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Bayan v. Zamora, G.R. No.

138570, October 10, 2000


FACTS: The Republic of the Philippines and the United States of America entered into an agreement called the Visiting Forces Agreement
(VFA). The agreement was treated as a treaty by the Philippine government and was ratified by then-President Joseph Estrada with the
concurrence of 2/3 of the total membership of the Philippine Senate. The VFA defines the treatment of U.S. troops and personnel visiting the
Philippines. It provides for the guidelines to govern such visits, and further defines the rights of the U.S. and the Philippine governments in the
matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies. Petitioners
argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution, which provides that “foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate . . . and recognized as a treaty by the
other contracting State.”
ISSUE: Was the VFA unconstitutional?
RULING: The Court DISMISSED the consolidated petitions, held that the petitioners did not commit grave abuse of discretion, and sustained
the constitutionality of the VFA.] NO, the VFA is not unconstitutional.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are
sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress,
ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate
through Resolution No. 18 is in accordance with the provisions of the Constitution . . . the provision in [in §25, Article XVIII] requiring
ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it.
xxx xxx xxx
This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts or
acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA
to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where
technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense
they have in common use.
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international
law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a treaty.
xxx xxx xxx
The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States
government has fully committed to living up to the terms of the VFA. For as long as the United States of America accepts or acknowledges the
VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate
of the Constitution.

BAYAN v. ZAMORA, G. R. No. 138570


Facts: The United States panel met with the Philippine panel to discussed, among others, the possible elements of the Visiting Forces
Agreement (VFA). This resulted to a series of conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter,
President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate approved it by (2/3) votes.
Cause of Action: Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not Section 21, Article VII.
Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or facilities” may be allowed
in the Philippines unless the following conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so
required by congress, and
c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to be valid
and effective is the concurrence in by at least two-thirds of all the members of the senate.
ISSUE: Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution?
HELD: Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities should apply in the
instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find applicability with regard to
the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the senate.
The Constitution, makes no distinction between “transient” and “permanent.” We find nothing in section 25, Article XVIII that
requires foreign troops or facilities to be stationed or placed permanently in the Philippines. It is inconsequential whether the United States
treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.

