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PUBLIC INTERNATIONAL LAW

by Attorney EDWIN REY SANDOVAL

1. What is the doctrine of incorporation? How is it applied by local courts?

Held: Under the DOCTRINE OF INCORPORATION, rules of international law form part
of the law of the land and no further legislative action is needed to make such rules applicable
in the domestic sphere.

The doctrine of incorporation is applied whenever municipal tribunals (or local courts)
are confronted with situations in which there appears to be a conflict between a rule of
international law and the provisions of the Constitution or statute of the local state. Efforts
should first be exerted to harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard for the generally accepted
principles of international law in observance of the Incorporation Clause in Section 2, Article II
of the Constitution. In a situation however, where the conflict is irreconcilable and a choice has
to be made between a rule of international law and municipal law, jurisprudence dictates that
municipal law should be upheld by the municipal courts for the reason that such courts are
organs of municipal law and are accordingly bound by it in all circumstances. The fact that
international law has been made part of the law of the land does not pertain to or imply the
primacy of international law over national or municipal law in the municipal sphere. The
doctrine of incorporation, as applied in most countries, decrees that rules of international law
are given equal standing with, but are not superior to, national legislative enactments.
Accordingly, the principle of lex posterior derogat priori takes effect – a treaty may repeal a
statute and a statute may repeal a treaty. In states where the Constitution is the highest law of
the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated
if they are in conflict with the Constitution. (Secretary of Justice v. Hon. Ralph C. Lantion,
G.R. No. 139465, Jan. 18, 2000, En Banc [Melo])

2. Discuss the contemporary view on the rightful place of an Individual in International Law? Does he
remain a mere “object” of International Law, or is he now a proper “subject” of International Law?

Held: Then came the long and still ongoing debate on what should be the subject of
international law. The 20th century saw the dramatic rise and fall of different types and hues of
authoritarianism – the fascism of Italy’s Mussolini and Germany’s Hitler, the militarism of
Japan’s Hirohito and the communism of Russia’s Stalin, etc. The sinking of these isms led to
the elevation of the rights of the individual against the state. Indeed, some species of human
rights have already been accorded universal recognition. Today, the drive to internationalize
rights of women and children is also on high gear. The higher rating given to human rights on
the hierarchy of values necessarily led to the re-examination of the rightful place of the
individual in international law. Given the harshest eye is the moss-covered doctrine that
international law deals only with States and that individuals are not its subject. For its
undesirable corollary is that sub-doctrine that an individual’s right in international law is a near
cipher. Translated in extradition law, the view that once commanded a consensus is that since
a fugitive is a mere object and not a subject of international law, he is bereft of rights. An
extraditee, so it was held, is a mere “object transported from one state to the other as an
exercise of the sovereign will of the two states involved.” The re-examination consigned this
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pernicious doctrine to the museum of ideas. The new thinkers of international law then gave a
significant shape to the role and rights of the individual in state-concluded treaties and other
international agreements. x x x (Concurring Opinion, Puno J., in Jeffrey Liang
[Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for
Reconsideration])

3. What must a person who feels aggrieved by the acts of a foreign sovereign do to espouse his cause?

Held: Private respondent is not left without any legal remedy for the redress of its
grievances. Under both Public International Law and Transnational Law, a person who feels
aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause
through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to
espouse its claims against the Holy See. Its first task is to persuade the Philippine government
to take up with the Holy See the validity of its claim. Of course, the Foreign Office shall first
make a determination of the impact of its espousal on the relations between the Philippine
government and the Holy See. Once the Philippine government decides to espouse the claim,
the latter ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the

International Court of Justice:

“By taking up the case of one of its subjects and by resorting to diplomatic action
or international judicial proceedings on his behalf, a State is in reality asserting its own
rights - its right to ensure, in the person of its subjects, respect for the rules of
international law” (The Mavrommatis Palestine Concessions, 1 Hudson, World Court
Reports 293, 302 [1924]).
(Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-539, Dec. 1, 1994, En Banc
[Quiason])

4. Discuss the Indigenous International Movement. Is the Philippines an active participant in the
Indigenous International Movement?

Held: The Indigenous Peoples Rights Act (IPRA) is a recognition of our active
participation in the indigenous international movement.

The indigenous movement can be seen as the heir to a history of anti-imperialism

stretching back to prehistoric times. The movement received a massive impetus during the
1960’s from two sources. First, the decolonization of Asia and Africa brought into the limelight
the possibility of peoples controlling their own destinies. Second, the right of self-determination
was enshrined in the UN Declaration on Human Rights. The rise of the civil rights movement
and anti-racism brought to the attention of North American Indians, Aborigines in Australia, and
Maori in New Zealand the possibility of fighting for fundamental rights and freedoms.

In 1974 and 1975, international indigenous organizations were founded, and during the
1980’s, indigenous affairs were on the international agenda. The people of the Philippine
Cordillera were the first Asians to take part in the international indigenous movement. It was
the Cordillera People’s Alliance that carried out successful campaigns against the building of the
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Chico River Dam in 1981-82 and they have since become one of the best-organized indigenous
bodies in the world.

Presently, there is a growing concern for indigenous rights in the international scene.
This came as a result of the increased publicity focused on the continuing disrespect for
indigenous human rights and the destruction of the indigenous peoples’ environment, together
with the national governments’ inability to deal with the situation. Indigenous rights came as a
result of both human rights and environmental protection, and have become a part of today’s
priorities for the international agenda.

International organizations and bodies have realized the necessity of applying policies,
programs and specific rules concerning IPs in some nations. The World Bank, for example, first
adopted a policy on IPs as a result of the dismal experience of projects in Latin America. The
World Bank now seeks to apply its current policy on IPs to some of its projects in Asia. This
policy has provided an influential model for the projects of the Asian Development Bank.

The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and
declares as a State policy the promotion of their rights within the framework of national unity
and development (Section 22, Article II, 1987 Constitution). The IPRA amalgamates the
Philippine category of ICCs with the international category of IPs, and is heavily influenced by
both the International Labor Organization (ILO) Convention 169 and the United Nations (UN)
Draft Declaration on the Rights of Indigenous Peoples.

ILO Convention No. 169 is entitled the “Convention Concerning Indigenous and Tribal
Peoples in Independent Countries” (also referred to as the “Indigenous and Tribal Peoples
Convention, 1989”) and was adopted on June 27, 1989. It is based on the Universal
Declaration of Human Rights, the International Covenant on Economic, Social and Cultural
Rights, the International Covenant on Civil and Political Rights, and many other international
instruments on the prevention of discrimination. ILO Convention No. 169 revised the
“Convention Concerning the Protection and Integration of Indigenous and Other Tribal and
Semi-Tribal Populations in Independent Countries” passed on June 26, 1957. Developments in
international law made it appropriate to adopt new international standards on indigenous
peoples “with a view to removing the assimilationist orientation of the earlier standards,” and
“recognizing the aspirations of these peoples to exercise control over their own institutions,
ways of life and economic development.” (Separate Opinion, Puno, J., in Cruz v.
Secretary of Environment and Natural Resources, 347 SCRA 128, 238-241, Dec. 6,
2000, En Banc)

5. Is sovereignty really absolute and all-encompassing? If not, what are its restrictions and limitations?

Held: While sovereignty has traditionally been deemed absolute and all-encompassing
on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to
by the Philippines, expressly or impliedly, as a member of the family of nations. By the doctrine
of incorporation, the country is bound by generally accepted principles of international law,
which are considered to be automatically part of our own laws. One of the oldest and most
fundamental rules in international law is pacta sunt servanda – international agreements must
be performed in good faith. A state which has contracted valid international obligations is
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bound to make in its legislations such modifications as may be necessary to ensure the
fulfillment of the obligations.

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty.
By their voluntary act, nations may surrender some aspects of their state power in exchange for
greater benefits granted by or derived from a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits,
they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties
have been used to record agreements between States concerning such widely diverse matters
as, for example, the lease of naval bases, the sale or cession of territory, the termination of
war, the regulation of conduct of hostilities, the formation of alliances, the regulation of
commercial relations, the settling of claims, the laying down of rules governing conduct in
peace and the establishment of international organizations. The sovereignty of a state
therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the
picture: (1) limitations imposed by the very nature of membership in the family of nations and
(2) limitations imposed by treaty stipulations. (Tanada v. Angara, 272 SCRA 18, May 2,
1997 [Panganiban])

6. Discuss the Status of the Vatican and the Holy See in International Law.

Held: Before the annexation of the Papal States by Italy in 1870, the Pope was the
monarch and he, as the Holy See, was considered a subject of International Law. With the loss
of the Papal States and the limitation of the territory under the Holy See to an area of 108.7
acres, the position of the Holy See in International Law became controversial.

