You are on page 1of 39

Special Issues On International Law


1. AGUSTIN VS EDU 88 SCRA 195 accidents due to stalled or parked vehicles on the streets and
This case is a petition assailing the validity or the
constitutionality of a Letter of Instruction No. 229, issued by
President Ferdinand E. Marcos, requiring all vehicle owners,
users or drivers to procure early warning devices to be installed FACTS:
a distance away from such vehicle when it stalls or is disabled.
In compliance with such letter of instruction, the Petitioner sought a permit from the City of Manila to hold a
Commissioner of the Land Transportation Office issued peaceful march and rally on October 26, 1983 from 2:00 to
Administrative Order No. 1 directing the compliance thereof. 5:00 in the afternoon, starting from the Luneta to the gates of
This petition alleges that such letter of instruction and the United States Embassy. Once there, and in an open space
subsequent administrative order are unlawful and of public property, a short program would be held. The march
unconstitutional as it violates the provisions on due process, would be attended by the local and foreign participants of such
equal protection of the law and undue delegation of police conference. That would be followed by the handing over of a
power. petition based on the resolution adopted at the closing session
of the Anti-Bases Coalition. There was likewise an assurance in
Issue the petition that in the exercise of the constitutional rights to
Whether or not the Letter of Instruction No. 229 and the free speech and assembly, all the necessary steps would be
subsequent Administrative Order issued is unconstitutional taken by it "to ensure a peaceful march and rally. However the
request was denied. Reference was made to persistent
Ruling intelligence reports affirming the plans of subversive/criminal
The Supreme Court ruled for the dismissal of the petition. The elements to infiltrate or disrupt any assembly or congregations
statutes in question are deemed not unconstitutional. These where a large number of people is expected to attend.
were definitely in the exercise of police power as such was Respondent suggested that a permit may be issued if it is to be
established to promote public welfare and public safety. In fact, held at the Rizal Coliseum or any other enclosed area where
the letter of instruction is based on the constitutional provision the safety of the participants themselves and the general public
of adopting to the generally accepted principles of international may be ensured. An oral argument was heard and the
law as part of the law of the land. The letter of instruction mandatory injunction was granted on the ground that there
mentions, as its premise and basis, the resolutions of the 1968 was no showing of the existence of a clear and present danger
Vienna Convention on Road Signs and Signals and the of a substantive evil that could justify the denial of a permit.
discussions on traffic safety by the United Nations - that such However Justice Aquino dissented that the rally is violative of
letter was issued in consideration of a growing number of road Ordinance No. 7295 of the City of Manila prohibiting the
holding of rallies within a radius of five hundred (500) feet from

Page 1 of 39
Special Issues On International Law

any foreign mission or chancery and for other purposes. Hence Petition is GRANTED. The court found that there was no clear
the Court resolves. Thus, a petition for mandamus with writ of and present danger of a substantive evil to a legitimate public
preliminary injunction to review the decision of the City of interest that would justify the denial of the exercise of the
Mayor of Manila Ramon Bagatsing was filed for the reason that constitutional rights of free speech and peaceable assembly.
Mayor Bagatsing denied the application for permit to hold a
2. Yes. The invocation of the right to freedom of peaceable
rally from Luneta to the gates of the United States Embassy.
assembly carries with it the implication that the right to
free speech has likewise been disregarded. It is settled
law that as to public places, especially so as to parks and
streets, there is freedom of access. Nor is their use
1. Whether the contention of mayor Bagatsing as to dependent on who is the applicant for the permit,
denying the application for permit to hold rally was in whether an individual or a group. There can be no legal
accordance to the Veinna Convention? (Related to SIIL) objection, absent the existence of a clear and present
danger of a substantive evil, on the choice of Luneta as
2. Whether or Not the freedom of expression and the right the place where the peace rally would start. Time
to peaceably assemble violated. (Additional notes) immemorial Luneta has been used for purposes of
HELD: assembly, communicating thoughts between citizens,
and discussing public questions. Such use of the public
1. No. The Constitution adopts the generally accepted places has from ancient times, been a part of the
principle of International law as part of the law of the privileges, immunities, rights, and liberties of citizens.
land. Veinna Convention is a restatement of the generally With regard to the ordinance, there was no showing that
accepted principles of international law. It should be a there was violation and even if it could be shown that
part of the law of the land. That being a case, if there such a condition is satisfied it does not follow that
were clear and present danger of any intrusion or respondent could legally act the way he did. The validity
damage or distribution of the peace of the mission or of his denial of the permit sought could still be
impairment of its dignity, there would be a justification challenged.
for the denial of the permit insofar as the terminal point
would be the Embassy. A summary of the application for permit for rally: The
applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the
time when it will take place. If it were a private place, only the
consent of the owner or the one entitled to its legal possession
is required. Such application should be filed well ahead in time
to enable the public official concerned to appraise whether
there may be valid objections to the grant of the permit or to its
Page 2 of 39
Special Issues On International Law

grant but at another public place. It is an indispensable

condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached.
Notice is given to applicants for the denial. W/N it violates the Constitution? YES
W/N DOH may implement RIRR? NO
3. PHARMACEUTICAL AND HEALTH CARE NOTE: WHA has the power to enforce its convention or
agreements to its Member when accepted by it in
accordance with its constitutional processes(sec 19 & 22)
On 1986, Pres Aquino promulgated EO51(milk code) which law On the other hand, under Article 23, recommendations of
seeks to give effect to Article 11 of the International Code of the WHA do not come into force for members, in the same
Marketing of Breastmilk Substitutes (ICMBS), a code adopted way that conventions or agreements
by the World Health Assembly to protect, promote and support
breastfeeding. In 1990, the Philippines ratified the
International Convention on the Rights of the Child. Article 24 1. Under the 1987 Constitution, international law can
of said instrument provides that State Parties should take become part of the sphere of domestic law either
appropriate measures to diminish infant and child mortality, by transformation or incorporation. The transformation
and ensure that all segments of society, specially parents and method requires that an international law be transformed
children, are informed of the advantages of breastfeeding. into a domestic law through a constitutional mechanism
such as local legislation. The incorporation method applies
On 2006 the DOH issued RIRR (Revised Implementing Rules
when, by mere constitutional declaration, international
and Regulations of Executive Order No. 51, Otherwise
law is deemed to have the force of domestic law
Known as The "Milk Code," Relevant International
Agreements, Penalizing Violations Thereof, and for Other Article VII, Section 21 of the Constitution provides that "[n]o
Purposes) treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the members
Petitioner, (manufacturers of breastmilk substitutes), filed the
of the Senate." Thus, treaties or conventional international law
present Petition for Certiorari and Prohibition with Prayer for
must go through a process prescribed by the Constitution for it
the Issuance of a Temporary Restraining Order (TRO) or Writ of
to be transformed into municipal law that can be applied to
Preliminary Injunction.
domestic conflicts
Petitioner alleged that DOH acted without or in excess of
Article II Section 2 of the Constitution provides that “The
jurisdiction, or with grave abuse of discretion amounting to
Philippines renounces war as an instrument of national
lack or excess of jurisdiction, and in violation of the provisions
policy, adopts the generally accepted principles of
of the Constitution in promulgating the RIRR.
Page 3 of 39
Special Issues On International Law

international law as part of the law of the land and a law amending the Milk Code passed by the constitutionally
adheres to the policy of peace, equality, justice, freedom, authorized branch of government, the legislature.
cooperation and amity with all nations.”
Thus, only the provisions of the Milk Code, but not those
DOH failed to established that WHA resolution was Customary of subsequent WHA Resolutions, can be validly
international law(generally accepted principles). Thus, implemented by the DOH through the subject RIRR
legislation is necessary to transform the provisions of the WHA
4 Razon, Jr. v. Tagitis, G.R. No. 182498, Dec. 3, 2009, 606
Resolutions into domestic law. The provisions of the WHA
SCRA 598.
Resolutions cannot be considered as part of the law of the
land that can be implemented by executive agencies FACTS:
without the need of a law enacted by the legislature.
The established facts show that Engr. Tagitis, a consultant for
For an international rule to be considered as customary law, it the World Bank and the Senior Honorary Counselor for the
must be established that such rule is being followed by states Islamic Development Bank (IDB) Scholarship Programme, was
because they consider it obligatory to comply with such rules last seen in Jolo, Sulu. Together with Arsimin Kunnong
(opinio juris). Respondents have not presented any evidence to (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in
prove that the WHA Resolutions, although signed by most of the early morning of October 31, 2007 from a seminar in
the member states, were in fact enforced or practiced by at Zamboanga City. They immediately checked-in at ASY Pension
least a majority of the member states; neither have House. Tagitis asked Kunnong to buy him a boat ticket for his
respondents proven that any compliance by member states return trip the following day to Zamboanga. When Kunnong
with said WHA Resolutions was obligatory in nature returned from this errand, Tagitis was no longer around. The
receptionist related that Tagitis went out to buy food at around
2. Nowhere in A.O. No. 2005-0014 is it declared that as
12:30 in the afternoon and even left his room key with the
part of such health policy, the advertisement or promotion
desk. Kunnong looked for Tagitis and even sent a text message
of breastmilk substitutes should be absolutely prohibited.
to the latter’s Manila-based secretary who did not know of
The national policy of protection, promotion and support of Tagitis’ whereabouts and activities either; she advised
breastfeeding cannot automatically be equated with a total ban Kunnong to simply wait
on advertising for breastmilk substitutes.
On November 4, 2007, Kunnong and Muhammad Abdulnazeir
In view of the enactment of the Milk Code which does not N. Matli, a UP professor of Muslim studies and Tagitis’ fellow
contain a total ban on the advertising and promotion of student counselor at the IDB, reported Tagitis’ disappearance
breastmilk substitutes, but instead, specifically creates an IAC to the Jolo Police Station. On November 7, 2007, Kunnong
which will regulate said advertising and promotion, it follows executed a sworn affidavit attesting to what he knew of the
that a total ban policy could be implemented only pursuant to circumstances surrounding Tagitis’ disappearance.

Page 4 of 39
Special Issues On International Law

More than a month later (on December 28, 2007), Mary Jean She has exhausted all administrative avenues and remedies
Tagitis filed a Petition for the Writ of Amparo (petition) with the but to no avail, and under the circumstances, she has no other
CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.The plain, speedy and adequate remedy to protect and get the
petition was directed against Lt. Gen. Alexander Yano, release of her husband, Engr. Morced Tagitis, from the illegal
Commanding General, Philippine Army; Gen. Avelino I. Razon, clutches of his captors, their intelligence operatives and the
Chief, Philippine National Police (PNP); Gen. Edgardo M. like which are in total violation of the subject’s human and
Doromal, Chief, Criminal Investigation and Detention Group constitutional rights, except the issuance of a WRIT OF
(CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime AMPARO.
and Emergency Response; Gen. Joel Goltiao, Regional Director,
On the same day the petition was filed, the CA immediately
ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task
issued the Writ of Amparo, set the case for hearing on January
Force Comet (petitioners)
7, 2008, and directed the petitioners to file their verified return
Mary Jean said in her statement that she approached some of within seventy-two (72) hours from service of the writ.
her co-employees with the Land Bank in Digos branch, Digos
Hence, this petition for reviwew by certiorari filed by the
City, Davao del Sur who likewise sought help from some of
present petitioners.
their friends in the military who could help them find/locate
the whereabouts of her husband. All of her efforts did not ISSUE:
produce any positive results except the information from
persons in the military who do not want to be identified that Whether or not the privilege of the Writ of Amparo should be
Engr. Tagitis is in the hands of the uniformed men. According extended to Engr. Morced Tagitis.
to reliable information she received, subject Engr. Tagitis is in RULING:
the custody of police intelligence operatives, specifically with
the CIDG, PNP Zamboanga City, being held against his will in The disappearance of Engr. Morced Tagitis is classified as an
an earnest attempt of the police to involve and connect Engr. enforced disappearance, thus the privilege of the Writ of
Tagitis with the different terrorist groups particularly the Amparo applies.
Jemaah Islamiyah or JI.
Under the UN Declaration enforced disappearance as "the
She then filed her complaint with the PNP Police Station in the arrest, detention, abduction or any other form of deprivation of
ARMM in Cotobato and in Jolo, seeking their help to find her liberty by agents of the State or by persons or groups of
husband, but was told of an intriguing tale by the police that persons acting with the authorization, support or acquiescence
her husband was not missing but was with another woman of the State, followed by a refusal to acknowledge the
having good time somewhere, which is a clear indication of the deprivation of liberty or by concealment of the fate or
refusal of the PNP to help and provide police assistance in whereabouts of the disappeared person, which place such a
locating her missing husband. person outside the protection of the law." Under this definition,

