because they are the legal heirs and successors-in-interest of Ferdinand E. Marcos was adopted by the three Marcos children.47 Respondents' ineffective denial thus failed to properly tender an issue and t averments contained in the petition for forfeiture were deemed judicially admitted by them. nor should it be made fo purpose of delay. merely stated: xxx .: Its "specific denial" of the material allegation of the petition without setting forth the substance of the matt relied upon to support its general denial. and to put the matters in writing and submit them to the court within the specified period for the prompt disposition of the action. Inc. • PRE-TRIAL BRIEF DATED OCTOBER 18.

• OPPOSITION TO MOTION FOR SUMMARY JUDGMENT DATED MARCH 21. Mrs. resp merely made general denials without alleging facts which would have been admissible in evidence at the hearing. show that. and admissions on file. during the pre-trial. the case became ripe for summary judgment. Marcos to the motion for summary judgment dated March 21. thereb to raise genuine issues of fact. her counsel stated that his clie just a beneficiary of the funds. Marcos a Marcos children denied ownership of or interest in the Swiss funds: PJ Garchitorena: . Such cunning tactics of respondents are totally unacceptable to this Court. • Demurrer to Evidence dated May 2. the judgment sought shall be rendered forthwith if the pleadings. 2000. Mrs. Once more. We hold that. And even then. Marcos insists in her memorandum dated October 21. during the pre-trial. supporting affida depositions.51 The absence of opposing affidavits. 2002 that. 2000 The opposition filed by Mrs. Rule 35 of the 1997 Rules on Civil Procedure: x x x The adverse party may serve opposing affidavits. depositions and admissions to contradict the sworn declarations in the Republic's m only demonstrated that the averments of such opposition were not genuine and therefore unworthy of belief. Marcos and the Marcos children54 All these pleadings again contained no allegations of facts showing their lawful acquisition of the funds. Marcos did not enumerate and describe the documents constituting her evidence. the substance of her testimony. or admissions at least three (3) days hearing. This is yet another indication that respondents presented a fictitious defense because. Mrs. 52 Motions for Reconsideration. Neither the names of witnesses n nature of their testimony was stated. depositions. sin genuine issue was raised.1 Respondent Imelda will present herself as a witness and reserves the right to present additional witne may be necessary in the course of the trial.1 Respondent Imelda reserves the right to present and introduce in evidence documents as may be ne in the course of the trial.WITNESSES 4. there is no genuine to any material fact and that the moving party is entitled to a judgment as a matter of law.53 and Memoranda of Mrs. 2000 of petitioner Republic wa adopted by the Marcos children as their own opposition to the said motion. as required by the was not made known either. Marcos only who in fact had previously claimed ignorance and lack of knowledge. However. What alone appeared certain was the testimony of Mrs. except as to the amount of damages. xxx DOCUMENTARY EVIDENCE 5. contrary to petitioner Republic's allegation that Mrs. After hearing. it was again not accompanied by a depositions or admissions as required by Section 3. Marcos disclaimed ownership of or in the funds.

Your Honor. to perplexity. PJ Garchitorena: You do not own anything? Atty. Armando Marcelo that the US$360 million more or less subject matter of the instant lawsuit as allegedly ob from the various Swiss Foundations do not belong to the estate of Marcos or to Imelda Marcos he That's your statement of facts? Atty. SISON: I join the position taken by my other compañeros here. Your Honor. There is no doubt in our mind that they were leading petiti Republic. In their earlier pleadings. Atty. What is your point here? Does the estate o own anything of the $360 million subject of this case. 1993 These pleadings of respondent Marcoses presented nothing but feigned defenses. Marcos. TECSON: Yes. Okay. PJ Garchitorena: Counsel for Irene Araneta? Atty. Counsel for Manotoc and Manotoc. Your Honor.Make of record that as far as Imelda Marcos is concerned through the statement of Atty. • Manifestation dated May 26. Your Honor. Jr. TECSON: We joined the Manifestation of Counsel. PJ Garchitorena: That's it. SISON: Irene Araneta as heir do (sic) not own any of the amount. General/Supplemental Compromise Agreement dated December 28. and now this Court.55 We are convinced that the strategy of respondent Marcoses was to confuse petitioner Republic as to what facts they wou or what issues they intended to pose for the court's resolution. if not trying to drag this forfeiture case to eternity. respondent . MARCELO: Yes. 1998 filed by MRS. xxx Atty.

Anyway we look at it. although an answer may on its face appear to tender issues r trial. the Marcoses merely made general denials of the allegations against without stating facts admissible in evidence at the hearing. therefore. In the Compromise/Supplemental Agreements. if the affidavits. petitioner Republic attached sworn statements of witnesses who had knowledge of the Marcoses' participation in the illegal acquisition of funds deposited in the Swiss accounts under the nam five groups or foundations. But. admissions and affidavits there are no important questions or issues of fact posed and. Mrs. Marcos stated that: COMES NOW undersigned counsel for respondent Imelda R. Under the rules. respondent Marcoses have put forth no real defense. an unequivocal admission of ownership by the Marcoses of the sai deposits. the Court i justified in dispensing with the trial and rendering summary judgment for petitioner. Marcos. We therefore rule that. As to Mrs. Marcos. Marcos. In fact. It is a method sanctioned by th of Court for the prompt disposition of a civil action where there exists no serious controversy. 57 A summary judgment is one granted upon m a party for an expeditious settlement of the case. summary judgment is appropriate when there are no genuine issues of fact requiring the presentation of evidence in a full-blown trial. she remembered that it was lawfully acquired.either that they had no knowledge of the existence of the Swiss deposits or that they could no longer remember anything happened a long time ago. This was. while os raising important questions or issues of fact. the movant is entitled to a judgment as a matter motion for summary judgment is premised on the assumption that the issues presented need not be tried either because are patently devoid of substance or that there is no genuine issue as to any pertinent fact. as already pointed out. summary judgment is proper. however. being the beneficiary of the dollar deposits in the name of the various foundations alleged in the case. it appearing from the pleadings. during the pre-trial conference. . in reality comprised mere verbiage that was evidently wanting in substance constituted no genuine issues for trial. respondent Marcoses sought to implement the agreed distribution of the assets. it is the law itself which determines when summary judgment is called for. In the answer and other subsequent pleadings. not a genuine issu any material fact. In her Manifestation dated May 26. under the circumstances.56 In sum. including the Swiss deposits. The "facts" pleaded by respondents. m respectfully manifests: That respondent Imelda R. The theory of summary judgment is that. if unaccompanied by any fact which will be admissible in evidence at a hearing. are not sufficient t genuine issues of fact and will not defeat a motion for summary judgment. 1998. These sworn statements substantiated the ill-gotten nature of the Swiss bank deposits. Even if o face the pleadings appear to raise issue. Marcos owns 90% of the subject matter of the above-entitled case.59 In the various annexes to the petition for forfeiture. and before this Honorable Court. That in fact only 10% of the subject matter in the above-entitled case belongs to the estate of the late Pre Ferdinand E. mere denials. depositions and admissions show that such issues are not genu then summary judgment as prescribed by the rules must ensue as a matter of law.58 Summary judgment is a procedural device for the prompt disposition of actions in which the pleadings raise only a legal issue. depositions or admissions that those issues are not genuine but fictitious. respondent Marcoses denied knowledge as well as ownersh Swiss funds. if it is established by affidavits. to us. depositions. thereby failing to raise any genuine issues of fact.

