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[PIL]

Qatar vs Bahrain
* Treaties. While treaties are generally in written form, there are writers who
hold that even an oral agreement can be binding. However, only written
agreements that are new come under the provisions of the Vienna Convention.
No particular form is prescribed.
Facts: On 8 July 1991 Qatar filed in the Registry of the Court an Application
instituting proceedings against Bahrain in respect of certain disputes between
the two States relating to "sovereignty over the Hawar islands, sovereign rights
over the shoals of Dibal and Qit'at Jaradah, and the delimitation of the maritime
areas of the two States". Qatar contended that the Court had jurisdiction to
entertain the dispute by virtue of two "agreements" concluded between the
Parties in December 1987 and December 1990 respectively, the subject and
scope of the commitment to the Court's jurisdiction being determined, according
to the Applicant, by a formula proposed by Bahrain to Qatar on 26 October 1988
and accepted by Qatar in December 1990 (hereinafter referred to as the
"Bahraini formula"). By letters of 14 July and 18 August 1991, Bahrain contested
the basis of jurisdiction invoked by Qatar.

Issue: Whether or not an international agreement creating rights and obligations


can be constituted by the signatories to the minutes of meetings and letters
exchanged.
Held: Yes. An international agreement creating rights and obligations can be
constituted by the signatories to the minutes of meetings and letters exchanged.
Though Bahrain (D) argued that the Minutes were only a record of negotiation
and could not serve as a basis for the I.C.J.s jurisdiction, both parties agreed that
the letters constituted an international agreement with binding force.
International agreements do not take a single form under the Vienna Convention
on the Law of Treaties, and the Court has enforced this rule in the past.
In this case, the Minutes not only contain the record of the meetings between
the parties, it also contained the reaffirmation of obligations previously agreed to
and agreement to allow the King of Saudi Arabia to try to find a solution to the
dispute during a six-month period, and indicated the possibility of the
involvement of the I.C.J. The Minutes stipulated commitments to which the
parties agreed, thereby creating rights and obligations in international law.
This is the basis therefore of the existence of international agreement.

By a Judgment of 1 July 1994, the Court found that the exchanges of letters
between the King of Saudi Arabia and the Amir of Qatar of 19 and
21 December 1987, and between the King of Saudi Arabia and the Amir of
Bahrain of 19 and 26 December 1987, and the document headed "Minutes" and
signed at Doha on 25 December 1990 by the Ministers for Foreign Affairs of
Bahrain, Qatar and Saudi Arabia, were international agreements creating rights
and obligations for the Parties; and that, by the terms of those agreements, the
Parties had undertaken to submit to the Court the whole of the dispute between
them, as circumscribed by the Bahraini formula. The Court decided to afford the
Parties the opportunity to submit to it the whole of the dispute. After each of the
Parties had filed a document on the question within the time-limit fixed, the
Court, by a Judgment of 15 February 1995, found that it had jurisdiction to
adjudicate upon the dispute between Qatar and Bahrain which had been
submitted to it; that it was now seised of the whole of the dispute; and that the
Application of the State of Qatar as formulated on 30 November 1994 was
admissible. In the course of the written proceedings on the merits, Bahrain
challenged the authenticity of 82 documents produced by Qatar as annexed to
its pleadings.
Arguments: On the part of the Bahrains (D) Foreign Minister, he argued that no
agreement existed because he never intended to enter an agreement fails on
the grounds that he signed documents creating rights and obligations for his
country. Also, Qatars (P) delay in applying to the United Nations Secretariat does
not indicate that Qatar (P) never considered the Minutes to be an international
agreement as Bahrain (D) argued. However, the registration and non-registration
with the Secretariat does not have any effect on the validity of the agreement.

Additional information: There is no doubt that language plays a vital role


in influencing a courts decision as to whether an agreement has been
entered into and in this particular case, the language was the main
focus of the I.C.J and it was the contents of the Minutes that persuaded
the I.C.J. to reject the Bahrain foreign ministers claim that he did not
intend to enter into an agreement. Where this is compared to general
U.S. contract law, where a claim by one of the parties that no contract existed
because there was no meeting of the minds might be the ground upon which a
U.S. court would consider whether a contract did exist with more care and
thought than the I.C.J. gave the foreign minister of Bahrains claims.

[PIL]

BORIS MEJOFF, petitioner, vs. DIRECTOR OF PRISONS, respondent.


