what way the multiple objectives of the Treaty can best be

1. GABCIKOVO-NAGYMAROS CASE served, keeping in mind that all of them should be fulfilled, for
their mutual benefit.

INTRODUCTION:
FACTS:

In 1977, Hungary and Czechoslovakia entered into a treaty

The Danube has always been important for the
("1977 Treaty) concerning the construction and operation of
commercial and economic development of its riparian States.
the Gabcikovo-Nagymaros System of Locks (essentially to
The potential of the Danube for hydroelectric power
construct a barrage system (like a dam ) ("GN project"). This
has been exploited by some states and it is against this
project was designed so both countries could utilize the
backdrop that the 1977 Treaty between Hungary and then
Bratislavia-Budapest section of the Danube river essentially for
Czechoslovakia was signed.
hydroelectricity. Unfortunately, due to criticisms regarding the
joint project, Hungary was constrained to suspended and then
The project would be jointly owned in equal measure
eventually abandon its part. Czechoslovakia tried to propose
by both parties and ownership would be vested on the State on
provisional solutions, but the two countries could not come to
whose territory the works were constructed.
an agreement. Finally, the Hungarian Government sent a Note
Verbale terminating the 1977 treaty to take effect within 6 days.
Hungary would have control over the works at
Constrained, Czechoslovakia decided to implement and
Nagymaros while Czechoslovakia would have control over the
subsequently operate its "Variant C" solution to prevent it from
Gabcikovo area. In addition, Hungary was to construct a dam
sustaining further losses. The Commission on European
at Dunakiliti. The Treaty also provided that the technical
Communities mediated and the parties principally agreed to
specifications for the system be included in the "Joint
submit the dispute to the International Court of Justice.
Contractual Plan" (JCP) to be drawn up.

DOCTRINE:
The treaty also provided that the cost of the joint
investment will be borne by the parties in equal measure.
Bear in mind that during the time the case was being
Moreover, it stipulated work to be carried out by each one of
undertaken by the ICJ, Czechoslovakia has already
them.
constructed and operated its "Variant C" solution, which
included the construction at Cunovo, effectively acting as a
The treaty also stated that the JCP would specify a
replacement for what should have been constructed by
water balance to be measured (i.e. sharing of water in the
Hungary in Dunakiliti. The filling of the Cunovo dam led to a
Danube by both states).
reduction in the flow of water to the old Danube bed and of the
side-arms of the river (obviously affecting Hungary). This
In the event that the water level becomes imbalanced,
means that the 1977 Treaty cannot anymore be followed to the
share of electric power of the parties benefitting from the
letter since a different factual situation now exists. On the basis
excess withdrawal of water shall be reduced.
of the Court's findings, the ICJ, in determining the future
conduct of the parties held:
The treaty also stated that the parties should ensure
that the quality of the water in the Danube is not impaired as a
"It is not for the Court to determine what shall be the final result
result of the construction of the GN project.
of these negotiations to be conducted by the parties. It is for
them to find an agreed solution that takes account of the
The work started on Hungary's initiative, but the two
objectives of the Treaty which must be pursued in a joint and
parties subsequently agreed through two Protocols signed to
integrated way, keeping in mind the norms of international law.
slow the work down and postpone the operation of the power
What is required in the present case by the rule pacta sunt
plants.
servanda, as reflected in Art. 26 of the Vienna Convention of
1969, is that the parties find an agreed solution within the co -
Then, by another Protocol, both parties agreed to
operative context of the Treaty. Article 26 combines two
accelerate the project.
elements, which are of equal importance, providing that "every
treaty in force is binding upon the parties to it and must be
There were profound political and economic changes
performed by them in good faith." This latter element, implies
during this time in Europe and the project became an
that in this case, it is the purpose of the Treaty and the
increasing apprehension for both Hungary and
intentions of the parties concluding it which should prevail over
Czechoslovakia. The uncertainties were both about the
its literal application.
economic viability of the project and the ecological impact of
the same.
What is essential is that the developing treaty relationship be
preserved, and be conducted to achieve its object and purpose
Thus, due to intense criticism the project generated,
in so far as that is feasible. The parties are under a legal
particularly in Hungary, the Hungarian Government decided to
obligation to consider within the context of the 1977 Treaty, in
suspend the works at Nagymaros pending completion of
1
various studies. They also subsequently suspended the works
at Dunakiliti. Eventually they decided to abandon works at
Nagymaros while maintaining status quo at Dunakiliti.
Negotiations were being held during this period
between the parties, while Czechoslovakia also started
investigating alternative solutions (7 in total), one of which was
"Variant C" ("VC").
VC entailed a unilateral diversion of the Danube by
Czechoslovakia and a construction of a dam at Cunovo
(Czechoslovakian territory) to essentially function as a
replacement for the Dunakiliti portion which Hungary
suspended. Of course, Czechoslovakia protested to this.
In addition to this, the political situation in both states
changed and new Governments were confronted with new
problems.
In 1991, the Slovak Government (Czechoslovakia is
now a federal government with Czech and Slovakia as states)
decided to begin construction of VC.
Discussions continued between the s tates but to no
avail.
In 1992, Hungary transmitted a Note Verbale
terminating the 1977 Treaty with effect after a mere six days
from receipt of Czechoslovakia of the note.
Through the mediation of the Commission of the
European Communities (which was the old EU) the parties
principally agreed that the dispute be submitted to the ICJ.
In 1993 Slovakia became an independent state.
Slovakia and Hungary entered into a Special agreement
concerning the GN project and agreed to establish a temporary
water regime which they agreed on after a number of
negotiations, while the case was still with the ICJ.
ISSUE with HOLDING:
Whether Hungary validly terminated the 1977 Treaty
through its Note Verbale. – NO. It was premature. The 1977
Treaty is still in force.
Hungary claimed that it was due to Czechoslovakia's
construction and operation of Variant C that its alleged "state of
necessity" was made permanent which justified the termination
of the 1977 treaty.
The Court agreed with Czechoslovakia in that even of
such a state of necessity existed, it would not give rise to a
right to terminate the 1977 Treaty. The state of necessity may
only be invoked to exonerate Hungary from its responsibilities
which it failed to implement, but it does not in any way give it
any right to terminate the Treaty.
The Treaty may be ineffective as long as the condition
2
of alleged "state necessity" continues to exist, but, unless the
parties by mutual agreement terminate the Treaty, it continues
to exist, albeit dormant.
The same can be said of the "impossibility of
performance" by Hungary of its obligations due to
Czechoslovakia's acts. These situations may be a ground for
suspending a treaty but not a ground for termination.
The ICJ also held that the 1977 treaty was broad
enough to allow enough legroom for the parties to amend and
adjust the regime to reflect economic and ecological
imperatives.
In the Court's view, the prevalent political, economic
and ecological conditions were not so closely linked to the
object and purpose of the Treaty that they constituted an
essential basis of the mutual consent of the parties to conclude
the Treaty.
Moreover, the ICJ is of the view that it is only a
material breach of the treaty by a State party to that treaty,
which entitles the other party to rely on it as a ground for
terminating the treaty. Moreover, Hungary only provided SIX
DAYS for the termination of the Treaty, which is not in
accordance with international custom.
Hungary claimed that it was entitled to terminate the
Treaty because new requirements of international law for the
protection of the environment precluded performance of the
treaty.
The ICJ held that the Treaty provided evolving
provisions recognizing the potential necessity to tweak the
project to adapt. The environmental norms can be incorporated
in the JCP.
The responsibility to do this is a joint responsibility.
Their implementation requires a mutual willingness to discuss
in good faith actual and potential environmental risks.
Whether Hungary was entitled to suspend and
subsequently abandon the works on the project. – NO. There
was no "state of necessity" (see Art. 33 of International
Responsibility of States) that would entitle Hungary to validly
suspend and abandon the works. There is no "grave and
imminent peril" as regards the ecological effects of the project
as Hungary would have wanted the ICJ to believe.
Hungary contended that though it suspended and
abandoned works, it never suspended the application of the
1977 Treaty itself, justifying its conduct on a "state of
ecological necessity."
Court cannot accept this argument. Hungary's
conduct during that time showed its unwillingness to comply
with some of the provisions of the Treaty and the subsequent
Protocol. This rendered impossible the accom plishment of the
GN project.

The Court also held that the fact that Hungary invoked
the doctrine of "state of necessity" shoed that it chose to place
itself within the ambit of the law of State responsibility – i.e.
that without this "necessity" Hungary's actions would have
been unlawful.
In addition, such "state of necessity" would not
exempt it from its duty to compensate the other party – it only
provides Hungary a justifying circumstance in acting the way it
did.
Hungary also accused Czechoslovakia of violating
various provisions of the treaty.
The ICJ held that it does not need to examine this
argument.
Hungary also contended that the Law of Treaties
should not be applied to the current case since it came into
force after the 1977 treaty was concluded.
Court held that some of the rules laid down in the Law
of Treaties might be considered as a codification of existing
customary law.
This applies to the provisions regarding termination
and suspension of the operation of treaties (Articles 60 to 62)
The parties in this case were also broadly in
agreement as regards the foregoing.
Whether the Czech and Slovak Federal Republic was
entitled to proceed with its "provisional solution" i.e. Variant C,
and to put it into operation. – YES to undertaking the works of
Variant C, but NO to its operation. Czechoslovakia decided to
put the VC into operation unilaterally, exclusively under its own
control and for its own benefit, to the detriment of Hungary.
This effectively violated express provisions of the 1977 Treaty,
depriving Hungary of its basic right to an equitable and
reasonable sharing of the resources of the Danube.
Nevertheless, Czechoslovakia was entitled to construct Variant
C, in so far as it confined itself to undertaking works which did
not predetermine the final decision to be taken by it. The same
could not be considered as a countermeasure as it is not in
accordance to the international law concept of proportionality
(i.e. what Czechoslovakia did was not proportional to what
Hungary did).
Czechoslovakia maintained that their action of
proceeding with Variant C and its implementation were not
internationally wrongful acts because Hungary's decision made
it impossible for them to carry out works as contemplated by
the 1977 Treaty. Slovakia also invoked the "principle of
approximate application"
The ICJ distinguished between the "actual
commission of a wrongful act" and the conduct prior to that act
3
which is of a preparatory character (the latter does not qualify
as a wrongful act).
In relation to this, the ICJ held that proceeding to
Variant C was a preparatory act which was reasonable,
considering the losses that Czechoslovakia incurred due to
Hungary's unilateral abandonment of its Treaty obligations.
However, the operation of Variant C was an
internationally unlawful act as it deprived Hungary of its rights
to a just sharing of the resources as prescribed by the 1977
Treaty.
Slovakia also argued in the alternative that
Czechoslovakia's conduct was lawful in that it was a
countermeasure against Hungary's infractions.
The ICJ held that it was not a justifiable
countermeasure as it did not meet the condition of
proportionality.
Whether Slovakia properly succeeded
Czechoslovakia. – YES. The Articles on Succession of States
identified "treaties of a territorial character" as having been
regarded both in traditional doctrine and in modern opinion as
unaffected by a succession of states. The subject treaty falls
under this category.
The particular nature and character of the 1977
Treaty confirms that aside from its undoubted nature of a joint
investment, its major elements were the proposed construction
and operation of structures and installations on specific parts of
the territories of Hungary and Czechoslovakia along the
Danube.
2. THE ISLAND OF PALMAS CASE
FACTS:
1. Palmas (known as Miangas) is an island located halfway
between the islands of Mindanao, Philippines and Nanusa in
Netherlands
2. American General, Leonard Nood visited Palmas and
discovered that Netherlands also claimed sovereignty over it.
3.They agreed to submit the dispute to arbitration.
US based their claim on:
As successor to rights of Spain; the latter basing their title on
discovery;
Treaty of Munster of 1648 which Spain and Netherlands were
themselves contracting parties;
The United States, as successor to Ihe rights of Spain over the
Philippines, bases its title in the first place on discovery. The
existence of sovereignty thus acquired is, in the American
view, confirmed not merely by the most reliable cartographers
and authors, but also by treaty, in particular by the Treaty of
Miinster, of 1648, to which Spain and the Netherlands are
themselves Contracting Parties. As, according to the same
argument, nothing has occurred of a nature, in international
law, to cause the acquired title to disappear, this latter title was
intact at the moment when, by the Treaty of December 10th ,
1898, Spain ceded the Philippines to the United States. In
these circumstances, it is, in the American view, unnecessary
to establish facts showing the actual display of sovereignty
precisely over the Island of Palmas (or Miangas). The United
States Government finally maintains that Palmas (or Miangas)
forms a geographical part of the Philippine group and in virtue
of the principle of contiguity belongs to the Power having the
sovereignty over the Philippines.
Netherlands based their claim on:
Acts of direct and/or indirect display of sovereignty. According
to the Netherlands Government, on the other hand, the fact of
discovery by Spain is not proved, nor yet any other form of
acquisition, and even if Spain had at any moment had a title,
such title had been lost. The principle of contiguity is
contested. The Netherlands Government's main argument
endeavors to show that the Netherlands, represented for this
purpose in the first period of colonization by the East India
Company, have possessed and exercised rights of sovereignty
from 1677, or probably from a date prior even to 1648, to the
present day. This sovereignty arose out of conventions entered
into with native princes of the Island of Sangi (the main island
of the Talautse (Sangi Isles), establishing the suzerainty of the
Netherlands over the territories of these princes, including
Palmas (or Miangas). The state of affairs thus set up is claimed
to be validated by international treaties. The facts alleged in
support of the Netherlands arguments are, in the United States
Government's view, not proved, and, even if they were proved,
they would not create a title of sovereignty, or would not
concern the Island of Palmas.
Issues:
1. Does the Miangas belong to the sovereignty of US or of
Netherlands. The two Parties claim the island in question as a
territory attached for a very long period to territories relatively
close at hand which are incontestably under the sovereignty of
the one or the other of them.
2. How will the discrepancies in the general and special maps
be taken into account? (There were maps that the parties
relied upon- showing that the island is part of their territory).
3. Can a title based on contiguity be made to apply?
Ruling:
1. The Netherland’s title of sovereignty holds good over the
inchoate title of the US. The latter’s title cannot prevail over a
definite title founded on continuous and peaceful displ ay of
sovereignty. Further, Spain could not transfer more rights than
she herself possessed.
4
In letter dated April 7th, 1900, from the Secretary of State of
the United States to the Spanish Minister at Washington:
The metes and bounds defined in the treaty were not
understood by either party to limit or extend Spain's right of
cession. Were any island within those described bounds
ascertained to belong in fact to Japan, China, Great Britain or
Holland, the United States could derive no valid title from its
ostensible inclusion in the Spanish cession.
The compact upon which the United States negotiators insisted
was that all Spanish title to the archipelago known as the
Philippine Islands should pass to the United States —no less or
more than Spain's actual holdings therein, but all. This
Government must consequently hold that the only competent
and equitable test of fact by which the title to a disputed
cession in that quarter may be determined is simply this:
''Was it Spain's to give? If valid title belonged to Spain, it
passed; if Spain had no valid title, she could convey none."
The records of the conquest cannot come to the aid of US.
Indeed, the reports on record which concern the discovery of
the Island of Palmas state only that an island was "seen",
which island, according to the geographical data, is probably
identical with that in dispute. No mention is made of landing or
of contact with the natives. And in any case no signs of taking
possession or of administration by Spain have been shown or
even alleged to exist until the very recent date to which the
reports of Captain Malone and M. Alvarez, of 1919 contained
in the United States Memorandum, relate.
2. A map affords only an indication — and that a very indirect
one —and, except when annexed to a legal instrument, has
not the value of such an instrument, involving recognition or
abandonment of rights.
3. No. The principle of contiguity, in regard to islands, may not
be out of place when it is a question of allotting them to one
State rather than another, either by agreement between the
Parties, or by a decision not necessarily based on law; but as a
rule establishing ipso jure the presumption of sovereignty in
favour of a particular State, this principle would be in conflict
with what has been s aid as to territorial sovereignty and as to
the necessary relation between the right to exclude other
States from a region and the duty to display therein the
activities of the state. Nor is this principle of contiguity
admissible as a legal method of deciding questions of territorial
sovereignty; for it is wholly lacking in precision and would in its
application lead to arbitrary results. This would be especially
true in a case such as that of the island in question, which is
not relatively close to one single continent, but forms part of a
large archipelago in which strict delimitations between the
different parts are not naturally obvious.
Q&A
What is an inchoate title?
----It exist as a claim to establish sovereignty by effective
occupation.
What is sovereignty with regards to relations between states?
----It signifies independence. Independence in regard to a
portion of the globe is the right to exercise therein, to the
exclusion of any other State, the functions of a State.
What is territorial sovereignty?
----Territorial sovereignty is, in general, a situation recognized
and delimited in space, either by so-called natural frontiers as
recognized by international law or by outward signs of
delimitation that are undisputed, or else by legal engagemen ts
entered into between interested neighbors, such as frontier
conventions, or by acts of recognition of States within fixed
boundaries.
What is the corollary duty of a state claiming sovereignty?
----Territorial sovereignty, as has already been said, involves
the exclusive right to display the activities of a State. This right
has as corollary a duty: the obligation to protect within the
territory the rights of other States, in particular their right to
integrity and inviolability in peace and in war, together with the
rights which each State may claim for its nationals in foreign
territory. Without manifesting its territorial sovereignty in a
manner corresponding to circumstances, the State cannot fulfil
this duty. Territorial sovereignty cannot limit its elf to its
negative side, i.e. to excluding the activities of other States; for
it serves to divide between nations the space upon which
human activities are employed, in order to assure them at all
points the minimum of protection of which international l aw is
the guardian.
What happens if there is a dispute?
----If a dispute arises as to the sovereignty over a portion of
territory, it is customary to examine which of the States
claiming sovereignty possesses a title— cession conquest,
occupation, etc.—superior to that which the other State might
possibly bring forward against it.
However, if the contestation is based on the fact that the other
Party has actually displayed sovereignty, it cannot be sufficient
to establish the title by which territorial sovereignty was validly
acquired at a certain moment; it must also be shown that the
territorial sovereignty has continued to exist and did exist at the
moment which for the decision of the dispute must be
considered as critical.
3. TAÑADA v. ANGARA
Facts:
This is a petition seeking to nullify the Philippine ratification of
the World Trade Organization (WTO) Agreement. Petitioners
question the concurrence of herein respondents acting in their
capacities as Senators via signing the said agreement.
5
The WTO opens access to foreign markets, especially its
major trading partners, through the reduction of tariffs on its
exports, particularly agricultural and industrial products. Thus,
provides new opportunities for the service sector cost and
uncertainty associated with exporting and more investment in
the country. These are the predicted benefits as reflected in
the agreement and as viewed by the signatory Senators, a
“free market” espoused by WTO.
Petitioners on the other hand viewed the WTO agreement as
one that limits, restricts and impair Philippine economic
sovereignty and legislative power. That the Filipino First policy
of the Constitution was taken for granted as it gives foreign
trading intervention.
Issue : Whether or not there has been a grave abu se of
discretion amounting to lack or excess of jurisdiction on the
part of the Senate in giving its concurrence of the said WTO
agreement.
Held:
In its Declaration of Principles and state policies, the
Constitution “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. By the doctrine of incorporation, the
country is bound by generally accepted principles of
international law, which are considered automatically part of
our own laws. Pacta sunt servanda – international agreements
must be performed in good faith. A treaty is not a mere moral
obligation but creates a legally binding obligation on the
parties.
Through WTO the sovereignty of the state cannot in fact and
reality be considered as absolute because it is a regulation of
commercial relations among nations. Such as when Philippines
joined the United Nations (UN) it consented to restrict its
sovereignty right under the “concept of sovereignty as
autolimitation.” What Senate did was a valid exercise of
authority. As to determine whether such exercise is wise,
beneficial or viable is outside the realm of judicial inquiry and
review. The act of signing the said agreement is not a
legislative restriction as WTO allows withdrawal of membership
should this be the political desire of a member. Also, it should
not be viewed as a limitation of economic sovereignty. WTO
remains as the only viable structure for multilateral trading and
the veritable forum for the development of international trade
law. Its alternative is isolation, stagnation if not economic self-
destruction. Thus, the people be allowed, through their duly
elected officers, make their free choice.
Petition is DISMISSED for lack of merit.

