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Bayan vs ZamoraG.R. No. 138570, Oct.

10, 2000
On March 14, 1947, the Philippines and the United States of
America forged a Military Bases Agreement which formalized,
among others, the use of installations in the Philippine territory
by United States military personnel. To further strengthen their
defense and security relationship, the Philippines and the United
States entered into a Mutual Defense Treaty on August 30, 1951.
Under the treaty, the parties agreed to respond to any external
armed attack on their territory, armed forces, public vessels, and
In view of the impending expiration of the RP-US Military Bases
Agreement in 1991, the Philippines and the United States
negotiated for a possible extension of the military bases
On July 18, 1997, the United States panel, headed by US Defense
Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met
with the Philippine panel, headed by Foreign Affairs
Undersecretary Rodolfo Severino Jr., to exchange notes on the
complementing strategic interests of the United States and the
Philippines in the Asia-Pacific region. Both sides discussed,
among other things, the possible elements of the Visiting Forces
Agreement (VFA for brevity). Negotiations by both panels on the
VFA led to a consolidated draft text, which in turn resulted to a
final series of conferences and negotiations that culminated in
Manila on January 12 and 13, 1998. Thereafter, then President
Fidel V. Ramos approved the VFA, which was respectively signed
by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through
respondent Secretary of Foreign Affairs, ratified the VFA. On
October 6, 1998, the President, acting through respondent
Executive Secretary Ronaldo Zamora, officially transmitted to the
Senate of the Philippines, the Instrument of Ratification, the letter
of the President and the VFA, for concurrence pursuant to Section
21, Article VII of the 1987 Constitution. The Senate, in turn,
referred the VFA to its Committee on Foreign Relations, chaired by
Senator Blas F. Ople, and its Committee on National Defense and
Security, chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint public
hearings were held by the two Committees.
On May 3, 1999, the Committees submitted Proposed Senate
Resolution No. 443 recommending the concurrence of the Senate

to the VFA and the creation of a Legislative Oversight Committee

to oversee its implementation. Debates then ensued. On May 27,
1999, Proposed Senate Resolution No. 443 was approved by the
Senate, by a two-thirds (2/3) vote of its members. Senate
Resolution No. 443 was then re-numbered as Senate Resolution
No. 18.
On June 1, 1999, the VFA officially entered into force after an
Exchange of Notes between respondent Secretary Siazon and
United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles,
provides for the mechanism for regulating the circumstances and
conditions under which US Armed Forces and defense personnel
may be present in the Philippines.
Petitioners as legislators, non-governmental organizations,
citizens, and taxpayers assail the constitutionality of the VFA
and impute to herein respondents grave abuse of discretion in
ratifying the agreement.
The issue her is whether or not the Visiting Forces Agreement
entered by the Republic of the Philippines and the United Sates is
constitutional or unconstitutional.
The Supreme Court held that the Visiting Forces Agreement is
constitutional having been duly concurred in by the Philippine
Senate. The Republic of the Philippines cannot require the United
States to submit the agreement to the US Senate for
concurrence, for that would be giving a strict construction to the
phrase recognized as a treaty. US treats VFA as an executive
agreement because as governed by international law, an
executive agreement is just as binding as a treaty.

Sen. Pimentel vs Executive Secretary , G.R. No.

158088 , July 6, 2005
Facts :This is a petition of Senator Aquilino Pimentel and the
other parties to ask the Supreme Court to require the Executive
Department to transmit the Rome Statute which established the
International Criminal Court for the Senates concurrence in
accordance with Sec 21, Art VII of the 1987 Constitution.
Petitioners contend that that ratification of a treaty, under both
domestic law and international law, is a function of the Senate.
That under the treaty law and customary international law,
Philippines has a ministerial duty to ratify the Rome Statute.
Respondents on the other hand, questioned the legal standing of

herein petitioners and argued that executive department has no

duty to transmit the Rome Statute to the Senate for concurrence.
Issues : Whether or not petitioners have the legal standing to file
the instant suit.
Whether or not the Executive Secretary and the Department of
Foreign Affairs have the ministerial duty to transmit to the Senate
the copy of the Rome Statute signed by the Philippine Member to
the United Nations even without the signature of the President.
Ruling : Only Senator Pimentel has a legal standing to the extent
of his power as member of Congress. Other petitioners have not
shown that they have sustained a direct injury from the nontransmittal and that they can seek redress in our domestic courts.
Petitioners interpretation of the Constitution is incorrect. The
power to ratify treaties does not belong to the Senate.
Under E.O. 459, the Department of Foreign Affairs (DFA) prepares
the ratification papers and forward the signed copy to the
President for ratification. After the President has ratified it, DFA
shall submit the same to the Senate for concurrence.
The President has the sole authority to negotiate and enter into
treaties, the Constitution provides a limitation to his power by
requiring the concurrence of 2/3 of all the members of the Senate
for the validity of the treaty entered into by him. Section 21,
Article VII of the 1987 Constitution provides that no treaty or
international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the
Senate. The participation of the legislative branch in the treatymaking process was deemed essential to provide a check on the
executive in the field of foreign relations.
It should be emphasized that under the Constitution the power to
ratify is vested in the President subject to the concurrence of the
Senate. The President has the discretion even after the signing of
the treaty by the Philippine representative whether or not to
ratify a treaty.
The signature does not signify final consent, it is ratification that
binds the state to the provisions of the treaty and renders it
Senate is limited only to giving or withholding its consent,
concurrence to the ratification. It is within the President to refuse
to submit a treaty to the Senate or having secured its consent for
its ratification, refuse to ratify it. Such decision is within the
competence of the President alone, which cannot be encroached
by this court via writ of mandamus,

Thus, the petition is DISMISSED.

G.R. No. 173034

FACTS : Named as respondents are the Health Secretary,
Undersecretaries, and Assistant Secretaries of the Department of Health
(DOH). For purposes of herein petition, the DOH is deemed impleaded as
a co-respondent since respondents issued the questioned RIRR in their
capacity as officials of said executive agency.1Executive Order No. 51
(Milk Code) was issued by President Corazon Aquino on October 28, 1986
by virtue of the legislative powers granted to the president under the
Freedom Constitution. One of the preambular clauses of the Milk Code
states that the law seeks to give effect to Article 112 of the International
Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by
the World Health Assembly (WHA) in 1981. From 1982 to 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.In
1990, the Philippines ratified the International Convention on the Rights of
the Child. Article 24 of said instrument provides that State Parties should
take appropriate measures to diminish infant and child mortality, and
ensure that all segments of society, specially parents and children, are
informed of the advantages of breastfeeding. On May 15, 2006, the DOH
issued herein assailed RIRR which was to take effect on July 7, 2006.

Issue: . Whether Administrative Order or the Revised Implementing Rules

and Regulations (RIRR) issued by the Department of Health (DOH) is not
Held: YES
under Article 23, recommendations of the WHA do not come into force for
members,in the same way that conventions or agreements under Article 19
and regulations under Article 21 come into force. Article 23 of the WHO
Constitution reads:
Article 23. The Health Assembly shall have authority to make
recommendations to Members with respect to any matter within the
competence of the Organization
for an international rule to be considered as customary law, it must be
established that such rule is being followed by states because they
consider it obligatory to comply with such rules
Under the 1987 Constitution, international law can become part of the
sphere of domestic law either
By transformation or incorporation. The transformation method requires
that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. The incorporation
method applies when, by mere constitutional declaration, international law
is deemed to have the force of domestic law.
Consequently, legislation is necessary to transform the provisions of the
WHA Resolutions into domestic law. The provisions of the WHA
Resolutions cannot be considered as part of the law of the land that can be
implemented by executive agencies without the need of a law enacted by
the legislature


Subject of this case is the Memorandum of Agreement on the

Ancestral Domain (MOA-AD) which is scheduled to be signed by
the Government of the Republic of the Philippines and the MILF
in August 05, 2008. Five cases bearing the same subject matter
were consolidated by this court namely:

GR 183591 by the Province of Cotabato and Vice

unconstitutional and to have the MOA-AD disclosed
to the public and be open for public consultation.
GR 183752 by the City of Zamboanga et al on its
prayer to declare null and void said MOA-AD and to
exclude the city to the BJE.
GR 183893 by the City of Iligan enjoining the
respondents from signing the MOA-AD and
additionally impleading Exec. Sec. Ermita.
GR 183951 by the Province of Zamboanga del Norte
et al, praying to declare null and void the MOA-AD
and without operative effect and those respondents
enjoined from executing the MOA-AD.
GR 183692 by Maceda, Binay and Pimentel III,
praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and
executing the MOA-AD and or any other agreement
derived therefrom or similar thereto, and nullifying
the MOA-AD for being unconstitutional and illegal and
impleading Iqbal.
The MOA-AD is a result of various agreements entered
into by and between the government and the MILF starting in
1996; then in 1997, they signed the Agreement on General
Cessation of Hostilities; and the following year, they signed the
General Framework of Agreement of Intent on August 27, 1998.