.Under these circumstances. Mar contend that "by its positive acts and express admissions prior to filing the motion for summary judgment on March 10. No local jurisprudence or authoritative work has touched upon this matter." No fixed reglementary period is provided by the Rules. It is certainly not in the interest of justice to allow respondent Marcoses to avail of the appellate remedies accorded by the Rules of Court to litigants in good faith. as to Mrs. The alleged positive acts and express admissions of the petitioner did not preclude it from filing a mo summary judgment. it had legally waived whatever righ to move for summary judgment. Without the deceptive reasoning and argumentation. . it is only to delay disposition and gain time. Summary judgment for claimant. all respondents have offered are foxy respon "lack of sufficient knowledge or lack of privity" or "they cannot recall because it happened a long time ago" or. depositions or admissions for a summary judgment in his favor upon all o part thereof.e. "the funds were lawfully acquired. particularly those of the United States where many of our law rules were copied. (Emphasis ours) 61 Under the rule. a trial would have served no purpose at all and would have been totally unnecessary. whenever it suits them. when the petition for forfeiture was first filed. Section 2. Summary judgment for defending party. counterclaim.. How el one construe the phrase "any time after the answer has been served?" This issue is actually one of first impression. if the sembla defense is interposed at all. counterclaim or cross-claim) has been served. Thus. at any time after the pleading in answer thereto has been s move with supporting affidavits. they also claim ownership of 90% of the funds and allege only 10% belongs to the Marcos estate. this Court has encountered cases like this which are either only half-heartedly defended or. or cross asserted or a declaratory relief is sought may. an examination of foreign laws and jurisprudence. leading to the inescapable conclusion that the matters raised in the Marcoses' answer w false. thus ju a summary judgment on the petition for forfeiture.A party against whom a claim. T being so. up to the present. From the beginning. depositions o admissions for a summary judgment in his favor as to all or any part thereof. It has been an incredible charade from beginning to end. 2 petitioner Republic had bound itself to go to trial on the basis of existing issues. move with supporting affidavits.A party seeking to recover upon a claim. Since 1991. Rule 56 of the Federal Rules of Civil Procedure provides that a party seeking to recover upon a claim. to the p of the Republic and ultimately of the Filipino people. a candid demonstration of respondents' good fa should have been made to the court below. is in order. at any time. In the hope of convincing this Court to rule otherwise. or cr claim or to obtain a declaratory relief may. in ans the claim. counterclaim. respondents Maria Imelda Marcos-Manotoc and Ferdinand R." But."60 We do not think so. this protracted litigation have ended a long time ago. Time and again. the plaintiff can move for summary judgment "at any time after the pleading in answer thereto (i. Rule 35 of the 1997 Rules of Civil Procedure provides: Rule 35 Summary Judgment Section 1. counterclaim or cr claim may move for summary judgment at any time after the expiration of 20 days from the commencement of the action . There were no opposing affidavits to contradict the sworn declarations witnesses of petitioner Republic.

The object of Rule 113 is to empower the court to summari determine whether or not a bona fide issue exists between the parties. meaning. Like Rule 113 of the Rules of Civil Practice of New York. and that a party against whom a claim. "that pl had waived her right to summary judgment" by her act of proceeding to trial. the plaintiff has to wait for the answer before he can move for summary judgment. petitioner moved for summary judgment after pre-trial and before its scheduled date for presentation o evidence. 65 the New York Su Court ruled: "PER CURIAM. "any stage of the litigation" means that "even if the plaintiff has proceeded to this does not preclude him from thereafter moving for summary judgment. particularly Rule 113 of the Rules of Civil Practice of New York. a decision was not rendered within sixty days a final adjournment of the term at which the case was tried. was allowed to move for summary judgment even after trial and submission of the case for resolution. and there is no limitation o power of the court to make such a determination at any stage of the litigation." 66 In the case at bar." (emphasis ours) On the basis of the aforequoted disquisition. This being so. However. the plaintif for a new trial under Section 442 of the Civil Practice Act. as correctly ruled by the New York court. And what exactly does the phrase "at any stage of the litigation" mean? In Ecker vs. With the approval of the trial justice. This argument must fail in the light of the New York Supreme Court ruling which we apply by analogy to this case. petitioner "wa right to summary judgment. by proce to trial. Muzysh. The case w submitted. by agreeing to proceed to trial during the pre-trial conference. the plaintiff had waived her right to summary judgment and that the answer and the opposin affidavits raised triable issues. Rule 35. The motion was opposed mainly on the ground that. Respondent Marcoses argue that. more so should w it in the present case where petitioner moved for summary judgment before trial. our rules also provide that a motion for summary judgment may made until issues have been joined. Owing to the serious illness of the trial justice. only after an answer has been served.service of a motion for summary judgment by the adverse party. after the issues have been joined. the motion for summary judgment may be made at any stage of the litigation. The amount due and unpaid under the contract is not in dispute. In Eck defendant opposed the motion for summary judgment on a ground similar to that raised by the Marcoses. the motion for summary judgment may be made at any stag litigation. specifically provide that a motion fo summary judgment may not be made until issues have been joined. Plaintiff introduced her evidence and the defendants rested on the case made by the plaintiff. counterclaim or claim is asserted may move for summary judgment at any time. The Spec granted both motions and the defendants have appealed. that is. The Special Term properly held that the answer and the opposing affidavits raised no triable issue. Under the New York rule. . The plaintiff also moved for summary judgment Rule 113 of the Rules of Civil Practice. ours do not provide for a fixed reglementary period within which to move for sum judgment. 62 Und rule. the New York Supreme Court's interpretation of Rule 113 of the Rules of Civil Practice can be applied by a to the interpretation of Section 1. some rules. that is. of our 1997 Rules of Civil Procedure.63 No fix prescriptive period is provided. after issues have been joined.64 And like the New York rules. If. Rule the Rules of Civil Practice and the Civil Practice Act prescribe no limitation as to the time when a for summary judgment must be made.

therefore. 72 This. which prevented petitioner from the questioned motion." 68 In cases with political undertones like the one at bar. the phrase "anytime after the pleading in answer thereto has been served" in Section 1. But during the pre-trial conference. the Marcoses disclaimed ownership of the S deposits.Therefore. Rule 1 of the 1997 Rules of Civil Procedur the "[r]ules should be liberally construed in order to promote their objective of securing a just. T rank injustice we cannot tolerate. the Marcoses ownership of the Swiss funds." Whenever it becomes evident at any stage of the litigation that no triabl exists. plaintiff may move for summary judgment. the principle of laches is one of estoppel because "it prevents people w slept on their rights from prejudicing the rights of third parties who have placed reliance on the inaction of the original par their successors-in-interest". respondents did not have any vested right or interest which could be ad . protracted and expensive litigation and encourages the speedy and prompt dispositi cases. as indeed no genuine issue of fact was ever validly raised by res Marcoses. Not being the owners. Faithful therefore to the spirit of the law on summary judgment which seeks to avoid unnecessary expense and loss of tim trial. including the motion for summary judgment. In invoking the doctrine of estoppel by laches. 2000. respondents failed to bear out. at any subsequent stage of the litigation. we hereby rule that petitioner Republic could validly move for summary judgment any time after the respondents' an was filed or. We disagree. The motion was denied because pending compromise agreement between the Marcoses and petitioner. 1996. therefore. speedy and inexpensive di of every action and proceeding. Estoppel by laches is the failure or neglect for an unreasonable or unexplained length of time to do that wh exercising due diligence. by the time the motion was filed on March 10. warranting a presumption that the person has abandon right or declined to assert it. as they claimed. That is why the law and the rules provide for a number of devices to ensure the speedy disposition of cases. Rule 35 of our Rules Procedure means "at any stage of the litigation. estoppel by laches h already set in against petitioner. respondents must show not only unjustified inaction but also that some un injury to them might result unless the action is barred. reveals that petitioner was in fact never remiss in pursuing its case agains respondent Marcoses through every remedy available to it. could or should have been done earlier. for that matter. A contrary interpretation would go against the very objective of the Rule on Summary Judgment which is to "weed out sham or defenses thereby avoiding the expense and loss of time involved in a trial. 71 A careful examination of the records.70 In effect. adverse parties will often do almost anything to delay the proceedin hope that a future administration sympathetic to them might be able to influence the outcome of the case in their favor. prompting petitioner to file another motion for summary judgment now under consideration Court."69 Respondents further allege that the motion for summary judgment was based on respondents' answer and other docume had long been in the records of the case. Thus. Sum judgment is one of them. It was definitely not because of neglect or inaction that petitioner filed the (second) motion for sum judgment years after respondents' answer to the petition for forfeiture. In fact. The law looks with disfavor on long. however. The fact that petitioner agreed to proceed to trial did any way prevent it from moving for summary judgment. It was the subsequent events that transpired after the answer was filed. or that the defenses raised by the defendant(s) are sham or frivolous. during the pre-trial conference. Petitioner Republic initially filed its motion for summary judgment on October 18. This interpretation conforms with the guiding principle enshrined in Section 6.