4. FROILAN v. PAN ORIENTAL SHIPPING CO.
Facts:
On February 3, 1951, plaintiff-appellee, Fernando A. Froilan,
filed a complaint against the defendant-appellant, Pan Oriental
Shipping Co., alleging that he purchased from the Shipping
Commission the vessel FS-197 for P200,000, paying P50,000
down and agreeing to pay the balance in installments; that to
secure the payment of the balance of the purchase price, he
executed a chattel mortgage of said vessel in favor of the
Shipping Commission; that for various reason, among them the
non-payment of the installments, the Shipping Commission
took possession of said vessel and considered the contract of
sale cancelled; that the Shipping Commission chartered and
delivered said vessel to the defendant-appellant Pan Oriental
Shipping Co. subject to the approval of the President of the
Philippines; that he appealed the action of the Shipping
Commission to the President of the Philippines and, in its
meeting on August 25, 1950, the Cabinet restored him to all his
rights under his original contract with the Shipping
Commission; that he had repeatedly demanded from the Pan
Oriental Shipping Co. the possession of the vessel in question
but the latter refused to do so. He, therefore, prayed that, upon
the approval of the bond accompanying his complaint, a writ of
replevin be issued for the seizure of said vessel with all its
equipment and appurtenances, and that after hearing, he be
adjudged to have the rightful possession thereof.
On February 3, 1951, the lower court issued the writ of replevin
prayed for by Froilan and by virtue thereof the Pan Oriental
Shipping Co. was divested of its possession of said vessel.
On March 1, 1951, Pan Oriental Shipping Co. filed its answer
denying the right of Froilan to the possession of the said
vessel; it alleged that the action of the Cabinet on August 25,
1950, restoring Froilan to his rights under his original contract
with the Shipping Commission was null and void; that, in any
event, Froilan had not complied with the conditions precedent
imposed by the Cabinet for the restoration of his rights to the
vessel under the original contract.
On November 10, 1951, after the leave of the lower court had
been obtained, the intervenor-appellee, Government of the
Republic of the Philippines, filed a complaint in intervention
alleging that Froilan had failed to pay to the Shipping
Commission (which name was later changed to Shipping
Administration) the balance due on the purchase price of the
vessel in question, the interest thereon, and its advances on
insurance premium totalling P162,142.95, excluding the dry-
docking expenses incurred on said vessel by the Pan Oriental
Shipping Co.; that intervenor was entitled to the possession of
the said vessel either under the terms of the original contract
as supplemented by Froilan's letter dated January 28, 1949, or
in order that it may cause the extrajudicial sale thereof under
the Chattel Mortgage Law. It, therefore, prayed that Froilan be
ordered to deliver the vessel in question to its authorized
representative, the Board of Liquidators; that Froilan be
6
declared to be without any rights on said vessel and the
amounts he paid thereon forfeited or alternately, that the said
vessel be delivered to the Board of Liquidators in order that the
intervenor may have its chattel mortgage extrajudicially
foreclosed in accordance with the provisions of the Chattel
Mortgage Law; and that pending the hearing on the merits, the
said vessel be delivered to it.
On November 29, 1951, the Pan Oriental Shipping Co. filed an
answer to the complaint in intervention alleging that the
Government of the Republic of the Philippines was obligated to
deliver the vessel in question to it by virtue of a contract of
bare-boat charter with option to purchase executed on June
16, 1949, by the latter in favor of the former; it also alleged that
it had made necessary and useful expenses on the vessel and
claimed the right of retention of the vessel.
On November 29, 1951, Froilan tendered to the Board of
Liquidators, which was liquidating the affairs of the Shipping
Administration, a check in the amount of P162,576.96 in
payment of his obligation to the Shipping Administration for the
said vessel as claimed in the complaint in intervention of the
Government of the Republic of the Philippines. The Board of
Liquidators issued an official report therefor stating that it was
a 'deposit pending the issuance of an order of the Court of First
Instance of Manila.
On February 3, 1952, the lower court held that the payment by
Froilan of the amount of P162,576.96 on November 29, 1951,
to the Board of Liquidators constituted a payment and a
discharge of Froilan's obligation to the Government of the
Republic of the Philippines and ordered the dismissal of the
latter's complaint in intervention. In the same order, the lower
court made it very clear that said order did not pre-judge the
question involved between Froilan and the Oriental Shipping
Co. which was also pending determination in said court
In an order dated July 1, 1952, the lower court dismissed the
counterclaim of the Pan Oriental Shipping Co. as prayed for by
the Republic of the Philippines .
The order of the Court of First Instance of Manila, dismissing
the counterclaim of the defendant Pan Oriental Shipping Co.,
from which the latter has appealed, reads as follows:
The complaint in intervention did not contain any claim
whatsoever against the defendant Pan Oriental Shipping Co.;
hence, the counterclaim has no foundation.
The question as to whether the Court has jurisdiction over the
intervenor with regard to the counterclaim, the Court is of the
opinion that it has no jurisdiction over said intervenor.
It if from this order of the lower court dismissing its
counterclaim against the Government of the Republic of the
Philippines that Pan Oriental Shipping Co. has perfected the
present appeal.
Issue: W/N the counterclaim of the Pan Oriental Shipping Co.
was properly dismissed on the ground of lack of jurisdiction
over the intervenor Republic of the Philippines
Ruling:
Negative; The ground for dismissing the defendant's
counterclaim is that the State is immune from suit. This is
untenable, because by filing its complaint in intervention the
Government in effect waived its right of non-suability.
The immunity of the state from suits does not deprive it of the
right to sue private parties in its own courts. The state as
plaintiff may avail itself of the different forms of actions open to
private litigants. In short, by taking the initiative in an action
against a private party, the state surrenders its privileged
position and comes down to the level of the defendant. The
latter automatically acquires, within certain limits, the right to
set up whatever claims and other defenses he might have
against the state. The United States Supreme Court thus
explains:
"No direct suit can be maintained against the United States.
But when an action is brought by the United States to recover
money in the hands of a party who has a legal claim against
them, it would be a very rigid principle to deny to him the right
of setting up such claim in a court of justice, and turn him
around to an application to Congress."
The lower court also erred in holding that, as the intervenor
had not made any claim against the defendant, the la tter's
counterclaim had no foundation. The complaint in intervention
sought to recover possession of the vessel in question from the
plaintiff, and this claim is logically adverse to the position
assumed by the defendant that it has a better right to said
possession than the plaintiff who alleges in his complaint that
he is entitled to recover the vessel from the defendant. At any
rate a counterclaim should be judged by its own allegations,
and not by the averments of the adverse party. It should be
recalled that the defendant's theory is that the plaintiff had
already lost his rights under the contract with the Shipping
Administration and that, on the other hand, the defendant is
relying on the charter contract executed in its favor by the
intervenor which is bound to protect the defendant in its
possession of the vessel. In other words, the counterclaim calls
for specific performance on the part of the intervenor. As to
whether this counterclaim is meritorious is another question
which is not now before us.
5. US v. RUIZ
Facts:
Petitioner USA invited bidders for certain wharf repair
projects on its naval stations.
Respondent Eligio de Guzman & Co., Inc. responded
to the invitation and submitted bids, but subsequently was
7
informed to be not qualified due to its previous unsatisfactory
performance rating on a repair contract and that the project
was given to a third party.
The defendant company sued the petitioners to allow
the defendants to perform the work on the projects and asked
for the issuance of a writ of preliminary injunction to restrain
the defendants from entering into contracts with third parties
for work on the projects.
The plaintiffs entered their special appearance for the
purpose only of questioning the jurisdiction of this court over
the subject matter of the complaint and the persons of
defendants, being that they acted as agents of defendant
United States of America, a foreign sovereign which has not
given her consent to this suit or any other suit for the causes of
action asserted in the complaint.
Issue:
WON petitioners were immune from suit.
Held:
Yes. The correct test for the application of State immunity is
not the conclusion of a contract by a State but the legal nature
of the act is shown in Syquia vs. Lopez, 84 Phil. 312 (1949). In
this case the projects are an integral part of the naval base
which is devoted to the defense of both the United States and
the Philippines, indisputably a function of the government of
the highest order; they are not utilized for nor dedicated to
commercial or business purposes.
6. PROVINCE OF NORTH COTABATO v. GRP PEACE
PANEL ON ANCESTRAL DOMAIN
Facts:
Subject of this case is the Memorandum of Agreement on the
Ancestral Domain (MOA-AD) which is scheduled to be signed
by the Government of the Republic of the Philippines and the
MILF in August 05, 2008. Five cases bearing the same subject
matter were consolidated by this court namely:-
GR 183591 by the Province of Cotabato and Vice Governor
Pinol on its prayer to declare unconstitutional and to h ave the
MOA-AD disclosed to the public and be open for public
consultation.
GR 183752 by the City of Zamboanga et al on its prayer to
declare null and void said MOA-AD and to exclude the city to
the BJE.
GR 183893 by the City of Iligan enjoining the respondents from
signing the MOA-AD and additionally impleading Exec. Sec.
Ermita.
GR 183951 by the Province of Zamboanga del Norte et al,
praying to declare null and void the MOA-AD and without
operative effect and those respondents enjoined from
executing the MOA-AD.
GR 183692 by Maceda, Binay and Pimentel III, praying for a
judgment prohibiting and permanently enjoining respondents
from formally signing and executing the MOA-AD and or any
other agreement derived therefrom or similar thereto, and
nullifying the MOA-AD for being unconstitutional and illegal and
impleading Iqbal.
The MOA-AD is a result of various agreements entered into by
and between the government and the MILF starting in 1996;
then in 1997, they signed the Agreement on General Cessation
of Hostilities; and the following year, they signed the General
Framework of Agreement of Intent on August 27, 1998.
However, in 1999 and in the early of 2000, the MILF attacked a
number of municipalities in Central Mindanao. In March 2000,
they took the hall of Kauswagan, Lanao del Norte; hence, then
Pres. Estrada declared an all-out war-which tolled the peace
negotiation. It was when then Pres. Arroyo assumed office,
when the negotiation regarding peace in Mindanao continued.
MILF was hesitant; however, this negotiation proceeded when
the government of Malaysia interceded. Formal peace talks
resumed and MILF suspended all its military actions. The
Tripoli Agreement in 2001 lead to the ceasefire between the
parties. After the death of MILF Chairman Hashim and Iqbal
took over his position, the crafting of MOA-AD in its final form
was born.
MOA-AD Overview
This is an agreement to be signed by the GRP and the MILF.
Used as reference in the birth of this MOA-AD are the Tripoli
Agreement, organic act of ARMM, IPRA Law, international
laws such as ILO Convention 169, the UN Charter etc., and the
principle of Islam i.e compact right entrenchment (law of
compact, treaty and order). The body is divided into concepts
and principles, territory, resources, and governance.
Embodied in concepts and principles, is the definition of
Bangsamoro as all indigenous peoples of Mindanao and its
adjacent islands. These people have the right to self-
governance of their Bangsamoro homeland to which they have
exclusive ownership by virtue of their prior rights of occupation
in the land. The MOA-AD goes on to describe the Bangsamoro
people as "the ‘First Nation' with defined territory and with a
system of government having entered into treaties of amity and
commerce with foreign nations." It then mentions for the first
time the "Bangsamoro Juridical Entity" (BJE) to which it grants
the authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro.
As defined in the territory of the MOA-AD, the BJE shall
embrace the Mindanao-Sulu-Palawan geographic region,
involving the present ARMM, parts of which are those which
voted in the inclusion to ARMM in a plebiscite. The territory is
divided into two categories, “A” which will be subject to
plebiscite not later than 12 mos. after the signing and “B” which
will be subject to plebiscite 25 years from the signing of
8
another separate agreement. Embodied in the MOA-AD that
the BJE shall have jurisdiction over the internal waters -15kms
from the coastline of the BJE territory; they shall also have
"territorial waters," which shall stretch beyond the BJE internal
waters up to the baselines of the Republic of the Philippines
(RP) south east and south west of mainland Mindanao; and
that within these territorial waters, the BJE and the government
shall exercise joint jurisdiction, authority and management over
all natural resources. There will also be sharing of minerals in
the territorial waters; but no provision on the internal waters.
Included in the resources is the stipulation that the BJE is free
to enter into any economic cooperation and trade relations with
foreign countries and shall have the option to establish trade
missions in those countries, as well as environmental
cooperation agreements, but not to include aggression in the
GRP. The external defense of the BJE is to remain the duty
and obligation of the government. The BJE shall have
participation in international meetings and events" like those of
the ASEAN and the specialized agencies of the UN. They are
to be entitled to participate in Philippine official missions and
delegations for the negotiation of border agreements or
protocols for environmental protection and equitable sharing of
incomes and revenues involving the bodies of water adjacent
to or between the islands forming part of the ancestral domain.
The BJE shall also have the right to explore its resources and
that the sharing between the Central Government and the BJE
of total production pertaining to natural resources is to be
75:25 in favor of the BJE. And they shall have the right to
cancel or modify concessions and TLAs.
And lastly in the governance, the MOA-AD claims that the
relationship between the GRP and MILF is associative i.e.
characterized by shared authority and responsibility. This
structure of governance shall be further discussed in the
Comprehensive Compact, a stipulation which was highly
contested before the court. The BJE shall also be given the
right to build, develop and maintain its own institutions, the
details of which shall be discussed in the comprehensive
compact as well.
Issues:
1. WON the petitions have complied with the procedural
requirements for the exercise of judicial review
2. WON respondents violate constitutional and statutory
provisions on public consultation and the right to information
when they negotiated and later initialed the MOA-AD; and
3. WON the contents of the MOA-AD violated the Constitution
and the laws
Ruling:
The SC declared the MOA-AD contrary to law and the
Constitution.

