Province of North Cotabato v.
Government of the Republic of the powers as Chief Executive and Commander-in-Chief, and, in the course of
Philippines (G.R. Nos. 183591, 183752, 183893, 183951, & 183962) (14
October 2008)
Facts:
On 8 August 2008, the Government of the Republic of the Philippines
(GRP), represented by the GRP Peace Panel and the Presidential Adviser on the
Peace Process (PAPP), and the Moro Islamic Liberation Front (MILF) were
scheduled to sign the Memorandum of Agreement on the Ancestral Domain
(MOA-AD) Aspect of the previous GRP-MILF Tripoli Agreement on Peace of
2001 in Kuala Lumpur, Malaysia.
The MOA-AD included, among others, a stipulation that creates the
Bangsamoro Juridical Entity (BJE), to which the GRP grants the authority and
jurisdiction over the ancestral domain and ancestral lands of the Bangsamoro—
defined as the present geographic area of the ARMM constituted by Lanao del
Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City, as well as the
municipalities of Lanao del Norte which voted for inclusion in the ARMM in the
2001 plebiscite. The BJE is then granted the power to build, develop, and
maintain its own institutions. The MOA-AD also described the relationship of
the GRP and the BJE as “associative,” characterized by shared authority and
responsibility. It further provides that its provisions requiring “amendments to
the existing legal framework” shall take effect upon signing of a Comprehensive
Compact.
Before the signing, however, the Province of North Cotabato sought to
compel the respondents to disclose and furnish it with complete and official
copies of the MOA-AD, as well as to hold a public consultation thereon,
invoking its right to information on matters of public concern. A subsequent
petition sought to have the City of Zamboanga excluded from the BJE. The
Court then issued a Temporary Restraining Order (TRO) on 4 August 2008,
directing the public respondents and their agents to cease and desist from
formally signing the MOA-AD.
Issues and Ruling:
W/N the President has the power to pursue reforms that would require new
legislation and constitutional amendments.
YES. However, the stipulation in the MOA-AD that virtually guarantees that
necessary changes shall be effected upon the legal framework of the GRP must
be struck down as unconstitutional as it is inconsistent with the limits of the
President’s authority to propose constitutional amendments. Because although
the President’s power to conduct peace negotiations is implicitly included in her
conducting peace negotiations, may validly consider implementing even those
policies that require changes to the Constitution, 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.
W/N there is a violation of the people’s right to information on matters of
public concern (1987 Constitution, Art. III, Sec. 7) under a state policy of
full disclosure of all its transactions involving public interest (1987
Constitution, Art. II, Sec. 28), including public consultation under RA No.
7160 (Local Government Code of 1991).
YES. At least three pertinent laws animate these constitutional imperatives and
justify the exercise of the people’s right to be consulted on relevant matters
relating to the peace agenda:
EO No. 3, which enumerates the functions and responsibilities of the PAPP, is
replete with mechanics for continuing consultations on both national and local
levels and for a principal forum for consensus-building. In fact, it is the duty of
the PAPP to conduct regular dialogues to seek relevant information, comments,
advice, and recommendations from peace partners and concerned sectors of
society;
RA No. 7160 (LGC) requires all national offices to conduct consultations before
any project or program critical to the environment and human ecology including
those that may call for the eviction of a particular group of people residing in
such locality, is implemented therein. 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;
RA No. 8371 (IPRA) provides for clear-cut procedure for the recognition and
delineation of ancestral domain, which entails, among other things, the
observance of the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples (ICC/IP).
W/N the GRP Peace Panel and the PAPP committed grave abuse of
discretion amounting to lack or excess of jurisdiction.
YES. The PAPP committed grave abuse of discretion when he failed to carry out
the pertinent consultation process, as mandated by EO No. 3, RA No. 7160, and
RA No. 8371. 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 thereof. It
illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.
W/N the MOA-AD is constitutional.
NO. It cannot be reconciled with the present Constitution and laws. Not only its
specific provisions, but the very concept underlying them, namely, the
associative relationship envisioned between the GRP and the BJE, are
unconstitutional, for the concept presupposes that the associated entity is a state
and implies that the same is on its way to independence. While there is a clause
in the MOA-AD stating that the provisions thereof inconsistent with the present
legal framework will not be effective until that framework is amended, the same
does not cure its defect. The inclusion of provisions in the MOA-AD establishing
an associative relationship between the BJE and the Central Government is,
itself, a violation of the Memorandum of Instructions From The President
addressed to the government peace panel. Moreover, as the clause is worded, it
virtually guarantees that the necessary amendments to the Constitution and the
laws will eventually be put in place. Neither the GRP Peace Panel nor the
President herself is authorized to make such a guarantee. 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.
W/N the GRP can invoke executive privilege.
NO. Respondents effectively waived such defense after it unconditionally
disclosed the official copies of the final draft of the MOA-AD, for judicial
compliance and public scrutiny.
Carpio-Morales, J.
The people’s right to information on matters of public concern under Sec. 7, Art.
III of the Constitution is in splendid symmetry with the state policy of full public
disclosure of all its transactions involving public interest under Sec. 28, Art. II of
the Constitution.
The right to information guarantees the right of the people to demand
information, while the policy of public disclosure recognizes the duty of
officialdom to give information even if nobody demands.
The IPRA does not grant the Executive Department or any government agency
the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise.
An association is formed when two states of unequal power voluntarily establish
durable links. In the basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its international
status as a state. Free associations represent a middle ground between integration
and independence.
The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-
determination—a people’s pursuit of its political, economic, social, and cultural
development within the framework of an existing state. A right to external self-
determination (which in this case potentially takes the form of the assertion of a
right to unilateral secession) arises only in the most extreme of cases and, even
then, under carefully defined circumstances.
That the authority of the President to conduct peace negotiations with rebel
groups is not explicitly mentioned in the Constitution does not mean that she has
no such authority.
The President has authority, as stated in her oath of office, only to preserve and
defend the Constitution. Such presidential power does not, however, extend to
allowing her to change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to recommending these
changes and submits to the proper procedure for constitutional amendments and
revision, her mere recommendation need not be construed as an unconstitutional
act.
Public statements of a state representative may be construed as a unilateral
declaration only when the following conditions are present: the statements were
clearly addressed to the international community, the state intended to be bound
to that community by its statements, and that not to give legal effect to those
statements would be detrimental to the security of international intercourse.
Plainly, unilateral declarations arise only in peculiar circumstances.