. The law raises the prima facie presumption that a property is unlawfully acquired.74 As a final point. From the above-quoted provisions of the law. The Court may. (2) The Propriety of Forfeiture The matter of summary judgment having been thus settled. respondents admitted in their answer the contents of paragraph 5 of the petition as to the personal circumstances of Imelda R. Senator. But even assuming for the sake of argument that laches had already set in. Prov That no judgment shall be rendered within six months before any general election or within three months any special election. Hence. forfeited in favor State. the doctrine of estoppel or laches does not a when the government sues as a sovereign or asserts governmental rights. and by virtue of such judgment the property aforesaid shall become the property of the State. Paragraph 4 of respondent Marcoses' answer categorically admitted the allegations in paragraph 4 of the petitio forfeiture as to the personal circumstances of Ferdinand E. Filing of petition. 1986. Sections 2 and 6 of RA 137976 provide: xxx xxx Section 2. and (2) the extent to which the amount of that money or property exceeds.77 Likewise. refer this case to the corresponding Executive Departme administrative or criminal action. 75 Equity demands that petitioner Republic should not barred from pursuing the people's case against the Marcoses. legitimate income of the public officer. it must be emphasized that laches is not a mere question of time but is principally a question of the inequ unfairness of permitting a right or claim to be enforced or asserted. said property shall be presumed facie to have been unlawfully acquired. or both. then the court shall declare such property in question. in addition. is grossly disproportionate to. whether it be in name or otherwise. e. if its amoun value is manifestly disproportionate to the official salary and other lawful income of the public officer who owns it. Marcos who once served as a member of the Interim Batasang Pambansa from 1978 to 198 . 6. the issue of whether or not petitioner Republic was able to pr case for forfeiture in accordance with the requisites of Sections 2 and 3 of RA 1379 now takes center stage. hence subject to forfeiture.affected by petitioner's alleged inaction. i. Marcos as a public official who served without interruption as Congressman. xxx xxx Sec. 73 Nor can estoppel validate an act that contrav law or public policy. That spouses Ferdinand and Imelda Marcos were public officials during the time material to the instant case was never i dispute. Judgment – If the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question. the following facts must be established in order that forfeiture or seizure of Swiss deposits may be effected: (1) ownership by the public officer of money or property acquired during his incumbency. 1965 to Fe 25. – Whenever any public officer or employee has acquired during his incumben amount or property which is manifestly out of proportion to his salary as such public officer or employee a other lawful income and the income from legitimately acquired property. Senate President and President of the Republic of the Philippines from December 1.

000 P1.000/year P660. (b) in the course of the trial eith verbal or written manifestations or stipulations.000 In addition to their accumulated salaries from 1966 to 1985 are the Marcos couple's combined salaries from January to F 1986 in the amount of P30. Marcos and R. Converted to U.83 The sum of $304.000 and P718.000 1977-1984 at P100. as in the case at bar. during their tenure.000/year P718. as President 1966-1976 at P60. Ferdinand E.750: Ferdinand E. 4(2) – The President and the Vice-President shall not. Rule 129 of the Rules of Court provides that: Section 4. under the 1973 Constitution. their total accumulated salaries amounted to P2.000/year 800.84 Likewise. verbal or written.Metro Manila Governor.80 The Certification showed that.33. from 1966 to 1985. Marcos. are deemed admissions of petitioner and respondents. Hence. respectively.570. Prescinding from the aforesaid admissions. as in the pre-trial of the case facts pleaded in the petition and answer. as required by law.288. The admission may be contradicted only by showin was made through palpable mistake or that no such admission was made. from June 1976 to February 1986. 78 Respondent Mrs. hold any other . from which their net worth could be determined. his management of business the administration of foundations to accumulate funds.00 Imelda R.000/year 110. 79 The combined accumulated salaries of the Marcos couple were reflected in the Certification dated May 27.570. as Minister June 1976-1985 at P75. 1986 issued by then Ministe Budget and Management Alberto Romulo. Marcos had accumulated salaries in the amount of P1. or a total of P2. under the 193 Constitution.372.43 should be held as the only known lawful income of respondents since they did not file any State Assets and Liabilities (SAL).833.319. Besides. Marcos as President could not receive "any other emolument from the Government or any of subdivisions and instrumentalities".43. concurrently Minister of Human Settlements.372. Sec. Ferdinand E. The dollar equivalent was arrived at by using the official annual rates of exchange of the Philippine peso and the US doll 1965 to 1985 as well as the official monthly rates of exchange in January and February 1986 issued by the Center for St Information of the Bangko Sentral ng Pilipinas. dollars on the basis of the corresponding peso-dollar exchange rates prevailing during the applicable period when said s were received. made by a party in the course of the proceedings in the same case does not require proof.750. Section 4. Marcos also admitted in paragraph 10 of her answer the allegations of paragraph 11 of the petition for which referred to the accumulated salaries of respondents Ferdinand E.000 1985 at P110. Ferdinand E.33. 81 It is settled that judicial admissions may be made: (a) in the pleadings filed by the parties. who are not permitted to contradict them or subsequently take a position contrary to or inconsistent with suc admissions. or (c) in other stages of judicial proceedings. Marcos as President could "no during his tenure any other emolument from the Government or any other source." 85 In fact. Marcos. was expressly prohibited under the 1973 Constitution: Article VII. respectively. Marcos. the total amount had an equivalent value of $304. Marcos and Imelda R.583. – Judicial admissions – An admission.

and shall also be subject to such other disqualification as may be p by law. Marcos' Manifestation and Constancia dated May and the Undertaking dated February 10. respondents likewise admitted ownership thereo Paragraph 22 of respondents' answer stated: 22. We take note of the fact that the Associate Justices of the Sandiganbayan unanimous in holding that respondents had made judicial admissions of their ownership of the Swiss funds. or practice any profession. Sec. or in any franchise or special privilege granted by the Government. Neither shall he. Respondents argue that petitioner was not able to establish a prima facie case for the forfeiture of the Swiss funds since to prove the essential elements under Section 3. directly or indirectly. or instrumentality thereof. 11 – No Member of the National Assembly shall appear as counsel before any court infer court with appellate jurisdiction. the the accumulated assets. x x x. 1999. or any subdivision. Their failure to file their SAL was in itself a violation and to allow them to successfully assail the Republic for not presenting their SAL would reward them for their violation of Further. Article IX. paragraphs (c). nor may they practice any profession. the latter were in a better position to know were such other sources of lawful income. . 7 – The Prime Minister and Members of the Cabinet shall be subject to the provision of Se 11.except when otherwise provided in this Constitution. be interested financially in an contract with. Section 9 of the PCGG Rules and Regulations provides that. Mrs. properties and other material possessions of those covered by Executive Order Nos. In their answer. We hold that it was not for petitioner to establish the Marcoses' other lawful income or income from legitimately acquired for the presumption to apply because. age instrumentality thereof including any government owned or controlled corporation during his term of office shall not intervene in any matter before any office of the government for his pecuniary benefit. in determining prima facie evidence of ill-gotten wealth. contrary to the claim of respondents. agency. as between petitioner and respondents. (d) and (e) of RA 1379. including any government owned or controlled corporation. Article VIII hereof and may not appear as counsel before any court or administrative body. its provisions are mandatory and should thus be construed strictly against the petitioner and liberally in favor of respondent Marcoses. Article VII. or be financially interested directly or indirectly in any cont or in any franchise or special privilege granted by the Government or any other subdivision. the admissions made by them in their various pleadings and documents we It is of record that respondents judicially admitted that the money deposited with the Swiss banks belonged to them. Respondents specifically DENY PARAGRAPH 23 insofar as it alleges that respondents clandestinely the country's wealth in Switzerland and hid the same under layers and layers of foundations and corpora entities for being false. 1 and 2 m out of proportion to the known lawful income of such persons. or manage business. Their only known lawful income of $304. We agree with petitioner that respondent Marcoses made judicial admissions of their ownership of the subject Swiss ban deposits in their answer. the truth being that respondents' aforesaid properties were lawfully acquired. the General/Supplemental Agreements. And if indeed there was such other lawful income. As the Act is a penal statute. respondents should have specifically stated the same in their answer. Sec. participate dir indirectly in the management of any business.372. The respondent Marcos couple did not file any Statement and Liabilities (SAL) from which their net worth could be determined. it was enough to specify the k lawful income of respondents.43 can therefore legally and fairly serve as basis for determining the existen prima facie case of forfeiture of the Swiss funds. aside from admitting the existence of the subject funds. Insofar as petitioner Republic was concerned.