On the Procedural Issue
1st issue: As regards the procedural issue, SC upheld that
there is indeed a need for the exercise of judicial review.
The power of judicial review is limited to actual cases or
controversy, that is the court will decline on issues that are
hypothetical, feigned problems or mere academic questions.
Related to the requirement of an actual case or controversy is
the requirement of ripeness. The contention of the SolGen is
that there is no issue ripe for adjudication since the MOA-AD is
only a proposal and does not automatically create legally
demandable rights and obligations. Such was denied.
The SC emphasized that the petitions are alleging acts made
in violation of their duty or in grave abuse of discretion. Well -
settled jurisprudence states that acts made by authority which
exceed their authority, by violating their duties under E.O. No.
3 and the provisions of the Constitution and statutes, the
petitions make a prima facie case for Certiorari, Prohibition,
and Mandamus, and an actual case or controversy ripe for
adjudication exists. When an act of a branch of government is
seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle
the dispute. This is aside from the fact that concrete acts made
under the MOA-AD are not necessary to render the present
controversy ripe and that the law or act in question as not yet
effective does not negate ripeness.
With regards to the locus standi, the court upheld the
personalities of the Province of Cotabato, Province of
Zamboanga del norte, City of Iligan, City of Zamboanga,
petitioners in intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linnamon to have locus standi
since it is their LGUs which will be affected in whole or in part if
include within the BJE. Intervenors Franklin Drilon and Adel
Tamano, in alleging their standing as taxpayers, assert that
government funds would be expended for the conduct of an
illegal and unconstitutional plebiscite to delineate the BJE
territory. On that score alone, they can be given legal standing.
Senator Mar Roxas is also given a standing as an intervenor.
And lastly, the Intervening respondents Muslim Multi -Sectoral
Movement for Peace and Development, an advocacy group for
justice and the attainment of peace and prosperity in Muslim
Mindanao; and Muslim Legal Assistance Foundation Inc., a
non-government organization of Muslim lawyers since they
stand to be benefited or prejudiced in the resolution of the
petitions regarding the MOA-AD.
On the contention of mootness of the issue considering the
signing of the MOA-AD has already been suspended and that
the President has already disbanded the GRP, the SC
disagrees. The court reiterates that the moot and academic
principle is a general rule only, the exceptions, provided in
David v. Macapagal-Arroyo, that it will decide cases, otherwise
moot and academic, if it finds that (a) there is a grave violation
of the Constitution; (b) the situation is of exceptional character
9
and paramount public interest is involved; (c) the constitutional
issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and (d) the case is
capable of repetition yet evading review; and that where there
is a voluntary cessation of the activity complained of by the
defendant or doer, it does not divest the court the power to
hear and try the case especially when the plaintiff is seeking
for damages or injunctive relief.
Clearly, the suspension of the signing of the MOA-AD and the
disbandment of the GRP did not render the petitions moot and
academic. The MOA-AD is subject to further legal enactments
including possible Constitutional amendments more than ever
provides impetus for the Court to formulate controlling
principles to guide the bench, the bar, the public and, in this
case, the government and its negotiating entity.
At all events, the Court has jurisdiction over most if not the rest
of the petitions. There is a reasonable expectation that
petitioners will again be subjected to the same problem in the
future as respondents' actions are capable of repetition, in
another or any form. But with respect to the prayer of
Mandamus to the signing of the MOA-AD, such has become
moot and academic considering that parties have already
complied thereat.
On the Sub stantive Issue
2nd Issue: The SC ruled that the MOA-AD is a matter of public
concern, involving as it does the sovereignty and territorial
integrity of the State, which directly affects the lives of the
public at large.
As enshrined in the Constitution, the right to information
guarantees the right of the people to demand information, and
integrated therein is the recognition of the duty of the
officialdom to give information even if nobody demands. The
policy of public disclosure establishes a concrete ethical
principle for the conduct of public affairs in a genuinely open
democracy, with the people's right to know as the centerpiece.
It is a mandate of the State to be accountable by following
such policy. These provisions are vital to the exercise of the
freedom of expression and essential to hold public officials at
all times accountable to the people.
Also, it was held that such stipulation in the Constitution is self-
executory with reasonable safeguards —the effectivity of which
need not await the passing of a statute. Hence, it is essential to
keep open a continuing dialogue or process of communication
between the government and the people. It is in the interest of
the State that the channels for free political discussion be
maintained to the end that the government may perceive and
be responsive to the people's will.
The idea of a feedback mechanism was also sought for since it
is corollary to the twin rights to information and disclosure. And
feedback means not only the conduct of the plebiscite as per
the contention of the respondents. Clearly, what the law states
is the right of the petitioners to be consulted in the peace
agenda as corollary to the constitutional right to information
and disclosure. As such, respondent Esperon committed grave
abuse of discretion for failing to carry out the furtive process by
which the MOA-AD was designed and crafted runs contrary to
and in excess of the legal authority, and amounts to a
whimsical, capricious, oppressive, arbitrary and despotic
exercise thereto. Moreover, he cannot invoke of executive
privilege because he already waived it when he complied with
the Court’s order to the unqualified disclosure of the official
copies of the final draft of the MOA-AD.
In addition, the LGU petitioners has the right to be involved in
matters related to such peace talks as enshrined in the State
policy. The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively
and drastically result to the diaspora or displacement of a great
number of inhabitants from their total environment.
With respect to the ICC/IPPs they also have the right to
participate fully at all levels on decisions that would clearly
affect their lives, rights and destinies. The MOA-AD is an
instrument recognizing ancestral domain, hence it should have
observed the free and prior informed consent to the ICC/IPPs;
but it failed to do so. More specially noted by the court is the
excess in authority exercised by the respondent—since they
allowed delineation and recognition of ancestral domain claim
by mere agreement and compromise; such power cannot be
found in IPRA or in any law to the effect.
3rd issue: With regard to the provisions of the MOA-AD, there
can be no question that they cannot be all accommodated
under the present Constitution and laws. Not only its specific
provisions but the very concept underlying them:
On matters of the Constitution.
Association as the type of relationship governing between
the parties. The parties manifested that in crafting the MOA-
AD, the term association was adapted from the international
law. In international law, association happens when two states
of equal power voluntarily establish durable links i.e. the one
state, the associate, delegates certain responsibilities to the
other, principal, while maintaining its international status as
state; free association is a middle ground between integration
and independence. The MOA-AD contains many provisions
that are consistent with the international definition of
association which fairly would deduced that the agreement
vest into the BJE a status of an associated state, or at any
rate, a status closely approximating it. The court vehemently
objects because the principle of association is not recognized
under the present Constitution.
On the recognition of the BJE entity as a state. The concept
implies power beyond what the Constitution can grant to a
local government; even the ARMM do not have such
recognition; and the fact is such concept implies recognition of
the associated entity as a state. There is nothing in the law that
contemplate any state within the jurisdiction other than the
10
Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for
independence. The court disagrees with the respondent that
the MOA-AD merely expands the ARMM. BJE is a state in all
but name as it meets the criteria of a state laid down in the
Montevideo Convention, namely, a permanent population, a
defined territory, a government, and a capacity to enter into
relations with other states. As such the MOA-AD clearly runs
counter to the national sovereignty and territorial integrity of the
Republic.
On the expansion of the territory of the BJE. The territory
included in the BJE includes those areas who voted in the
plebiscite for them to become part of the ARMM. The
stipulation of the respondents in the MOA-AD that these areas
need not participate in the plebiscite is in contrary to the
express provision of the Constitution. The law states that that
"[t]he creation of the autonomous region shall be effective
when approved by a majority of the votes cast by the
constituent units in a plebiscite called for the purpose, provided
that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the
autonomous region." Clearly, assuming that the BJE is just an
expansion of the ARMM, it would still run afoul the wordings of
the law since those included in its territory are areas which
voted in its inclusion to the ARMM and not to the BJE.
On the powers vested in the BJE as an entity. The
respondents contend that the powers vested to the BJE in the
MOA-AD shall be within sub-paragraph 9 of sec 20, art. 10 of
the constitution and that a mere passage of a law is necessary
in order to vest in the BJE powers included in the agreement.
The Court was not persuaded. SC ruled that such conferment
calls for amendment of the Constitution; otherwise new
legislation will not concur with the Constitution. Take for
instance the treaty making power vested to the BJE in the
MOA-AD. The Constitution is clear that only the President has
the sole organ and is the country’s sole representative with
foreign nation. Should the BJE be granted with the authority to
negotiate with other states, the former provision must be
amended consequently. Section 22 must also be amended —
the provision of the law that promotes national unity and
development. Because clearly, associative arrangement of the
MOA-AD does not epitomize national unity but rather, of
semblance of unity. The associative ties between the BJE and
the national government, the act of placing a portion of
Philippine territory in a status which, in international practice,
has generally been a preparation for independence, is certainly
not conducive to national unity.
On matters of domestic statutes.
o Provisions contrary to the organic act of ARMM. RA 9054 is
a bar to the adoption of the definition of Bangsamoro people
used in the MOA-AD. Said law specifically distinguishes
between the Bangsamoro people and the Tribal peoples that is
contrary with the definition of the MOA-AD which includes all
indigenous people of Mindanao.

o Provisions contrary to the IPRA law. Also, the delineation
and recognition of the ancestral domain is a clear departure
from the procedure embodied in the IPRA law which ironically
is the term of reference of the MOA-AD.
On matters of international law.
The Philippines adopts the generally accepted principle of
international law as part of the law of the land. In international
law, the right to self-determination has long been recognized
which states that people can freely determine their political
status and freely pursue their economic, social, and cultural
development. There are the internal and external self-
determination—internal, meaning the self-pursuit of man and
the external which takes the form of the assertion of the right to
unilateral secession. This principle of self-determination is
viewed with respect accorded to the territorial integrity of
existing states. External self-determination is only afforded in
exceptional cases when there is an actual block in the
meaningful exercise of the right to internal self-determination.
International law, as a general rule, subject only to limited and
exceptional cases, recognizes that the right of disposing
national territory is essentially an attribute of the sovereignty of
every state.
On matters relative to indigenous people, international law
states that indigenous peoples situated within states do not
have a general right to independence or secession from those
states under international law, but they do have rights
amounting to what was discussed above as the right to internal
self-determination; have the right to autonomy or self-
government in matters relating to their internal and local affairs,
as well as ways and means for financing their autonomous
functions; have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise
used or acquired.
Clearly, there is nothing in the law that required the State to
guarantee the indigenous people their own police and security
force; but rather, it shall be the State, through police officers,
that will provide for the protection of the people. With regards
to the autonomy of the indigenous people, the law does not
obligate States to grant indigenous peoples the near-
independent status of a state; since it would impair the
territorial integrity or political unity of sovereign and
independent states.
On the b asis of the suspensive clause.
o It was contented by the respondents that grave abuse of
discretion cannot be had, since the provisions assailed as
unconstitutional shall not take effect until the necessary
changes to the legal framework are effected.
The Court is not persuaded. This suspensive clause runs
contrary to Memorandum of Instructions from the President
stating that negotiations shall be conducted in accordance to
the territorial integrity of the country—such was negated by the
11
provision on association incorporated in the MOA-AD. Apart
from this, the suspensive clause was also held invalid because
of the delegated power to the GRP Peace panel to advance
peace talks even if it will require new legislation or even
constitutional amendments. The legality of the suspensive
clause hence hinges on the query whether the President can
exercise such power as delegated by EO No.3 to the GRP
Peace Panel. Well settled is the rule that the President cannot
delegate a power that she herself does not possess. The
power of the President to conduct peace negotiations is not
explicitly mentioned in the Constitution but is rather implied
from her powers as Chief Executive and Commander-in-chief.
As Chief Executive, the President has the general
responsibility to promote public peace, and as Commander-in-
Chief, she has the more specific duty to prevent and suppress
rebellion and lawless violence.
As such, the President is given the leeway to explore, in the
course of peace negotiations, solutions that may require
changes to the Constitution for their implementation. At all
event, the president may not, of course, unilaterally implement
the solutions that she considers viable; but she may not be
prevented from submitting them as recommendations to
Congress, which could then, if it is minded, act upon them
pursuant to the legal procedures for constitutional amendment
and revision.
While the President does not possess constituent powers - as
those powers may be exercised only by Congress, a
Constitutional Convention, or the people through initiative and
referendum - she may submit proposals for constitutional
change to Congress in a manner that does not involve the
arrogation of constituent powers. Clearly, the principle may be
inferred that the President - in the course of conducting peace
negotiations - may validly consider implementing even those
policies that require changes to the Constitution, but she may
not unilaterally implement them without the intervention of
Congress, or act in any way as if the assent of that body were
assumed as a certainty. The President’s power is limited only
to the preservation and defense of the Constitution but not
changing the same but simply recommending proposed
amendments or revisions.
o The Court ruled that the suspensive clause is not a
suspensive condition but is a term because it is not a question
of whether the necessary changes to the legal framework will
take effect; but, when. Hence, the stipulation is mandatory for
the GRP to effect the changes to the legal framework –which
changes would include constitutional amendments. Simply put,
the suspensive clause is inconsistent with the limits of the
President's authority to propose constitutional amendments, it
being a virtual guarantee that the Constitution and the laws of
the Republic of the Philippines will certainly be adjusted to
conform to all the "consensus points" found in the MOA-AD.
Hence, it must be struck down as unconstitutional.

