PART 1
Distinguish between the monist and dualist theorist of International Law.
Is International Law a law?
International law may not qualify as true law because it is not promulgated
by a superior authority and no penalties are formally prescribed for its violation.
However, it cannot be denied that there are laws which have become valid
rules of conduct by mere agreement or acceptance by the members of the community
and are observed because of their intrinsic merit and notwithstanding the absence of
specific penalties for their violation.
In the latter sense, international law may be regarded as a law.
What are the bases of International Law?
There are three theories on this matter, namely: Consensual theory,
Consensual theory and Natural law theory.
In Consensual theory’s view, international law is not a law because it does
not come from a command of a sovereign. Under consensual theory, international law
derives its binding force from the consent of states. The natural law theory posits that
law is derived by reason from the nature of man International Law is said to be an
application of natural reason to the nature of the state-person. Some dissenters,
however, see no objective basis for international law. They see international law as a
combination of politics, morality and self-interest hidden under the smokescreen of
legal language.
What is mean by “jus cogen”?
A jus cogens norm is a “norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general international law having
the same character.”
It is also known as peremptory norm of general international law.
What is mean by “ergaomnes”?
Ergaomnes are “obligations of a State towards the international community
as a whole,” which are the “concern of all States” and for whose protection all States
have a “legal interest.”
What is mean by “Opiniojuris”?
Opiniojuris or “an opinion of law” is the belief that a certain form of behavior
is obligatory. It is a subjective factor of custom as a source of international law.
What are the sources of International Law?
As suggested in article 38 of the Statute of the international Court of Justice,
the source are either primary or subsidiary.
The primary sources are:
1. International treaties and conventions;
2. International customs; and
3. General principles of law.
The subsidiary sources are:
1. Judicial decisions; and
2. Teachings of highly qualified writers and Publicists.
Distinguish “soft law” from “hard law”.
Soft law refers to norms that are non-binding in character but still has legal
relevance. Hard law, on the other hand refers to binding international legal norms or
those which have coercive character. Soft law usually serves as a precursor of hard
law.
How do we distinguish Private International Law from Public International Law?
Private international law commonly called conflict of laws is really domestic
law which deals with cases where foreign law intrudes in domestic sphere where there
are questions of the applicability of foreign law or the role of foreign courts.
Public international law, on the other hand, governs the relationships
between and among state and also their relations with international organizations and
individual persons.
Is there collective responsibility for a breach of International Law?
Yes, every international wrongful act of the State entails the international
responsibility of the state. A state is responsible for the wrongful act of another State
when:
1. It aids or assist another State in the commission of an internationally wrongful
act
2. It directs and controls another state in the commission of an internationally
wrongful act
3. It coerces another State to commit an internationally wrongful act.
What is the extent of a State’s freedom of action?
State’s sovereignty is susceptible of no limitation not imposed by itself. As such,
sovereignty is subject to restrictions and limitations voluntary agreed by the State,
expressly or impliedly, as a member of the family of nations.
Under the Monistic Theory or monism, international law and domestic law
belong to one system of law. However, there are two monist theories. One theory
holds that municipal law subsumes and is superior to international, and a second
theory holds that international law is superior to domestic law.
In contrast to this, The Dualist or pluralist theory holds that international law
and municipal law are essentially different from each other. For the dualist, when
international law and municipal law conflict, municipal law must prevail. The dualist
are positivists with a strong emphasis on state sovereignty.
Distinguish between the doctrine of incorporation and doctrine of transformation.
The doctrine of incorporation postulates that generally accepted principles of
international law are automatically incorporated in the municipal law of each state
upon its admission to the family of nations.
The doctrine of transformation, on the other hand, requires such principles of
international law to be enacted as statutes or otherwise converted into municipal law
before they can be considered binding on the state.
In case of conflict between municipal law and International Law, which should
prevail?
From the viewpoint of international tribunals, the decision should always
incline in favor of international law.
From the View point of municipal tribunals, the decision is usually
determined by considerations of self interest. If the municipal law will favor the state, it
is applied, otherwise, international law is upheld.
What are the Calvo and Drago Doctrines?
The Calvo Doctrine provides that the State is not responsible for losses
suffered by aliens in time of civil war.
The Drago Doctrine, intervention is not allowed for the purpose of making a
state pay its public debts.
What is the Doctrine of Sovereign Equality of States?
The Doctrine of Sovereign Equality of States provides that every State is
entitled to the same protection and respect as are available to other state under the
rules of international law.
What is the Doctrine of Non-Intervention?
The Doctrine of Non-intervention prohibits the States from interfering into the
domestic or foreign affairs of another State.
What is the Principle of Self-Determination of People?
Through internal self-determination, the state recognizes 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 arises in only the most extreme of
cases and, even then, under carefully defined circumstances.
PART II
What are the elements of a State?
The following are the elements of a State:
A. People are the community of persons sufficient in number
and capable of maintain the permanent existence of the
community and held together by a common bond of law.