However, in 1999 and in the early of 2000, the MILF attacked a

number of municipalities in Central Mindanao. In March 2000,
they took the hall of Kauswagan, Lanao del Norte; hence, then
Pres. Estrada declared an all-out war-which tolled the peace
negotiation. It was when then Pres. Arroyo assumed office, when
the negotiation regarding peace in Mindanao continued. MILF was
hesitant; however, this negotiation proceeded when the
government of Malaysia interceded. Formal peace talks resumed
and MILF suspended all its military actions. The Tripoli
Agreement in 2001 lead to the ceasefire between the parties. After
the death of MILF Chairman Hashim and Iqbal took over his
position, the crafting of MOA-AD in its final form was born.

MOA-AD Overview
This is an agreement to be signed by the GRP and the MILF. Used
as reference in the birth of this MOA-AD are the Tripoli
Agreement, organic act of ARMM, IPRA Law, international laws
such as ILO Convention 169, the UN Charter etc., and the
principle of Islam i.e compact right entrenchment (law of compact,
treaty and order). The body is divided into concepts and principles,
territory, resources, and governance.
Embodied in concepts and principles, is the definition of
Bangsamoro as all indigenous peoples of Mindanao and its
adjacent islands. These people have the right to self- governance of
their Bangsamoro homeland to which they have exclusive
ownership by virtue of their prior rights of occupation in the land.
The MOA-AD goes on to describe the Bangsamoro people as "the
First Nation' with defined territory and with a system of
government having entered into treaties of amity and commerce
with foreign nations." It then mentions for the first time the
"Bangsamoro Juridical Entity" (BJE) to which it grants the
authority and jurisdiction over the Ancestral Domain and Ancestral
Lands of the Bangsamoro.

As defined in the territory of the MOA-AD, the BJE shall embrace

the Mindanao-Sulu-Palawan geographic region, involving the
present ARMM, parts of which are those which voted in the
inclusion to ARMM in a plebiscite. The territory is divided into
two categories, A which will be subject to plebiscite not later
than 12 mos. after the signing and B which will be subject to
plebiscite 25 years from the signing of another separate agreement.
Embodied in the MOA-AD that the BJE shall have jurisdiction
over the internal waters-15kms from the coastline of the BJE
territory; they shall also have "territorial waters," which shall
stretch beyond the BJE internal waters up to the baselines of the
Republic of the Philippines (RP) south east and south west of
mainland Mindanao; and that within these territorial waters, the
BJE and the government shall exercise joint jurisdiction, authority
and management over all natural resources. There will also be
sharing of minerals in the territorial waters; but no provision on the
internal waters.
Included in the resources is the stipulation that the BJE is free to
enter into any economic cooperation and trade relations with
foreign countries and shall have the option to establish trade
missions in those countries, as well as environmental cooperation
agreements, but not to include aggression in the GRP. The external
defense of the BJE is to remain the duty and obligation of the
government. The BJE shall have participation in international
meetings and events" like those of the ASEAN and the specialized
agencies of the UN. They are to be entitled to participate in
Philippine official missions and delegations for the negotiation of
border agreements or protocols for environmental protection and
equitable sharing of incomes and revenues involving the bodies of
water adjacent to or between the islands forming part of the
ancestral domain. The BJE shall also have the right to explore its
resources and that the sharing between the Central Government
and the BJE of total production pertaining to natural resources is to
be 75:25 in favor of the BJE. And they shall have the right to

cancel or modify concessions and TLAs.

And lastly in the governance, the MOA-AD claims that the
relationship between the GRP and MILF is associative i.e.
characterized by shared authority and responsibility. This structure
of governance shall be further discussed in the Comprehensive
Compact, a stipulation which was highly contested before the
court. The BJE shall also be given the right to build, develop and
maintain its own institutions, the details of which shall be
discussed in the comprehensive compact as well.
1. WON the petitions have complied with the procedural
requirements for the exercise of judicial review
2. WON respondents violate constitutional and statutory provisions
on public consultation and the right to information when they
negotiated and later initialed the MOA-AD; and
3. WON the contents of the MOA-AD violated the Constitution
and the laws
The SC declared the MOA-AD contrary to law and the

On the Procedural Issue

1st issue: As regards the procedural issue, SC upheld that there is
indeed a need for the exercise of judicial review.
The power of judicial review is limited to actual cases or
controversy, that is the court will decline on issues that are

hypothetical, feigned problems or mere academic questions.

Related to the requirement of an actual case or controversy is the
requirement of ripeness. The contention of the SolGen is that there
is no issue ripe for adjudication since the MOA-AD is only a
proposal and does not automatically create legally demandable
rights and obligations. Such was denied.
The SC emphasized that the petitions are alleging acts made in
violation of their duty or in grave abuse of discretion. Well-settled
jurisprudence states that acts made by authority which exceed their
authority, by violating their duties under E.O. No. 3 and the
provisions of the Constitution and statutes, the petitions make a
prima facie case for Certiorari, Prohibition, and Mandamus, and an
actual case or controversy ripe for adjudication exists. When an act
of a branch of government is seriously alleged to have infringed
the Constitution, it becomes not only the right but in fact the duty
of the judiciary to settle the dispute. This is aside from the fact that
concrete acts made under the MOA-AD are not necessary to render
the present controversy ripe and that the law or act in question as
not yet effective does not negate ripeness.
With regards to the locus standi, the court upheld the personalities
of the Province of Cotabato, Province of Zamboanga del norte,
City of Iligan, City of Zamboanga, petitioners in intervention
Province of Sultan Kudarat, City of Isabela and Municipality of
Linnamon to have locus standi since it is their LGUs which will be
affected in whole or in part if include within the BJE. Intervenors
Franklin Drilon and Adel Tamano, in alleging their standing as
taxpayers, assert that government funds would be expended for the
conduct of an illegal and unconstitutional plebiscite to delineate
the BJE territory. On that score alone, they can be given legal
standing. Senator Mar Roxas is also given a standing as an
intervenor. And lastly, the Intervening respondents Muslim MultiSectoral Movement for Peace and Development, an advocacy
group for justice and the attainment of peace and prosperity in

Muslim Mindanao; and Muslim Legal Assistance Foundation Inc.,

a non-government organization of Muslim lawyers since they stand
to be benefited or prejudiced in the resolution of the petitions
regarding the MOA-AD.
On the contention of mootness of the issue considering the signing
of the MOA-AD has already been suspended and that the President
has already disbanded the GRP, the SC disagrees. The court
reiterates that the moot and academic principle is a general rule
only, the exceptions, provided in David v. Macapagal-Arroyo, that
it will decide cases, otherwise moot and academic, if it finds that
(a) there is a grave violation of the Constitution; (b) the situation is
of exceptional character and paramount public interest is involved;
(c) the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public;
and (d) the case is capable of repetition yet evading review; and
that where there is a voluntary cessation of the activity complained
of by the defendant or doer, it does not divest the court the power
to hear and try the case especially when the plaintiff is seeking for
damages or injunctive relief.
Clearly, the suspension of the signing of the MOA-AD and the
disbandment of the GRP did not render the petitions moot and
academic. The MOA-AD is subject to further legal enactments
including possible Constitutional amendments more than ever
provides impetus for the Court to formulate controlling principles
to guide the bench, the bar, the public and, in this case, the
government and its negotiating entity.
At all events, the Court has jurisdiction over most if not the rest of
the petitions. There is a reasonable expectation that petitioners will
again be subjected to the same problem in the future as
respondents' actions are capable of repetition, in another or any
form. But with respect to the prayer of Mandamus to the signing of
the MOA-AD, such has become moot and academic considering

that parties have already complied thereat.