On the concept underlying the MOA-AD.
While the MOA-AD would not amount to an international
agreement or unilateral declaration binding on the Philippines
under international law, respondents' act of guaranteeing
amendments is, by itself, already a constitutional violation that
renders the MOA-AD fatally defective. The MOA-AD not being
a document that can bind the Philippines under international
law notwithstanding, respondents' almost consummated act of
guaranteeing amendments to the legal framework is, by itself,
sufficient to constitute grave abuse of discretion. The grave
abuse lies not in the fact that they considered, as a solution to
the Moro Problem, the creation of a state within a state, but in
their brazen willingness to guarantee that Congress and the
sovereign Filipino people would give their imprimatur to their
solution. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress,
a Constitutional Convention, or the people themselves through
the process of initiative, for the only way that the Executive can
ensure the outcome of the amendment process is through an
undue influence or interference with that process.
7. REAGAN v. CIR
FACTS:
Petitioner questioned the payment of an income tax assessed
on him by public respondent on an amount realized by him on
a sale of his automobile to a member of the US Marine Corps,
the transaction having taken place at the Clark Field Air Base.
Petitioner contends that the base is outside Philippine territory
and therefore beyond the jurisdictional power to tax.
ISSUE: Whether or not a sale made on a foreign military base
is excluded from tax.
HELD: No. The said foreign military bases is not a foreign soil
or territory for purposes of income tax legislation. Philippine
jurisdictional rights including the power to tax are preserved.
8. SECRETARY OF JUSTICE v. LANTION & PHILIP
MORRIS
Facts:
In 1977, then President Ferdinand E. Marcos issued
Presidential Decree No. 1069 "Prescribing the Procedure for
the Extradition of Persons Who Have Committed Crimes in a
Foreign Country".
In 1994, then Secretary of Justice Franklin M. Drilon, signed
the "Extradition Treaty Between the Government of the
Republic of the Philippines and the Government of the United
States of America" (RP-US Extradition Treaty). The Senate, by
way of Resolution No. 11, expressed its concurrence in the
ratification of said treaty.
In 1999, the Department of Justice received from the
12
Department of Foreign Affairs U.S. Note Verbale No. 0522
containing a request for the extradition of private respondent
Mark Jimenez to the United States. Attached to the Note
Verbale were the Grand Jury Indictment, the warrant of arrest
and other documents.
Petitioner issued Departm ent Order No. 249 authorizing a
panel of attorneys to take charge of and to handle the case
pursuant to Section 5(1) of P.D. No. 1069. Accordingly, the
panel began with the "technical evaluation and assessment" of
the extradition request and the documents in support thereof.
The panel found that the "official English translation of some
documents in Spanish were not attached to the request and
that there are some other matters that needed to be
addressed"
Pending evaluation of the extradition documents, private
respondent wrote a letter addressed to petitioner requesting
copies of the official extradition request from the U.S.
Government, as well as all documents and papers submitted
therewith; and that he be given ample time to comment on the
request after he shall have received copies of the requested
papers. Private respondent also requested that the
proceedings on the matter be held in abeyance in the
meantime.
Petitioner, denied the foregoing requests on the ground that
evaluation by the DOJ of the documents is not a preliminary
investigation nor akin to preliminary investigation of criminal
cases, that they only determine whether the procedures and
requirements under the treaty have been complied with. The
constitutionally guaranteed rights of the accused in all criminal
prosecutions are therefore not available.
Petitioner asseverated that it is only after the filing of the
petition for extradition when the person sought to be extradited
will be furnished by the court with copies of the petition,
request and extradition documents and the DOJ will not pose
any objection to a request for ample time to evaluate said
documents. That said department is not in a position to hold in
abeyance the proceedings on connection with the extradtion
request. Article 26 of the Vienna Convention on the Law of
Treaties mandates good faith compliance of its obligation; and
that extradition is a tool of criminal law enforcement and to be
effective, requests for extradition or surrender of accused or
convicted persons must be processed expeditiously.
1999, private respondent filed with the RTC for mandamus
certiorari and prohibition, presided over by the Honorable
Lantion. Respondent judge issued an order, directing the
petitioner from performing any act directed to the extradition of
the petitioner to the United States
Issue: W/N the function of the DOJ in its evaluation process is
merely a ministerial function which is not akin to a preliminary
investigation (thus notice and hearing are not needed)
Ruling:
Negative; A s trict observance of the Extradition Law indicates
that the only duty of the Secretary of Justice is to file the
extradition petition after the request and all the supporting
papers are forwarded to him by the Secretary of Foreign
Affairs. It is the latter official who is authorized to evaluate the
extradition papers, to assure their sufficiency, and under
Paragraph [3], Article 3 of the Treaty, to determine whether or
not the request is politically motivated, or that the offense is a
military offense which is not punishable under non-military
penal legislation. Ipso facto, as expressly provided in
Paragraph [1], Section 5 of the Extradition Law, the Secretary
of Justice has the ministerial duty of filing the extradition
papers.
However, looking at the factual milieu of the case before us, it
would appear that there was failure to abide by the provisions
of Presidential Decree No. 1069. For while it is true that the
extradition request was delivered to the Department of Foreign
Affairs on June 17, 1999, the following day or less than 24
hours later, the Department of Justice received the request,
apparently without the Department of Foreign Affairs
discharging its duty of thoroughly evaluating the same and its
accompanying documents. The statement of an assistant
secretary at the Department of Foreign Affairs that his
Department, in this regard, is merely acting as a post office, for
which reason he simply forwarded the request to the
Department of Justice, indicates the magnitude of the error of
the Department of Foreign Affairs in taking lightly its
responsibilities. Thereafter, the Department of Justice took it
upon itself to determine the completeness of the documents
and to evaluate the same to find out whether they comply with
the requirements laid down in the Extradition Law and the RP-
US Extradition Treaty. Petitioner ratiocinates in this connection
that although the Department of Justice had no obligation to
evaluate the extradition documents, the Department also had
to go over them so as to be able to prepare an extradition
petition.
The two Departments seem to have misread the scope of their
duties and authority, one abdicating its powers and the other
enlarging its commission.
Plainly then, the record cannot support the presumption of
regularity that the Department of Foreign Affairs thoroughly
reviewed the extradition request and supporting documents
and that it arrived at a well-founded judgment that the request
and its annexed documents satisfy the requirements of law.
The Secretary of Justice, eminent as he is in the field of law,
could not privately review the papers all by himself. He had to
officially constitute a panel of attorneys. How then could the
DFA Secretary or his undersecretary, in less than one day,
make the more authoritative determination?
The evaluation process, just like the extradition proceedings
proper, belongs to a class by itself. It is sui generis. It is not a
criminal investigation, but it is also erroneous to say that it is
purely an exercise of ministerial functions. At s uch stage, the
executive authority has the power: (a) to make a technical
assessment of the completeness and sufficiency of the
extradition papers; (b) to outrightly deny the request if on its
13
face and on the face of the supporting documents the crimes
indicated are not extraditable; and (c) to make a determination
whether or not the request is politically motivated, or that the
offense is a military one which is not punishable under non -
military penal law. Hence, said process may be characterized
as an investigative or inquisitorial process in contrast to a
proceeding conducted in the exercise of an administrative
body's quasi-judicial power.
In administrative law, a quasi-judicial proceeding involves: (a)
taking and evaluation of evidence; (b) determining facts based
upon the evidence presented; and (c) rendering an order or
decision supported by the facts proved. Inquisitorial power,
which is also known as examining or investigatory power, is
one or the determinative powers of an administrative body
which better enables it to exercise its quasi-judicial authority.
This power allows the administrative body to inspect the
records and premises, and investigate the activities, of persons
or entities coming under its jurisdiction, or to require disclosure
of information by means or accounts, records, reports,
testimony of witnesses, production of documents, or otherwise.
The power of investigation consists in gathering, organizing,
and analyzing evidence, which is a useful aid or tool in an
administrative agency's performance of its rule-making or
quasi-judicial functions. Notably, investigation is indispensable
to prosecution.
In Ruperto v. Torres, the Court had occasion to rule on the
functions of an investigatory body with the sole power of
investigation. It does not exercise judicial functions and its
power is limited to investigating the facts and making findings
in respect thereto. The Court laid down the test of determining
whether an administrative body is exercising judicial functions
or merely investigatory functions: Adjudication signifies the
exercise of power and authority to adjudicate upon the rights
and obligations of the parties before it. Hence, if the only
purpose for investigation is to evaluate evidence submitted
before it based on the facts and circumstances presented to it,
and if the agency is not authorized to make a final
pronouncement affecting the parties, then there is an absence
of judicial discretion and judgment.
The above description in Ruperto applies to an administrative
body authorized to evaluate extradition documents. The body
has no power to adjudicate in regard to the rights and
obligations of both the Requesting State and the prospective
extraditee. Its only power is to determine whether the papers
comply with the requirem ents of the law and the treaty and,
therefore, sufficient to be the basis of an extradition petition.
Such finding is thus merely initial and not final. The body has
no power to determine whether or not the extradition should be
effected. That is the role of the court. The body's power is
limited to an initial finding of whether or not the extradition
petition can be filed in court.
We conclude that the evaluation process is akin to an
administrative agency conducting an investigative proceeding,
the consequences of which are essentially criminal since such
technical assessment sets off or commences the procedure
for, and ultimately, the deprivation of liberty of a prospective
extraditee. As described by petitioner himself, this is a "tool" for
criminal law enforcement. In essence, therefore, the evaluation
process partakes of the nature of a criminal investigation. In a
number of cases, we had occasion to make available to a
respondent in an administrative case or investigation certain
constitutional rights that are ordinarily available only in criminal
prosecutions. Further, as pointed out by Mr. Justice Mendoza
during the oral arguments, there are rights formerly available
only at the trial stage that had been advanced to an earlier
stage in the proceedings, such as the right to counsel and the
right against self-incrimination.
In Pascual v. Board of Medical Examiners, we held that the
right against self-incrimination under Section 17, Article III of
the 1987 Constitution which is ordinarily available onl y in
criminal prosecutions, extends to administrative proceedings
which possess a criminal or penal aspect, such as an
administrative investigation of a licensed physician who is
charged with immorality, which could result in his loss of the
privilege to practice medicine if found guilty. The Court, citing
the earlier case of Cabal vs. Kapunan, pointed out that the
revocation of one's license as a medical practitioner, is an even
greater deprivation than forfeiture of property.
The cases mentioned above refer to an impending threat of
deprivation of one's property or property right. No less is this
true, but even more so in the case before us, involving as it
does the possible deprivation of liberty, which, based on the
hierarchy of constitutionally protected rights, is placed second
only to life itself and enjoys precedence over property, for while
forfeited property can be returned or replaced, the time spent
in incarceration is irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request
exposes a person to eventual extradition to a foreign country,
thus saliently exhibiting the criminal or penal aspect of the
process. In this sense, the evaluation procedure is akin to a
preliminary investigation since both procedures m ay have the
same result — the arrest and imprisonment of the respondent
or the person charged. Similar to the evaluation stage of
extradition proceedings, a preliminary investigation, which may
result in the filing of an information against the respondent, can
possibly lead to his arrest, and to the deprivation of his liberty.
Compliance with due process requirements cannot be deemed
non-compliance with treaty commitments. Due process is
comprised of two components — substantive due process
which requires the intrinsic validity of the law in interfering with
the rights of the person to his life, liberty, or property, and
procedural due process which consists of the two basic rights
of notice and hearing, as well as the guarantee of being heard
by an impartial and competent tribunal.
True to the mandate of the due process clause, the basic rights
of notice and hearing pervade not only in criminal and civil
proceedings, but in administrative proceedings as well. Non -
observance of these rights will invalidate the proceedings.
14
Individuals are entitled to be notified of any pending case
affecting their interests, and upon notice, they may claim the
right to appear therein and present their side and to refute the
position of the opposing parties.
In a preliminary investigation which is an administrative
investigatory proceeding, Section 3, Rule 112 of the Rules of
Court guarantees the respondent's basic due process rights,
granting him the right to be furnished a copy of the complaint,
the affidavits, and other s upporting documents.
These twin rights may, however, be considered dispensable in
certain instances, such as:
In proceeding where there is an urgent need for
immediate action, like the summary abatement of a nuisance
per se (Article 704, Civil Code), the preventive suspension of a
public servant facing administrative charges (Section 63, Local
Government Code, B.P. Blg. 337), the padlocking of filthy
restaurants or theaters showing obscene movies or like
establishments which are immediate threats to publ ic health
and decency, and the cancellation of a passport of a person
sought for criminal prosecution;
Where there is tentativeness of administrative action,
that is, where the respondent is not precluded from enjoying
the right to notice and hearing at a later time without prejudice
to the person affected, such as the summary distraint and levy
of the property of a delinquent taxpayer, and the replacement
of a temporary appointee; and
Where the twin rights have previously been offered
but the right to exercise them had not been claimed.
Worthy of inquiry is the issue of whether or not there is
tentativeness of administrative action. Is private respondent
precluded from enjoying the right to notice and hearing at a
later time without prejudice to him? Here lies the peculiarity
and deviant characteristic of the evaluation procedure. On one
hand there is yet no extraditee, but ironically on the other, it
results in an administrative action if adverse to the person
involved, may cause his immediate incarceration. The grant of
the request shall lead to the filing of the extradition petition in
court. The "accused", faces the threat of arrest, not only after
the extradition petition is filed in court, but even during the
evaluation proceeding itself by virtue of the provisional arrest
allowed under the treaty and the implementing law. The
prejudice to the "accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative
due process cannot be dispensed with and shelved aside.
On the issue whether there is a conflict between the treaty and
the due process clause in the Constitution:
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 observance of the Incorporation Clause in
the above-cited constitutional provision. 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 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.
In the case at bar, is there really a conflict between
international law and municipal or national law? En contrario,
these two components of the law of the land are not pined
against each other. There is no occasion to choose which of
the two should be upheld. Instead, we see a void in th e
provisions of the RP-US Extradition Treaty, as implemented by
Presidential Decree No. 1069, as regards the basic due
process rights of a prospective extraditee at the evaluation
stage of extradition proceedings. From the procedures earlier
abstracted, after the filing of the extradition petition and during
the judicial determination of the propriety of extradition, the
rights of notice and hearing are clearly granted to the
prospective extraditee. However, prior thereto, the law is silent
as to these rights. Reference to the U.S. extradition procedures
also manifests this silence.
Petitioner interprets this silence as unavailability of these
rights. Consequently, he describes the evaluation procedure as
an "ex parte technical assessment" of the sufficiency of the
extradition request and the supporting documents.
We disagree. In the absence of a law or principle of law, we
must apply the rules of fair play. An application of the basic
twin due process rights of notice and hearing will not go
against the treaty or the implementing law. Neither the Treaty
nor the Extradition Law precludes these rights from a
prospective extraditee.
The basic principles of administrative law instruct us that "the
essence of due process in administrative proceeding is an
opportunity to explain one's side or an opportunity to seek
reconsideration of the actions or ruling complained of
In essence, procedural due process refers to the method or
manner by which the law is enforced. This Court will not
tolerate the least disregard of constitutional guarantees in the
enforcement of a law or treaty.
15
9. NORTH SEA CONTINENTAL SHELF CASE
Facts:
Netherlands and Denmark had drawn partial boundary lines
based on the equidistance principle (A-B and C-D). An
agreement on further prolongation of the boundary proved
difficult becauseDenmark and Netherlands wanted this
prolongation to take place based on the equidistanceprinciple
(B-E and D-E) where as Germany was of the view that,
together, these two boundaries would produce an inequitable
result for her.
Germany stated that due to its concave coastline, such a line
would result in her loosing out on her share of the continental
shelf based on proportionality to the length of its North Sea
coastline. The Court had to decide the principles and rules of
international law applicable to this delimitation. In doing so, the
Court had to decide if the principles espoused by the parties
were binding on the parties either through treaty law or
customary international law.
Issue:
Is Germany under a legal obligation to accept the
equidistance-special circumstances principle, contained in
Article 6 of the Geneva Convention on the Continental Shelf of
1958, either as a customary international law rule or on the
basis of the Geneva Convention?
Held:
No, Germany is not under such obligation. The use of the
equidistance method had not crystallised into customary law
and the method was not obligatory for the delimitation of the
areas in the North Sea related to the present proceedings.
Also, Germany has not ratified the same.
1. Article 6 of the Geneva Convention stated that unless the
parties had already agreed on a method for delimitation or
unless special circumstances exist, the equidistance method
would apply. Germany had signed, but not ratified, the Geneva
Convention, while Netherlands and Denmark were parties to
the Convention. The latter two States argued that while
Germany is not a party to the Convention (not having ratified
it), she was still bound by Article 6 of the Convention.
The Court rejected the first argument. It said that only a ‘very
definite very consistent course of conduct on the part of a State
would allow the Court to presume that the State had somehow
become bound by a treaty (by a means other than in the formal
manner: i.e. ratification) when the State was ‘at all times fully
able and entitled to…’ accept the treaty commitments in a
formal manner. The Court held that Germany had not
unilaterally assumed obligations under the Convention. The
court also took notice of the fact that even if Germany ratified
the treaty, she had the option of entering into a reservation on
Article 6, following which that particular article would no longer
be applicable to Germany (in other words, even if one were to
assume that Germany had intended to become a party to the
Convention, it does not presuppose that it would have also
undertaken those obligations contained in Article 6).
2. The Court held that the existence of a situation of estoppel
would have allowed Article 6 to become binding on Germany –
but held that Germany’s action did not support an argument for
estoppel. The Court also held that the mere fact that Germany
may not have specifically objected to the equidistance principle
as contained in Article 6, is not sufficient to state that the
principle is now binding upon it.
3. The Court held that the principle of equidistance, as
contained in Article 6 did not form a part of existing or
emerging customary international law at the time of drafting the
Convention. The Court supported this finding based on (1) the
hesitation expressed by the drafters of the Convention, the
International Law Commission, on the inclusion of Article 6 into
the Convention and (2) the fact that reservations to Article 6
was permissible under the Convention.
4. For a customary rule to emerge the Court held that it
needed: (1) very widespread and representative participation in
the Convention, including States whose interests were
specially affected (in this case, they were coastal States) (i.e.
generality); and (2) virtually uniform practice (i.e. consistent
and uniform usage) undertaken in a manner that demonstrates
(3) a general recognition of the rule of law or legal obligation
(i.e. opinio juries). In the North Sea Continental Shelf cases the
court held that the pass age of a considerable period of time
was unnecessary (i.e. duration) for the formation of a
customary law.
The Court held that the first criteria was not met. The number
of ratifications and accessions to the Convention (39 States)
were not adequately representative or widespread. The Court
concluded that even if there were some State practice in favour
of the equidistance principle, the Court could not deduct the
necessary opinio juris from this State practice. The North Sea
Continental Shelf Cases confirmed that both State practice (the
objective element) and opinio juris (the subjective element) are
essential pre-requisites for the formation of a customary law
rule. This is consistent with Article 38 (1) (b) of the Statute of
the ICJ.
10. MIJARES v. RANADA
FACTS:
Ten Filipino citizens who each alleged having suffered human
rights abuses such as arbitrary detention, torture and rape in
the hands of police or military forces during the Marcos regime,
filed with the US District Court, Hawaii, against the Estate
Ferdinand E. Marcos.
Trial ensued, and subsequently a jury rendered a Final
Judgment and an award of compensatory and exemplary
damages in favor of the plaintiff class with an award of a total
16
of One Billion Nine Hundred Sixty Four Million Five Thous and
Eight Hundred Fifty Nine Dollars and Ninety Cents
($1,964,005,859.90)
The present petitioners filed Complaint with the Makati RTC for
the enforcement of the Final Judgment.
Respondent Judge Ranada of the Makati RTC issued the
subject Orderdismissing the complaint without prejudice. He
opined that the subject matter of the complaint was capable of
pecuniary estimation, as it involved a judgment rendered by a
foreign court ordering the payment of definite sums of money,
allowing for easy determination of the value of the foreign
judgment.
The RTC estimated the proper amount of filing fees was
approximately Four Hundred Seventy Two Million Pesos,
which obviously had not been paid.
Petitioners submit that their action is incapable of pecuniary
estimation as the subject matter of the suit is the enforcement
of a foreign judgment, and not an action for the collection of a
sum of money or recovery of damages. They also point out
that to require the class plaintiffs to pay Four Hundred Seventy
Two Million Pesos (P472,000,000.00) in filing fees would
negate and render inutile the liberal construction ordained by
the Rules of Court, particularly the inexpensive disposition of
every action.
ISSUE:
What provision, if any, then should apply in determining the
filing fees for an action to enforce a foreign judgment?
RULING:
Respondent judge was in clear and serious error when he
concluded that the filing fees should be computed on the basis
of the schematic table of Section 7(a), as the action involved
pertains to a claim against an estate based on judgment.
A proper understanding is required on the nature and effects of
a foreign judgment in this jurisdiction.
The rules of comity, utility and convenience of nations have
established a usage among civilized states by which final
judgments of foreign courts of competent jurisdiction are
reciprocally respected and rendered efficacious under certain
conditions that may vary in different countries.
The conditions required by the Philippines for recognition and
enforcement of a foreign judgment has remained unchanged.
SEC. 48. Effect of foreign judgments. The effect of a judgment
of a tribunal of a foreign country, having jurisdiction to
pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is
conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is
presumptive evidence of a right as between the parties and
their successors in interest by a subsequent title;

In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
There is an evident distinction between a foreign judgment in
an action in rem and one in personam. For an action in rem,
the foreign judgment is deemed conclusive upon the title to the
thing, while in an action inpersonam, the foreign judgment is
presumptive, and not conclusive, of a right as between the
parties and their successors in interest by a subsequent title.
Thus, the party aggrieved by the foreign judgment is entitled to
defend against the enforcement of such decision in the local
forum. It is essential that there should be an opportunity to
challenge the foreign judgment, in order for the court in this
jurisdiction to properly determine its efficacy.
Consequently, the party attacking a foreign judgment has the
burden of overcoming the presumption of its validity.
Petition is GRANTED.
granting the TRO, enjoining the respondents from
implementing the assailed RIRR.
Petitioner assails the RIRR for going beyond the
provisions of TMC thereby amending and expanding the
coverage of the said law.
DOH meanwhile contends that the RIRR implements
not only TMC but also various international instruments
regarding infant and young child nutrition. They posit that the
said international instruments are deemed part of the law of the
land and therefore may be implemented by the DOH in the
RIRR.
Issue: Whether or not the pertinent international agreements
entered into by the Philippines are part of the law of the land
and may thus be implemented through an RIRR, if so, is the
RIRR in accord with such international agreements?

Ruling:
11. PHARMACEUTICAL AND HEALTH CARE Are the international instruments referred to by the
ASSOCIATION V. DUQUE respondents part of the law of the land?

The various international instruments invoked by respondents

Facts:
are:
Executive Order No. 51 (The Milk Code - TMC) was
● The UN Conventions on the Rights of the Child
issued by Pres. Aquino on Oct. 28, 1986 by virtue of the
● The International Convenant on EconomiSo Social,
legislative powers granted to her under the Freedom
and Cultural Rights
Constitution.
● Convention on the Elimination of All Forms of
One of the preambular clauses of TMC – the law
Discrimination Against Women
seeks to give effect to Article 11 of the International Code of
Marketing of Breastmilk Substitutes (ICMBS), a code adopted
These instruments only provide general terms of the steps that
by the WHA (World Health Assembly) in 1981.
States must take to prevent child mortality. Hence, they do not
In 1990, the Philippine ratified the International
have anything about the use and marketing of breastmilk
Convention on the Rights of the Child. Art. 24 of the instrument
substitutes
mandates that States should take measure to diminish infant
mortality and should ensure that all segments of society are
The ICMBS and other WHA Resolutions however, are
informed of the advantages of breastfeeding.
the international instruments which have specific provisions on
breastmilk substitutes.
From 1982 – 2006, the WHA adopted several
resolutions to the effect that breastfeeding s hould be
Under the 1987 Constitution, international law can
supported, promoted and protected, hence, it should be
become part of domestic law in 2 ways:
ensured that nutrition and health claims are not permitted for
breastmilk substitutes.
1. Transformation – an international law is transformed
into a domestic law through a constitutional
May 15, 2006 – DOH issues the assailed RIRR
mechanism such as local legislation.
(Revised Implementing Rules and Regulations of E.O. 51 or
A.O. No. 2006-0012) which was to take effect on July 7, 2006.
Treaties become part of law of the land through this
– The RIRR imposes a ban on all advertisements of breastmilk
method, pursuant to Art 7, Sec 21 – wherein “no
substitutes
treaty or international agreement shall be valid..
unless concurred by at least 2/3 of Senate”
June 28, 2006 – Petitioner filed the present Petition
for Certiorari and Prohibition with Prayer for the Issuance of a
The ICMBS and WHA Resolutions are NOT treaties as they
TRO or Writ of Preliminary injunction.
haven't been concurred in by the required 2/3 vote.
HOWEVER, the ICMBS has been transformed into domestic
August 15, 2006 – the Court issued a Resolution
law through local legislation that is TMC.

17
Therefore, it is not the ICMBS per se that has the force of law
but it's TMC.
While TMC is almost a verbatim reproduction of the ICMBS, it
did not adopt the latter's provision on the absolute prohibition
on advertising of products within the scope of the ICMBS.
Instead the MC provides that advertising promotion or other
marketing materials may be allowed if such materials are
approved by a com mittee.
2. Incorporation – by mere constitutional declaration,
international law is deemed to have the force of
domestic law
This is found under Art 2, Sec 2 – The
Philippines… adopts generally accepted principles of
international law as part of the law of the lan.
In Mihares v. Ranada: International law becomes
customary rules accepted as binding as a result of two
elements:
1. Established, widespread, and consistent practice on
part of the state.
2. Opinion juris sive necessitates (opinion as to law or
necessity.
Generally accepted principles of international
law refer to norms of general or customary
international law which are binding on all states, valid
through all kinds of human societies, and basic to
legal systems generally
Fr. Bernas has a definition similar to the one above. Customary
international law has two factors:
1. Material factor – how states behave
The consistency and the generality of the
practice
2. Psychological or subjective factor – why they behave
the way they do
Once state practice has been established,
now determine why they behave they do. Is it ouor of
courtesy or opinio juris (the belief that a certain type
of behavior is obligatory)
When a law satisfies the two factors it
becomes part of customary international law which is
then incorporated into our domestic system
Since the WHA Resolutions have not been embodied in any
local legislation, have they attained the status of customary law
and hence part of our law of the land?
The World Health Organization (WHO) is one of the
international specialized agencies of the UN.
18
According to the WHO Constitution, it's the WHA
which determines the policies of the WHO, the former also has
the power to “adopt regulations concerning advertising and
labeling of pharmaceutical and similar products” and “to make
recommendations to members on any matter within the
Organization's competence”.
Note that the legal effect of a regulation as opposed
to recommendation is quite different.
Regulations which are duly adopted by the WHA are
binding on member states.
On the other hand, recommendations of the WHA do
not come into force for its members unlike regulations. Rather,
they carry moral and political weight as they constitute the
judgment on a health issue of the collective membership of the
highest body in the field of health.
The WHA resolution adopting the ICMBS and the
subsequent WHA resolutions urging states to implement the
ICMBS are merely recommendatory and legally non-binding.
Hence, unlike the ICMBS which has become TMC
through legislative enactment, the subsequent WHA
Resolutions, which provide for exclusive breastfeeding and
prohibition on advertisements and promotions of breastmilk
have not been adopted as domestic law.
WHA Resolutions have been viewed to constitute
“soft law” or non-binding norms, which influence state
behavior. Soft law has been noted to be a rapid means of norm
creation, in order to reflect and respond to the changing needs
and demands of constituents (of the UN.)
As previously discussed, for an international rule to be
considered customary law, it must be established that such
rule is followed by states because it is considered obligatory
(opinio juris).
In the case at bar, respondents have not presented
any evidence to prove that the WHA Resolutions are in fact
enforced or practice by member states. Further, they failed to
establish that provisions of pertinent WHA Resolutions are
customary international law that may be deemed part of law of
the land.
Hence, legislation is necessary to transform the WHA
resolutions into domestic law. They cannot thus be
implemented by executive agencies without the need of a law
to be enacted by legislature.
Disposition: The Petition is Partially Granted. Only sections
4(f), 11 and 46 of A.O. 2006-0014 are declared null and void
for being ultra vires. The TRO is lifted insofar as the rest of the
provisions of A.O. 2006-0012 is concerned.