B. Defined Territory is the fixed portion of the surface of the
earth in which the people of the state resides.
C. Government is the agency through which the will of the
state is formulated, expressed and realized.
D. Sovereignty is an independence from outside control. It is
the power of the state to direct its own external affairs
without interference dictation from other states.
Is recognition an element of a State?
No, recognition is not an element of a state. However, under the Constitutive
Theory, recognition is the last indispensable element of a State because it is converts or
constitute the entity (state) being recognized into an international person.
Distinguish the following doctrines: Tobar/Wilson, Stimson, and Estrada.
Wilson/Tobar Doctrine. This precludes recognition of the government
established by revolution, civil war, coup d’ etat or other form of internal violence until
the freely elected representatives of the people have recognized a constitutional
government.
Stimson Doctrine. This precludes recognition of any government established
as a result of external aggression.
Estrada Doctrine. This refers to dealing or not dealing with the government
established through a political upheaval is not a judgement on the legitimacy of the said
government.

Distinguish de jure from de facto government.
A de jure government is an organized government of the state which has
the general support of the people.
On the other hand, a de facto government is a government which actually
exercises power or control but without legal title.
Is the Holy See a State?
Yes the Holy See has been recognized as a subject of public international
law, with rights and duties analogous to those of states. The Holy See is a sovereign
entity with a permanent population, a defined territory and the capacity to enter into
relations with other states.
What is the Principle of Succession of States/Governments?
Succession of States take place when one state assumes the rights and
some of the obligations of another because of certain changes in the condition of
the latter. It may be either Universal succession or partial succession. Succession of
government is where the government replaces another either peacefully or by violent
methods.
What is belligerency?
Belligerency exists when the inhabitants of a State rise up in arms for the
purpose of overthrowing the legitimate government or when there is a state of war
between two states.
What is the “utipossidetis” doctrine
Property or territory in the possession of the respective belligerents upon
the termination of the war is retained by them.
What is the doctrine of sovereign immunity?
Sovereign immunity is a legal doctrineby which the sovereign or state cannot
commit a legal wrong and is immune from civil suit or criminal prosecution. It is a
principle of international which exempts a sovereign state from the jurisdiction of foreign
state from the jurisdiction of foreign national courts.
What is the “Act of State Doctrine”?
Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one county will not sit in judgment on the acts of the
government of another, done within its own territory.
Redress of grievances due to such acts must be obtained through the
means open to be availed of by sovereign powers as between themselves.
PART III
Distinguish between a treaty and an Executive Agreement.
An executive agreement is not a treaty insofar as its ratification may not be
requires under our Constitution. However, the distinction is purely municipal and has
no international significance. From the standpoint of international law, “treaties and
executive agreements are alike in that both constitute equally binding obligations
upon the nation.”
What is meant by peremptory norm?
Peremptory norm or jus cogens norm is a “norm accepted and recognized by
the international community of States as a whole as a norm from which no derogation
is permitted and which can be modified only by a subsequent norm of general
international law having the same character.”
How is a treaty made?
A treaty is made thru the following usual steps: (1) negotiation, (2) signature,
(3) ratification and (4) registration and (4) registration with the United Nations.
What are the essential requisites of a valid treaty?
To be valid, a treaty must be:
1. entered into by parties having the treaty –making capacity;
2. through their authorized organs or representatives;
3. without the attendance of duress, fraud, mistake or other vice of
consent;
4. on a lawful subject; and
5. in accordance with their respective constitutional processes.
What is the effect of reservation?
In its Advisory Opinion on Reservations, rendered at the request of the
General Assembly in connection with the ratification of the Genocide Convention, the
International Court of Justice declared “that a State which has made and maintained a
reservation which has been objected to by one or more of the parties to the
Convention but not by others, can be regarded as being a party to the Convention if
the reservation is compatible with the object and purpose of the Convention;
otherwise, the State cannot be regarded as being a party to the Convention.”
What is Protocol de Cloture?
Protocol de Clotureis an instrument which records the winding up of the
proceedings of a diplomatic conference and usually includes a reproduction of the
texts of treaties, conventions, recommendations, and other acts agreed upon and
signed by the plenipotentiaries attending the conference.
When does a treaty take effect?
A treaty takes effect on the date agreed upon by the parties. In the absence
of such an agreement, upon the exchange of the instruments of ratification. Where
ratification is dispensed with and no effectivity date is provided for, the treaty becomes
effective upon signature.
When may non-signatories be bound by a treaty?
Generally, non-signatories to a treaty are not bound unless on the following
instances.
Firstly, the treaty may be merely a formal expression of customary
international law which, as such, is enforceable on all civilized states because of their
membership in the family of nations.
Secondly, it is provided under Article 2 of the united Nations Charter that the
Organization “shall ensure that non-member State act in accordance with the
principles of the Charter so far as may be necessary for the maintenance of
international peace and security,” and under Article 103 that the obligations of the
member-States shall prevail in case of conflict between the Charter and other
international agreements, including those concluded by non-members.
