PUBLIC INTERNATIONAL LAW

I.

FUNDAMENTAL CONCEPTS AND PRINCIPLES OF INTERNATIONAL LAW

A. DEFINITION
1. Traditional: That branch of public law which regulates the relations of
States and of other entities which have been granted international
personality. [This definition focuses on subjects, which are entities
which possess international personality and with rights and obligations
recognized under international law, as against objects, which are
persons or things in respect of which rights are held and obligations
assumed by the subjects of international law.]
2. Modem: The law that deals with the conduct of States and international
organizations, their relations with each other and, in certain
circumstances, their relations with persons, natural or juridical
[American Third Restatement],

Basis of International Law.

1. The Law of Nature School. There is a natural and universal principle of

right and wrong, independent of mutual intercourse or compact, which
can be discovered and recognized by every individual through the use
of his reason and conscience. Since individuals compose the State
whose will is but the collective will of the inhabitants, the State also
becomes bound by the law of nature.
2. The Positivist School. The binding force of international law is derived
from the agreement of the States to be bound by it. In this context,
international law is not a law of subordination but of coordination.
3. The Eclectic or Grotian School. In so far as it conforms to the dictates
of right reason, the voluntary law may be said to blend with the natural
law and be, indeed, an expression of it. In case of conflict, the natural
law prevails, being the more fundamental law.

Public International Law distinguished from:

1. Private International Law. As to nature, international vs. municipal; as

to remedies, international modes vs. local tribunals; as to parties,
international entities vs. private persons; as to enforcement,
international sanctions vs. sheriff/police.
2. International Morality or Ethics. Principles which govern relations of
States from the standpoint of conscience, morality, justice and
3. International Comity. Rules of politeness/courtesy observed by States
in their relations with other States.
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4. International Diplomacy. Objects of international policy and the

conduct of foreign affairs. .
5. International Administrative Law. Body of laws which regulate the
relations and activities of national and international agencies with
respect to their material and intellectual interests which have received
international recognition.

International Law as true law. Although it may not comply with

John Austins concept of law, i.e., enforced by sovereign political
authority, nonetheless it is still true law.

1. Application, enforcement and compliance. The absence of a central

lawmaking authority and the debilitating jurisdictional defects weaken the
expectation of compliance in comparison with the situation in the
domestic plane. These considerations are, however, balanced by the risk
of political/ economic retaliation and other sanctions, such as adverse
public opinion, retorsions, reprisals, the UN machinery, and the conviction
that obedience will redound to the public good.
B. SOURCES OF INTERNATIONAL LAW
On the domestic sphere, the constitution, legislative enactments and case
law (stare decisis). On the international plane, it is a bit complicated
because there is no body likened to a national legislature, no fundamental
law, and the doctrine of precedents is not applicable.
1. However, the most authoritative enumeration is found in Art. 38,
Statute of the International Court of Justice, which provides that the Court,
whose function is to decide in accordance with International Law such
disputes as are submitted to it, shall apply:
As Primary Sources:
a) International Treaties and Conventions, whether general or
particular, establishing rules expressly recognized by the contesting
states.
b) International Customs, as evidence of a general practice accepted
as binding law through persistent usage over a long period of time, e.g.,
angary, exemption of unarmed fishing vessel from capture. It is necessary,
however, that the custom be [i] prevailing practice by a number of states;
[ii] repeated over a considerable period of time; and [iii] attended by
opinio juris or a sense of legal obligation.
c) General Principles of Law. These are rules derived mainly from
natural law, observed and recognized by civilized nations, e.g., res
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judicata, prescription, pacta sunt servanda and estoppel. See Agustin vs.
Edu, where the doctrine of pacta sunt servanda was applied by the Court
relative to the validity of the administrative rule requiring the use of early
warning device, as part of the Vienna Convention on Road Signs and
Signals.
[Note: To these may be added the principle of ex aequo et bono (what is
good and just), provided that the parties to the dispute agree thereto, as
provided in Art. 38 (1), Statut of the International Court of Justice.]
As Secondary Sources:
a) Judicial Decisions, generally of international tribunals, the most
authoritative being the International Court of Justice. They are not really
sources, but subsidiary means for finding what the law is, and whether a
norm has been accepted as a rule of international law. The decision of a
national court may be used depending upon th prestige and perceived
impartiality of the domestic court, not being in conflict with the decisions
of international tribunals, and its admissibility in the forum where it is
cited.
b) Writings of publicists, which must be fair and unbiased
representation of international law by acknowledged authorities in the
field.
2. Interpretation of Art. 38. Although the provision is silent on the question
of whether the three primary sources have the same hierarchic value, by
practice, treaties tak precedence over customs, and customs over general
principles of law, except:
a) The principle of ius coaens: Customary international law which has the
status of peremptory (absolute, uncompromising, certain) norm of
international law. A peremptory norm is a norm accepted and recognized
by the international community of states as a rule, from which no
derogation is permitted and which can be modified onl by a subsequent
norm having the same character.
Examples are slave trade, piracy, and terrorism. See Human Rights Cases
vs. Marcos, where it was held that official torture of prisoners/ dissenters
was a violation of the principle of jus cogens.
C. RELATIONSHIP WITH MUNICIPAL LAW.
1. Monist vs. Dualist. To monists, there is no substantial distinction
between international law and municipal law. But to dualists, the
distinctions lie in that ML is issued by a political superior for observance
by those under its authority, while IL is not imposed but adopted by states
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as a common rule of action; ML consists of enactments of the law-making