On the Substantive Issue

2nd Issue: The SC ruled that the MOA-AD is a matter of public

concern, involving as it does the sovereignty and territorial
integrity of the State, which directly affects the lives of the public
at large.
As enshrined in the Constitution, the right to information
guarantees the right of the people to demand information, and
integrated therein is the recognition of the duty of the officialdom
to give information even if nobody demands. The policy of public
disclosure establishes a concrete ethical principle for the conduct
of public affairs in a genuinely open democracy, with the people's
right to know as the centerpiece. It is a mandate of the State to be
accountable by following such policy. These provisions are vital to
the exercise of the freedom of expression and essential to hold
public officials at all times accountable to the people.
Also, it was held that such stipulation in the Constitution is selfexecutory with reasonable safeguards the effectivity of which
need not await the passing of a statute. Hence, it is essential to
keep open a continuing dialogue or process of communication
between the government and the people. It is in the interest of the
State that the channels for free political discussion be maintained
to the end that the government may perceive and be responsive to
the people's will.
The idea of a feedback mechanism was also sought for since it is
corollary to the twin rights to information and disclosure. And
feedback means not only the conduct of the plebiscite as per the
contention of the respondents. Clearly, what the law states is the

right of the petitioners to be consulted in the peace agenda as

corollary to the constitutional right to information and disclosure.
As such, respondent Esperon committed grave abuse of discretion
for failing to carry out the furtive process by which the MOA-AD
was designed and crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive,
arbitrary and despotic exercise thereto. Moreover, he cannot invoke
of executive privilege because he already waived it when he
complied with the Courts order to the unqualified disclosure of the
official copies of the final draft of the MOA-AD.
In addition, the LGU petitioners has the right to be involved in
matters related to such peace talks as enshrined in the State policy.
The MOA-AD is one peculiar program that unequivocally and
unilaterally vests ownership of a vast territory to the Bangsamoro
people, which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from
their total environment.
With respect to the ICC/IPPs they also have the right to participate
fully at all levels on decisions that would clearly affect their lives,
rights and destinies. The MOA-AD is an instrument recognizing
ancestral domain, hence it should have observed the free and prior
informed consent to the ICC/IPPs; but it failed to do so. More
specially noted by the court is the excess in authority exercised by
the respondentsince they allowed delineation and recognition of
ancestral domain claim by mere agreement and compromise; such
power cannot be found in IPRA or in any law to the effect.
3rd issue: With regard to the provisions of the MOA-AD, there
can be no question that they cannot be all accommodated under the
present Constitution and laws. Not only its specific provisions but
the very concept underlying them:

On matters of the Constitution.

Association as the type of relationship governing between the

parties. The parties manifested that in crafting the MOA-AD, the
term association was adapted from the international law. In
international law, association happens when two states of equal
power voluntarily establish durable links i.e. the one state, the
associate, delegates certain responsibilities to the other, principal,
while maintaining its international status as state; free association
is a middle ground between integration and independence. The
MOA-AD contains many provisions that are consistent with the
international definition of association which fairly would deduced
that the agreement vest into the BJE a status of an associated state,
or at any rate, a status closely approximating it. The court
vehemently objects because the principle of association is not
recognized under the present Constitution.

On the recognition of the BJE entity as a state. The concept implies

power beyond what the Constitution can grant to a local
government; even the ARMM do not have such recognition; and
the fact is such concept implies recognition of the associated entity
as a state. There is nothing in the law that contemplate any state
within the jurisdiction other than the Philippine State, much less
does it provide for a transitory status that aims to prepare any part
of Philippine territory for independence. The court disagrees with
the respondent that the MOA-AD merely expands the ARMM. BJE
is a state in all but name as it meets the criteria of a state laid down
in the Montevideo Convention, namely, a permanent population, a
defined territory, a government, and a capacity to enter into
relations with other states. As such the MOA-AD clearly runs
counter to the national sovereignty and territorial integrity of the

On the expansion of the territory of the BJE. The territory included

in the BJE includes those areas who voted in the plebiscite for
them to become part of the ARMM. The stipulation of the
respondents in the MOA-AD that these areas need not participate
in the plebiscite is in contrary to the express provision of the
Constitution. The law states that that "[t]he creation of the
autonomous region shall be effective when approved by a 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." Clearly, assuming that the BJE is just an
expansion of the ARMM, it would still run afoul the wordings of
the law since those included in its territory are areas which voted in
its inclusion to the ARMM and not to the BJE.

On the powers vested in the BJE as an entity. The respondents

contend that the powers vested to the BJE in the MOA-AD shall be
within sub-paragraph 9 of sec 20, art. 10 of the constitution and
that a mere passage of a law is necessary in order to vest in the
BJE powers included in the agreement. The Court was not
persuaded. SC ruled that such conferment calls for amendment of
the Constitution; otherwise new legislation will not concur with the
Constitution. Take for instance the treaty making power vested to
the BJE in the MOA-AD. The Constitution is clear that only the
President has the sole organ and is the countrys sole representative
with foreign nation. Should the BJE be granted with the authority
to negotiate with other states, the former provision must be
amended consequently. Section 22 must also be amendedthe
provision of the law that promotes national unity and development.
Because clearly, associative arrangement of the MOA-AD does not
epitomize national unity but rather, of semblance of unity. The
associative ties between the BJE and the national government, the
act of placing a portion of Philippine territory in a status which, in
international practice, has generally been a preparation for
independence, is certainly not conducive to national unity.

On matters of domestic statutes.

o Provisions contrary to the organic act of ARMM. RA 9054 is a
bar to the adoption of the definition of Bangsamoro people used in
the MOA-AD. Said law specifically distinguishes between the
Bangsamoro people and the Tribal peoples that is contrary with the
definition of the MOA-AD which includes all indigenous people of
o Provisions contrary to the IPRA law. Also, the delineation and
recognition of the ancestral domain is a clear departure from the
procedure embodied in the IPRA law which ironically is the term
of reference of the MOA-AD.

On matters of international law.

The Philippines adopts the generally accepted principle of
international law as part of the law of the land. In international law,
the right to self-determination has long been recognized which
states that people can freely determine their political status and
freely pursue their economic, social, and cultural development.
There are the internal and external self-determinationinternal,
meaning the self-pursuit of man and the external which takes the
form of the assertion of the right to unilateral secession. This
principle of self-determination is viewed with respect accorded to
the territorial integrity of existing states. External selfdetermination is only afforded in exceptional cases when there is
an actual block in the meaningful exercise of the right to internal
self-determination. International law, as a general rule, subject
only to limited and exceptional cases, recognizes that the right of
disposing national territory is essentially an attribute of the
sovereignty of every state.
On matters relative to indigenous people, international law states
that indigenous peoples situated within states do not have a general

right to independence or secession from those states under

international law, but they do have rights amounting to what was
discussed above as the right to internal self-determination; have the
right to autonomy or self-government in matters relating to their
internal and local affairs, as well as ways and means for financing
their autonomous functions; have the right to the lands, territories
and resources which they have traditionally owned, occupied or
otherwise used or acquired.
Clearly, there is nothing in the law that required the State to
guarantee the indigenous people their own police and security
force; but rather, it shall be the State, through police officers, that
will provide for the protection of the people. With regards to the
autonomy of the indigenous people, the law does not obligate
States to grant indigenous peoples the near-independent status of a
state; since it would impair the territorial integrity or political unity
of sovereign and independent states.