*Stateless persons are those who do not have a nationality (de facto or
de jure statless). De Jure stateless are those who have lost their
nationality while de Facto stateless are those who have nationality but
to whom protection is denied by their state when out of the state.
The petitioner Boris Mejoff is an alien of Russian descent who was
brought to this country from Shanghai as a secret operative by the
Japanese forces during the latter's regime in these Islands. Upon
liberation he was arrested as a Japanese spy, by U. S. Army Counter
Intelligence Corps. Later he was handed to the Commonwealth
Government for disposition in accordance with Commonwealth Act No.
682. Thereafter the People's Court ordered his release. But the
deportation board taking his case up, found that having no travel
documents Mejoff was illegally in this country, and consequently
referred the matter to the immigration authorities. After the
corresponding investigation, the Board of Commissioners of
Immigration on April 5, 1948, declared that Mejoff had entered the
Philippines illegally in 1944, without inspection and admission by the
immigration officials at a designated port of entry and, therefore, it
ordered that he be deported on the first available transportation to
Russia. The petitioner was then under custody, he having been arrested
on March 18, 1948. In May, 1948, he was transferred to the Cebu
Provincial Jail together with three other Russians to await the arrival of
some Russian vessels. In July and in August of that year two boats of
Russian nationality called at the Cebu Port. But their masters refused to
take petitioner and his companions alleging lack of authority to do so. In
October, 1948, after repeated failures to ship this deportee abroad, the
authorities removed him to Bilibid Prison at Muntinglupa where he has
been confined up to the present time, inasmuch as the Commissioner of
Immigration believes it is for the best interest of the country to keep
him under detention while arrangements for his deportation are being
made.
For the Petitioner: 1) that having been brought to the Philippines legally
by the Japanese forces, he may not now be deported. It is enough to
say that the argument would deny to this Government the power and
the authority to eject from the Islands any and all of those members of
the Nipponese Army of occupation who may still be found hiding in

remote places. 2) he may not be deported because the statutory period


to do that under the laws has long expired.
The proposition has no basis. Under section 37 of the Philippine
Immigration Act of 1940 any alien who enters this country "without
inspection and admission by the immigration authorities at a
designated point of entry" is subject to deportation within five years. In
a recent decision of a similar litigation (Borovsky vs. Commissioner of
Immigration) we denied the request for habeas corpus, saying: "It must
be admitted that temporary detention is a necessary step in the
process of exclusion or expulsion of undesirable aliens and that
pending arrangements for his deportation, the Government has
the right to hold the undesirable alien under confinement for a
reasonable length of time. However, under established
precedents, too long a detention may justify the issuance of a
writ of habeas corpus.
"The meaning of "reasonable time" depends upon the circumstances,
specially the difficulties of obtaining a passport, the availability of
transportation, the diplomatic arrangements concerned and the efforts
displayed to send the deportee away. Considering that this Government
desires to expel the alien, and does not relish keeping him at the
people's expense, we must presume it is making efforts to carry out the
decree of exclusion by the highest officer of the land. On top of this
presumption assurances were made during the oral argument that the
Government is really trying to expedite the expulsion of this petitioner.
On the other hand, the record fails to show how long he has been under
confinement since the last time he was apprehended. Neither does he
indicate neglected opportunities to send him abroad. And unless it is
shown that the deportee is being indefinitely imprisoned under the
pretence of awaiting a chance for deportation or unless the Government
admits that it cannot deport him or unless the detainee is being held for
too long a period our courts will not interfere.
"In the United States there were at least two instances in which courts
fixed a time limit within which the imprisoned aliens should be deported
otherwise their release would be ordered by writ of habeas corpus.
Nevertheless, supposing such precedents apply in this jurisdiction, still
we have no sufficient data fairly to fix a definite deadline."

[PIL]

The difference between this and the Borovsky case lies in the fact that
the record shows this petitioner has been detained since March, 1948.
However, considering that in the United States (where transportation
facilities are much greater and diplomatic arrangements are easier to
make) a delay of twenty months in carrying out an order of deportation
has not been held sufficient to justify the issuance of the writ of habeas
corpus, this petition must be, and it is hereby denied.
PERFECTO, J., dissenting:
To continue keeping petitioner under confinement is a thing that shocks
conscience. Under the circumstances, petitioner is entitled to be released from
confinement. He has not been convicted for any offense for which he may be
imprisoned. Government's inability to deport him no pretext to keep him
imprisoned for an indefinite length of time. The constitutional guarantee that no
person shall be deprived of liberty without due process of law has been intended
to protect all inhabitants or residents who may happen to be under the shadows
of Philippine flag.
Our vote is the same as one we cast when the case of Borovsky vs.
Commissioner of Immigration, L-2852, was submitted for decision although, for
some misunderstanding, our vote was overlooked at the time of the decision was
promulgated. Our vote is to grant the petition and to order the immediate
release of petitioner, without prejudice for the government to deport him as soon
as the government could have the means to do so. In the meantime, petitioner is
entitled to live a normal life in a peaceful country, ruled by the principles of law
and justice.