authority, while IL is derived from such sources as international customs,
conventions or general principles of law; ML regulates relations of
individuals among themselves, while IL applies to relations between states
and international persons; violations of ML are redressed through local
judicial and administrative processes, while in IL, they are resolved
through state-to-state transactions; an breaches of ML entail individual
responsibility, while in IL there is collective responsibility.
1. DOCTRINE OF INCORPORATION
a) The doctrine of incorporation is expressed in Sec. 2, Art. II,
Philippine Constitution, as follows: The Philippines renounces
war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the
land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations. See: Kuroda vs.
Jalandoni, 83 Phil. 171 (although the Philippines was not a signatory to the
Hague and Geneva Conventions, international jurisprudence is
automatically incorporated in Philippine law, thus making war crimes
punishable in the Philippines); Lo Ching vs Archbishop of Manila, 81 Phil
601; Borovsky vs. Commissioner of Immigration, G.R. No. L-4362 (1951)
(where prolonged detention of a stateless alien pending deportation was
deemed illegal, citing the Universal Declaration of Human Rights which is
incorporated in Philippine law).
CASES
1. PHARMACEUTICAL HEALTHCARE vs. DUQUE
FACTS:
-

Executive Order No. 51 (The Milk Code - TMC) was issued by Pres. Aquino
on Oct. 28, 1986 by virtue of the legislative powers granted to her under
the Freedom Constitution.
One of the preambular clauses of TMC the law seeks to give effect to
Article 11 of the International Code of Marketing of Breastmilk Substituttes
(ICMBS), a code adopted by the WHA (World Health Assembly) in 1981.
In 1990, the Philippine ratified the International Convention on the Rights
of the Child. Art. 24 of the instrument mandates that States should take
measure to diminish infant mortality and should ensure that all segments
of society are informed of the advantages of breastfeeding.
From 1982 2006, the WHA adopted several resolutions to the effect that
breastfeeding should be supported, promoted and protected, hence, it
should be ensured that nutrition and health claims are not permitted for
breastmilk substitutes.
May 15, 2006 DOH issues the assailed RIRR (Revised Implementing Rules
and Regulations of E.O. 51 or A.O. No. 2006-0012) which was to take effect
on July 7, 2006. The RIRR imposes a ban on all advertisements of
breastmilk substitutes

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June 28, 2006 Petitioner filed the present Petition for Certiorari and
Prohibition with Prayer for the Issuance of a TRO or Writ of Preliminary
injunction.
August 15, 2006 the Court issued a Resolution granting the TRO,
enjoining the respondents from implementing the assailed RIRR.
Petitioner assails the RIRR for going beyond the provisions of TMC thereby
amending and expanding the coverage of the said law.
DOH meanwhile contends that the RIRR implements not only TMC but also
various international instruments regarding infant and young child
nutrition. They posit that the said international instruments are deemed
part of the law of the land and therefore may be implemented by the DOH
in the RIRR.

ISSUE: WON the RIRR is unconstitutional?

SUB-ISSUES: WON the RIRR is in accord with TMC? WON pertinent international
agreements entered into by the Philippines are part of the law of the land and
may thus be implemented through an RIRR, if so, is the RIRR in accord with such
international agreements?
HELD: No. However what may be implemented is the RIRR based on the Milk
Code which in turn is based on the ICMBS as this is deemed part of the law of the
land. The other WHA Resolutions however cannot be imposed as they are not
deemed part of the law of the land.
RATIO:
1. What are the international instruments referred to by the respondents
part of the law of the land?
- The various international instruments invoked by respondents are:
(1) The UN Conventions on the Rights of the Child
(2) The International Convenant on Economic, Social, and Cultural Rights
(3) Convention on the Elimination of All Forms of Discrimination Against
Women
- These instruments only provide general terms of the steps that States
must take to prevent child mortality. Hence, they do not have anything
about the use and marketing of breastmilk substitutes
-

The ICMBS and other WHA Resolutions however, are the international
instruments which have specific provisions on breastmilk substitutes

Under the 1987 Constitution, international law can become part of

domestic law in 2 ways:

(1) Transformation an international law is transformed into a domestic law

through a constitutional mechanism such as local legislation
Treaties become part of law of the land through this method, pursuant to
Art 7, Sec 21 wherein no treaty or international agreement shall be
valid.. unless concurred by at least 2/3 of Senate
The ICMBS and WHA Resolutions are NOT treaties as they havent been
concurred in by the required 2/3 vote.
HOWEVER, the ICMBS has been transformed into domestic law through
local legislation that is TMC.
Therefore, it is not the ICMBS per se that has the force of law but its TMC.

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While TMC is almost a verbatim reproduction of the ICMBS, it did not adopt
the latters provision on the absolute prohibition on advertising of products
within the scope of the ICMBS. Instead the MC provides that advertising
promotion or other marketing materials may be allowed if such materials
are approved by a committee.