On the basis of the suspensive clause.

o It was contented by the respondents that grave abuse of
discretion cannot be had, since the provisions assailed as
unconstitutional shall not take effect until the necessary changes to
the legal framework are effected.
The Court is not persuaded. This suspensive clause runs contrary to
Memorandum of Instructions from the President stating that
negotiations shall be conducted in accordance to the territorial
integrity of the countrysuch was negated by the provision on
association incorporated in the MOA-AD. Apart from this, the
suspensive clause was also held invalid because of the delegated
power to the GRP Peace panel to advance peace talks even if it will
require new legislation or even constitutional amendments. The
legality of the suspensive clause hence hinges on the query
whether the President can exercise such power as delegated by EO

No.3 to the GRP Peace Panel. Well settled is the rule that the
President cannot delegate a power that she herself does not
possess. The power of the President to conduct peace negotiations
is not explicitly mentioned in the Constitution but is rather implied
from her powers as Chief Executive and Commander-in-chief. As
Chief Executive, the President has the general responsibility to
promote public peace, and as Commander-in-Chief, she has the
more specific duty to prevent and suppress rebellion and lawless
As such, the President is given the leeway to explore, in the course
of peace negotiations, solutions that may require changes to the
Constitution for their implementation. At all event, the president
may not, of course, unilaterally implement the solutions that she
considers viable; but she may not be prevented from submitting
them as recommendations to Congress, which could then, if it is
minded, act upon them pursuant to the legal procedures for
constitutional amendment and revision.
While the President does not possess constituent powers - as those
powers may be exercised only by Congress, a Constitutional
Convention, or the people through initiative and referendum - she
may submit proposals for constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.
Clearly, the principle may be inferred that the President - in the
course of conducting peace negotiations - may validly consider
implementing even those policies that require changes to the
Constitution, but she may not unilaterally implement them without
the intervention of Congress, or act in any way as if the assent of
that body were assumed as a certainty. The Presidents power is
limited only to the preservation and defense of the Constitution but
not changing the same but simply recommending proposed
amendments or revisions.
o The Court ruled that the suspensive clause is not a suspensive

condition but is a term because it is not a question of whether the

necessary changes to the legal framework will take effect; but,
when. Hence, the stipulation is mandatory for the GRP to effect the
changes to the legal framework which changes would include
constitutional amendments. Simply put, the suspensive clause is
inconsistent with the limits of the President's authority to propose
constitutional amendments, it being a virtual guarantee that the
Constitution and the laws of the Republic of the Philippines will
certainly be adjusted to conform to all the "consensus points"
found in the MOA-AD. Hence, it must be struck down as

On the concept underlying the MOA-AD.

While the MOA-AD would not amount to an international
agreement or unilateral declaration binding on the Philippines
under international law, respondents' act of guaranteeing
amendments is, by itself, already a constitutional violation that
renders the MOA-AD fatally defective. The MOA-AD not being a
document that can bind the Philippines under international law
notwithstanding, respondents' almost consummated act of
guaranteeing amendments to the legal framework is, by itself,
sufficient to constitute grave abuse of discretion. The grave abuse
lies not in the fact that they considered, as a solution to the Moro
Problem, the creation of a state within a state, but in their brazen
willingness to guarantee that Congress and the sovereign Filipino
people would give their imprimatur to their solution. Upholding
such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of
initiative, for the only way that the Executive can ensure the
outcome of the amendment process is through an undue influence
or interference with that process.

BAYAN MUNA, as represented by REP. SATUR

in his capacity as Executive Secretary, et al.,
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 most serious 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 against humanity, war crimes,
and crimes of aggression.
On December 28, 2000, the RP, through Charge
d'Affaires Enrique A. Manalo, signed the Rome Statute
which, by its terms,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
On May 9, 2003, then Ambassador Francis J.
Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms

of the non-surrender bilateral agreement (Agreement,

hereinafter) between the USA and the RP.
ViaExchange of Notes No. BFO-028-03 dated May 13,
2003 (E/N BFO-028-03, hereinafter), the RP, represented
by then DFA Secretary Ople, agreed with and accepted
the US proposals embodied under the US Embassy Note
adverted to and put in effect the Agreement with the US
government.Inesse, theAgreementaims to protect what it
refers to and defines aspersons of the RP and US from
frivolous and harassment suits that might be brought
against them in international tribunals.[8]It is reflective of
the increasing pace of the strategic security and defense
partnership between the two countries.As of May 2,
2003, similar bilateral agreements have been effected by
and between theUSand 33 other countries.
In response to a query of then Solicitor General Alfredo
L. Benipayo on the status of the non-surrender
agreement, Ambassador Ricciardone replied in his letter
of October 28, 2003 that the exchange of diplomatic
notes constituted a legally binding agreement under
international law; and that, under US law, the said
agreement did not require the advice and consent of the
US Senate.
In this proceeding, petitioner imputes grave abuse of
discretion to respondents in concluding and ratifying the
Agreement and prays that it be struck down as
unconstitutional, or at least declared as without force and
For their part, respondents question petitioners standing

to maintain a suit and counter that the Agreement, being

in the nature of an executive agreement, does not
require Senate concurrence for its efficacy. And for
reasons detailed in their comment, respondents assert
the constitutionality of the Agreement.
1) Whether or not the Agreement, which has not been
submitted to the Senate for concurrence,
contravenes and undermines the Rome Statute and
other treaties. But because respondents expectedly
raised it, we shall first tackle the issue of petitioners
legal standing
POLITICAL LAW: The Agreement Not in
Contravention of the Rome Statute
Contrary to petitioners pretense, theAgreementdoes not
contravene or undermine, nor does it differ from, the
Rome Statute.Far from going against each other, one
complements the other.As a matter of fact, the principle
of complementarity underpins the creation of the ICC.As
aptly pointed out by respondents and admitted by
petitioners, the jurisdiction of the ICC is to be
complementary to national criminal jurisdictions of the
signatory states. Art. 1 of the Rome Statute pertinently
Article 1
The Court

AnInternational Crimininal Court(the Court) is hereby

established.It x x xshall have the power to exercise its
jurisdictionover persons for the most serious crimes of
international concern, as referred to in this Statute,
andshall be complementary to national criminal
jurisdictions.The jurisdiction and functioning of the Court
shall be governed by the provisions of this Statute.
Significantly, the sixth preambular paragraph of the
Rome Statute declares that it is the duty of every State to
exercise its criminal jurisdiction over those responsible
for international crimes.This provision indicates that
primary jurisdiction over the so-called international
crimes rests, at the first instance, with the state where
the crime was committed; secondarily, with the ICC in
appropriate situations contemplated under Art. 17, par.
1of theRomeStatute.
Of particular note is the application of the principle ofne
bis in idemunder par. 3 of Art. 20, Rome Statute, which
again underscores the primacy of the jurisdiction of a
state vis-a-vis that of the ICC.As far as relevant, the
provision states that no person who has been tried by
another court for conduct [constituting crimes within its
jurisdiction] shall be tried by the [International Criminal]
Court with respect to the same conduct.
The foregoing provisions of the Rome Statute, taken
collectively, argue against the idea of jurisdictional
conflict between the Philippines, as party to the nonsurrender agreement, and the ICC; or the idea of
theAgreementsubstantially impairing the value of the RPs
undertaking under the Rome Statute.Ignoring for a while