Page 5 of 39
Special Issues On International Law

the elements that constitute enforced disappearance are authority or individuals, as well as the manner and conduct of
essentially fourfold: the investigation, together with any report;(e) The actions and
recourses taken by the petitioner to determine the fate or
(a) arrest, detention, abduction or any form of deprivation of
whereabouts of the aggrieved party and the identity of the
person responsible for the threat, act or omission.
(b) carried out by agents of the State or persons or groups of
The framers of the Amparo Rule never intended Section 5(c) to
persons acting with the authorization, support or acquiescence
be complete in every detail in stating the threatened or actual
of the State;
violation of a victim’s rights. As in any other initiatory pleading,
(c) followed by a refusal to acknowledge the detention, or a the pleader must of course state the ultimate facts constituting
concealment of the fate of the disappeared person; the cause of action, omitting the evidentiary details.76 In an
Amparo petition, however, this requirement must be read in
(d) placement of the disappeared person outside the protection light of the nature and purpose of the proceeding, which
of the law. addresses a situation of uncertainty; the petitioner may not be
There was no direct evidence indicating how the victim actually able to describe with certainty how the victim exactly
disappeared. The direct evidence at hand only shows that disappeared, or who actually acted to kidnap, abduct or arrest
Tagitis went out of the ASY Pension House after depositing his him or her, or where the victim is detained, because these
room key with the hotel desk and was never seen nor heard of information may purposely be hidden or covered up by those
again. The undisputed conclusion, however, from all concerned who caused the disappearance. In this type of situation, to
– the petitioner, Tagitis’ colleagues and even the police require the level of specificity, detail and precision that the
authorities – is that Tagistis disappeared under mysterious petitioners apparently want to read into the Amparo Rule is to
circumstances and was never seen again. make this Rule a token gesture of judicial concern for
violations of the constitutional rights to life, liberty and
A petition for the Writ of Amparo shall be signed and verified security.
and shall allege, among others (in terms of the portions the
petitioners cite): To read the Rules of Court requirement on pleadings while
addressing the unique Amparo situation, the test in reading
(c) The right to life, liberty and security of the aggrieved party the petition should be to determine whether it contains the
violated or threatened with violation by an unlawful act or details available to the petitioner under the circumstances,
omission of the respondent, and how such threat or violation is while presenting a cause of action showing a violation of the
committed with the attendant circumstances detailed in victim’s rights to life, liberty and security through State or
supporting affidavits; private party action. The petition should likewise be read in its
totality, rather than in terms of its isolated component parts, to
(d) The investigation conducted, if any, specifying the names,
determine if the required elements – namely, of the
personal circumstances, and addresses of the investigating
disappearance, the State or private action, and the actual or
Page 6 of 39
Special Issues On International Law

threatened violations of the rights to life, liberty or security – persons in occupied territories "endangering German security";
are present. they were transported secretly to Germany where they
disappeared without a trace. In order to maximize the desired
The properly pleaded ultimate facts within the pleader’s
intimidating effect, the policy prohibited government officials
knowledge about Tagitis’ disappearance, the participation by
from providing information about the fate of these targeted
agents of the State in this disappearance, the failure of the
State to release Tagitis or to provide sufficient information
about his whereabouts, as well as the actual violation of his In the Philippines, enforced disappearances generally fall
right to liberty. Thus, the petition cannot be faulted for any within the first two categories, and 855 cases were recorded
failure in its statement of a cause of action. during the period of martial law from 1972 until 1986. Of this
number, 595 remained missing, 132 surfaced alive and 127
If a defect can at all be attributed to the petition, this defect is
were found dead. During former President Corazon C. Aquino’s
its lack of supporting affidavit, as required by Section 5(c) of
term, 820 people were reported to have disappeared and of
the Amparo Rule. Owing to the summary nature of the
these, 612 cases were documented. Of this number, 407
proceedings for the writ and to facilitate the resolution of the
remain missing, 108 surfaced alive and 97 were found dead.
petition, the Amparo Rule incorporated the requirement for
The number of enforced disappearances dropped during former
supporting affidavits, with the annotation that these can be
President Fidel V. Ramos’ term when only 87 cases were
used as the affiant’s direct testimony. This requirement,
reported, while the three-year term of former President Joseph
however, should not be read as an absolute one that
E. Estrada yielded 58 reported cases. KARAPATAN, a local non-
necessarily leads to the dismissal of the petition if not strictly
governmental organization, reports that as of March 31, 2008,
followed. Where, as in this case, the petitioner has
the records show that there were a total of 193 victims of
substantially complied with the requirement by submitting a
enforced disappearance under incumbent President Gloria M.
verified petition sufficiently detailing the facts relied upon, the
Arroyo’s administration. The Commission on Human Rights’
strict need for the sworn statement that an affidavit represents
records show a total of 636 verified cases of enforced
is essentially fulfilled. We note that the failure to attach the
disappearances from 1985 to 1993. Of this number, 406
required affidavits was fully cured when the respondent and
remained missing, 92 surfaced alive, 62 were found dead, and
her witness (Mrs. Talbin) personally testified in the CA
76 still have undetermined status.Currently, the United
hearings held on January 7 and 17 and February 18, 2008 to
Nations Working Group on Enforced or Involuntary
swear to and flesh out the allegations of the petition. Thus,
Disappearance reports 619 outstanding cases of enforced or
even on this point, the petition cannot be faulted.
involuntary disappearances covering the period December 1,
The phenomenon of enforced disappearance arising from State 2007 to November 30, 2008.
action first attracted notice in Adolf Hitler’s Nact und Nebel
Under Philippine Law
Erlass or Night and Fog Decree of December 7, 1941. The Third
Reich’s Night and Fog Program, a State policy, was directed at
Page 7 of 39
Special Issues On International Law

The Amparo Rule expressly provides that the "writ shall cover the individual situations require. The second is to address the
extralegal killings and enforced disappearances or threats disappearance, so that the life of the victim is preserved and
thereof."We note that although the writ specifically covers his or her liberty and security restored. In these senses, our
"enforced disappearances," this concept is neither defined nor orders and directives relative to the writ are continuing efforts
penalized in this jurisdiction. The records of the Supreme that are not truly terminated until the extrajudicial killing or
Court Committee on the Revision of Rules (Committee) reveal enforced disappearance is fully addressed by the complete
that the drafters of the Amparo Rule initially considered determination of the fate and the whereabouts of the victim, by
providing an elemental definition of the concept of enforced the production of the disappeared person and the restoration
disappearance: of his or her liberty and security, and, in the proper case, by
the commencement of criminal action against the guilty
Justice Puno stated that, “as the law now stands, extra-judicial
killings and enforced disappearances in this jurisdiction are
not crimes penalized separately from the component criminal During the International Convention for the Protection of All
acts undertaken to carry out these killings and enforced Persons from Enforced Disappearance (in Paris, France on
disappearances and are now penalized under the Revised Penal February 6, 2007, "enforced disappearance" is considered to
Code and special laws.” be the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or
Although the Court’s power is strictly procedural and as such
groups of persons acting with the authorization, support or
does not diminish, increase or modify substantive rights, the
acquiescence of the State, followed by a refusal to acknowledge
legal protection that the Court can provide can be very
the deprivation of liberty or by concealment of the fate or
meaningful through the procedures it sets in addressing
whereabouts of the disappeared person, which place such a
extrajudicial killings and enforced disappearances. The Court,
person outside the protection of the law.
through its procedural rules, can set the procedural standards
and thereby directly compel the public authorities to act on 5.USAFFE Veterans Association, Inc. vs Treasurer of the
actual or threatened violations of constitutional rights. To state Philippines
the obvious, judicial intervention can make a difference – even
if only procedurally – in a situation when the very same
investigating public authorities may have had a hand in the In October 1954, the USAFFE Veterans Associations Inc.
threatened or actual violations of constitutional rights. (Usaffe), prayed in its complaint before the Manila court of first
instance that the Romulo-Snyder Agreement (1950) whereby
The burden for the public authorities to discharge in these
the Philippine Government undertook to return to the United
situations, under the Rule on the Writ of Amparo, is twofold.
States Government in ten annual installments, a total of about
The first is to ensure that all efforts at disclosure and
35-million dollars advanced by the United States to, but
investigation are undertaken under pain of indirect contempt
unexpanded by, the National Defense Forces of the Philippines
from this Court when governmental efforts are less than what
Page 8 of 39
Special Issues On International Law

be annulled, that payments thereunder be declared illegal and approved, against such advances, the unexpended sums to be
that defendants as officers of the Philippine Republic be returned later. Congressional law itself required accounting “in
restrained from disbursing any funds in the National Treasury the manner prescribed by US Pres - & said Pres in EO 9011,
in pursuance of said Agreement. Said Usaffe Veterans further outlined the procedure whereby advanced funds shall be
asked that the moneys available, instead of being remitted to accounted for. It also requires as a condition sine qua non that
the United States, should be turned over to the Finance Service all expenditures shall first be approved by the USAFFE
of the Armed Forces of the Philippines for the payment of all Commanding Gen. These ideas of “funds advanced” to meet
pending claims of the veterans represented by plaintiff. The expenditures of the Phil Army as may be approved by the
complaint rested on plaintiff's three propositions: first, that the USAFFE Comm-Gen, in connection w/ the accounting
funds to be "returned" under the Agreement were funds requirement, evidently contradict appellant’s thesis that the
appropriated by the American Congress for the Philippine moneys represented straight payments to RP Govt for its
army, actually delivered to the Philippine Government and armed services, & passed into the absolute control of such
actually owned by said Government; second, that U.S. Govt. Instead of returning such amount into one lump sum,
Secretary Snyder of the Treasury, had no authority to retake our Exec Department arranged for its repayment in 10 annual
such funds from the P.I. Government; and third, that installments. Prima facie such arrangement should raise no
Philippine foreign Secretary Carlos P. Romulo had no authority valid objection, given the obligation to return.
to return or promise to return the aforesaid sums of money
through the so-called Romulo-Snyder Agreement.
2. There is no doubt Pres Quirino approved the negotiations.
And he had the power to contract budgetary loans under RA
Basic issue: Validity of the Romulo-Snyder Agreement – Court 213, amending RA 16. The most important argument, however,
can’t pass judgment rests on the lack of ratification of the Agreement by RP Senate
to make it binding on the Govt.
1. WON there is obligation to repay - YES
• The ff explanation of the defendant was considered
2. WON the officers who promised to repay had authority to
persuasive by the Court…
bind this Govt – YES
The agreement is not a ‘treaty’ as that term is used in CONSTI.
However, a treaty is not the only form that an international
1. Note that the $269M appropriated in Public Law 353 agreement may assume. For the grant of treaty making power
expressly said that the money is to be handed to the RP Govt to the Executive & the Senate does not exhaust the power of
either in advance of or in reimbursement thereof. In any the government over international relations.
system of accounting, advances of funds for expenditures
Executive agreements may be entered into with other states &
contemplate disbursements to be reported, & credited if
are effective even without concurrence of Senate.
Page 9 of 39
Special Issues On International Law

-In int’l law, there is no difference between treaties & executive -The Agreement was not submitted to the US Senate either.
agreements in their binding effect upon states concerned as But the Phil Senate’s Resolution No. 15 practically admits the
long as the negotiating functionaries have remained w/n their validity & binding force of such Agreement.
Further, the acts of Congress appropriating funds for the
-The distinction between executive agreements & treaties is yearly installments necessary to comply w/ such Agreement
purely a constitutional one & has not int’l legal significance. constitute a ratification thereof, WHICH PLACES THE
-Altman v. US: An int’l compact negotiated between the reps of
2 sovereign nations & made in the name or behalf of the
contracting parties & dealing with important commercial
relations between the 2 countries, is a treaty both
internationally although as an executive agreement it is not
technically a treaty requiring the advice & consent of the
-2 classes of Executive Agreements: 1) agreements made purely
as executive acts affecting external relations & independent of Facts:
or without legislative authorization, which may be termed as
presidential agreements; 2) agreements entered into in Eastern Sea Trading (EST) was a shipping company which
pursuance of acts of Cong, which have been designated as imports from Japan onion and garlic into the Philippines. In
Congressional-Executive Agreements 1956, the Commissioner of Customs ordered the seizure and
forfeiture of the import goods because EST was not able to
-The Romulo-Snyder Agreement may fall under any of these 2 comply with Central Bank Circulars 44 and 45. The said
classes for on Sept 18, 1946, RP Congress authorized the RP circulars were pursuant to Executive Order 328. On the other
Pres to obtain such loans or incur such indebtedness with the hand, EO 328 was the implementing law of the Trades and
US. Financial agreements, an executive agreement, entered into
between the Philippines and Japan. The said executive
-Even granting there is no legal authorization, the Agreement
agreement states, among others, that all import transactions
was legally & validly entered into to conform to the 2nd
between Japan and the Philippines should be invoiced in
category, namely, as agreements entered into purely as
dollar. In this case, the said items imported by EST from Japan
executive acts without leg authorization’, which usually
were not invoiced in dollar. EST questioned the validity of the
includes money agreements.
said EO averring that the executive agreement that the EO was
implementing was never concurred upon by the Senate. The