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized
the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also
recognized the right of the Holy See to receive foreign diplomats, to send its own diplomats to
foreign countries, and to enter into treaties according to International Law.

The Lateran Treaty established the statehood of the Vatican City “for the purpose of
assuring to the Holy See absolute and visible independence and of guaranteeing to it
indisputable sovereignty also in the field of international relations.”

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the
statehood is vested in the Holy See or in the Vatican City. Some writers even suggested that
the treaty created two international persons - the Holy See and Vatican City.

The Vatican City fits into none of the established categories of states, and the attribution
to it of “sovereignty” must be made in a sense different from that in which it is applied to other
states. In a community of national states, the Vatican City represents an entity organized not
for political but for ecclesiastical purposes and international objects. Despite its size and object,
the Vatican City has an independent government of its own, with the Pope, who is also head of
the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions,
and the demands of its mission in the world. Indeed, the worldwide interests and activities of
the Vatican City are such as to make it in a sense an “international state.”
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One authority wrote that the recognition of the Vatican City as a state has significant
implication - that it is possible for any entity pursuing objects essentially different from those
pursued by states to be invested with international personality.

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as
the Holy See and not in the name of the Vatican City, one can conclude that in the Pope's own
view, it is the Holy See that is the international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign
sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic
representations with the Philippine government since 1957. This appears to be the universal
practice in international relations. (Holy See, The v. Rosario, Jr., 238 SCRA 524, 533-
534, Dec. 1, 1994, En Banc [Quiason])

7. What are the conditions before the rights of belligerency may be accorded the rebels?

Ans.: As a matter of legal theory, the rebels have to fulfill certain conditions before the
rights of belligerency are accorded them, namely:

1) An organized civil government that has control and direction over the armed struggle
launched by the rebels;
2) Occupation of a substantial portion of the national territory;
3) Seriousness of the struggle, which must be so widespread thereby leaving no doubt
as to the outcome;
4) Willingness on the part of the rebels to observe the rules and customs of war.

8. Discuss the legal consequences that follow recognition of belligerency.

Ans.:

1) Before recognition as such, it is the legitimate government that is responsible for the
acts of the rebels affecting foreign nationals and their properties. Once recognition
is given, the legitimate government may no longer be held responsible for their acts;
responsibility is shifted to the rebel government;
2) The legitimate government, once it recognizes the rebels as belligerents, is bound to
observe the laws and customs of war in conducting the hostilities;
3) From the point of view of third States, the effect of recognition of belligerency is to
put them under obligation to observe strict neutrality and abide by the consequences
arising from that position;
4) On the side of the rebels, recognition of belligerency puts them under responsibility
to third States and to the legitimate government for all their acts which do not
conform to the laws and customs of war. (Salonga & Yap, Public International
Law, 5th Ed. [1992], p. 33)

9. State the occasions when the use of force may be allowed under the UN Charter.
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Ans.: There are only two occasions when the use of force is allowed under the UN
Charter. The first is when it is authorized in pursuance of the enforcement action that may be
decreed by the Security Council under Art. 42. The second is when it is employed in the
exercise of the inherent right of self-defense under conditions prescribed in Art. 51. (Justice
Isagani A. Cruz, in an article entitled “A New World Order” written in his column
“Separate Opinion” published in the March 30, 2003 issue of the Philippines Daily
Inquirer)

10. Is the United States justified in invading Iraq invoking its right to defend itself against an expected
attack by Iraq with the use of its biological and chemical weapons of mass destruction?

Ans.: The United States is invoking its right to defend itself against an expected attack
by Iraq with the use of its biological and chemical weapons of mass destruction. There is no
evidence of such a threat, but Bush is probably invoking the modern view that a state does not
have to wait until the potential enemy fires first. The cowboy from Texas says that outdrawing
the foe who is about to shoot is an act of self-defense.

Art. 51 says, however, that there must first be an “armed attack” before a state can
exercise its inherent right of self-defense, and only until the Security Council, to which the
aggression should be reported, shall have taken the necessary measures to maintain
international peace and security. It was the United States that made the “armed attack” first,
thus becoming the aggressor, not Iraq. Iraq is now not only exercising its inherent right of self-
defense as recognized by the UN Charter. (Justice Isagani A. Cruz, in an article entitled
“A New World Order” written in his column “Separate Opinion” published in the
March 30, 2003 issue of the Philippines Daily Inquirer)

11. Will the subsequent discovery of weapons of mass destruction in Iraq after its invasion by the US
justify the attack initiated by the latter?

Ans.: Even if Iraq’s hidden arsenal is discovered – or actually used – and the United
States is justified in its suspicions, that circumstance will not validate the procedure taken
against Iraq. It is like searching a person without warrant and curing the irregularity with the
discovery of prohibited drugs in his possession. The process cannot be reversed. The warrant
must first be issued before the search and seizure can be made.

The American invasion was made without permission from the Security Council as
required by the UN Charter. Any subsequent discovery of the prohibited biological and chemical
weapons will not retroactively legalize that invasion, which was, legally speaking, null and void
ab initio. (Justice Isagani A. Cruz, in an article entitled “A New World Order” written
in his column “Separate Opinion” published in the March 30, 2003 issue of the
Philippines Daily Inquirer)

12. What Crimes come within the jurisdiction of the Rome Statute of the International Criminal Court?

Ans.: 1. The jurisdiction of the Court shall be limited to the most serious crimes of
concern to the international community as a whole. The Court has jurisdiction in accordance
with this Statute with respect to the following crimes:

(a) The crime of genocide;

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(b) Crimes against humanity;

(c) War crimes;
(d) The crime of aggression.

2. The Court shall exercise jurisdiction over the crime of aggression once a provision is
adopted in accordance with articles 121 and 123 defining the crime and setting out the
conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a
provision shall be consistent with the relevant provisions of the Charter of the United Nations.
(Art. 5, Rome Statute of the International Criminal Court)

13. What is Genocide?

Ans.: For the purpose of this Statute, “GENOCIDE” means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, such as:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
(Art. 6, Rome Statute of the International Criminal Court)

14. What are Crimes against Humanity?

Ans.: 1. For the purpose of this Statute, “CRIME AGAINST HUMANITY” means any of
the following acts when committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack:

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization,
or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that
are universally recognized as impermissible under international law, in connection
with any act referred to in this paragraph or any crime within the jurisdiction of the
Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health.
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2. For the purpose of paragraph 1:

(a) “Attack directed against any civilian population” means a course of conduct involving
the multiple commission of acts referred to in paragraph 1 against any civilian
population, pursuant to or in furtherance of a State or organizational policy to
commit such attack;
(b) “Extermination” includes the intentional infliction of conditions of life, inter alia the
deprivation of access to food and medicine, calculated to bring about the destruction
of part of a population;
(c) “Enslavement” means the exercise of any or all of the powers attaching to the right
of ownership over a person and includes the exercise of such power in the course of
trafficking in persons, in particular women and children;
(d) “Deportation or forcible transfer of population” means forced displacement of the
persons concerned by expulsion or other coercive acts from the area in which they
are lawfully present, without grounds permitted under international law;
(e) “Torture” means the intentional infliction of severe pain or suffering, whether
physical or mental, upon a person in the custody or under the control of the
accused; except that torture shall not include pain or suffering arising only from,
inherent in or incidental to lawful, sanctions;
(f) “Forced pregnancy” means the unlawful confinement, of a woman forcibly made
pregnant, with the intent of affecting the ethnic composition of any population or
carrying out other grave violations of international law. This definition shall not in
any way be interpreted as affecting national laws relating to pregnancy;
(g) “Persecution” means the intentional and severe deprivation of fundamental rights
contrary to international law by reason of the identity of the group or collectivity;
(h) “The crime of apartheid” means inhumane acts of a character similar to those
referred to in paragraph 1, committed in the context of an institutionalized regime of
systematic oppression and domination by one racial group over any other racial
group or groups and committed with the intention of maintaining that regime;
(i) “Enforced disappearance of persons” means the arrest, detention or abduction of
persons by, or with the authorization, support or acquiescence of, a State or a
political organization, followed by a refusal to acknowledge the deprivation of
freedom or to give information on the fate or whereabouts of those persons, with
the intention of removing them from the protection of the law for a prolonged period
of time.

3. For the purpose of this Statute, it is understood that the term “gender” refers to the
two sexes, male and female, within the context of society. The term “gender” does not indicate
any meaning different from the above.
(Art. 7, Rome Statute of the International Criminal Court)

15. What are international organizations? Discuss their nature.

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Held: INTERNATIONAL ORGANIZATIONS are institutions constituted by international

agreement between two or more States to accomplish common goals. The legal personality of
these international organizations has been recognized not only in municipal law, but in
international law as well.