Thirdly, the treaty itself expressly extend its benefits to non-signatories
thereof.
Finally, parties to apparently unrelated treaties may also be linked by the
most-favored-nation clause, under which a contracting state entitled to most favored-
nation treatment from another state may claim the benefits extended by the latter to a
third state in a separate agreement.
What is the effect of non-ratification of a treaty?
Unless ratification is expressly dispensed with, and more so if it is expressly
required, n ungratified treaty cannot be a source of obligations between the parties.
What is the principle of Effectiveness in the interpretation of a treaty?
According to the PCIJ, the interpretation as a whole make the treaty ‘’most
effective and useful’’. The PCIJ applied this principle in US diplomatic and Consular
staff in Tehran ICJ 1980. The principle of effectiveness enabled the treaties to work
and have appropriate effects. It is very important in case of multilateral conventions
containing the constituent rules of international organizations. It warrants an
interpretation which works a revision of a convention, or any result contrary to the
letter and spirit of treaties.
What is meant by the Principle of PactaSuntServanda?
Pactasuntservanda means that treaties must be observed in good faith
despite hardship on the contracting state, such as conflicts between the treaty and its
constitution or prejudice to the national interest as a result of the operation of the
treaty.
What is meant by the Principle of Rebus Sic Stantibus?
In public international law the principle of rebus sic stantibus allows treaties
to become inapplicable because of a fundamental change of circumstances.
What is the effect of a breach of a treaty?
In case of bilateral treaties, a material breach is both necessary and
sufficient to give the victim of that breach the option to release itself from all of its
obligations under the breached treaty.
In case of multilateral treaties, a material breach is a necessary but not a
sufficient condition to give rise to the release option; the material breach must also
either lead all non-breaching parties to agree that their simultaneous release is
appropriate, or specially affect a party seeking release only from its obligations to the
breaching state, or radically affect the future performance obligations of all parties.
What are the grounds for invalidity of a treaty?
The usual ground for invalidation of contracts can also invalidate a treaty:
error of fact; fraud; corruption or duress.
How are treaty terminated?
A treaty may be terminated in any of the following ways:
1. By expiration of the term, which may be fixed or subject to a
resolutory condition.
2. By accomplishment of the purpose.
3. By impossibility of performance.
4. By loss of the subject-matter.
 5. By novation.
6. By desistance of the parties, through mutual consent, by desuetude
or by the exercise of the right of denunciation (or withdrawal) when
allowed.
7. By extinction of one of the parties if the treaty is bipartite.
8. By the occurrence of a vital change of circumstance under the
doctrine of rebus sic stantibus.
9. By the outbreak of war between the parties, except where the
treaty is intended precisely to regulate their relations during war.
10. By avoidance of the treaty because of defects in its conclusion,
violations of its provisions by one of the parties, or incompatibility
with international law, the UN Charter, or a subsequent agreement.
PART IV
What are the modes of acquiring territory?
The modes of acquiring territory are discovery, occupation, accretion,
conquest, prescription, and cession.
Discovery
Gives the State an inchoate title that entitles it to perfect its
claim by exercising effective control over the area within a reasonable time
under Island of Palmas case
Occupation
a. State makes a claim, usually through discovery
b. Subsequent exercise of effective control over the territory
(occupation or other activity)
c. Animus occupandi, the intent to acts as sovereign
Accretion
Follows the principle that what is added follows the principal
thing (i.e. A riparian State as acquiring title to the accretion to its coasts)
Prescription
a. State occupies territory that is claimed by another state
b. Occupying state exercises sovereignty over it
c. Owner makes no protest
d. Eventually, original title lapses
e. Occupying state acquires lawful title
Cession
A State relinquishes title over territory to another, usually
through a treaty.
Conquest
Acquisition of territory through the use of force (August)
What does discovery and occupation means as a mode of acquiring territory?
Discovery gives the State an inchoate title that entitles it to perfect its claim
by exercising effective control over the area within a reasonable time under Island of
Palmas case. While Occupation is an acquisition by a state of terra nullus, (unoccupied
land, or land not possessed by any other state), whether that land was never occupied or
was abandoned.
What is the doctrine of elective occupation?
Possession must be claimed on behalf of the state. Be effected
through a formal proclamation and the symbolic act of raising the national flag in
the territory.
What is the legal basis of the Philippine’s claim over the Kalayaan Islands?
R.A. 9522 (approved: March 10, 2009) amends R.A. 3046, which defines
the baselines of the territorial sea of the Philippines. The Kalayaan Island Group as
constituted under P.D. No. 1596 and Bajo de Masinloc, also known as Sacrborough
Shoal is determined as “Regime of Islands” under the Republic of the Philippines
consistent with Article 121 of the United Convention on the Law of the Sea which states:
1. An island is a naturally formed area of land, surrounded by water,
which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous
zone, the exclusive economic zone and the continental shelf of an island are
determined in accordance with the provisions of this Convention applicable to other
land territory.