Maritime Delimitation and Territorial Questions between Qatar and
Bahrain (Qatar v. Bahrain)
OVERVIEW OF THE CASE
On 8 July 1991, Qatar filed in the Registry of the Court an Application
instituting proceedings against Bahrain in respect of certain disputes between the
two States relating to sovereignty over the Hawar Islands, sovereign rights over
the shoals of Dibal and Qit’at Jaradah and the delimitation of their maritime
areas. Qatar founded the jurisdiction of the Court upon certain agreements
between the Parties stated to have been concluded in December 1987 and
December 1990, the subject and scope of the commitment to accept that
jurisdiction being determined by a formula proposed by Bahrain to Qatar in
October 1988 and accepted by the latter State in December 1990 (the “Bahraini
formula”). As Bahrain contested the basis of jurisdiction invoked by Qatar, the
Parties agreed that the written proceedings should first be addressed to the
questions of jurisdiction and admissibility. After a Memorial of the Applicant and
Counter-Memorial of the Respondent had been filed, the Court directed that a
Reply and a Rejoinder be filed by each of them, respectively.
On 1 July 1994 the Court delivered a first Judgment on the above-mentioned
questions. It took the view that both the exchanges of letters of December 1987
between the King of Saudi Arabia and the Amir of Qatar, and between the King
of Saudi Arabia and the Amir of Bahrain, and the document entitled “Minutes”
and signed at Doha in December 1990 constituted international agreements
creating rights and obligations for the Parties ; and that by the terms of those
agreements they had undertaken to submit to the Court the whole of the dispute
between them. In the latter regard, the Court pointed out that the Application of
Qatar did not cover some of the constitutive elements that the Bahraini formula
was supposed to cover. It accordingly decided to give the Parties the opportunity
to submit to it “the whole of the dispute” as circumscribed by the Minutes of
1990 and that formula, while fixing 30 November 1994 as the time-limit within
which the Parties were, jointly or separately, to take action to that end. On the
prescribed date, Qatar filed a document entitled “Act”, which referred to the
absence of an agreement between the Parties to act jointly and declared that it
was submitting “the whole of the dispute” to the Court. On the same day,
Bahrain filed a document entitled “Report” in which it indicated, inter alia, that
the submission to the Court of “the whole of the dispute” must be “consensual in
character, that is, a matter of agreement between the Parties”. By observations
submitted to the Court at a later time, Bahrain indicated that the unilateral “Act”
of Qatar did not “create that jurisdiction [of the Court] or effect a valid
submission in the absence of Bahrain’s consent”. By a second Judgment on the
questions of jurisdiction and admissibility, delivered on 15 February 1995, the
Court found that it had jurisdiction to adjudicate upon the dispute submitted to it
between Qatar and Bahrain, and that the Application of Qatar, as formulated on
30 November 1994, was admissible. The Court, having proceeded to an
examination of the two paragraphs constituting the Doha Agreement, found that,
in that Agreement, the Parties had reasserted their consent to its jurisdiction and
had defined the object of the dispute in accordance with the Bahraini formula ; it
further found that the Doha Agreement permitted the unilateral seisin and that it
was now seised of the whole of the dispute. By two Orders, the Court
subsequently fixed and then extended the time-limit within which each of the
Parties could file a Memorial on the merits.
Following the objections raised by Bahrain as to the authenticity of certain
documents annexed to the Memorial and Counter-Memorial of Qatar, the Court,
by an Order of 30 March 1998, fixed a time-limit for the filing, by the latter, of a
report concerning the authenticity of each of the disputed documents. By the
same Order, the Court directed the submission of a Reply on the merits of the
dispute by each of the Parties. Qatar having decided to disregard the challenged
documents for the purposes of the case, the Court, by an Order of 17 February
1999, decided that the Replies would not rely on those documents. It also
granted an extension of the time-limit for the filing of the said Replies.
In its Judgment of 16 March 2001, the Court, after setting out the procedural
background in the case, recounted the complex history of the dispute. It noted
that Bahrain and Qatar had concluded exclusive protection agreements with
Great Britain in 1892 and 1916 respectively, and that that status of protected
States had ended in 1971. The Court further cited the disputes which had arisen
between Bahrain and Qatar on the occasion, inter alia, of the granting of
concessions to oil companies, as well as the efforts made to settle those disputes.
The Court first considered the Parties’ claims to Zubarah. It stated that, in the
period after 1868, the authority of the Sheikh of Qatar over Zubarah had been
gradually consolidated, that it had been acknowledged in the Anglo-Ottoman
Convention of 29 July 1913 and definitively established in 1937. It further stated
that there was no evidence that members of the Naim tribe had exercised
sovereign authority on behalf of the Sheikh of Bahrain within Zubarah.
Accordingly, it concluded that Qatar had sovereignty over Zubarah.
Turning to the Hawar Islands, the Court stated that the decision by which the
British Government had found in 1939 that those islands belonged to Bahrain did
not constitute an arbitral award, but that did not mean that it was devoid of legal
effect. It noted that Bahrain and Qatar had consented to Great Britain settling
their dispute at the time and found that the 1939 decision must be regarded as a
decision that was binding from the outset on both States and continued to be so
after 1971. Rejecting Qatar’s arguments that the decision was null and void, the
Court concluded that Bahrain had sovereignty over the Hawar Islands.
The Court observed that the British decision of 1939 did not mention Janan
Island, which it considered as forming a single island with Hadd Janan. It
pointed out, however, that in letters sent in 1947 to the Rulers of Qatar and
Bahrain, the British Government had made it clear that “Janan Island is not
regarded as being included in the islands of the Hawar group”. The Court
considered that the British Government, in so doing, had provided an
authoritative interpretation of its 1939 decision, an interpretation which revealed
that it regarded Janan as belonging to Qatar. Accordingly, Qatar had sovereignty
over Janan Island, including Hadd Janan.
The Court then turned to the question of the maritime delimitation. It recalled
that international customary law was the applicable law in the case and that the
Parties had requested it to draw a single maritime boundary. In the southern part,
the Court had to draw a boundary delimiting the territorial seas of the Parties,
areas over which they enjoyed territorial sovereignty (including sea-bed,
superjacent waters and superjacent aerial space). In the northern part, the Court
had to make a delimitation between areas in which the Parties had only sovereign
rights and functional jurisdiction (continental shelf, exclusive economic zone).
With respect to the territorial seas, the Court considered that it had to draw
provisionally an equidistance line (a line every point of which is equidistant from
the nearest points on the baselines from which the breadth of the territorial sea of
each of the two States is measured) and then to consider whether that line must
be adjusted in the light of any special circumstances. As the Parties had not
specified the baselines to be used, the Court recalled that, under the applicable
rules of law, the normal baseline for measuring the breadth of the territorial sea
was the low-water line along the coast. It observed that Bahrain had not included
a claim to the status of archipelagic State in its formal submissions and that the
Court was therefore not requested to take a position on that issue. In order to
determine what constituted the Parties’ relevant coasts, the Court first had to
establish which islands came under their sovereignty. Bahrain had claimed to
have sovereignty over the islands of Jazirat Mashtan and Umm Jalid, a claim
which had not been contested by Qatar. As to Qit’at Jaradah, the nature of which
was disputed, the Court held that it should be considered as an island because it
was above water at high tide ; the Court added that the activities which had been
carried out by Bahrain were sufficient to support its claim of sovereignty over
the island. With regard to low-tide elevations, the Court, after noting that
international treaty law was silent on the question whether those elevations
should be regarded as “territory”, found that low-tide elevations situated in the
overlapping area of the territorial seas of both States could not be taken into
consideration for the purposes of drawing the equidistance line. That was true of
Fasht ad Dibal, which both Parties regarded as a low-tide elevation. The Court
then considered whether there were any special circumstances which made it
necessary to adjust the equidistance line in order to obtain an equitable result. It
found that there were such circumstances which justified choosing a delimitation
line passing on the one hand between Fasht al Azm and Qit’at ash Shajarah and,
on the other, between Qit’at Jaradah and Fasht ad Dibal.