the fact that the RP signed the Rome Statute ahead of

the Agreement, it is abundantly clear to us that the Rome
Statute expressly recognizes the primary jurisdiction of
states, like the RP, over serious crimes committed within
their respective borders, the complementary jurisdiction
of the ICC coming into play only when the signatory
states are unwilling or unable to prosecute.
Given the above consideration, petitioners
suggestionthat the RP, by entering into theAgreement,
violated its duty required by the imperatives of good faith
and breached its commitment under the Vienna
Conventionto refrain from performing any act tending to
impair the value of a treaty, e.g., the Rome Statutehas to
be rejected outright.For nothing in the provisions of the
Agreement,in relation to the Rome Statute, tends to
diminish the efficacy of the Statute, let alone defeats the
purpose of the ICC.Lest it be overlooked, the Rome
Statute contains a proviso that enjoins the ICC from
seeking the surrender of an erring person, should the
process require the requested state to perform an act
that would violate some international agreement it has
entered into.We refer to Art. 98(2) of the Rome Statute,
which reads:
Article 98
Cooperation with respect to waiver of immunity and
consent to surrender
2. The Court may not proceed with a request for
surrender which would require the requested State to act
inconsistently with its obligations under international

agreements pursuant to which the consent of a sending

State is required to surrender a person of that State to
the Court, unless the Court can first obtain the
cooperation of the sending State for the giving of consent
for the surrender.
Moreover, under international law, there is a considerable
difference between a State-Party and a signatory to a
treaty. Under the Vienna Convention on the Law of
Treaties, a signatory state is only obliged to refrain from
acts which would defeat the object and purpose of a
treaty;whereas a State-Party, on the other hand, is legally
obliged to follow all the provisions of a treaty in good
In the instant case, it bears stressing that the Philippines
is only a signatory to the Rome Statute and not a StateParty for lack of ratification by the Senate. Thus, it is only
obliged to refrain from acts which would defeat the object
and purpose of the Rome Statute. Any argument obliging
the Philippines to follow any provision in the treaty would
be premature.
As a result, petitioners argument that State-Parties with
non-surrender agreements are prevented from meeting
their obligations under the Rome Statute, specifically
Arts. 27, 86, 89 and 90, must fail. These articles are only
legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show
that the Agreement is not incompatible with the Rome
Statute. Specifically, Art. 90(4) provides that if the
requesting State is a State not Party to this Statute the

requested State, if it is not under an international

obligation to extradite the person to the requesting State,
shall give priority to the request for surrender from the
Court In applying the provision, certain undisputed facts
should be pointed out:first, the US is neither a StateParty nor a signatory to the Rome Statute; and second,
there is an international agreement between the US and
the Philippines regarding extradition or surrender of
persons, i.e., the Agreement. Clearly, even assuming that
the Philippines is a State-Party, the Rome Statute still
recognizes the primacy of international agreements
entered into between States, even when one of the
States is not a State-Party to the Rome Statute.
POLITICAL LAW: Sovereignty Limited by
International Agreements
Petitioner next argues that the RP has, through the
Agreement, abdicated its sovereignty by bargaining away
the jurisdiction of the ICC to prosecute US nationals,
government officials/employees or military personnel who
commit serious crimes of international concerns in the
Philippines.Formulating petitioners argument a bit
differently, 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 ICC for erring
Americans committing international crimes in the country.
We are not persuaded.As it were, theAgreementis but a
form of affirmance and confirmance of thePhilippines
national criminal jurisdiction.National criminal jurisdiction
being primary, as explained above, 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, thePhilippinesmay decide to try persons of
theUS, as the term is understood in theAgreement, under
our national criminal justice system.Or it may opt not to
exercise its criminal jurisdiction over its erring citizens or
overUSpersons committing high crimes in the country
and defer to the secondary criminal jurisdiction of the ICC
over them.As to persons of the US whom the Philippines
refuses to prosecute, the country would, in effect,
accorddiscretion to the US to exercise either its national
criminal jurisdiction over the person concerned or to give
its consent to the referral of the matter to the ICC for
trial.In the same breath, theUSmust extend the same
privilege to thePhilippineswith respect to persons of the
RP committing high crimes withinUSterritorial jurisdiction.
To be sure, the nullity of the subject non-surrender
agreement cannot be predicated on the postulate that
some of its provisions constitute a virtual abdication of its
sovereignty.Almost every time a state enters into an
international agreement, it voluntarily sheds off part of its
sovereignty.The Constitution, as drafted, did not envision
a reclusivePhilippinesisolated from the rest of the world.It
even adheres, as earlier stated, to the policy of
cooperation and amity with all nations.
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.On the rationale that the Philippines has adopted
the generally accepted principles of international law
aspart of the law of the land, a portion of sovereignty may
be waived without violating the Constitution. Such waiver
does not amount to an unconstitutional diminution or
deprivation of jurisdiction of Philippine courts.
POLITICAL LAW: Agreement Not Immoral/Not at
Variance with Principles of International Law
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 petitioner's
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 non-surrender 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 country's judiciary to try
offenses under its national criminal laws and dispense
justice fairly and judiciously.
Petitioner, we believe, labors under the erroneous
impression that the Agreement would allow Filipinos and
Americans committing high crimes of 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, for the nonce, that all the formalities
necessary to bind both countries to the Rome Statute
have been met.For perspective, 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 the view
we take of things, there is nothing immoral or violative of
international law concepts in the act of the Philippines of
assuming criminal jurisdiction pursuant to the nonsurrender agreement over an offense considered criminal
by both Philippine laws and the Rome Statute.
POLITICAL LAW: Agreement Need Not Be in the
Form of a Treaty

A view is advanced that the Agreement amends existing

municipal laws on the States obligation in relation to
grave crimes against the law of nations,i.e., genocide,
crimes against humanity and war crimes.Relying on the
above-quoted statutory proviso, the view posits that the
Philippine is required to surrender to the proper
international tribunal those persons accused of the grave
crimes defined under RA 9851, if it does not exercise its
primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it
does not decide to prosecute a foreign national for
violations of RA 9851, the Philippines has only two
options, to wit: (1) surrender the accused to the proper
international tribunal; or (2) surrender the accused to
another State if such surrender is pursuant to the
applicable extradition laws and treaties.But the
Philippines may exercise these options only in cases
where another court or international tribunal is already
conducting the investigation or undertaking the
prosecution of such crime; otherwise, the Philippines
must prosecute the crime before its own courts pursuant
to RA 9851.
Posing the situation of a US national under prosecution
by an international tribunal for any crime under RA 9851,
the Philippines has the option to surrender such US
national to the international tribunal if it decides not to
prosecute such US national here.The view asserts that
this option of the Philippines under Sec. 17 of RA 9851 is
not subject to the consent of theUS, and any derogation
of Sec. 17 of RA 9851, such as requiring the consent of
the US before the Philippines can exercise such option,

requires an amendatory law.In line with this scenario, the

view strongly argues that theAgreementprevents
thePhilippineswithout the consent of theUSfrom
surrendering to any international tribunal US nationals
accused of crimes covered by RA 9851, and, thus, in
effect amends Sec. 17 of RA 9851.Consequently, the
view is strongly impressed that the Agreement cannot be
embodied in a simple executive agreement in the form of
an exchange of notes but must be implemented through
an extradition law or a treaty with the corresponding
Moreover, consonant with the foregoing view, citing Sec.
2, Art. II of the Constitution, where thePhilippinesadopts,
as a national policy, the generally accepted principles of
international law as part of the law of the land, the Court
is further impressed to perceivethe Rome Statute as
declaratory of customary international law.In other words,
the Statute embodies principles of law which constitute
customary international law or custom and for which
reason it assumes the status of an enforceable domestic
law in the context of the aforecited constitutional
provision.As a corollary, it is argued that any derogation
from the Rome Statute principles cannot be undertaken
via a mere executive agreement, which, as an exclusive
act of the executive branch, can only implement, but
cannot amend or repeal, an existing law.TheAgreement,
so the argument goes, seeks to frustrate the objects of
the principles of law or alters customary rules embodied
in the Rome Statute.
Prescinding from the foregoing premises, the view thus
advanced considers the Agreement inefficacious, unless