3. Rocks which cannot sustain human habitation or economic life of their
own shall have no exclusive economic zone or continental shelf.
What is the archipelago doctrine?
Under this doctrine, an archipelago shall be regarded as a single unit, so
that the waters around, between and connecting the islands of the archipelago,
irrespective of their breadth and dimensions form part of the internal waters of the state,
and are subject to its exclusive sovereignty.
What is the Thalweg doctrine?
The Thalweg Doctrine defines the border between two states separated by
a watercourse or flowing body of water as lying along the thalweg, which is the line of
greatest depth of the channel or watercourse. Thius aims to resolve water boundary
disputes.
Distinguish the territorial sea from the High Seas?
Territorial sea includes Waters that stretch up to 12 miles from the baseline
on the seaward direction.
High seas are all parts of the sea that are not included in the territorial sea or
in the internal waters of a state
What is the doctrine of innocent passage?
It means navigation through the territorial sea of a State for the purpose of
traversing the sea without entering internal waters, or of proceeding to internal waters,
or making for the high seas from internal waters, as long as it is not prejudicial to the
peace, good order or security of the coastal State.
What are the five freedoms in a State’s aerial domain?
1. Freedom to fly across foreign territory without landing
2. Freedom to land for non-traffic purposes
3. Freedom to put down traffic originating in the state of aircraft
4. Freedom to embark traffic destined for the state of aircraft
5. Freedom to embark traffic destined for, or to put down traffic coming from,
third states
What is the principle of State continuity?
This principle states that the disappearance of any of the elements of
statehood would cause the extinction of the State, but mere changes as to one or more
of the elements would not necessarily, as a rule, bring about such extinction. Despite
such changes, the State continues to be an international person.
What is the recognition of States?
It is an act by which a state acknowledges the existence of another state,
government or belligerent community and indicates willingness to deal with the entity as
such under international law; may or may not affect the legal rights or political interests of
other states
What are the effects of recognition of states?
A government, once recognized, gains increased prestige and stability a.
Doors of funding agencies are opened b. Loans are facilitated c. Access to foreign courts
and immunity from suit are gained d. Military and financial assistance also come within
reach. Absence of formal recognition bars an entity from all these benefits or, at least,
access to them may be suspended. Admission of a government to the UN does not
mean recognition by all members but only to the extent of the activities of the
organization.
What are the theories on Recognition of State?
There are two theories on the Recognition of State namely, the declaratory
theory and the constitutive theory.
The Declaratory Theory is that recognition is merely “Declaratory” of the
existence of the state and that its being a state depends upon its possession of the
required elements and not upon recognition.
The constitutive theory, is that recognition “constitute” a state, that is, it is
what makes a state a state and confers legal personality on the entity.
Distinguish Recognition of States from Recognition of government
Recognition of State is the act of acknowledging the capacity of an entity to
exercise rights belonging to statehood.
Recognition of Government is the act of acknowledging the capacity of an
entity to exercise powers of government of a state.
What is the Tobar or Wilson Doctrine?
The Tobar or Wilson Doctrine states that the recognition of states shall not
be extended to any government established by recognition, civil war, coup d’etat or other
forms of internal violence until the freely elected representatives of the people have
organized a constitutional government.
What is the Estrada Doctrine?
A recognition of states approach, also known as the Estrada doctrine, is a
development on the earlier recognition of governments approach whereby a government
would recognize another governments. This caused political problems following an
unconstitutional change in the government of another state.
It is the policy of recognizing states rather than governments. It is an
alternative to the method of express recognition, in which an express statement is made
according or withholding recognition after each unconstitutional change of government,
and tacit recognition in which, only under exceptional circumstances, is a recognition
statement made.

What is Belligerency?
Beligerency is a term in international law to indicate the status of two or more
entities, generally sovereign states, being engaged in a war.
A state of belligerency may also exist between one or more sovereign states
on one side and rebel forces, if such rebel forces are recognized as belligerents. Once
the status of belligerency is established between two or more states, their relations are
determined and governed by the laws of war.
What are the requisites in recognizing Belligerency?
The Conditions for Recognition of belligerency are as follows:
1) There should exist within the state a status of armed conflict
2) The insurgents must administer and occupy a major portion
of national territory
3) The hostilities must be conducted in accordance with the
rules of war and through organized armed forces acting under a responsible
authority.
4) There must exist certain circumstances which make it
necessary for outside states to define their attitude by means of recognition
of belligerency.
Distinguish insurgency from belligerency
An insurgency is a rebellion against authority(for example, an authority
recognized as such by the United Nations) when those taking part in the rebellion are not
recognized as belligerents. While a belligerency belligerency is a rebellion of rebel
forces who are recognized as belligerents.
Distinguish between Extradition and Deportation.
