MODULE 4 1. YES.

The court held that Denmark had long since established
sovereignty over the entire island, not merely the colonies, and that
LEGAL STATUS OF EASTERN GREENLAND (Denmark v Norway) Norway was estopped from laying claim to any part of Greenland by
PCIJ Reports, Series A/B, No. 53 its acceptance of several commercial treaties that named Greenland
of Danish possession, as well as by NFM Ihlen’s declaration that
FACTS: Norway acknowledges Denmark’s authority over the entire island.
1. The country of Denmark had established and administered colonies 2. The court rejected Norway’s contention that NFM Ihlen had no
on the southwestern coast of Greenland since 1721. Although they authority to give such statement without the consent of the Norwegian
had also set up an outpost on the eastern coast, vast areas in the Parliament. NFM Ihlen’s statements became binding on the entire
eastern and northern parts of the island were outside Danish rule. Norway government, thus their act of establishing an outpost in the
2. Between the years 1915 and 1921, Denmark sought to extend their eastern part of the island violated Danish sovereignty over the entire
authority and sovereignty over the entire island, not just the island.
southwestern parts. In order to do so, they conducted several
diplomatic talks with other nations to gain their consent in the matter. DISSENT OF JUSTICE ANZILOTTI:
These nations included the US, Great Britain, Japan, France, Italy, 1. Anzilotti agreed that Norway was bound by the FMI Ihlen declaration.
and Norway. However, he was not convinced that Denmark had sovereignty over
3. Of particular importance is the correspondence between Denmark the entire Greenland prior to their first correspondence with Norway
and Norway. The Danish Minister informed the Norwegian (which included FMI Ihlen’s declaration).
government of Denmark’s plans to establish authority over the whole 2. Anzilotti claims that when Denmark conducted diplomatic talks with
island. In response, the Norwegian Foreign Minister Nils Ihlen (NFM several nations regarding its intention to extend its authority over the
Ihlen) stated that his government “would make no difficulties entire island, such was an admission by Denmark that they had not
regarding this matter.” yet established sovereignty over the entire island of Greenland
4. The Danish Government asked for a written confirmation of NFM (hence their need to inform other nations of their “plans”.)
Ihlen’s verbal promise. The Norwegian Government did not reply. 3. Thus, when Norway expressed their dissent to Denmark’s formal
Despite this, Denmark formally declared its sovereignty over all of declaration of sovereignty over the entire Greenland, and Denmark
Greenland. This is when the Norwegian government made their reply, replied that they had already established sovereignty over the entire
expressing their dissent over the matter. They claim that Eastern island since before, Anzilotti believes that Denmark was merely
Greenland remained a no man’s land, thus they were free to conduct bluffing. Anzilotti claims that Denmark knew that they had not shown
whatever activities on such land as they wished. To this, Denmark actual exercise of sovereign rights over the entire island, and merely
stated that they had sovereignty over all of Greenland since before. hoped that Norway would believe them when they said that they had
Both countries failed to reach a compromise as to Greenland. already established sovereignty.
5. A group of Norwegians occupied Mackenzie Bay (found in Eastern 4. Anzilotti also claims that the historical evidence which Denmark
Greenland) and through a formal proclamation claimed the Eastern provided to prove their sovereignty over the entire island were
Coast of Greenland, naming it Eirik Raudes Land. insufficient.
6. Denmark took the case to the Permanent Court of International
Justice (PCIJ).

ISSUE:
1. WON Denmark had already established sovereignty over the entire
island of Greenland, thus making the claim of Norway over the
Eastern part invalid

HELD:

• The principles of international law deemed to be in existence
at the moment when it delivers its judgment or opinion.
RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE 2. If yes, what is the effect of the reservation as between the
reserving State and the parties which object and acccept the
• The Convention on the Genocide (Convention) was adopted by the reservation?
UN in 1951. However there were several States which made • As no State can be bound by a reservation to which it has
reservations to the provisions on the Convention. not consented, it necessarily follows that each State
• The UN then asked the ICJ to give an Advisory Opinion on the objecting to it will or will not, on the basis of its individual
following questions. appraisal within the limits of the criterion of the object and
purpose stated above, consider the reserving State to be a
1. Can a reserving State be regarded as being a party to the party to the Convention.
Convention while still maintaining its reservation even if the • The contracting States are guided in their judgment by the
reservation is objected by other States? — YES (but the ICJ compatibility or incompatibility of the reservation with the
states that there is no absolute answer) object and purpose of the Convention.
• It is a well-established principle that in its treaty relations a
State cannot be bound without its consent, and that no 3. What would be the legal effect if the State who objected is a
reservation can be effective against any State without its signatory which has not yet ratified? Or a State entitled to sign
agreement thereto. No reservation is valid unless it was or accede but which has not yet done so?
accepted by all the contracting parties without exception. • Signature does not make the signatory State a party to the
• But in the instant Convention, it is proper to refer to a variety Convention but it establishes a provisional status in favor of
of circumstances which would lead to a more flexible the State.
application of the principle. o Pending ratification confers upon the signatory State
• It must be pointed out that the Convention was finally a right to formulate as a precautionary measure
approved unanimously, it is nevertheless the result of a objections which have themselves a provisional
series of majority votes. The majority principle while character.
facilitating the conclusion of multilateral conventions, may o The reservation can only have the legal effect upon
also make it necessary for certain States to make ratification.
reservation. • For the latter case, since the State has not yet signed, the
• In addition, though a convention lacks an article providing for State cannot claim such a right from its status. Thus, the
reservation, it does not mean that contracting States are reservation has no legal effect.
prohibited from making certain reservations.
• The origins of the Convention show that it was the intention DISSENTS:
of the UN to condemn and punish genocide as a crime under J. ALVAREZ
international law. It was manifestly adopted for a purely • The multiplicity of reservation made to multilteral conventions,
humanitarian and civilizing purpose. together with the adhesion to them, has produced much uncertainty.
• A State which has made a reservation which has been • It is necessary that the Court should determine the present state of
objected to by one or more of the parties to the Convention law in each case which is brought before it and, when needed, act
but not by others, can be regarded as being a party to the constructively in this respect, al1 the more so because in virtue of
Convention if the reservation is compatible with the object Resolution 171 of the General Assembly of the United Nations of
and purpose of the Convention; otherwise, that State cannot 1947,it is at liberty to develop international law, and indeed to create
be regarded as being a party to the Convention. law, if that is necessary, for it is impossible to define exactly where the
development of this law ends and its creation begins.

are to the effect that. If they are majority two-thirds vote. the Supreme Court left the o c) conventions which seek to establish new and important question of the constitutionality of the President Carter's action open. so that relations could instead be established with the become a party thereto . without the consent of al1 the right of President Jimmy Carter to unilaterally nullify the Sino-American the parties. they did o d) conventions seeking to regulate matters of a social or not explicitly approve Carter's action. believed that . relations authority and therefore not reviewer by the Court. o b) thosewhich seek to determine the territorial status of certain States. have constituted what may be called QUICKHELD: "European public law" While dismissing the case of Goldwater v. J. therefore. Carter. W/N a President can terminate a treaty closely involves his foreign relations day interest. People's Republic of China. GUERRERO FACTS • a) that the existing rule of international law. and Rehnquist merely questioned the judicial merit of the case itself. authority and therefore not reviewer by the Court. it was not eligible to be heard by the court. that a reservation against it was "compatible with the vacated a court of appeals ruling and remanded the case to a federal district object and purpose of the Convention". they should produce the minimum of legal effect ot the the President has the power to break a treaty without the approval of reserving State. while agreeing that the case did not merit judicial review. such as DOCTRINE: the European organ-ization which is of such great present. there is no official ruling on whether allowed. which the United States had signed with convention cannot become effective and the reserving State cannot the Republic of China. Goldwater and his co-filers claimed that the President required Senate approval to take such an action. in the convention and frequently do so . under Article II. by not doing so. on the case. W/N a President can terminate a treaty closely involves his foreign reservations that might be proposed. A majority of six Justices ruled right to make that reservation-subject always to an objection by any of that the case should be dismissed without hearing an oral argument. Powell principles of international law . Article II. political. Constitution. and was essentially • It propounds a new rule for which we can find no legal basis. Powell. Justices the existing parties on the ground that the reservation ' is not Lewis Powell and William Rehnquist issued two separate concurring opinions "compatible". and the current practice of Senator Barry Goldwater and other members of the US Congress challenged the United Nations. Congress. the court and purpose". • (b) that the States negotiating a convention are free to modify both Section II of the U. • Four categories of multilateral conventions: GOLDWATER v. CARTER o a) those which seek to develop world international organization or to establish regional organizations. not judicial. Section II of the Constitution individuals merely states that the President cannot make treaties without a Senate • The Convention on Genocide cannot admit of reservations. and that.S. President Carter the rule and the practice by making the necessary express provision had acted beyond the powers of his office. Powell even stated that this humanitarian interest with a view to improving the position of could be a valid constitutional issue. Moreover. and that it had therefore a court with directions to dismiss the complaint. a reservation proposed in relation to a multilateral Mutual Defense Treaty with Taiwan. Rehnquist claimed that the issue concerned how foreign affairs were conducted between Congress and the President. • Any State desiring to become a party to the Convention would be at liberty to assert that a particular provision was not a part of "the object Granting a petition for certiorari but without hearing oral arguments. As it stands now. ISSUE • c) that the States negotiating the Genocide Convention did not do so : W/N the President can terminate a treaty without Congressional approval • (d) that therefore they contracted on the basis that the existing law HELD and the current practice would apply in the usual way to any YES.