Page 10 of 39
Special Issues On International Law

issue was elevated to the Court of Tax Appeals and the latter Executive without the approval of the Senate. They cover such
ruled in favor of EST. The Commissioner appealed. subjects as the inspection of vessels, navigation dues, income
tax on shipping profits, the admission of civil aircraft, customs
matters, and commercial relations generally, international
Whether or not the Executive Agreement is subject to the claims, postal matters, the registration of trade-marks and
concurrence by the Senate. copyrights, etc. Some of them were concluded not by specific
congressional authorization but in conformity with policies
declared in acts of Congress with respect to the general subject
matter, such as tariff acts; while still others, particularly those
with respect to the settlement of claims against foreign
HELD: governments, were concluded independently of any legislation.
No, Executive Agreements are not like treaties which are 7. CIR v. Gotamco, G.R. No. L-31092, Feb. 27, 1987, 148
subject to the concurrence of at least 2/3 of the members of SCRA 36
the Senate. Agreements concluded by the President which fall
short of treaties are commonly referred to as executive FACTS:
agreements and are no less common in our scheme of The World Health Organization (WHO for short) enjoys
government than are the more formal instruments — treaties privileges and immunities which are defined more specifically
and conventions. They sometimes take the form of exchanges in the Host Agreement entered into between the Republic of the
of notes and at other times that of more formal documents Philippines and the said Organization on July 22,1951. Section
denominated ‘agreements’ or ‘protocols’. The point where 11 of that Agreement provides, inter alia, that "the
ordinary correspondence between this and other governments Organization, its assets, income and other properties shall be:
ends and agreements — whether denominated executive (a) exempt from all direct and indirect taxes. It is understood,
agreements or exchanges of notes or otherwise — begin, may however, that the Organization will not claim exemption from
sometimes be difficult of ready ascertainment. It would be taxes which are, in fact, no more than charges for public utility
useless to undertake to discuss here the large variety of services;…”
executive agreements as such, concluded from time to time.
Hundreds of executive agreements, other than those entered When the WHO decided to construct a building to house its
into under the trade- agreements act, have been negotiated own offices, it entered into a further agreement with the
with foreign governments. . . . It would seem to be sufficient, in Government of the Republic of the Philippines on November
order to show that the trade agreements under the act of 1934 26, 1957. This agreement contained the following provision
are not anomalous in character, that they are not treaties, and (Article III, paragraph 2):
that they have abundant precedent in our history, to refer to
"The Organization may import into the country materials and
certain classes of agreements heretofore entered into by the
fixtures required for the construction free from all duties and
Page 11 of 39
Special Issues On International Law

taxes and agrees not to utilize any portion of the international The undersigned, therefore, certifies that the bid of John
reserves of the Government." Gotamco & Sons, made under the condition stated above,
should be exempted from any taxes in connection with the
The construction contract was awarded to respondent John
construction of the World Health Organization office building."
Gotamco & Sons, Inc. (Gotamco for short) on February 10,
1958 for the stipulated price of P370,000.00, but when the ISSUES:
building was completed the price reached a total of
1. WON Host Agreement is Null and Void?
2. WON the assessed 3% contractor’s tax from the
Sometime in May 1958, the WHO received an opinion from the
respondent is not an “indirect tax”?
Commissioner of the Bureau of Internal Revenue stating that
"as the 3% contractor's tax is an indirect tax on the assets and HELD:
income of the Organization, the gross receipts derived by
contractors from their contracts with the WHO for the No. The Court find no merit in this contention. While treaties
construction of its new building, are exempt from tax in are required to be ratified by the Senate under the
accordance with . . . the Host Agreement." Subsequently, Constitution, less formal types of international agreements
however, on June 3, 1958, the Commissioner of Internal may be entered into by the Chief Executive and become
Revenue reversed his opinion and stated that "as the 3% binding without the concurrence of the legislative body. The
contractor's tax is not a direct nor an indirect tax on the WHO, Host Agreement comes within the latter category; it is a valid
but a tax that is primarily due from the contractor, the same is and binding international agreement even without the
not covered by. . . the Host Agreement.'' concurrence of the Philippine Senate. The privileges and
immunities granted to the WHO under the Host Agreement
On January 2,1960, the WHO issued a certification stating, have been recognized by this Court as legally binding on
inter alia: Philippine authorities

"When the request for bids for the construction of the World No. In context, direct taxes are those that are demanded from
Health Organization office building was called for, contractors the very person who, it is intended or desired, should pay
were informed that there would be no taxes or fees levied upon them; while indirect taxes are those that are demanded in the
them for their work in connection with the construction of the first instance from one person in the expectation and intention
building as this will be considered an indirect tax to the that he can shift the burden to someone else. (Pollock vs.
Organization caused by the increase of the contractor's bid in Farmers, L & T Co., 1957 US 429,15 S. Ct. 673, 39 Law. Ed.
order to cover these taxes. This was upheld by the Bureau of 759.) The contractor's tax is of course payable by the
Internal Revenue and it can be stated that the contractors contractor but in the last analysis it is the owner of the
submitted their bids in good faith with the exemption in mind. building that shoulders the burden of the tax because the
same is shifted by the contractor to the owner as a matter of

Page 12 of 39
Special Issues On International Law

self-preservation. Thus, it is an indirect tax. And it is an Whether or Not the VFA is unconstitutional?
indirect tax on the WHO because, although it is payable by the
petitioner, the latter can shift its burden on the WHO. In the
last analysis it is the WHO that will pay the tax indirectly [The Court DISMISSED the consolidated petitions, held that
through the contractor and it certainly cannot be said that the petitioners did not commit grave abuse of discretion, and
'this tax has no bearing upon the World Health Organization. sustained the constitutionality of the VFA.]
Petition is dismissed, CTA decision is affirmed. NO, the VFA is not unconstitutional.
8. Bayan v. Zamora G.R. No. 138570 October 10, 2000 Section 25, Article XVIII disallows foreign military bases,
troops, or facilities in the country, unless the following
FACTS conditions are sufficiently met, viz: (a) it must be under a
treaty; (b) the treaty must be duly concurred in by the Senate
The Republic of the Philippines and the United States of and, when so required by congress, ratified by a majority of the
America entered into an agreement called the Visiting Forces votes cast by the people in a national referendum; and (c)
Agreement (VFA). The agreement was treated as a treaty by the recognized as a treaty by the other contracting state.
Philippine government and was ratified by then-President
Joseph Estrada with the concurrence of 2/3 of the total There is no dispute as to the presence of the first two requisites
membership of the Philippine Senate. in the case of the VFA. The concurrence handed by the Senate
through Resolution No. 18 is in accordance with the provisions
The VFA defines the treatment of U.S. troops and personnel of the Constitution . . . the provision in [in §25, Article XVIII]
visiting the Philippines. It provides for the guidelines to govern requiring ratification by a majority of the votes cast in a
such visits, and further defines the rights of the U.S. and the national referendum being unnecessary since Congress has
Philippine governments in the matter of criminal jurisdiction, not required it.
movement of vessel and aircraft, importation and exportation
of equipment, materials and supplies. xxx xxx xxx

Petitioners argued, inter alia, that the VFA violates §25, Article This Court is of the firm view that the phrase “recognized as a
XVIII of the 1987 Constitution, which provides that “foreign treaty” means that the other contracting party accepts or
military bases, troops, or facilities shall not be allowed in the acknowledges the agreement as a treaty. To require the other
Philippines except under a treaty duly concurred in by the contracting state, the United States of America in this case, to
Senate . . . and recognized as a treaty by the other contracting submit the VFA to the United States Senate for concurrence
State.” pursuant to its Constitution, is to accord strict meaning to the

Page 13 of 39
Special Issues On International Law

Well-entrenched is the principle that the words used in the improvement/rehabilitation of the San Andres-Virac-Jct. Bago-
Constitution are to be given their ordinary meaning except Viga road, with the lengt of 79.818 kilometers, in the island
where technical terms are employed, in which case the province of Catanduanes.
significance thus attached to them prevails. Its language This Loan Agreement No. PH-204 was executed by and
should be understood in the sense they have in common use. between the JBIC and the Philippine Government pursuant to
the exchange of Notes executed by and between Mr. Yoshihisa
Moreover, it is inconsequential whether the United States
Ara, Ambassador Extraordinary and Plenipotentiary of Japan
treats the VFA only as an executive agreement because, under
to the Philippines, and then Foreign Affairs Secretary Siazon,
international law, an executive agreement is as binding as a
in behalf of their respective governments.
treaty. To be sure, as long as the VFA possesses the elements
of an agreement under international law, the said agreement is
to be taken equally as a treaty.
Whether or not the Loan Agreement No. PH-204 between the
xxx xxx xxx JBIC and the Philippine Government is a kind of a treaty.

The records reveal that the United States Government, through HELD:
Ambassador Thomas C. Hubbard, has stated that the United The Loan Agreement No. PH-204 taken in conjunction with the
States government has fully committed to living up to the Exchange of Notes dated December 27, 1999 between the
terms of the VFA. For as long as the United States of America Japanese Government and the Philippine Government is an
accepts or acknowledges the VFA as a treaty, and binds itself executive agreement.
further to comply with its obligations under the treaty, there is An “exchange of notes” is a record of a routine agreement that
indeed marked compliance with the mandate of the has many similarities with the private law contract. The
Constitution. agreement consists of the exchange of two documents, each of
9.Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. the parties being in the possession of the one signed by the
Ebdane, Jr. representative of the other.
…treaties, agreements, conventions, charters, protocols,
FACTS: declarations, memoranda of understanding, modus vivendi and
On May 7, 2004 Bids and Awards Committee (BAC) of the exchange of notes all are refer to international instruments
Department of Public Works and Highways (DPWH) issued a binding at international law.
Resolution No. PJHL-A-04-012. It was approved by DPWH Although these instruments differ from each other by title, they
Acting Secretary Florante Soriquez. This resolution all have common features and international law has applied
recommended the award to China Road & Bridge Corporation basically the same rules to all these instruments. These rules
of the contract for the implementation of civil works for are the result of long practice among the States, which have
Contract Package No. I (CP I), which consists of the accepted them as binding norms in their mutual relations.
Therefore, they are regarded as international customary law.
Page 14 of 39
Special Issues On International Law

That case was dismissed by the SCORP last Feb. 14 2007. February 1, 2011

What the petitioners wanted was that Foreign funded projects FACTS:
also undergo the procurement process.
The dismissal of the case somehow gave justification for the Having a key determinative bearing on this case is the
delay of the implementing rules for foreign funded projects Rome Statute establishing the International Criminal Court
(IRR-B) of the procurement law If we recall the decision of the (ICC) with the power to exercise its jurisdiction over persons for
Abaya vs Ebdane was used by the DOJ when the DOTC the most serious crimes of international concern and shall be
Secretary was asking for an opinion from the former, during complementary to the national criminal jurisdictions. The
the ZTE ruled by the Supreme Court in Abaya v. serious crimes adverted to cover those considered grave under
Ebdane, an exchange of notes is considered a form of an international law, such as genocide, crimes against humanity,
executive agreement, which becomes binding through war crimes, and crimes of aggression.
executive action without need of a vote by the
Senate and that (like treaties and conventions, it is an The RP, through Charge affairs Enrique A. Manalo,
international instrument binding at international law, signed the Rome Statute which is subject to ratification,
The second issue involves an examination of the coverage of acceptance or approval by the signatory states. As of the filing
Republic Act No. 9184, otherwise known as the “Government of the instant petition, only 92 out of the 139 signatory
Procurement Reform Act”. Section 4 of the said Act provides countries appear to have completed the ratification. The
that it shall apply to: … the Procurement of infrastructure Philippines is not among the 92.
Projects, Goods and Consulting Services, regardless of source
of funds, whether local or foreign, by all branches and On May 9, 2003, then Ambassador Francis J.
instrumentalities of government, its departments, offices and Ricciardone sent US Embassy Note No. 0470 to the
agencies, including government-owned and/or -controlled Department of Foreign Affairs (DFA) proposing the terms of the
corporations and local government units, subject to the non-surrender bilateral agreement (Agreement, hereinafter)
provisions of Commonwealth Act No. 138. Any treaty or between the USA and the RP. Via Exchange of Notes No. BFO-
international or executive agreement affecting the subject 028-03 dated May 13, 2003 (E/N BFO-028-03, hereinafter),
matter of this Act to which the Philippine government is the RP, represented by then DFA Secretary Ople, agreed with
a signatory shall be observed. and accepted the US proposals.
10.BAYAN MUNA, as represented by REP. SATUR OCAMPO,
ET AL., Petitioners, v. ALBERTO ROMULO, in his capacity
In esse, the Agreement aims to protect what it refers to and
as Executive Secretary, et al., Respondents.
defines as persons of the RP and US from frivolous and
G.R. No. 159618
harassment suits that might be brought against them in
Page 15 of 39
Special Issues On International Law

international tribunals. It is reflective of the increasing pace of The Court ruled that an exchange of notes falls into the
the strategic security and defense partnership between the two category of inter-governmental agreements, which is an
countries. internationally accepted form of international agreement. The
United Nations Treaty Collections (Treaty Reference Guide)
defines the term as follows:
Ambassador Ricciardone said in a letter that the
exchange of diplomatic notes constituted a legally binding
agreement under international law; and that, under US law, An exchange of notes is a record of a routine agreement, that
the said agreement did not require the advice and consent of has many similarities with the private law contract. The
the US Senate. agreement consists of the exchange of two documents, each of
the parties being in the possession of the one signed by the
Petitioner however imputes grave abuse of discretion to representative of the other…
respondents in concluding and ratifying the Agreement and
prays that it be struck down as unconstitutional, or at least
declared as without force and effect. For their part, In another perspective, the terms exchange of notes and
respondents question petitioners standing to maintain a suit executive agreements have been used interchangeably,
and counter that the Agreement, being in the nature of an exchange of notes being considered a form of executive
executive agreement, does not require Senate concurrence for agreement that becomes binding through executive action. On
its efficacy. And for reasons detailed in their comment, the other hand, executive agreements concluded by the
respondents assert the constitutionality of the Agreement. President sometimes take the form of exchange of notes and at
other times that of more formal documents denominated
ISSUES: Whether or not the Agreement was contracted agreements or protocols.