(2) Incorporation by mere constitutional declaration, international law is

deemed to have the force of domestic law
This is found under Art 2, Sec 2 The Philippines adopts generally
accepted principles of international law as part of the law of the land
In Mihares v. Ranada: International law becomes customary rules accepted
as binding as a result of two elements:
1.) Established, widespread, and consistent practice on part of the state
2.) Opinion juris sive necessitates (opinion as to law or necessity.)
Generally accepted principles of international law refer to norms of general
or customary international law which are binding on all states, valid
through all kinds of human societies, and basic to legal systems generally
Fr. Bernas has a definition similar to the one above. Customary
international law has two factors:
1.) Material factor how states behave
The consistency and the generality of the practice
2.) Psychological or subjective factor why they behave the way they do
Once state practice has been established, now determine why they
behave they do. Is it ouor of courtesy or opinio juris (the belief that a
certain type of behavior is obligatory)
When a law satisfies the two factors it becomes part of customary
international law which is then incorporated into our domestic system
2. Since the WHA Resolutions have not been embodied in any local
legislation, have they attained the status of customary law and hence
part of our law of the land?
- The World Health Organization (WHO) is one of the international
specialized agencies of the UN.
- According to the WHO Constitution, its the WHA which determines the
policies of the WHO, the former also has the power to adopt regulations
concerning advertising and labeling of pharmaceutical and similar
products and to make recommendations to members on any matter
within the Organizations competence
- Note that the legal effect of a regulation as opposed to recommendation is
quite different
(1) Regulations which are duly adopted by the WHA are binding on member
states
(2) On the other hand, recommendations of the WHA do not come into force
for its members unlike regulations. Rather, they carry moral and political
weight as they constitute the judgment on a health issue of the collective
membership of the highest body in the field of health.
- The WHA resolution adopting the ICMBS and the subsequent WHA
resolutions urging states to implement the ICMBS are merely
recommendatory and legally non-binding.
- Hence, unlike the ICMBS which has become TMC through legislative
enactment, the subsequent WHA Resolutions, which provide for exclusive
breastfeeding and prohibition on advertisements and promotions of
breastmilk have not been adopted as domestic law.
- WHA Resolutions have been viewed to constitute soft law or non-binding
norms, which influence state behavior. Soft law has been noted to be a

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rapid means of norm creation, in order to reflect and respond to the

changing needs and demands of constituents (of the UN.)
As previously discussed, for an international rule to be considered
customary law, it must be established that such rule is followed by states
because it is considered obligatory (opinio juris).
In the case at bar, respondents have not presented any evidence to prove
that the WHA Resolutions are in fact enforced or practice by member
states. Further, they failed to establish that provisions of pertinent WHA
Resolutions are customary international law that may be deemed part of
law of the land.
Hence, legislation is necessary to transform the WHA resolutions into
domestic law. They cannot thus be implemented by executive agencies
without the need of a law to be enacted by legislature.
OTHER ISSUES:
WON the petitioner is the real party in interest? Yes.
An association has standing to file suit for its workers despite its lack of
direct interest of its members are affected by the action. An organization
has standing to assert the concerns of its constituents. (Exec Sec vs CA)
The Court has rules that an association has the legal personality to
represent its members because the results of the case will affect their vital
interests. (Purok Bagong Silang Association Inc. vs. Yuipco)
In the petitioners Amended Articles of Incorporation, it states that the
association is formed to represent directly or through approved
representatives the pharmaceutical and health care industry before the
Philippine Government and any of its agencies, the medical professions
and the general public.
Therefore, the petitioner, as an organization, has an interest in fulfilling its
avowed purpose of representing members who are part of the
pharmaceutical and health care industry. Petitioner is duly authorized to
bring to the attention of the government agencies and courts any
grievance suffered by its members which are directly affected by the
assailed RIRR.
The petitioner, whose legal identity is deemed fused with its members,
should be considered as a legal party-in-interest which stands to be
benefited or injured by any judgment in the case.
WON the DOH has the power to implement the WHA Resolutions
under the Revised Administrative Code even in the absence of a
domestic law? Only the provisions of the Milk Code. (as per the
discussion above)
Section 3, Chapter 1, Title IX of the RAC of 1987 provides that the DOH
shall define the national health policy and can issue orders and regulations
concerning the implementation of established health policies.
A.O. No 2005 -0014 which provides the national policy on infant and young
child feeding, does not declare that as part of its policy, the advertisement
or promotion of breastmilk substitutes should be absolutely prohibited.
Only the provisions of the Milk Code, but not those of the subsequent WHA
Resolutions, can be validly implemented by the DOH through the subject
RIRR.
WON the provisions of the RIRR being in accordance with the Milk
Code? Not all of them
Assailed provisions: [1] extending the coverage to young children; [2]
imposing exclusive breastfeeding for infants from 0-6 months; [3] imposes

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an absolute ban on advertising and promotion for breastmilk substitutes;

[4] requiring additional labeling requirements; [5] prohibits the
dissemination of information on infant formula; [6] forbids milk
manufacturers and distributors to extend assistance in research and
continuing education Although the DOH has the power under the Milk
Code to control information regarding breastmilk vis--vis breastmilk
substitutes, this power is not absolute because it has no power to impose
an absolute prohibition in the marketing, promotion and advertising of
breastmilk substitutes. Several provisions of the Milk Code attest to the
fact that such power to control information is not absolute.
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code
because such provisions impose an absolute prohibition on advertising,
promotion and marketing of breastmilk substitutes, which is not provided
for in the Milk Code. Section 46 is violative of the Milk Code because the
DOH has exceeded its authority in imposing such fines or sanctions when
the Milk Code does not do so. Other assailed provisions are in accordance
with the Milk Code.
WON Section 13 of the RIRR providing a sufficient standard? Yes.
Questioned provision, in addition to Section 26 of Rule VII provide labeling
requirements for breastmilk substitutes found to be in consonance with
the Milk Code
The provisions in question provide reasonable means of enforcing related
provisions in the Milk Code.
WON Section 57 of the RIRR repeals existing laws?
Section in question only repeals orders, issuances and rules and
regulations, not laws. The provision is valid as it is within the DOHs rulemaking power.
An administrative agency has quasi-legislative or rule-making power.
However, such power is limited to making rules and regulation subjected
to the boundaries set by the granting statute and the Constitution. The
power is also subject to the doctrine of non-delegability and separability of
powers.
The power, which includes amending, revising, altering or
repealing, is granted to allow for flexibility in the implementation of the
laws.
WON On Section 4, 5(w), 11, 22, 32, 47 and 52 violates the due
process clause of the Constitution (Article III Section 1)?
Despite the fact that the present Constitution enshrines free enterprise as
a policy, it nonetheless reserves to the government the power to intervene
whenever necessary to promote the general welfare free enterprise does
not call for the removal of protective regulations. It must be clearly
explained and proven by competent evidence just exactly how such
protective regulation would result in the restraint of trade.
Section 4 proscription of milk manufacturers participation in any
policymaking body; Section 22 classes and seminars for women and
children; Section 32 giving of assistance, support and logistics or
training; Section 52 giving of donations
In the instant case, petitioner failed to show how the aforementioned
sections hamper the trade of breastmilk substitutes. They also failed to
establish that these activities are essential and indispensable to their
trade.