1999. The Philippines and the US entered into the Mutual Defense the case stood. (The Senate had drafted such a resolution. In the arena of foreign affairs. territory. Today. ISSUES & HELD: 1. would have been arguable had Congress issued a G. and hence still political in nature due to the lack of majority or supermajority vote in the Senate speaking officially as a constitutional institution. or legislators to question the constitutionality of the VFA – NO Petitioner failed to show that they have sustained. unified voice for the nation on foreign affairs. Even though the Supreme Through Executive Secretary Ronaldo Zamora. brushes aside the . the powers of the President to break treaties without Bayan v. Both sides discussed the possible elements of a Visiting Forces Agreement. it was simply a dispute among unsettled. Cooperation and Security which. constitutional law. public vessels and aircraft. by a 2/3 vote to ratify the same agreement. Zamora congressional approval. the In view of the expiration the bases agreement in 1991.R. Even though the Court cannot review political questions. the agreement was Court cannot hear purely political questions.the issue itself. President Estrada ratified it. Petitioners have also not established that the VFA involves the Solvakia. both countries case is considered a textbook example of the political question doctrine in negotiated for a possible extension of the agreement. agreeing to respond to any external armed attack on their political forces within the legislative and executive branches of government. the court has the power to review whether or not a particular branch of government has The US Panel met with the Philippine panel to exchange notes on the exclusive decision-making power over an issue. the issue would be justiciable because it would require an interpretation of the Constitution. VFA. would have extended the presence of US military bases in the Philippines.S. DISSENT the Mutual Defense Treaty continued. As personnel. however. A Senate Resolution was approved if the interpretation of the Constitution is correct. imputing grave abuse of interpretation of the Constitution. The Senate rejected the U. which led to a consolidated draft CONCURRENCE text. RP-US Treaty of Friendship. in view of the paramount importance and the constitutional significance of the issues raised in the petitions. the Court has held issues to be political questions even though many Justices believe these issues relate to the Petitioners assail the constitutionality of the VFA. it can review cases to determine transmitted to the Senate for ratification. The VFA entered into force on June 1. taxpayers. or are in danger of sustaining any direct injury as a result of enforcing the Gabcikovo-Nagymaros Project Case (Hungary v. against it. Notwithstanding. armed forces. W/N petitioners have legal standing as concerned citizens. competing Treaty in 1951. strategic interests of the US and PH. Were it ripe. places a great emphasis on establishing a single. in effect. after an exchange of notes between Secretary Siazon and US DISCUSSION Amb. The Court discretion in ratifying the agreement. the Philippines and the US forged a Bases Agreement which turned the case into a constitutional debate between the executive powers formalized the use of installations in the Philippine territory by US military granted to the President and the legislative powers granted to Congress. Hubbard. 138570 formal opposition through a resolution to the termination of the treaty. ICJ Reports 1997) exercise by Congress of its taxing or spending powers. which became a final series of conferences and negotiations. but not voted upon it. However. President This issue was not ripe because the Senate never tried to invoke a resolution Ramos approved it. this Court.) This would have FACTS: In 1947. in the exercise of its sound discretion. however. No. and are therefore reviewable.

25 upon the parties to it and must be performed by them in good faith. or facilities. responsibilities under international law. troops. Section 25. Similarly. and it the votes cast by the people in a national referendum held for that must be so patent and gross as to amount to an evasion of positive purpose. and recognized as a treaty by the other contracting State. it is still a treaty by any other name. may not be treaties involving foreign military bases. 3. following the rules on statutory construction absence of clear showing of grave abuse of power or discretion. (lex specialis derogat generali). which petitioners invoke. nation’s foreign policy. is an international instrument concluded between States in written form and governed by international law. ratified by a majority of despotic manner by reason of passion or personal hostility. when the power is exercised in an arbitrary or senate and. This complying with the concurrence requirement under the Constitution. provides: After the for entering into the said treaty – NO expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military On this particular matter. or. procedural barrier and takes cognizance of the petitions due to the As a member of the family of nations. Article XVIII. We cannot readily plead the Constitution as a convenient 2. XVIII. Article XVIII is a special provision that applies the members of the Senate. the acts or judgment calls of the President involving Undoubtedly. much less calibrated by this Court. whether embodied in a single instrument or in two or more related instruments. Section 21. duties and VII or of Section 25. bound by generally accepted rules for the conduct of its international relations. By transmitting the treaty for ratification. should validly struck down. which specifically deals with the VFA are within his constitutional powers and thus. W/N there was grave abuse of discretion on the President’s part Section 25. foreign military bases. duty enjoined or to act at all in contemplation of law. reads: No preserves the sanctity of treaties. which herein respondents invoke. Even if the US denominates it as an executive a treaty. the Philippines agrees to be transcendental importance to the public of these cases. grave abuse of discretion implies such Bases. Article excuse for non-compliance with our obligations. External affairs solely rests in the executive branch and is subject only to the concurrence of at least 2/3 vote of all In contrast. Article VII. . the Senate. troops. This is known as the principle of pacta sunt servanda which Section 21. W/N the VFA is governed by the provisions of Section 21. cannot be faulted for performing its constitutional duty. when the Congress so requires. agreement. the President was only Another issue is whether the US treated the VFA as a treaty. In many ways. Every treaty in force is binding Sec. Article VII lays down the general rule on treatise or The President is the sole organ and authority in the external affairs of international agreements and applies to any form of treaty with a wide the country. the President is the chief architect of the variety of subject matter. Consequently. to treaties which involve the presence of foreign military bases. or facilities shall not be allowed capricious and whimsical exercise of judgment as is equivalent to lack in the Philippines except under a treaty duly concurred in by the of jurisdiction. Article XVIII. as defined by the Vienna Convention on the Law of Treaties. Article XVIII of the Constitution – Art. in the apply in the instant case. troops or facilities in the Philippines. and whatever its particular designation. Section 25. treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. Court is of the firm view that the phrase recognized as a treaty means Foreign relations remains a political question that the courts will that the other contracting party accepts or acknowledges the always hesitate to touch upon. by concurring in agreement as a treaty. A treaty.