Senate Concurrence Not Required; treaties

Ruling: Yes. Petition is dismissed.
Article 2 of the Vienna Convention on the Law of
Treaties defines a treaty as an international agreement
concluded between states in written form and governed by
Petitioners initial challenge against the Agreement relates to
international law, whether embodied in a single
form, its threshold posture being that of an Exchange of Notes
instrument or in two or more related instruments and
cannot be a valid medium for concluding the Agreement.
whatever its particular designation. International
agreements may be in the form of (1) treaties that require
legislative concurrence after executive ratification; or (2)
Page 16 of 39
Special Issues On International Law

executive agreements that are similar to treaties, except international agreement in the form they so wish to
that they do not require legislative concurrence and are further their respective interests. Verily, the matter of form
usually less formal and deal with a narrower range of takes a back seat when it comes to effectiveness and binding
subject matters than treaties. effect of the enforcement of a treaty or an executive agreement,
as the parties in either international agreement each labor
Authorities are, however, agreed that one is distinct under the pacta sunt servanda principle.
from another for accepted reasons apart from the
concurrence-requirement aspect. As has been observed by US
constitutional scholars, a treaty has greater dignity than an The enumeration in Eastern Sea Trading cannot
executive agreement, because its constitutional efficacy is circumscribe the option of each state on the matter of which
beyond doubt, a treaty having behind it the authority of the the international agreement format would be convenient to
President, the Senate, and the people; a ratified treaty, unlike serve its best interest. And lest it be overlooked, one type of
an executive agreement, takes precedence over any prior executive agreement is a treaty-authorized or a treaty-
statutory enactment. implementing executive agreement, which necessarily
would cover the same matters subject of the underlying
Petitioner parlays the notion that the Agreement is of
dubious validity, partaking as it does of the nature of a treaty;
Agreement Need Not Be in the Form of a Treaty
hence, it must be duly concurred in by the Senate. Petitioner
submits that the subject of the Agreement does not fall
As a corollary, it is argued that any derogation from the
under any of the subject-categories that are enumerated in
Rome Statute principles cannot be undertaken via a mere
the Eastern Sea Trading case, and that may be covered by an
executive agreement, which, as an exclusive act of the
executive agreement, such as commercial/consular relations,
executive branch, can only implement, but cannot amend or
most-favored nation rights, patent rights, trademark and
repeal, an existing law. The Agreement, so the argument goes,
copyright protection, postal and navigation arrangements and
seeks to frustrate the objects of the principles of law or alters
settlement of claims.
customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus

There are no hard and fast rules on the propriety of
advanced considers the Agreement inefficacious, unless it is
entering, on a given subject, into a treaty or an executive
embodied in a treaty duly ratified with the concurrence of the
agreement as an instrument of international relations. The
Senate, the theory being that a Senate- ratified treaty partakes
primary consideration in the choice of the form of
of the nature of a municipal law that can amend or supersede
agreement is the parties intent and desire to craft an
another law, in this instance Sec. 17 of RA 9851 and the status
Page 17 of 39
Special Issues On International Law

of the Rome Statute as constitutive of enforceable domestic law certain heinous and widely condemned offenses, even when no
under Sec. 2, Art. II of the Constitution. other recognized basis for jurisdiction exists. The rationale
behind this principle is that the crime committed is so
We are unable to lend cogency to the view thus taken. For egregious that it is considered to be committed against all
one, we find that the Agreement does not amend or is members of the international community and thus granting
repugnant to RA 9851. For another, the view does not every State jurisdiction over the crime.
clearly state what precise principles of law, if any, the
Agreement alters. And for a third, it does not demonstrate Therefore, even with the current lack of domestic legislation on
in the concrete how the Agreement seeks to frustrate the the part of the US, it still has both the doctrine of
objectives of the principles of law subsumed in the Rome incorporation and universal jurisdiction to try these crimes.
13. Singh vs. Insular Collector of Customs
Nonetheless, despite the lack of actual domestic legislation, the
US notably follows the doctrine of incorporation. Thus, a Facts:
person can be tried in the US for an international crime despite
the lack of domestic legislation. The US doubtless recognizes Plaintiffs and appellants were East Indians who were peddlers
international law as part of the law of the land, necessarily and farmers, who arrived at the port of manila asking for
including international crimes, even without any local statute. permission to enter the Philippine Islands but were denied
In fact, years later, US courts would apply international law as admission by virtue of Sec.3 of the Act of Congress.
a source of criminal liability despite the lack of a local statute They were not granted permission to enter the same by the
criminalizing it as such. board of special inquiry because they were not among the
exceptions provided under the Act, The exceptions are: (a)
This rule finds an even stronger hold in the case of crimes Government officials; (b) ministers or religious teachers; (c)
against humanity. It has been held that genocide, war crimes missionaries; (d) lawyers; (e) physicians; (f) chemists; (g) civil
and crimes against humanity have attained the status of engineers; (h) teachers; (i) students; (j) authors; (k) artists; (l)
customary international law. Some even go so far as to state merchants; (m) travelers for curiosity or pleasure.
that these crimes have attained the status of jus cogens. Appellants contended that: (a) That by virtue of treaty relations
between the United States and the Great Britain, they are
The term jus cogens means the compelling law. Corollary, ajus entitled to enter the territory of the United States; (b) That in
cogensnorm holds the highest hierarchical position among all considering the law in force, they are considered “merchants”
other customary norms and principles. These jus cogens and therefore belong to the class of persons who may enter the
crimes relate to the principle of universal jurisdiction, i.e., any territory of the United States under the above quoted Act of
state may exercise jurisdiction over an individual who commits Congress.
Page 18 of 39
Special Issues On International Law

Upon appeal to the Court of Customs the decision was However, the treaty relations between the United States of
affirmed. A petition for writ of habeas corpus was applied for in America and his Britannic Majesty relating to the right of
the Court of First Instance, Manila, but it was denied and British subjects to enter the territory of the United States, is
remanded each of said appellants to the custody of the expressly limited to His Majesty's subjects in Europe, and
Collector of Customs in order that said appellants might be do not apply to British subjects in India.
returned to the place where they came. From said judgment
the appellants appealed to this court.
14.Self-executing (direct applicability of) treaties
Guerero’s Transport Services, Inc. v. Blaylock
Whether or not Treaty between the United States and Britain
Transportation Services Employees Association- KILUSAN
invoked by the appellants can be applied to them.
Ruling: NO.
In this case, the U.S. Naval Base authorities at Subic, Zambales
Regarding topic of Self-executing Treaties
conducted a public bidding for a five-year contract for the right
Justice Field, in the case of Whitney vs. Robertson, of Supreme to operate and/or manage the transportation services inside the
Court of the United States said: "A treaty is primarily a naval base. The bidding was won by Santiago Guerrero , owner
contract between two or more independent nations, . . . For the of Guerrero’s Transport Services who after commencement of
infraction of its provisions a remedy must be sought by the operation refused to employ the members of respondent union
injured party through reclamations upon the other. . . . If the employed by the incumbent concessionaire Baylock Transport
treaty contains stipulations which are self-executing that is, Services. The said transportation filed a complaint with the
require no legislation to make them operate, to that extent they NLRC to compel Guerrero’s Transport Services to employ its
have the force and effect of a legislative enactment. members pursuant to Article I, Section 2 of the RP-US Base
Agreement. The complaint was dismissed on jurisdictional
By the Constitution a Treaty is placed on the same footing, and
grounds, there being no employer-employee relationship
made of like obligation with an act of legislation. Both are
between the partied. The petitioner(BTSEA-KILUSAN) therein
declared by that instrument to be the supreme law of the land,
appealed to the Secretary of the Department of Labor who
and no superior efficacy is given to either over the other. When
remanded the case for review to the NLRC. The NLRC then
the two relate to the same subject, the courts will always
issued a resolution ordering the petition “to absorb all the
endeavor to construe them so as to give effect to both, if the
complainants who filed their applications on or before the
that can be done without violating the language of either, but if
deadline”. Guerrero claims that it substantially complied w/ the
the two are inconsistent, the one last in date will control the
decision of the Sec. of Labor affirming the NLRC Resolution, &
other, provided always the stipulation of the treaty on the
that any non-compliance was attributable to the individual
subject is self-executing.
complainants who failed to submit themselves for processing &
Page 19 of 39
Special Issues On International Law

examination. The Labor Arbiter ordered the reinstatement of 129 of such obligation that Guerrero entered into the aforementioned
individuals. The Union filed a Motion for Issuance of Writ of Compromise Agreement.
Execution. The order wasn’t appealed so it was declared final &
16. MIRPURI V. CA (G.R. NO. 114508)
Subsequently, the parties arrived at a Compromise Agreement
wherein they agreed to submit to the Sec. of Labor the Lolita Escobar applied for the registration of the trademark
determination of members of the Union who shall be reinstated ‘Barbizon’ for her products such as brassieres and ladies
by Guerrero, w/c determination shall be final. The agreement is undergarments. Respondent Barbizon Corporation, an
deemed to have superseded the Resolution of the NLRC. The Sec. American corporation, opposed alleging that petitioner’s mark is
of Labor ordered the absorption of 175 members of the Union confusingly similar to its own trademark ‘Barbizon.’ Escobar’s
subject to 2 conditions. application was given due course and her trademark was
registered. Later, Escobar assigned all her rights to petitioner
Mirpuri who failed to file an Affidavit of Use resulting in the
Whether or not the petitioner should reinstate the members of cancellation of the trademark. Petitioner then applied for
union? registration of the trademark to which respondent Barbizon
again opposed, now invoking the protection under Article 6bis
of the Paris Convention. The Director of Patents declaring
Yes. Pursuant to Sec. 6 of Art. I of the RP-US Labor Agreement, respondent’s opposition was already barred, petitioner’s
the US Armed Forces undertook, consistent w/ military application was given due course. CA reversed the judgment.
requirements, "to provide security for employment, and, in the
event certain services are contracted out, the US Armed Forces
shall require the contractor or concessioner to give priority Whether or not respondent may invoke the protection under
consideration to affected employees for employment. Article 6bis of the Paris Convention.