Permanent international commissions and administrative bodies have been created by

the agreement of a considerable number of States for a variety of international purposes,
economic or social and mainly non-political. In so far as they are autonomous and beyond the
control of any one State, they have distinct juridical personality independent of the municipal
law of the State where they are situated. As such, they are deemed to possess a species of
international personality of their own. (SEAFDEC-AQD v. NLRC, 206 SCRA 283, Feb. 14,
1992)

16. Discuss the basic immunities of international organizations and the reason for affording them such
immunities.

Held: One of the basic immunities of an international organization is immunity from

local jurisdiction, i.e., that it is immune from legal writs and processes issued by the tribunals of
the country where it is found. The obvious reason for this is that the subjection of such an
organization to the authority of the local courts would afford a convenient medium through
which the host government may interfere in their operations or even influence or control its
policies and decisions; besides, such subjection to local jurisdiction would impair the capacity of
such body to discharge its responsibilities impartially on behalf of its member-states.
(SEAFDEC-AQD v. NLRC, 206 SCRA 283, Feb. 4, 1992)

17. Is the determination of the executive branch of the government that a state or instrumentality is
entitled to sovereign or diplomatic immunity subject to judicial review, or is it a political question
and therefore, conclusive upon the courts?

Held: The issue of petitioner’s (The Holy See) non-suability can be determined by the
trial court without going to trial in light of the pleadings x x x. Besides, the privilege of
sovereign immunity in this case was sufficiently established by the Memorandum and
Certification of the Department of Foreign Affairs. As the department tasked with the conduct
of the Philippines’ foreign relations, the Department of Foreign Affairs has formally intervened in
this case and officially certified that the Embassy of the Holy See is a duly accredited diplomatic
mission to the Republic of the Philippines exempt from local jurisdiction and entitled to all the
rights, privileges and immunities of a diplomatic mission or embassy in this country. The
determination of the executive arm of government that a state or instrumentality is entitled to
sovereign or diplomatic immunity is a political question that is conclusive upon the courts.
Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of
the courts to accept this claim so as not to embarrass the executive arm of the government in
conducting the country’s foreign relations. As in International Catholic Migration Commission
and in World Health Organization, we abide by the certification of the Department of Foreign
Affairs. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc
[Quiason])

18. Should Courts blindly adhere and take on its face the communication from the Department of Foreign
Affairs (DFA) that a person is covered by any immunity?
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Held: Courts cannot blindly adhere and take on its face the communication from the
DFA that petitioner is covered by any immunity. The DFA’s determination that a certain person
is covered by immunity is only preliminary which has no binding effect in courts. In receiving
ex parte the DFA’s advice and in motu proprio dismissing the two criminal cases without notice
to the prosecution, the latter’s right to due process was violated. It should be noted that due
process is a right of the accused as much as it is of the prosecution. The needed inquiry in
what capacity petitioner was acting at the time of the alleged utterances requires for its
resolution evidentiary basis that has yet to be presented at the proper time. At any rate, it has
been ruled that the mere invocation of the immunity clause does not ipso facto result in the
dropping of the charges. (Liang v. People, 323 SCRA 692, Jan. 28, 2000, 1 st Div.
[Ynares-Santiago])

19. Discuss the basis of the argument that a determination by the DFA that a person is entitled to
diplomatic immunity is a political question binding on the courts.

Held: Petitioner’s argument that a determination by the Department of Foreign Affairs

that he is entitled to diplomatic immunity is a political question binding on the courts, is
anchored on the ruling enunciated in the case of WHO, et al. v. Aquino, et al., viz:

“It is a recognized principle of international law and under our system of

separation of powers that diplomatic immunity is essentially a political question and
courts should refuse to look beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is recognized and affirmed by
the executive branch of the government as in the case at bar, it is then the duty of the
courts to accept the claim of immunity upon appropriate suggestion by the principal law
officer of the government, the Solicitor General in this case, or other officer acting under
his direction. Hence, in adherence to the settled principle that courts may not so
exercise their jurisdiction by seizure and detention of property, as to embarrass the
executive arm of the government in conducting foreign relations, it is accepted doctrine
that in such cases the judicial department of the government follows the action of the
political branch and will not embarrass the latter by assuming an antagonistic
jurisdiction.”

This ruling was reiterated in the subsequent cases of International Catholic Migration
Commission v. Calleja; The Holy See v. Rosario, Jr.; Lasco v. United Nations; and DFA v. NLRC.

The case of WHO v. Aquino involved the search and seizure of personal effects of
petitioner Leonce Verstuyft, an official of the WHO. Verstuyft was certified to be entitled to
diplomatic immunity pursuant to the Host Agreement executed between the Philippines and the
WHO.

ICMC v. Calleja concerned a petition for certification election filed against ICMC and
IRRI. As international organizations, ICMC and IRRI were declared to possess diplomatic
immunity. It was held that they are not subject to local jurisdictions. It was ruled that the
exercise of jurisdiction by the Department of Labor over the case would defeat the very purpose
of immunity, which is to shield the affairs of international organizations from political pressure
or control by the host country and to ensure the unhampered performance of their functions.
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Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the Holy
See, as represented by the Papal Nuncio. The Court upheld the petitioner’s defense of
sovereign immunity. It ruled that where a diplomatic envoy is granted immunity from the civil
and administrative jurisdiction of the receiving state over any real action relating to private
immovable property situated in the territory of the receiving state, which the envoy holds on
behalf of the sending state for the purposes of the mission, with all the more reason should
immunity be recognized as regards the sovereign itself, which in that case is the Holy See.

In Lasco v. United Nations, the United Nations Revolving Fund for Natural Resources
Exploration was sued before the NLRC for illegal dismissal. The Court again upheld the doctrine
of diplomatic immunity invoked by the Fund.

Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian
Development Bank. Pursuant to its Charter and the Headquarters Agreement, the diplomatic
immunity of the Asian Development Bank was recognized by the Court.

It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by
international organizations. Petitioner asserts that he is entitled to the same diplomatic
immunity and he cannot be prosecuted for acts allegedly done in the exercise of his official
functions.

The term “INTERNATIONAL ORGANIZATIONS” –

“is generally used to describe an organization set up by agreement between two

or more states. Under contemporary international law, such organizations are endowed
with some degree of international legal personality such that they are capable of
exercising specific rights, duties and powers. They are organized mainly as a means for
conducting general international business in which the member states have an interest.”
(ICMC v. Calleja)

INTERNATIONAL PUBLIC OFFICIALS have been defined as:

“x x x persons who, on the basis of an international treaty constituting a

particular international community, are appointed by this international community, or by
an organ of it, and are under its control to exercise, in a continuous way, functions in
the interest of this particular international community, and who are subject to a
particular personal status.”

“SPECIALIZED AGENCIES” are international organizations having functions in particular

fields, such as posts, telecommunications, railways, canals, rivers, sea transport, civil aviation,
meteorology, atomic energy, finance, trade, education and culture, health and refugees.
(Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865,
Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

20. What are the differences between Diplomatic and International Immunities? Discuss.

Held: There are three major differences between diplomatic and international
immunities. Firstly, one of the recognized limitations of diplomatic immunity is that members of
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the diplomatic staff of a mission may be appointed from among the nationals of the receiving
State only with the express consent of that State; apart from inviolability and immunity from
jurisdiction in respect of official acts performed in the exercise of their functions, nationals enjoy
only such privileges and immunities as may be granted by the receiving State. International
immunities may be specially important in relation to the State of which the official is a national.
Secondly, the immunity of a diplomatic agent from the jurisdiction of the receiving State does
not exempt him from the jurisdiction of the sending State; in the case of international
immunities there is no sending State and an equivalent for the jurisdiction of the Sending State
therefore has to be found either in waiver of immunity or in some international disciplinary or
judicial procedure. Thirdly, the effective sanctions which secure respect for diplomatic immunity
are the principle of reciprocity and the danger of retaliation by the aggrieved State;
international immunities enjoy no similar protection. (Concurring Opinion, Puno J., in
Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div. [Motion
for Reconsideration])

21. Discuss the immunity of International Officials.

Held: The generally accepted principles which are now regarded as the foundation of
international immunities are contained in the ILO Memorandum, which reduced them in three
basic propositions, namely: (1) that international institutions should have a status which
protects them against control or interference by any one government in the performance of
functions for the effective discharge of which they are responsible to democratically constituted
international bodies in which all the nations concerned are represented; (2) that no country
should derive any financial advantage by levying fiscal charges on common international funds;
and (3) that the international organization should, as a collectivity of States Members, be
accorded the facilities for the conduct of its official business customarily extended to each other
by its individual member States. The thinking underlying these propositions is essentially
institutional in character. It is not concerned with the status, dignity or privileges of individuals,
but with the elements of functional independence necessary to free international institutions
from national control and to enable them to discharge their responsibilities impartially on behalf
of all their members. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v.
People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

22. What are the three methods of granting privileges and immunities to the personnel of international
organizations? Under what category does the Asian Development Bank and its Personnel fall?