ART. petitioner herein. Smith was temporarily committed to the Makati City authorized representative of the US government. BY THE OTHER CONTRACTING STATE inside a Starex van in the Subic Bay Freeport Zone.e. whereas those that room inside the US Embassy Compound. The case was raised to the CA but it dismissed it for having become moot. the US was granted custody of Smith pending the HELD: YES. when the Congress so requires.NICOLAS v ROMULO in PH territory shall be equally binding on the PH and the foreign sovereign G. under the provisions of the so-called CaseZablocki supervision of the PH DILG will have access to the place of detention to Act. ratified by a Defense Treaty. provided for said State. The Philippine police and jail authorities. Notice can be taken of the under new agreements between the PH and US (Romulo-Kenney Agreement: internationally known practice by the US of submitting to its Senate for advice In accordance with the VFA. US agreed to cede to PH all territory it Accordingly. i. XVIII Sec. purportedly acting under orders of the DILG. adopted in the 1987 Constitution. a member of the US Armed DULY CONCURRED IN BY THE SENATE AND RECOGNIZED AS A TREATY Forces. and the United States Senate. Pursuant to the Visiting Forces Agreement (VFA). The provision is designed to ensure that any agreement allowing the presence of foreign military bases. proceedings. Smith will be transferred from the Makati Jail to a and consent agreements that are policymaking in nature. Accordingly. The VFA being a valid and binding agreement. Sec. It is for this reason that the US has certified the PH had no jurisdiction over these bases except to the extent allowed by that it recognizes the VFA as a binding international agreement. but merely to the US Congress under the CaseZablocki Act RP-US Military Bases Agreement of 1947 were not PH territory. Meanwhile. XVIII. 2009 ISSUE: W/N THE PRESENCE OF THE US ARMED FORCES IN PH FACTS: TERRITORY PURSUANT TO THE VFA IS ALLOWED UNDER A TREATY Respondent Lance Corporal Daniel Smith. Subsequently. the parties are required as a matter of international law to abide by its terms and To prevent a recurrence of this experience..” the main RPUS Military Defense Treaty. or facilities shall not be allowed in the PH except under a treaty duly resist an armed attack fall squarely under the provisions of the RP-US Mutual concurred in by the Senate and. it was not necessary to submit the VFA to the US Senate for advice This means that Clark and Subic and other places in the PH covered by the and consent. was charged with rape committed against a Filipina. ensure the US is in compliance with the VFA). Joint RP-US military exercises for the purpose of developing the capability to troops. No. February 11. 1951. For this is a matter of internal US law. is simply an implementing agreement to purpose. History: Under the PH Bill of 1902. Smith was found guilty of the crime of rape and was to serve his First. The VFA. as an implementing agreement of the RP-US Mutual Defense acquired from Spain. 175888 State involved. troops or facilities . The fact that the VFA was Jail. the VFA was duly concurred in by the PH Senate and has been sentence in the facilities agreed upon by the Philippine (PH) and US recognized as a treaty by the US as attested and certified by the duly authorities. the territory covered by these and this substantially complies with the requirements of Art. guarded round the clock by US carry out or further implement these policymaking agreements are merely military personnel. except certain naval ports/military bases and facilities. Petitioners now contend that the The second reason has to do with the relation between the VFA and the RP- PH should have custody of Smith because the VFA is void and US Mutual Defense Treaty of August 30. our Constitution. The Court said that it had previously resolved this issue in signed and duly ratified with the concurrence of both the Philippine Senate favor of the constitutionality of the VFA. and brought its status as a binding international agreement or treaty recognized by the to a facility for detention under the control of the US government. which is the instrument agreed upon to provide for majority of the votes cast by the people in a national referendum held for that the joint RP-US military exercises. the US. 25 of bases were ceded to the PH.R. under the direct submitted to Congress. This earlier agreement was unconstitutional. and recognized as a treaty by the other contracting State. Upon the expiration of the Agreement. the provision in question was provisions. 25 of the 1987 Constitution: “x x x foreign military bases. within 60 days from ratification. a treaty. Smith was taken out of the Makati jail by PH law not submitted for advice and consent of the US Senate does not detract from enforcement agents. within 60 days of its ratification. Treaty.

therefore. The laws (including rules of procedure) of one State do not extend or apply except to the extent agreed upon to subjects of another State due to the The framers of the Constitution were aware that the application of recognition of extraterritorial immunity given to such bodies as visiting foreign international law in domestic courts varies from country to country. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance. which also violates the equal enforceable. namely. namely. Texas. 25. the Court finds that there is a different treatment when it comes to detention as against custody. the VFA is a self-executing Agreement. the VFA differs from the Vienna Convention on Consular Relations and the Avena decision of the International Court of Justice (ICJ). With that. from the commission of for a specific arrangement to cover detention. Applying. it states that “The custody of any United States personnel over It is clear that the parties to the VFA recognized the difference between whom the Philippines is to exercise jurisdiction shall immediately reside with custody during the trial and detention after conviction. but also that the detention shall be by without delay. In sum.” . the Romulo-Kenney Agreements. On the contrary. They argue that to States are not automatically part of their domestic law unless these treaties allow the transfer of custody of an accused to a foreign power is to provide for are self-executing or there is an implementing legislation to make them a different rule of procedure for that accused. however. Therefore.” are not in accord with the VFA itself. recognizing immunity from jurisdiction or some aspects of jurisdiction (such as Sec. Nothing in the Constitution prohibits such agreements the intention of the framers of the 1987 Constitution. allowed to enter our territory and all other accused. Medellin itself. Finally.. because the parties intend its provisions to be enforceable. e. First. United States military clearly states not only that the detention shall be carried out in facilities authorities shall. the VFA is basis for a different treatment of a member of a foreign military armed forces covered by implementing legislation. to require the other contracting State to convert their system to custody). Petitioners contend that these undertakings violate another provision of the Next. make such personnel available to those authorities in time for Philippine authorities. the Constitution states that the Philippines adopts achieve alignment and parity with ours. the Court addresses the recent decision of the United States Supreme Constitution. the CaseZablocki Act. protection clause. except to the extent agreed advised and consented to by the US Senate. the rule that governs is the following provision of the VFA: “The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United States authorities. which held that treaties entered into by the United adopt rules of procedure for all courts in the Philippines. upon. subject The rule in international law is that a foreign armed forces allowed to enter matter of the Medellin decision. the RPUS Mutual Defense Treaty was ones territory is immune from local jurisdiction. in adopting Article XVIII. because there is a substantial undertakings under the RPUS Mutual Defense Treaty. which are any investigative or judicial proceedings relating to the offense with which the agreements on the detention of the accused in the United States Embassy. Secondly. precisely because the Agreement is intended to carry out obligations and The equal protection clause is not violated.g. because they provided United States military authorities. It was simply required that the treaty the generally accepted principles of international law as part of the law of the be recognized as a treaty by the other contracting State. person has been charged. that providing for the exclusive power of this Court to Court in Medellin v. the provisions of VFA.In the VFA. after conviction. It was not armed forces. The moment the accused has to be detained. for both parties a binding international obligation and the enforcement of that obligation is left to the normal recourse and processes under international law. upon formal notification by the Philippine authorities and agreed on by authorities of both parties. it becomes land. if they so request. And this specific arrangement the offense until completion of all judicial proceedings. as that term is defined in The Court finds no violation of the Constitution.

"[e]very treaty in intervention. This. HOWEVER. where Vice President Teofisto Guingona. the Court resorted to using the Vienna Convention on the Law of Treaties. and found that the TOR fell into the context of the VFA. the Court added City. petition alleging said exercises violated the constitution. As such. as citizens. The TOR was later approved by Guingona. which it refers to as the context of the treaty. however. The petitioners-in. nullify a treaty not only when it conflicts with the Constitution. American troops started arriving in Mindanao on January 2002 to partake in Balikatan 02-1 with the AFP. by the Sayyaf. seemed to be the primary fear of the petitioners. lawyers. thus — It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text. the Court saw that the word “activities” was intentionally kept vague so as to give the parties more room to operate. Executive Secretary that American troops were not limited to just military exercises in Philippine territory. who was concurrently Secretary of Foreign Affairs. being residents on Zamboanga and faith. Further. filed a force is binding upon the parties to it and must be performed by them in good petition for intervention claiming that. However. All in all. which were joint military maneuvers. the Court further elucidated that treaties must be exercises. in accordance with the international law principle of pacta sunt servanda. the Court also saw that although the VFA granted Facts: American troops access to military exercises. it did not authorize said troops In accordance with the Mutual Defense Treaty (MDT) entered into between to engage in offensive war on Philippine soil. The first had to look into whether Balikatan 02-1 fell under the VFA. and taxpayers. were in response to the screened against the 1987 Constitution. 2001 terrorist attacks on the World Trade Center in New York that treaties must be concurred by 2/3 of the Senate. though. Said Given the MDT and VFA. but also an act of Congress.Lim v. Said TOR contained the details of the Balikatan exercises. The petitioners in this case. especially with regard to the word “activities. September 11. which is presumed to verbalize the parties' intentions. the Court ruled that American troops are not allowed to A month later. which provides. presented the Draft Terms of Reference (TOR). the Court. or on February 2001. Visiting Forces Agreement (VFA) of 1999). the Sanlakas and Partido ng mga Manggagawa party-lists. particularly against the Abu the United States and the Philippines in 1951 (modified. the Constitution authorizes the Supreme Court to Sulu. as well as other elements may be taken into account alongside the aforesaid context. The Convention likewise dictates what may be used as aids to deduce the meaning of terms. Given the same. they would be directly affected by the exercises." Given that. Issue: W/N Balikatan 02-1 is unconstitutional Held: NO Brushing aside the petitioners’ and intervenors’ contentions as being premature. the Court lamented the fact that the terminology of said agreement was rather vague. regarding the Balikatan 02-1. Hence. the Senate conducted a hearing engage in offensive war in the Philippines. filed a that. municipal law is favored less compared to treaties. the Court decided to look into the terms of the TOR in order to ascertain the legality of said exercises. among other things.” Consequently. this meant .