In the northern part, the Court, citing its case law, followed the same approach,
provisionally drawing an equidistance line and examining whether there were
circumstances requiring an adjustment of that line. The Court rejected Bahrain’s
argument that the existence of certain pearling banks situated to the north of
Qatar, and which were predominantly exploited in the past by Bahraini
fishermen, constituted a circumstance justifying a shifting of the line. It also
rejected Qatar’s argument that there was a significant disparity between the
coastal lengths of the Parties calling for an appropriate correction. The Court
further stated that considerations of equity required that the maritime formation
of Fasht al Jarim should have no effect in determining the boundary line.
G.R. No. 118295 May 2, 1997
WIGBERTO E. TAÑADA et al, vs. EDGARDO ANGARA, et al,
Facts:
Petitioners prayed for the nullification, on constitutional grounds, of the
concurrence of the Philippine Senate in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade Organization (WTO
Agreement, for brevity) and for the prohibition of its implementation and
enforcement through the release and utilization of public funds, the assignment
of public officials and employees, as well as the use of government properties
and resources by respondent-heads of various executive offices concerned
therewith.
They contended that WTO agreement violates the mandate of the 1987
Constitution to “develop a self-reliant and independent national economy
effectively controlled by Filipinos x x x (to) give preference to qualified
Filipinos (and to) promote the preferential use of Filipino labor, domestic
materials and locally produced goods” as (1) the WTO requires the Philippines
“to place nationals and products of member-countries on the same footing as
Filipinos and local products” and (2) that the WTO “intrudes, limits and/or
impairs” the constitutional powers of both Congress and the Supreme Court.
Issue:
Whether provisions of the Agreement Establishing the World Trade Organization
unduly limit, restrict and impair Philippine sovereignty specifically the
legislative power which, under Sec. 2, Article VI, 1987 Philippine Constitution is
‘vested in the Congress of the Philippines.
Held:
No, the WTO agreement does not unduly limit, restrict, and impair the Philippine
sovereignty, particularly the legislative power granted by the Philippine
Constitution. The Senate was acting in the proper manner when it concurred with
the President’s ratification of the agreement.
While sovereignty has traditionally been deemed absolute and all-encompassing
on the domestic level, it is however subject to restrictions and limitations
voluntarily agreed to by the Philippines, expressly or impliedly, as a member of
the family of nations. Unquestionably, the Constitution did not envision a hermit-
type isolation of the country from the rest of the world. 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 to be
automatically part of our own laws. One of the oldest and most fundamental
rules in international law is pacta sunt servanda — international agreements must
be performed in good faith. “A treaty engagement is not a mere moral obligation
but creates a legally binding obligation on the parties x x x. A state which has
contracted valid international obligations is bound to make in its legislations
such modifications as may be necessary to ensure the fulfillment of the
obligations undertaken.”
By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of their
state power in exchange for greater benefits granted by or derived from a
convention or pact. After all, states, like individuals, live with coequals, and in
pursuit of mutually covenanted objectives and benefits, they also commonly
agree to limit the exercise of their otherwise absolute rights. Thus, treaties have
been used to record agreements between States concerning such widely diverse
matters as, for example, the lease of naval bases, the sale or cession of territory,
the termination of war, the regulation of conduct of hostilities, the formation of
alliances, the regulation of commercial relations, the settling of claims, the
laying down of rules governing conduct in peace and the establishment of
international organizations. The sovereignty of a state therefore cannot in fact
and in reality be considered absolute. Certain restrictions enter into the picture:
(1) limitations imposed by the very nature of membership in the family of
nations and (2) limitations imposed by treaty stipulations. As aptly put by John F.
Kennedy, “Today, no nation can build its destiny alone. The age of self-sufficient
nationalism is over. The age of interdependence is here.”
The WTO reliance on “most favored nation,” “national treatment,” and “trade
without discrimination” cannot be struck down as unconstitutional as in fact they
are rules of equality and reciprocity that apply to all WTO members. Aside from
envisioning a trade policy based on “equality and reciprocity,” the fundamental
law encourages industries that are “competitive in both domestic and foreign
markets,” thereby demonstrating a clear policy against a sheltered domestic trade
environment, but one in favor of the gradual development of robust industries
that can compete with the best in the foreign markets. Indeed, Filipino managers
and Filipino enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino entrepreneurs and
managers in Hongkong have demonstrated the Filipino capacity to grow and to
prosper against the best offered under a policy of laissez faire.
WHEREFORE, the petition is DISMISSED for lack of merit.
AKBAYAN VS. AQUINO
Facts: The signing of the Japan-Philippines Economic Partnership Agreement
(JPEPA) at the sidelines of the Asia-Europe Summit in Helsinki in September
2006 was hailed by both Japanese Prime Minister Junichiro Koizumi and
Philippine President Gloria Macapagal Arroyo as a “milestone in the continuing
cooperation and collaboration, setting a new chapter of strategic partnership for
mutual opportunity and growth (for both countries).”
JPEPA which has been referred to as a ‘mega treaty’ is a comprehensive plan for
opening up of markets in goods and services as well as removing barriers and
restrictions on investments. It is a deal that encompasses even our commitments
to the WTO.
The complexity of JPEPA became all the more evident at the Senate hearing
conducted by the Committee on Trade and Commerce last November 2006. The
committee, chaired by Senator Mar Roxas, heard differing views and
perspectives on JPEPA. On one hand the committee heard Government’s rosy
projections on the economic benefits of JPEPA and on the other hand the views
of environmental and trade activists who raised there very serious concerns about
the country being turned into Japan’s toxic waste basket. The discussion in the
Senate showed that JPEPA is not just an issue concerning trade and economic
relations with Japan but one that touches on broader national development
concerns.
Issues:
1. Do the therein petitioners have standing to bring this action for mandamus in
their capacity as citizens of the Republic, as taxpayers, and as members of the
Congress
2. Can this Honorable Court exercise primary jurisdiction of this case and take
cognizance of the instant petition.
3. Are the documents and information being requested in relation to the JPEPA
exempted from the general rules on transparency and full public disclosure such
that the Philippine government is justified in denying access thereto.
Rulings:
The Supreme Court en banc promulgated last July 16, 2008 its ruling on the case
of “Akbayan Citizens Action Party et al vs. Thomas G. Aquino et al” (G.R. No.