Held: Positive international law has devised three methods of granting privileges and
immunities to the personnel of international organizations. The first is by simple conventional
stipulation, as was the case in the Hague Conventions of 1899 and 1907. The second is by
internal legislation whereby the government of a state, upon whose territory the international
organization is to carry out its functions, recognizes the international character of the
organization and grants, by unilateral measures, certain privileges and immunities to better
assure the successful functioning of the organization and its personnel. In this situation, treaty
obligation for the state in question to grant concessions is lacking. Such was the case with the
Central Commission of the Rhine at Strasbourg and the International Institute of Agriculture at
Rome. The third is a combination of the first two. In this third method, one finds a
conventional obligation to recognize a certain status of an international organization and its
personnel, but the status is described in broad and general terms. The specific definition and
 P a g e | 13

application of those general terms are determined by an accord between the organization itself
and the state wherein it is located. This is the case with the League of Nations, the Permanent
Court of Justice, and the United Nations.

The Asian Development Bank and its Personnel fall under this third category.

There is a connection between diplomatic privileges and immunities and those extended
to international officials. The connection consists in the granting, by contractual provisions, of
the relatively well-established body of diplomatic privileges and immunities to international
functionaries. This connection is purely historical. Both types of officials find the basis of their
special status in the necessity of retaining functional independence and freedom from
interference by the state of residence. However, the legal relationship between an ambassador
and the state to which he is accredited is entirely different from the relationship between the
international official and those states upon whose territory he might carry out its functions.

The privileges and immunities of diplomats and those of international officials rest upon
different legal foundations. Whereas those immunities awarded to diplomatic agents are a right
of the sending state based on customary international law, those granted to international
officials are based on treaty or conventional law. Customary international law places no
obligation on a state to recognize a special status of an international official or to grant him
jurisdictional immunities. Such an obligation can only result from specific treaty provisions.

The special status of the diplomatic envoy is regulated by the principle of reciprocity by
which a state is free to treat the envoy of another state as its envoys are treated by that state.
The juridical basis of the diplomat’s position is firmly established in customary international law.
The diplomatic envoy is appointed by the sending State but it has to make certain that the
agreement of the receiving State has been given for the person it proposes to accredit as head
of the mission to that State (Article 4, Vienna Convention on Diplomatic Relations).

The staff personnel of an international organization – the international officials – assume

a different position as regards their special status. They are appointed or elected to their
position by the organization itself, or by a competent organ of it; they are responsible to the
organization and their official acts are imputed to it. The juridical basis of their special position
is found in conventional law, since there is no established basis of usage or custom in the case
of the international official. Moreover, the relationship between an international organization
and a member-state does not admit of the principle of reciprocity, for it is contradictory to the
basic principle of equality of states. An international organization carries out functions in the
interest of every member state equally. The international official does not carry out his
functions in the interest of any state, but in serving the organization he serves, indirectly, each
state equally. He cannot be, legally, the object of the operation of the principle of reciprocity
between states under such circumstances. It is contrary to the principle of equality of states for
one state member of an international organization to assert a capacity to extract special
privileges for its nationals from other member states on the basis of a status awarded by it to
an international organization. It is upon this principle of sovereign equality that international
organizations are built.

It follows from this same legal circumstance that a state called upon to admit an official
of an international organization does not have a capacity to declare him persona non grata.
 P a g e | 14

The functions of the diplomat and those of the international official are quite different.
Those of the diplomat are functions in the national interest. The task of the ambassador is to
represent his state, and its specific interest, at the capital of another state. The functions of the
international official are carried out in the international interest. He does not represent a state
or the interest of any specific state. He does not usually “represent” the organization in the
true sense of that term. His functions normally are administrative, although they may be
judicial or executive, but they are rarely political or functions of representation, such as those of
the diplomat.

There is a difference of degree as well as of kind. The interruption of the activities of a

diplomatic agent is likely to produce serious harm to the purposes for which his immunities
were granted. But the interruption of the activities of the international official does not, usually,
cause serious dislocation of the functions of an international secretariat.

On the other hand, they are similar in the sense that acts performed in an official
capacity by either a diplomatic envoy or an international official are not attributable to him as
an individual but are imputed to the entity he represents, the state in the case of the diplomat,
and the organization in the case of the international official. (Concurring Opinion, Puno J.,
in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div.
[Motion for Reconsideration])

23. What is the reason behind the current tendency of reducing privileges and immunities of personnel of
international organizations to a minimum?

Held: Looking back over 150 years of privileges and immunities granted to the
personnel of international organizations, it is clear that they were accorded a wide scope of
protection in the exercise of their functions – The Rhine Treaty of 1804 between the German
Empire and France which provided “all the rights of neutrality” to persons employed in
regulating navigation in the international interest; The Treaty of Berlin of 1878 which granted
the European Commission of the Danube “complete independence of territorial authorities” in
the exercise of its functions; The Convention of the League which granted “diplomatic
immunities and privileges.” Today, the age of the United Nations finds the scope of protection
narrowed. The current tendency is to reduce privileges and immunities of personnel of
international organizations to a minimum. The tendency cannot be considered as a lowering of
the standard but rather as a recognition that the problem on the privileges and immunities of
international officials is new. The solution to the problem presented by the extension of
diplomatic prerogatives to international functionaries lies in the general reduction of the special
position of both types of agents in that the special status of each agent is granted in the
interest of function. The wide grant of diplomatic prerogatives was curtailed because of
practical necessity and because the proper functioning of the organization did not require such
extensive immunity for its officials. While the current direction of the law seems to be to
narrow the prerogatives of the personnel of international organizations, the reverse is true with
respect to the prerogatives of the organizations themselves, considered as legal entities.
Historically, states have been more generous in granting privileges and immunities to
organizations than they have to the personnel of these organizations.
 P a g e | 15

Thus, Section 2 of the General Convention on the Privileges and Immunities of the
United Nations states that the UN shall enjoy immunity from every form of legal process except
insofar as in any particular case it has expressly waived its immunity. Section 4 of the
Convention on the Privileges and Immunities of the Specialized Agencies likewise provides that
the specialized agencies shall enjoy immunity from every form of legal process subject to the
same exception. Finally, Article 50[1] of the ADB Charter and Section 5 of the Headquarters
Agreement similarly provide that the bank shall enjoy immunity from every form of legal
process, except in cases arising out of or in connection with the exercise of its powers to
borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities.

The phrase “immunity from every form of legal process” as used in the UN General
Convention has been interpreted to mean absolute immunity from a state’s jurisdiction to
adjudicate or enforce its law by legal process, and it is said that states have not sought to
restrict that immunity of the United Nations by interpretation or amendment. Similar provisions
are contained in the Special Agencies Convention as well as in the ADB Charter and
Headquarters Agreement. These organizations were accorded privileges and immunities in their
charters by language similar to that applicable to the United Nations. It is clear therefore that
these organizations were intended to have similar privileges and immunities. From this, it can
be easily deduced that international organizations enjoy absolute immunity similar to the
diplomatic prerogatives granted to diplomatic envoys.

Even in the United States this seems to be the prevailing rule x x x.

On the other hand, international officials are governed by a different rule. Section 18[a]
of the General Convention on Privileges and Immunities of the United Nations states that
officials of the United Nations shall be immune from legal process in respect of words spoken or
written and all acts performed by them in their official capacity. The Convention on Specialized
Agencies carries exactly the same provision. The Charter of the ADB provides under Article
55[i] that officers and employees of the bank shall be immune from legal process with respect
to acts performed by them in their official capacity except when the Bank waives immunity.
Section 45 [a] of the ADB Headquarters Agreement accords the same immunity to the officers
and staff of the bank. There can be no dispute that international officials are entitled to
immunity only with respect to acts performed in their official capacity, unlike international
organizations which enjoy absolute immunity.