Article VII of the 1987 Constitution provides that “no Regulations (RIRR) issued by the Department of Health (DOH) is not treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of constitutional. Executive Secretary PHILIPPINE PHARMACEUTICAL V DOH PIMENTEL VS ERMITA Facts: Named as respondents are the Health Secretary. One of the ministerial duty to ratify the Rome Statute. the DOH signed copy to the President for ratification. It should be emphasized that under the Constitution the power to ratify is vested in the President subject Held: YES. to the Senate for concurrence. for an international rule to be considered as customary law.In 1990. promoted and protected. the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the Issue: Whether Administrative Order or the Revised Implementing Rules and validity of the treaty entered into by him. under both domestic law and international law. respondents issued the questioned RIRR in their capacity as officials of said executive agency. obligatory to comply with such rules Under the 1987 Constitution. hence. Article VII of the 1987 Constitution.” The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations. It is within the competence of the Organization President to refuse to submit a treaty to the Senate or having secured its consent for its ratification. The President has the discretion even after the signing of the treaty by force for members. Rosario.in the same way that conventions or agreements under the Philippine representative whether or not to ratify a treaty. be ensured that nutrition and health claims are not permitted for breastmilk substitutes. From 1982 to 2006. all the Members of the Senate. the WHA adopted several Resolutions to the effect that Whether or not the Executive Secretary and the Department of Foreign Affairs have the ministerial duty to breastfeeding should be supported. international law can become part of the sphere of domestic law either . specially parents and children. Undersecretaries. the Department of Foreign Affairs (DFA) prepares the ratification papers and forward the informed of the advantages of breastfeeding. 1986 by virtue of the legislative function of the Senate. Article 23. Article 23 of the WHO Constitution reads: The signature does not signify final consent. the Philippines ratified the International Convention on the HeldRenato : v. recommendations of the WHA do not come into to the concurrence of the Senate. 459. On May 15. Section 21. and the Senate.in accordance with Section 21. which cannot be established that such rule is being followed by states because they consider it encroached by this court via writ of mandamus. The Health Assembly shall have authority to make recommendations to Members with respect to any matter within the Senate is limited only to giving or withholding its consent. ensure that all segments of society. After the President has ratified it. The President has the sole authority to negotiate and enter into treaties. Pimentel v. Rights of the Child. it is ratification that binds the state to the provisions of the treaty and renders it effective. Philippines has a powers granted to the president under the Freedom Constitution. For purposes of Department of Foreign Affairs to transmit (even without the signature of the President) the signed copy of herein petition. under Article 23. Facts : This is a petition for mandamus to compel the Office of the Executive Secretary and the and Assistant Secretaries of the Department of Health (DOH). 2006. concurrence to the ratification. Article 19 and regulations under Article 21 come into force. 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 Issues : (ICMBS).O.1Executive Order No. is a President Corazon Aquino on October 28. That under the treaty law and customary international law. it must be refuse to ratify it. Article 24 of said instrument provides that State Parties Petitioners’ interpretation of the Constitution is incorrect. 51 (Milk Code) was issued by Petitioners contend that that ratification of a treaty. DFA shall submit the same issued herein assailed RIRR which was to take effect on July 7. The power to ratify treaties does not belong to should take appropriate measures to diminish infant and child mortality. a code adopted by the World Health Assembly (WHA) in 1981. are Under E. 2006. Such decision is within the competence of the President alone. the DOH is deemed impleaded as a co-respondent since the Rome Statute of the International Criminal Court (ICC) to the Senate of the Philippines for its concurrence or ratification . it should 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.

by mere constitutional declaration. reference to "the OECF" and "Fund" therein (General Terms and Conditions) shall be substituted by "the JBIC" and "Bank. This road section.47. PH-P204 was to be used to finance the Arterial Road Links Development Project (Phase IV). legislation is necessary to transform the provisions of the WHA understanding concerning Japanese loans to be extended to the Philippines. Bato. After the bidding process. As mentioned earlier. The provisions of the WHA Resolutions cannot These loans were aimed at promoting our country’s economic stabilization be considered as part of the law of the land that can be implemented by and development efforts. The transformation method requires that an international law be transformed into a domestic law through a Facts: Based on the Exchange of Notes dated December 27. Yoshihisa Ara.50 kms. 1999. 563. JBIC agreed to lend the Philippine Government an amount not exceeding FIFTEEN BILLION THREE HUNDRED EIGHTY-FOUR MILLION Japanese Yen (Y15.79. dated November 1987. 67. issued by the Overseas Economic Cooperation Fund (OECF) and for the purpose. Specifically. in turn.40 kms.10. have reached an Consequently. Mr. namely.000. executive agencies without the need of a law enacted by the legislature Under the terms and conditions of Loan Agreement No. the Bids and Awards Committee of the DPWH issued . The incorporation method Government of Japan and the Government of the Philippines. was divided into four contract packages (CP): CP I: San Andres (Codon)-Virac-Jct. Siazon.000) as principal for the implementation of the Arterial Road Links Development Project (Phase IV) on the terms and conditions set forth in the Loan Agreement and in accordance with the relevant laws and regulations of Japan. through their applies when. PH-P204.Viga Road . Ambassador to have the force of domestic law. and then Secretary of Foreign Affairs Domingo L. Further. ABAYA V EBDANE By transformation or incorporation. the proceeds of Loan Agreement No. CP IV: Pandan-Caramoran-Codon Road .66. The approved budget for the contract was P738.384. contractors or consultants. Resolutions into domestic law.40 kms. The said amount shall be used for the purchase of eligible goods and services necessary for the implementation of the above-mentioned project from suppliers." respectively. of which the Catanduanes Circumferential Road was a part. 710. international law is deemed respective representatives. Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines.818 kms CP II: Viga-Bagamanoc Road . CP III: Bagamanoc-Pandan Road . it was provided under the said loan agreement that other terms and conditions generally applicable thereto shall be set forth in the General Terms and Conditions. the guidelines for procurement of all goods and services to be financed out of the proceeds of the said loan shall be as stipulated in the Guidelines for Procurement under OECF Loans dated December 1997 (herein referred to as JBIC Procurement Guidelines). the constitutional mechanism such as local legislation.

be government Ministers. the Philippine of legislative approval. As such. the contract for bid prices. 1. to avoid the process adhered to by them. diplomats or departmental heads. charters. the accepting State repeats the text of the procurement of goods and services pursuant to such loans.YES instruments – treaties and conventions. empowered to waive the application of any law imposing restrictions on the Under the usual procedure. violates RA 9184 which provides that all bids or to the CP I project. may sometimes be difficult application. EO 40. being the law between the parties. must be faithfully because of its speedy procedure. It would be useless to undertake to discuss It is not disputed that with respect to the CP I project. 2003. either parties. declarations. lowest bidder. otherwise. On the other hand.Resolution No. The Court holds that the Loan Agreement No. concluded Prequalify and to Bid for its implementation was published in two from time to time. the Manila Times and Manila in favour of the private respondent China Road & Bridge Corportion being the Standard on November 22. two months later or on January 26. 29 and December 5. PH-P204 as an executive agreement. The 2. Significantly. 2003 in the Manila Times and Malaya newspapers. memoranda of the Loan Agreement. is applicable to the procurement process ends and agreements – whether denominated executive agreements undertaken for the CP I project. agreements. each of the parties being agreement is governed by RA 4860 which provides that the President is in the possession of the one signed by the representative of the other. protocols. as taxpayers and Filipino citizens filed a petition for certiorari and President Arroyo on September 18.It is stated that "treaties. A contract of agreement was entered into by and between the the law in effect was EO 40. Guided by Pacta Sunt Servanda. an exchange of notes is considered a form of an executive agreement. conjunction with the exchange of notes between the Japanese Government and the Philippine Government is an executive Respondents maintain that the imposition of the ceilings under RA 9148 does agreement. not RA 9184. Issues: which becomes binding through executive action without the need of a vote by the Senate or Congress. not apply because the project financed by the loan agreement is governed by An "exchange of notes" is a record of a routine agreement that has the latter’s Procurement Guidelines (JBIC Procurement Guidelines) which many similarities with the private law contract. RA 9184 took effect DPWH and the private respondent. They sometimes take the form of exchange of notes and at other times that of more formal Held: documents denominated "agreements" or "protocols". Hundreds of executive agreements. government bound itself to perform in good faith duties and obligations under conventions. understanding. The agreement does not impose a ceiling on bid prices. modus vivendi and exchange of notes" all refer to "international instruments binding at international law. Further. The point where ordinary correspondence between this and other governments 1. the Invitation to here the large variety of executive agreements as such. RA 9184 cannot be given retroactive or exchange of notes or otherwise – begin. Whether or not the agreement between the Philippine Government throught common in our scheme of government than are the more formal the DPWH and the JCIB is an executive agreement? . other than . PH-P204 taken in award and the subsequent contract are illegal and unconscionable. PHJL-A-04-012 recommending the award of the CP I Project leading national newspapers. sometimes. which contains no such provision setting a ceiling awards should not exceed the ceilings or upper limits. The which are essentially contracts governing the rights and obligations of the technique of exchange of notes is frequently resorted to. agreement. Whether or not RA 9184 applies to the CP I Project – NO. 2003 and subsequently published prohibition seeking to set aside and nullify said resolution and contract of on September 23. They likewise aver that the loan consists of the exchange of two documents. A contract. The signatories of the letters may characterized Loan Agreement No. They claim that the award of the contract to private respondent The provisions of EO 40 apply to the procurement process pertaining China Road and Bridge Corp. namely. its full implementation was even delayed as IRR-A was only approved by Petitioners. Respondents offering State to record its assent. of ready ascertainment. or. Private respondent’s bid was more than P200 million overpriced based on the Approved Billing Ceiling (ABC). At the time. Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less 2. 2002. is deemed void and inexistent.