170516). The Highest Tribunal dismissed the Petition for mandamus and
prohibition, which sought to compel respondents Department of Trade Industry
(DTI) Undersecretary Thomas Aquino et al to furnish petitioners the full text of
the Japan-Philippines Economic Partnership Agreement (JPEPA) and the lists of
the Philippine and Japanese offers submitted during the negotiation process and
all pertinent attachments and annexes thereto.
In its Decision, the Court noted that the full text of the JPEPA has been made
accessible to the public since 11 September 2006, and thus the demand to be
furnished with copy of the said document has become moot and academic.
Notwithstanding this, however, the Court lengthily discussed the substatives
issues, insofar as they impinge on petitioners' demand for access to the
Philippine and Japanese offers in the course of the negotiations.
The Court held: “Applying the principles adopted in PMPF v. Manglapus, it is
clear that while the final text of the JPEPA may not be kept perpetually
confidential – since there should be 'ample opportunity for discussion before [a
treaty] is approved' – the offers exchanged by the parties during the negotiations
continue to be privileged even after the JPEPA is published. It is reasonable to
conclude that the Japenese representatives submitted their offers with the
understanding that 'historic confidentiality' would govern the same. Disclosing
these offers could impair the ability of the Philippines to deal not only with
Japan but with other foreign governments in future negotiations.”
It also reasoned out that opening for public scrutiny the Philippine offers in
treaty negotiations would discourage future Philippine representatives from
frankly expressing their views during negotiations. The Highest Tribunal
recognized that treaty negotiations normally involve a process of quid pro quo,
where negotiators would willingly grant concessions in an area of lesser
importance in order to obtain more favorable terms in an area of greater national
interest.
In the same Decision, the Court took time to address the dissent of Chief Justice
Reynato S. Puno. It said: “We are aware that behind the dissent of the Chief
Justice lies a genuine zeal to protect our people's right to information against any
abuse of executive privilege. It is a zeal that We fully share. The Court, however,
in its endeavour to guard against the abuse of executive privilege, should be
careful not to veer towards the opposite extreme, to the point that it would strike
down as invalid even a legitimate exercise thereof.”
PIMENTEL VS. EXECUTIVE SECRETARY
462 SCRA 622
G.R. No. 158088 July 06, 2005
Facts: On December 28, 2000, the Philippines through the Charge d’ Affairs
Enrique A. Manalo of the Philippine Mission to the United Nations, signed the
Rome Statute which established the International Criminal Court. Thus, herein
petitioners filed the instant petition to compel the respondents — the Office of
the Executive Secretary and the Department of Foreign Affairs — to transmit the
signed text of the treaty to the Senate of the Philippines for ratification.
Issue: Whether or not the Executive Secretary and the Department of Foreign
Affairs have a ministerial duty to transmit to the Senate for ratification the copy
of the Rome Statute signed by a member of the Philippine Mission to the United
Nations even without the signature of the President.
Held: The Supreme Court rule in the negative.
The President, being the head of state, is regarded as the sole organ and authority
in external relations and is the country’s sole representative with foreign nations.
As the chief architect of foreign policy, the President acts as the country’s
mouthpiece with respect to international affairs. Hence, the President is vested
with the authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-
making, the President has the sole authority to negotiate with other states.
It should be emphasized that under the Constitution, the power to ratify is vested
in the President, subject to the concurrence of the Senate. The role of the Senate,
however, is limited only to giving or withholding its consent, or concurrence, to
the ratification. Hence, it is within the authority of the President to refuse to
submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it.
 G. R. No. 138570 October 10, 2000 foreign military bases, troops or facilities should apply in the instant case. To a
Bayan vs Zamora certain extent and in a limited sense, however, the provisions of section 21,
Article VII will find applicability with regard to the issue and for the sole
purpose of determining the number of votes required to obtain the valid
concurrence of the senate.
Facts:
The Constitution, makes no distinction between “transient” and “permanent.” We
The United States panel met with the Philippine panel to discussed, among find nothing in section 25, Article XVIII that requires foreign troops or facilities
others, the possible elements of the Visiting Forces Agreement (VFA). This to be stationed or placed permanently in the Philippines.
resulted to a series of conferences and negotiations which culminated on January
12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which It is inconsequential whether the United States treats the VFA only as an
was respectively signed by Secretary Siazon and United States Ambassador executive agreement because, under international law, an executive agreement is
Thomas Hubbard. as binding as a treaty.

Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999,
the senate approved it by (2/3) votes.
Fisheries Jurisdiction (United Kingdom v. Iceland)

OVERVIEW OF THE CASE

Cause of Action:
On 14 April and 5 June 1972, respectively, the United Kingdom and the Federal
Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution
Republic of Germany instituted proceedings against Iceland concerning a dispute
is applicable and not Section 21, Article VII.
over the proposed extension by Iceland, as from 1 September 1972, of the limits
of its exclusive fisheries jurisdiction from a distance of 12 to a distance of 50
Following the argument of the petitioner, under they provision cited, the “foreign
nautical miles. Iceland declared that the Court lacked jurisdiction, and declined
military bases, troops, or facilities” may be allowed in the Philippines unless the
to be represented in the proceedings or file pleadings. At the request of the
following conditions are sufficiently met:
United Kingdom and the Federal Republic, the Court in 1972 indicated, and in
a) it must be a treaty,
1973 confirmed, provisional measures to the effect that Iceland should refrain
b) it must be duly concurred in by the senate, ratified by a majority of the votes
from implementing, with respect to their vessels, the new regulations regarding
cast in a national referendum held for that purpose if so required by congress,
the extension of the zone of its exclusive fishing rights, and that the annual catch
and
of those vessels in the disputed area should be limited to certain maxima. In
c) recognized as such by the other contracting state.
Judgments delivered on 2 February 1973, the Court found that it possessed
jurisdiction ; and in Judgments on the merits of 25 July 1974, it found that the
Respondents, on the other hand, argue that Section 21 Article VII is applicable so
Icelandic regulations. constituting a unilateral extension of exclusive fishing
that, what is requires for such treaty to be valid and effective is the concurrence
rights to a limit of 50 nautical miles were not opposable to either the United
in by at least two-thirds of all the members of the senate.
Kingdom or the Federal Republic, that Iceland was not entitled unilaterally to
exclude their fishing vessels from the disputed area, and that the Parties were
ISSUE:
under mutual obligations to undertake negotiations in good faith for the equitable
solution of their differences.
Is the VFA governed by the provisions of Section 21, Art VII or of Section 25,
Article XVIII of the Constitution?