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Disposition: The Petition is Partially Granted. Only sections 4(f),

11 and 46 of A.O. 2006-0014 are declared null and void for being
ultra vires. The TRO is lifted insofar as the rest of the provisions
of A.O. 2006-0012 is concerned.

2. BAYAN MUNA vs. ROMULO

FACTS: Petitioner Bayan Muna is a duly registered party-list group established to
represent the marginalized sectors of society. Respondent Blas F. Ople, now
deceased, was the Secretary of Foreign Affairs during the period material to
thiscase. Respondent Alberto Romulo was impleaded in his capacity as then
Executive Secretary.
Rome Statute of the International Criminal Court. Having a key determinative bearing
on this case is the Rome Statute establishing the International Criminal Court
(ICC) with the power to exercise its jurisdiction over persons for the mostserious
crimes of international concern and shall be complementary to the national criminal
jurisdictions
The serious crimes adverted to cover those considered grave under international
law, such as genocide, crimes againsthumanity, war crimes, and crimes of
aggression.On December 28, 2000, the RP, through Charge dAffaires Enrique A.
Manalo, signed the Rome Statute which, by itsterms,is subject to ratification,
acceptance or approval by the signatory states. As of the filing of the instant
petition, only 92 out of the 139 signatory countries appear to have completed the
ratification, approval and concurrence process. The Philippines is not among the
92.
ISSUE: Whether or not the RP-US Non Surrender Agreement is void ab initio for
contracting obligations that are either immoral or otherwise at variance with
universally recognized principles of international law.
HELD: No. Petitioner urges that the Agreement be struck down as void ab initio
for imposing immoral obligations and/or being at variance with allegedly
universally recognized principles of international law. The immoral aspect
proceeds from the fact that the Agreement, as petitioner would put it, leaves
criminals immune from responsibility for unimaginable atrocities that deeply
shock the conscience of humanity; it precludes our country from delivering an
American criminal to the ICC.
The above argument is a kind of recycling of petitioners earlier position, which, as
already discussed, contends that the RP, by entering into the Agreement, virtually
abdicated its sovereignty and in the process undermined its treaty obligations
under the Rome Statute, contrary to international law principles.
The Court is not persuaded. Suffice it to state in this regard that the nonsurrender agreement, as aptly described by the Solicitor General, is an assertion
by the Philippines of its desire to try and punish crimes under its national law. The
agreement is a recognition of the primacy and competence of the countrys
judiciary to try offenses under its national criminal laws and dispense justice fairly
and judiciously. Petitioner, labors under the erroneous impression that the
Agreement would allow Filipinos and Americans committing high crimes of

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international concern to escape criminal trial and punishment. This is manifestly

incorrect. Persons who may have committed acts penalized under the Rome
Statute can be prosecuted and punished in the Philippines or in the US; or with
the consent of the RP or the US, before the ICC, assuming that all the formalities
necessary to bind both countries to the Rome Statute have been met.
Perspective wise, what the Agreement contextually prohibits is the surrender by
either party of individuals to international tribunals, like the ICC, without the
consent of the other party, which may desire to prosecute the crime under its
existing laws. With this view, there is nothing immoral or violative of international
law concepts in the act of the Philippines of assuming criminal jurisdiction
pursuant to the non-surrender agreement over an offense considered criminal by
both Philippine laws and the Rome Statute
International Agreements; treaties and executive agreements. Under international
law, there is no difference between treaties and executive agreements in terms of
their binding effects on the contracting states concerned, as long as the
negotiating functionaries have remained within their powers. However, a treaty
has greater dignity than an executive agreement, because its constitutional
efficacy is beyond doubt, a treaty having behind it the authority of the President,
the Senate, and the people; a ratified treaty, unlike an executive agreement,
takes precedence over any prior statutory enactment. Petitioner, in this case,
argues that the Non-Surrender Agreement between the Philippines and the US is
of dubious validity, partaking as it does of the nature of a treaty; hence, it must
be duly concurred in by the Senate. Petitioner relies on the case, Commissioner of
Customs v. Eastern Sea Trading, in which the Court stated: international
agreements involving political issues or changes of national policy and those
involving international arrangements of a permanent character usually take the
form of treaties; while those embodying adjustments of detail carrying out well
established national policies and traditions and those involving arrangements of a
more or less temporary nature take the form of executive agreements. According
to petitioner, the subject of the Agreement does not fall under any of the subjectcategories that are enumerated in the Eastern Sea Trading case that may be
covered by an executive agreement, such as commercial/consular relations, mostfavored nation rights, patent rights, trademark and copyright protection, postal
and navigation arrangements and settlement of claims. The Supreme Court held,
however, that the categorization of subject matters that may be covered by
international agreements mentioned in Eastern Sea Trading is not cast in stone.
There are no hard and fast rules on the propriety of entering, on a given subject,
into a treaty or an executive agreement as an instrument of international
relations. The primary consideration in the choice of the form of agreement is the
parties intent and desire to craft an international agreement in the form they so
wish to further their respective interests. The matter of form takes a back seat
when it comes to effectiveness and binding effect of the enforcement of a treaty
or an executive agreement, as the parties in either international agreement each
labor under the pacta sunt servanda principle.
International Agreements; limitations on sovereignty. The RP, by entering into the
Agreement, does thereby abdicate its sovereignty, abdication being done by its
waiving or abandoning its right to seek recourse through the Rome Statute of the