containing agenda on such aspects of negotiation: Security. Estrada declared all-out war against them. executing agency of the projects financed by Loan Agreement No. 2001—GRP and MILF met in Kuala Lumpur. but still there were many violent incidents between 2002 and 2003 2005—MOA-AD was crafted in its final form and set to be signed on Aug. have been Province of North Cotabato v. rightfully awarded the contract for the implementation of March 24. 5 2008 North Cotabato and Vice Gov. The following year they signed. Pinol filed a petition for mandamus and prohibition invoking right to information on matter of public concern." the DPWH. out of which came the Tripoli Agreement 2001. which is.those entered into under the trade-agreements act. to enjoin respondents from signing it. Next year. Respondents thereafter filed a motion to dismiss. When PGMA assumed affecting the subject matter of this Act to which the Philippine the presidency. embodied in Section 4 of RA 9184 as it · But MILF went on attacking various places in Central Mindanao anyway. she suspended the military offensive and sought to resume government is a signatory shall be observed. leading to a ceasefire between the groups. 2001—second round of peace talks. The JBIC Procurements Guidelines forbids any procedure under Basic Facts: which bids above or below a predetermined bid value assessment are automatically disqualified. GRP Peace Panel negotiated with foreign governments. The one filed by Zamboanga and its representatives is to include Zamboanga from the Bangsamoro Juridical Entity and also to declare MOA-AD unconstitutional. Under the fundamental principle of international law of pacta sunt signing of General Framework of Agreement of Intent
 servanda. so provides that "any treaty or international or executive agreement then Pres. to enjoin them from implementing it. Rehabilitation and Ancestral Domain August 5-7. IPRA. and if signed already. as the peace talks. MOA-AD Content: • The MOA-AD identifies under its Terms of Reference (TOR) two local statutes: organic act of ARMM. 2001—formal peace talks in Tripoli. Hostilities. Succinctly put. it absolutely prohibits the July 18. signing an civil works for the CP I project to private respondent China Road & agreement to formally resume peace talks and suspend all military attacks Bridge Corporation. and several international law instruments – the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in independent Countries in relation to the UN Declaration on the Eights of the Indigenous Peoples. in fact. and the UN . Libya. All the other petitioners prayed for the declaration of the MOA-AD as unconstitutional. which contained their desire to pursue peace negotiations and avoid attacks while its ongoing. Malaysia. 1997—GRP and MILF sign Agreement on General Cessation of imposition of ceilings on bids. PH-P204. June 20-21.

Charter. Resources. o The MOA-AD describes the relationship of the Central o The MOA-AD then mentions the “Bangsamoro Juridical Government and the BJE as “associative.” as defined in this strand of the cooperation agreements.” which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines The MOA-AD would not comply with Article X. that the BJE shall also have HELD: “territorial waters. authority and management of natural (9) Such other matters as may be authorized by law for the promotion of the resources. and modalities for the actual implementation” of the MOA-AD. general welfare of the people of the region. The MOA-AD explicitly provides that the participation of the o The Bangsamoro people are acknowledged as having the third party shall not in any way affect the status of the right to self-governance. Section 20 of the (RP) south east and south west of mainland Mindanao. The BJE may also enter into environmental o The concept of “Bangsamoro. includes not only “Moros” as traditionally o The external defense of the BJE is to remain the duty and understood. since • Resources any new law that might vest in the BJE the powers found in the MOA-AD . the BJE and the “Central that encompasses: Government” (used interchangeably with RP) shall exercise joint jurisdiction.” characterized by Entity” (BJE) to which it grants the authority and jurisdiction shared authority and responsibility. which right is said to be rooted on relationship between the Central Government and the BJE. The mere passage of new legislation pursuant to sub-paragraph No.” the ownership of which is vested exclusively in party to observe and monitor the implementation of the the Bangsamoro people by virtue of their prior rights of Comprehensive Compact. in favor of the Again on the premise that the BJE may be regarded as an autonomous latter. among others. o The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign • The main body of the MOA-AD is divided into four strands: Concepts countries and shall have the option to establish trade and Principles. and Governance missions in those countries. • Governance o The MOA-AD proceeds to refer to the “Bangsamoro o The MOA-AD binds the Parties to invite a multinational third- homeland. through production sharing and economic cooperation region. Territory. o It provides for the sharing of minerals on the territorial waters between the Central Government and the BJE. MOA-AD. Both parties to the MOA-AD acknowledge that “details for the effective enforcement” and “the mechanisms ancestral domain does not form part of the public domain. The MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. This compact is to embody the occupation. and Constitution since that provision defines the powers of autonomous regions that within these territorial waters. 9 of said constitutional provision would not suffice. Pertinent ISSUE with regard to “Treaty”: • Territory W/N the grant of legislation vesting the BJE with treaty-making power to o The Parties to the MOA-AD stipulate that the BJE shall have accommodate “paragraph 4 of the strand on RESOURCES” under the MOA- jurisdiction over all natural resources within its “internal AD is constitutional? waters. but all indigenous peoples of Mindanao and its obligation of the Central Government adjacent islands. are not to include aggression • Concepts and Principles against the GRP. above-quoted provision. the MOA-AD would require an amendment that would expand the agreement.” defined as extending fifteen (15) kilometers from the coastline of the BJE area. however. Such relationships and understandings. ancestral territoriality. over the Ancestral Domain and Ancestral Lands of the Bangsamoro.

itself. the President is vested with the authority to deal with foreign states and governments. being the head of state.must. enter into treaties. except that they do regarded as the sole organ and authority in external relations and is the not require legislative concurrence and are usually less formal and country's sole representative with foreign nations. foreign policy. In the realm of treaty-making. It would not do. and otherwise transact Under International law. Hence. the President acts as the country's mouthpiece with respect to international affairs. In our system of government. that International agreements may be in the form of: such relationships and understandings do not include aggression against the Government of the Republic of the Philippines x x x. comply with other provisions of the Constitution. Romulo for instance. maintain diplomatic relations." (1) treaties that require legislative concurrence after executive ratification. it is only the President who has that power. is (2) executive agreements that are similar to treaties. to merely pass legislation vesting the BJE with treaty- making power in order to accommodate paragraph 4 of the strand on Doctrine: RESOURCES which states: "The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided. however. extend or withhold recognition. Bayan Muna vs. as long as the negotiating functionaries remained within their powers International Agreements Treaty Executive Agreement -Legislative concurrence after senate -No legislative concurrence ratification -Less formal -Narrower range of subject matter ! FACTS: . the President. the executive agreements in terms of their binding effects on the President has the sole authority to negotiate with other stat contracting states concerned. or Under our constitutional system. there is no difference between treaties and the business of foreign relations. As the chief architect of deal with a narrower range of subject matters than treaties.