HELD:

Section 25, Article XVIII, which specifically deals with treaties involving

Gabčíkovo-Nagymaros Project (Hungary/Slovakia)
OVERVIEW OF THE CASE
On 2 July 1993 the Governments of the Republic of Hungary and of the Slovak
Republic notified jointly to the Registry of the Court a Special Agreement,
signed at Brussels on 7 April 1993, for the submission to the Court of certain
issues arising out of differences which had existed between the Republic of
Hungary and the Czech and Slovak Federal Republic regarding the
implementation and the termination of the Budapest Treaty of 16 September
1977 on the Construction and Operation of the Gabčíkovo-Nagymaros Barrage
System and on the construction and operation of the “provisional solution”. The
Special Agreement records that the Slovak Republic is in this respect the sole
successor State of the Czech and Slovak Federal Republic. In Article 2 of the
Special Agreement, the Court was asked to say : (a) whether the Republic of
Hungary was entitled to suspend and subsequently abandon, in 1989, the works
on the Nagymaros project and on that part of the Gabčíkovo project for which
the Treaty attributed responsibility to the Republic of Hungary ; (b) whether the
Czech and Slovak Federal Republic was entitled to proceed, in November 1991,
to the “provisional solution” and to put into operation from October 1992 this
system (the damming up of the Danube at river kilometre 1,851.7 on
Czechoslovak territory and the resulting consequences for the water and
navigation course) ; and (c) what were the legal effects of the notification, on 19
May 1992, of the termination of the Treaty by the Republic of Hungary. The
Court was also requested to determine the legal consequences, including the
rights and obligations for the Parties, arising from its Judgment on the above-
mentioned questions. Each of the Parties filed a Memorial, a Counter Memorial
and a Reply accompanied by a large number of annexes.
Slovakia, as successor to Czechoslovakia, had become Party to the Treaty of 16
September 1977 as from 1 January 1993. The Court also decided that Hungary
and Slovakia must negotiate in good faith in the light of the prevailing situation
and must take all necessary measures to ensure the achievement of the objectives
of the said Treaty, in accordance with such modalities as they might agree upon.
Further, Hungary was to compensate Slovakia for the damage sustained by
Czechoslovakia and by Slovakia on account of the suspension and abandonment
by Hungary of works for which it was responsible, whereas, again according to
the Judgment of the Court, Slovakia was to compensate Hungary for the damage
it had sustained on account of the putting into operation of the dam by
Czechoslovakia and its maintenance in service by Slovakia.
On 3 September 1998, Slovakia filed in the Registry of the Court a request for an
additional Judgment in the case. Slovakia considered such a Judgment necessary
because of the unwillingness of Hungary to implement the Judgment delivered
by the Court on 25 September 1997. In its request, Slovakia stated that the
Parties had conducted a series of negotiations of the modalities for executing the
1997 Judgment and had initialled a draft Framework Agreement, which had been
approved by the Slovak Government. However, according to the latter, Hungary
had decided to postpone its approval and had even disavowed it when the new
Hungarian Government had come into office. Slovakia requested the Court to
determine the modalities for executing the Judgment, and, as the basis for its
request, invoked the Special Agreement signed at Brussels on 7 April 1993 by
itself and Hungary. After the filing by Hungary of a statement of its position on
Slovakia’s request, the Parties resumed negotiations and informed the Court on a
regular basis of the progress in them.

In June 1995, the Agent of Slovakia requested the Court to visit the site of the
Gabčíkovo-Nagymaros hydroelectric dam project on the Danube for the purpose
of obtaining evidence. A “Protocol of Agreement” was thus signed in November
1995 between the two Parties. The visit to the site, the first such visit by the
Court in its 50-year history, took place from 1 to 4 April 1997 between the first
and second rounds of oral pleadings.

In its Judgment of 25 September 1997, the Court asserted that Hungary was not
entitled to suspend and subsequently abandon, in 1989, the works on the
Nagymaros project and on the part of the Gabčíkovo project for which it was
responsible, and that Czechoslovakia was entitled to proceed, in November 1991,
to the “provisional solution” as described by the terms of the Special Agreement.
On the other hand, the Court stated that Czechoslovakia was not entitled to put
into operation, from October 1992, the barrage system in question and that
 LIM v. EXECUTIVE SECRETARY
Facts:
Beginning January of year 2002, personnel from the armed forces of the United
States of America started arriving in Mindanao to take part, in conjunction with
the Philippine military, in “Balikatan 02-1.” They are a simulation of joint
military maneuvers pursuant to the Mutual Defense Treaty a bilateral defense
agreement entered into by the Philippines and the United States in 1951. Its aim
is to enhance the strategic and technological capabilities of our armed forces
through joint training with its American counterparts; the “Balikatan” is the
largest such training exercise directly supporting the MDT’s objectives. It is this
treaty to which the VFA adverts and the obligations thereunder which it seeks to
reaffirm.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this
petition for certiorari and prohibition, attacking the constitutionality of the joint
exercise.
Issue: Whether “Balikatan 02-1” activities covered by the Visiting Forces
Agreement?
Ruling:
To resolve this, it is necessary to refer to the VFA itself. The VFA permits United
States personnel to engage, on an impermanent basis, in “activities,” the exact
meaning of which was left undefined. The sole encumbrance placed on its
definition is couched in the negative, in that United States personnel must
“abstain from any activity inconsistent with the spirit of this agreement, and in
particular, from any political activity.
The Vienna Convention on the Law of Treaties, Articles 31 and 32 contains
provisos governing interpretations of international agreements. It clearly
provides that the cardinal rule of interpretation must involve an examination of
the text, which is presumed to verbalize the parties’ intentions. The Convention
likewise dictates what may be used as aids to deduce the meaning of terms,
which it refers to as the context of the treaty, as well as other elements may be
taken into account alongside the aforesaid context.
It appeared farfetched that the ambiguity surrounding the meaning of the
word .’activities” arose from accident. It was deliberately made that way to give
both parties a certain leeway in negotiation. In this manner, visiting US forces
may sojourn in Philippine territory for purposes other than military. As
conceived, the joint exercises may include training on new techniques of patrol
and surveillance to protect the nation’s marine resources, sea search-and-rescue
operations to assist vessels in distress, disaster relief operations, civic action
projects such as the building of school houses, medical and humanitarian
missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan
exercises. It is only logical to assume that .’Balikatan 02-1,” a “mutual anti-
terrorism advising, assisting and training exercise,” falls under the umbrella of
sanctioned or allowable activities in the context of the agreement.
THE COMMISSIONER OF CUSTOMS and THE COLLECTOR
OFCUSTOMS v. EASTERN SEA TRADING
Topic: Executive Agreements
NATURE OF THE CASE
This is a petition for review of a decision of the Court of Tax Appeals, which
reversed a decision of the Commissioner of Customs
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
islegal 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 adjustments 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 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.
USAFFE VETERANS ASSOC’N v. TREASURER
FACTS: The central issue in this litigation concerns the validity of the
Romulo-Snyder Agreement (1950) whereby the Philippine Government
undertook to return to the United States Government in ten annual
installments, a total of about 35-million dollars advanced by the United
States to, but unexpended by, the National Defense Forces of the
Philippines.