(2) the PCGG's commitme exempt from all forms of taxes the properties to be retained by the Marcos heirs was against the Constitution. Corollarily.(emphasis supplied) By qualifying their acquisition of the Swiss bank deposits as lawful. Jr. 2000 c have been better said: x x x The declaration of nullity of the two agreements rendered the same without legal effects but it did no from the admissions of the respondents contained therein. the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal on December 2 that the $356 million belongs in principle to the Republic of the Philippines provided certain conditionalitie met.89 They insist that nothing in those agreements could thus be admitted in evidence against them because they s the same ground as an accepted offer which. 91 A written statement is nonetheless competent as an admission even if it is contained in a document which is not itself eff . and (3) the government's undertaking to cause the dismissal of all cases filed against the Marcoses pending before the Sandiganba other courts encroached on the powers of the judiciary. the parties hereby agree that the PRIVATE PARTY shall be entitled to t equivalent of 25% of the amount that may be eventually withdrawn from said $356 million Swiss deposits The stipulations set forth in the General and Supplemental Agreements undeniably indicated the manifest intent of respo to enter into a compromise with petitioner. but even after 7 years. h made certain admissions in those agreements. Respondents make much capital of the pronouncement by this Court that the General and Supplemental Agreements we and void. Sectio Rule 886 of the 1997 Rules of Civil Procedure provides that material averments in the complaint shall be deemed admitte not specifically denied. Rule 130 90 of the 1997 Rules of Civil Procedure. inter alia. the admissions made in sai agreements. in the decision dated September 19. under Section 27. The whereas clause in the General Agreement declared that: WHEREAS. Besides. Marcos also admitted ownership of the Swiss bank deposits by failing to deny under oath the genuinen due execution of certain actionable documents bearing her signature attached to the petition. notwithstanding the fact that the agreements themselves were later declared null and void. respondents cannot now deny that they voluntarily admitted owning the s Swiss funds. The declaration of nullity of said agreements was premised on the following constituti statutory infirmities: (1) the grant of criminal immunity to the Marcos heirs was against the law. remain binding on the respondents. Otherwise stated. As discussed earlier. the FIRST PARTY has not been able to procure a final judgment of convictio the PRIVATE PARTY. The following observation of Sandiganbayan Justice Catalino Castañeda. While the Supplemental Agreement warranted. that: In consideration of the foregoing. The reasons relied upon by the Court never in the least bit even on the veracity and truthfulness of respondents' admission with respect to their ownership of the Swiss funds. 1993 further bo the claim of petitioner Republic that its case for forfeiture was proven in accordance with the requisites of Sections 2 and 1379. provide civil cases. respondents unwittingly admitted their ownership the Respondent Mrs. The General87 and Supplemental88 Agreements executed by petitioner and respondents on December 28. respondents' willingness to agree to an amicable settlement with th Republic only affirmed their ownership of the Swiss deposits for the simple reason that no person would acquiesce to an concession over such huge dollar deposits if he did not in fact own them. as quoted above. an offer of compromise is not an admission of any liability and is not admissible in evidence against the offero We find no merit in this contention.

And so my reaction was the same as what I have always … why not? Maybe th one that will finally put an end to this problem. We quote the salient portions of Ferdinand Jr.: Yes. either by reason of illegality. The discussions that led u compromise agreement were initiated by our then counsel Atty. 93 xxx xxx xxx ATTY. JR.: My reaction to all of these approaches is that I am always open. did you ever have any meetings with PCGG Chairman Magtanggol C. MARCOS.94 . we are always open. although the be unenforceable. ATTY. or by reason of not bei signed. FERNANDO: Mr. Jr. Accordingly. I have had very many meetings in fact with Chairman. during the hearing on the motion for the approval of the Compromise Agreement on April 29. contracts have been held as competent evidence of admissions.92 The testimony of respondent Ferdinand Marcos. 1998 also lent credence to the allegations of petitioner Republic that respondents admitted owne the Swiss bank accounts. we are very always in search of resolution to the problem of the family and any approach that has been made have entertained. MARCOS. FERNANDO: In connection with the ongoing talks to compromise the various cases initiated by PCGG against family? F.the purpose for which it is made. FERNANDO: What was your reaction when Atty. JR.'s formal declarations in open court: ATTY. Gunigundo? F.: The nature of our meetings was solely concerned with negotiations towards achieving some kind agreement between the Philippine government and the Marcos family. Marcos. executed or delivered. FERNANDO: Would you recall when the first meeting occurred? PJ GARCHITORENA: In connection with what? ATTY. Mesina informed you of this possibility? F. Simeon Mesina x x x. JR. MARCOS. or incompetency of a party thereto.

taken in context and in their entirety. JR. Marcos. 1998. If a party.xxx xxx xxx ATTY. any assets.'s pronouncements. But nevertheless. being the beneficiary of the dollar deposits in the name of the various foundations alleged in the case. 98 In her Manifestation99 dated May 26. . Marcos owns 90% of the subject matter of the above-entitled case. This was doubtlessly an acknowledgment of ownership on the The rule is that the testimony on the witness stand partakes of the nature of a formal judicial admission when a party tes clearly and unequivocally to a fact which is peculiarly within his own knowledge. I was a little s because we hadn't really discussed the details of the transfer of the funds. 96 Ferdinand Jr. I was happy to see that as far as the PCGG is conce that the agreement was perfected and that we were beginning to implement it and that was a sou satisfaction to me because I thought that finally it will be the end. xxx xxx xxx Respondents' ownership of the Swiss bank accounts as borne out by Mrs. we are talking about liquid assets here? Just Cash? F. MARCOS. That in fact only 10% of the subject matter in the above-entitled case belongs to the estate of the late Pre Ferdinand E. Admissions of a party in his testimony are receivable against him.: I assumed that we are beginning to implement the agreement because this was forwarded throug Philippine government lawyers through our lawyers and then. what were the true amounts of the assets in the bank? PJ GARCHITORENA: So.: Well. were a confirmation of respondents' recognition of ownership of the Swiss bank deposits. JR. Marcos' manifestation is as bright as sunlight. what the bank accoun the mechanism would be. respondent Imelda Marcos furthermore revealed the following: That respondent Imelda R. MARCOS.'s t that the Marcos family agreed to negotiate with the Philippine government in the hope of finally putting an end to the prob besetting the Marcos family regarding the Swiss accounts. basically. 97 It is apparent from Ferdinand Jr. Anything that was under the Marcos name in any of the banks in Swit which may necessarily be not cash. after being apprised of this contract in connection herewith? F. subsequently. such concession has the force of a judicial admission.95 xxx xxx xxx PJ GARCHITORENA: x x x What did you do in other words. as a deliberately concedes a fact. to me. FERNANDO: Basically.