Extradition is the surrender of an individual by the state within whose territory
he is found to the state under whose laws he is alleged to have committed a crime or to
have been convicted of a crime.
While Deportation is the expulsion of a person or group of people from a
place or country.
May a State refuse to grant a request for extradition?
Yes a State may refuse extradition in cases where the offense is punishable
by death in the Requesting State, unless the Requesting State provides assurances
satisfactory to the Requested State that the individual sought will not be executed. For
political offenses, a state may also refuse to extradite and instead declare that it will itself
prosecute the offender.
Many countries, also refuse to extradite their own nationals. U.S. extradition
treaties take varying positions on the nationality issue. Unlike other extradition treaties,
The Philippine Treaty unequivocally states that a party may not refuse extradition on the
ground the person sought is one of its citizens.
What is meant by the “attentat clause”?
An “attentat clause”” is a provision in an extradition treaty which provides
that the assassination of the head of a foreign government or any member of his family
should not be considered as a political offense, hence extraditable.
What is the Nationality Doctrine?
The nationality Doctrine or Principle says that every state has jurisdiction
over its nationals even when those nationals are outside the state.
What is the Principle of Universality of jurisdiction?
The universality principle recognizes that certain activities, universally
dangerous to states and their subjects, require authority in all community members to
punish such acts whenever they may occur, even absent a link between the state and
the parties or the acts in question.
What is the Principle of Territoriality and Extra-territoriality?
The territoriality principle is a principle of public international law under
which a sovereign state can prosecute criminal offences that are committed within its
borders.
Extraterritoriality or diplomatic immunity , in international law, the immunities
enjoyed by foreign states or international organizations and their official representatives
from the jurisdiction of the country in which they are present.
What is the Protective Principle of jurisdiction?
The Protective Principle says that a state may exercise jurisdiction over
conduct outside its territory that threatens its security, as long as that conduct is
generally recognized as criminal by states in the international community.
What is meant by Statelessness?
Statelessness means one without a state. A stateless person is someone
who is "not considered as a national by any state under the operation of its law". Some
stateless persons are also refugees. However, not all refugees are stateless, and many
persons who are stateless have never crossed an international border.
Distinguish Repatriation from Naturalization.
Naturalization is mode for both acquisition and reacquisition of Philippine
citizenship. As a mode of initially acquiring Philippine citizenship, naturalization is
governed by Commonwealth Act No. 473, as amended. On the other hand, naturalization
as a mode for reacquiring Philippine citizenship is governed by Commonwealth Act No.
63.16 Under this law, a former Filipino citizen who wishes to reacquire Philippine
citizenship must possess certain qualifications17and none of the disqualification
mentioned in Section 4 of C.A. 473.18.
Repatriation, on the other hand, may be had under various statutes by those
who lost their citizenship due to: (1) desertion of the armed forces;19 services in the
armed forces of the allied forces in World War II;20 (3) service in the Armed Forces of
the United States at any other time,21 (4) marriage of a Filipino woman to an
alien;22 and (5) political economic necessity.23
As distinguished from the lengthy process of naturalization, repatriation
simply consists of the taking of an oath of allegiance to the Republic of the Philippine and
registering said oath in the Local Civil Registry of the place where the person concerned
resides or last resided.
What is meant by the Doctrine of Specialty?
The doctrine of specialty, a fundamental feature of extradition law, provides
that a state may only prosecute an extradited individual for the offenses agreed to by the
sending state.
What is the Doctrine of Double Criminality?
Double criminality, or dual criminality, is a requirement in the extradition law
of many countries. It states that a suspect can be extradited from one country to stand
trial for breaking a second country's laws only if a similar law exists in the extraditing
country.
What is the Restrictive Doctrine of Immunity?
Restrictive principle of sovereign immunity refers to a principle that the
immunity of a foreign state in the courts of the U.S. is restricted to claims involving the
foreign state's public acts and does not extend to suits based on its commercial or private
conduct.
What is meant by “asylum”?
Asylum is a well-known institution in international law. It is understood as 'the
protection that a State grants on its territory or in some other place under the control of
certain of its organs to a person who comes to seek it'.
What is meant by the Right of Legation?
The right of legation. Also known as the right of diplomatic intercourse, this
refers to the right of the State to send and receive diplomatic missions, which enables
States to carry on friendly intercourse
Distinguish Diplomatic immunities from Consular Immunities.
Diplomatic immunity is more broad than consular immunity. Unless
diplomatic immunity is waived by the sending state, the person holding it is immune from
any legal action, whereas, consular immunity only protects the person when he or she is
engaged in official consular duties. The difference between consular personnel and
diplomats is often a matter of who is doing the defining, but consular duties typically
involve visas, passports, and assistance to one’s nationals in the receiving state, while
diplomats are doing the ‘other’ stuff.