July 1941: Pres Roosevelt, foreseeing the War in the Pacific, called into the
service of the Armed Forces of the United States, all the organized military
forces of the Philippine Commonwealth.
Money was appropriated by US Congress (in Appropriation Act of December
17,1941 - Public Law No. 353) for the expenses of the operation, mobilization
and maintenance of the Philippine Army. Expenditures from funds allocated in
Ph Treasury will be made by disbursing officers of the Army of the Philippines
on the approval of authority of the Commanding General, United States
Army Forces in the Far East
P570,863,000.00 was transferred directly to the Philippines Armed Forces by
means of vouchers which stated "Advance of Funds under Public law 353-77th
Congress and Executive Order No. 9011"As of December 31, 1949, Of the
millions so transferred, there remained unexpended and uncommitted in the
possession of the Philippine Armed Forces of about 35 million dollars.
At that time, the Philippine Government badly needed funds for its activities.
President Quirino, through Governor Miguel Cuaderno of the Central Bank
proposed to the corresponding officials of the U.S. Government the retention of
the 35-million dollars as a loan.
Romulo-Snyder Agreement was signed in Washington stating that The
Government of the Republic of the Philippines further agrees to pay the
unexpended amount by 9 payments of 3.5 M USD + Final payment to be
determined
Oct 1954: United States Army Forces in the Far East (USAFFE) complaint
before the Manila court of first instance-- Agreement be annulled, that payments
thereunder be declared illegal and that defendants as officers of the Philippine
Republic be restrained from disbursing any funds in the National Treasury
USAFFE Veterans said that funds should be turned over to the Finance
Service of the Armed Forces of the Philippines for the payment of all pending
claims of the veterans represented by plaintiff.
ISSUES:
1. Whether the money delivered to the Armed Forces of the Philippine Islands
were straight payments for military services and hence, ownership is vested to
the Philippine Government upon delivery.
2. Whether the Romula-nyder Agreement is valid a!sent ratification of the
Congress
HELD:
1. No. Amounts were not under absolute control of PH GOV, funds were
advanced not directly paid to PH and unexpended balance should be returned.
Appropriation (Public law 353) states that money is to be handed to
the Philippine Government either in advance of expenditures or in
reimbursement thereof. In any system of accounting, advances of funds for
expenditures contemplated disbursements to be reported, and credited
if approved, against such advances, the unexpended sums to be returned later.
The Congressional Act of December 17, 1941 expressly stated shall be available
for the payment to the Government of the Commonwealth of the Philippines
upon its written request, either in advance of or in reimbursement for all or any
part of the estimated or actual cost. Regarding the funds as advanced means that
it is to be subsequently accounted for which means submissions of expenditures
and if approved, return of balance. Hence, there is the obligation to return the
unexpended funds.
2. The agreement is not a “treaty: as the term used in the constitution. The
agreement was never submitted to the Senate for concurrence. The distinction
between “executive agreements” and “treaties” is purely a constitutional one and
has no international legal significance.
Executive agreement fall into two classes: (1) agreements made purely as
executive acts affecting external relations and independent of or without
legislative authorization, and (2) agreements entered into in pursuant of acts of
Congress. The Romulo-Synder agreement fall under any of these two classes.
Precisely, on September 18, 1946, the Congress specifically authorized the
President to obtain such loans with the US. Assuming that there was no
legislative authorization, the agreement was legally entered into to conform to
the first category which does not need the ratification of the Senate.
Resolution: Petition denied.
ABAYA v. EBDANE
FACTS: On May 7, 2004 Bids and Awards Committee (BAC) of the Department
of Public Works and Highways (DPWH) issued a Resolution. It was approved by
DPWH Acting Secretary Florante Soriquez. This resolution recommended award
to China Road & Bridge Corporation of the contracts for the implementation of
civil works for Contract Package No. 1 (CP 1), which consists of the
improvement/ rehabilitation of the San Andres-Virac-Jct Bago-Viga road with
the length of 19.818 kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between Mr. Yoshihisa
Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines,
and the Foreign Affairs Secretary Siazon, in behalf of their respective
government.
ISSUE: Whether or not the Loan Agreement PH-204 between JBIC and the
Philippine Government is a kind of a treaty.
HELD: The Loan Agreement PH-204 taken in conjunction with the Exchange of
Notes dated December 27, 1999 between Japanese Government and the
Philippine Government is an executive agreement. An “exchange of notes” is a
record of a routine agreement that has many similarities with the private law
contract. The agreement consists of the exchange of two documents, each of the
parties being the possession of the one signed by the representative of the other.
…treaties, agreements, conventions, charters, protocols, declarations,
memoranda of understanding, modus vivendi and exchange of notes all are refer
to international instruments binding at international law.
Although these instruments differ from each other by title, they all have common
features and international law has applied basically the same rules to all these
instruments. These rules are the result of long practice among the States, which
have accepted them as binding norms in their mutual relations. Therefore, they
are regarded as international customary law.
That case was dismissed by the SCORP last Feb. 14 2007.
What the petitioners wanted was that Foreign funded projects also undergo the
procurement process. The dismissal of the case somehow gave justification for
the delay of the implementing rules for foreign funded projects (IRR-B) of the
procurement law If we recall the decision of the Abaya vs Ebdane was used by
the DOJ when the DOTC Secretary was asking for an opinion from the former,
during the ZTE controversy.as ruled by the Supreme Court in Abaya v. Ebdane,
an exchange of notes is considered a form of an executive agreement, which
becomes binding through executive action without need of a vote by the
Senate and that (like treaties and conventions, it is an international instrument
binding at international law,
The second issue involves an examination of the coverage of Republic Act No.
9184, otherwise known as the “Government Procurement Reform Act”. Section
4 of the said Act provides that it shall
apply to: … the Procurement of infrastructure Projects, Goods and Consulting
Services, regardless of source of funds, whether local or foreign, by all branches
and instrumentalities of government, its departments, offices and agencies,
including government-owned and/or -controlled corporations and local
government units, subject to the provisions of Commonwealth Act No. 138. Any
treaty or international or executive agreement affecting the subject matter of this
Act to which the Philippine government is a signatory shall be observed.
ABAYA VS. EBDANE G.R. NO. 167919 FEB. 14, 2007
FACTS:
This a petition for certiorari and prohibition to set aside and nullify Res. No.
PJHL-A-04-012 dated May 27, 2004 issued by the Bids and Action Committee
(BAC) of the DPWH. This resolution recommended the award to private
respondent China Road and Bridge Corporation of the contract which consist of
the improvement and rehabilitation of a 79.818-km road in the island of
Catanduanes.
Based on an Exchange of Notes, Japan and the Philippines have reached an
understanding that Japanese loans are to be extended to the country with the aim
of promoting economic stabilization and development efforts.