ought to be in the form of treaty to be effective has to Bilateral Agreement (Agreement) which aims to protect “persons” of RP and be rejected. binding and terms is subject to ratification.December 28. Whether the RP President and the DFA Secretary gravely abused their discretion. an act of the executive branch with a foreign government humanity. acted within the complementary to the national criminal jurisdiction. Whether the RP-US Non-surrender Agreement is VALID. replied that the exchange of diplomatic ratification. BFO-028-03. not require legislative concurrence and are usually less formal and deal with a narrower range of subject matters than treaties. when the RP government already signed the Rome Stature of the ICC despite the pending ratification of the RP Senate. 2003 . Referring to the validity of the Agreement without concurrence by at least 2/3 of the Senate. 2. NO. 0470 to the DFA proposing the terms of Non-surrender surrender Agreement. In agreeing to conclude the Agreement.” (Serious crimes scope of their authority and discretion vested in her by the constitution. adverted under International Law: Genocide. which by its 2. the position that the challenged RP-US Non- Embassy Note no. the court has given recognition to the May 13.via Exchange of Notes no. the Philippines is not among the 92. in response to a query of (3) treaties that require legislative concurrence after executive Solicitor General Alfredo Benipayo. effective without the concurrence of 2/3 of the Senate. In May 9. 
 Only 92 out of 139 signatory completed the ratification. International agreements may be in the form of: October 28. Petitioner Bayan Muna imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and prays that it be struck down as unconstitutional. represented by the DFA Secretary Ople. US ambassador Francis Ricciardone sent US light of the above consideration. or notes constituted a legally binding agreement under the International Law and that under the US law. except that they do from the US Senate. under the US Embassy Note adverted to and put in effect the Agreement with US government.is the treaty that established the International Criminal Court (ICC) with the “the power to exercise jurisdiction over 1. amounting to lack or excess of jurisdiction for concluding the RP-US Non-surrender Agreement. Crimes against More importantly. The rationale behind the principle is the inviolable doctrine of separation of powers among the legislative executive and judicial branches of the government. RP. acceptance or approval by the signatory states. 2000 – the Philippines signed the Rome Statute. HELD: • Rome Statute . ISSUE/S: 1. then President Gloria persons for the serious crimes of international concern and shall be Macapagal-Arroyo. represented by OBLIGATORY EFFECT OF EXECUTIVE AGREEMENTS without the DFA Secretary Ople agreed with the accepted the proposals embodied concurrence of the Senate. Thus. US from frivolous harassment suits that might be brought to against them in International Tribunals. 
 . the agreement did not require consent (4) executive agreements that are similar to treaties. The power to enter into executive agreements has always been lodged with the President. War crimes and Crimes of aggression) must be afforded great respect. 2003 – Then. YES. 2003 – Ambassador Ricciardone.

before a local court Furthermore. precluding it from being sued respectively. government. both of them entered into the contract as entities with personalities ISSUES: separate and distinct from the Philippine and Chinese governments. Respondents (several representatives of political parties) filed a Philippines was not mandated by the Chinese government. CNMEG and NORTHRAIL then executed a contract for the Furthermore. CNMEG filed a motion to dismiss. matter as the project was a product of an executive agreement. WON CNMEG is entitled to immunity. Petitioner China National Machinery and Equipment Corp. HELD: It is therefore clear from the foregoing reasons that the Contract 1. 185572. alleging that the contract pursuance of a completely commercial or proprietary transaction. but 2. making them immune from suit. Group as well as the Loan Agreement between Philippines and China. The 1st and 3rd requisites are not present in the case have jurisdiction over a) its person as it was an agent of the Chinese at bar. such that it cannot be questioned by or Agreement. The the undertaking is to be constituted through private and commercial Philippine government and EXIM BANK also executed a loan acts done and performed for commercial purposes under the laws of agreement to finance the construction of Phase 1 of the project. Agreement does not partake of the nature of an executive agreement. In undertaking and not the Chinese government. Export Import Bank of China (EXIM BANK) also entered negotiations were not because of any diplomatic gratuity from or into a memorandum of understanding with DOF wherein China was to exercise of sovereign functions by the Chinese government.R. NO. while CNMEG is a corporation duly and organized under China. 2012 functions or proprietary fucntions. NO. the CLASSICAL/ ABSOLUTE THEORY and the It is merely an ordinary commercial contract that can be questioned RESTRICTIVE THEORY. and c) it must be governed by 4. states. No. 1. plainly a business strategy employed by CNMEG to generate profit. WON the contract entered into between CNMEG and NORTHRAIL is rather by Philippine law. in conjunction with the FACTS: memorandum of understanding between CNMEG and NORTHRAIL 1. or commercial acts (jure gestionis). This theory states that immunity of a sovereign is recognized only with regard to public acts or governmental activities (jure imperii). the loan granted by EXIM BANK to the 3. Thus. NORTHRAIL is a GOCC However. but was in Complaint for Annulment of Contract. These documents show that CNMEG initiated the feasibility study on a possible railway line from Manila to La Union. 2. claiming that the trial court did not international law. b) it must be written. the memorandum of understanding explicitly states that construction of Phase 1 of the project on a turnkey basis. would (CNMEG) entered into a memorandum of understanding with North reveal that the railway project was meant to be a proprietary Luzon Railways Corporation (NORTHRAIL) for the conduct of a endeavor. adheres to the RESTRICTIVE THEORY. between CNMEG and NORTHRAIL regarding the construction of Phase 1 of the project as well as the loan agreement between 2. and b) over the subject The contract was not concluded between the Philippines and China. but between NORTHRAIL and CNMEG. but not with regard to private and proprietary. According to the Vienna Convention. This explicit reliance on Philippine Law effectively before a local court conceded that their rights and obligations are not governed by international law. the RTC and CA both denied their motion to dismiss. as expressly provided by the Contract an executive agreement. such that the light of this.CHINA NATIONAL MACHINERY & EQUIPMENT CORP v SANTAMARIA CNMEG and NORTHRAIL was in furtherance of government G. jurisprudence shows that the Philippines before the local courts. An examination of the Contract Agreement. the contract was not governed by international law. an executive agreement Philippines and China was void for being contrary to the Constitution was comply with 3 requisites: a) the agreement must be between and statutory laws. It then becomes important to determine whether the contract entered into between . February 7. namely. Although there are 2 concepts with regard to sovereign immunity. Thus. the Philippines. but was extend credit to the Philippine government to finance the project.

At most. any profit remitted to its outright denial of a tax treaty relief for failure to strictly comply with the head office shall be subject to a tax of 15% based on the total prescribed period is not in harmony with the objectives of the profits applied for or earmarked for remittance without any contracting state to ensure that the benefits granted under tax treaties deduction of the tax component. tax treaty relief from the BIR should merely operate to confirm the • The BIR issued RMO No. We recognize the clear 10% under the RP-Germany Tax Treaty. which is why they • It then asked for refund or issuance of its tax credit certificate are also known as double tax treaty or double tax agreements. 1-2000 involve an administrative or application of the treaty provisions procedure. CIR W/N the failure to strictly comply with RMO No. • Likewise. harshness of international juridical double taxation. 1-2000. it also unduly discourages foreign investors. and to improve efficiency and service to the taxpayers. 1-2000 • Petitioner also requested from the International Tax Affairs Division which would indicate a deprivation of entitlement to a tax treaty relief (ITAD) a confirmation of its entitlement to the preferential tax rate of for failure to comply with the 15-day period. there is no reason to deprive petitioner of the benefit of a o The 15-day rule for tax treaty relief application under RMO preferential tax rate of 10% BPRT in accordance with the RP- No.29 for 2002 and prior taxable foreign corporation wishing to avail itself thereof. 15% BPRT on its RBU net income. in substantial compliance with RMO No. remitting to its head office in Germany. 1-2000. if not eliminate the banking unit net income.DEUTSCHE BANK v. believing that it made an overpayment of the BPRT. The Order was issued to the objective of RMO No. preferential rate of ten percent (10%) under the RP-Germany Tax • The amount of PHP 67. the application for a the benefit of a preferential rate equivalent to 10% BPRT. Facts: • Deutsche Bank withheld and remitted to CIR the amount P68K. of the tax treaty relief must be preceded by an application with ITAD • The obligation to comply with a tax treaty must take precedence over at least 15 days before the transaction. intention of the BIR in implementing RMO No. branch profits to DB Germany. While the consequences sought aims to prevent the consequences of an erroneous interpretation and/ to be prevented by RMO No. 1-2000. it must be stressed that there is nothing in RMO No. 1-2000 cannot be relaxed for petitioner. the latter years. noncompliance with tax streamline the processing of the application of tax treaty relief in order treaties has negative implications on international relations. or prior to its availment of the 1-2000. but the CTA’s o Under Section 28(A)(5) of the NIRC. Clearly. which Held: NO represented 15% branch profit remittance tax (BPRT) on its regular • Tax treaties are entered into to minimize. these may be remedied through other system • CTA: The claim of petitioner for a refund was denied on the ground management processes. Further. o Issue: . would impair the value of the tax treaty.51 paid by petitioner represented the Treaty provision. Logically. within the two-year prescriptive period pursuant to Section 229 of the o a ruling from the ITAD of the BIR must be secured prior to the NIRC.688. due for remittance to DB Germany o Before the benefits of the tax treaty may be extended to a amounting to PHP 451.tualaw library
 availment of a preferential tax rate under a tax treaty.cralaw virtualaw library
 should first invoke the provisions of the tax treaty and prove Likewise. are enjoyed by duly entitled persons or corporations.553.257. 1-2000 will deprive persons or corporations of the benefit of a tax treaty. o By virtue of the RP-Germany Tax Treaty. both the administrative and the judicial actions were filed that they indeed apply to the corporation. Germany Tax Treaty. we are bound to • The denial of the availment of tax relief for the failure of a taxpayer to extend to a branch in the Philippines of a resident of Federal apply within the prescribed period under the administrative issuance Republic of Germany. which requires that any availment entitlement of the taxpayer to the relief.023. that the application for a tax treaty relief was not filed with ITAD prior • It is significant to emphasize that petitioner applied – though belatedly to the payment by the former of its BPRT and actual remittance of its – for a tax treaty relief.