Suzette Nicolas vs AlbertoRomulo


578 SCRA 438 – Political Law – Constitutional Law – Ratification of a Treaty – Validity of the Visiting Forces Agreement
**This case is consolidated with Salonga vs Daniel Smith & BAYAN vs Gloria Arroyo
FACTS:On the 1st of November 2005, Daniel Smith committed the crime of rape against Nicole. He was convicted of the said crime and was
ordered by the court to suffer imprisonment. Smith was a US serviceman convicted of a crime against our penal laws and the crime was
committed within the country’s jurisdiction. But pursuant to the VFA, a treaty between the US and Philippines, the US embassy was granted
custody over Smith. Nicole, together with the other petitioners appealed before the SC assailing the validity of the VFA. Their contention is
that the VFA was not ratified by the US senate in the same way our senate ratified the VFA.
ISSUE: Is the VFA void and unconstitutional & whether or not it is self-executing.
HELD: The VFA is a self-executing Agreement because the parties intend its provisions to be enforceable, precisely because the VFA is
intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty. As a matter of fact, the VFA has been
implemented and executed, with the US faithfully complying with its obligation to produce Smith before the court during the trial.
The VFA is covered by implementing legislation inasmuch as it is the very purpose and intent of the US Congress that executive agreements
registered under this Act within 60 days from their ratification be immediately implemented. The SC noted that the VFA is not like other
treaties that need implementing legislation such as the Vienna Convention. As regards the implementation of the RP-US Mutual Defense
Treaty, military aid or assistance has been given under it and this can only be done through implementing legislation. The VFA itself is another
form of implementation of its provisions.
Lance Corporal Daniel Smith, member of the US Armed Forces, was found guilty beyond reasonable doubt of the crime of
rape in the RTC of Makati. The court ordered Smith detained at the Makati City Jail until further orders.
On December 19 and 22, 2006, Philippine Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney
executed agreements that pursuant to the VFA, Smith be returned to the US military custody and be detained at the first
floor, Rowe Building, US Embassy Compound.
Petitioner Jovito Salonga, et al. challenged the validity of the said agreements contending that the Philippines should have
custody of Smith because, first of all, the VFA is void and unconstitutional since it violates Art. XVlll, Sec. 25 of the
constitution.
Issue: Is the VFA constitutional? Granting that it is constitutional, Are the Romulo-Kenney Agreements in accordance with
the provisions of the VFA itself?
SUGGESTED ANSWER: The SC ruled The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States,
entered into on February 10, 1998, is constitutional, but the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in
accordance with the VFA.
VFA is Constitutional. The SC ruled that “the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by
the United States,” and “the fact that (it) was not submitted for advice and consent of the United States does not detract from its status as a
binding international agreement or treaty recognized by the said State.”
Section 25, Article XVIII, 1987 Constitution provides that “foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.”
The issue, the Court said, is “whether or not the presence of the US Armed Forces in Philippine territory pursuant to the VFA is allowed
‘under a treaty duly concurred in by the Senate and recognized as a treaty by the other contracting State.’” “It is,” the Court ruled. “The VFA,
which is the instrument agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US
Mutual Defense Treaty,” the Court held. visit fellester.blogspot.com The RP-US Mutual Defense Treaty of August 30, 1951 was signed and duly
ratified with the concurrence of both the Philippine Senate and the United States Senate.
Romulo-Kenney Agreements not in accord with the VFA itself
The Court however ruled that “the Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on the detention of
the accused in the United States Embassy, are not in accord with the VFA itself because such detention is not “by Philippine authorities.”
Article V, Section 10 of the VFA provides that “the confinement or detention by Philippine authorities of the United States personnel shall be
carried out in facilities agreed on by appropriate Philippines and United States authorities.” (Suzette Nicolas y Sombilon Vs. Alberto Romulo,
G.R. No. 175888, February 11, 2009)

Lim V. Executive Secretary (2002)


Lessons Applicable:Locus Standi, International Law v. Muncipal Law, Certiorari, Incorporation Clause, Treaties
Laws Applicable: Constitution
FACTS: Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed forces of the United States of America
started arriving in Mindanao to take partin "Balikatan 02-1” on January 2002. The Balikatan 02-1 exercises involves the simulation of joint
military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United
States in 1951. The exercise is rooted from the international anti-terrorism campaign declared by President George W. Bush in reaction to the
3 commercial aircrafts hijacking that smashed into twin towers of the World Trade Center in New York City and the Pentagon building in
Washington, D.C. allegedly by the al-Qaeda headed by the Osama bin Laden that occurred on September 11, 2001. Arthur D. Lim and Paulino
P. Ersando as citizens, lawyers and taxpayers filed a petition for certiorari and prohibition attacking the constitutionality of the joint
exercise. Partylists Sanlakas and Partido Ng Manggagawa as residents of Zamboanga and Sulu directly affected by the operations filed a
petition-in-intervention.
The Solicitor General commented the prematurity of the action as it is based only on a fear of future violation of the Terms of Reference
and impropriety of availing of certiorari to ascertain a question of fact specifically interpretation of the VFA whether it is covers "Balikatan 02-
1” and no question of constitutionality is involved. Moreover, there is lack of locus standi since it does not involve tax spending and there is
no proof of direct personal injury.
ISSUE: W/N the petition and the petition-in-intervention should prosper.
HELD: NO. Petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a new petition sufficient in form
and substance in the proper Regional Trial Court - Supreme Court is not a trier of facts
Doctrine of Importance to the Public
Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the 1987 Constitution, to
determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws that
they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this
petition.
Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon
the department of the government a becoming respect for each other's act, this Court nevertheless resolves to take cognizance of the instant
petition.
Interpretation of Treaty
The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined.
The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government. The sole
encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from any activity inconsistent
with the spirit of this agreement, and in particular, from any political activity." All other activities, in other words, are fair game.
To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and Article 32 contains provisos governing interpretations of
international agreements. It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which
is presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms,
which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. According
to Professor Briggs, writer on the Convention, the distinction between the general rule of interpretation and the supplementary means of
interpretation is intended rather to ensure that the supplementary means do not constitute an alternative, autonomous method of
interpretation divorced from the general rule.
The meaning of the word “activities" was deliberately made that way to give both parties a certain leeway in negotiation. Thus, the VFA gives
legitimacy to the current Balikatan exercises. Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion
that combat-related activities -as opposed to combat itself -such as the one subject of the instant petition, are indeed authorized.
The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat
"except in self-defense." ." The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is actually a war principally
conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of
the exercise. A clear pronouncement on this matter thereby becomes crucial. In our considered opinion, neither the MDT nor the VFA allow
foreign troops to engage in an offensive war on Philippine territory. Under the salutary proscription stated in Article 2 of the Charter of the
United Nations.
Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international agreements to which the
Philippines is a party, must be read in the context of the 1987 Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and
State Policies in this case. The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that "[n]o
treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the
Senate." Even more pointedly Sec. 25 on Transitory Provisions which shows antipathy towards foreign military presence in the country, or of
foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception.
International Law vs. Fundamental Law and Municipal Laws
Conflict arises then between the fundamental law and our obligations arising from international agreements.
Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that international law has been made part of the law of the land does not by any
means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most
countries, rules of international law are given a standing equal, not superior, to national legislation.”
From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda.
Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith." Further, a party to a treaty is
not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty."
Our Constitution espouses the opposing view as stated in section 5 of Article VIII: “The Supreme Court shall have the following powers: xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order
of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.”
Ichong v. Hernandez: “provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the
police power of the State”
Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also,
when it runs counter to an act of Congress.”
The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on Philippine territory.