Rule 8 100 of t Rules of Civil Procedure. and Maria Irene Marcos-Araneta motion102 on May 4. That failure of Imelda Marcos to specifical the existence. She further made the following manifestations: xxx xxx xxx 2. On the other hand. (underscoring supplied) xxx xxx xxx 3. 1998. defendant MADAM IMELDA ROMUALDEZ MARCOS. much less the genuineness and due execution. Ferdinand Marcos. As already mentioned. respondents Maria Imelda Marcos-Manotoc. both parties have inchoate right of ownership over the account. the Republ yield to the Marcoses. she failed to specifically deny under oath the authenticity of such documents. the Marcoses defend that it is a legitimate asset. If it turns out that the account is of lawful origin. 1997. the Third Party is likewise willing to release. Imelda Marcos prayed for the approval of the Compromise Agreement subsequent release and transfer of the $150 million to the rightful owner. The Republic's cause of action over the full amount is its forfeiture in favor of the government if found t gotten. in fir abidance thereby. Jr. The subject Undertaking brought to light their readiness to pay the hum rights victims out of the funds held in escrow in the PNB. was tantamount judicial admission of the genuineness and due execution of said instruments. although the Republic is not obligated to d under final judgments of the Swiss courts dated December 10 and 19. by releasing. Conversely. and January 8. especially those involving "William Saunders" and "Jane which actually referred to Ferdinand Marcos and Imelda Marcos. desires to assist in the satisfaction of the judgment a said human rights victims-plaintiffs. assigning and or waiving US$150 million of the funds he escrow under the Escrow Agreements dated August 14. It stated: WHEREAS. assign and/or waive all its rights and interests o . reconciliation and unity. the PNB and the Marcos foundations on February 10. by filing said motion. 1998 asking the Sandiganbayan to place the res (Swiss deposits) in custodia legis: 7. the Republic of the Philippines sympathizes with the plight of the human rights victims-plaint aforementioned litigation through the Second Party. the above statements were indicative of Imelda's admission of the Marcoses' ownership of the Swiss deposits as "the Marcoses defend that it (Swiss deposits) is a legitimate (Marcos) asset. Such display of deep. its dissipation or misappropriation by the petitioner a distinct possibility. the Undertaking103 entered into by the PCGG. confirm Marcoses' ownership of the Swiss bank deposits. Truly. without prejudice to the final outcome of the litigation respecting the ow of the remainder. Therefore. WHEREAS. in her Constancia101 dated May 6. hereby affirms her agreement with the Republic for the release and transfer of the US 150 million for proper disposition. of the instruments bearing her signature. 1995. Likewise. Indeed. in accordance with Section 8. the prevailing situation is fraught with danger! Unless the aforesaid Swiss deposits are placed custodia legis or within the Court's protective mantle. respectively. the Marcoses must yield to the Republic." On the other hand.claim that she is merely a beneficiary of the Swiss deposits is belied by her own signatures on the appended copies of th documents substantiating her ownership of the funds in the name of the foundations. and the Marcoses having committed themselves to helping the less fortu the interest of peace. Consistent with the foregoing. Again. 1999. the Marcos children revealed their ownership of the said dep Lastly. personal interest can only come from someone who believes that he has a marked and intimate rig the considerable dollar deposits. 1999.

107 The declarations of a person are admissible against a party whenever a "privity of estate" exists between the declarant a party. made by a party in the course of the proc in the same case.110 Respondents insist that the Sandiganbayan is correct in ruling that petitioner Republic has failed to establish a prima fac for the forfeiture of the Swiss deposits. the term "privity of estate" generally denoting a succession in rights. And where several c parties to the record are jointly interested in the subject matter of the controversy. Rule 129 of the Rules of Court: SEC. 104 This doctrine is embodied Section 4. o omission of the latter. as its findings and conc were not borne out by the voluminous records of this case. is not usually done by this Court. ─ An admission. 29.US$150 million to the aforementioned human rights victims-plaintiffs. The admission may be contradicted only by showing that it was through palpable mistake or that no such admission was made. The sudden turn-around of the Sandiganbayan was really strange. even if it might have bordered on factual adjudication which. whether an objection is interposed by the adverse party or not. Admission by co-partner or agent. or other person jointly interested with th party. 105 In the absence of a compelling reason to the contrary. ─ Where one derives title to property from another. we considered and examined. 109 Without doubt. an admission of one in privity party to the record is competent. in relation to the property. individually and the evidence of the parties. Judicial admissions. We analyzed. respondents' judicial admission of ownership of the Swiss deposit definitely binding on them. We have always adhered to the familiar doctrine that an admission made in the pleadings cannot be controverted by the making such admission and becomes conclusive on him. does not require proof. The s rule applies to the act or declaration of a joint owner. may be given in evidence ag such party after the partnership or agency is shown by evidence other than such act or declaration. verbal or written. All told. the foregoing disquisition negates the claim of respondents that "petitioner failed to prove that they acquired or o Swiss funds" and that "it was only by arbitrarily isolating and taking certain statements made by private respondents out context that petitioner was able to treat these as judicial admissions. joint debtor. Section 2 of RA 1379 explicitly states that "whenever any public officer or employee has acquired during his incumbency amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other . The individual and separate admissions of each respondent bind all of them pursuant to Sections 29 and 31. 31. Rule 130 o Rules of Court: SEC. while holding the title. materiali implications of every pleading and document submitted in this case. to say the least." The Court is fully aware of the relevance. Admission by privies. and that all proofs submitted by him contrary thereto or inconsi therewith should be ignored. There is no doubt in our mind that respondent Marcoses admitted owner the Swiss bank deposits. ─ The act or declaration of a partner or agent of the party wit scope of his authority and during the existence of the partnership or agency. 4. We disagree. privity exists among the respondents in this case. is evidence against the former. This Court carefully scrutinized the proofs presented parties. the act. declaration. assessed and weighed them to ascertain if each piece of evidence rightfully qualified as an admis Owing to the far-reaching historical and political implications of this case. the admission of one is competent aga all. by authority of the rules and jurisprudence. 108 Consequently.106 SEC.

and (3) said amount is manifestly out of proportion to his salary as such public officer or employee and to his lawful income and the income from legitimately acquired property. Petitioner Republic presented not only a schedule indicating the lawful income of the Marcos spouses during their incum but also evidence that they had huge deposits beyond such lawful income in Swiss banks under the names of five differe foundations. (2) he must have acquired a considerable amount of money or property during his incumbency. said property shall be presumed prima facie to have been un acquired. Hence. deprived them of their day in court and denied them their rights . We believe petitioner was able to establish the prima facie presumption that the assets and properties acqu the Marcoses were manifestly and patently disproportionate to their aggregate salaries as public officials. The third requirement is met if it can be shown that such assets. x x x" The elements which must concur for this prima facie presumption to apply are: (1) the offender is a public officer or employee. the first element is clearl The second element deals with the amount of money or property acquired by the public officer during his incumbency. the non-inclusion of the foreign foundations violated the conditions prescribed by the Swiss government regarding the deposit of the funds in escrow. She asserts that the failure of petitioner Republic implead the foundations rendered the judgment void as the joinder of indispensable parties was a sine qua non exercise judicial power.111 Respondent Mrs. It was sufficien petition for forfeiture to state the approximate amount of money and property acquired by the respondents. 1 and No. the five groups of Swiss acc were admittedly owned by them. It is undisputed that spouses Ferdinand and Imelda Marcos were former public officers. whose value is out of proportion to their known la income is prima facie deemed ill-gotten wealth. In fact. – Any accumulation of assets. money or property is manifestly out of proportion to the officer's salary and his other lawful income. the presumption that said dollar deposits were unlawfully acquired was duly established. and other material possessions of those persons covered by Executive Orders No. Furthermore. Marcos argues that the foreign foundations should have been impleaded as they were indispensable p without whom no complete determination of the issues could be made. Section 9 of the PCGG Rules and Regulations states: Prima Facie Evidence. an amount way. unless the fact thus prima facie established by legal presumption is disproved. way beyond their aggregate legi income of only US$304. properties. Th Marcos couple indubitably acquired and owned properties during their term of office.43 during their incumbency as government officials. and their tota government salaries. that the total amount of the Swiss deposits was considerably out of proportion to the known lawfu of the Marcoses. Otherwise stat petitioner presented enough evidence to convince us that the Marcoses had dollar deposits amounting to US $356 millio representing the balance of the Swiss accounts of the five foundations.income and the income from legitimately acquired property. There is proof of the existence and ownership of these assets and properties and it suff comply with the second element. the burden of proof was on the respondents to dispute this presumption and show by clear and convincing evide the Swiss deposits were lawfully acquired and that they had other legitimate sources of income. 2. therefore. It is the proof of this third element that is crucial in determining whether a prim presumption has been established in this case. it must st proved.372. Indeed. A presumption is prima f proof of the fact presumed and. Considering.