it is embodied in a treaty duly ratified with the

concurrence of the Senate, the theory being that a
Senate- ratified treaty partakes of the nature of a
municipal law that can amend or supersede another law,
in this instance Sec. 17 of RA 9851 and the status of the
Rome Statute as constitutive of enforceable domestic law
under Sec. 2, Art. II of the Constitution.
We are unable to lend cogency to the view thus taken.
For one, we find that the Agreement does not amend or
is repugnant to RA 9851.For another, the view does not
clearly state what precise principles of law, if any, the
Agreement alters.And for a third, it does not demonstrate
in the concrete how the Agreement seeks to frustrate the
objectives of the principles of law subsumed in the Rome
Nonetheless, despite the lack of actual domestic
legislation, theUSnotably follows the doctrine of
incorporation.As early as 1900, the esteemed Justice
Gray inThe Paquete Habana case already held
international law as part of the law of theUS, to wit:
International law is part of our law, and must be
ascertained and administered by the courts of justice of
appropriate jurisdiction as often as questions of right
depending upon it are duly presented for their
determination. For this purpose, where there is no treaty
and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages
of civilized nations, and, as evidence of these, to the
works of jurists and commentators who by years of labor,
research, and experience have made themselves

peculiarly well acquainted with the subjects of which they

treat. Such works are resorted to by judicial tribunals, not
for the speculations of their authors concerning what the
law ought to be, but for the trustworthy evidence of what
the law really is.
Thus, a person can be tried in the US for an international
crime despite the lack of domestic legislation.The cited
ruling in U.S. v. Coolidge,which in turn is based on the
holding inU.S. v. Hudson, only applies to common law
and not to the law of nations or international law.Indeed,
the Court inU.S. v. Hudson only considered the question,
whether the Circuit Courts of the United States can
exercise a common law jurisdiction in criminal
cases.Stated otherwise, there is no common law crime in
the US but this is considerably different from international
TheUSdoubtless recognizes international law as part of
the law of the land, necessarily including international
crimes, even without any local statute.In fact, years later,
US courts would apply international law as a source of
criminal liability despite the lack of a local statute
criminalizing it as such. So it was that in Ex Parte Quir in
the US Supreme Court noted that from the very
beginning of its history this Court has recognized and
applied the law of war as including that part of the law of
nations which prescribes, for the conduct of war, the
status, rights and duties of enemy nations as well as of
enemy individuals. It went on further to explain that
Congress had not undertaken the task of codifying the
specific offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of

such offenses has not itself undertaken to codify that
branch of international law or to mark its precise
boundaries, or to enumerate or define by statute all the
acts which that law condemns. An Act of Congress
punishing the crime of piracy as defined by the law of
nations is an appropriate exercise of its constitutional
authority, Art. I, s 8, cl. 10, to define and punish the
offense since it has adopted by reference the sufficiently
precise definition of international law. Similarly by the
reference in the 15th Article of War to offenders or
offenses that by the law of war may be triable by such
military commissions. Congress has incorporated by
reference, as within the jurisdiction of military
commissions, all offenses which are defined as such by
the law of war, and which may constitutionally be
included within that jurisdiction.
This rule finds an even stronger hold in the case of
crimes against humanity. It has been held that genocide,
war crimes and crimes against humanity have attained
the status of customary international law.Some even go
so far as to state that these crimes have attained the
status of jus cogens.
Customary international law or international custom is a
source of international law as stated in the Statute of the
ICJ. It is defined as the general and consistent practice of
states recognized and followed by them from a sense of
legal obligation.In order to establish the customary status
of a particular norm, two elements must concur: State
practice, the objective element; andopinio juris sive
necessitates, the subjective element.

State practice refers to the continuous repetition of the

same or similar kind of acts or norms by States.It is
demonstrated upon the existence of the following
elements: (1) generality; (2) uniformity and consistency;
and (3) duration. While,opinio juris, the psychological
element, requires that the state practice or norm be
carried out in such a way, as to be evidence of a belief
that this practice is rendered obligatory by the existence
of a rule of law requiring it.
The term jus cogens means the compelling law.Corollary,
ajus cogensnorm holds the highest hierarchical position
among all other customary norms and principles.As a
result,jus cogensnorms are deemed peremptory and
non-derogable.When applied to international crimes, jus
cogens crimes have been deemed so fundamental to the
existence of a just international legal order that states
cannot derogate from them, even by agreement.
These jus cogens crimes relate to the principle of
universal jurisdiction, i.e., any state may exercise
jurisdiction over an individual who commits certain
heinous and widely condemned offenses, even when no
other recognized basis for jurisdiction exists.The
rationale behind this principle is that the crime committed
is so egregious that it is considered to be committed
against all members of the international community and
thus granting every State jurisdiction over the crime.
Therefore, even with the current lack of domestic
legislation on the part of the US, it still has both the
doctrine of incorporation and universal jurisdiction to try

these crimes.
WHEREFORE, the petition for certiorari, mandamus
and prohibition is hereby DISMISSED for lack of
DANUBE DAM CASE (Hungary v Slovakia) 37 ILM 162
In 1977, The Treaty between the Hungarian Peoples Republic and
the Czechoslovak Socialist Republic concerning the Construction
and Operation of the Gabckovo-Nagymaros System of Locks was
concluded on 16 September 1977.The treaty was concluded to
facilitate the construction of dams on the Danube River. It
addressed broad utilization of the natural resources of the
Danube between Bratislava and Budapest, representing two
hundred of the Rivers two thousand eight hundred and sixty
kilometers. Intense criticism of the construction at Nagymaros
centered upon endangerment of the environment and uncertainty
of continued economic viability. This growing opposition
engendered political pressures upon the Hungarian Government.
After initiating two Protocols, primarily concerned with timing of
construction, Hungary suspended works at Nagymaros on 21 July
1989 pending further environmental studies. In response,
Czechoslovakia carried out unilateral measures. Hungary then
claimed the right to terminate the treaty, at which point the
dispute was submitted to the International Court of Justice.
Hungary also submitted that it was entitled to terminate the
treaty on the ground that Czechoslovakia had violated Articles of
the Treaty by undertaking unilateral measures, culminating in the
diversion of the Danube. Slovakia became a party to the 1977
Treaty as successor to Czechoslovakia.
On 19 May 1992 Hungary purported to terminate the 1977 Treaty
as a consequence of Czechoslovakias refusal to suspend work
during the process of mediation. As the Treaty itself did not
feature a clause governing termination, Hungary proffered five
arguments to validate its actions: a state of necessity,
supervening impossibility of performance, fundamental change of
circumstances, material breach and the emergence of new norms
of international environmental law. Slovakia contested each of
these bases.
The Court easily dismissed Hungarys first claim, simply stating

that a state of necessity is not a ground for termination. Even if a

state of necessity is established, as soon as it ceases to exist
treaty obligations automatically revive.
The doctrine of impossibility of performance is encapsulated in
Article 61 of the Vienna Convention on the Law of Treaties, which
requires the permanent disappearance or destruction of an
object indispensable for the execution of the treaty. In this case,
the legal regime governing the Gabckovo-Nagymaros Project did
not cease to exist. Articles 15, 19 and 20 of the 1977 Treaty
provided the means through which works could be readjusted in
accordance with economic and ecological imperatives.
Furthermore, Article 61(2) of the Vienna Convention on the Law of
Treaties precludes application of the doctrine where the
impossibility complained of is the result of a breach by the
terminating Party. If the joint investment had been hampered to a
point where performance was impossible, it was a consequence
of Hungarys abandonment of works.
Article 62 of the Vienna Convention on the Law of Treaties
codifies international law in respect of fundamental change of
circumstances and treaty relations. Hungary submitted that the
1977 Treaty was originally intended to be a vehicle for socialist
integration. Fundamental changes cited were the displacement of
a single and indivisible operational system by a unilateral
scheme; the emergence of both States into a market economy;
the mutation of a framework treaty into an immutable norm; and
the transformation of a treaty consistent with environmental
protection into a prescription for environmental disaster. The
Court held that although political changes and diminished
economic viability were relevant to the conclusion of a treaty,
they were not so closely linked with the object and purpose of the
1977 Treaty so as to constitute an essential basis of the consent
of the Parties. New developments in the efficacy of environmental
knowledge were not unforeseen by the Treaty and cannot be said
to represent a fundamental change. The Court did not consider
whether the emergence of new environmental norms would
catalyze the application of Article 62 in a situation where the
terms of a treaty stand abhorrent to new norms.
Hungary claimed that Variant C materially breached Articles 15,
19 and 20 of the 1977 Treaty, concerning the protection of water
quality, the preservation of nature and guardianship of fishing
interests. Article 60(3) of the Vienna Convention on the Law of
Treaties recognizes material breach of a treaty as a ground for