Lim vs. Executive Secretary G.R. No. 151445 April 11, 2002
FACTS : Beginning 2002, personnel from the armed forces of the United States started arriving in Mindanao, to take part, in conjunction with
the Philippine military, in “Balikatan 02-1”. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual Defense Treaty,
a bilateral defense agreement entered into by the Philippines and the United States in 1951. On Feb. 2002, Lim filed this petition for certiorari
and prohibition, praying that respondents be restrained from proceeding with the so-called “Balikatan 02-1”, and that after due notice and
hearing, judgment be rendered issuing a permanent writ of injuction and/or prohibition against the deployment of US troops in Basilan and
Mindanao for being illegal and in violation of the Constitution.
Petitioners contend that the RP and the US signed the Mutual Defense Treaty to provide mutual military assistance in accordance with the
“constitutional processes” of each country only in the case of a armed attack by an external aggressor, meaning a third country, against one
of them. They further argued that it cannot be said that the Abu Sayyaf in Basilan constitutes an external aggressor to warrant US military
assistance in accordance with MDT of 1951. Another contention was that the VFA of 1999 does not authorize American soldiers to engage in
combat operations in Philippine territory.
ISSUE : Whether or not the “Balikatan 02-1” activities are covered by the VFA.
RULING : Petition is dismissed. The VFA itself permits US personnel to engage on an impermanent basis, in “activities”, the exact meaning of
which is left undefined. The sole encumbrance placed on its definition is couched in the negative, in that the US personnel “must abstain from
any activity inconsistent with the spirit of this agreement, and in particular, from any political activity.”
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that “Balikatan 02-1” – a
mutual anti terrorism advising assisting and training exercise falls under the umbrella of sanctioned or allowable activities in the context of the
agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities – as
opposed to combat itself – such as the one subject of the instant petition, are indeed authorized.
Pimentel v. Executive Secretary
Facts: 1. The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary and the Department of Foreign Affairs
to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippinesfor its concurrence
pursuant to Sec. 21, Art VII of the 1987 Constitution.
2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the most serious crimes as genocide, crimes against
humanity, war crimes and crimes of aggression as defined by the Statute. The Philippines through the Chargie du Affairs in UN. The provisions
of the Statute however require that it be subject to ratification, acceptance or approval of the signatory state.