The admission of respondent Imelda Marcos only confirmed what was alre generally known: that the foundations were established precisely to hide the money stolen by the Marcos spouses from p Republic. Thus.the Swiss constitution and international law. innocent acquisition to illegally amassed wealth – at the . provides for the compulsory of indispensable parties. or having received ill-gotten funds. however strong or convinc does not. if the decre have an injurious effect upon his interest. In the present case.112 The Court finds that petitioner Republic did not err in not impleading the foreign foundations. the companies themselves are not the object or thing involved in action.113 taken from Rule 19b of the American Federal Rules of Civil Procedure. or if the final determination of the controversy in his absence w inconsistent with equity and good conscience.119 this Court ruled that impleading the firms which are the res of the action was unnecess "And as to corporations organized with ill-gotten wealth. There are two essential tests of an indispensable party: (1) can relief be afforded the plaintiff without the presence of the party? and (2) can the case be decided on its merits without prejudicing the rights of the other party? 116 There is. The directive given by the Swiss court for the foundations to participate in the proceedings was for the purpo protecting whatever nominal interest they might have had in the assets as formal owners. Marcos herself. howeve fixed formula for determining who is an indispensable party. without more. but are not themselves guilty of misappropriation or other illicit conduct – in other words. Sandiganbayan.117 Viewed against this admission. must be given an opportunity to participate in the proceedings hinged on the assumption that they owned a nominal share of the assets. 114 An indispensable party115 has been defined as one: [who] must have a direct interest in the litigation. Generally. The rulings of the Swiss court that the foundations. they could no longer be considered as indispensable parties and their partic the proceedings became unnecessary. Rule 3 of the 199 of Civil Procedure. In Republic vs. Section 7. there was an admission by respondent Imelda Marcos in her May 26. though such judgment is not binding on the non-joined party. that the foreign foundations owned even a nominal part of the as question. their impleading is not proper on strength alone of their having been formed with ill-gotten funds. 1998 Manifestation before the Sandiganbayan that she was the sole beneficiary of 90% of the subject matter in controversy with the remaining 10% be to the estate of Ferdinand Marcos. the res thereof – there is no need to implead them either. warrant identifying the corporations in question with the person who formed or m of them to give the color or appearance of lawful. and if this interest is such that it cannot be separated fro of the parties to the suit. she cannot now argue that the ruling of the Sandiganbayan violated the conditions set b Swiss court. if any. absent any other particular wrongdoing o part… Such showing of having been formed with. But inasmuch as their ownersh subsequently repudiated by Imelda Marcos. Thus. as formal owners. an indispensable party must be impleaded for the complete determination of the suit However. Indeed. if the court cannot render justice between the parties in his absence. this can only be determined in the context and by the facts o particular suit or litigation. 118 But this was already refuted by than Mrs. The judgment ordering the return of the $356 million was neither inimical to the foundations' interests inconsistent with equity and good conscience. It negated whatever illusion there was. the foreign foundations were not indispensable parti non-participation in the proceedings did not prevent the court from deciding the case on its merits and according full relie petitioner Republic. the court is not divested of its power to rend decision even in the absence of indispensable parties. failure to join an indispensable party does not divest the court of jurisdiction since the rule regarding indispensa parties is founded on equitable considerations and is not jurisdictional.

set out in Section 11.. whe appears that the complaint otherwise indicates their identity and character as such indispensable parties. The court had jurisdiction to render judgment which. In this light. amendments of the complaint in order to im them should be freely allowed. that gave rise to the Government's cause of action for recovery. Rule 3 124 on indispensable parties copied. The rule on joinder of indispensable parties is founded on equity. as held in the previously cited case of Republic vs. and particularly in the case of indispensable parties. even on appeal. Rule 5 of the Rules of Court [specifying the remedy of amendment during trial to authorize or conform to the evidence]. for without them no judgment may be rendered. through mot order of the court on its own initiative. Thus. Section 1. in fact even after rendition of judgment by this Court. from which our Section 7. no cause of action against them and no ground to im them as defendants in said actions.not so as place on the Government the onus of impleading the former with the latter in actions to recover wealth. and there is. Assuming arguendo. as where said firms were alle used. Marcos cannot correctly argue that the judgment rendered by the Sandiganbayan void due to the non-joinder of the foreign foundations. the foreign foundations here were set up to conceal the illegally ac funds of the Marcos spouses. but one correctible under applicable adjective rules – e. jurisprudence on the Federal Rules of Procedure. Hence. 123 Likewise. the Swiss deposits should be considered ill-gotte and forfeited in favor of the State in accordance with Section 6 of RA 1379: . was binding on all the parties before it though not on the absent party. It is relevant in this context to advert to the old familiar doctrines that the omission to implead such "is a mere technical defect which can be cured at any stage of the proceedings even after judgment". Distinguished in terms of juridical personality and legal culpability from their erring members or stockholders. she should have moved for their inclusion. in principle. Rule 3122 of the 1997 Rules of Civil Procedure. respondent Mrs.125 Mere delay in filing the joinder motion does not necessarily result in the waiver of the right as long as th is excusable. however. etc. and actively cooperated with the defendants.127 If she really felt that sh not be granted full relief due to the absence of the foreign foundations. which allowable at any stage of the proceedings. And the spirit of is reflected in Section 11. as instruments or conduits for conversion of public fu property or illicit or fraudulent obtention of favored government contracts. they are simply the res in the actions for the of illegally acquired wealth. they were simply the res in the action for recovery of ill-gotten wealth and did not ha impleaded for lack of cause of action or ground to implead them. of the embezzlement. etc. Although there are decided cases wherein the non-joinder of indispensable parties in fact led to the dismissal of the suit annulment of judgment. that the foundations were indispensable parties. She never did. The better view is that non-joinder is not a groun dismiss the suit or annul the judgment.. Instead she assailed the judgment rendered. since their presence and participation is essential to the of the action. said corporations are not themselves guilty of the sins of the latter. Rule 20 [governing amendments before trial]. asportation. such cases do not jibe with the matter at hand. respondent Marcose to justify the lawful nature of their acquisition of the said assets. slight reflection would nev lead to the conclusion that the defect is not fatal. their creation or organiz was merely the result of their members' (or stockholders') manipulations and maneuvers to conceal the il origins of the assets or monies invested therein. even in the ab of indispensable parties. the failure of petitioner to implead them w curable error.126 Thus. It prohibits the dismissal of a suit on the ground joinder or misjoinder of parties and allows the amendment of the complaint at any stage of the proceedings. in relation to the rule respecting omission of so-called necessary or indispensable parties. Rule 3 of the R Court. In the face of undeniable circumstances and the avalanche of documentary evidence against them. Section 10. Sandiganbayan:120 "Even in those cases where it might reasonably be argued that the failure of the Government to implead sequestered corporations as defendants is indeed a procedural abberation." Just like the corporations in the aforementioned case. allows the joinder of indispensable parties even after judgment has been entered if such is needed to afford the m party full relief.