[PIL]
Goldwater vs Carter
*Topic: Authority to terminate. While the Vienna Convention enumerates those
who have the capacity to enter into treaties, it does not say who may terminate
a treaty. Logically, however, the authority to terminate should also belong to the
one who has the authority to enter into the treaty. (Question: Can the President
unilaterally terminate a treaty? Goldwater vs Carter discussed this question
relative to Pres. Carters termination of the defense treaty with Taiwan. No
decision was reached except to say that the matter was not yet ripe for judicial
review.
Facts: President Carter terminated a defense treaty with Taiwan. Neither the
Senate nor the House have taken action to prevent or contest the action.
Several members brought this claim alleging the President has deprived them of
their Constitutional role. In the present posture of this case, we do not know
whether there ever will be an actual confrontation between the Legislative and
Executive Branches. Although the Senate has considered a resolution
declaring that Senate approval is necessary for the termination of any
mutual defense treaty, no final vote has been taken on the resolution.
Arguments:
P) The Constitution makes specific mention that the President needs the
approval and consent of the Senate to make a treaty, therefor the contra positive
is true: President cannot terminate a treaty without approval and consent of the
Senate. If so, a constitutional case and controversy are ripened for decision.
Whether the decision making authority is Constitutionally valid is a
determination left to the courts.
Def) The issue is a political question where the PL is asking the court to issue an
advisory opinion on whether the President can or cannot terminate a treaty.
Issue: Whether the President, in terminating at treaty with another country,
needs the approval of Congress, and if so does it involve a political question?
Held: The judgment is vacated and the case remanded to the court for dismissal.
Rule: The President is authorized to make treaties with the advice and consent of
the Senate. Treaties shall be a part of the supreme law of the land.
Court has recognized that an issue should not be decided if it is not ripe
for judicial review. Prudential considerations persuade me that a
dispute between Congress and the President is not ready for judicial
review unless and until each branch has taken action asserting its
constitutional authority. Differences between the President and the
Congress are commonplace under our system. The differences should,
and almost invariably do, turn on political rather than legal
considerations. The Judicial Branch should not decide issues affecting
the allocation of power between the President and Congress until the
political branches reach a constitutional impasse. Otherwise, we would
encourage small groups or even individual Members of Congress to
seek judicial resolution of issues before the normal political process has
the opportunity to resolve the conflict

Court Rationale: If Congress had challenged the Presidents authority to


terminate, then the court would have justiciable issue to decide. Without a
challenge the issue only involves a political question. Neither the Senate nor the
House have taken any action, thereby rendering the case unripe for decision.
There is no specific language preventing the President from
terminating treaties without approval. There is no showing that
Congress has rejected the Presidents claim. It is Congress choice to
challenge the President not the Courts.
Where the Constitution is silent this case is controlled by political standards.
Congress has terminated treaties without Presidential approval.

[PIL]
Department of Foreign Affairs vs. NLRC (G.R. No. 113191)
* Immunities. Because they are international personality, they can also be given
the immunities and privileges of international persons. Their immunities,
however, have for basis not sovereignty, as it is for states, but the need for the
effective exercise of their function.
Facts: On 27 January 1993, private respondent Magnayi filed an illegal dismissal
case against ADB and the latters violation of the labor only contracting law.
Two summonses were served, one sent directly to the ADB and the other through
the Department of Foreign Affairs ("DFA"). ADB and the DFA notified respondent
Labor Arbiter that the ADB, as well as its President and Officers, were covered by
an immunity from legal process except for borrowings, guaranties or the sale of
securities pursuant to Article 50(1) and Article 55 of the Agreement Establishing
the Asian Development Bank (the "Charter") in relation to Section 5 and Section
44 of the Agreement Between The Bank And The Government Of The Philippines
Regarding The Bank's Headquarters (the "Headquarters Agreement"). The Labor
Arbiter took cognizance of the complaint on the impression that the ADB had
waived its diplomatic immunity from suit and, in time, rendered a decision in
favour Magnayi. The ADB did not appeal the decision. Instead, on 03 November
1993, the DFA referred the matter to the NLRC; in its referral, the DFA sought a
"formal vacation of the void judgment." When DFA failed to obtain a favorable
decision from the NLRC, it filed a petition for certiorari.