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ICC for erring Americans committing international crimes in the country. As it

were, the Agreement is but a form of affirmance and confirmation of the
Philippines national criminal jurisdiction. National criminal jurisdiction being
primary, it is always the responsibility and within the prerogative of the RP either
to prosecute criminal offenses equally covered by the Rome Statute or to accede
to the jurisdiction of the ICC. Thus, the Philippines may decide to try persons of
the US, as the term is understood in the Agreement, under our national criminal
justice system; or it may opt not to exercise its criminal jurisdiction over its erring
citizens or over US persons committing high crimes in the country and defer to
the secondary criminal jurisdiction of the ICC over them. In the same breath, the
US must extend the same privilege to the Philippines with respect to persons of
the RP committing high crimes within US territorial jurisdiction. By their nature,
treaties and international agreements actually have a limiting effect on the
otherwise encompassing and absolute nature of sovereignty. By their voluntary
act, nations may decide to surrender or waive some aspects of their state power
or agree to limit the exercise of their otherwise exclusive and absolute
jurisdiction. The usual underlying consideration in this partial surrender may be
the greater benefits derived from a pact or a reciprocal undertaking of one
contracting party to grant the same privileges or immunities to the other.

3. KURODA vs. JALANDONI

FACTS: Petitioner Sheginori Kuroda was the former Lt. General of the Japanese
Army and commanding general of the Japanese forces during the occupation
(WWII) in the country. He was tried before the Philippine Military Commission for
War Crimes and other atrocities committed against military and civilians. The
military commission was establish under Executive Order 68.
Petitioner assails the validity of EO 68 arguing it is unconstitutional and hence the
military commission did not have the jurisdiction to try him since the Philippines is
not a signatory to the Hague Convention (War Crimes)
Petitioner likewise assails that the US is not a party of interest in the case hence
the 2 US prosecutors cannot practice law in the Philippines.
ISSUE: Whether or not EO 68 is constitutional thus the military tribunal
jurisdiction is valid
HELD:
1. EO 68 is constitutional hence the tribunal has jurisdiction to try Kuroda. EO 68
was enacted by the President and was in accordance with Sec. 3, Art. 2 of
Constitution which renounces war as an instrument of national policy. Hence it is
in accordance with generally accepted principles of international law including the
Hague Convention and Geneva Convention, and other international jurisprudence
established by the UN, including the principle that all persons (military or civilian)
guilty of plan, preparing, waging a war of aggression and other offenses in
violation of laws and customs of war. The Philippines may not be a signatory to
the 2 conventions at that time but the rules and regulations of both are wholly
based on the generally accepted principles of international law. They were
accepted even by the 2 belligerent nations (US and Japan)

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2. As to the participation of the 2 US prosecutors in the case, the US is a party of

interest because its country and people have greatly aggrieved by the crimes
which petitioner was being charged of.
3. Moreover, the Phil. Military Commission is a special military tribunal and rules
as to parties and representation are not governed by the rules of court but the
provision of this special law.

4. USA vs. GUINTO

FACTS: These cases have been consolidated because they all involve the
doctrine of state immunity. In GR No. 76607, the private respondents are suing
several officers of the US Air Force stationed in Clark Air Base in connection with
the bidding conducted by them for contracts for barbering services in the said
base.
In GR No. 79470, Fabian Genove filed a complaint for damages against petitioners
Lamachia, Belsa, Cartalla and Orascion for his dismissal as cook in the US Air
Force Recreation Center at Camp John Hay Air Station in Baguio City. It had been
ascertained after investigation, from the testimony of Belsa, Cartalla and
Orascion, that Genove had poured urine into the soup stock used in cooking the
vegetables served to the club customers. Lamachia, as club manager, suspended
him and thereafter referred the case to a board of arbitrators conformably to the
collective bargaining agreement between the center and its employees. The
board unanimously found him guilty and recommended his dismissal. Genoves
reaction was to file his complaint against the individual petitioners.
In GR No. 80018, Luis Bautista, who was employed as a barracks boy in Cano O
Donnell, an extension of Clark Air Bas, was arrested following a buy-bust
operation conducted by the individual petitioners who are officers of the US Air
Force and special agents of the Air Force Office of Special Investigators. On the
basis of the sworn statements made by them, an information for violation of R.A.
6425, otherwise known as the Dangerous Drugs Act, was filed against Bautista in
the RTC of Tarlac. Said officers testified against him at his trial. Bautista was
dismissed from his employment. He then filed a complaint against the individual
petitioners claiming that it was because of their acts that he was removed.
In GR No. 80258, a complaint for damages was filed by the private respondents
against the herein petitioners (except the US), for injuries sustained by the
plaintiffs as a result of the acts of the defendants. There is a conflict of factual
allegations here. According to the plaintiffs, the defendants beat them up,
handcuffed them and unleashed dogs on them which bit them in several parts of
their bodies and caused extensive injuries to them. The defendants deny this and
claim that plaintiffs were arrested for theft and were bitten by the dogs because
they were struggling and resisting arrest. In a motion to dismiss the complaint,
the US and the individually named defendants argued that the suit was in effect a
suit against the US, which had not given its consent to be sued.
ISSUE: Whether the defendants were also immune from suit under the RP-US
Bases Treaty for acts done by them in the performance of their official duties.