3. Petitioners contend that ratification of a treaty, under both domestic and international law, is a function of the Senate, hence it is the duty
of the Executive Department to transmit the signed copy to the senate to allow it to exercise its discretion.
Issue: Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit to the Senate the copy of the
Rome Statute signed by a member of the Philippine mission to the U.N. even without the signature of the President.

The Supreme Court held NO.


1. The President as the head of state is the sole organ and authorized in the external relations and he is also the country's sole representative
with foreign nations, He is the mouthpiece with respect to the country's foreign affairs.
2. In treaty-making, the President has the sole authority to negotiate with other states and enter into treaties but this power is limited by the
Constitution with the 2/3 required vote of all the members of the Senate for the treaty to be valid. (Sec. 21, Art VII).
3. The legislative branch part is essential to provide a check on the executive in the field of foreign relations, to ensure the nation's pursuit of
political maturity and growth.

Facts: On December 28, 2000, the Philippines through the Charge d’ Affairs Enrique A. Manalo of the Philippine Mission to the United Nations,
signed the Rome Statute which established the International Criminal Court. Thus, herein petitioners filed the instant petition to compel the
respondents — the Office of the Executive Secretary and the Department of Foreign Affairs — to transmit the signed text of the treaty to the
Senate of the Philippines for ratification.
Issue: Whether or not the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate for
ratification the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the
President.
Held: The Supreme Court rule in the negative. The President, being the head of state, is regarded as the sole organ and authority in external
relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the
country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign
relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states.
It should be emphasized that under the Constitution, the power to ratify is vested in the President, subject to the concurrence of the
Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is
within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify
it.

Facts : This is a petition for mandamus to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit
(even without the signature of the President) the signed copy of the Rome Statute of the International Criminal Court (ICC) to the Senate of
the Philippines for its concurrence or ratification - in accordance with Section 21, Article VII of the 1987 Constitution. Petitioners contend that
that ratification of a treaty, under both domestic law and international law, is a function of the Senate. That under the treaty law and
customary international law, Philippines has a ministerial duty to ratify the Rome Statute. Respondents on the other hand, questioned the legal
standing of herein petitioners and argued that executive department has no duty to transmit the Rome Statute to the Senate for concurrence.
Issues : 1.Whether or not petitioners have the legal standing to file the instant suit.
2.Whether or not the Executive Secretary and the Department of Foreign Affairs have the ministerial duty to transmit to the Senate the copy
of the Rome Statute signed by the Philippine Member to the United Nations even without the signature of the President.
Held : Only Senator Pimentel has a legal standing to the extent of his power as member of Congress. Other petitioners have not shown that
they have sustained a direct injury from the non-transmittal and that they can seek redress in our domestic courts.
Petitioners’ interpretation of the Constitution is incorrect. The power to ratify treaties does not belong to the Senate.
Under E.O. 459, the Department of Foreign Affairs (DFA) prepares the ratification papers and forward the signed copy to the President for
ratification. After the President has ratified it, DFA shall submit the same to the Senate for concurrence.
The President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the
concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the
Members of the Senate.” The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on
the executive in the field of foreign relations.
It should be emphasized that under the Constitution the power to ratify is vested in the President subject to the concurrence of the Senate.
The President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify a treaty.
The signature does not signify final consent, it is ratification that binds the state to the provisions of the treaty and renders it effective.
Senate is limited only to giving or withholding its consent, concurrence to the ratification. It is within the President to refuse to submit a treaty
to the Senate or having secured its consent for its ratification, refuse to ratify it. Such decision is within the competence of the President
alone, which cannot be encroached by this court via writ of mandamus,
Thus, the petition is DISMISSED.
PHARMACEUTICAL Vs Duque