termination on the part of the injured State. Extending its

reasoning on the principle of approximate application, the Court
held that a material breach only occurred upon the diversion of
the Danube. As Czechoslovakia dammed the Danube after 19
May 1992, Hungarys purported termination was premature and
thus invalid.
As its final basis for the justification of termination, Hungary
advocated that, pursuant to the precautionary principle in
environmental law, the obligation not to cause substantive
damage to the territory of another State had evolved into an
obligation erga omnes (sic utere tuo ut alienum non laedas).
Slovakia countered this argument with the claim that there had
been no intervening developments in international environmental
law that gave rise to jus cogens norms that would override
provisions of the 1977 Treaty. The Court avoided consideration of
these propositions, concluding instead that these new concerns
have enhanced the relevance of Articles 15, 19 and 20. Given
that international environmental law is in its formative stages, it
is unfortunate that the International Court of Justice did not grasp
at this opportunity to discuss its role in the governance of
relations between States. To that end, the Court may have
clarified the controversial application of the sic utere principle to
modify notions of unrestricted sovereignty in the Trail Smelter


v. SANDIGANBAYAN (Fourth Division) and IMELDA
R. MARCOS,Respondents.
On February 28, 1986, immediately after assuming
power, President Corazon C. Aquino issued Executive
Order 1, creating the PCGG.She empowered the PCGG
to recover all ill-gotten wealth allegedly amassed by
former President Ferdinand E. Marcos, his family, and
close associates during his 20-year regime.

PCGG Commissioner Raul Daza gave lawyers Jose Tan

Ramirez and Ben Abella PCGG Region VIII Task Force
Head and Co-Deputy, respectively, written authority to
sequester any property, documents, money, and other
assets in Leyte, belonging to former First Lady Imelda
R. Marcos,Benjamin Romualdez,
Alfredo Romualdez,
and their agents. On March 18, 1986, Attys. Ramirez
and Abella issued a sequestration order against
the Marcoses Olot, Tolosa,
On August 10, 2001, Mrs. Marcos filed a motion to quash
the Olot Resthouse,claiming that such order, issued only
by Attys. Ramirez and Abella, was void for failing to
observe Sec. 3 of the PCGG Rules and Regulations. The
rules required the signatures of at least two PCGG
Commissioners. Mrs. Marcos filed a Supplement to her
earlier motion, claiming no prima facie evidence that
the Olot Resthouse constituted ill-gotten
pointed out that the property is the ancestral home of her
family. The Republic countered that Mrs. Marcos was
already stopped from questioning the order.
On February 28, 2002 the Sandiganbayan issued the
assailed Resolution, granting the motion to quash and
ordering the full restoration of the Olot Resthouse to Mrs.
Marcos.The Sandiganbayan ruled that the sequestration
order was void because it was signed, not by PCGG
Commissioners, but by mere PCGG agents.
ISSUE: Whether or not the March 18, 1986 sequestration

order against the Olot Resthouse, issued by PCGG

agents before the enactment of the PCGG rules, was
validly issued.
Under Section 26, Article XVIII of the Constitution, an
order of sequestration may only issue upon a showing "of
a prima facie case" that the properties are ill-gotten
wealth under Executive Orders 1 and 2. When a court
nullifies an order of sequestration for having been issued
without a prima facie case, the Court does not substitute
its judgment for that of the PCGG but simply applies the
The Republics supposed evidence does not show how
the Marcoses acquired the sequestered property, what
makes it "ill-gotten wealth," and how former President
Marcos intervened in its acquisition. Taking the foregoing
view, the resolution of the issue surrounding the
character of the property sequestered whether or not it
could prima facie be considered ill-gotten should be
Although the two PCGG lawyers issued the
sequestration order in this case on March 18, 1986,
before the passage of Sec. 3 of the PCGG Rules, such
consideration is immaterial following the above ruling.
Finally, Mrs Marcos is not estopped from questioning the
order because a void order produces no effect and

cannot be validated under the doctrine of estoppel.

Facts of the Case:
Netherlands and Denmark had drawn partial boundary lines
based on the equidistance principle (A-B and C-D). An agreement
on further prolongation of the boundary proved difficult because
Denmark and Netherlands wished this prolongation to take place
based on the equidistance principle (B-E and D-E) where as
Germany was of the view that, together, these two boundaries
would produce an inequitable result for her. Germany stated that
due to its concave coastline, such a line would result in her
loosing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline. The Court
had to decide the principles and rules of international law
applicable to this delimitation. In doing so, the court had to
decide if the principles espoused by the parties were binding on
the parties either through treaty law or customary international
Questions before the Court (as relevant to this post):
Is Germany under a legal obligation to accept the equidistancespecial circumstances principle, contained in Article 6 of the
Geneva Convention, either as a customary international law rule
or on the basis of the Geneva Convention?
The Courts Decision:
The use of the equidistance method had not crystallised into
customary law and was is not obligatory for the delimitation of
the areas in the North Sea related to the present proceedings.
Relevant Findings of the Court:
Nature of the treaty obligation: Is the 1958 Geneva Convention,
and in particular Article 6, binding on Germany?
1. Article 6 of the Geneva Convention on the Continental Shelf
states that unless the parties have agreed on a method for
delimitation or unless special circumstances exist, the
equidistance method would apply (see Article 6). Germany has
signed but not ratified the Geneva Convention, while Netherlands
and Denmark are parties to the Convention. The latter two States
argue that while Germany is not a party to the Convention (not
having ratified it), she is still bound by Article 6 of the Convention

(1) by conduct, by public statements and proclamations, and
in other ways, the Republic has unilaterally assumed the
obligations of the Convention; or has manifested its acceptance
of the conventional regime; or has recognized it as being
generally applicable to the delimitation of continental shelf
(2) the Federal Republic had held itself out as so assuming,
accepting or recognizing, in such a manner as to cause other
States, and in particular Denmark and the Netherlands, to rely on
the attitude thus taken up (the latter is called the principle of
2. The Court rejected the first argument. It stated that only a
very definite very consistent course of conduct on the part of a
State would allow the court to presume that a State had
somehow become bound by a treaty (by a means other than in a
formal manner: i.e. ratification) when the State was at all times
fully able and entitled to accept the treaty commitments in a
formal manner. The Court held that Germany had not unilaterally
assumed obligations under the Convention. The court also took
notice of the fact that even if Germany ratified the treaty, she
had the option of entering into a reservation on Article 6 following
which that particular article would no longer be applicable to
Germany (i.e. even if one were to assume that Germany had
intended to become a party to the Convention, it does not
presuppose that it would have also undertaken those obligations
contained in Article 6).
3. NB: The Vienna Convention on the Law of Treaties of 1969
(VCLT), which came into force in 1980, discusses more fully the
obligations of third States to treaties. It clearly stipulates that an
obligation arises for a third State from a provision of a treaty only
if (1) the parties to the treaty intend the provision to create this
obligation for the third States; and (2) the third State expressly
accepts that obligation in writing (A. 35 of the VCLT). The VCLT
was not in force when the ICJ deliberated on this case. However,
as seen above, the ICJs position was consistent the VCLT. (See
the relevant provisions of the Vienna Convention on the Law of
4. The court held that the existence of a situation of estoppel
would have allowed Article 6 to become binding on Germany
but held that Germanys action did not support an argument for
estoppel. The court also held that the mere fact that Germany