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HELD: The rule that a State may not be sued without its consent is one of the
generally accepted principles of international law that were have adopted as part
of the law of our land. Even without such affirmation, we would still be bound by
the generally accepted principles of international law under the doctrine of
incorporation. Under this doctrine, as accepted by the majority of the states, such
principles are deemed incorporated in the law of every civilized state as a
condition and consequence of its membership in the society of nations. All states
are sovereign equals and cannot assert jurisdiction over one another.
While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the states for
acts allegedly performed by them in the discharge of their duties. The rule is that
if the judgment against such officials will require the state itself to perform an
affirmative act to satisfy the same, the suit must be regarded as against the state
although it has not been formally impleaded.
When the government enters into a contract, it is deemed to have descended to
the level of the other contracting party and divested of its sovereign immunity
from suit with its implied consent. In the case o US, the customary law of
international law on state immunity is expressed with more specificity in the RPUS Bases Treaty. There is no question that the US, like any other state, will be
deemed to have impliedly waived its non-suability if it has entered into a contract
in its proprietory or private capacity. It is only when the contract involves its
sovereign or governmental capacity that no such waiver may be implied.
It is clear from a study of the records of GR No. 80018 that the petitioners therein
were acting in the exercise of their official functions when they conducted the
buy-bust operations against the complainant and thereafter testified against him
at his trial. It follows that for discharging their duties as agents of the US, they
cannot be directly impleaded for acts imputable to their principal, which has not
given its consent to be sued.
As for GR No. 80018, the record is too meager to indicate what really happened.
The needed inquiry first be made by the lower court so it may assess and resolve
the conflicting claims of the parties on the basis of evidence that has yet to be
presented at the trial.

5. AGUSTIN vs. EDU

FACTS: This case is a petition assailing the validity or the constitutionality of a
Letter of Instruction No. 229, issued by President Ferdinand E. Marcos, requiring
all vehicle owners, users or drivers to procure early warning devices to be
installed a distance away from such vehicle when it stalls or is disabled. In
compliance with such letter of instruction, the Commissioner of the Land
Transportation Office issued Administrative Order No. 1 directing the compliance
thereof.
This petition alleges that such letter of instruction and subsequent administrative
order are unlawful and unconstitutional as it violates the provisions on due
process, equal protection of the law and undue delegation of police power.

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ISSUE: Whether or not the Letter of Instruction No. 229 and the subsequent
Administrative Order issued is unconstitutional
HELD: The Supreme Court ruled for the dismissal of the petition. The statutes in
question are deemed not unconstitutional. These were definitely in the exercise of
police power as such was established to promote public welfare and public safety.
In fact, the letter of instruction is based on the constitutional provision of adopting
to the generally accepted principles of international law as part of the law of the
land. The letter of instruction mentions, as its premise and basis, the resolutions
of the 1968 Vienna Convention on Road Signs and Signals and the discussions on
traffic safety by the United Nations - that such letter was issued in consideration
of a growing number of road accidents due to stalled or parked vehicles on the
streets and highways.

6. MARCOS vs. MANGLAPUS

FACTS: It is a case of a dictator President Ferdinand Marcos of the Philippines
forced out of office and into exile after causing twenty years of political, economic
and social havoc in the country and who within the short space of three years
seeks to return to the Philippines to die. But Mrs. Aquino, considering the dire
consequences to the nation of his return at a time when the stability of
government is threatened from various directions and the economy is just
beginning to rise and move forward, has stood firmly on the decision to bar the
return of Mr. Marcos and his family.
ISSUE: (1) Whether or not the ban of Mr. Marcos and family from returning to the
Philippines has international precedents? (2) Whether or not the President acted
in grave abuse of discretion in determining the return of the Marcoses?
HELD: PETITION DISMISSED.
1. NO, The right to return to one's country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode and the
right to travel, but it is our well-considered view that the right to return may be
considered, as a generally accepted principle of international law and, under our
Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.]
However, it is distinct and separate from the right to travel and enjoys a different
protection under the International Covenant of Civil and Political Rights, i.e.,
against being "arbitrarily deprived" thereof [Art. 12 (4).]
The Declaration speaks of the "right to freedom of movement and residence
within the borders of each state" [Art. 13(l)] separately from the "right to leave
any country, including his own, and to return to his country." [Art. 13(2).]
On the other hand, the Covenant guarantees the "right to liberty of movement
and freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave
any country, including his own."
[Art. 12(2)] which rights may be restricted by such laws as "are necessary to
protect national security, public order, public health or morals or enter qqqs own
country" of which one cannot be "arbitrarily deprived." [Art. 12(4).]

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It would therefore be inappropriate to construe the limitations to the right to

return to one's country in the same context as those pertaining to the liberty of
abode and the right to travel.
2. NO. The President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his family at the
present time and under present circumstances poses a serious threat to national
interest and welfare and in prohibiting their return to the Philippines.
The power involved is the President's residual power to protect the general
welfare of the people. It is founded on the duty of the President, as steward of the
people.

2. DOCTRINE OF TRANSFORMATION
b) The doctrine of transformation requires the enactment by the
legislative body of such international law principles as are sought to be
part of municipal law. See: Laguna Lake Development Authority vs. Court
of Appeals, 231SCRA 292 (where it was declared that Sec. 6, Art. II,
Philippine Constitution, which reads: The state shall protect and advance
the right of the people to a balanced and healthful ecology in accord with
the rhythm and harmony of nature, was taken from the Universal
Declaration of Human Rights and the Alma Conference Declaration of
1978 recognizing health as a fundamental human right.
Thus, the authority of LLDA to issue a cease and desist order to prevent
the pollution of Marilao River was upheld on the basis of the principle of
necessary implication^.
CASES
1. WHO vs. AQUINO
FACTS: Herein petitioner, in behalf of Dr. Verstuyft, was allegedly suspected by
the Constabulary Offshore Action Center (COSAC) officers of carrying dutiable
goods under the Customs and Tariff Code of the Philippines. Respondent Judge
then issued a search warrant at the instance of the COSAC officers for the search
and seizure of the personla effects of Dr. Verstuyft notwithstanding his being
entitled to diplomatic immunity, as duly recognized by the Executive branch of
the government.
The Secretary of Foreign Affairs Carlos P. Romulo advised the respondent judge
that Dr. Verstuyft is entitled to immunity from search in respect for his personal
baggage as accorded to members of diplomatic missions pursuant to the Host
Agreement and further requested for the suspension of the search warrant. The
Solicitor General accordingly joined the petitioner for the quashal of the search
warrant but respondent judge nevertheless summarily denied the quashal.