1986.promulgated on February 28.O. Sandoval-Gutierrez. relatives. and Vitug.175. and T concur. WHEREFORE. there might nevertheless not be any rea belabor the issue. Panganiban.. in the result Quisumbing. No. plus interest. 6.. then the court shall declare such property forfeited in favor of the State virtue of such judgment the property aforesaid shall become property of the State x x x.. Jr. only two (2) days after the Marcoses fled the country. The Swiss deposits which were transferred to and are now deposited in escrow at the Philippine National Bank i estimated aggregate amount of US$658. The assailed Resolution of the Sandiganbayan dated January 31. Earlier PJ Garchitorena had quoted extensively from th unofficial translation of one of these Swiss decisions in his ponencia dated July 29. Austria-Martinez. Ynares-Santiago.60 as of January 31. Carpio-Morales.SEC. neither is this Court's. the petition is hereby GRANTED. Carpio. 2 – issued twelve (12) days later. Davide. warning all persons and entities who had knowledge of poss ill-gotten assets and properties under pain of penalties prescribed by law. For that matter. C. 2 E.. on official leave. Puno. Azcuna. J. Judgment.J.─ If the respondent is unable to show to the satisfaction of the court that he has lawful acquired the property in question. Sr. In short. What is important is our own assessment of the sufficiency of the evidence to rule in fa either petitioner Republic or respondent Marcoses. c the PCGG which was primarily tasked to assist the President in the recovery of vast government resourc allegedly amassed by former President Marcos. and close associates.. despite the absence of the authenticated translations Swiss decisions. prohibiting them from concealin 3 . are hereby forfeited in favor o petitioner Republic of the Philippines.. 1 E. the evidence on hand tilts convincingly in favor of petitioner Republic. petitioner Republic contends that the Honorable Sandiganbayan Presiding Justice Francis Garchitorena committ abuse of discretion in reversing himself on the ground that the original copies of the authenticated Swiss decisions and th authenticated translations were not submitted to the court a quo. J. Callejo. Footnotes An Act Declaring Forfeiture In Favor of the State Any Property To Have Been Unlawfully Acquired By An Officer or Employee and Providing For the Procedure Therefor. his immediate family. 2002. no part.O. 1 . SO ORDERED. THE FAILURE TO PRESENT AUTHENTICATED TRANSLATIONS OF THE SWISS DECISIONS Finally. The presentation of the authenticated translations of the original copies of the Swiss decision was not rigueur for the public respondent to make findings of fact and reach its conclusions. In this instance. The release of the Swiss funds held in escrow in the PNB is dependent solely on the decision of this jurisdiction that said belong to the petitioner Republic. No. 1999 when he denied the motion to r US$150 Million to the human rights victims. bo and abroad. the Sandiganbayan's decisi not dependent on the determination of the Swiss courts. Bellosillo. 2002 ASIDE.373. While we are in reality perplexed by such an incomprehensible change of heart. JJ.

transferring or dissipating them or from otherwise frustrating or obstructing the recovery efforts of the gov
4

E.O. No. 14 – Series of 1986, as amended by E.O. No. 14-A.

Also series of 1986, vested Sandiganbayan the exclusive and original jurisdiction over cases, whether c
criminal, to be filed by the PCGG with the assistance of the Office of the Solicitor General. The law also d
that the civil actions for the recovery of unlawfully acquired property under Republic Act No. 1379 or for
restitution, reparation of damages, or indemnification for consequential and other damages or any other c
action under the Civil Code or other existing laws filed with the Sandiganbayan against Ferdinand Marcos
may proceed independently of any criminal proceedings and may be proved by preponderance of eviden
5

Declared null and void by this Court on December 9, 1998 in the case of "Francisco I. Chavez vs. PCGG
Magtanggol Gunigundo", docketed as G.R. No. 130716.
6

In April 1986, pursuant to E.O. No. 2, the Republic of the Philippines through the PCGG filed a request f
mutual assistance with the Swiss Federal Police Department, under the procedures of the International M
Assistance in Criminal Proceedings (IMAC) to freeze the bank deposits of the Marcoses located in Switze
7

IMAC is a domestic statute of Switzerland which generally affords relief to the kind of request from foreign
governments or entities as authorized under E.O. No. 2.

The various Swiss local authorities concerned granted the request of petitioner Republic, and ordered the
deposits to be "blocked" until the competent Philippine court could decide on the matter.
8

Volume III, Rollo, p. 2195.

Penned by Justice Catalino R. Castañeda, Jr. and concurred in by Presiding Justice Francis E. Garchito
and Associate Justice Gregory S. Ong.
9

10

Volume III, Rollo, p. 2218.

Penned by Presiding Justice Francis E. Garchitorena with the separate concurring opinions of Associat
Nicodemo T. Ferrer and Associate Justice Gregory S. Ong. Associate Justices Catalino R. Castañeda, Jr
Francisco H. Villaruz, Jr. both wrote their respective dissenting opinions.
11

12

Volume I, Rollo, pp. 145-146.

13

Volume I, Rollo, pp. 60-62.

14

Volume IV, Rollo, p. 2605.

15

Sec. 3 – the petition shall contain the following information

xxx

(c) The approximate amount of property he has acquired during his incumbency in his past and present o
and employments.

16

(d) A description of said property, or such thereof as has been identified by the Solicitor General.

(e) The total amount of his government salary and other proper earnings and incomes from legitimately
acquired property xxx.
17

18

Volume IV, Rollo, pp. 2651-2654.

19

Same as Section 1, Rule 65 of the old Rules of Court.

20

Filoteo, Jr. vs. Sandiganbayan, 263 SCRA 222 [1996].

21

Central Bank vs. Cloribel, 44 S 307, 314 [1972].

22

240 SCRA 376 [1995].

23

Republic vs. Sandiganbayan, 269 SCRA 316 [1997].

24

69 SCRA 524 [1976].

25

Substantially the same as Section 1, Rule 34 of the old Rules of Court.

26

Agcanas vs. Nagum, L-20707, 143 Phil 177 [1970].

27

Rollo, Vol. I, pp. 22-37.

28

Substantially the same as Section 10, Rule 8 of the old Rules of Court.

29

16 Phil., 315, 321-322 [1910].

30

197 SCRA 391 [1991].

31

Philippine Advertising vs. Revilla, 52 SCRA 246 [1973].

32

Petition, Annex C, Volume I, Rollo, p. 236.

33

Answer, Annex D, Volume II, Rollo, p. 1064.

34

61A Am. Jur., 172-173.

35

Blume vs. MacGregor, 148 P. 2d. 656 [see p.428, Moran, Comments on the Rules of Court, 1995 ed.].

36

Substantially the same as Section 1, Rule 9 of the old Rules of Court.

37

Supra.

38

Supra.

39

"All the five (5) group accounts in the over-all flow chart have a total balance of about Three Hundred F

Million Dollars ($356,000,000.00) as shown by Annex 'R-5' hereto attached as integral part hereof."
40

22 SCRA 48 [1968]

XANDY-WINTROP-AVERTINA FOUNDATION: (a) Contract for opening of deposit dated March 21, 196
Handwritten instruction; (c) Letter dated March 3, 1970; (d) Handwritten regulation of Xandy dated Febru
1970; (e) Letter of instruction dated March 10, 1981; (f) Letter of Instructions dated March 10, 1991.
41

TRINIDAD-RAYBY-PALMY FOUNDATION: (a) Management agreement dated August 28, 1990; (b) Lette
instruction dated August 26, 1970 to Markers Geel of Furich; (c) Approval of Statutes and By-laws of Trin
Foundation dated August 26, 1990; (d) Regulations of the Trinidad Foundation dated August 28, 1970; (e
Regulations of the Trinidad Foundation prepared by Markers Geel dated August 28, 1970; (f) Letter of Ins
to the Board of Rayby Foundation dated March 10, 1981; (g) Letter of Instructions to the Board of Trinida
Foundation dated March 10, 1981.

MALER ESTABLISHMENT FOUNDATION: (a) Rules and Regulations of Maler dated October 15, 1968;
of Authorization dated October 19, 1968 to Barbey d Suncir; (c) Letter of Instruction to Muler to Swiss Ba
October 19, 1968.

"Where an action or defense is founded upon a written instrument, copied in or attached to the corresp
pleading xxx, the genuineness and due execution of the instrument shall be deemed admitted unless the
party under oath, specifically denies them, and sets forth what he claims to be the facts xxx."
42

43

Annex A-F, Volume I, Rollo, pp. 193-194.

44

Ice Plant Equipment vs. Martocello, D.C.P., 1941, 43 F. Supp. 281.

45

Phil. Advertising Counselors, Inc. vs. Revilla, L- 31869, Aug. 8, 1973.