A treaty has 2 aspects — as an international agreement between Ruling: YES.

states, and as municipal law for the people of each state to
The Convention of Paris for the Protection of Industrial Property,
observe. As part of the municipal law, the aforesaid provision of
otherwise known as the Paris Convention, is a multilateral treaty
the treaty enters into and forms part of the contract between
that seeks to protect industrial property consisting of patents,
Guerrero and the US Naval Base authorities. In view of said
utility models, industrial designs, trademarks, service marks,
stipulation, the new contractor (Guerrero) is, therefore, bound
trade names and indications of source or appellations of origin,
to give "priority" to the employment of the qualified employees of
and at the same time aims to repress unfair competition. The
the previous contractor (Blaylock). It is obviously in recognition
Convention is essentially a compact among various countries
which, as members of the Union, have pledged to accord to
Page 20 of 39
Special Issues On International Law

citizens of the other member countries trademark and other trademarks were registered in the United States as well as in
rights comparable to those accorded their own citizens by their other parts of the world.
domestic laws for an effective protection against unfair
When respondent applied with the IPO for the registration of its
competition. Art. 6bis is a self-executing provision and does not
trademark "IN-N-OUT Burger & Arrow Design" and servicemark
require legislative enactment to give it effect in the member
"IN-N-OUT," it discovered that petitioner Sehwani, Inc. had
country. It may be applied directly by the tribunals and officials
obtained Trademark Registration for the mark "IN N OUT
of each member country by the mere publication or
without its authority. Respondent thus demanded that
proclamation of the Convention, after its ratification according
petitioner Sehwani, Inc. desist from claiming ownership of the
to the public law of each state and the order for its execution.
mark "IN-N-OUT" and to voluntarily cancel its Trademark
The Philippines and the United States of America have acceded Registration.
to the WTO Agreement. Conformably, the State must reaffirm its
Petitioner Sehwani, Inc. refused to accede to the demand and
commitment to the global community and take part in evolving
even entered into a Licensing Agreement granting its co-
a new international economic order at the dawn of the new
petitioner Benita’s Frites, Inc. license to use for a period of five
years the trademark "IN-N-OUT BURGER" in its restaurant in
Pasig City.
17. SEHWANI, INCORPORATED and/or BENITA'S FRITES, Petitioners alleged that respondent lack the legal capacity to sue
INC. vs. IN-N-OUT BURGER, INC. because it was not doing business in the Philippines and that it
has no cause of action because its mark is not registered or used
G.R. No. 171053
in the Philippines. Petitioner Sehwani, Inc. also claimed that as
FACTS the registered owner of the "IN-N-OUT" mark, it enjoys the
presumption that the same was validly acquired and that it has
Respondent IN-N-OUT Burger, Inc., a foreign corporation the exclusive right to use the mark.
organized under the laws of California, U.S.A., and not doing
business in the Philippines, filed before the Bureau of Legal The BLA rendered a Decision in favor of respondent.
Affairs of the intellectual Property Office (BLA-IPO), an
administrative complaint against petitioners Sehwani, Inc. and
Benita’s Frites, Inc. for violation of intellectual property rights. Whether or not respondent has the legal capacity to sue for the
Respondent alleged that it is the owner of the tradename "IN-N- protection of its trademarks, albeit it is not doing business in
OUT" and trademarks "IN-N-OUT," "IN-N-OUT Burger & Arrow the Philippines.
Design" and "IN-N-OUT Burger Logo," which are used in its
business since 1948 up to the present. These tradename and

Page 21 of 39
Special Issues On International Law

HELD known lies in the "competent authority of the country of

registration or use." This competent authority would be either
Yes. Respondent anchors its causes of action under Articles
the registering authority if it has the power to decide this, or the
6bis and 8 of The Convention of Paris for the Protection of
courts of the country in question if the issue comes before a
Industrial Property, otherwise known as the Paris Convention,
wherein both the United States and the Philippines are
signatories. The question of whether or not respondent’s trademarks are
considered "well-known" is factual in nature, involving as it does
Article 6 - (1) The countries of the Union undertake, ex officio if
the appreciation of evidence adduced before the BLA-IPO. The
their legislation so permits, or at the request of an interested
settled rule is that the factual findings of quasi-judicial agencies,
party, to refuse or to cancel the registration, and to prohibit the
like the IPO, which have acquired expertise because their
use, of a trademark which constitutes a reproduction, an
jurisdiction is confined to specific matters, are generally
imitation, or a translation, liable to create confusion, of a mark
accorded not only respect, but, at times, even finality if such
considered by the competent authority of the country of
findings are supported by substantial evidence.
registration or use to be well known in that country as being
already the mark of a person entitled to the benefits of this
Convention and used for identical or similar goods. These
provisions shall also apply when the essential part of the mark
constitutes a reproduction of any such well-known mark or an 18. G.R. No. 169507
imitation liable to create confusion therewith. AIR CANADA vs CIR
Article 8 - A tradename shall be protected in all countries of the Facts:
Union without the obligation of filing or registration whether or Air Canada is a "foreign corporation organized and
not it forms part of a trademark. existing under the laws of Canada. On April 24, 2000, it was
granted an authority to operate as an offline carrier by the Civil
Article 6 which governs the protection of well-known
Aeronautics Board, subject to certain conditions, which
trademarks, is a self-executing provision and does not require
authority would expire on April 24, 2005
legislative enactment to give it effect in the member country. It On July 1, 1999, Air Canada engaged the services of
may be applied directly by the tribunals and officials of each Aerotel Ltd., Corp. (Aerotel) as its general sales agent in the
member country by the mere publication or proclamation of the Philippines. Aerotel "sells [Air Canada’s] passage documents in
Convention, after its ratification according to the public law of the Philippines."
each state and the order for its execution. The essential For the period ranging from the third quarter of 2000 to
requirement under this Article is that the trademark to be the second quarter of 2002, Air Canada, through Aerotel, filed
protected must be "well-known" in the country where protection quarterly and annual income tax returns and paid the income
is sought. The power to determine whether a trademark is well- tax on Gross Philippine Billings in the total amount of
Page 22 of 39
Special Issues On International Law

On November 28, 2002, Air Canada filed a written claim the National Internal Revenue Code became effective on January
for refund of alleged erroneously paid income taxes amounting 1, 1998. Ordinarily, the later provision governs over the earlier
to ₱5,185,676.77. It found basis from the revised definition of one. In this case, however, the provisions of the Republic of the
Gross Philippine Billings under Section 28(A)(3)(a) of the 1997 Philippines-Canada Tax Treaty are more specific than the
National Internal Revenue Code provisions found in the National Internal Revenue Code.
To prevent the running of the prescriptive period, Air
Canada filed a Petition for Review before the Court of Tax
Appeals. 19.Bayan Muna Vs. Romulo
The CTA denied the petition. It found out that Air Canada Facts:
was engaged business in the Phils. through a legal agent that
sells airline tickets on its behalf. As such, it held that while Air Petitioner Bayan Muna is a duly registered party-list group
Canada was not liable for tax on its Gross Phil Billings, it was established to represent the marginalized sectors of society.
nevertheless liable to pay the 32% corporate income tax in Respondent Blas F. Ople, now deceased, was the Secretary of
income derived from the sales of airline tickets within the Phil. Foreign Affairs during the period material to this case.
On appeal, the CTA En Banc AFFIRMED the ruling of the CTA. Respondent Alberto Romulo was impleaded in his capacity as
then Executive Secretary.
Having a key determinative bearing on this case is the Rome
WON RP-CANADA tax treaty is enforceable Statute (Rome Statute of the International Criminal Court)
establishing the International Criminal Court (ICC) with “the
power to exercise its jurisdiction over persons for the most
YES. While petitioner is taxable as a resident foreign
serious crimes of international concern x x x and shall be
corporation under Section 28(A)(1) of the 1997 National Internal
Revenue Code on its taxable income from sale of airline tickets complementary to the national criminal jurisdictions.” The
in the Philippines, it could only be taxed at a maximum of 1 serious crimes adverted to cover those considered grave under
1/2% of gross revenues, pursuant to Article VIII of the Republic international law, such as genocide, crimes against humanity,
of the Philippines-Canada Tax Treaty that applies to petitioner war crimes, and crimes of aggression.
as a “foreign corporation organized and existing under the laws
On December 28, 2000, the RP, through Charge d’Affaires
of Canada[.]”
Tax treaties form part of the law of the land, and Enrique A. Manalo, signed the Rome Statute which, by its
jurisprudence has applied the statutory construction principle terms, is “subject to ratification, acceptance or approval” by
that specific laws prevail over general ones. The Republic of the the signatory states. As of the filing of the instant petition, only
Philippines-Canada Tax Treaty was ratified on December 21, 92 out of the 139 signatory countries appear to have completed
1977 and became valid and effective on that date. On the other the ratification, approval and concurrence process. The
hand, the applicable provisions relating to the taxability of Philippines is not among the 92.
resident foreign corporations and the rate of such tax found in
RP-US Non-Surrender Agreement
Page 23 of 39
Special Issues On International Law

On May 9, 2003, then Ambassador Francis J. Ricciardone sent tribunal, unless such tribunal has been established by the UN
US Embassy Note No. 0470 to the Department of Foreign Security Council.
Affairs (DFA) proposing the terms of the non-surrender
3. When the [US] extradites, surrenders, or otherwise transfers
bilateral agreement (Agreement, hereinafter) between the USA
a person of the Philippines to a third country, the [US] will not
and the RP.
agree to the surrender or transfer of that person by the third
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 country to any international tribunal, unless such tribunal has
(E/N BFO-028-03, hereinafter), the RP, represented by then been established by the UN Security Council, absent the
DFA Secretary Ople, agreed with and accepted the US express consent of the Government of the Republic of the
proposals embodied under the US Embassy Note adverted to Philippines [GRP].
and put in effect the Agreement with the US government. In
esse, the Agreement aims to protect what it refers to and
defines as “persons” of the RP and US from frivolous and 4. When the [GRP] extradites, surrenders, or otherwise
harassment suits that might be brought against them in transfers a person of the [USA] to a third country, the [GRP]
international tribunals. It is reflective of the increasing pace of will not agree to the surrender or transfer of that person by the
the strategic security and defense partnership between the two third country to any international tribunal, unless such
countries. As of May 2, 2003, similar bilateral agreements have tribunal has been established by the UN Security Council,
been effected by and between the US and 33 other countries. absent the express consent of the Government of the [US].
The Agreement pertinently provides as follows: 5. This Agreement shall remain in force until one year after the
date on which one party notifies the other of its intent to
1. For purposes of this Agreement, “persons” are current or
terminate the Agreement. The provisions of this Agreement
former Government officials, employees (including contractors),
shall continue to apply with respect to any act occurring, or
or military personnel or nationals of one Party.
any allegation arising, before the effective date of termination.
2. Persons of one Party present in the territory of the other
In response to a query of then Solicitor General Alfredo L.
shall not, absent the express consent of the first Party,
Benipayo on the status of the non-surrender agreement,
(a) be surrendered or transferred by any means to any Ambassador Ricciardone replied in his letter of October 28,
international tribunal for any purpose, unless such tribunal 2003 that the exchange of diplomatic notes constituted a
has been established by the UN Security Council, or legally binding agreement under international law; and that,
under US law, the said agreement did not require the advice
(b) be surrendered or transferred by any means to any other
and consent of the US Senate.
entity or third country, or expelled to a third country, for the
purpose of surrender to or transfer to any international In this proceeding, petitioner imputes grave abuse of discretion
to respondents in concluding and ratifying the Agreement and

Page 24 of 39
Special Issues On International Law

prays that it be struck down as unconstitutional, or at least Ministers, diplomats or departmental heads. The technique of
declared as without force and effect exchange of notes is frequently resorted to, either because of
its speedy procedure, or, sometimes, to avoid the process of
Issue: Whether or not the RP-US Non Surrender Agreement is
legislative approval.
void ab initio for contracting obligations that are either
immoral or otherwise at variance with universally recognized In another perspective, the terms “exchange of notes” and
principles of international law. “executive
agreements” have been used interchangeably, exchange of
Held: notes being considered a form of executive agreement that
becomes binding through executive action. On the other hand,
executive agreements concluded by the President “sometimes
Petitioner’s initial challenge against the Agreement relates to take the form of exchange of notes and at other times that of
form, its threshold posture being that E/N BFO-028-03 cannot more formal documents denominated ‘agreements’ or
be a valid medium for concluding the Agreement. ‘protocols.’” As former US High Commissioner to the
Philippines Francis B. Sayre observed in his work, The
Petitioners’ contention––perhaps taken unaware of certain well- Constitutionality of Trade Agreement Acts:
recognized international doctrines, practices, and jargons––is The point where ordinary correspondence between this and
untenable. One of these is the doctrine of incorporation, as other governments ends and agreements – whether
expressed in Section 2, Article II of the Constitution, wherein denominated executive agreements or exchange of notes or
the Philippines adopts the generally accepted principles of otherwise – begin, may sometimes be difficult of ready
international law and international jurisprudence as part of ascertainment. x x x
the law of the land and adheres to the policy of peace,
It is fairly clear from the foregoing disquisition that E/N BFO-
cooperation, and amity with all nations. An exchange of notes
028-03––be it viewed as the Non-Surrender Agreement itself, or
falls “into the category of inter-governmental agreements,”
as an integral instrument of acceptance thereof or as consent
which is an internationally accepted form of international
to be bound––is a recognized mode of concluding a legally
agreement. The United Nations Treaty Collections (Treaty
binding international written contract among nations.
Reference Guide) defines the term as follows:
Petitioner urges that the Agreement be struck down as void ab
An “exchange of notes” is a record of a routine agreement, that
initio for imposing immoral obligations and/or being at
has many similarities with the private law contract. The
variance with allegedly universally recognized principles of
agreement consists of the exchange of two documents, each of
international law. The immoral aspect proceeds from the fact
the parties being in the possession of the one signed by the
that the Agreement, as petitioner would put it, “leaves
representative of the other. Under the usual procedure, the
criminals immune from responsibility for unimaginable
accepting State repeats the text of the offering State to record
atrocities that deeply shock the conscience of humanity; x x x
its assent. The signatories of the letters may be government
it precludes our country from delivering an American criminal
Page 25 of 39
Special Issues On International Law