FACTS : Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of Health (DOH). For
purposes of herein petition, the DOH is deemed impleaded as a co-respondent since respondents issued the questioned RIRR in their capacity
as officials of said executive agency.1Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by
virtue of the legislative powers granted to the president under the Freedom Constitution. One of the preambular clauses of the Milk Code
states that the law seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted
by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding
should be supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk
substitutes.In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that
State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially
parents and children, are informed of the advantages of breastfeeding. On May 15, 2006, the DOH issued herein assailed RIRR which was to
take effect on July 7, 2006.
Issue: . Whether Administrative Order or the Revised Implementing Rules and Regulations (RIRR) issued by the Department of Health (DOH)
is not constitutional;
Held: YES. Under Article 23, recommendations of the WHA do not come into force for members,in the same way that conventions or
agreements under Article 19 and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to Members with respect to any matter within the competence
of the Organization for an international rule to be considered as customary law, it must be established that such rule is being followed by
states because they consider it obligatory to comply with such rules. Under the 1987 Constitution, international law can become part of the
sphere of domestic law either By transformation or incorporation. The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by
mere constitutional declaration, international law is deemed to have the force of domestic law.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the
WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a
law enacted by the legislature.

Facts: Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) of E.O. 51 (Milk Code). Petitioner
claims that the RIRR is not valid as it contains provisions that are not constitutional and go beyond what it is supposed to implement. Milk
Code was issued by President Cory Aquino under the Freedom Constitution on Oct.1986. One of the preambular clauses of the Milk Code
states that the law seeks to give effect to Art 11 of the Int’l Code of Marketing and Breastmilk Substitutes(ICBMS), a code adopted by the
World Health Assembly(WHA). From 1982-2006, The WHA also adopted severe resolutions to the effect that breastfeeding should be
supported, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes. In 2006, the DOH issued
the assailed RIRR.
Sub-Issue: W/N the pertinent int’l agreements entered into by the Phil are part of the law of the land and may be implemented by DOH
through the RIRR. If yes, W/N the RIRR is in accord with int’l agreements
MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of discretion amounting to lack of excess of jurisdiction
and in violation of the Constitution by promulgating the RIRR.
Held:
Sub-issue: Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by transformation (thru constitutional mechanism such as
local legislation) or incorporation (mere constitutional declaration i.e treaties) The ICBMS and WHA resolutions were not treaties as they have
not been concurred by 2/3 of all members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had been transformed into
domestic law through a local legislation such as the Milk Code. The Milk Code is almost a verbatim reproduction of ICBMS.
No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions pertinent WHA resolutions are customary int’l law
that may be deemed part of the law of the land. For an int’l rule to be considered as customary law, it must be established that such rule is
being followed by states because they consider it as obligatory to comply with such rules (opinion juris). The WHO resolutions, although
signed by most of the member states, were enforced or practiced by at least a majority of member states. Unlike the ICBMS whereby
legislature enacted most of the provisions into the law via the Milk Code, the WHA Resolutions (specifically providing for exclusive
breastfeeding from 0-6 months, breastfeeding up to 24 Months and absolutely prohibiting ads for breastmilk substitutes) have not been
adopted as domestic law nor are they followed in our country as well. The Filipinos have the option of how to take care of their babies as they
see fit. WHA Resolutions may be classified as SOFT LAW – non-binding norms, principles and practices that influence state behavior. Soft law
is not part of int’l law.
Main issue: Yes. Some parts of the RIRR were not in consonance with the Milk Code such as Sec. 4(f) ->advertising, promotions of formula
are prohibited, Sec 11 -> prohibitions for advertising breastmilk substitutes intended for infants and young children uo to 24 months
And Sec 46 -> sanctions for advertising .
These provisions are declared null and void. The DOH and respondents are prohibited from implementing said provisions.