Kuroda vs. Jalandoni
FACTS: Shigenori Kuroda was the highest ranking Japanese officer stationed in the
Philippines during the Japanese occupation. He was then charged before the Military
Commission, headed by Major General Rafael Jalandoni, due to the atrocities that were
done against non combatant civilians and prisoners during the war. His trial was in
pursuant to Executive Order No. 68 which established the National War Crimes Office
and prescribing rules and regulations governing the trial of accused war criminals.
Kuroda is questioning the legality of the said EO arguing that the same is not provided for
in the Constitution. He further underscores the fact that the Philippines is not a signatory
of the Hague Convention on the Rules and Regulations Covering Land Warfare hence
we cannot impose against him any criminal charges because it has no laws to base on,
national or international.
ISSUE: Whether or not Kuroda can be charged in Philippine courts?
HELD: Yes. EO No. 68 is constitutional hence the Philippine courts can take cognizance
of the case at bar. EO No 68 is in pursuant to the constitutional provision that states “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.” The Hague
Convention and other similar conventions whose principles are generally accepted are
hence considered as part of the law of the land.
Co Kim Chan vs. Valdez Tan Keh
FACTS: This involves a petition for mandamus praying that the respondent judge of the
lower court be ordered to continue the proceedings in a civil case before said court. The
proceedings were initiated under the regime of the government (called Republic of the
Philippines) established during the Japanese military occupation.
The respondent judge refused to take cognizance of and continue the proceedings in the
said case on the ground that the proclamation issued by General Douglas MacArthur,
upon American re-occupation, had the effect of invalidating all judicial proceedings and
judgements of the court of the Philippines under the Japanese military occupation, and
that, the lower courts have no jurisdiction to take cognizance of and continue judicial
proceedings pending in the courts of the defunct Republic of the Philippines in the
absence of an enabling law granting such authority.
The respondent judge likewise contends that the government established in the
Philippines during the Japanese occupation were not de facto governments.
ISSUE:Whether the judicial acts and proceedings of the court existing in the Philippines
under the Philippine Executive Commission and the Republic of the Philippines were
good and valid and remained so even after the liberation or reoccupation of the
Philippines by the United States and Filipino forces
HELD: Yes. All acts and proceedings of the legislative, executive, and judicial
departments of a de facto government are good and valid.
There are three kinds of de facto governments.
(a) Government de facto in the proper legal sense-- that government that gets
possession and control of, or usurps, by force or by the voice of the majority, the rightful
legal governments and maintains itself against the will of the latter.
(b) Government of paramount force-- that which is established and maintained by military
forces who invade and occupy a territory of the enemy in the course of war.
(c) That established as an independent government by the inhabitants of a country who
rise in insurrection against the parent state
Being de facto governments, it necessarily follows that the judicial acts and proceedings
of the courts of justice of those governments, which are not of a political complexion,
were good and valid, and, by virtue of the well-known principle of postliminy
(postliminium) in international law, remained good and valid after the liberation or
reoccupation of the Philippines under the leadership of General Douglas MacArthur.
According to that principle in international law, the fact that a territory which has been
occupied by an enemy comes again into the power of its legitimate government of
sovereignty, does not, except in a very few cases, wipe out the effects of acts done by an
invader, which for one reason or another it is within his competence to do. Thus judicial
acts done under his control, when they are not of a political complexion, administrative
acts so done, to the extent that they take effect during the continuance of his control, and
the various acts done during the same time by private persons under the sanction of
municipal law, remain good.
Mejoff vs. Director of Prisons
FACTS: Boris Mejoff, an alien of Russian descent who was brought to this country from
Shanghai as a secret operative by the Japanese forces during the latter's regime in these
Islands. (The petitioner's entry into the Philippines was not unlawful; he was brought by
the armed and belligerent forces of a de facto government whose decrees were law
furing the occupation.) He was arrested on March 18, 1948 as a Japanese spy, by U. S.
Army Counter Intelligence Corps. and later there was an order for his release. But on
April 5, 1948, the Board of Commissioners of Immigration declared that Mejoff had
entered the Philippines illegally in 1944 and ordered that he be deported on the first
available transportation to Russia. He was transferred to Cebu Provincial Jail and then
Bilibid Prison at Muntinlupa on October, 1948. He then filed a petition for writ of habeas
corpus on the basis that too long a detention may justify the issuance of a writ of habeas
corpus which was denied. Over two years having elapsed since the decision aforesaid
was promulgated, the Government has not found way and means of removing the
petitioner out of the country, and none are in sight, although it should be said in justice to
the deportation authorities, it was through no fault of theirs that no ship or country would
take the petitioner. This is his 2nd petition for writ of habeas corpus
ISSUE: W/N the writ of habeas corpus should be granted since he was detained longer
than a reasonable time
HELD: YES.writ will issue commanding the respondents to release the petitioner from
custody upon these terms: The petitioner shall be placed under the surveillance of the
immigration authorities or their agents in such form and manner as may be deemed
adequate to insure that he keep peace and be available when the Government is ready
to deport him. The surveillance shall be reasonable and the question of reasonableness
shall be submitted to this Court or to the Court of First Instance of Manila for decision in
case of abuse. He shall also put up a bond for the above purpose in the amount of
P5,000 with sufficient surety or sureties, which bond the Commissioner of Immigration is
authorized to exact by section 40 of Commonwealth Act No. 613.