12. BAYAN MUNA v. ROMULO
FACTS:
In 2000, the RP, through Charge d’Affaires Enrique A. Manalo,
signed the Rome Statute which, by its terms, is “subject to
ratification, acceptance or approval” by the signatory states.
In 2003, via Exchange of Notes with the US government, the
RP, represented by then DFA Secretary Ople, finalized a non -
surrender agreement which aimed to protect certain persons of
the RP and US from frivolous and harassment suits that might
be brought against them in international tribunals.
Petitioner imputes grave abuse of discretion to respondents in
concluding and ratifying the Agreement and prays that it be
struck down as unconstitutional, or at least declared as without
force and effect.
ISSUES:
[1] Did respondents abuse their discretion amounting to lack or
excess of jurisdiction in concluding the RP-US Non Surrender
Agreement in contravention of the Rome Statute?
[2] Is the agreement valid, binding and effective without the
concurrence by at least 2/3 of all the members of the Senate?
HELD: The Agreement does not contravene or undermine, nor
does it differ from, the Rome Statute. Far from going aga inst
each other, one complements the other. As a matter of fact,
the principle of complementarity underpins the creation of the
ICC. According to Art. 1 of the Statute, the jurisdiction of the
ICC is to “be complementary to national criminal jurisdictions
[of the signatory states].” the Rome Statute expressly
recognizes the primary jurisdiction of states, like the RP, over
serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only
when the signatory states are unwilling or unable to prosecute.
Also, under international law, there is a considerable difference
between a State-Party and a signatory to a treaty. Under the
Vienna Convention on the Law of Treaties, a signatory state is
only obliged to refrain from acts which would defeat the object
and purpose of a treaty. The Philippines is only a signatory to
the Rome Statute and not a State-Party for lack of ratification
by the Senate. Thus, it is only obliged to refrain from acts
which would defeat the object and purpose of the Rome
Statute. Any argument obliging the Philippines to follow any
provision in the treaty would be premature. And even assuming
that the Philippines is a State-Party, the Rome Statute still
recognizes the primacy of international agreements entered
into between States, even when one of the States is not a
State-Party to the Rome Statute.
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 executive agreements covering
19
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.
Executive agreements may be validly entered into without such
concurrence. As the President wields vast powers and
influence, her conduct in the external affairs of the nation is, as
Bayan would put it, “executive altogether.” The right of the
President to enter into or ratify binding executive agreements
has been confirmed by long practice. DISMISSED.
13. WORLD HEALTH ORGANIZATION v. AQUINO
Facts:
The present petition is an original action for certiorari and
prohibition to set aside respondent judge's refusal to quash a
search warrant issued by him at the instance of respondents
Constabulary Offshore Action Center (COSAC) officers for the
search and seizure of the personal effects of Verstuyft of the
WHO (World Health Organization) notwithstanding his being
entitled to diplomatic immunity, as duly recognized by the
Executive branch of the government and to prohibit respondent
judge from further proceedings in the matter.
The Secretary of Foreign Affairs Carlos P. Romulo pleaded to
Hon. Aquino that Dr. Verstuyft is entitled to immunity from
search in respect for his personal baggage as accorded to
members of diplomatic missions pursuant to the Host
Agreement and further requested for the suspension of the
search warrant. The Solicitor General accordingly joined the
petitioner for the quashal of the search warrant but respondent
judge nevertheless summarily denied the quash hence, the
petition at bar.
Issue: Whether or not personal effect of WHO Officer Dr.
Verstuyft can be exempted from search and seizure under the
diplomatic immunity.
Ruling:
The executive branch of the Phils has expressly recognized
that Verstuyft is entitled to diplomatic immunity, pursuant to the
provisions of the Host Agreement. The DFA formally advised
respondent judge of the Philippine Government's official
position. The Solicitor General, as principal law officer of the
gorvernment, likewise expressly affirmed said petitioner's right
to diplomatic immunity and asked for the quashal of the search
warrant.
The unfortunate fact remains that respondent judge chose to
rely on the suspicion of respondents COSAC officers "that the
other remaining crates unopened contain contraband items"
The provisions of Republic Act 75 declares as null and void
writs or processes sued out or prosecuted whereby inter alia
the person of an ambassador or public minister is arrested or
imprisoned or his goods or chattels are seized or attached and
makes it a penal offense for "every person by whom the same
is obtained or prosecuted, whether as party or as attorney, and
every officer concerned in executing it" to obtain or enforce
such writ or process.
The Court, therefore, holds the respondent judge acted without
jurisdiction and with grave abuse of discretion in not ordering
the quashal of the search warrant issued by him in disregard of
the diplomatic immunity of petitioner Verstuyft. The writs of
certiorari and prohibition from the petitioners were granted.
14. MINUCHER v. CA
FACTS:
Violation of the “Dangerous Drugs Act of 1972,” was filed
against Minucher following a “buy-bust operation” conducted
by Philippine police narcotic agents accompanied by Scalzo in
the house of Minucher, an Iranian national, where heroin was
said to have been seized. Minucher was later acquitted by the
court. Minucher later on filed for damages due to trumped-up
charges of drug trafficking made by Arthur Scalzo.
Scalzo on his counterclaims that he had acted in the discharge
of his official duties as being merely an agent of the Drug
Enforcement Administration of the United States Department of
Justice.
Scalzo subsequently filed a motion to dismiss the complaint on
the ground that, being a special agent of the United States
Drug Enforcement Administration, he was entitled to diplomatic
immunity. He attached to his motion Diplomatic Note of the
United States Embassy addressed to DOJ of the Philippines
and a Certification of Vice Consul Donna Woodward, certifying
that the note is a true and faithful copy of its original. Trial court
denied the motion to dismiss.
ISSUE:
Whether or not Arthur Scalzo is indeed entitled to diplomatic
immunity.
RULLING:
YES. A foreign agent, operating within a territory, can be
cloaked with immunity from suit as long as it can be
established that he is acting within the directives of the sending
state.
The consent or imprimatur of the Philippine government to the
activities of the United States Drug Enforcement Agency,
however, can be gleaned from the undisputed facts in the
case.
The official exchanges of communication between agencies of
the government of the two countries .
20
Certifications from officials of both the Philippine Department of
Foreign Affairs and the United States Embas sy
Participation of members of the Philippine Narcotics Command
in the “buy-bust operation” conducted at the residence of
Minucher at the behest of Scalzo. These may be inadequate to
support the “diplomatic status” of the latter but they give
enough indication that the Philippine government has given its
imprimatur, if not consent, to the activities within Philippine
territory of agent Scalzo of the United States Drug
Enforcement Agency.
The job description of Scalzo has tasked him to conduct
surveillance on suspected drug suppliers and, after having
ascertained the target, to inform local law enforcers who would
then be expected to make the arrest.
In conducting surveillance activities on Minucher, later acting
as the poseur-buyer during the buy-bust operation, and then
becoming a principal witness in the criminal case against
Minucher,
Scalzo hardly can be said to have acted beyond the scope of
his official function or duties.
15. REPUBLIC OF INDONESIA v. VINZONS
FACTS
Petitioner, Republic of Indones ia entered into a Maintenance
Agreement in August 1995 with respondent James Vinzon,
sole proprietor of Vinzon Trade and Services. The
Maintenance Agreement stated that respondent shall, for a
consideration, maintain specified equipment at the Embassy
Main Building, Embassy Annex Building and the Wisma Duta,
the official residence of petitioner Ambassador Soeratmin. The
equipments covered by the Maintenance Agreement are air
conditioning units, generator sets, electrical facilities, water
heaters, and water motor pumps. It is likewise stated therein
that the agreement shall be effective for a period of four years
and will renew itself automatically unless cancelled by either
party by giving thirty days prior written notice from the date of
expiry.
Petitioners claim that sometime prior to the date of expiration
of the said agreement, or before August 1999, they informed
respondent that the renewal of the agreement shall be at the
discretion of the incoming Chief of Administration, Minister
Counsellor Azhari Kasim, who was expected to arrive in
February 2000. When Minister Counsellor Kasim assumed the
position of Chief of Administration in March 2000, he allegedly
found respondents work and services unsatisfactory and not in
compliance with the standards set in the Maintenance
Agreement. Hence, the Indonesian Embassy terminated the
agreement in a letter dated August 31, 2000. Petitioners claim,
moreover, that they had earlier verbally informed respondent of
their decision to terminate the agreement. On the other hand,
respondent claims that the aforesaid termination was arbitrary
and unlawful. Respondent filed a complaint against petitioners
(RTC) of Makati, petitioners filed a Motion to Dismiss, alleging
that the Republic of Indonesia, as a foreign sovereign Sta te,
has sovereign immunity from suit and cannot be sued as a
party-defendant in the Philippines. The said motion further
alleged that Ambassador Soeratmin and Minister Counsellor
Kasim are diplomatic agents as defined under the Vienna
Convention on Diplomatic Relations and therefore enjoy
diplomatic immunity. In turn, respondent filed on March 20,
2001, an Opposition to the said motion alleging that the
Republic of Indonesia has expressly waived its immunity from
suit. He based this claim upon the following provision in the
Maintenance Agreement.
ISSUES:
1. Whether the petitioners have waived their immunity from suit
by using as its basis the Maintenance Agreement
2. Whether the actual physic maintenance of the premises of
the diplomatic mission is no longer a sovereign function of the
State
3. Whether the petitioners may be sued herein in their private
capacities
RULING
1. The Supreme Court on the matter ruled that the republic of
Indonesia cannot be deemed to have waived its immunity to
suit. The existence alone of a paragraph in a contract stating
that any legal action arising out of the agreement shall be
settled according to the laws of the Philippines and by a
specified court of the Philippines is not necessarily a waiver of
sovereign immunity from suit. The aforesaid provision contains
language not necessarily inconsistent with sovereign immunity.
On the other hand, such provision may also be meant to apply
where the sovereign party elects to sue in the local courts, or
otherwise waives its immunity by any subsequent act. The
applicability of Philippine laws must be deemed to include
Philippine laws in its totality, including the principle recognizing
sovereign immunity. Hence, the proper court may have no
proper action, by way of settling the cas e, except to dismiss it.
The Court stated that the upkeep of its furnishings and
equipment is still part sovereign function of the State. A
sovereign State does not merely establish a diplomatic mission
and leave it at that; the establishment of a diplomatic mission
encompasses its maintenance and upkeep. Hence, the State
may enter into contracts with private entities to maintain the
premises, furnishings and equipment of the embassy and the
living quarters of its agents and officials. It is therefore clear
that petitioner Republic of Indonesia was acting in pursuit of a
sovereign activity when it entered into a contract with
respondent for the upkeep or maintenance of the air
conditioning units, generator sets, electrical facilities, water
heaters, and water motor pumps of the Indonesian Embassy
21
and the official residence of the Indonesian ambassador. The
Supreme Court grants the petition and reversed the decision of
the Court of Appeals.
2. No. There is no dispute that the establishment of a
diplomatic mis sion is an act jure imperii. A sovereign State
establishes a diplomatic mission which necessarily include its
maintenance and upkeep. Hence, the State may enter into
contracts with private entities for the same purpose. It is
therefore clear that the petitioner was acting in pursuit of a
sovereign activity when it entered into contract with
respondent.
3. Under Article 31 of the Vienna Convention on Diplomatic
Relations, a diplomat shall enjoy immunity from criminal
jurisdiction, except in case of: (a) a real action relating to
private immovable property situated in the territory of the
recovering State; (b) an action relating to succession which the
diplomatic agent is involved as executor, administrator, heir or
legatee as a private person; or (c) action relating to any
professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions. The
act of the petitioners in terminating the Maintenance
Agreement is not covered by the exceptions.
Public official charged with some administrative or technical
office can be held to the proper responsibility in the manner
laid down by the law of civil responsibility. Consequently, the
trial court in not so deciding and in sentencing the said entity to
the payment of damages, caused by an official of the second
class referred to, has by erroneous interpretation infringed the
provisions of Articles 1902 and 1903 of the Civil Code.
It is, therefore, evidence that the State (GPI) is only liable,
according to the above quoted decisions of the Supreme Court
of Spain, for the acts of its agents, officers and employees
when they act as special agents within the meaning of
paragraph 5 of Article 1903, supra, and that the chauffeur of
the ambulance of the General Hospital was not such an agent.
For the foregoing reasons, the judgment appealed from must
be reversed, without costs in this instance. Whether the
Government intends to make itself legally liable for the amount
of damages above set forth, which the plaintiff has s ustained
by reason of the negligent acts of one of its employees, be
legislative enactment and by appropriating sufficient funds
therefore, we are not called upon to determine. This matter
rests solely with the Legislature and not with the courts.
16. COMMISSIONER OF CUSTOMS v. EASTERN SEA
TRADING
FACTS
Several onion and garlic shipments imported by respondent
consignee from Hongkong and Japan were seized and
subjected to forfeiture proceedings for alleged violations of
Section 1363 of the Revised Administrative Code. Allegedly,
none of the shipments had the certificate required by Central
Bank Circulars 44 and 45 (requiring a Central Bank license and
a certificate authorizing the importation or release of the
subject good ) for their release. The Collector of Customs of
Manila rendered judgment declaring the forfeiture of the goods
in favor of the Government. Upon appeal, the Commissioner of
Customs upheld the Collector’s decision. Respondent filed a
petition for review with the Court of Tax Appeals. The CTA
reversed the Commissioner’s decision. Hence, this present
petition.
ISSUES
1. Whether the seizure and forfeiture of the goods imported
from Japan can be justified under EO 328 (which implements
an executive agreement extending the effectivity of the Trades
and Financial Agreements of the Philippines with Japan)
---YES.
2. Whether the executive agreement sought to be implemented
by EO 328 is legal and valid, considering that the Senate has
not concurred in the making of said executive agreement
---NO.
RULING:
Treaties are different from executive agreements. While
treaties are formal documents which require ratification by the
Senate, executive agreements become binding through
executive action without the need of a vote by the Senate or
Congress. Further, international agreements involving political
issues or changes of national policy and those involving
international arrangements of a permanent character usually
take the form of treaties; on the other hand, international
agreements embodying adjus tments of detail carrying out well-
established national policies and traditions and those involving
arrangements of a more or less temporary nature usually take
the form of executive agreements.
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.
Francis Saye, former US High Commissioner to the
Philippines, further states that xxx it would seem to be
sufficient, in order to show that the trade agreements under the
act of 1934 are not anomalous in character, that they are not
treaties, and that they have abundant precedent in our history,
to refer to certain classes of agreements entered into by the
Executive without the approval of the Senate. They cover such
subjects as the inspection of vessels, navigation dues, income
tax on shipping profits, the admission of civil aircraft, customs
matters, and commercial relations generally, international
claims, postal matters, the registration of trademarks and
22
copyrights, etcetera. Some of them were concluded not by
specific congressional authorization but in conformity with
policies declared in acts of Congress with respect to the
general subject matter, such as tariff acts; while still others,
particularly those with respect of the settlement of claims
against foreign governments, were concluded independently of
any legislation
The Parity Rights Agreement, which was provided for in the
Ordinance Appended to the Constitution was the subject of an
executive agreement, made without the concurrence of 2/3 of
the Senate of the US.
Hence, the validity of the executive agreement in question in
this case is patent.
The authority to issue import licenses was not vested
exclusively upon the Import Control Commission or
Administration. EO 328 provided for export or import licenses
"from the Central Bank of the Philippines or the Import Control
Administration" or Commission. Indeed, the latter was created
only to perform the task of implementing certain objectives of
the Monetary Board and the Central Bank, which otherwise
had to be undertaken by these two (2) agencies. Upon the
abolition of said Commission, the duty to provide means and
ways for the accomplishment of said objectives had merely to
be discharged directly by the Monetary Board and the Central
Bank, even if the aforementioned Executive Order had been
silent thereon.
The decision of the CTA is reversed.
17. BAYAN v. ZAMORA
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, Articl e
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:
Whether the VFA was 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.
23
18. GONZALES v. HECHANOVA
FACTS:
Exec. Secretary Hechanova authorised the importation of
foreign rice to be purchased from private sources. Gonzales
filed a petition opposing the said implementation because RA
No. 3542 which allegedly repeals or amends RA No. 2207,
prohibits the importation of rice and corn "by the Rice and Corn
Administration or any other government agency."
Respondents alleged that the importation permitted in RA 2207
is to be authorized by the President of the Philippines, and by
or on behalf of the Government of the Philippines. They add
that after enjoining the Rice and Corn administration and any
other government agency from importing rice and corn, S. 10
of RA 3542 indicates that only private parties may import rice
under its provisions. They contended that the government has
already constitute valid executive agreements with Vietnam
and Burma, that in case of conflict between RA 2207 and
3542, the latter should prevail and the conflict be resolved
under the American jurisprudence.
ISSUE:
W/N the executive agreements may be validated in our courts.
RULING:
No. The Court is not satisfied that the status of said tracts as
alleged executive agreements has been sufficiently
established. Even assuming that said contracts may properly
considered as executive agreements, the same are unlawful,
as well as null and void, from a constitutional viewpoint, said
agreements being inconsistent with the provisions of Republic
Acts Nos. 2207 and 3452. Although the President may, under
the American constitutional system enter into executive
agreements without previous legislative authority, he may not,
by executive agreement, enter into a transaction which is
prohibited by statutes enacted prior thereto.
Under the Constitution, the main function of the Executive is to
enforce laws enacted by Congress. He may not interfere in the
performance of the legislative powers of the latter, except in
the exercise of his veto power. He may not defeat legislative
enactments that have acquired the status of law, by indirectly
repealing the same through an executive agreement providing
for the performance of the very act prohibited by said laws.
19. WRIGHT v. CA
FACTS:
Australia and the Government of the Philippines in the
suppression of crime, entered into a Treaty of Extradition on
the 7th of March 1988. The said treaty was ratified in
accordance with the provisions of Section 21, Article VII of the
1987 Constitution in a Resolution adopted by the Senate on
September 10, 1990 and became effective 30 days after both
States notified each other in writing that the respective
requirements for the entry into force of the Treaty have been
complied with. Petitioner contends that the provision of the
Treaty giving retroactive effect to the extradition treaty amounts
to an ex post facto law which violates Section 21 of Article VI of
the Constitution.
ISSUE: Can an extradition treaty be applied retroactively?
HELD: Applying the constitutional principle, the Court has held
that the prohibition applies only to criminal legislation which
affects the substantial rights of the accused. This being so,
there is no absolutely no merit in petitioner's contention that the
ruling of the lower court sustaining the Treaty's retroactive
application with respect to offenses committed prior to the
Treaty's coming into force and effect, violates the
Constitutional prohibition against ex post facto laws. As the
Court of Appeals correctly concluded, the Treaty is neither a
piece of criminal legislation nor a criminal procedural statute. It
merely provides for the extradition of persons wanted for
prosecution of an offense or a crime which offense or crime
was already committed or consummated at the time the treaty
was ratified.
20. BARCELONA TRACTION CASE
Introduction:
Proceedings in the case concerning the Barcelona Traction,
Light and Power Company, Limited (Belgium v. Spain) were
instituted by an Application of 19th June 1962 in which the
Belgian Government sought reparation for damage claimed to
have been caused to Belgian nationals, shareholders in the
Canadian Barcelona Traction Company, by the conduct of
various organs of the Spanish State. There are certain very
important principles of international law which emerged out of
this case.
In the first phase (24th July 1964) of the judgment, The