46

Warner Barnes & Co., Ltd. vs. Reyes, et. al., 55 O.G. 3109-3111.

47

Philippine Bank of Communications vs. Court of Appeals, 195 SCRA 567 [1991].

48

28 SCRA 807, 812 [1969].

Rule 20 of the old Rules of Court was amended but the change(s) had no adverse effects on the rights
private respondents.
49

50

Development Bank of the Phils. vs. CA, G.R. No. L-49410, 169 SCRA 409 [1989].

51

Substantially the same as Section 3, Rule 34 of the old Rules of Court.

52

adopted by the Marcos children.

dated September 26, 2000 as filed by Mrs. Marcos; dated October 5, 2000 as jointly filed by Mrs. Mano
Ferdinand, Jr.; supplemental motion for reconsideration dated October 9, 2000 jointly filed by Mrs. Manot
Ferdinand, Jr.;
53

Court of Appeals. June 2. 277 [1956]. 2001. Rules Service. 64 Moran.J..When an answer is served in an action to recover a debt or a liquidate demand arising. . Gorricho. 786. April 20.J. sufficient to entitle him to defend. October 28. and the affidavit of the plaintiff or other person having knowledge of the facts. §12. Vol. 58 Rabaca vs. 2000 and December 17. (1996). . et. 60 Rollo. Inc. Rule 34 of the old Rules of Court. pp. 1943. verifying the cause of action and stating the amount claimed belief that there is no defense to the action. shall show su as may be deemed. pp. 65 19 NYS2d 250 [1940]. 62 1. vs. Hon. al.54 dated December 12. 57 Plantadosi vs. 47-48. 59 Carcon Development Corp. Comments on the Rules of Court. 69 Substantially the same as Section 2. 2659-70. vs. 70 Madeja vs. §12. 55 TSN. II. by the judge hearing the motion. 49 C. Patcho. pp. 49 C. Spouses Antera and Virgilio Soriano. Loew's. Rule 1 of the old Rules of Court. 412. Summary Judgment.S. 7 Fed. 61 Substantially the same as Sections 1 and 2. 67 Supra. 71 SCRA 523 [1976]. Fracisco Consolacion. Gamponia. 180 SCRA 348 [1989]. 123 SCRA 540 [1983]. 183-184. express or implied. Velez. § 224. 412. 56 Evadel Realty and Development Corp. 100 Phil. 1999..S. 72 Diaz vs. 68 Gregorio Estrada vs. § 224. on a contract. Rule 113. sealed or not sealed. 103 Phil. 71 Mejia de Lucas vs. on a judgment for a stated sum. 66 73 Am Jur 2d 733. unless the defendant by affidavit or other proof. the answer may be struck out and judgment entered thereon on motion. 261 [1958]. 2000 as filed by the Marcos children. (emphasis ours) 63 73 Am Jur 2d 733. or 2. 341 SCRA 543 [2000].

pp. p. Volume III. 1177-1178. p. p. 284. 650. 89 Chavez vs. Volume II. 1997 ed. Article XI of the 1987 Con 74 Go Tian An vs. 82 Regalado. 83 Moran. Rollo. 86 Substantially the same as Section 1. 472 [1966]. 23 SCRA 29 [1968]. "An Act Declaring Forfeiture in Favor of the State any Property Found to Have Been Unlawfully Acquire Public Officer or Employee and Providing for the Proceedings Therefor". 78 Ibid. 94 Ibid. p.1099-1100. Article VII. p. 92 31A C. Article VII. 1095-1098. Rollo.J. . 1955. 91 Annex HH. 1181. 90 Substantially the same as Section 24.721. 85 Section 4(1). 64. p. Volume II. Volume II. Par.73 Collado vs. 1062. Section 15. Sibonghanoy. 76 77 Petition. II. 1188. 88 Annex F-2... Rule 129 of the old Rules of Court. Rule 9 of the old Rules of Court. 2002. Comments on the Rules of Court. 1081." 81 Substantially the same as Section 2. p. No.. PCGG. 299 SCRA 744. 87 Annex F-1. Annex D. pp. 95 Ibid. 1980 ed. Volume V. 2205. Court of Appeals. October 4.107764. pp. p. Rollo. 79 Id. Volume II. [1998]. 80 Exhibit "S. 93 Annex I.R. G. Republic of the Philippines. Remedial Law Compendium. Rollo. Rule 130 of the old Rules of Court.. 75 Tijam vs. 124 Phil. 84 Section 9. Vol. approved on June 18.S.

Rules of Court Annotated. Par. Paine.795. 105 Substantially the same as Section 2. pp. p. Rule 130 of the old Rules of Court.1506-1507. p. pp. p. 98 31A C. 117 Rollo. p.1260-1261. Rule 129 of the old Rules of Court. 770. 107 Substantially the same as Section 28. 824. 1260.. Manifestation: "Comes now undersigned counsel for the respondent Imelda R.S. Par. Volume II. 113 114 59 Am. 137. de los Santos. 104 Santiago vs. 2d Parties §97 (2000). 112 Rollo. p. Rule 8 of the old Rules of Court.J. p. pp. Marcos. 116 Supra note 3 citing Picket vs. 817. Rollo.. Rollo. 311. Rollo. Volume II. 97 29A Am. The same as Section 7. 110 Ibid. 1201. 322. Rule 130 of the old Rules of Court. 814.S. 100 Substantially the same as Section 8. 108 29 Am Jur 2d Par. Jur. Volume II. Sec. p. Jur. p. p. 199 SE2d 223.96 Ibid. Compulsory joinder of indispensable parties. 2255-2265. 106 Substantially the same as Section 26.. 211. p. Volume II. 115 Supra note 3 § 13 (2000)..J. 109 31A C. and before this Honorable Cour . 1289. 1256. 61 SCRA 146 [1974]. 7. 857. 111 Miriam Defensor Santiago.—Parties in interest without whom no final determ can be had of an action shall be joined either as plaintiffs or defendants. Rule 3 o Rules of Court. 1999 ed. 102 Annex L. 230 Ga 786. 99 Annex M. Par. 103 Annex P-1. 101 Annex S. Rollo.

122 Substantially the same as Section 11. p. Parties may be dropped or added by order of the court on motion of any party or o own initiative at any stage of the action and on such terms as are just. T guarantees of the Republic of the Philippines therefore must include the process rights not only of the de but also of the formal owners of the assets to be delivered. 2464. The Lawphil Project . Rule 3 of the old Rules of Court. Rule 3 of the old Rules of Court." 119 240 SCRA 376. who had resisted the joinder. 121 Id at 470-471. 126 127 Supra note 3. formally the owner of the assets to be seized and restitu not been involved in the collecting procedure pending in the Philippines. quoted from the December 18. the opponent to the appeal. they nevertheless a entitled to a hearing as far as the proceedings are concerned with accounts which are nominally theirs. Any claim against a misjoined part be severed and proceeded with separately. Sec.respectfully manifests: That respondent Imelda R. 120 Supra. – Neither misjoinder nor non-joinder of parties is ground dismissal of an action. holding that a failure to request the joinder of a defendant was excused wher moving party's former counsel. Marcos. 469 [1995]. Smith (CA5 Fla) 487 F2d 571." 118 Rollo. abruptly withdrew his appearance and subs counsel moved promptly to join the corporation. Marcos: "On the other hand. 125 Supra note 3 § 265 (2000) Id citing Gentry vs. later app (CA5 Fla) 538 F2d 109 reh (CA5 Fla) 544 F2d 900. Even though such opponent is n but a legal construction to hide the true ownership to the assets of the Marcos family. 11. Misjoinder and non-joinder of parties. being the beneficiary of the dollar deposits in the name of the various Foundations alleged in the case. 2000 memorandum of respondent Mrs.Arellano Law Foundation Lawphil Main Menu ♦ Constitution . Marcos owns 90% of the subject-matter of the above-entitled case. That in fact only 10% of the subject-matter in the above-entitled case belongs to the Estate of the late Pre Ferdinand E. 123 124 Same as Section 7. 18 FR Serv 2d 221.

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