Baer vs. Tizon
FACTS: Respondent Edgardo Gener, as plaintiff, filed a complaint for injunction with the
Court of First Instance of Bataan against petitioner, Donald Baer, Commander of the
United States Naval Base in Olongapo. He alleged that he was engaged in the business
of logging and that the American Naval Base authorities stopped his logging operations.
He prayed for a writ of preliminary injunction restraining petitioner from interfering with his
logging operations. A restraining order was issued by respondent JudgeCounsel for
petitioner, upon instructions of the American Ambassador to the Philippines, entered their
appearance for the purpose of contesting the jurisdiction of respondent Judge on the
ground that the suit was one against a foreign sovereign without its consent.
ISSUE: Whether the contention of the petitioner that the respondent judge acquires no
jurisdiction on the ground that the suit was one against a foreign sovereign without its
consent.
HELD: YES. The contention of the petitioner is tenable.
The writ of certiorari prayed for is granted, nullifying and setting aside the writ of
preliminary injunction. The invocation of the doctrine of immunity from suit of a foreign
state without its consent is appropriate. In the case of Coleman v. Tennessee,it was
explicitly declared:
"It is well settled that a foreign army, permitted to march through
a friendly country or to be stationed in it, by permission of its
government or sovereign, is exempt from the civil and criminal
jurisdiction of the place."
In the case of Raquiza v. Bradford, it was held that”
Accuracy demands the clarification that after the conclusion of the
Philippine-American Military Bases Agreement, the treaty provisions should control on
such matter, the assumption being that there was a manifestation of the submission to
jurisdiction on the part of the foreign power whenever appropriate.
This is not only a case of a citizen filing a suit against his own
Government without the latter's consent but it is of a citizen filing
an action against a foreign government without said
government's consent, which renders more obvious the lack of
jurisdiction of the courts of his country.
In the case ofParreno v. McGranery,the court ruled that:
"It is a widely accepted principle of international law, which is
made a part of the law of the land (Article II, Section 3 of the
Constitution), that a foreign state may not be brought to suit
before the courts of another state or its own courts without its
consent."
The doctrine of state immunity is not limited to cases which would result in a pecuniary
charge against the sovereign or would require the doing of an affirmative act by it.
Prevention of a sovereign from doing an affirmative act pertaining directly and
immediately to the most important public function of any government - the defense of the
state - is equally as untenable as requiring it to do an affirmative act."That such an
appraisal is not opposed to the interpretation of the relevant treaty provision by our
government is made clear in the aforesaid manifestation and memorandum as amicus
curiae, wherein it joined petitioner for the grant of the remedy prayed for.
There should be no misinterpretation of the scope of the decision reached by this Court.
Petitioner, as the Commander of the United States Naval Base in Olongapo, does
not possess diplomatic immunity. He may therefore be proceeded against in his
personal capacity, or when the action taken by him cannot be imputed to the
government which he represents.
Thereafter, in the cited cases of Syquia, Marquez Lim, and Johnson, the parties
proceeded against were American army commanding officers stationed in the
Philippines. The insuperable obstacle to the jurisdiction of respondent Judge is that
a foreign sovereign without its consent is haled into court in connection with acts
performed by it pursuant to treaty provisions and thus impressed with a
governmental character.
Tanada vs. Angara
FACTS: Secretary Navarro of the Department of Trade and Industry, representing the
Philippines, signed the Final Act Embodying the Results of the Uruguay Round of
Multilateral Negotiations. As a result, the Philippines agreed to submit the World Trade
organization (WTO) Agreement for approval with the authorities of the country and
adoption of the same. The President of the Philippines certified the necessity of the
immediate adoption a resolution for the ratification of the WTO.
On December 14, 1994, the Philippine Senate adopted Resolution No. 97, thereby
concurring in the ratification by the President of the WTO Agreement.
Petitioners filed this petition, questioning the constitutionality of the ratification by the
Senate. Petitioners allege that the WTO Agreement contravenes the mandate of the
1987 Constitution, specifically Art, 11 Sec 19, and Art 12, sec 10. They contended that
the agreement places nationals and products of member countries on the same footing
as Filipinos and local products in contravention of the “Filipino First” Policy.
ISSUE: Whether the ratification is constitutional
HELD: YES.The principles and state policies enumerated in Article II and some sections
of Article XII are not self-executing provisions, the disregard of which can give rise to a
cause of action in the courts. These are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature in its enactment of laws.