Clearly, the most important immunity to an international official, in the discharge of his
international functions, is immunity from local jurisdiction. There is no argument in doctrine or
practice with the principle that an international official is independent of the jurisdiction of the
local authorities for his official acts. Those acts are not his, but are imputed to the organization,
and without waiver the local courts cannot hold him liable for them. In strict law, it would seem
that even the organization itself could have no right to waive an official’s immunity for his
official acts. This permits local authorities to assume jurisdiction over an individual for an act
which is not, in the wider sense of the term, his act al all. It is the organization itself, as a
juristic person, which should waive its own immunity and appear in court, not the individual,
except insofar as he appears in the name of the organization. Provisions for immunity from
jurisdiction for official acts appear, aside from the aforementioned treatises, in the constitution
of most modern international organizations. The acceptance of the principle is sufficiently
widespread to be regarded as declaratory of international law. (Concurring Opinion, Puno
 P a g e | 16

J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div.
[Motion for Reconsideration])

24. What is the status of the international official with respect to his private acts?

Held: Section 18 [a] of the General Convention has been interpreted to mean that
officials of the specified categories are denied immunity from local jurisdiction for acts of their
private life and empowers local courts to assume jurisdiction in such cases without the necessity
of waiver. It has earlier been mentioned that historically, international officials were granted
diplomatic privileges and immunities and were thus considered immune for both private and
official acts. In practice, this wide grant of diplomatic prerogatives was curtailed because of
practical necessity and because the proper functioning of the organization did not require such
exclusive immunity for its officials. Thus, the current status of the law does not maintain that
states grant jurisdictional immunity to international officials for acts of their private lives. This
much is explicit from the charter and Headquarters Agreement of the ADB which contain
substantially similar provisions to that of the General Convention. (Concurring Opinion, Puno
J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div.
[Motion for Reconsideration])

25. Who is competent to determine whether a given act of international officials and representatives is
private or official?

Held: In connection with this question, the current tendency to narrow the scope of
privileges ad immunities of international officials and representatives is most apparent. Prior to
the regime of the United Nations, the determination of this question rested with the
organization and its decision was final. By the new formula, the state itself tends to assume
this competence. If the organization is dissatisfied with the decision, under the provisions of
the General Convention of the United Nations, or the Special Convention for Specialized
Agencies, the Swiss Arrangement, and other current dominant instruments, it may appeal to an
international tribunal by procedures outlined in these instruments. Thus, the state assumes this
competence in the first instance. It means that, if a local court assumes jurisdiction over an act
without the necessity of waiver from the organization, the determination of the nature of the
act is made at the national level.

It appears that the inclination is to place the competence to determine the nature of an
act as private or official in the courts of the state concerned. That the practical notion seems to
be to leave to the local courts determination of whether or not a given act is official or private
does not necessarily mean that such determination is final. If the United Nations questions the
decision of the Court, it may invoke proceedings for settlement of disputes between the
organization and the member states as provided in Section 30 of the General Convention.
Thus, the decision as to whether a given act is official or private is made by the national courts
in the first instance, but it may be subjected to review in the international level if questioned by
the United Nations.

Under the Third Restatement of the Law, it is suggested that since an international
official does not enjoy personal inviolability from arrest or detention and has immunity only with
respect to official acts, he is subject to judicial or administrative process and must claim his
 P a g e | 17

immunity in the proceedings by showing that the act in question was an official act. Whether
an act was performed in the individual’s official capacity is a question for the court in which a
proceeding is brought, but if the international organization disputes the court’s finding, the
dispute between that organization and the state of the forum is to be resolved by negotiation,
by an agreed mode of settlement or by advisory opinion of the International Court of Justice.

Recognizing the difficulty that by reason of the right of a national court to assume
jurisdiction over private acts without a waiver of immunity, the determination of the official or
private character of a particular act may pass from international to national, Jenks proposes
three ways of avoiding difficulty in the matter. The first would be for a municipal court before
which a question of the official or private character of a particular act arose to accept as
conclusive in the matter any claim by the international organization that the act was official in
character, such a claim being regarded as equivalent to a governmental claim that a particular
act is an act of State. Such a claim would be in effect a claim by the organization that the
proceedings against the official were a violation of the jurisdictional immunity of the
organization itself which is unqualified and therefore not subject to delimitation in the discretion
of the municipal court. The second would be for a court to accept as conclusive in the matter a
statement by the executive government of the country where the matter arises certifying the
official character of the act. The third would be to have recourse to the procedure of
international arbitration. Jenks opines that it is possible that none of these three solutions
would be applicable in all cases; the first might be readily acceptable only in the clearest cases
and the second is available only if the executive government of the country where the matter
arises concurs in the view of the international organization concerning the official character of
the act. However, he surmises that taken in combination, these various possibilities may afford
the elements of a solution to the problem. (Concurring Opinion, Puno J., in Jeffrey Liang
[Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for
Reconsideration])

26. Discuss the extent of the international official’s immunity for official acts.

Held: One final point. The international official’s immunity for official acts may be
likened to a consular official’s immunity from arrest, detention, and criminal or civil process
which is not absolute but applies only to acts or omissions in the performance of his official
functions, in the absence of special agreement. Since a consular officer is not immune from all
legal processes, he must respond to any process and plead and prove immunity on the ground
that the act or omission underlying the process was in the performance of his official functions.
The issue has not been authoritatively determined, but apparently the burden is on the consular
official to prove his status as well as his exemption in the circumstances. In the United States,
the US Department of State generally has left it to the courts to determine whether a particular
act was within a consular officer’s official duties. (Concurring Opinion, Puno J., in Jeffrey
Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for
Reconsideration])

27. Discuss the two conflicting concepts of sovereign immunity from suit.

Held: There are two conflicting concepts of sovereign immunity, each widely held and
firmly established. According to the classical or absolute theory, a sovereign cannot, without its
 P a g e | 18

consent, be made a respondent in the courts of another sovereign. According to the newer or
restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or
acts jure imperii of a state, but not with regard to private acts or acts jure gestionis.

Some states passed legislation to serve as guidelines for the executive or judicial
determination when an act may be considered as jure gestionis. The United States passed the
Foreign Sovereign Immunities Act of 1976, which defines a commercial activity as “either a
regular course of commercial conduct or a particular commercial transaction or act.”
Furthermore, the law declared that the “commercial character of the activity shall be
determined by reference to the nature of the course of conduct or particular transaction or act,
rather than by reference to its purpose.” The Canadian Parliament enacted in 1982 an Act to
Provide For State Immunity in Canadian Courts. The Act defines a “commercial activity” as any
particular transaction, act or conduct or any regular course of conduct that by reason of its
nature, is of a “commercial character.”

The restrictive theory, which is intended to be a solution to the host of problems

involving the issue of sovereign immunity, has created problems of its own. Legal treatises and
the decisions in countries which follow the restrictive theory have difficulty in characterizing
whether a contract of a sovereign state with a private party is an act jure gestionis or an act
jure imperii.

The restrictive theory came about because of the entry of sovereign states into purely
commercial activities remotely connected with the discharge of governmental functions. This is
particularly true with respect to the Communist states which took control of nationalized
business activities and international trading. (Holy See, The v. Rosario, Jr., 238 SCRA 524,
Dec. 1, 1994, En Banc [Quiason])

28. Cite some transactions by a foreign state with private parties that were considered by the Supreme
Court as acts “jure imperii” and acts “jure gestionis.”

Held: This Court has considered the following transactions by a foreign state with
private parties as acts jure imperii: (1) the lease by a foreign government of apartment
buildings for use of its military officers; (2) the conduct of public bidding for the repair of a
wharf at a United States Naval Station; and (3) the change of employment status of base
employees.

On the other hand, this Court has considered the following transactions by a foreign
state with private parties as acts jure gestionis: (1) the hiring of a cook in the recreation center,
consisting of three restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at
the John Hay Air Station in Baguio City, to cater to American servicemen and the general public;
and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles City. The
operation of the restaurants and other facilities open to the general public is undoubtedly for
profit as a commercial and not a governmental activity. By entering into the employment
contract with the cook in the discharge of its proprietary function, the United States
government impliedly divested itself of it sovereign immunity from suit. (Holy See, The v.
Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])
 P a g e | 19

29. What should be the guidelines to determine what activities and transactions shall be considered
“commercial” and as constituting acts “jure gestionis” by a foreign state?

Held: In the absence of legislation defining what activities and transactions shall be
considered “commercial” and as constituting acts jure gestionis, we have to come out with our
own guidelines, tentative they may be.

Certainly, the mere entering into a contract by a foreign state with a private party
cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical
question is whether the foreign state is engaged in the activity in the regular course of
business. If the foreign state is not engaged regularly in a business or trade, the particular act
or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity,
or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain
or profit.

As held in United States of America v. Guinto:

“There is no question that the United States of America, like any other state, will
be deemed to have impliedly waived its non-suability if it has entered into a contract in
its proprietary or private capacity. It is only when the contract involves its sovereign or
governmental capacity that no such waiver may be implied.”
(Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

30. May the Holy See be sued for selling the land it acquired by donation from the Archdiocese of Manila
to be made site of its mission or the Apostolic Nunciature in the Philippines but which purpose cannot
be accomplished as the land was occupied by squatters who refused to vacate the area?