have the legal standing to maintain the suit. which provides for a stricter would justify a disregard of the aforementioned requirements. an agreement entered into by the executive department with the US and ratified on June 6. Aside from the right to access and to use the Agreed because it falls under those treaties and international agreements. The EDCA. The power to concur in a treaty or an international agreement is an institutional prerogative granted by the Constitution to the Senate. such agreement with US violated the constitutional requirement of Art XVIII. likewise can be brought in only the SC the constitutionality of EDCA (Enhanced Defense Cooperation through a treaty. 4. W/N the non-submission of the EDCA agreement for concurrence by the Senate violates the Constitution . who are former and personal interest if they show that the act affects a public right. particularly Art XVIII. EDCA is not a valid executive agreement entered into by the President Agreed Locations. as citizens. questioned before facilities that. troops or facilities whose such treaty should be ratified by majority of the votes cast by the Filipino entry into the country should be covered by a treaty concurred in by the people in a national referendum held for the purpose. EXECUTIVE SECRETARY OCHOA military bases whose term expired in 1991 and which Art XVIII. under modern military strategy. NO. and third. the injured party would be the Senate as an institution or any 1. position that EDCA needs congressional ratification. also expressed its recognized as a treaty by the other contracting party. YES. W/N the petitions qualify as “legislator’s suit” . For their failure to do so. In a HELD legislator’s suit. the PH shall provide the DE CASTRO’S DISSENT US forces the access and use of portions of PH territory. it clearly involves the entry of foreign military bases. Sec 25 treaty is with the concurrence of the Senate. through Senate Resolution 105. since the EDCA involves foreign military bases.SAGUISAG v. is constitutionally deficient.NO case of EDCA. Although petitioners lack legal standing. humanitarian and disaster relief activities. which need Locations. troops or facilities may be allowed in the country. senators. W/N EDCA is a valid agreement entered into by the President .NO 2. Agreed Locations: security cooperation exercises. But here. petitioners of its incumbent members. joint and combined training activities. The EDCA should be in the form of a treaty as it brings back to the Philippines the modern equivalent of the foreign BRION’S DISSENT . as it is the Senate’s constitutional function that is suing as citizens may dodge the requirement of having to establish a direct allegedly being violated. troops or 2. the stay of Mainly. Sec 25 thereof.NO facilities in the country. which are called NO. troops or facilities in the Philippines. as a mere executive agreement entered by the President part of the Executive Department. foreign troops under arrangements outside of FACTS the contemplation of the visiting forces that the 1998 VFA allows. second. The Senate. Sec 25 of the Constitution directly addresses. and military Petitioners. mechanism required before any foreign military bases. prohibits the entry of foreign military bases. the US may undertake the following types of activities within the the concurrence of the Philippine Senate. they raise matters of the petitioners failed to make any specific assertion of a particular public right transcendental importance which justify setting aside the rule on procedural that would be violated by the enforcement of EDCA. technicalities. Sec 25 of the 1987 Constitution is a special provision that that as may be agreed upon by the parties. such would be allowed only if: first. troops. the absence of Senate concurrence to the 3. and such other activities Article XVIII. with the US. aside from general statements that the petitions involve the protection of a public right. 2014. and when Congress so requires. In assailing the constitutionality of a governmental act. As an exception. W/N the SC may exercise its power of judicial review over the case . The challenge raised here is rooted in the very Constitution the present petitions cannot be considered by the Court as citizens’ suits that itself. Under the EDCA. Such is of paramount public interest that the Court BRION’S DISSENT is behooved to determine whether there was grave abuse of discretion on the NO. 3. none of the petitioners. NO. or facilities is allowed by a treaty. Agreement). and that their constitutional rights as citizens would be violated. taxpayers and former legislators. Hence.YES agreement makes it an invalid treaty. Here. such treaty is Senate. In the 1. petitioners posit that the use of executive agreement as medium of foreign military bases. Whether the stay of the foreign troops in the country is permanent or ISSUE temporary is immaterial because the Constitution does not distinguish.

First. The petitioners satisfied the requirement of legal standing in asserting Second. Sec 25. Moreover. troops. troops or facilities in the country. that have already been concurred in by the Philippine Senate and have thereby met the requirements of the Constitution under Art XVIII. NO. is not the instrument that allows the entry of such and (2) if it merely aims to implement an existing law or treaty. because it is in the form of a mere executive agreement. EDCA cannot be traced to the MDT. not a treaty. the EDCA as an agreement creating new rights and obligations must agreements on foreign military bases. The importance of the issue. while the VFA allows only the presence of US military troops. . the MDT covers defensive measures to counter an armed attack that a public right has been violated through the commission of an act with against either of the parties’ territories or armed forces but there is nothing in grave abuse of discretion. the absence of Senate concurrence to the agreement makes it an invalid treaty. EDCA is in the form of an executive agreement since it merely involves “adjustments in detail” in the implementation of the MTD and the VFA. Because of the status of these prior agreements. troops or facilities if (1) such agreement satisfy the requirements under Sec 25. The court may exercise its power of judicial review the MDT that specifically authorizes the presence. troops. The EDCA need not be submitted to the Senate for concurrence Article XVIII of the Constitution. the general provisions of the MDT cannot prevail over the categorical and specific provision of Section 25. Whether the stay of the foreign troops in the country is permanent or temporary is immaterial because the Constitution does not distinguish. EDCA need not be transmitted to the Senate. Art XIII of the Constitution. The EDCA is entirely a new treaty. of a party’s bases. DE CASTRO’S OPINION As to the issue of W/N the EDCA is merely an implementation of the VFA and the MDT. The EDCA is entirely a new treaty. separate and distinct from the VFA and the MDT. 4. or facilities in the other party’s territory agreement for Senate concurrence not because of the transcendental even during peace time or in mere anticipation of an armed attack. whether temporary or over the act of the Executive Department in not submitting the EDCA permanent. International Status of South-West Africa.YES. the President is empowered to enter into executive Hence. Hence. or facilities provided under the in invoking the court’s expanded jurisdiction. These are existing treaties between the Philippines and the U. but because the petitioners satisfy the requirements presence of foreign military bases. DE CASTRO’S DISSENT NO.S. the EDCA on the other hand contemplates the presence of not just the troops but also military bases and facilities in the so-called Agreed Locations. Justice De Castro is of the opinion that it is not: NO. The EDCA clearly involves the entry of foreign military bases. separate and distinct from the VFA and the MDT. Under the Constitution.

the WTO came into existence on January 1. Tañada v. arguing that the WTO requires the Philippines to place 3. protect weak and developing economies. Furthermore. Fifty years after. The decision to embark on economic liberalization is The Philippines joined as a founding member. as articulated by President a political question Fidel Ramos in 2 letters to the Senate. 1 and 13 of Art. The Constitution does not take off and what was left was the 1947 General Agreement on Tariffs and intend to pursue an isolationist policy or mendicancy. The Philippines follows the fundamental doctrine of pacta sunt servanda. effectively controlled by Filipinos. 1. W/N the WTO Agreement infringes on the powers of Congress – nationals and products of member-countries on the same footing as Filipinos NO and local products and that the WTO intrudes. wherein the State 272 SCRA 18 shall promote industrialization and create competitive industries while protecting enterprises from unfair competition and trade practices. ministerial declarations and decisions. restricts and impairs Philippine sovereignty. which explains its thrust for Petitioners Wigberto Tañada and Anna Dominique Coseteng. both Senators. The WTO reliance on trade without discrimination cannot be struck down as unconstitutional as in fact they are rules of equality and DTI Secretary Navarro who signed the agreement in Marrakesh. as develop a self-reliant and independent national economy treaties are legally binding obligations. the ITO did not on the bases of equality and reciprocity. as reciprocity that apply to all members. States surrender some aspects of their power in exchange of given due course. effectively controlled by Filipinos – NO The provisions on national economy are not self-executory and An example of this is how signing the UN charter limits Philippine merely set out general policy. Such ratification encourages industries that are competitive in both domestic and included the WTO Agreement and the annexes of the agreement and other foreign markets instead of a sheltered domestic trade environment. which are considered to be automatically part of our own laws. specifically the legislative power because Congress cannot pass laws favoring Philippine Issues & Held: industries. The fundamental law representative of the Republic. it Organization. 2. upon the conclusion of the Marrakesh Agreement. promising liberalization of Furthermore. questioned such act. Trade. the decision or the merits of trade liberalization. The International Trade While the Constitution mandates a bias in favor of Filipino industry. were tasked to hasten worldwide recovery. was grave abuse of discretion in ratifying the Agreement. the SC will not review the wisdom of the greater benefits under a treaty. but together with Sec. FACTS: Following the devastation of World War II. treaties voluntarily entered into by the Philippines as a family of we have no hesitation at all in holding that this petition should be nations. which comprise a majority of its members. Morocco. Petitioners maintain that this undertaking unduly limits. 1995. regulations and administrative procedures with Constitution to develop a self-reliant and independent national economy its obligations. but only whether there country is bound by generally accepted principles of international law. competition. together with the World Bank and the International Monetary recognizes the need for business exchange with the rest of the world Fund. speedy or adequate remedy in the ordinary course of law. However. W/N the Court has jurisdiction over the controversy – YES As the petition alleges grave abuse of discretion and as there is no On the one hand. sovereignty is limited by international law and other plain. However. believing that the country will benefit from its system of dispute settlement. These provisions should not be read in sovereignty by assisting the UN in defraying administrative costs and . limits and/or impairs the constitutional powers of both Congress and the Supreme Court. the Constitution favors consumers and general welfare and not industries or business. Angara isolation. They also The WTO Agreement provides that each Member shall ensure the assailed the WTO Agreement for violating the mandate of the 1987 conformity of its laws. It was ratified by FVR. By the doctrine of incorporation. the WTO has built-in advantages and concessions to trade. W/N the Court violates the mandate of the 1987 Constitution to or that international agreements must be performed in good faith. XII.

Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation. the adjustment in legislation and rules of procedure will not be substantial. It is not the treaty itself. if any actually exists. Hon. Suffice it to say that the reciprocity clause more than justifies such intrusion. and generally with a view to facilitating the operation and furthering the objectives of this Agreement. in its peacekeeping operations. practice and procedures because it has its own burden of proof principle. By and large. since the Philippine is a signatory to most international conventions on patents. W/N the Senate concurrence is defective and insufficient because concurrence in only the WTO agreement rejects the Final Act. W/N the WTO Agreement infringes on judicial power – NO Petitioners aver that the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) intrudes on the power of the Supreme Court to promulgate rules concerning pleading. Ranada.derogation of legislative power . 5.will apply to this fourth issue also. there is a similar presumption in cases of patent infringement. which is the WTO Agreement itself. The Ministerial Declarations and Decisions were deemed adopted without need for ratification. which was signed by Sec. However. this is untenable because under local patent laws. They were approved by the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of the members can meet to give effect to those provisions of this Agreement which invoke joint action. Mijares v. It states that identity or substantial identity with the patented design or utility model shall constitute evidence of copying. The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privileges and immunities. Navarro – NO The final act only winds up the proceedings. 4. The assailed Senate Resolution expressed concurrence of what the Final Act summarizes. By signing international agreements. So too. trademarks and copyrights. . eminent domain and police power. the arguments adduced in connection with our disposition of the third issue -.

however. the United States consented to the specific jurisdiction of the ICJ with Petitioner José Ernesto Medellín. . Charter. law.[e]ach Member of the United Nations Background: Avena case: The ICJ held that.” reconsideration of their state-court convictions and sentences in the United • The ICJ’s jurisdiction in any particular case. we conclude Relations (Convention) and the Protocol Concerning Settlements of that the Avena judgment is not automatically binding domestic Disputes to the Vienna Convention (Protocol). Under the Protocol. courts. State shall. the competent authorities of the receiving of ICJ decisions. Medellín filed a second Texas state-court habeas application challenging his • Medellin avers that the Avena case is a binding federal rule of the state capital murder conviction and death sentence on the ground that he had decision that pre-empts contrary state limitations on successive not been informed of his Vienna Convention rights. by any party to the dispute being a Party to the pre sent Protocol. without delay. In a later case • consent generally to jurisdiction on any question involving other people not named in Avena. and “inform the [detainee] of his righ[t]” ICJ decision will immediately have a legal effect in the domestic to request assistance from the consul of his own state. self. Convention.” 1. is States. It is silent as to the binding force country “so requests. • The Convention provides that if a person detained by a foreign • The Protocol only grants jurisdiction.MEDELLIN V TEXAS “may accordingly be brought before the [ICJ] . Convention claims because of a failure to comply with generally applicable • How to give consent: state rules governing challenges to criminal convictions. based on violations of the Vienna undertakes to comply with the decision of the [ICJ] in any case to Convention.” • [treaty] stipulations are not self-executing they can only be ISSUES/HELD: enforced pursuant to legislation to carry them into effect. but rather a commitment on the part of UN ember to take • The Protocol provides a venue for the resolu tion of disputes future action through its political branches to comply with an ICJ arising out of the interpretation or application of the Vienna decision. and because it • Background: The US ratified the Vienna Convention on Consular is uncontested that no such legislation exists. who had been convicted and sentenced in respect to claims arising out of the Vienna Con- Texas state court for murder. After the THE US DID THIS but withdrew Avena decision. stating that he United • specifically to jurisdiction over a particular category of States would “discharge its international obligations” under Avena “by having cases or disputes pursuant to a separate treaty -> US State courts give effect to the decision.” FACTS: • (1) UN Charter . the Court ruled that the Vienna arising under a treaty or general international law -> Convention did not preclude the application of state default rules. President Bush issued a Memorandum.” and hence habeas applications. 51 named Mexican nationals were entitled to review and which it is a party. They contend also that the Protocol. when it “operates of itself without the aid of any legislative provision. is one of the 51 Mexican nationals named in vention. This was so regardless of any forfeiture of the right to raise Vienna dependent upon the consent of the parties.executing. and the ICJ Statute supply the relevant obligation to give concluding that neither Avena nor the President’s Memorandum was binding the Avena judgment binding effect in the domestic courts. UN Criminal Appeals dismissed Medellín’s application as an abuse of the writ. . such disputes “shall lie within the • That the Avena case does not by itself constitute binding federal law compulsory jurisdiction of the International Court of Justice” and is confirmed by the “post-ratification understanding” of signatory nations. inform the consular post of the send ing • The relevant UN Charter provision (see (1)) does not mean that an State” of such detention. law in the absence of implementing legislation. the Avena decision. The Texas Court of habeas petitions.” did this when it ratified the Protocol. . Relying on Avena and the President’s Memorandum. is the ICJ’s judgment in Avena directly enforceable as domestic law • Because none of these treaty sources creates binding federal in a state court in the United States? NO. NOPE! federal law that could displace the State’s limitations on filing successive • a treaty is “equivalent to an act of the legislature.

is one that was Protocol and 171 nations that are parties to the Vienna ratified with the understanding that it is not to have domestic Convention. When there is an absence of a grant. but unilaterally converting a non-self executing treaty into a self-executing one is not among them. Yet neither Medellín nor his amici have identified a effect of its own force. • The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress. aside ordinary rules of procedural default. If the act comes from law/Constitution. he can only rely on his own independent powers. NOPE! • The President has an array of political and diplomatic means available to enforce international obligations. this does not mean that certain principles would be set aside. Memorandum should be given effect as domes tic law because “this • case involves a valid Presidential action in the context of 2. judgment does not of its own force require domestic courts to set 3. If the President’s acts are incompatible with the expressed or implied will of Congress. does the President’s Memorandum independently require the States Congressional ‘acquiescence’(when there is an absence of a grant or to provide review and reconsideration of the claims of the 51 denial of authority). by definition. his power is at the minimum and the Court can only sustain his actions by disabling the Congress from acting upon the subject. • The US maintains that the Memorandum is authorized by the Protocol and the UN Charter.” NOPE! Mexican nationals named in Avena without regard to state • The President still has no authority to turn a non-self-executing procedural default rules? NO. combined with either the President’s signature or a congressional override of a Presidential veto. that judgment became the law of the land with precisely that effect pursuant to the President’s Memorandum and his power “to establish binding rules of decision that preempt contrary state law. the President’s authority is at its maximum. • There are currently 47 nations that are parties to the Optional • A non-self-executing treaty. since only the Congress can do • Medellín next argues that the ICJ’s judgment in Avena is binding on this. • The President’s authority to act must stem from law or the Constitution. treaty to a self-executing one. state courts by virtue of the President’s February 28. The United States contends that while the Avena longstanding practice” of congressional acquiescence. . single nation that treats ICJ judgments as binding in domestic • The United States nonetheless maintains that the President’s courts.” • Though it is correct the the President seeks to ensure the reciprocal observance of the convention. • the terms of a non-self-executing treaty can become domestic law only in the same way as any other law—through passage of legislation by both Houses of Congress. 2005 • The President’s Memorandum is not supported by a “particularly Memorandum.