In accordance with the established prequalification criteria, eight contractors
were evaluated or considered eligible to bid as concurred by the JBIC. Prior to
the opening of the respective bid proposals, it was announced that the Approved
Budget for the Contract (ABC) was in the amount of P738,710,563.67.
Consequently, the bid goes to private respondent in the amount of
P952,564,821.71 (with a variance of 25.98% from the ABC). Hence this petition
on the contention that it violates Sec. 31 of RA 9184 which provides that :
Sec. 31 – Ceiling for Bid Prices. – The ABC shall be the upper limit or ceiling
for the bid prices. Bid prices that exceed this ceiling shall be disqualified outright
from further participating in the proceeding. There shall be no lower limit to the
amount of the award.
The petitioners further contends that the Loan Agreement between Japan and the
Philippines is neither an international nor an executive agreement that would bar
the application of RA9184. They pointed out that to be considered as such, the
parties must be two (2) sovereigns or states whereas in this loan agreement, the
parties were the Philippine government and the JBIC, a banking agency of Japan,
which has a separate juridical personality from the Japanese government.
ISSUE :
Whether or not the assailed resolution violates RA 9184.
RULING :
The petition is dismissed. Under the fundamental principle of international law
of pacta sunt servanda, which is in fact, embodied is Section 4 of RA9184, “any
treaty or international or executive agreement affecting the subject matter of this
Act to which the Philippine government is a signatory, shall be observed”. The
DPWH, as the executing agency of the project financed by the Loan Agreement
rightfully awarded the contract to private respondent China Road and Bridge
Corporation.
The Loan Agreement was executed and declared that it was so entered by the
parties “in the light of the contents of the Exchange of Notes between the
government of Japan and the government of the Philippines dated Dec. 27,
1999.” Under the circumstances, the JBIC may well be considered an adjunct of
the Japanese government. The JBIC procurement guidelines absolutely prohibits
the imposition of ceilings and bids.
BAYAN MUNA v. ALBERTO ROMULO. G.R. No. 159618; February 1,
2011. 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
FACTS: In 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed such subjects as commercial and consular relations, most favored-nation rights,
the Rome Statute which, by its terms, is “subject to ratification, acceptance or patent rights, trademark and copyright protection, postal and navigation
approval” by the signatory states. arrangements and the settlement of claims. The validity of these has never been
seriously questioned by our courts.
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 Executive agreements may be validly entered into without such concurrence. As
protect certain persons of the RP and US from frivolous and harassment suits the President wields vast powers and influence, her conduct in the external
that might be brought against them in international tribunals. 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
Petitioner imputes grave abuse of discretion to respondents in concluding and confirmed by long practice. DISMISSED.
ratifying the Agreement and prays that it be struck down as unconstitutional, or
at least declared as without force and effect.

ISSUE: [1] Did respondents abuse their discretion amounting to lack or RENE A.V. SAGUISAG V. EXECUTIVE SECRETARY PAQUITO
excess of jurisdiction in concluding the RP-US Non Surrender Agreement in OCHOA
contravention of the Rome Statute? G.R. No. 212426 & 212444; January 12, 2016
[2] Is the agreement valid, binding and effective without the concurrence by
at least 2/3 of all the members of the Senate? FACTS: The Enhanced Defense Cooperation Agreement (EDCA) is an
executive agreement that gives U.S. troops, planes and ships increased rotational
HELD: The Agreement does not contravene or undermine, nor does it differ presence in Philippine military bases and allows the U.S. to build facilities to
from, the Rome Statute. Far from going against each other, one complements the store fuel and equipment there. It was signed against the backdrop of the
other. As a matter of fact, the principle of complementarity underpins the Philippines' maritime dispute with China over the West Philippine Sea.
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 The US embassy and DFA exchanged diplomatic notes confirming all necessary
states].” the Rome Statute expressly recognizes the primary jurisdiction of states, requirements for the agreement to take force. The agreement was signed on April
like the RP, over serious crimes committed within their respective borders, the 2014. President Benigno Aquino III ratified the same on June 2014. It was not
complementary jurisdiction of the ICC coming into play only when the signatory submitted to Congress on the understanding that to do so was no longer
states are unwilling or unable to prosecute. necessary.

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.
Petitions for Certiorari were filed before the Supreme Court assailing the
constitutionality of the agreement. Herein petitioners now contend that it should
have been concurred by the senate as it is not an executive agreement. The
Senate issued Senate Resolution No. 105 expressing a strong sense that in order
for EDCA to be valid and binding, it must first be transmitted to the Senate for
deliberation and concurrence.
ISSUE: Whether or not the EDCA between the Philippines and the U.S. is
constitutional.
RULING: YES. The EDCA is an executive agreement and does not need the
Senate's concurrence. As an executive agreement, it remains consistent with
existing laws and treaties that it purports to implement.
Petitioners contend that the EDCA must be in the form of a treaty duly concurred
by Senate. They hinge their argument under the following Constitutional
provisions:
 Sec. 21, Art. VII: “No treaty or international agreement shall be valid
and effective unless concurred in by at least 2/3rds of all the Members
of the Senate.”
 Section 25, Article XVIII: “ xxx Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under
a treaty duly concurred in by the Senate xxx ”
The President, however, may enter into an executive agreement on foreign
military bases, troops, or facilities, if (a) it is not the instrument that allows
the presence of foreign military bases, troops, or facilities; or (b) it merely
aims to implement an existing law or treaty
In Commissioner of Customs v. Eastern Sea Trading: Executive Agreements
are defined as international agreements embodying adjustments of detail
carrying out well-established national policies and traditions and those involving
arrangements of a more or less temporary nature.
Treaties are formal documents which require ratification with the approval of
two-thirds of the Senate. The right of the Executive to enter into binding
agreements without the necessity of subsequent Congressional approval has been
confirmed by long usage.
The Visiting Forces Agreement – a treaty ratified by the Senate in 1999 – already
allowed the return of US troops. EDCA is consistent with the content, purpose,
and framework of the Mutual Defense Treaty and the VFA. The practice of
resorting to executive agreements in adjusting the details of a law or a treaty that
already deals with the presence of foreign military forces is not at all unusual in
this jurisdiction.
In order to keep the peace in its archipelago and to sustain itself at the same time
against the destructive forces of nature, the Philippines will need friends. Who
they are, and what form the friendships will take, are for the President to decide.
The only restriction is what the Constitution itself expressly prohibits. EDCA is
not constitutionally infirm. As an executive agreement, it remains consistent with
existing laws and treaties that it purports to implement.
Petition is DISMISSED.
INTELLECTUAL PROPERTY ASSOCIATION OF THE PHILIPPINES v.
HON. PAQUITO OCHOA, IN HIS CAPACITY AS EXECUTIVE
SECRETARY, ET AL.
G.R. No. 204605, 19 July 2016, EN BANC (Bersamin, J.)