to the [ICC] x x x.” The above argument is a kind of recycling of CENTRAL BANK (now Bangko Sentral ng Pilipinas)
petitioner’s earlier position, which, as already discussed, EMPLOYEES ASSOCIATION, INC., petitioner, vs. BANGKO
contends that the RP, by entering into the Agreement, virtually SENTRAL NG PILIPINAS and the EXECUTIVE
abdicated its sovereignty and in the process undermined its SECRETARY, respondents.
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 RA 7653 – otherwise known as the New Central Bank Act took
agreement, as aptly described by the Solicitor General, “is an effect July 3 1993, effectively replacing the earlier Central
assertion by the Philippines of its desire to try and punish Bank of the Philippines (established 1949) by the Bangko
crimes under its national law. x x x . The agreement is a Sentral ng Pilipinas. On June 8 2001, petitioner Central Bank
recognition of the primacy and competence of the country’s (now BSP) Employees Association Inc. filed a petition against
judiciary to try offenses under its national criminal laws and the Executive Secretary of the Office of the President to
dispense justice fairly and judiciously.” restrain BSP from implementing the last proviso in Section 15
(i), Article II of RA 7653 which pertains to establishment of a
Petitioner, the Court believe, labors under the erroneous
Human resource management system and a compensation
impression that the Agreement would allow Filipinos and
structure as part of the authority of the Monetary Board.
Americans committing high crimes of international concern to
Employees whose positions fall under SG 19 and below shall
escape criminal trial and punishment. This is manifestly
be in accordance with the rates in the salary standardization
incorrect. Persons who may have committed acts penalized
act. Petitioner contends that the classifications is not
under the Rome Statute can be prosecuted and punished in
reasonable, arbitrary and violates the equal protection clause.
the Philippines or in the US; or with the consent of the RP or
The said proviso has been prejudicial to some 2994 rank- and
the US, before the ICC, assuming, for the nonce, that all the
–file BSP employees. Respondent on the other hand contends
formalities necessary to bind both countries to the Rome
that the provision does not violate the equal protection clause,
Statute have been met. For perspective, what the Agreement
provided that it is construed together with other provisions of
contextually prohibits is the surrender by either party of
the same law such as the “fiscal and administrative autonomy”
individuals to international tribunals, like the ICC, without the
of the Bangko Sentral and the mandate of its monetary board.
consent of the other party, which may desire to prosecute the
The Solicitor General, as counsel of the Executive Secretary
crime under its existing laws. With the view we take of things,
defends the provision, that the classification of employees is
there is nothing immoral or violative of international law
based on real and actual differentiation and it adheres to the
concepts in the act of the Philippines of assuming criminal
policy of RA 7653 to “establish professionalism and excellence
jurisdiction pursuant to the non-surrender agreement over an
within the BSP subject to prevailing laws and policies of the
offense considered criminal by both Philippine laws and the
Rome Statute.
20.[G.R. No. 1ba48208. December 15, 2004]
Page 26 of 39
Special Issues On International Law

ISSUE: rank - possessing higher and better education and

opportunities for career advancement - are given higher
Whether or not the contended proviso if RA 7653 violates the
compensation packages to entice them to stay. Considering
equal protection of laws, hence unconstitutional.
that majority, if not all, the rank-and-file employees consist of
HELD: YES. people whose status and rank in life are less and limited,
especially in terms of job marketability, it is they - and not the
The principle of equality has long been recognized under officers - who have the real economic and financial need for the
international law. Article 1 of the Universal Declaration of adjustment This is in accord with the policy of the Constitution
Human Rights proclaims that all human beings are born free "to free the people from poverty, provide adequate social
and equal in dignity and rights. Non-discrimination, together services, extend to them a decent standard of living, and
with equality before the law and equal protection of the law improve the quality of life for all.
without any discrimination, constitutes basic principles in the
protection of human rights. To be sure, the BSP rank-and-file employees merit greater
concern from this Court. They represent the more impotent
International law, which springs from general principles of law, rank-and-file government employees who, unlike employees in
likewise proscribes discrimination. General principles of law the private sector, have no specific right to organize as a
include principles of equity, i.e., the general principles of collective bargaining unit and negotiate for better terms and
fairness and justice, based on the test of what is reasonable. conditions of employment, nor the power to hold a strike to
The Constitution specifically provides that labor is entitled to protest unfair labor practices. Not only are they impotent as a
"humane conditions of work." These conditions are not labor unit, but their efficacy to lobby in Congress is almost nil
restricted to the physical workplace - the factory, the office or as R.A. No. 7653 effectively isolated them from the other GFI
the field - but include as well the manner by which employers rank-and-file in compensation. These BSP rank-and-file
treat their employees. employees represent the politically powerless and they should
The Constitution also directs the State to promote "equality of not be compelled to seek a political solution to their unequal
employment opportunities for all." Similarly, the Labor Code and iniquitous treatment. Indeed, they have waited for many
provides that the State shall "ensure equal work opportunities years for the legislature to act. Unless the equal protection
regardless of sex, race or creed." It would be an affront to both clause of the Constitution is a mere platitude, it is the Courts
the spirit and letter of these provisions if the State, in spite of duty to save them from reasonless discrimination.
its primordial obligation to promote and ensure equal 21. ANG LADLAD LGBT PARTY v. COMMISSION ON
employment opportunities, closes its eyes to unequal and ELECTIONS
discriminatory terms and conditions of employment. G.R. No. 169507 April 8, 2010
In the case at bar, BSP rank-and-file employees are paid the
strictly regimented rates of the SSL while employees higher in FACTS:

Page 27 of 39
Special Issues On International Law

Ang Ladlad is an organization composed of men and ISSUE:

women who identify themselves as lesbians, gays, bisexuals or
Whether or not Ang Ladlad should be accredited as a party-list
trans-gendered (LGBTs) individuals. Incorporated in 2003, Ang
organization under R.A. No. 7941 (Party-list System Act).
Ladlad first applied for registration with the COMELEC in 2006
but was denied on the ground that they had no substantial HELD:
membership base. In 2009 Ang Ladlad again filed a petition for
registration with the COMELEC. The petition was dismissed by The Supreme Court held that Ang Ladlad’s application
the COMELEC Second Division on moral grounds, stating that for party-list accreditation should be granted by the
the definition of the LGBT sector makes it clear that it tolerates COMELEC. The COMELEC denied Ang Ladlad’s application for
immorality which offends religious beliefs, citing verses from registration on the ground that the LGBT sector is neither
the Bible and the Koran. Ang Ladlad sought reconsideration, enumerated in the Constitution and RA 7941, nor is it
but was again denied by the COMELEC. In its decision, the associated with or related to any of the sectors in the
COMELEC stated that the party-list system is a tool for the enumeration. The crucial element is not whether a sector is
realization of aspirations of marginalized individuals whose specifically enumerated, but whether a particular organization
interests are also the nation’s, only that their interests have complies with the requirements of the Constitution and RA
not been brought to the attention of the nation because of their 7941. The SC found that Ang ladlad has sufficiently
under representation. Until the time comes when Ang ladlad is demonstrated its compliance with the legal requirements for
able to justify that having mixed sexual orientations and accreditation. Aside from COMELEC’s moral objection and
transgender identities is beneficial to the nation, its application allegation of non-existence, COMELEC never found or ruled
for accreditation under the party-list system will remain just that Ang Ladlad is not qualified to register as a party-list
that. In the United States, whose equal protection doctrine organization under any of the requisites under RA 7941.
pervades Philippine jurisprudence, courts do not recognize The Constitution provides under Article III, Sec 5 that
lesbians, gays, homosexuals and bisexuals (LGBT) as a “special “no law shall be made respecting an establishment of religion,
class” of individuals. There can be no denying that Ang Ladlad or prohibiting the free exercise thereof.” What the non-
constituencies are still males and females, and they will remain establishment clause calls for is “governmental neutrality in
either male or female protected by the same Bill of Rights that religious matters.” Clearly, governmental reliance on religious
applies to all citizens alike. It further reiterated that Ang justification is inconsistent with this policy of neutrality. It was
Ladlad does not have a concrete and genuine national political grave violation of the non-establishment clause for the
agenda to benefit the nation and that the petition was validly COMELEC to utilize the Bible and the Koran to justify the
dismissed on moral grounds. It also argued that the LGBT exclusion of Ang Ladlad. Moral disapproval, without more, is
sector is not among the sectors enumerated by the not a sufficient governmental interest to justify exclusion of
Constitution and RA 7941. Ang Ladlad subsequently filed a homosexuals from participation in the party-list system. The
Petition for Certiorari with the Supreme Court. denial of Ang Ladlad’s registration on purely moral grounds

Page 28 of 39
Special Issues On International Law

amounts more to a statement of dislike and disapproval of international law obligations, the blanket invocation of
homosexuals, rather than a tool to further any substantial international law is not the panacea for all social ills. Petitioner
public interest. invokes the Yogyakarta principles (the Application of
International Human Rights Law in Relation to Sexual
In an age that has seen international law evolve
Orientation and Gender Identity), which it declares to reflect
geometrically in scope and promise, international human
binding principles of international law. At this time, the SC is
rights law, in particular, has grown dynamically in its attempt
not prepared to declare that these Yogyakarta Principles
to bring about a more just and humane world order. For
contain norms that are obligatory on the Philippines. There are
individuals and groups struggling with inadequate structural
declarations and obligations outlined in said Principles which
and governmental support, international human rights norms
are not reflective of the current state of international law, and
are particularly significant, and should be effectively enforced
do not find basis in any of the sources of international law
in domestic legal systems so much so that such norms may
enumerated under Article 38(1) of the Statute of the
become actual, rather than ideal, standards of conduct. The
International Court of Justice. Petitioner has not undertaken
SC’s decision is fully in accord with our international
any objective and rigorous analysis of these alleged principles
obligations to protect and promote human rights. In particular,
of international law to ascertain their true status. Using even
we explicitly recognize the principle of non-discrimination as it
the most liberal of lenses, these Yogyakarta Principles,
relates to the right to electoral participation, enunciated in
consisting of a declaration formulated by various international
Article 21 of the UDHR (Universal Declaration of Human
law professors, are - at best - de lege ferenda - and do not
Rights), which states that “everyone has the right to take part
constitute binding obligations on the Philippines. Indeed, so
in the government of his country, directly or through freely
much of contemporary international law is full of principles
chosen representatives,” and Articles 25-26 of the ICCPR
that promote international cooperation, harmony and respect
(International Covenant on Civil and Political Rights). In this
for human rights, most of which amount to no more than well-
context, the principle of non-discrimination requires that laws
meaning desires, without the support of either State or opinio
of general application relating to elections be applied equally to
all persons, regardless of sexual orientation. Although sexual
orientation is not specifically enumerated as a status or ratio 22 Customary international law
for discrimination in Article 26 of the ICCPR, the ICCPR
Human Rights Committee has opined that the reference to
G.R. No. 217456, November 24, 2015
“sex” in Article 26 should be construed to include “sexual
orientation.” Additionally, a variety of United Nations bodies
have declared discrimination on the basis of sexual orientation FACTS:
to be prohibited under various international agreements. The
On October 11, 2014, Jeffrey “Jennifer” Laude (Jennifer) was
SC stressed, however, that although the Court stands willing to
killed at the Celzone Lodge on Ramon Magsaysay Drive in
assume the responsibility of giving effect to the Philippines’
Olongapo City allegedly by 19-year-old US Marine L/CPL
Page 29 of 39
Special Issues On International Law

Joseph Scott Pemberton (Pemberton).2 On October 15, 2014, a Time to File Comment for 60 days. On the same day,
Complaint for murder was filed by Jennifer’s sibling, Marilou Pem-berton posted his Motion for Additional Time to File
S. Laude, against Pemberton before the Olongapo City Office of Comment21 for 10 days. Pemberton filed his Comment by
the City Prosecutor.3 On October 22, 2014, Pemberton was counsel on June 16, 2015, while public respondents, through
detained in Camp Aguinaldo, the general headquarters of the the Office of the Solicitor General, filed their Comment on
Armed Forces of the Philippines. September 23, 2015.