Held: In the case at bench, if petitioner (Holy See) has bought and sold lands in the
ordinary course of a real estate business, surely the said transaction can be categorized as an
act jure gestionis. However, petitioner has denied that the acquisition and subsequent disposal
of Lot 5-A were made for profit but claimed that it acquired said property for the site of its
mission or the Apostolic Nunciature in the Philippines. x x x

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The
donation was made not for commercial purpose, but for the use of petitioner to construct
thereon the official place of residence of the Papal Nuncio. The right of a foreign sovereign to
acquire property, real or personal, in a receiving state, necessary for the creation and
maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on
Diplomatic Relations. This treaty was concurred in by the Philippine Senate and entered into
force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil
and administrative jurisdiction of the receiving state over any real action relating to private
immovable property situated in the territory of the receiving state which the envoy holds on
behalf of the sending state for the purposes of the mission. If this immunity is provided for a
diplomatic envoy, with all the more reason should immunity be recognized as regards the
sovereign itself, which in this case is the Holy See.
 P a g e | 20

The decision to transfer the property and the subsequent disposal thereof are likewise
clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain. It
merely wanted to dispose off the same because the squatters living thereon made it almost
impossible for petitioner to use it for the purpose of the donation. (Holy See, The v. Rosario,
Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

31. How is sovereign or diplomatic immunity pleaded in a foreign court?

Held: In Public International Law, when a state or international agency wishes to plead
sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the state
where it is sued to convey to the court that said defendant is entitled to immunity.

In the United States, the procedure followed is the process of “suggestion,” where the
foreign state or the international organization sued in an American court requests the Secretary
of State to make a determination as to whether it is entitled to immunity. If the Secretary of
State finds that the defendant is immune from suit, he, in turn, asks the Attorney General to
submit to the court a “suggestion” that the defendant is entitled to immunity. In England, a
similar procedure is followed, only the Foreign Office issues a certification to that effect instead
of submitting a “suggestion”.

In the Philippines, the practice is for the foreign government or the international
organization to first secure an executive endorsement of its claim of sovereign or diplomatic
immunity. But how the Philippine Foreign Office conveys its endorsement to the courts varies.
In International Catholic Migration Commission v. Calleja, the Secretary of Foreign Affairs just
sent a letter directly to the Secretary of Labor and Employment, informing the latter that the
respondent-employer could not be sued because it enjoyed diplomatic immunity. In World
Health Organization v. Aquino, the Secretary of Foreign Affairs sent the trial court a telegram to
that effect. In Baer v. Tizon, the U.S. Embassy asked the Secretary of Foreign Affairs to
request the Solicitor General to make, in behalf of the commander of the United States Naval
Base at Olongapo City, Zambales, a “suggestion” to respondent Judge. The Solicitor General
embodied the “suggestion” in a Manifestation and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal
Affairs moved with this Court to be allowed to intervene on the side of petitioner. The Court
allowed the said Department to file its memorandum in support of petitioner’s claim of
sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local
courts by the respondents through their private counsels. In cases where the foreign states
bypass the Foreign Office, the courts can inquire into the facts and make their own
determination as to the nature of the acts and transactions involved. (Holy See, The v.
Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

32. What is extradition? To whom does it apply?

Held: It is the “process by which persons charged with or convicted of crime against
the law of a State and found in a foreign State are returned by the latter to the former for trial
or punishment. It applies to those who are merely charged with an offense but have not been
 P a g e | 21

brought to trial; to those who have been tried and convicted and have subsequently escaped
from custody; and those who have been convicted in absentia. It does not apply to persons
merely suspected of having committed an offense but against whom no charge has been laid or
to a person whose presence is desired as a witness or for obtaining or enforcing a civil
judgment.” (Weston, Falk, D' Amato, International Law and Order, 2nd ed., p. 630
[1990], cited in Dissenting Opinion, Puno, J., in Secretary of Justice v. Hon. Ralph C.
Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc)

33. Discuss the basis for allowing extradition.

Held: Extradition was first practiced by the Egyptians, Chinese, Chaldeans and Assyro-
Babylonians but their basis for allowing extradition was unclear. Sometimes, it was granted due
to pacts; at other times, due to plain good will. The classical commentators on international
law thus focused their early views on the nature of the duty to surrender an extraditee ---
whether the duty is legal or moral in character. Grotius and Vattel led the school of thought
that international law imposed a legal duty called civitas maxima to extradite criminals. In
sharp contrast, Puffendorf and Billot led the school of thought that the so-called duty was but
an "imperfect obligation which could become enforceable only by a contract or agreement
between states.

Modern nations tilted towards the view of Puffendorf and Billot that under international
law there is no duty to extradite in the absence of treaty, whether bilateral or multilateral.
Thus, the US Supreme Court in US v. Rauscher, held: “x x x it is only in modern times that the
nations of the earth have imposed upon themselves the obligation of delivering up these
fugitives from justice to the states where their crimes were committed, for trial and
punishment. This has been done generally by treaties x x x. Prior to these treaties, and apart
from them there was no well-defined obligation on one country to deliver up such fugitives to
another; and though such delivery was often made it was upon the principle of comity x x x.”
(Dissenting Opinion, Puno, J., in Secretary of Justice v. Hon. Ralph C. Lantion, G.R.
No. 139465, Jan. 18, 2000, En Banc)

34. What is the nature of an extradition proceeding? Is it akin to a criminal proceeding?

Held: [A]n extradition proceeding is sui generis. It is not a criminal proceeding which
will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin
with, the process of extradition does not involve the determination of the guilt or innocence of
an accused. His guilt or innocence will be adjudged in the court of the state where he will be
extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt
or innocence of an accused cannot be invoked by an extraditee especially by one whose
extradition papers are still undergoing evaluation. As held by the US Supreme Court in United
States v. Galanis:

“An extradition proceeding is not a criminal prosecution, and the constitutional

safeguards that accompany a criminal trial in this country do not shield an accused from
extradition pursuant to a valid treaty.” (Wiehl, Extradition Law at the Crossroads: The
Trend Toward Extending Greater Constitutional Procedural Protections To Fugitives
 P a g e | 22

Fighting Extradition from the United States, 19 Michigan Journal of International Law
729, 741 [1998], citing United States v. Galanis, 429 F. Supp. 1215 [D. Conn. 1977])

There are other differences between an extradition proceeding and a criminal proceeding. An
extradition proceeding is summary in nature while criminal proceedings involve a full-blown
trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition
proceeding allow admission of evidence under less stringent standards. In terms of the
quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for
conviction while a fugitive may be ordered extradited “upon showing of the existence of a prima
facie case.” Finally, unlike in a criminal case where judgment becomes executory upon being
rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable
but the President has the final discretion to extradite him. The United States adheres to a
similar practice whereby the Secretary of State exercises wide discretion in balancing the
equities of the case and the demands of the nation's foreign relations before making the
ultimate decision to extradite.

As an extradition proceeding is not criminal in character and the evaluation stage in an

extradition proceeding is not akin to a preliminary investigation, the due process safeguards in
the latter do not necessarily apply to the former. This we hold for the procedural due process
required by a given set of circumstances “must begin with a determination of the precise nature
of the government function involved as well as the private interest that has been affected by
governmental action.” The concept of due process is flexible for “not all situations calling for
procedural safeguards call for the same kind of procedure.” (Secretary of Justice v. Hon.
Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno])

35. Will the retroactive application of an extradition treaty violate the constitutional prohibition against
"ex post facto" laws?