DOCTRINE OF THE CASE
The registration of trademarks and copyrights have been the subject of
executive agreements entered into without the concurrence of the Senate. Some
executive agreements have been concluded in conformity with the policies
declared in the acts of Congress with respect to the general subject matter.
FACTS
The Madrid System for the International Registration of Marks (Madrid
System), which is the centralized system providing a one-stop solution for
registering and managing marks worldwide, allows the trademark owner to file
one application in one language, and to pay one set of fees to protect his mark in
the territories of up to 97 member-states. The Madrid System is governed by the
Madrid Agreement, concluded in 1891, and the Madrid Protocol, concluded in
1989. The Madrid Protocol has two objectives, namely: (1) to facilitate securing
protection for marks; and (2) to make the management of the registered marks
easier in different countries.
In 2004, the Intellectual Property Office of the Philippines (IPOPHL), began
considering the country's accession to the Madrid Protocol. After a campaign for
information dissemination, and a series of consultations with stakeholders,
IPOPHL ultimately arrived at the conclusion that accession would benefit the
country and help raise the level of competitiveness for Filipino brands. Hence, it
recommended to the Department of Foreign Affairs (DFA) that the Philippines
should accede to the Madrid Protocol. After its own review, the DFA endorsed to
the President the country's accession to the Madrid Protocol. The DFA
determined that the Madrid Protocol was an executive agreement.
On March 27, 2012, President Benigno C. Aquino III ratified the Madrid
Protocol through an instrument of accession, which was deposited with the
Director General of the World Intellectual Property Organization (WIPO) on
April 25, 2012. The Madrid Protocol entered into force in the Philippines on July
25, 2012.
Thus, the Intellectual Property Association of the Philippines (IPAP) commenced
this special civil action for certiorari and prohibition to challenge the validity of
the President's accession to the Madrid Protocol without the concurrence of the
Senate. According to the IPAP, the Madrid Protocol is a treaty, not an executive
agreement; hence, respondent DFA Secretary Albert Del Rosario acted with
grave abuse of discretion in determining the Madrid Protocol as an executive
agreement. Also, the IPAP has argued that the implementation of the Madrid
Protocol in the Philippines; specifically the processing of foreign trademark
applications, conflicts with the Intellectual Property Code of the Philippines.
ISSUE
Is the Madrid Protocol unconstitutional for lack of concurrence by the
Senate?
RULING
NO. The Court finds and declares that the President’s ratification is valid
and constitutional because the Madrid Protocol, being an executive agreement as
determined by the Department of Foreign Affairs, does not require the
concurrence of the Senate.
Under prevailing jurisprudence, the registration of trademarks and
copyrights have been the subject of executive agreements entered into without
the concurrence of the Senate. Some executive agreements have been concluded
in conformity with the policies declared in the acts of Congress with respect to
the general subject matter.
Accordingly, DFA Secretary Del Rosario’s determination and treatment of the
Madrid Protocol as an executive agreement; being in apparent contemplation of
the express state policies on intellectual property as well as within his power
under Executive Order No. 459, are upheld.
The Court observed that there are no hard and fast rules on the propriety of
entering into a treaty or an executive agreement on a given subject as an
instrument of international relations. The primary consideration in the choice of
the form of agreement is the parties’ intent and desire to craft their international
agreement in the form they so wish to further their respective interests. The
matter of form takes a back seat when it comes to effectiveness and binding
effect of the enforcement of a treaty or an executive agreement; inasmuch as all
the parties; regardless of the form, become obliged to comply conformably with
the time-honored principle of pacta sunt servanda. The principle binds the
parties to perform in good faith their parts in the agreements.
NUCLEAR TEST CASES (AUSTRALIA v. FRANCE, NEW ZEALAND v.
FRANCE)
Brief Fact Summary. Australia and New Zealand (P) requested France (D) to
put an halt to atmospheric nuclear test in the South Pacific.
Synopsis of Rule of Law. Declaration made through unilateral acts may have
the effect of creating legal obligations.
Facts. A series of nuclear tests was completed by France (D) in the South
Pacific. This action made Australia and New Zealand (P) to apply to the I.C.J.
demanding that France (D) cease testing immediately. Before the case could be
completed, France (D) announced it had completed the test and did not plan any
further test. So France (D) moved for the dismissal of the application.
Issue. May declaration made through unilateral act has effect of creating legal
obligations?
Held. Yes. Declaration made through unilateral acts may have the effect of
creating legal obligations. In this case, the statement made by the President of
France must be held to constitute an engagement of the State in regard to the
circumstances and intention with which they were made. Therefore, these
statement made by the France (D) are relevant and legally binding. Application
was dismissed.
Discussion. The unilateral statements made by French authorities were first
relayed to the government of Australia. There was no need for the statements to
be directed to any particular state for it to have legal effect. The general nature
and characteristics of the statements alone were relevant for evaluation of their
legal implications.
Nuclear Test Cases (New Zealand; Australia v France, 1974)
Summary & Issues:
Following a series of tests conducted by France in the South Pacific, both New
Zealand & Australia asserted separate claims regarding nuclear fall-out that had
been detected on their respective territories. Although France contended that the
measure of nuclear fall-out was not enough to cause a public health concern, a
series of statements from the French government implied that no further testing
would occur, despite several subsequent tests taking place.
The issues presented in these cases were:
- Can public statements made on behalf of the state have a legal effect, even
when made prior and/or subsequent to proceedings?
- To what extent do such unilateral declarations have binding legal status under
international law, especially when made outside the court and erga omnes?
- What is the nature & scope of unilateral declarations as sources of international
law?
Background:
The French nuclear testing program began during 1966 at the establishment of
the centre d’expérimentations du Pacifique. Although the Nuclear Test Ban treaty
had been in force since 1963, Frsnce was not a party to the treaty. Over an
extended period of time, several tests were carried out underground and in the
atmosphere. A number of cases documented by the International Physicians for
the Prevention of Nuclear War (IPPNW) reported nuclear fall-out on territories
locatedin the South Pacific. New Zealand & Australia were among these
territories. The court was tasked with establishing the existence of the dispute.

Arguments:
New Zealand & Australia brought, as the object of the claim, accusations against
France regarding the illegality of the atmospheric nuclear tests under
international law. After invoking “inherent jurisdiction” and establishing the
existence of a dispute, the Court deemed identifying the object of the claim
necessary to fulfill its judicial function. The Court redefined the object of New
Zealand & Australia’s claim through analysis of a series of public statements
made on behalf of the French government that guaranteed no further tests would
occur, which were made prior and subsequent to proceedings. The response from
the applicants allowed the Court to identify the object of the claim as a clear
assurance of the prevention of further tests, rather than a “declaratory judgment”.

Judgment:
The Court found that unilateral declarations made by French authorities on the
matter served to create legal obligations. The principle of good faith attributes
unilateral declarations with binding legal character, in the same way pacta sunt
servanda accomplishes the compliance with international treaties. As a result the
object of the claim is moot, therefore there is nothing upon which to give further
judgment.