On December 15, 2014, the Public Prosecutor filed an Petitioners argue that “[r]espondent Judge committed grave
Information for murder against Pemberton before the Regional abuse of discretion tantamount to an excess or absence of
Trial Court in Olongapo City. The case was docketed as Case jurisdiction when she dismissed the Urgent Motion to Com-pel
No. 865-14, and was raffled to Branch 74.6 A warrant of arrest the Armed Forces of the Philippines to Surrender Custody o[f]
against Pemberton was issued on December 16, 2014.7 Accused to the Olongapo City Jail [based] on mere
Pem-ber-ton surrendered personally to Judge Roline M. Ginez- technicalities[.]” In particular, they argue that the three-day
Jabalde (Judge Ginez-Jabalde) on December 19, 2014, and he rule on motions under Rule 15, Section 425 of the 1997 Rules
was then arraigned. of Court is not absolute, and should be liberally interpreted
when a case is attended by exigent circumstances. Petitioners
On the same day, Marilou S. Laude filed an Urgent Motion to
also aver that the three-day notice rule should be liberally
Compel the Armed Forces of the Philippines to Surrender
applied due to the timing of the arrest and arraignment.
Custody of Accused to the Olongapo City Jail and a Motion to
Allow Media Coverage.10 “The [M]otion was [scheduled] for “The Urgent Motion was set for hearing on December 22,
hearing on December 22, 2014, at 2 p.m.”11 According to 2014[.]” This date preceded a series of legal holidays beginning
petitioners, they were only able to serve the Motion on on December 24, 2014, where all the courts and government
Pemberton’s counsel through registered mail.12 In any case, offices suspended their work. Petitioners point out that a
they claim to have also “furnished a copy of the [M]otion “murder trial is under a distinctly special circumstance in that
personally . . . at the hearing of the [M]otion.” Petitioners paragraph 6, Article V of the Visiting Forces Agreement . . .
received a copy of the Order on January 5, 2015.16 On provides for [a] one-year trial period[,] after which the United
January 9, 2015, petitioners filed a Motion for States shall be relieved of any obligations under said
Recon-si-deration.17 On February 18, 2015, Judge Ginez- paragraph[.]” Petitioners had to file and set the Motion hearing
Jabalde issued an Order18 denying petitioners’ Motion for at the earliest possible date.
Reconsideration for lack of merit.
Petitioners further argue that Judge Ginez-Jabalde should not
In a Resolution dated April 21, 2015, respondents were have dismissed the Urgent Motion to Compel the Armed Forces
re-quired to file their Comment on the Petition. On June 5, of the Philippines to Surrender Custody of Accused to the
2015, public respondents, as represented by the Office of the Olongapo City Jail “considering that the Urgent Motion raised
Solicitor General, filed their (First) Motion for Extension of issues that are of transcendental importance and of primordial
Page 30 of 39
Special Issues On International Law

public interest.” Petitioners aver that under international complainant, lacks the legal personality to file the Urgent
human rights law, in particular the International Covenant on Motion to Compel the Armed Forces of the Philippines to
Civil and Political Rights and the United Nations Declaration of Surrender Custody of Accused to the Olongapo City Jail and
Basic Principles of Justice for Victims of Crime and Abuse of the subsequent Motion for Reconsideration “without the
Power, they have the right to access to justice, which is conformity of the Public Prosecutor;” (iii) Pemberton also
“distinct from the power of the Public Prosecutors to prosecute argues that Marilou S. Laude cannot rely on the alleged
[the] criminal case.” statements of Secretary De Lima for the following reasons:
First, Secretary De Lima did not direct the Olongapo City Office
Furthermore, petitioners advance that Philippine authorities
of the City Prosecutor to give its approval to the Urgent Motion
ought to “have primary jurisdiction over [r]espondent
and Motion for Reconsideration; second, Secretary De Lima did
Pemberton’s person while [he] is being tried [in] a Philippine
not state that the Public Prose-cutor should insist on turning
Court[,]” in accordance with Article V, paragraph (3)(b) of the
over the custody of Pemberton to the Philippine authorities.
Visiting Forces Agreement.
Neither was there any such order from Secretary De Lima.
Petitioners argue that the custody of Pemberton must be Petitioners’ claims are, therefore, without legal basis; and (iv)
ordered transferred to the Olongapo City Jail, considering that the “‘right to access to justice’ under international law did not
the crime involved is murder, which is non-bailable. excuse [p]eti-tioner Marilou [S. Laude] from securing the
authority and conformity of the Public Prosecutor[.]” He argues
As for the nonconformity of the Public Prosecutor, petitioners that both the International Covenant on Civil and Political
argue that the Public Prosecutor’s refusal to sign the Urgent Rights and the United Nations Declaration of Basic Principles
Motion to Compel the Armed Forces of the Philippines to of Justice for Victims of Crime and Abuse of Power “refer to
Surrender Custody of Accused to the Olongapo City Jail national or domestic legislation in affording [victims] access to
rendered the requirement for conformity superfluous. They justice.”
relied on the statement of the Secretary of Justice, Leila De
Lima, to wit: “The Philippines will now insist on the custody (of As for the issue of custody under the Visiting Forces
Pemberton) now that the (case) is filed in court and especially Agreement, Pemberton argues that there is a difference
since the warrant of arrest has been issued,” De Lima told between “jurisdiction” and “custody.” He avers that jurisdiction
reporters in an ambush interview. is “the power and authority of a court to try, hear[,] and decide
a case.” Pemberton does not dispute that “Philippine
Due to the nature of the case, petitioners pray in this Petition authorities have the primary right to exercise jurisdiction over
that procedural requirements be set aside. offenses committed by [a] United States personnel[,] [which is]
Respondent on the other hand, Pemberton, averred the why the case is being tried [in] a Philippine court.” However,
following: (i) the motion was not personally served to them, in custody “pertains to [the] actual physical control over the per
fact, they were furnished a copy a few minutes before the son of the accused[,]” and under the Visiting Forces
hearing; (ii) Marilou S. Laude, being only the private Agreement, Pemberton argues that custody shall reside with
Page 31 of 39
Special Issues On International Law

the United States Military authorities, since the Visiting Forces Rule 15, Section 4 of the Rules of Court clearly makes it a
Agreement expressly provides that “[t]he custody of any United mandatory rule that the adverse party be given notice of
States personnel . . . shall immediately reside with [the] United hearing on the motion at least three days prior. Failure to
States military authorities . . . from the commission of the comply with this notice requirement renders the motion
offense until completion of all judicial proceedings.” defective consistent with protecting the adverse party’s right to
procedural due process.
Public respondents advance that Judge Ginez-Jabalde did not
commit grave abuse of discretion when she denied the Urgent While the general rule is that a motion that fails to comply with
Motion to Compel the Armed Forces of the Philippines to the requirements of Rule 15 is a mere scrap of paper, an
Surrender Custody of Accused to the Olongapo City Jail. Public exception may be made and the motion may still be acted upon
respondents, through their Comment filed by the Office of the by the court, provided doing so will neither cause prejudice to
Solicitor General, argue that “[p]etitioners are not real parties- the other party nor violate his or her due process rights. The
in-interest[.]” They claim that “the real party-in-interest is the adverse party must be given time to study the motion in order
People [of the Philippines], represented by the public to enable him or her to prepare properly and engage the
prosecutor in the lower court and by the Office of the Solicitor arguments of the movant. In this case, the general rule must
General . . . in the Court of Appeals and in the Supreme apply because Pemberton was not given sufficient time to
Court.” study petitioners’ Motion, thereby depriving him of his right to
procedural due process.
Referring to Rule 110, Section 5 of the Rules of Court, public
respondents aver that the requirement for motions to be “filed On the International Covenant on Civil and Political Rights which
in the name of and under the authority of the public Under treaty law, the Philippines, as a State Party, is obligated
prosecutor” is not a mere technical requirement, but is part of to comply with its obligations under the International Covenant
“the essential, inherent, and exclusive power of the State to on Civil and Political Rights
prosecute criminals[.]”
There is no need to discuss whether this provision has attained
ISSUE: customary status, since under treaty law, the Philippines, as a
State Party, is obligated to comply with its obligations under
WON there has been a grave abuse of discretion on the part of
the International Covenant on Civil and Political Rights.
the respondent judge in dismissing the motion.
However, petitioners went too far in their interpretation,
HELD: ignoring completely the nature of the obligation contemplated
by the provision in an attempt to justify their failure to comply
No, there has been NO grave abuse of discretion on the part of with a domestic procedural rule aimed to protect a human
the respondent judge in dismissing the motion. right in a proceeding, albeit that of the adverse party. On
On the three day rule (Rule 15, ROC) March 29, 2004, the United Nations Human Rights Committee
issued General Comment No. 31, which pertained to the
Page 32 of 39
Special Issues On International Law

nature of the general legal obligations imposed by the (2008): Judicial review of official acts on the ground of
International Covenant on Civil and Political Rights on State unconstitutionality may be sought or availed of through any of
Parties. the actions cognizable by courts of justice, not necessarily in a
suit for declaratory relief. . . The constitutional issue, however,
The obligation contemplated by Article 2, paragraph (3) is for
(a) must be properly raised and presented in the case, and (b)
the State Party to establish a system of accessible and effective
its resolution is necessary to a determination of the case, i.e.,
remedies through judicial and administrative mechanisms. The
the issue of constitutionality must be the very lis mota
present trial of Pemberton, to which petitioner, Marilou S.
presented. (Emphasis supplied, citation omitted) The
Laude, is included as a private complainant, indicates that
constitutionality of the Visiting Forces Agreement is not the lis
there is a legal system of redress for violated rights. That
mota of this Petition. Petitioners started their Petition with a
petitioners chose to act on their own, in total disregard of the
claim that their right to access to justice was violated, but
mechanism for criminal proceedings established by this court,
ended it with a prayer for a declaration of the Visiting Forces
should not be tolerated under the guise of a claim to justice.
Agreement’s unconstitutionality. They attempt to create the
This is especially in light of petitioners’ decision to furnish the
connection between the two by asserting that the Visiting
accused in the case a copy of her Motion only during the
Forces Agreement prevents the transfer of Pemberton to
hearing. Upholding human rights pertaining to access to
Olongapo City Jail, which allegedly is tantamount to the
justice cannot be eschewed to rectify an important procedural
impairment of this court’s authority. Laude vs. Ginez-Jabalde,
deficiency that was not difficult to comply with. Human rights
775 SCRA 408, G.R. No. 217456 November 24, 2015
are not a monopoly of petitioners. The accused also enjoys the
protection of these rights. 25.The Province of North Cotabato vs The Government of
the Republic of the Philippines Peace Panel on Ancestral
On the issue of Real Party-in-Interest
Domain G.R. No. 183591 October 14, 2008
The conformity of the Public Prosecutor to the Urgent Motion to
Compel the Armed Forces of the Philippines to Surrender
Custody of Accused to the Olongapo City Jail is not a mere The Government of the Republic of the Philippines (GRP) and
“superfluity.” In Jimenez v. Sorongon, 687 SCRA 151 (2012), the MILF, through the Chairpersons of their respective peace
this court held that in criminal cases, the People is the real negotiating panels, were scheduled to sign a Memorandum of
party-in-interest, which means allowing a private complainant Agreement on the Ancestral Domain (MOA-AD) Aspect of the
to pursue a criminal action on his own is a rare exception. GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala
Lumpur, Malaysia. The signing of the MOA-AD between the
On the scope of Judicial Review
GRP and the MILF was not to materialize, however, for upon
The constitutionality of an official act may be the subject of motion of petitioners, specifically those who filed their cases
judicial review, provided the matter is not raised collaterally. In before the scheduled signing of the MOA-AD, this Court issued
Planters Products, Inc. v. Fertiphil Corporation, 548 SCRA 485 a Temporary Restraining Order enjoining the GRP from signing
Page 33 of 39
Special Issues On International Law

the same. The MOA-AD was preceded by a long process of state of rebellion—an authority which is not expressly provided
negotiation and the concluding of several prior agreements for in the Constitution. The Court held thus: “In her ponencia
between the two parties beginning in 1996, when the GRP- in Marcos v. Manglapus, 177 SCRA 668 (1989), Justice Cortes
MILF peace negotiations began. On July 18, 1997, the GRP put her thesis into jurisprudence. There, the Court, by a slim
and MILF Peace Panels signed the Agreement on General 8-7 margin, upheld the President’s power to forbid the return
Cessation of Hostilities. The following year, they signed the of her exiled predecessor. The rationale for the majority’s ruling
General Framework of Agreement of Intent on August 27, rested on the President’s . . . unstated residual powers which
1998. However, the MILF attacked a number of municipalities are implied from the grant of executive power and which are
in Central Mindanao and, in March 2000, it took control of the necessary for her to comply with her duties under the
town hall of Kauswagan, Lanao del Norte. In response, then Constitution. The powers of the President are not limited to
President Joseph Estrada declared and carried out an all-out- what are expressly enumerated in the article on the Executive
war against the MILF. When President Gloria Macapagal- Department and in scattered provisions of the Constitution.
Arroyo assumed office, the military offensive against the MILF This is so, notwithstanding the avowed intent of the members
was suspended and the government sought a resumption of of the Constitutional Commission of 1986 to limit the powers of
the peace talks. With the help of the Government of Malaysia the President as a reaction to the abuses under the regime of
through Prime Minister Mahathir Mohamma, the parties met in Mr. Marcos, for the result was a limitation of specific powers of
Kuala Lumpur, with the talks being facilitated by the the President, particularly those relating to the commander-in-
Malaysian government, the parties signing on the Agreement chief clause, but not a diminution of the general grant of
on the General Framework for the Resumption of Peace Talks executive power. Thus, the President’s authority to declare a
Between the GRP and the MILF. The MILF thereafter state of rebellion springs in the main from her powers as chief
suspended all its military actions. executive and, at the same time, draws strength from her
Commander-in-Chief powers.
It will be observed that the President has authority, as stated
Whether or not the President has the authority to conduct
in her oath of office, only to preserve and defend the
peace negotiations with rebel groups even if it is not explicitly
Constitution. Such presidential power does not, however,
mentioned in the Constitution.
extend to allowing her to change the Constitution, but simply
RULING: to recommend proposed amendments or revision. As long as
she limits herself to recommending these changes and submits
That the authority of the President to conduct peace to the proper procedure for constitutional amendments and
negotiations with rebel groups is not explicitly mentioned in revision, her mere recommendation need not be construed as
the Constitution does not mean that she has no such an unconstitutional act.
authority. In Sanlakas v. Executive Secretary, 421 SCRA 656
(2004), in issue was the authority of the President to declare a