Held: The prohibition against ex post facto law applies only to criminal legislation which
affects the substantial rights of the accused. This being so, there is no merit in the contention
that the ruling sustaining an extradition treaty’s retroactive application violates the
constitutional prohibition against ex post facto laws. The treaty is neither a piece of criminal
legislation nor a criminal procedural statute. (Wright v. CA, 235 SCRA 341, Aug. 15, 1994
[Kapunan])

36. Discuss the rules in the interpretation of extradition treaties.

Held: [A]ll treaties, including the RP-US Extradition Treaty, should be interpreted in
light of their intent. Nothing less than the Vienna Convention on the Law of Treaties to which
the Philippines is a signatory provides that “a treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their context
and in light of its object and purpose.” x x x. It cannot be gainsaid that today, countries like
the Philippines forge extradition treaties to arrest the dramatic rise of international and
transnational crimes like terrorism and drug trafficking. Extradition treaties provide the
assurance that the punishment of these crimes will not be frustrated by the frontiers of
territorial sovereignty. Implicit in the treaties should be the unbending commitment that the
perpetrators of these crimes will not be coddled by any signatory state.
 P a g e | 23

It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will
minimize if not prevent the escape of extraditees from the long arm of the law and expedite
their trial. x x x

[A]n equally compelling factor to consider is the understanding of the parties themselves
to the RP-US Extradition Treaty as well as the general interpretation of the issue in question by
other countries with similar treaties with the Philippines. The rule is recognized that while
courts have the power to interpret treaties, the meaning given them by the departments of
government particularly charged with their negotiation and enforcement is accorded great
weight. The reason for the rule is laid down in Santos III v. Northwest Orient Airlines, et al.,
where we stressed that a treaty is a joint executive-legislative act which enjoys the presumption
that “it was first carefully studied and determined to be constitutional before it was adopted and
given the force of law in the country.” (Secretary of Justice v. Hon. Ralph C. Lantion,
G.R. No. 139465, Oct. 17, 2000, En Banc [Puno])

37. Discuss the Five Postulates of Extradition.

Held:

1. Extradition Is a Major Instrument for the Suppression of Crime.

First, extradition treaties are entered into for the purpose of suppressing crime by
facilitating the arrest and custodial transfer of a fugitive from one state to the other.

With the advent of easier and faster means of international travel, the flight of affluent
criminals from one country to another for the purpose of committing crime and evading
prosecution has become more frequent. Accordingly, governments are adjusting their methods
of dealing with criminals and crimes that transcend international boundaries.

Today, “a majority of nations in the world community have come to look upon
extradition as the major effective instrument of international co-operation in the suppression of
crime.” It is the only regular system that has been devised to return fugitives to the
jurisdiction of a court competent to try them in accordance with municipal and international
law.

Indeed, in this era of globalization, easier and faster international travel, and an
expanding ring of international crimes and criminals, we cannot afford to be an isolationist
state. We need to cooperate with other states in order to improve our chances of suppressing
crime in our country.

2. The Requesting State Will Accord Due Process to the Accused.

Second, an extradition treaty presupposes that both parties thereto have examined, and
that both accept and trust, each other’s legal system and judicial process. More pointedly, our
duly authorized representative’s signature on an extradition treaty signifies our confidence in
the capacity and willingness of the other state to protect the basic rights of the person sought
to be extradited. That signature signifies our full faith that the accused will be given, upon
 P a g e | 24

extradition to the requesting state, all relevant and basic rights in the criminal proceedings that
will take place therein; otherwise, the treaty would not have been signed, or would have been
directly attacked for its unconstitutionality.

3. The Proceedings Are Sui Generis.

Third, as pointed out in Secretary of Justice v. Lantion, extradition proceedings are not
criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore;
in extradition which is sui generis – in a class by itself – they are not.

Given the foregoing, it is evident that the extradition court is not called upon to
ascertain the guilt or the innocence of the person sought to be extradited. Such determination
during the extradition proceedings will only result in needless duplication and delay. Extradition
is merely a measure of international judicial assistance through which a person charged with or
convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not
part of the function of the assisting authorities to enter into questions that are the prerogative
of that jurisdiction. The ultimate purpose of extradition proceedings in court is only to
determine whether the extradition request complies with the Extradition Treaty, and whether
the person sought is extraditable.

4. Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the Extradition
Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption that its
implementation will serve the national interest.

Fulfilling our obligations under the Extradition Treaty promotes comity (In line with the
Philippine policy of cooperation and amity with all nations set forth in Article II, Section 2,
Constitution). On the other hand, failure to fulfill our obligations thereunder paints at bad
image of our country before the world community. Such failure would discourage other states
from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity.

Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations
under the Treaty. This principle requires that we deliver the accused to the requesting country
if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. In other
words, “[t]he demanding government, when it has done all that the treaty and the law require
it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the
other government is under obligation to make the surrender.” Accordingly, the Philippines must
be ready and in a position to deliver the accused, should it be found proper.

5. There Is an Underlying Risk of Flight.

Fifth, persons to be extradited are presumed to be flight risks. This prima facie
presumption finds reinforcement in the experience of the executive branch: nothing short of
confinement can ensure that the accused will not flee the jurisdiction of the requested state in
order to thwart their extradition to the requesting state. (Government of the United States
of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc
[Panganiban])
 P a g e | 25

38. Discuss the Ten Points to consider in Extradition Proceedings?

Held: 1. The ultimate purpose of extradition proceedings is to determine whether the

request expressed in the petition, supported by its annexes and the evidence that may be
adduced during the hearing of the petition, complies with the Extradition Treaty and Law; and
whether the person sought is extraditable. The proceedings are intended merely to assist the
requesting state in bringing the accused – or the fugitive who has illegally escaped – back to its
territory, so that the criminal process may proceed therein.

2. By entering into an extradition treaty, the Philippines is deemed to have reposed its
trust in the reliability or soundness of the legal and judicial system of its treaty partner; as well
as in the ability and the willingness of the latter to grant basic rights to the accused in the
pending criminal case therein.

3. By nature then, extradition proceedings are not equivalent to a criminal case in

which guilt or innocence is determined. Consequently, an extradition case is not one in which
the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a
court’s request to police authorities for the arrest of the accused who is at large or has escaped
detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the
reasonable prima facie presumption is that the person would escape again if given the
opportunity.

4. Immediately upon receipt of the petition for extradition and its supporting
documents, the judge shall make a prima facie finding whether the petition is sufficient in form
and substance, whether it complies with the Extradition Treaty and Law, and whether the
person sought is extraditable. The magistrate has discretion to require the petitioner to submit
further documentation, or to personally examine the affiants or witnesses. If convinced that a
prima facie case exists, the judge immediately issues a warrant for the arrest of the potential
extraditee and summons him or her to answer and to appear at scheduled hearings on the
petition.

5. After being taken into custody, potential extraditees may apply for bail. Since the
applicants have a history of absconding, they have the burden of showing that (a) there is no
flight risk and no danger to the community; and (b) there exist special, humanitarian or
compelling circumstances. The grounds used by the highest court in the requesting state for
the grant of bail therein may be considered, under the principle of reciprocity as a special
circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial
discretion in the context of the peculiar facts of each case.

6. Potential extraditees are entitled to the rights to due process and to fundamental
fairness. Due process does not always call for a prior opportunity to be heard. A subsequent
opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings on
the petition and the answer is the full chance to be heard and to enjoy fundamental fairness
that is compatible with the summary nature of extradition.

7. This Court will always remain a protector of human rights, a bastion of liberty, a
bulwark of democracy and the conscience of society. But it is also well aware of the limitations
 P a g e | 26

of its authority and of the need for respect for the prerogatives of the other co-equal and co-
independent organs of government.

8. We realize that extradition is essentially an executive, not a judicial, responsibility

arising out of the presidential power to conduct foreign relations and to implement treaties.
Thus, the Executive Department of government has broad discretion in its duty and power of
implementation.

9. On the other hand, courts merely perform oversight functions and exercise review
authority to prevent or excise grave abuse and tyranny. They should not allow contortions,
delays and “over-due process” every little step of the way, lest these summary extradition
proceedings become not only inutile but also sources of international embarrassment due to our
inability to comply in good faith with a treaty partner’s simple request to return a fugitive.
Worse, our country should not be converted into a dubious haven where fugitives and escapees
can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for
bilateral justice and international cooperation.

10. At bottom, extradition proceedings should be conducted with all deliberate speed to
determine compliance with the Extradition Treaty and Law; and, while safeguarding basic
individual rights, to avoid the legalistic contortions, delays and technicalities that may negate
that purpose. (Government of the United States of America v. Hon. Guillermo
Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

39. What is a Treaty? Discuss.

Held: A treaty, as defined by the Vienna Convention on the Law of Treaties, is “an
international instrument concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation.” There are many other terms used for a
treaty or international agreement, some of which are: act, protocol, agreement, compromis d'
arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and
modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or
titles of international agreements included under the general term treaty have little or no
significance. Certain terms are useful, but they furnish little more than mere description

Article 2[2] of the Vienna Convention provides that “the provisions of paragraph 1
regarding the use of terms in the present Convention are without prejudice to the use of those
terms, or to the meanings which may be given to them in the internal law of the State.”
(BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora,
G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

40. Discuss the binding effect of treaties and executive agreements in international law.

Held: [I]n international law, there is no difference between treaties and executive
agreements in their binding effect upon states concerned, as long as the functionaries have
remained within their powers. International law continues to make no distinction between
treaties and executive agreements: they are equally binding obligations upon nations. (BAYAN
 P a g e | 27

[Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No.

138570, Oct. 10, 2000, En Banc [Buena])

41. Does the Philippines recognize the binding effect of executive agreements even without the
concurrence of the Senate or Congress?