may not have specifically objected to the equidistance principle

as contained in Article 6 is not sufficient to state that the principle
is now binding upon it.
5. In conclusion, the court held that Germany had not acted in
any way to incur obligations contained in Article 6 of the Geneva
Convention. The equidistance special circumstances rule was
not binding on Germany by way of treaty.
Nature of the customary international law obligation: Is Germany
bound by the provisions of Article 6 of the Geneva Convention by
way of customary international law?
6. Netherlands and Denmark argued that Article 6 also reflected
the accepted rule of general international law on the subject of
continental shelf delimitation and existed independently of the
Convention. Therefore, they argued, Germany is bound by it by
way of customary international law.
7. To decide if the equidistance principle bound Germany by way
of customary international law, the court examined (1) the status
of the principle contained in Article 6 as it stood when the
Convention was being drawn up (2) and after the latter came into
What was the customary law status of Article 6 at the time of
drafting the Convention?
8. The court held the principle of equidistance, as contained in
Article 6, did not form a part of existing or emerging customary
international law at the time of drafting the Convention. The
Court supported this finding based on (1) the hesitation
expressed by the drafters of the Convention International Law
Commission on the inclusion of Article 6 (para. 62) and (2) the
fact reservations to Article 6 was permissible under the
Convention (Article 12). The court held:
Article 6 is one of those in respect of which, under the
reservations article of the Convention (Article 12) reservations
may be made by any State on signing, ratifying or acceding for,
speaking generally, it is a characteristic of purely conventional
rules and obligations that, in regard to them, some faculty of
making unilateral reservations may, within certain limits, be
admitted; whereas this cannot be so in the case of general or
customary law rules and obligations which, by their very nature,
must have equal force for all members of the international
community, and cannot therefore be the subject of any right of
unilateral exclusion exercisable at will by any one of them in its
own favor. The normal inference would therefore be that any

articles that do not figure among those excluded from the faculty
of reservation under Article 12, were not regarded as declaratory
of previously existing or emergent rules of law (see para 65 for a
counter argument and the courts careful differentiation)
Did the provisions in Article 6 on the equidistance principle attain
the customary law status after the Convention came into force?
9. The court then examined whether the rule contained in Article
6 had become customary international law after the Convention
entered into force either due the convention itself (i.e., if
enough States had ratified the Convention in a manner to fulfil
the criteria specified below), or because of subsequent State
practice (i.e. even if adequate number of States had not ratified
the Convention one could find sufficient State practice to meet
the criteria below). The court held that Article 6 of the Convention
had not attained a customary law status (compare the 1958
Geneva Convention with the four Geneva Conventions on 1949 in
the field of international humanitarian law in terms of its
authority as a pronouncement of customary international law).
10. For a customary rule to emerge the court held that it
needed: (1) very widespread and representative participation in
the convention, including States whose interests were specially
affected (i.e. generality); and (2) virtually uniform practice (i.e.
consistent and uniform usage) undertaken in a manner that
demonstrates (3) a general recognition of the rule of law or legal
obligation (i.e. opinio juries). In the North Sea Continental Shelf
cases the court held that the passage of a considerable period of
time was unnecessary (i.e. duration) for the formation of a
customary law.
Widespread and representative participation
11. The court held that the first criteria was not met. The number
of ratifications and accessions to the convention (39 States) were
not adequately representative (including of coastal States i.e.
those States whose rights are affected) or widespread.
12. The court held that duration taken for the customary law rule
to emerge is not as important as widespread and representative
participation, uniform usage and the existence of an opinio juris.
Although the passage of only a short period of time (in this case,
3 5 years) is not necessarily, or of itself, a bar to the formation
of a new rule of customary international law on the basis of what
was originally a purely conventional rule, an indispensable
requirement would be that within the period in question, short

though it might be, State practice, including that of States whose

interests are specially affected, should have been both extensive
and virtually uniform in the sense of the provision invoked and
should moreover have occurred in such a way as to show a
general recognition that a rule of law or legal obligation is
involved (text in brackets added).
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or
in omissions (Lotus case) in so far as those acts or omissions are
done following a belief that the said State is obligated by law to
act or refrain from acting in a particular way. (For more on opinio
juris click here).
14. The Court examined 15 cases where States had delimited
their boundaries using the equidistance method, after the
Convention came into force (paras. 75 -77). The court concluded,
even if there were some State practice in favour of the
equidistance principle the court could not deduct the necessary
opinio juris from this State practice. The North Sea Continental
Shelf Cases confirmed that both State practice (the objective
element) and opinio juris (the subjective element) are essential
pre-requisites for the formation of a customary law rule. This is
consistent with Article 38 (1) (b) of the Statute of the ICJ. The
following explains the concept of opinio juris and the difference
between customs (i.e. habits) and customary law:
Not only must the acts concerned amount to a settled practice,
but they must also be such, or be carried out in such a way, as to
be evidence of a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it. The need for such a
belief, i.e, the existence of a subjective element, is implicit in the
very notion of the opinio juris sive necessitatis. The States
concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual
character of the acts is not in itself enough. There are many
international acts, e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but which are motivated
only by considerations of courtesy, convenience or tradition, and
not by any sense of legal duty.
15. The court concluded that the equidistance principle was not
binding on Germany by way of treaty or customary international
law because, in the case of the latter, the principle had not
attained a customary international law status at the time of the
entry into force of the Geneva Convention or thereafter. As such,

the court held that the use of the equidistance method is not
obligatory for the delimitation of the areas concerned in the
present proceedings.


ICJ Reports December 20, 1974
New Zealand and Australia instituted proceedings against France
due to the latters conduct of nuclear testing in the South Pacific.
Both were asking for a court order declaring that France shall not
carry out any further tests. The ICJ foundthat it need not decide
on the matter due to assurances from the French government
that atmospheric nuclear tests would end. It is well-recognized
that declarations made by way of unilateral acts, concerning legal
or factual situations, may have the effect of creating legal
obligations. Nothing in the nature of a quid pro quo, nor any
subsequent acceptance, nor even any reaction from other States
is required for such declaration to take effect. Neither is the
question of form decisive. The intention of being bound is to be
ascertained from an interpretation of the act. The binding
character of the undertaking results from the terms of the act and
is based on good faith interested States are entitled to require
that the obligation be respected. Once the court has found that a
State has entered into a commitment concerning its future
conduct, it is not the Courts function to contemplate that it will
not comply with it.
facts of the case
The two disputes stemmed from Frances nuclear testing in the
South Pacific, which entailed the release of radioactive matter
into the atmosphere. New Zealand instituted proceedings against
France before the ICJ, arguing that it was affected by radioactive
fallout from the atmospheric tests and that this constituted a
violation of its rights under international law. It contended that
the ICJ had jurisdiction based on the General Act on the Pacific
Settlement of International Disputes (1928) and Articles 36 and
37 of the Statute of the Court. Likewise, Australia filed a case
against France on the basis that the tests caused fallout of

measurable quantities of radioactive matter on Australian

territory. It asked the ICJ to order that the French republic should
not carry out any further tests. In its defense, France insisted that
the ICJ had no jurisdiction over the cases (France did not even
appoint an agent to represent it in the said cases) and requested
the removal of the cases from the ICJs list. France also contended
that the radioactive matters from the tests were too insignificant.
1. Whether or not the cases should be removed from the ICJs list.
2. Whether or not a dispute exists between the parties.
1. Summary removal from the list would not be appropriate.
France has failed to appear before the ICJ, but the court must still
proceed and reach a conclusion on the basis of the arguments
and evidence presented before it by the petitioners. 2. The ICJ
need not decide on the matter due to assurances from the French
government that atmospheric nuclear tests would end. According
to the ICJ, an assurance from France that the nuclear tests would
finally stop resolves the dispute. The court considered public
statements made by French authorities concerning future tests:
a. Statement of the French President that in view of the stage
reached in carrying out the French nuclear defense program,
France will be in a position to pass on to the stage of underground
explosions as soon as the series of tests is completed