Spanish Government raised four Preliminary Objections and
the Court rejected the first preliminary objection and the
secondary objection and added the third and fourth objections
to the merits.
In the second phase (5th February 1970) of the judgment, The
Court found that Belgium lacked jus standi to exercise
diplomatic protection of shareholders in a Canadian company
with respect to measures taken against that company in Spain.
In its judgment in the second phase of the case, the Court
rejected Belgium’s claim by fifteen votes to one.
Facts:
The Barcelona Traction, Light and Power Company, Limited,
was incorporated in 1911 in Toronto (Canada), where it has its
head office. For the purpose of creating and developing an
electric power production and distribution system in Catalonia
(Spain) it formed a number of subsidiary companies, of which
24
some had their registered offices in Canada and the others in
Spain. In 1936 the subsidiary companies supplied the major
part of Catalonia’s electricity requirements. According to the
Belgian Government some years after the first world war
Barcelona Traction’s share capital came to be very largely held
by Belgian nationals but this contention was denied by the
Spanish Government.
Barcelona Traction issued several series of bonds, principally
in sterling. The sterling bonds were serviced out of transfers to
Barcelona Traction effected by the subsidiary companies
operating in Spain. In 1936 the servicing of the Barcelona
traction bonds was suspended on account of the Spanish civil
war. After that war, the Spanish exchange control authorities
refused to authorize the transfer of the foreign currency
necessary for the resumption of the servicing of the sterling
bonds. Subsequently, when the Belgian Government
complained of this, the Spanish Government stated that the
transfers could not be authorized unless it, were shown that
the foreign currency was to be used to repay debts arising from
the genuine importation of foreign capital into Spain, and that
this had not been established.
In 1948 three Spanish holders of recently acquired Barcelona
Traction sterling bonds petitioned that court of Reus (Province
of Tarragona) for a declaration adjudging the company
bankrupt, on account of failure to pay the interest on the
bonds. On 12 February 1948, a judgment was given declaring
the company bankrupt and ordering the seizure of the assets
of Barcelona Traction and of two of its subsidiary companies.
Pursuant to this judgment, the principal management
personnel of the two companies were dismissed and Spanish
directors appointed. Shortly afterward, these measures were
extended to the other subsidiary companies. New shares of the
subsidiary companies were created, which were sold by public
auction in 1952 to a newly-formed company, Fuerzas
Electricas ~de Cataluina, S.A. (Fecsa), which thereupon
acquired complete control of the undertaking in Spain.
Proceedings were brought without succes s in the Spanish
courts by various companies or persons. According to the
Spanish Government, 2,736 orders were made in the case and
494 judgments given by lower and 37 by higher courts before it
was submitted to the International Court of Justice. The Cou rt
found that in 1948 Barcelona Traction, which had not received
a judicial notice of the bankruptcy proceedings, and was not
represented before the Reus court, took no proceedings in the
Spanish courts until 18th June and thus did not enter a plea of
opposition against the bankruptcy judgment within the time -
limit of eight days from the date of publication of the judgment
laid down in Spanish legislation. The Belgian Government
contends, however, that the notification and publication did not
comply with the relevant legal requirements and that the eight-
day time-limit never began to run.
Representations were made to the Spanish Government by the
British, Canadian, United States and Belgian Governments as
from 19481 or 1949. The interposition of the Canadia n
Government ceased entirely in 1955.
Preliminary Objections (First Phase of the Judgement)
The Belgian Government filed the first Application with the
Court against the Spanish Government in 1958. In 1961 it gave
notice of discontinuance of the proceedings, with a view to
negotiations between the representatives of the private
interests concerned, and the case was removed from the
Court’s General List. The negotiations having failed, the
Belgian Government on 19 June 1962 submitted to the Court a
new Application. In 1963 the Spanish Government raised four
preliminary objections to this Application.
In its first Preliminary Objection, which was rejected, the
Respondent contended that this discontinuance precluded the
Applicant from bringing the present proceedings. The
secondary preliminary objection which was also rejected was
regarding the lapse of Article 17(4) of the treaty of 1927 on the
dissolution of the permanent court to which the Article referred
thus questioning the jurisdiction of the ICJ over the case. The
third preliminary objection which was joined to the merits of the
Spanish Government was to the effect that the Belgian
Government lacked the capacity to submit any claim in respect
of wrongs done to a Canadian company, even if the
shareholders were Belgian. The fourth preliminary objection,
which was also joined to the merits, was to the effect that local
remedies available in Spain had not been exhausted.
Issues:
1. Does Belgium have the Jus standi to exercise diplomatic
protection of shareholders in a Canadian company?
2. Does Belgium have the right and jurisdiction to bring Spain
to court for the actions of a Canadian company?
General Principles
● No Absolute Obligatio
The Court observed that when a State admitted into its territory
foreign investments or foreign nationals it was bound to extend
to them the protection of the law and assumed obligations
concerning the treatment to be afforded them. But such
obligations were not absolute. In order to bring a claim in
respect of the breach of such an obligation, a State must first
establish its right to do so.
● Municipal Laws (Distinction between Company and
Shareholders)
In the field of diplomatic protection, international law was in
continuous evolution and was called upon to recognize
institutions of municipal law. In municipal law, the concept of
the company was founded on a firm distinction between the
rights of the company and those of the shareholder. Only the
25
company, which was endowed with legal personality, could
take action in respect of matters that were of a corporate
character.
A wrong done to the company frequently caused prejudice to
its shareholders, but this did not imply that both were entitled to
claim compensation. Whenever a shareholder’s interests were
harmed by an act done to the company, it was to the latter that
he had to look to institute appropriate action. An act infringing
only the company’s rights did not involve responsibility towards
the shareholders, even if their interests were affected.
International law had to refer to those rules generally accepted
by municipal legal systems. An injury to the shareholder’s
interests resulting from an injury to the rights of the company
was insufficient to found a claim.
● Diplomatic Protection only Exercised by the Nation
State of Company
Where it was a question of an unlawful act committed against a
company representing foreign capital, the general rule of
international law authorized the national State of the company
alone to exercise diplomatic protection for the purpo se of
seeking redress. No rule of international law expressly
conferred such a right on the shareholder’s national State.
Special Circumstances (Exceptions to the General Principles)
The Court considered whether there might not be, in the
present case, s pecial circumstances for which the general rule
might not take effect.
Two situations need to be studied:
(a) the case of the company having ceased to exist, and
(b) the case of the protecting State of the company lacking the
capacity to take action.
As regards the first of these possibilities, the Court observed
that whilst Barcelona Traction had lost all its assets in Spain
and been placed in receivership in Canada, it could not be
contended that the corporate entity of the company had
ceased to exist or that it had lost its capacity to take corporate
action.
So far as the second possibility was concerned, it was not
disputed that the company had been incorporated in Canada
and had its registered office in that country, and its Canadian
nationality had received general recognition. The Canadian
Government had exercised the protection of Barcelona
Traction for a number of years. If at a certain point the
Canadian Government ceased to act on behalf of Barcelona
Traction, it nonetheless retained its capacity to do so, which
the Spanish Government had not questioned. Whatever the
reasons for the Canadian Government’s change of attitude that
fact could not constitute a justification for the exercise of
diplomatic protection by another government.
It had been maintained that a State could make a claim when
investments by its nationals abroad, such investments being
part of a State’s national economic resources, were
prejudicially affected in violation of the right of the State itself to
have its nationals enjoy a certain treatment. But, in the present
state of affairs, such a right could only result from a treaty or
special agreement. And no treaty or special agreement of such
a kind was in force between Belgium and Spain.
If we consider reasons of equity, a State should be able to take
up the protection of its nationals, shareholders in a company
which had been the victim of a violation of international law.
The Court considered that the adoption of the theory of
diplomatic protection of shareholders as such would open the
door to competing claims on the part of different States, which
could create an atmosphere of insecurity in international
economic relations. In the particular circumstances of the
present case, where the company’s national State was able to
act, the Court was not of the opinion that jus standi was
conferred on the Belgian Government by considerations of
equity.
Judgment
The Court took cognizance of the great amount of
documentary and other evidence submitted by the Parties and
fully appreciated the importance of the legal problems raised
by the allegation which was at the root of the Belgian claim and
which concerned denials of justice allegedly committed by
organs of the Spanish State. However, the possession by the
Belgian Government of a right of protection was a prerequisite
for the examination of such problems. Since no jus standi
before the Court had been established, it was not for the Court
to pronounce upon any other aspect of the case.
Accordingly, the Court rejected the Belgian Government’s
claim by 15 votes to 1, 12 votes of the majority being based on
the reasons set out above.
Conclusion
The court’s ruling of dismissal of the case adequately
demonstrates the differences between states and individuals
and who is considered sovereign in the international realm.
The court ruled in favor of Spain since Belgium had no
jurisdiction to do so and the shareholders seeking
compensation was not given diplomatic immunity. However, if
the shareholders were to seek aid from Canada in which the
company is headquartered and given correct identity, a lawsuit
could occur. Thus an individual cannot bring a claim against a
state since it is not given that authority. This case will be
viewed as an excellent reference for cases dealing with
organizations and sovereign immunity claims and how to
correctly deal with them.
26
21. VINUYA v. ROMULO
FACTS:
This is an original Petition for Certiorari under Rule 65 of the
Rules of Court with an application for the issuance of a writ of
preliminary mandatory injunction against the Office of the
Executive Secretary, the Secretary of the DFA, the Secretary
of the DOJ, and the OSG.
Petitioners are all members of the MALAYA LOLAS, a non-
stock, non-profit organization registered with the SEC,
established for the purpose of providing aid to the victims of
rape by Japanese military forces in the Philippines during the
Second World War.
Petitioners claim that since 1998, they have approached the
Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese
officials and military officers who ordered the establishment of
the “comfort women” stations in the Philippines. But officials of
the Executive Department declined to assist the petitioners,
and took the position that the individual claims of the comfort
women for compensation had already been fully satisfied by
Japan’s compliance with the Peace Treaty between the
Philippines and Japan.
Hence, this petition where petitioners pray for this court to (a)
declare that respondents committed grave abuse of discretion
amounting to lack or excess of discretion in refusing to
espouse their claims for the crimes against humanity and war
crimes committed against them; and (b) compel the
respondents to espouse their claims for official apology and
other forms of reparations against Japan before the
International Court of Justice (ICJ) and other international
tribunals.
Respondents maintain that all claims of the Philippines and its
nationals relative to the war were dealt with in the San
Francisco Peace Treaty of 1951 and the bilateral Reparations
Agreement of 1956.
On January 15, 1997, the Asian Women’s Fund and the
Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for
former comfort women. Over the next five years, these were
implemented by the Department of Social Welfare and
Development.
ISSUE:
Whether the Executive Department committed grave abuse of
discretion in not espousing petitioners’ claims for official
apology and other forms of reparations against Japan.
RULING:
Petition lacks merit. From a Domestic Law Perspective, the
Executive Department has the exclusive prerogative to
determine whether to espouse petitioners’ claims against
Japan.
Political questions refer “to those questions which, under the
Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has
been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure.”
One type of case of political questions involves questions of
foreign relations. It is well-established that “the conduct of the
foreign relations of our government is committed by the
Constitution to the executive and legislative–‘the political’–
departments of the government, and the propriety of what may
be done in the exercise of this political power is not subject to
judicial inquiry or decision.” are delicate, complex, and in volve
large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people
whose welfare they advance or imperil.
But not all cases implicating foreign relations present political
questions, and courts certainly possess the authority to
construe or invalidate treaties and executive agreements.
However, the question whether the Philippine government
should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which
is demonstrably committed by our Constitution not to the courts
but to the political branches. In this case, the Executive
Department has already decided that it is to the best interest of
the country to waive all claims of its nationals for reparatio ns
against Japan in the Treaty of Peace of 1951. The wisdom of
such decision is not for the courts to question.
The President, not Congress, has the better opportunity of
knowing the conditions which prevail in foreign countries, and
especially is this true in time of war. He has his confidential
sources of information. He has his agents in the form of
diplomatic, consular and other officials.
The Executive Department has determined that taking up
petitioners’ cause would be inimical to our country’s fore ign
policy interests, and could disrupt our relations with Japan,
thereby creating serious implications for stability in this region.
For the to overturn the Executive Department’s determination
would mean an assessment of the foreign policy judgments by
a coordinate political branch to which authority to make that
judgment has been constitutionally committed.
From a municipal law perspective, certiorari will not lie. As a
general principle, where such an extraordinary length of time
has lapsed between the treaty’s conclusion and our
consideration – the Executive must be given ample discretion
to assess the foreign policy considerations of espousing a
claim against Japan, from the standpoint of both the interests
of the petitioners and those of the Republic, and decide on that
basis if apologies are sufficient, and whether further steps are
appropriate or necessary.
27
In the international sphere, traditionally, the only means
available for individuals to bring a claim within the international
legal system has been when the individual is able to persuade
a government to bring a claim on the individual’s behalf. 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 right to ensure, in
the person of its subjects, respect for the rules of international
law.
Within the limits prescribed by international law, a State may
exercise diplomatic protection by whatever means and to
whatever extent it thinks fit, for it is its own right that the State
is asserting. Should the natural or legal person on whose
behalf it is acting consider that their rights are not adequately
protected, they have no remedy in international law. All they
can do is resort to national law, if means are available, with a
view to furthering their cause or obtaining redress. All these
questions remain within the province of municipal law and do
not affect the position internationally.
Even the invocation of jus cogens norms and erga omnes
obligations will not alter this analysis. Petitioners have not
shown that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace
was signed, or that the duty to prosecute perpetrators of
international crimes is an erga omnes obligation or has
attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in
international law has been used as a legal term describing
obligations owed by States towards the community of states as
a whole. Essential distinction should be drawn between the
obligations of a State towards the international community as a
whole, and those arising vis -à-vis another State in the field of
diplomatic protection. By their very nature, the former are th e
concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.
The term “jus cogens” (literally, “compelling law”) refers to
norms that command peremptory authority, superseding
conflicting treaties and custom. Jus cogens norms are
considered peremptory in the sense that they are mandatory,
do not admit derogation, and can be modified only by general
international norms of equivalent authority
WHEREFORE, the Petition is hereby DISMISSED.
 22. ARIGO v. SWIFT
FACTS:
The USS Guardian is an Avenger-class mine
countermeasures ship of the US Navy. In December 2012, the
US Embassy in the Philippines requested diplomatic clearance
for the said vessel “to enter and exit the territorial waters of the
Philippines and to arrive at the port of Subic Bay for the
purpose of routine ship replenishment, maintenance, and crew
liberty.” On January 6, 2013, the ship left Sasebo, Japan for
Subic Bay, arriving on January 13, 2013 after a brief stop for
fuel in Okinawa, Japan.
On January 15, 2013, the USS Guardian departed
Subic Bay for its next port of call in Makassar, Indonesia. On
January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea,
the ship ran aground on the northwest side of South Shoal of
the Tubbataha Reefs, about 80 miles east-southeast of
Palawan. No one was injured in the incident, and there have
been no reports of leaking fuel or oil.
Petitioners claim that the grounding, salvaging and
post-salvaging operations of the USS Guardian cause and
continue to cause environmental damage of such magnitude
as to affect the provinces of Palawan, Antique, Aklan,
Guimaras, Iloilo, Negros Occidental, Negros Oriental,
Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which
events violate their constitutional rights to a balanced and
healthful ecology.
ISSUES:
Whether or not petitioners have legal standing.
Whether or not US respondents may be held liable fo r
damages caused by USS Guardian.
Whether or not the waiver of immunity from suit under VFA
applies in this case.
RULING:
First issue: YES.
Petitioners have legal standing
Locus standi is “a right of appearance in a court of
justice on a given question.” Specifically, it is “a party’s
personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result” of the act
being challenged, and “calls for more than just a generalized
grievance.” However, the rule on standing is a procedural
matter which this Court has relaxed for non-traditional plaintiffs
like ordinary citizens, taxpayers and legislators when the public
interest so requires, such as when the subject matter of the
controversy is of transcendental importance, of overreaching
significance to society, or of paramount public interest.
28
In the landmark case of Oposa v. Factoran, Jr., we
recognized the “public right” of citizens to “a balanced and
healthful ecology which, for the first time in our constitutional
history, is solemnly incorporated in the fundamental law.” We
declared that the right to a balanced and healthful ecology
need not be written in the Constitution for it is assumed, like
other civil and polittcal rights guaranteed in the Bill of Rights, to
exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications.
Such right carries with it the correlative duty to refrain from
impairing the environment.
On the novel element in the class suit filed by the
petitioners minors in Oposa, this Court ruled that not only do
ordinary citizens have legal standing to sue for the
enforcement of environmental rights, they can do so in
representation of their own and future generations.
Second issue: YES.
The US respondents were sued in their official
capacity as commanding officers of the US Navy who had
control and supervision over the USS Guardian and its crew.
The alleged act or omission resulting in the unfortunate
grounding of the USS Guardian on the TRNP was committed
while they were performing official military duties. Considering
that the satisfaction of a judgment against said officials will
require remedial actions and appropriation of funds by the US
government, the suit is deemed to be one against the US itself.
The principle of State immunity therefore bars the exercise of
jurisdiction by this Court over the persons of respondents Swift,
Rice and Robling.
During the deliberations, Senior Associate Justice
Antonio T. Carpio took the position that the conduct of the US
in this case, when its warship entered a restricted area in
violation of R.A. No. 10067 and caused damage to the TRNP
reef system, brings the matter within the ambit of Article 31 of
the United Nations Convention on the Law of the Sea
(UNCLOS). He explained that while historically, warships enjoy
sovereign immunity from suit as extensions of their flag State,
Art. 31 of the UNCLOS creates an exception to this rule in
cases where they fail to comply with the rules and regulations
of the coastal State regarding passage through the latter’s
internal waters and the territorial sea.
In the case of warships, as pointed out by Justice
Carpio, they continue to enjoy sovereign immunity subject to
the following exceptions:
Article 30: Non-compliance by warships with the laws and
regulations of the coastal State
If any warship does not comply with the laws and regulations of
the coastal State concerning passage through the territorial
sea and disregards any request for compliance therewith which
is made to it, the coastal State may require it to leave the
territorial sea immediately.