Page 34 of 39
Special Issues On International Law

26.VINUYA v. EXECUTIVE SECRETARY, G.R. NO. 162230, respondents to espouse their claims for official apology and
APRIL 28, 2010, 619 SCRA 533 other forms of reparations against Japan before the
International Court of Justice (ICJ) and other international
This is an original Petition for Certiorari under Rule 65 of the
Respondents maintain that all claims of the Philippines and its
Rules of Court with an application for the issuance of a writ of
nationals relative to the war were dealt with in the San
preliminary mandatory injunction against the Office of the
Francisco Peace Treaty of 1951 and the bilateral Reparations
Executive Secretary, the Secretary of the DFA, the Secretary of
Agreement of 1956.
the DOJ, and the OSG.
On January 15, 1997, the Asian Women’s Fund and the
Philippine government signed a Memorandum of
Petitioners are all members of the MALAYA LOLAS, a non- Understanding for medical and welfare support programs for
stock, non-profit organization registered with the SEC, former comfort women. Over the next five years, these were
established for the purpose of providing aid to the victims of implemented by the Department of Social Welfare and
rape by Japanese military forces in the Philippines during the Development.
Second World War.

Petitioners claim that since 1998, they have approached the
WON the Executive Department committed grave abuse of
Executive Department through the DOJ, DFA, and OSG,
discretion in not espousing petitioners’ claims for official
requesting assistance in filing a claim against the Japanese
apology and other forms of reparations against Japan.
officials and military officers who ordered the establishment of
the “comfort women” stations in the Philippines. But officials of RULING:
the Executive Department declined to assist the petitioners,
Petition lacks merit. From a Domestic Law Perspective, the
and took the position that the individual claims of the comfort
Executive Department has the exclusive prerogative to
women for compensation had already been fully satisfied by
determine whether to espouse petitioners’ claims against
Japan’s compliance with the Peace Treaty between the
Philippines and Japan.
*Political questions refer “to those questions which, under the
Hence, this petition where petitioners pray for this court to (a)
Constitution, are to be decided by the people in their sovereign
declare that respondents committed grave abuse of discretion
capacity, or in regard to which full discretionary authority has
amounting to lack or excess of discretion in refusing to
been delegated to the legislative or executive branch of the
espouse their claims for the crimes against humanity and war
crimes committed against them; and (b) compel the
Page 35 of 39
Special Issues On International Law

government. It is concerned with issues dependent upon the policy interests, and could disrupt our relations with Japan,
wisdom, not legality of a particular measure.” thereby creating serious implications for stability in this
One type of case of political questions involves questions of
foreign relations. It is well-established that “the conduct of the For the to overturn the Executive Department’s determination
foreign relations of our government is committed by the would mean an assessment of the foreign policy judgments by
Constitution to the executive and legislative– ‘the political’– a coordinate political branch to which authority to make that
departments of the government, and the propriety of what may judgment has been constitutionally committed.
be done in the exercise of this political power is not subject to
From a municipal law perspective, certiorari will not lie. As a
judicial inquiry or decision.” are delicate, complex, and involve
general principle, where such an extraordinary length of time
large elements of prophecy. They are and should be
has lapsed between the treaty’s conclusion and our
undertaken only by those directly responsible to the people consideration – the Executive must be given ample discretion
whose welfare they advance or imperil. to assess the foreign policy considerations of espousing a claim
But not all cases implicating foreign relations present political against Japan, from the standpoint of both the interests of the
petitioners and those of the Republic, and decide on that basis
questions, and courts certainly possess the authority to
if apologies are sufficient, and whether further steps are
construe or invalidate treaties and executive agreements.
appropriate or necessary.
However, the question whether the Philippine government
should espouse claims of its nationals against a foreign In the international sphere, traditionally, the only means
government is a foreign relations matter, the authority for available for individuals to bring a claim within the
which is demonstrably committed by our Constitution not to international legal system has been when the individual is able
the courts but to the political branches. In this case, the to persuade a government to bring a claim on the individual’s
Executive Department has already decided that it is to the best behalf. By taking up the case of one of its subjects and by
interest of the country to waive all claims of its nationals for resorting to diplomatic action or international judicial
reparations against Japan in the Treaty of Peace of 1951. The proceedings on his behalf, a State is in reality asserting its own
wisdom of such decision is not for the courts to question. right to ensure, in the person of its subjects, respect for the
The President, not Congress, has the better opportunity of rules of international law.
knowing the conditions which prevail in foreign countries, and Within the limits prescribed by international law, a State may
especially is this true in time of war. He has his confidential exercise diplomatic protection by whatever means and to
sources of information. He has his agents in the form of whatever extent it thinks fit, for it is its own right that the
diplomatic, consular and other officials. State is asserting. Should the natural or legal person on whose
The Executive Department has determined that taking up behalf it is acting consider that their rights are not adequately
petitioners’ cause would be inimical to our country’s foreign protected, they have no remedy in international law. All they
can do is resort to national law, if means are available, with a
Page 36 of 39
Special Issues On International Law

view to furthering their cause or obtaining redress. All these Questions relating to the Obligation to Prosecute or Extradite
questions remain within the province of municipal law and do (Belgium v. Senegal)
not affect the position internationally.
Even the invocation of jus cogens norms and erga omnes
On February 19, 2009, Belgium filed an application instituting
obligations will not alter this analysis. Petitioners have not
proceedings against Senegal at the ICJ alleging that Senegal
shown that the crimes committed by the Japanese army
had breached its obligations under the CAT by failing to
violated jus cogens prohibitions at the time the Treaty of Peace
prosecute Habre or to extradite him to Belgium for
was signed, or that the duty to prosecute perpetrators of
prosecution. Belgium invoked the CAT as the basis for the
international crimes is an erga omnes obligation or has
Courts jurisdiction as both Belgium and Senegal are parties to
attained the status of jus cogens.
the treaty. Belgium filed its application on behalf of Chadian
The term erga omnes (Latin: in relation to everyone) in citizens and Belgian citizens of Chadian origin who claimed to
international law has been used as a legal term describing be victims of Habres regime. In addition, Belgium asserted
obligations owed by States towards the community of states as that, regardless of the victims nationalities, all states parties to
a whole. Essential distinction should be drawn between the the CAT have an obligation to prevent and punish torture.
obligations of a State towards the international community as
Belgium originally requested the extradition of Habré in 2006,
a whole, and those arising vis-à-vis another State in the field of
following a four-year investigation by Belgian authorities into
diplomatic protection. By their very nature, the former are the
the victims allegations and several failed attempts to bring
concern of all States. In view of the importance of the rights
Habre to justice elsewhere. Belgium repeated its extradition
involved, all States can be held to have a legal interest in their
request multiple times over the ensuing years as Senegal
protection; they are obligations erga omnes.
delayed prosecution on a variety of legal and financial
The term “jus cogens” (literally, “compelling law”) refers to grounds.
norms that command peremptory authority, superseding
Senegal asserted it had taken a number of steps to facilitate
conflicting treaties and custom. Jus cogens norms are
the prosecution of Habre, including changes in its domestic
considered peremptory in the sense that they are mandatory,
laws in 2007-2008 to implement the CAT and the referral of
do not admit derogation, and can be modified only by general
the matter to the African Union. The AU Assembly of Heads of
international norms of equivalent authority
State and Government issued Decision 127 (VII) in 2006
WHEREFORE, the Petition is hereby DISMISSED. deciding that the case falls within the competence of the AU
and instructed Senegal to prosecute Habre, but Senegal
claimed that it lacked financial resources and requested
27. Belgium v. Senegal international financial assistance. Senegal also claimed that it
was hindered in the prosecution of Habre in its domestic

Page 37 of 39
Special Issues On International Law

courts due to a separate decision by the Economic Community prior to its entry into force for that State, or to establish its
of West African States, which concluded that Habres human jurisdiction over such acts in accordance with Article 5. It
rights could be violated by a failure to abide by the principle of follows that the obligation to prosecute does not apply to such
non-retroactivity. acts. This was confirmed by the United Nations Committee
against Torture in its decision of 23 November 1989 in the case
of O.R., M.M. and M.S. v. Argentina, in which it stated that
W/N torture is a generally accepted idea between the parties “‘torture’ for purposes of the Convention can only mean torture
and may form as basis for the prosecution of Mr. Habre? that occurs subsequent to the entry into force of the
Convention”. The Court concludes that Senegal’s obligation to
Held: prosecute pursuant to Article 7, paragraph 1, of the
With respect to the question relating to the temporal Convention does not apply to acts alleged to have been
application of Article 7, paragraph 1, of the Convention, committed before the Convention entered into force for it on 26
according to the time when the offences are alleged to have June 1987. It notes however that, since the complaints against
been committed and the dates of entry into force of the Mr. Habré include a number of serious offences allegedly
Convention for Senegal (26 June 1987) and Belgium (25 June committed after that date, Senegal is under an obligation to
1999), the Court, having found that there is no clear divergence submit the allegations concerning those acts to its competent
between the Parties’ views on the question, considers that the authorities for the purpose of prosecution. The Court further
prohibition of torture is part of customary international law and asserts that, although Senegal is not required under the
it has become a peremptory norm (jus cogens). That prohibition Convention to institute proceedings concerning acts that were
is grounded in a widespread international practice and on the committed before 26 June 1987, nothing in that instrument
opinio juris of States, taking account of the fact that it appears in prevents it from doing so. - 13 - With respect to the question
numerous international instruments of universal application and concerning the effect of the date of entry into force of the
has been introduced into the domestic law of almost all States, Convention, for Belgium, on the scope of Senegal’s obligation to
and that acts of torture are regularly denounced within national prosecute, the Court observes a notable divergence between
and international fora. However, the Court states that, pursuant the Parties’ views. While Belgium contends that Senegal was
to the provisions of Article 28 of the Vienna Convention on the still bound by the obligation to prosecute Mr. Habré after
Law of Treaties, which reflects customary law on the matter of Belgium had itself become party to the Convention, and that it
treaty interpretation, the obligation to prosecute the alleged was therefore entitled to invoke before the Court breaches of
perpetrators of acts of torture under the Convention applies only the Convention occurring after 25 July 1999, Senegal disputes
to facts having occurred after its entry into force for the State Belgium’s right to engage its responsibility for acts alleged to
concerned. It thus notes that nothing in the Convention against have occurred prior to that date, given that the obligation
Torture reveals an intention to require a State party to provided for in Article 7, paragraph 1, belongs, according to the
criminalize, under Article 4, acts of torture that took place Respondent, to “the category of divisible erga omnes
obligations” and that only the injured State could call for its
Page 38 of 39
Special Issues On International Law

breach to be sanctioned. Senegal accordingly concludes that

Belgium was not entitled to rely on the status of injured State
in respect of acts prior to 25 July 1999 and could not seek
retroactive application of the Convention. The Court considers
that Belgium has been entitled, with effect from 25 July 1999,
the date when it became party to the Convention, to request
the Court to rule on Senegal’s compliance with its obligation
under Article 7, paragraph 1 (the same conclusion also being
valid in respect of Art. 6, para. 2). In the present case, the
Court notes that Belgium invokes Senegal’s responsibility for
the latter’s conduct starting in the year 2000, when a
complaint was filed against Mr. Habré in Senegal.

Page 39 of 39