Held: In our jurisdiction, we have recognized the binding effect of executive

agreements even without the concurrence of the Senate or Congress. In Commissioner of
Customs v. Eastern Sea Trading, we had occasion to pronounce:

“x x x the right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long usage.
From the earliest days of our history we have entered into executive agreements
covering such subjects as commercial and consular relations, most-favored-nation rights,
patent rights, trademark and copyright protection, postal and navigation arrangements
and the settlement of claims. The validity of these has never been seriously questioned
by our courts."
(BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora,
G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

42. What is a "protocol de cloture"? Will it require concurrence by the Senate?

Held: A final act, sometimes called protocol de cloture, is an instrument which records
the winding up of the proceedings of a diplomatic conference and usually includes a
reproduction of the texts of treaties, conventions, recommendations and other acts agreed
upon and signed by the plenipotentiaries attending the conference. It is not the treaty itself. It
is rather a summary of the proceedings of a protracted conference which may have taken place
over several years. It will not require the concurrence of the Senate. The documents
contained therein are deemed adopted without need for ratification. (Tanada v. Angara, 272
SCRA 18, May 2, 1997 [Panganiban])

43. What is the “most-favored-nation” clause? What is its purpose?

Answer: 1. The MOST-FAVORED-NATION CLAUSE may be defined, in general, as a

pledge by a contracting party to a treaty to grant to the other party treatment not less
favorable than that which has been or may be granted to the “most favored” among other
countries. The clause has been commonly included in treaties of commercial nature. (Salonga
& Yap, Public International Law, 5th Edition, 1992, pp. 141-142)

2. The purpose of a most favored nation clause is to grant to the contracting party
treatment not less favorable than that which has been or may be granted to the "most favored"
among other countries. The most favored nation clause is intended to establish the principle of
equality of international treatment by providing that the citizens or subjects of the contracting
nations may enjoy the privileges accorded by either party to those of the most favored nation
(Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87,
107-108, June 25, 1999, 3rd Div. [Gonzaga-Reyes])

44. What are the two types of most-favored nation clause?

 P a g e | 28

Held: There are generally two types of most-favored-nation clause, namely, conditional
and unconditional. According to the clause in its unconditional form, any advantage of
whatever kind which has been or may in future be granted by either of the contracting parties
to a third State shall simultaneously and unconditionally be extended to the other under the
same or equivalent conditions as those under which it has been granted to the third State.
(Salonga & Yap, Public International Law, 5th Edition, 1992, pp. 141-142)

45. What is the essence of the principle behind the "most-favored-nation" clause as applied to tax
treaties?

Held: The essence of the principle is to allow the taxpayer in one state to avail of more
liberal provisions granted in another tax treaty to which the country of residence of such
taxpayer is also a party provided that the subject matter of taxation x x x is the same as that in
the tax treaty under which the taxpayer is liable.

In Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA
87, June 25, 1999, the SC did not grant the claim filed by S.C. Johnson and Son, Inc., a non-
resident foreign corporation based in the USA, with the BIR for refund of overpaid withholding
tax on royalties pursuant to the most-favored-nation clause of the RP-US Tax Treaty in relation
to the RP-West Germany Tax Treaty. It held:

Given the purpose underlying tax treaties and the rationale for the most favored
nation clause, the concessional tax rate of 10 percent provided for in the RP-Germany
Tax Treaty should apply only if the taxes imposed upon royalties in the RP-US Tax
Treaty and in the RP-Germany Tax Treaty are paid under similar circumstances. This
would mean that private respondent (S.C. Johnson and Son, Inc.) must prove that the
RP-US Tax Treaty grants similar tax reliefs to residents of the United States in respect of
the taxes imposable upon royalties earned from sources within the Philippines as those
allowed to their German counterparts under the RP-Germany Tax Treaty.

The RP-US and the RP-West Germany Tax Treaties do not contain similar
provisions on tax crediting. Article 24 of the RP-Germany Tax Treaty x x x expressly
allows crediting against German income and corporation tax of 20% of the gross
amount of royalties paid under the law of the Philippines. On the other hand, Article 23
of the RP-US Tax Treaty, which is the counterpart provision with respect to relief for
double taxation, does not provide for similar crediting of 20% of the gross amount of
royalties paid. X x x

X x x The entitlement of the 10% rate by U.S. firms despite the absence of
matching credit (20% for royalties) would derogate from the design behind the most
favored nation clause to grant equality of international treatment since the tax burden
laid upon the income of the investor is not the same in the two countries. The similarity
in the circumstances of payment of taxes is a condition for the enjoyment of most
favored nation treatment precisely to underscore the need for equality of treatment.

46. Discuss the nature of ratification in the treaty-making process?

 P a g e | 29

Held: Ratification is generally held to be an executive act, undertaken by the head of

state or of the government, as the case may be, through which the formal acceptance of the
treaty is proclaimed. A State may provide in its domestic legislation the process of ratification
of a treaty. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo
Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

47. How is the consent of the State to be bound by a treaty by ratification expressed?

Held: The consent of the State to be bound by a treaty is expressed by ratification

when: (a) the treaty provides for such ratification, (b) it is otherwise established that the
negotiating States agreed that ratification should be required, (c) the representative of the
State has signed the treaty subject to ratification, or (d) the intention of the State to sign the
treaty subject to ratification appears from the full powers of its representative, or was
expressed during the negotiation. (BAYAN [Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

48. Discuss the effect of the ratification of the Visiting Forces Agreement (VFA).

Held: With the ratification of the VFA, which is equivalent to final acceptance, and with
the exchange of notes between the Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the principles of international law, to be
bound by the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution, declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations.

As a member of the family of nations, the Philippines agrees to be bound by generally

accepted rules for the conduct of its international relations. While the international obligation
devolves upon the state and not upon any particular branch, institution, or individual member of
its government, the Philippines is nonetheless responsible for violations committed by any
branch or subdivision of its government or any official thereof. As an integral part of the
community of nations, we are responsible to assure that our government, Constitution and laws
will carry out our international obligation. Hence, we cannot readily plead the Constitution as a
convenient excuse for non-compliance with our obligations, duties and responsibilities under
international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: Every State has the duty to carry out in good
faith its obligations arising from treaties and other sources of international law, and it may not
invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.

Equally important is Article 26 of the Convention which provides that “Every treaty in
force is binding upon the parties to it and must be performed by them in good faith.” This is
known as the principle of pacta sunt servanda which preserves the sanctity of treaties and have
been one of the most fundamental principles of positive international law, supported by the
jurisprudence of international tribunals. (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, 342 SCRA
449, 492-493, En Banc [Buena])
 P a g e | 30

49. Explain the “pacta sunt servanda” rule.

Held: One of the oldest and most fundamental rules in international law is pacta sunt
servanda – international agreements must be performed in good faith. “A treaty engagement is
not a mere moral obligation but creates a legally binding obligation on the parties x x x. A state
which has contracted valid international obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of the obligations undertaken.”
(Tanada v. Angara, 272 SCRA 18, May 2, 1997 [Panganiban])

50. Explain the "rebus sic stantibus" rule (i.e., things remaining as they are).

Held: According to Jessup, the doctrine constitutes an attempt to formulate a legal

principle which would justify non-performance of a treaty obligation if the conditions with rela
tion to which the parties contracted have changed so materially and so unexpectedly as to
create a situation in which the exaction of performance would be unreasonable. The key
element of this doctrine is the vital change in the condition of the contracting parties that they
could not have foreseen at the time the treaty was concluded. (Santos III v. Northwest
Orient Airlines, 210 SCRA 256, June 23, 1992)

51. Does the “rebus sic stantibus” rule operate automatically to render a treaty inoperative?

Held: The doctrine of rebus sic stantibus does not operate automatically to render the
treaty inoperative. There is a necessity for a formal act of rejection, usually made by the head
of state, with a statement of the reasons why compliance with the treaty is no longer required.
(Santos III v. Northwest Orient Airlines, 210 SCRA 256, June 23, 1992)

52. What is the “Doctrine of Effective Nationality” (Genuine Link Doctrine)?

Held: This principle is expressed in Article 5 of the Hague Convention of 1930 on the
Conflict of Nationality Laws as follows:

Art. 5. Within a third State a person having more than one nationality shall be
treated as if he had only one. Without prejudice to the application of its law in matters
of personal status and of any convention in force, a third State shall, of the nationalities
which any such person possesses, recognize exclusively in its territory either the
nationality of the country in which he is habitually and principally resident or the
nationality of the country with which in the circumstances he appears to be in fact most
closely connected. (Frivaldo v. COMELEC, 174 SCRA 245, June 23, 1989)