Article 31: Responsibility of the flag State for damage caused
by a warship or other government ship operated for non -
commercial purposes
The flag State shall bear international responsibility for any
loss or damage to the coastal State resulting from the non -
compliance by a warship or other government ship operated
for non-commercial purposes with the laws and regulations of
the coastal State concerning passage through the territorial
sea or with the provisions of this Convention or other rules of
international law.
Article 32: Immunities of warships and other government ships
operated for non-commercial purposes
With such exceptions as are contained in subsection
A and in articles 30 and 31, nothing in this Convention affects
the immunities of warships and other government ships
operated for non-commercial purposes. A foreign warship’s
unauthorized entry into our internal waters with resulting
damage to marine resources is one situation in which the
above provisions may apply.
But what if the offending warship is a non-party to the
UNCLOS, as in this case, the US?
According to Justice Carpio, although the US to date has not
ratified the UNCLOS, as a matter of long-standing policy the
US considers itself bound by customary international rules on
the “traditional uses of the oceans” as codified in UNCLOS.
Moreover, Justice Carpio emphasizes that “the US refusal to
join the UNCLOS was centered on its disagreement with
UNCLOS” regime of deep seabed mining (Part XI) which
considers the oceans and deep seabed commonly owned by
mankind,” pointing out that such “has nothing to do with its the
US’ acceptance of customary international rules on
navigation.”
The Court also fully concurred with Justice Carpio’s view that
non-membership in the UNCLOS does not mean that the US
will disregard the rights of the Philippines as a Coastal State
over its internal waters and territorial sea. We thus expect the
US to bear “international responsibility” under Art. 31 in
connection with the USS Guardian grounding which adversely
affected the Tubbataha reefs. Indeed, it is difficult to imagine
that our long-time ally and trading partner, which has been
actively supporting the country’s efforts to preserve our vital
marine resources, would shirk from its obligation to
compensate the damage caused by its warship while transiting
our internal waters. Much less can we comprehend a
Government exercising leadership in international affairs,
unwilling to comply with the UNCLOS directive for all nations to
cooperate in the global task to protect and preserve the marine
environment as provided in Article 197 of UNCLOS
Article 197: Cooperation on a global or regional basis
29
States shall cooperate on a global basis and, as appropriate,
on a regional basis, directly or through competent international
organizations, in formulating and elaborating international
rules, standards and recommended practices and procedures
consistent with this Convention, for the protection and
preservation of the marine environment, taking into account
characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present
controversy is beyond dispute. Although the said treaty
upholds the immunity of warships from the jurisdiction of
Coastal States while navigating the latter’s territorial sea, the
flag States shall be required to leave the territorial sea
immediately if they flout the laws and regulations of the Coastal
State, and they will be liable for damages caused by their
warships or any other government vessel operated for non -
commercial purposes under Article 31.
Third issue: NO.
The waiver of State immunity under the VF A
pertains only to criminal jurisdiction and not to special civil
actions such as the present petition for issuance of a writ of
Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of
the Rules that a criminal case against a person charged with a
violation of an environmental law is to be filed separately.
The Court considered a view that a ruling on the
application or non-application of criminal jurisdiction provisions
of the VFA to US personnel who may be found responsible for
the grounding of the USS Guardian, would be premature and
beyond the province of a petition for a writ of Kalikasan.
The Court also found unnecessary at this point to
determine whether s uch waiver of State immunity is indeed
absolute. In the same vein, we cannot grant damages which
have resulted from the violation of environmental laws. The
Rules allows the recovery of damages, including the collection
of administrative fines under R.A. No. 10067, in a separate civil
suit or that deemed instituted with the criminal action charging
the same violation of an environmental law.
23. NDAYEGAMIYE-MPORAMAZINA v. SWITZERLAND
Summary:
In today’s Chamber judgment in the case of Ndayegamiye -
Mporamazina v. Switzerland (application no. 16874/12) the
European Court of Human Rights held, unanimously, that there
had been:
no violation of Article 6 (right of access to a court) of the
European Convention on Human Rights. The case concerned
the immunity from jurisdiction of the Republic of Burundi.
The Court held that granting sovereign immunity to a State in
civil proceedings pursued the legitimate aim of complying with
international law in order to promote comity and good relations
among States by respecting each State’s sovereignty.
The express consent criterion laid down in Article 7 § 1 (b) of
the United Nations Convention of 2 December 2004 on
Jurisdictional Immunities of States and their Property (UNCJIS)
was lacking in the present case. It followed that the Republic of
Burundi had not waived its immunity from jurisdiction.
The applicant, a national of the employer State at the time of
her application to the Swiss courts, had been permanently
resident not in Switzerland but in France.
Consequently, the case fell within the scope of Article 11 § 2
(e) UNCJIS.
The Court found that the Swiss courts had not departed from
the principles of international law as recognised in the sphere
of State immunities and that the restriction on the right of
access to a court had not been disproportionate in the instant
case.
Principal facts:
The applicant, Marie-Louise Ndayegamiye-Mporamazina, is a
national of the Republic of Burundi who was born in 1960 and
lived in France at the material time.
On 9 June 1995 the applicant entered the employment of the
permanent mission of the Republic of Burundi to the United
Nations Headquarters in Geneva as a secretary on the basis of
a “local employment contract”. The document stated that the
contract of employment was renewable. From 1996 onwards
the applicant was responsible, in addition to her secretarial
duties, for the permanent mission’s bookkeeping. During the
ambassador’s absences, she dealt with the permanent
mission’s current business, with the approval of the Ministry of
Foreign Affairs of the Republic of Burundi; she was also
responsible for consular affairs. In a letter of 9 August 2007 the
permanent mission informed the applicant that it had decided
not to renew her employment contract. On 27 November 2007
the applicant brought an action for unfair dismissal against the
Republic of Burundi before the employment tribunal of the
Republic and the Canton of Geneva.
In their submissions of 5 March 2008, the Republic of Burundi
asserted, in particular, that the relations between the parties
were covered by diplomatic immunity. In addition, it argued that
the applicant had not carried out subordinate duties, that she
received a higher salary than that paid to the diplomats in post,
and that, given that she had Burundian nationality and was
resident in France, she had few ties with Switzerland. In a
judgment of 15 March 2010 the employment tribunal held that
the applicant was not a diplomat and carried out lower-level
tasks. The tribunal noted that the employment contract
included a clause recognising local jurisdiction and that,
consequently, there were no grounds to grant the defending
State immunity from jurisdiction. The tribunal ordered the
Republic of Burundi to pay the applicant about 40,707 euros.
30
The Republic of Burundi lodged an appeal with the Court of
Justice of the Republic and the Canton of Geneva. On 18 April
2011 the Court of Justice set aside the employment tribunal’s
judgment of 15 March 2010 and granted the Republic of
Burundi’s plea of immunity from jurisdiction. The Court of
Justice added that the applicant could bring her case without
difficulty before the relevant courts in her country. The
SwissFederal Supreme Court dismissed an appeal by the
applicant, holding that the Republic of Burundi could
legitimately rely on immunity from jurisdiction.
Complaints, procedure and composition of the Court
Relying on Article 6 § 1 (right of access to a court), the
applicant complained that she had beendeprived of her right of
access to a court on account of the immunity from jurisdiction
raised by the Republic of Burundi and upheld by the domestic
courts.
The application was lodged with the European Court of Human
Rights on 16 February 2012.
Judgment was given by a Chamber of seven judges,
composed as follows:
Vincent A. De Gaetano (Malta), President,
Branko Lubarda (Serbia),
Helen Keller (Switzerland),
Dmitry Dedov (Russia),
Pere Pastor Vilanova (Andorra),
Georgios A. Serghides (Cyprus),
Jolien Schukking (the Netherlands),
and also Stephen Phillips, Section Registrar.
Decision of the Court:
Article 6 § 1
On 16 April 2010 Switzerland ratified the United Nations
Convention of 2 December 2004 on Jurisdictional Immunities
of States and their Property (UNCJIS), which recognises the
general principle of the immunity of a State and its property
before the courts of another State.
The Court noted that the applicant’s contract of employment
comprised an article concerning litigation, which, according to
the applicant, constituted an advance waiver by the Republic of
Burundi of its immunity from jurisdiction.
The Court held that granting sovereign immunity to a State in
civil proceedings pursued the legitimate aim of complying with
international law in order to promote comity and good relations
among States by respecting each State’s sovereignty.
However, a State could waive its right to immunity before the
courts of another State, in particular by means of contractual
clauses. The Court took note of the applicant’s view that Article
8 of her contract of employment constituted an advance waiver
by the Republic of Burundi of its immunity from jurisdiction.
The Court observed that the Federal Court and the Court of
Justice had allowed the Republic of Burundi’s plea of immunity
from jurisdiction, which it had consistently raised throughout
the proceedings in question. A total of three national authorities
had interpreted the clause set out in Article 8 of the applicant’s
contract of employment in widely diverging ways.
Consequently, the Court deduced that it was not a contractua l
clause clearly and unequivocally stating the intention of the
Republic of Burundi to waive its immunity from jurisdiction, and
the Federal Court could indeed have presumed that the clause
in question was not an expression of a clear and unequivocal
desire on the part of the Republic of Burundi. Therefore, since
the express consent criterion laid down in Article 7 § 1 (b)
UNCJIS had been lacking in the present case, it followed that
the Republic of Burundi had not waived its immunity from
jurisdiction.
The Court also observed that the circumstances of the case fell
within the ambit of Article 11 § 2 (e) UNCJIS because the
applicant had been a national of the employer State when the
action had been brought and she had never been permanently
resident in Switzerland.
Finally, the Court noted that there were other remedies
available to the applicant. Assurances had been provided by
the Republic of Burundi that should the Court of Justice uphold
its immunity from jurisdiction the applicant could apply to the
Bujumbura Court Administrative, and that there would be no
problem of statutory limitation since the application to a Swiss
court had stopped the limitation period running.
The Court took the view therefore that the Swiss courts had not
departed from the principles of international law recognised in
the sphere of State immunities and that the restriction on the
right of access to a court could not be considered
disproportionate.
There had been no violation of Article 6 § 1.
24. GÜZELYURTLU AND OTHERS v. CYPRUS & TURKEY
Facts:
The case concerned the killing of Elmas, Zerrin and Eylül
Güzelyurtlu, who were shot dead in the Cypriot-Government
controlled area of Cyprus on 15 January 2005. The killers fled
back to the “Turkish Republic of Northern Cyprus” (the
“TRNC”). Parallel investigations into the murders were
conducted by the authorities of the Cypriot Government and
the Turkish Government, including those of the “TRNC”. The
“TRNC” authorities insisted that the case file containing the
evidence against the suspects be handed over so that they
could conduct a prosecution. The Cypriot authorities refused.
On the strength of the evidence gathered during their
investigation, the Cypriot authorities sought the extradition of
the suspects who were within Turkey’s jurisdiction (either in the
“TRNC” or in mainland Turkey) with a view to their trial. The
extradition requests were returned to the Cypriot authorities
31
without reply. The investigations of both respondent States
thus reached an impasse in 2008.
Issue:
Whether or not the Cypriot and Turkish authorities (including
those of the “TRNC”) have failed to co-operate and conduct an
effective investigation into the killing of their relatives.
Ruling:
The Court found that, where – as in the applicants’ case – the
investigation of unlawful killings unavoidably implicated more
than one State, the States concerned were obliged to
cooperate effectively and take all reasonable steps necessary
to facilitate and realise an effective investigation into the case
overall. However, it was clear from all the material before the
Court, that both Governments had not been prepared to make
any compromise on their positions and find middle ground,
despite various options having been put forward, including by
the United Nations. That position arose from political
considerations which reflected the long-standing and intense
political dispute between Cyprus and Turkey. A situation thus
resulted in which the respondent Governments’ respective
investigations – which the Court found adequate up until the
impasse – remain open. Nothing has therefore been done for
more than eight years to bring to a close what is ultimately a
straightforward case.
Principal facts:
The applicants are all relatives of Elmas, Zerrin, and Eylül
Güzelyurtlu, who were shot dead on the Nicosia-Larnaca
highway in the Cypriot-Government-controlled areas on 15
January 2005. Elmas was found dead in a ditch and his wife,
Zerrin, and daughter, Eylül, in the back seat of their car parked
on the hard shoulder. The three victims were all Cypriot
nationals of Turkish Cypriot origin. The killers fled back to the
“TRNC”.
Parallel investigations into the murders were conducted by the
authorities of the Cypriot Government and the Turkish
Government, including those of the “TRNC”.
The Cypriot authorities, among other things, collected and
secured evidence at the scene of the crime and at the victims’
house, conducted post-mortem examinations, took statements
from numerous witnesses (including the victims’ relatives),
carried out a ballistic examination and DNA tests, searched the
records of vehicles that had gone through the crossing points,
and examined the security system of the victims’ house and
computer hard discs. The investigative steps quickly led the
authorities to conclude that the victims had been kidnapped
and murdered in the early hours of 15 January 2005 and then
to identify eight suspects. In the days after the shootings,
domestic and European arrest warrants were thus issued and
the Cypriot police submitted reques ts to Interpol to search for
and arrest the suspects with a view to their extradition. Red
notices were published by Interpol in respect of all suspects.
The suspects were also all added to the Cypriot Government’s
“stop list” (a register of individuals whose entry into and exit
from Cyprus is monitored or banned). On 24 April 2008 the
case file was classified as “otherwise disposed of” pending
future developments.
The Turkish (including the “TRNC”) authorities equally took a
number of investigative steps following the news of the
murders, and by the end of January 2005 all of the suspects
had been arrested. Statements were taken from the suspects –
who denied any involvement in the crime – and persons who
knew or were connected to them as well as from the
applicants. Evidence was also collected. However, the
suspects were released on or around 11 February 2005 due to
lack of evidence connecting them to the murders. The file was
classified as “non-resolved for the time being” in March 2007.
The “TRNC” authorities insisted that the case file containing
the evidence against the suspects be handed over so that they
could conduct a prosecution. The Cypriot authorities refused.
On the strength of the evidence gathered during their
investigation, the Cypriot authorities – in November 2008 –
sought the extradition of the suspects who were within
Turkey’s jurisdiction (either in the “TRNC” or in mainland
Turkey) with a view to their trial. The extradition requests were
returned to the Cypriot authorities without reply. The
investigations of both respondent States thus reached an
impasse and have remained open since then.
Following the murders the Cypriot Government, the “TRNC”
and the applicants were in contact with the United Nations
Peacekeeping Force in Cyprus (“UNFICYP”) about the case. A
number of meetings were held and there was also an
exchange of telephone calls and correspondence. However,
UNFICYP’s efforts to assist the sides to bring the suspects to
justice have proved unsuccessful. The applicants are Meh met
Güzelyurtlu, Ayça Güzelyurtlu, Deniz Erdinch, Emine Akerson,
Fezile Kirralar, Meryem Özfirat and Muzaffer Özfirat. They are
Cypriot nationals of Turkish Cypriot origin who were born in
1978, 1976, 1980, 1962, 1956, 1933, and 1933 respectively.
They live in the “Turkish Republic of Northern Cyprus” or in the
United Kingdom.
Complaints, procedure and composition of the Court:
Relying on Article 2 (right to life), the applicants complained
that both the Cypriot and Turkish authorities (including those o f
the “TRNC”) had failed to conduct an effective investigation
into the killing of their relatives. They further alleged that as a
result of the refusal of Turkey and Cyprus to co-operate the
killers have not yet faced justice. Relying on Article 13 (right to
an effective remedy) in conjunction with Article 2, they
complained of a lack of an effective remedy in respect of their
Article 2 complaint.
The application was lodged with the European Court of Human
Rights on 16 August 2007.
32
Judgment was given by a Chamber of seven judges,
composed as follows: Helena Jäderblom (Sweden), President,
Branko Lubarda (Serbia), Işıl Karakaş (Turkey), Helen Keller
(Switzerland), Pere Pastor Vilanova (Andorra), Alena
Poláčková (Slovakia), Georgios A. Serghides (Cyprus), and
also Stephen Phillips, Section Registrar.
Decision of the Court:
The Court recalled that, generally, the procedural obligation
under Article 2 to carry out an effective investigation fell on the
State under whose jurisdiction the victim was at the time of
death. Nonetheless, where there is a cross -border dimension
to an incident of unlawful violence leading to loss of life, Article
2 requires that the authorities of the Contracting State to which
the suspects have fled and in which evidence of the offence
could be located, take it upon themselves to take effective
measures in that regard. Otherwise, those involved in cross -
border attacks would be able to operate with impunity and the
authorities of the State where the unlawful attacks have taken
place would be prevented from protecting the fundamental
rights of their citizens and, indeed, of any individuals within
their jurisdiction. In the present case, the suspects are or were
within Turkey’s jurisdiction, either in the “TRNC” or in mainland
Turkey. The Turkish (including the “TRNC”) authorities had
been informed of the crime and Red Notices concerning the
suspects had been published. A departure from the general
approach was therefore justified and not only the Republic of
Cyprus but also Turkey’s obligations under Article 2 were
engaged. The Court further noted that the “TRNC” authorities
had instituted their own criminal investigation and that their
courts had jurisdiction.
First, it was clear that the authorities of the respondent States
had taken a significant number of investigative steps promptly.
A considerable amount of evidence had been collected and
eight suspects had quickly been identified, traced and arrested.
Prior to the impasse, the Court therefore found on the facts of
the case that there had been no shortcomings in the respective
investigations in themselves.
However, in as sessing whether there had been a violation of
Article 2, the Court also examined whether the authorities had
done all that could be reasonably expected of them in the
circumstances. Where – as in the applicants’ case – the
investigation of the unlawful killing unavoidably implicated
more than one State, the respondent States concerned were
obliged to cooperate effectively and take all reasonable steps
necessary to facilitate and realise an effective investigation into
the case overall. Despite this, the authorities of the respondent
States in the present case had failed to co-operate resulting in
a situation in which their respective investigations remain open.
Nothing has therefore been done for more than eight years to
bring to a close what is ultimately a straightforward case.
Moreover, although the respondent States had had the
opportunity to find a solution and come to an agreement under
the brokerage of UNFICYP, they had not used that opportunity
to the full. Any suggestions made in an effort to find a
compromise solution or that the authorities concerned meet
each other half way had been met with downright refusal on
the part of those authorities. A number of options have been
put forward, including: organising meetings on neutral territory
between the Cypriot and “TRNC” police, UNFICYP and the