No. The ADB didn't descend to the level of an ordinary party to a commercial
transaction, which should have constituted a waiver of its immunity from suit, by
entering into service contracts with different private companies. There are two
conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot,
without its consent, be made a respondent in the Courts of another
sovereign. According to the newer or restrictive theory, the immunity of the
sovereign is recognized only with regard to public acts or acts jure imperii of a
state, but not with regard to private act or acts jure gestionis.
Certainly, the mere entering into a contract by a foreign state with a private
party cannot be the ultimate test. Such an act can only be the start of the
inquiry. The logical question is whether the foreign state is engaged in the
activity in the regular course of business. If the foreign state is not engaged
regularly in a business or trade, the particular act or transaction must then be
tested by its nature. If the act is in pursuit of a sovereign activity, or an incident
thereof, then it is an act jure imperii, especially when it is not undertaken for
gain or profit.
The service contracts referred to by private respondent have not been intended
by the ADB for profit or gain but are official acts over which a waiver of immunity
would not attach.
3) Whether or not the DFA has the legal standing to file the present petition

Issues:
1) Whether or not ADB is immune from suit
No. Under the Charter and Headquarters Agreement (Art. 50(1) and
Section 5 respectively), the ADB enjoys immunity from legal process of
every form, except in the specified cases of borrowing and guarantee
operations, as well as the purchase, sale and underwriting of securities.
The Banks officers, on their part, enjoy immunity in respect of all acts performed
by them in their official capacity. The Charter and the Headquarters Agreement
granting these immunities and privileges are treaty covenants and commitments
voluntarily assumed by the Philippine government which must be respected.
Being an international organization that has been extended a
diplomatic status, the ADB is independent of the municipal law. One of
the basic immunities of an international organization is immunity from
local jurisdiction, i.e., that it is immune from the legal writs and
processes issued by the tribunals of the country where it is found. The
obvious reason for this is that the subjection of such an organization to the
authority of the local courts would afford a convenient medium thru which the
host government may interfere in their operations or even influence or control its
policies and decisions of the organization; besides, such subjection to local
jurisdiction would impair the capacity of such body to discharge its
responsibilities impartially on behalf of its member-states."
2) Whether or not by entering into service contracts with different private
companies, ADB has descended to the level of an ordinary party to a commercial
transaction giving rise to a waiver of its immunity from suit.

Yes. The DFA's function includes, among its other mandates, the determination of
persons and institutions covered by diplomatic immunities, a determination
which, when challenged, entitles it to seek relief from the court so as not to
seriously impair the conduct of the country's foreign relations. The DFA must be
allowed to plead its case whenever necessary or advisable to enable it to help
keep the credibility of the Philippine government before the international
community. When international agreements are concluded, the parties thereto
are deemed to have likewise accepted the responsibility of seeing to it that their
agreements are duly regarded. In our country, this task falls principally on the
DFA as being the highest executive department with the competence and
authority to so act in this aspect of the international arena. In Holy See vs. Hon.
Rosario, Jr., this Court has explained the matter in good detail; viz:
In Public International Law, when a state or international agency wishes
to plead sovereign or diplomatic immunity in a foreign court, it
requests the Foreign Office of the state where it is sued to convey to
the court that said defendant is entitled to immunity. In the United
States, the procedure followed is the process of 'suggestion,' where the foreign
state or the international organization sued in an American court requests the
Secretary of State to make a determination as to whether it is entitled to
immunity. If the Secretary of State finds that the defendant is immune from suit,
he, in turn, asks the Attorney General to submit to the court a 'suggestion' that
the defendant is entitled to immunity. In the Philippines, the practice is for the
foreign government or the international organization to first secure an executive
endorsement of its claim of sovereign or diplomatic immunity. But how the
Philippine Foreign Office conveys its endorsement to the courts varies. In
International Catholic Migration Commission vs. Calleja, the Secretary of Foreign
Affairs just sent a letter directly to the Secretary of Labor and Employment,
informing the latter that the respondent-employer could not be sued because it

[PIL]
enjoyed diplomatic immunity. In World Health Organization vs. Aquino, the
Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer
vs. Tizon, the U.S. Embassy asked the Secretary of Foreign Affairs to request the
Solicitor General to make, in behalf of the Commander of the United States
Naval Base at Olongapo City, Zambales, a 'suggestion' to respondent Judge. The
Solicitor General embodied the 'suggestion' in a manifestation and memorandum
as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of
Legal Affairs moved with this Court to be allowed to intervene on the side of

petitioner. The Court allowed the said Department to file its memorandum in
support of petitioner's claim of sovereign immunity. In some cases, the defense
of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels. In cases where the foreign states
bypass the Foreign Office, the courts can inquire into the facts and make their
own determination as to the nature of the acts and transactions involved.