Case Background: This case concerns a petition challenging the validity of a Department of Health (DOH) Administrative Order (RIRR),
claiming that it contained provisions, including a ban on the advertising of breastmilk substitutes, that were not constitutional and went
beyond the scope of the law it was supposed to implement (Milk Code). The Milk Code gave effect to the International Code of Marketing of
Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA). The WHA had since adopted several Resolutions to the
effect that breastfeeding should be supported, promoted and protected.
Issue and resolution: Constitutionality of the provisions of the RIRR. The Court partially granted the petition, declaring certain provisions of
the RIRR that prohibited the advertising and promotion of breastmilk substitutes and provided for administrative sanctions not found in the
Milk Code in contravention of the Milk Code, and therefore null and void.
Court reasoning: The Court considered whether certain international instruments are part of the law of the Philippines. The Court noted that
the CRC does not contain specific provisions regarding the use or marketing of breastmilk substitutes. Instead, the relevant provisions are
contained in the ICMBS and various WHA Resolutions. The ICMBS had been transformed into domestic law through local legislation, the Milk
Code, and consequently it is the Milk Code that has the force and effect of law in the Philippines, and not the ICMBS per se. However, the Milk
Code did not adopt the provision in the ICMBS absolutely prohibiting advertising of breastmilk substitutes, but instead created the Inter-
Agency Committee to regulate such advertising. By contrast, the subsequent WHA Resolutions specifically prohibiting advertisements and
promotions of breastmilk substitutes have not been adopted as domestic law. Moreover, such Resolutions do not form part of customary
international law. Instead, they may constitute “soft law” or non-binding norms, principles and practices that influence state behavior (such as
the Universal Declaration of Human Rights).
On the issue of whether the the RIRR is in accordance with the Milk Code, the Court found that sections 4(f) and 11 (prohibition on the
advertising and promotion of breastmilk substitutes) and 46 (providing for administrative sanctions that are not found in the Milk Code) went
beyond the DOH’s authority and contravened the Milk Code, and were therefore null and avoid. The Court found that the rest of the provisions
of the RIRR are consistent with the Milk Code. Finally, the Court dismissed the petitioner’s argument that the RIRR is unnecessary and
oppressive, and offensive to the due process clause of the Constitution insofar as it amounts to a restraint of trade, because trade must be
subjected to some form of regulation for the public good and public interests must trump business interests.

Excerpts citing CRC and other relevant human rights instruments: In 1990, the Philippines ratified the International Convention on
the Rights of the Child. Article 24 of said instrument provides that State Parties should take appropriate measures to diminish infant and child
mortality, and ensure that all segments of society, specially parents and children, are informed of the advantages of breastfeeding. [...]
First, the Court will determine if pertinent international instruments adverted to by respondents are part of the law of the land. Petitioner
assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending and expanding the coverage of said law. The
defense of the DOH is that the RIRR implements not only the Milk Code but also various international instruments regarding infant and young
child nutrition. It is respondents' position that said international instruments are deemed part of the law of the land and therefore the DOH
may implement them through the RIRR. The Court notes that the following international instruments invoked by respondents, namely: (1) The
United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic, Social and Cultural Rights; and (3) the
Convention on the Elimination of All Forms of Discrimination Against Women, only provide in general terms that steps must be taken by State
Parties to diminish infant and child mortality and inform society of the advantages of breastfeeding, ensure the health and well-being of
families, and ensure that women are provided with services and nutrition in connection with pregnancy and lactation. Said instruments do not
contain specific provisions regarding the use or marketing of breastmilk substitutes. [...] “Soft law” does not fall into any of the categories of
international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice. It is, however, an expression of
non-binding norms, principles, and practices that influence state behavior. Certain declarations and resolutions of the UN General Assembly fall
under this category. The most notable is the UN Declaration of Human Rights, which this Court has enforced in various cases, specifically,
Government of Hongkong Special Administrative Region v. Olalia, Mejoff v. Director of Prisons, Mijares v. Rañadaand Shangri-la International
Hotel Management, Ltd. v. Developers Group of Companies, Inc. [...]
CRIN Comments: CRIN believes that this decision is consistent with the CRC. Although the CRC was found to be not directly relevant to this
case as the Convention does not specifically address the use or marketing of breastmilk substitutes, CRIN emphasises children’s right to health
under Article 24, which includes the obligation of the state to ensure that all segments of society, in particular parents and children, are
informed of the advantages of breastfeeding.