Sovereign Base Areas police; questioning of the suspects
through a video recording interview method at the Ledra
Palace Hotel in the UN buffer zone; the possibility of an ad hoc
arrangement or trial at a neutral venue; the exchange of
evidence (under certain conditions); and dealing with the issue
on a technical services level.
It was therefore clear from all the material before the Court,
including the 2005 UN Secretary General’s report on the UN
operation in Cyprus, that both Governments had not been
prepared to make any compromise on their positions and find
middle ground. That position arose from political
considerations which reflected the long-standing and intense
political dispute between Cyprus and Turkey. On the Cypriot
Government’s side it was evident that what had driven the
unwillingness to cooperate was the refusal to lend (or the fear
of lending) any legitimacy to the “TRNC” – an argument that
this Court rejected. The Court ruled in this respect tha t it did
not accept that steps taken to cooperate in order to further the
investigation in this case would amount to recognition, implied
or otherwise of the “TRNC”. Nor would it be tantamount to
holding that Turkey wields internationally recognised
sovereignty over northern Cyprus. On the other hand, the
Court found it striking that the extradition requests made by the
Cypriot Government, the sole legitimate government of Cyprus,
had been completely ignored by the Turkish Government.
The failure to cooperate directly or through UNFICYP had
resulted in the suspects’ release. If there had been
cooperation, in line with the procedural obligation under Article
2, criminal proceedings might have ensued against one or
more of the suspects or the investigation m ight have come to a
proper conclusion. Therefore, the Court held that there had
been a violation of Article 2 of the Convention under its
procedural aspect on account of the failure of the two
Governments to cooperate. Given that conclusion, the Court
was of the opinion that there was no need to examine
separately the applicants’ complaint under Article 13 of the
Convention taken in conjunction with Article 2.
Just satisfaction (Article 41)
The Court held, by five votes to two, that each respondent
Government was to pay each applicant 8,500 euros (EUR) in
respect of non-pecuniary damage.
33
25. PIMENTEL v. OFFICE OF THE EXECUTIVE
SECRETARY
Facts:
The Rome Statute which established the ICC was
signed by Philippines on December 28, 2000 through Charge
d’Affairs Enrique A. Manalo of the Philippine Mission to the
United Nations. Its provisions, however, require that it be
subject to ratification, acceptance or approval of the signatory
states.
Petitioners herein filed the instant petition to compel
the respondents, the Office of the Executive Secretary and the
DFA, to transmit the signed text of the treaty to the Senate of
the Philippines for ratification, on the theory that ratification of a
treaty, under both domestic law and international law, is a
function of the Senate.
Petitioner also contended that the Philippines has a
ministerial duty to ratify the Rome Statute.
The OSG, commenting for respondents, argued the
executive department has no duty to transmit the Rome
Statute to the Senate for concurrence.
Issues:
WON the ratification of a treaty, or the Rome Statute
in this case, is vested in the Senate.
WON the Philippines is bound to ratify the Rome
Statute which it has signed.
Held:
No. It should be emphasized that under our
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 Pres ident to refuse to submit a treaty to the
Senate or, having secured its consent for its ratification, refuse
to ratify it. Although the refusal of a state to ratify a treaty which
has been signed in its behalf is a serious step that should not
be taken lightly, such decision is within the competence of the
President alone.
No. the President has the discretion even after the
signing of the treaty by the Philippine representative whether or
not to ratify the same. The Vienna Convention on the Law of
Treaties does not contemplate to defeat or even restrain this
power of the head of states. If that were so, the requirement of
ratification of treaties would be pointless and futile. It has been
held that a state has no legal or even moral duty to ratify a
treaty which has been signed by its plenipotentiaries. There is
no legal obligation to ratify a treaty, but it goes without saying
that the refusal must be based on substantial grounds and not
on superficial or whimsical reasons. Otherwise, the other state
would be justified in taking offense.
 26. KURODA v. JALANDONI
I. THE FACTS
Petitioner Shigenori Kuroda, the Commanding General of the
Japanese Imperial Forces in the Philippines during the
Japanese occupation, was charged before the Philippine
Military Commission of war crimes. He questioned the
constitutionality of E.O. No. 68 that created the National War
Crimes Office and prescribed rules on the trial of accused war
criminals. He contended the Philippines is not a signatory to
the Hague Convention on Rules and Regulations covering
Land Warfare and therefore he is charged of crimes not based
on law, national and international.
II. THE ISSUES
Was E.O. No. 68 valid and constitutional?
III. THE RULING
[The Court DENIED the petition and upheld the validity and
constitutionality of E.O. No. 68.]
YES, E.O. No. 68 valid and constitutional.
Article 2 of our Constitution provides in its section 3, that –
The Philippines renounces war as an instrument of national
policy and adopts the generally accepted principles of
international law as part of the law of the nation.
In accordance with the generally accepted principle of
international law of the present day including the Hague
Convention the Geneva Convention and significant precedents
of international jurisprudence established by the United Nation
all those person military or civilian who have been guilty of
planning preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and
incidental thereto in violation of the laws and customs of war,
of humanity and civilization are held accountable therefor.
Consequently in the promulgation and enforcement of
Execution Order No. 68 the President of the Philippines has
acted in conformity with the generally accepted and policies of
international law which are part of the our Constitution.
xxx xxx xxx
Petitioner argues that respondent Military Commission has no
jurisdiction to try petitioner for acts committed in violation of the
Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second
only in 1947. It cannot be denied that the rules and regulation
of the Hague and Geneva conventions form, part of and are
wholly based on the generally accepted principals of
international law. In facts these rules and principles were
accepted by the two belligerent nations the United State and
Japan who were signatories to the two Convention. Such rule
and principles therefore form part of the law of our nation even
if the Philippines was not a signatory to the conventions
34
embodying them for our Constitution has been deliberately
general and extensive in its scope and is not confined to the
recognition of rule and principle of international law as
contained in treaties to which our government may have been
or shall be a signatory.
27. PROSECUTOR v. POPOVIC
Summary:
The Bosnian Serb Forces conducted a campaign of attacks
against the Bosnian Muslim population of Srebrenica and Žepa
between March and September 1995.
After the fall of Srebrenica in July 1995, the men were
separated from the women, children and elderly, and
transported to locations where they were detained and killed.
The Trial Chamber found that these acts constituted genocide,
crimes against humanity and war crimes. The Chamber found
that there were two separate criminal plans, the first of which
aimed to murder the Bosnian Muslim men, and the second to
remove the civilians from Srebrenica and Žepa.
For their acts and omissions, the seven accused were found
guilty on several counts. The Chamber found all of the accused
responsible on counts of crimes against humanity. Popović,
Beara, Nikolić, and Borovčanin were found guilty for violations
of the laws or customs of war, and with the excepti on of
Borovčanin, they were also found guilty on charges of
genocide.
While Popović and Beara received a punishment of life
imprisonment, the rest received sentences between 5 and 35
years of imprisonment.
Procedural history:
The operative indictment was issued on 4 August 2006. The
Trial commenced on 21 August 2006 and closing arguments
were heard between 2 and 15 September 2009.
Related developments:
Both the Prosecution and the Defence teams of all but
Borovčanin filed their appeals briefs between April and August
2011.
Legally relevant facts:
In March 1995, the then President of the Republika Srpska and
Supreme Commander of the Bosnian Serb Army (VRS)
Karadžić outlined an attack plan against the civilians of
Srebrenica and Žepa (para. 199). On 6 July the VRS initiated
the attacks by shelling, leading to the fall of Srebrenica by 11
July (paras. 242, 249 and 260).
Thousands of Bosnian Muslims fled Srebrenica, mostly
heading towards the DutchBat Compound in Potočari (para.
263 et seq). Some of the Bosnian Muslim men fled to the
valleys of Srebrenica forming a column (para. 267 et seq).
The VRS separated the Bosnian Muslim men in Potočari from
the women, children and the elderly (paras. 316 and 319) and
transported them by buses to the town of Bratunac (para. 338),
and later to Zvornik where they were detained in an
atmosphere of terror amidst beatings and executions. Later
they were transported to several nearby locations where they
were killed (para. 473 et seq).
Meanwhile, the VRS targeted Žepa with the aim to remove the
population (para. 665 et seq). Between 26 and 27 July about
5,000 Bosnian Muslims were transported out of Žepa (para.
719).
Core legal questions:
Have the charged crimes been committed in Srebrenica and
Žepa?
Can the seven accused be held individually responsible for
these crimes?
Specific legal rules and provisions:
Articles 3 (War Crimes), 4 (Genocide), Article 5 (Crimes
Against Humanity), 7(1) (Individual Criminal Responsibility)
and 7(3)(Command Responsibility) of the ICTY Statute.
Court's holding and analysis:
The Trial Chamber held that there were two joint criminal
enterprises (JCE); one which aimed to murder, and one which
aimed to forcibly remove civilians from Srebrenica and Žepa.
The Trial Chamber found that through their roles and
engagement in the operations after the fall of Srebrenica,
Popović, Beara and Nikolić participated in the JCE to murder
the Bosnian Muslim men. There was insufficient evidence to
prove that Borovčanin contributed to the JCE to murder.
Furthermore, Popović was also considered to have participated
in the JCE to forcibly remove Bosnian Muslim civilians from
Srebrenica, while Miletić substantially contributed to it.
Although the Chamber found that Gvero also made a
significant contribution to the JCE to forcibly remove civilians, it
was not foreseeable to him that they would be murdered later
(para. 1089 et seq).
The Chamber was also satisfied that Popović, Beara
possessed the special genocidal intent to destroy a group
(paras. 1180; 1317). Nikolić knew about the genocidal intent of
the other perpetrators and substantially contributed to the
commission of genocide (para. 1407).
Pandurević was held responsible for his failure to prevent his
subordinates from committing crimes and significantly
contributing to the murder of the Bosnian Muslims (paras.
1991; 2066).
35
28. PROSECUTOR v. TADIC
Facts:
Dusko Tadic was sentenced for 31 crimes under the
jurisdiction by the International Tribunal. Of these 30, he was
found guilty on nine counts, guilty in part on two counts and not
guilty on twenty counts.
On Cross-Appeal, the Prosecution challenged the acquittal of
Tadic on six counts of the Indictment. Tadic was acquitted on
the said counts on the ground that the victims referred to in
those counts had not been proved to be “protected persons”
under the applicable provisions of the Fourth Geneva
Convention.
In its appeal, the Prosecution maintains that all relevant criteria
regarding grave breachers were met. It said that the Trial
Chamber erred by relying only on the effective control test
derived from the Nicaragua vs United States case in order to
determine the applicability of the grave breach provisions of
the relevant Geneva Convention. It submits that the Chamber
should have instead applied relevant principles and authorities
of international humanitarian law which applies a demonstrable
link test.
Article 2 if the Statute has two general legal ingredients:
Nature of the conflict: should be international
Status of the victim: “protected persons”
Issue:
Does the International Tribunal have jurisdiction to examine the
plea against its jurisdiction based on the invalidity of its
establishment by the Security Council?
Rule:
The international tribunal has jurisdiction to examine the plea
against its jurisdiction based on the invalidlty of its
establishment by the security council.
Tadic (D) attacked the authority of the Security Council to
establish a tribunal for the determination of a criminal charge.
The tribunal is authorized to be established for th e
determination of such charges so long as it is “established by
law.” The Council requires that it be “set up by a competent
organ in keeping with relevant legal procedures, and that it
observes the requirements of procedural fairness.”
 29. PROSECUTOR v. NAHIMANA
FACTS:
In 1992, Nahimana and others founded a comité d’ initiative to
set up the company known as Radio Télévision Libre des Mille
Collines, S.A. He was a member of the party known as
Mouvement Révolutionnaire National pour le Développement
(MRND). Barayagwiza was a lawyer by training and a founding
member of the Coalition pour la Défense de la République
(CDR) party, which had been formed in 1992. He was a
member of the comité d’ initiative. During this time, he also
held the post of Director of Political Affairs in the Ministry of
Foreign Affairs.
In 1990, Ngeze had founded the newspaper Kangura and held
the post of Editor-in-Chief. He was a founding member of the
CDR party. Nahimana was charged with seven counts:
conspiracy to commit genocide, genocide, direct and public
incitement to commit genocide, complicity in genocide, and
crimes against humanity (persecution, extermination and
murder).
Barayagwiza was charged with nine counts: conspiracy to
commit genocide, genocide, direct and public incitement to
commit genocide, complicity in genocide, crimes against
humanity (persecution, extermination and murder), and two
counts of serious violations of Article 3 common to the Geneva
Conventions and of Additional Protocol II.
Ngeze was charged with seven counts: conspiracy to commit
genocide, genocide, direct and public incitement to commit
genocide, complicity in genocide, and crimes against humanity
(persecution, extermination and murder).
Due to lack of evidence, the Chamber acquitted Nahimana a nd
Barayagwiza of crimes against humanity (murder), and further
acquitted Barayagwiza of the two counts of serious violations
of Article 3 Common to the Geneva Conventions and of
Additional Protocol II.
Issues:
Whether Nahimana was guilty of the crimes of
conspiracy to commit genocide, genocide, direct and public
incitement to commit genocide, complicity in genocide, and
crimes against humanity (persecution, extermination and
murder).
Whether the Prosecution proved beyond reasonable
doubt that Barayagwiza had committed the crimes of
conspiracy to commit genocide, genocide, direct and public
incitement to commit genocide, complicity in genocide, crimes
against humanity (persecution, extermination and murder), and
serious violations of Article 3 common to the Geneva
Conventions and of Additional Protocol II.
Whether Ngeze was guilty of conspiracy to commit
genocide, genocide, direct and public incitement to commit
36
genocide, complicity in genocide, and crimes against humanity
(persecution, extermination and murder).
Which factors the Trial Chamber should take into
account upon sentencing.
What the appropriate sentence would be, in case the
Accused were found guilty.
Court's holding and analysis:
The Trial Chamber found Nahimana guilty of conspiracy to
commit genocide, genocide, direct and public incitement to
commit genocide, as well as persecution and extermination as
crimes against humanity. He was acquitted of complicity in
genocide and of murder as a crime against humanity.
The Chamber held that that Barayagwiza was guilty of
conspiracy to commit genocide, genocide, direct and public
incitement to commit genocide as well as persecution and
extermination as crimes against humanity. He was acquitted of
complicity in genocide and of murder as a crime against
humanity, as well as of serious violations of Article 3 common
to the Geneva Conventions and of Additional Protocol II.
Ngeze, was found guilty of conspiracy to commit genocide,
genocide, direct and public incitement to commit genocide and
persecution and extermination as crimes against humanity. He
was acquitted of complicity in genocide and of murder as a
crime against humanity.
After taking into account the gravity of the offences, the
individual circumstances of the Accused and the aggravating
and mitigating factors, the Trial Chamber sentenced Nahimana
and Ngeze to life imprisonment. After giving credit to time
served, the Chamber sentenced Barayagwiza to twenty-seven
years, three months and twenty-one days.
30. PROSECUTOR v. FURUNDŽIJA
Facts:
Anto Furundžija was the commander of the “Jokers”, a special
unit within the Croatian Defence Council (HVO). As such, he
was actively involved in the hostilities against the Muslim
population in the Lašva Valley area (in Bosnia and
Herzegovina), including the attack on the village of Ahmići
(Bosnia and Herzegovina), where he personally participated in
expelling Muslims from their homes in furtherance of the armed
conflict. The events giving rise to the case against Furundžija
have occurred at the “Jokers’” headquarters, a holiday cottage
in Nadioci, (Bosnia and Herzegovina) in May 1993. During this
time, Furundžija captured and interrogated women with the
intention to obtain information which he believed would benefit
the HVO. During the interrogations, those detained were
subjected to sexual assaults, rape, physical and mental
suffering. (para. 66 et seq.)
Issues:
Whether or not the elements of the charged crimes
are fulfilled enough to hold Anto Furundžija liable for these
crimes
Court's holding and analysis:
Trial Chamber II found that “the elements of torture have been
met” (para. 268). Subsequently, Trial Chamber II found
Furundžija “as a co-perpetrator, guilty of a Violation of the
Laws or Customs of War (torture).” (para. 269)
Furthermore, Trial Chamber II was satisfied that “all the
elements of rape were met … [t]he Trial Chamber finds that
Witness A suffered severe physical and mental pain, along
with public humiliation, at the hands of Accused B in what
amounted to outrages upon her personal dignity and sexual
integrity” (para. 272). Although Furundžija “did not personally
rape Witness A, nor can he be considered, under the
circumstances of this case, to be a co-perpetrator” (para. 273),
Trial Chamber II held that “the presence of the accused and his
continued interrogation aided and abetted the crimes
committed by Accused B. He is individually responsible for
outrages upon personal dignity including rape, a violation of
the laws or customs of war under Article 3 of the Statute”
(para. 274).
Furundžija was sentenced to 10 years of imprisonment.
31. LIBANv. GORDON
FACTS:
Respondent filed a motion for partial reconsideration on a
Supreme Court decision which ruled that being chairman of the
Philippine National Red Cross (PNRC) did not disqualify him
from being a Senator, and that the charter creating PNRC is
unconstitutional as the PNRC is a private corporation and the
Congress is precluded by the Constitution to create such. The
Court then ordered the PNRC to incorporate itself with the SEC
as a private corporation. Respondent takes exception to the
second part of the ruling, which addressed the constitutionality
of the statute creating the PNRC as a private corporation.
Respondent avers that the issue of constitutionality was only
touched upon in the issue of locus standi. It is a rule that the
constitutionality will not be touched upon if it is not the lis mota
of the
ISSUE:
Was it proper for the Court to have ruled on the
constitutionality of the PNRC statute?
HELD:
In the case at bar, the constitutionality of the PNRC statute
was raised in the issue of standing. As such, the Court should
not have declared certain provisions of such as
unconstitutional. On the substantive issue, the PNRC is sui
generis. It is unlike the private corporations that th e
Constitution wants to prevent Congress from creating. First,
the PNRC is not organized for profit. It is an organization
dedicated to assist victims of war and administer relief to those
who have been devastated by calamities, among others. It is
entirely devoted to public service. It is not covered by the
prohibition since the Constitution aims to eliminate abuse by
the Congress, which tend to favor personal gain. Secondly, the
PNRC was created in order to participate in the mitigation of
the effects of war, as embodied in the Geneva Convention.
The creation of the PNRC is compliance with international
treaty obligations. Lastly, the PNRC is a National Society, an
auxiliary of the government. It is not like government
instrumentalities and GOCC. The PNRC is regulated directly
by international humanitarian law, as opposed to local law
regulating the other mentioned entities. As such, it was
improper for the Court to have declared certain portions of the
PNRC statute as unconstitutional. However, it is the s tand of
Justice Carpio that there is no mandate for the Government to
create a National Society to this effect. He also raises the fact
that the PNRC is not sui generis in being a private corporation
organized for public needs. Justice Abad is of the opini on that
the PNRC is neither private or governmental, hence it was
within the power of Congress to create.
It has been consistently held in Jurisprudence that the Court
should exercise judicial restraint when it comes to issues of
constitutionality where it is not the lis mota of the case.
case.
37