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ISSUE: Whether or not personal effect of WHO Officer Dr. Verstuyft can be
exempted from search and seizure under the diplomatic immunity.
HELD: The executive branch of the Philippiness has expressly recognized that
Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the Host
Agreement. The DFA formally advised respondent judge of the Philippine
Government's official position. The Solicitor General, as principal law officer of the
gorvernment, likewise expressly affirmed said petitioner's right to diplomatic
immunity and asked for the quashal of the search warrant.
It recognized principle of international law and under our system of separation of
powers that diplomatic immunity is essentially a political question and courts
should refuse to look beyond a determination by the executive branch of
government, and where the plea of diplomatic immunity is recognized by the
executive branch of the government as in the case at bar, it is then the duty of
the courts to accept the claim of immunity upon appropriate suggestion by the
principal law officer of the government, the Solicitor General in this case, or other
officer acting under his discretion. Courts may not so exercise their jurisdiction by
seizure and detention of property, as to embarass the executive arm of the
government in conducting foreign relations.
The Court, therefore, holds the respondent judge acted without jurisdiction and
with grave abuse of discretion in not ordering the quashal of the search warrant
issued by him in disregard of the diplomatic immunity of petitioner Verstuyft.

3. CONFLICT BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW.

a) On the domestic sphere, with a local court deciding:
i) If the conflict is with the Constitution: uphold the Constitution.
[See Sec. 5(2)(a), Art. VIII, Philippine Constitution, which provides
that the Supreme Court has the power to declare a treaty or
executive agreement unconstitutional.] In Secretary of Justice v.
Judge Lantion, G.R. No. 139465, January 18, 2000, it was held that
in states where the Constitution is the highest law of the land, such
as the Republic of the Philippines, both statutes and treaties may be
invalidated if they are in conflict with the Constitution.
ii) If the conflict is with a statute: The doctrine of incorporation, as
applied in most countries, decrees that rules of international law are
given equal standing with, but are not superior to, national
legislative enactments. A treaty may repeal a statute, and a statute
may repeal a treaty; thus, the principle of lex posterior derogat
priori, that which comes last in time, will usually be upheld by the
municipal tribunal. See also Ichong vs. Hernandez, 101 Phil. 115,
where it was held that the Retail Trade Nationalization Law prevails
over the Treaty of Amity with China and the Universal Declaration of
Human Rights, because the law was passed in the exercise of the
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police power of the State, and police power cannot be bargained

away through the medium of a treaty or a contract.
CASES
1. ABBAS vs. COMELEC
FACTS: A plebiscite in thirteen (13) provinces and nine (9) cities in
Mindanao and Palawan, was scheduled for November 19, 1989, in
implementation of RA 6734, entitled "An Act Providing for an Organic Act
for the Autonomous Region in Muslim Mindanao" (Organic Act). These
consolidated petitions pray that the Court: (1) enjoin the COMELEC from
conducting the plebiscite; and (2) declare RA 6734, or parts thereof,
unconstitutional. The arguments against R.A. 6734 raised by petitioners
may generally be categorized into either of the following: (a) that R.A.
6734, or parts thereof, violates the Constitution, and (b) that certain
provisions of R.A. No. 6734 conflict with the Tripoli Agreement.
ISSUE: Whether or not certain provisions of the Organic Act are
unconstitutional.
HELD: The petition has no merit and the law is constitutional.
1. Petitioner contends that the tenor of a provision in the Organic Act
makes the creation of an autonomous region absolute, such that even if
only two provinces vote in favor of autonomy, an autonomous region
would still be created composed of the two provinces where the favorable
votes were obtained. there is a specific provision in the Transitory
Provisions (Article XIX) of the Organic Act, which incorporates substantially
the same requirements embodied in the Constitution and fills in the
details, thus:
SEC. 13. The creation of the Autonomous Region in Muslim
Mindanao shall take effect when approved by a majority of the
votes cast by the constituent units provided in paragraph (2) of
Sec. 1 of Article II of this Act in a plebiscite which shall be held not
earlier than ninety (90) days or later than one hundred twenty
(120) days after the approval of this Act: Provided, That only the
provinces and cities voting favorably in such plebiscite shall be
included in the Autonomous Region in Muslim Mindanao. The
provinces and cities which in the plebiscite do not vote for inclusion
in the Autonomous Region shall remain the existing administrative
determination, merge the existing regions.
Thus, under the Constitution and R.A. No 6734, the creation of the
autonomous region shall take effect only when approved by a majority of
the votes cast by the constituent units in a plebiscite, and only those
provinces and cities where a majority vote in favor of the Organic Act shall
be included in the autonomous region. The provinces and cities wherein
such a majority is not attained shall not be included in the autonomous
region. It may be that even if an autonomous region is created, not all of
the thirteen (13) provinces and nine (9) cities mentioned in Article II,

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section 1 (2) of R.A. No. 6734 shall be included therein. The single
plebiscite contemplated by the Constitution and R.A. No. 6734 will
therefore be determinative of (1) whether there shall be an autonomous
region in Muslim Mindanao and (2) which provinces and cities, among
those enumerated in R.A. No. 6734, shall compromise it.
2. The question has been raised as to what this majority means. Does it
refer to a majority of the total votes cast in the plebiscite in all the
constituent units, or a majority in each of the constituent units, or both?
The 1987 Constitution provides: The creation of the autonomous region
shall be effective when approved by majority of the votes cast by the
constituent units in a plebiscite called for the purpose, provided that only
provinces, cities and geographic areas voting favorably in such plebiscite
shall be included in the autonomous region. [Art. X, sec, 18, para, 2]. It will
readily be seen that the creation of the autonomous region is made to
depend, not on the total majority vote in the plebiscite, but on the will of
the majority in each of the constituent units and the proviso underscores
this.
3. Petitioner avers that not all of the thirteen (13) provinces and nine (9)
cities included in the Organic Act, possess such concurrence in historical
and cultural heritage and other relevant characteristics. By including
areas, which do not strictly share the same characteristic as the others,
petitioner claims that Congress has expanded the scope of the
autonomous region which the constitution itself has prescribed to be
limited.
Petitioner's argument is not tenable. The Constitution lays down the
standards by which Congress shall determine which areas should
constitute the autonomous region. Guided by these constitutional criteria,
the ascertainment by Congress of the areas that share common attributes
is within the exclusive realm of the legislature's discretion. Any review of
this ascertainment would have to go into the wisdom of the law.
4. Both petitions also question the validity of R.A. No. 6734 on the ground
that it violates the constitutional guarantee on free exercise of religion
[Art. III, sec. 5]. The objection centers on a provision in the Organic Act
which mandates that should there be any conflict between the Muslim
Code and the Tribal Code on the one had, and the national law on the
other hand, the Shari'ah courts created under the same Act should apply
national law. Petitioners maintain that the islamic law (Shari'ah) is derived
from the Koran, which makes it part of divine law. Thus it may not be
subjected to any "man-made" national law. Petitioner Abbas supports this
objection by enumerating possible instances of conflict between provisions
of the Muslim Code and national law, wherein an application of national
law might be offensive to a Muslim's religious convictions.
In the present case, no actual controversy between real litigants exists.
There are no conflicting claims involving the application of national law
resulting in an alleged violation of religious freedom. This being so, the

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Court in this case may not be called upon to resolve what is merely a
perceived potential conflict between the provisions the Muslim Code and
national law.
5. According to petitioners, said provision grants the President the power
to merge regions, a power which is not conferred by the Constitution upon
the President.
While the power to merge administrative regions is not expressly provided
for in the Constitution, it is a power which has traditionally been lodged
with the President to facilitate the exercise of the power of general
supervision over local governments. There is no conflict between the
power of the President to merge administrative regions with the
constitutional provision requiring a plebiscite in the merger of local
government units because the requirement of a plebiscite in a merger
expressly applies only to provinces, cities, municipalities or barangays, not
to administrative regions.
6. Every law has in its favor the presumption of constitutionality. Based on
the grounds raised by petitioners to challenge the constitutionality of R.A.
No. 6734, the Court finds that petitioners have failed to overcome the
presumption. The dismissal of these two petitions is, therefore, inevitable.

2. ICHONG vs. HERNANDEZ

FACTS: The Legislature passed R.A. 1180 (An Act to Regulate the Retail
Business). Its purpose was to prevent persons who are not citizens of the
Phil. from having a stranglehold upon the peoples economic life. A
prohibition against aliens and against associations, partnerships, or
corporations the capital of which are not wholly owned by Filipinos, from
engaging directly or indirectly in the retail trade aliens actually engaged in
the retail business on May 15, 1954 are allowed to continue their business,
unless their licenses are forfeited in accordance with law, until their death
or voluntary retirement. In case of juridical persons, ten years after the
approval of the Act or until the expiration of term.
Citizens and juridical entities of the United States were exempted from this
Act. A provision for the forfeiture of licenses to engage in the retail
business for violation of the laws on nationalization, economic control
weights and measures and labor and other laws relating to trade,
commerce and industry. A provision against the establishment or opening
by aliens actually engaged in the retail business of additional stores or
branches of retail business Lao Ichong, in his own behalf and behalf of
other alien residents, corporations and partnerships affected by the Act,
filed an action to declare it unconstitutional for the following reasons:
- it denies to alien residents the equal protection of the laws and
deprives them of their liberty and property without due process
- the subject of the Act is not expressed in the title
- the Act violates international and treaty obligations
- the provisions of the Act against the transmission by aliens of their
retail business thru hereditary succession

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ISSUE: WON the Act deprives the aliens of the equal protection of the
laws.
HELD: The law is a valid exercise of police power and it does not deny the
aliens the equal protection of the laws. There are real and actual, positive
and fundamental differences between an alien and a citizen, which fully
justify the legislative classification adopted.
RATIO:
The equal protection clause does not demand absolute equality among
residents. It merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and
liabilities enforced.
The classification is actual, real and reasonable, and all persons of one
class are treated alike.
The difference in status between citizens and aliens constitutes a basis for
reasonable classification in the exercise of police power.
Official statistics point out to the ever-increasing dominance and control by
alien of the retail trade. It is this domination and control that is the
legislatures target in the enactment of the Act.
The mere fact of alienage is the root cause of the distinction between the
alien and the national as a trader. The alien is naturally lacking in that
spirit of loyalty and enthusiasm for the Phil. where he temporarily stays
and makes his living. The alien owes no allegiance or loyalty to the State,
and the State cannot rely on him/her in times of crisis or emergency.
While the citizen holds his life, his person and his property subject to the
needs of the country, the alien may become the potential enemy of the
State.
The alien retailer has shown such utter disregard for his customers and the
people on whom he makes his profit. Through the illegitimate use of
pernicious designs and practices, the alien now enjoys a monopolistic
control on the nations economy endangering the national security in
times of crisis and emergency.

b) On the international sphere, with an international tribunal deciding:

international law is superior to municipal law, because international law
provides the standard by which to determine the legality of a States
conduct.

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