While the Constitution indeed mandates a bias in favor of Filipino goods, services, labor
and enterprises, at the same time, it recognizes the need for business exchange with the
rest of the world on the bases of equality and reciprocity and limits protection of Filipino
enterprises only against foreign competition and trade practices that are unfair—
the Constitution did not intend to pursue an isolationist policy. There is hardly any basis
for the statement that under the WTO, local industries and enterprises will all be wiped
out and that Filipinos will be deprived of control of the economy, for, quite to the contrary,
the weaker situations of developing nations like the Philippines have been taken into
account. 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. 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. The responses to questions on whether WTO/GATT will
favor the general welfare of the public at large involve “judgment calls” by our policy
makers, for which they are answerable to our people during appropriate electoral
exercises—such questions and the answers thereto are not subject to judicial
pronouncements based on grave abuse of discretion.
While sovereignty has traditionally been deemed absolute and all—encompassing on
the domestic level, it issubject to restrictions and limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a member of the family of nations.
Article 34 of the General Provisions and Basic Principles of the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS) does not contain an
unreasonable burden, consistent as it is with due process and the concept of adversarial
dispute settlement inherent in Philippine judicial system.
Lim vs. Executive Secretary
FACTS: Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel
from the armed forces of the United States of America started arriving in Mindanao to
take partin "Balikatan 02-1” on January 2002. The Balikatan 02-1 exercises involves the
simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral
defense agreement entered into by the Philippines and the United States in 1951. The
exercise is rooted from the international anti-terrorism campaign declared by President
George W. Bush in reaction to the 3 commercial aircrafts hijacking that smashed into
twin towers of the World Trade Center in New York City and the Pentagon building in
Washington, D.C. allegedly by the al-Qaeda headed by the Osama bin Laden that
occurred on September 11, 2001. Arthur D. Lim and Paulino P. Ersando as citizens,
lawyers and taxpayers filed a petition for certiorari and prohibition attacking the
constitutionality of the joint exercise. PartylistsSanlakas and Partido Ng Manggagawa
as residents of Zamboanga and Sulu directly affected by the operations filed a petition-
in-intervention.
The Solicitor General commented the prematurity of the action as it is based only on a
fear of future violation of the Terms of Reference and impropriety of availing of certiorari
to ascertain a question of fact specifically interpretation of the VFA whether it is covers
"Balikatan 02-1” and no question of constitutionality is involved. Moreover, there is lack
of locus standi since it does not involve tax spending and there is no proof of direct
personal injury.
ISSUE: Whether the petition and the petition-in-intervention should prosper.
Interpretation of Treaty
The VFA permits United States personnel to engage, on an impermanent basis, in
"activities," the exact meaning of which was left undefined. The expression is ambiguous,
permitting a wide scope of undertakings subject only to the approval of the Philippine
government. The sole encumbrance placed on its definition is couched in the negative, in
that United States personnel must "abstain from any activity inconsistent with the spirit of
this agreement, and in particular, from any political activity." All other activities, in other
words, are fair game.
To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and
Article 32 contains provisos governing interpretations of international agreements. It is
clear from the foregoing that the cardinal rule of interpretation must involve an
examination of the text, which is presumed to verbalize the parties' intentions. The
Convention likewise dictates what may be used as aids to deduce the meaning of terms,
which it refers to as the context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context. According to Professor Briggs, writer on the
Convention, the distinction between the general rule of interpretation and the
supplementary means of interpretation is intended rather to ensure that the
supplementary means do not constitute an alternative, autonomous method of
interpretation divorced from the general rule.
The meaning of the word “activities" was deliberately made that way to give both parties
a certain leeway in negotiation. Thus, the VFA gives legitimacy to the current Balikatan
exercises. Both the history and intent of the Mutual Defense Treaty and the VFA support
the conclusion that combat-related activities -as opposed to combat itself -such as the
one subject of the instant petition, are indeed authorized.
The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US
exercise participants may not engage in combat "except in self-defense." ." The indirect
violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is actually a war
principally conducted by the United States government, and that the provision on self-
defense serves only as camouflage to conceal the true nature of the exercise. A clear
pronouncement on this matter thereby becomes crucial. In our considered opinion,
neither the MDT nor the VFA allow foreign troops to engage in an offensive war on
Philippine territory. Under the salutary proscription stated in Article 2 of the Charter of
the United Nations.
Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other
treaties and international agreements to which the Philippines is a party, must be read in
the context of the 1987 Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of
Principles and State Policies in this case. The Constitution also regulates the foreign
relations powers of the Chief Executive when it provides that "[n]o treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all the
members of the Senate." Even more pointedly Sec. 25 on Transitory Provisions which
shows antipathy towards foreign military presence in the country, or of foreign influence
in general. Hence, foreign troops are allowed entry into the Philippines only by way of
direct exception.
International Law vs. Fundamental Law and Municipal Laws
Conflict arises then between the fundamental law and our obligations arising from
international agreements.
Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that international law has been
made part of the law of the land does not by any means imply the primacy of
international law over national law in the municipal sphere. Under the doctrine of
incorporation as applied in most countries, rules of international law are given a standing
equal, not superior, to national legislation.”
From the perspective of public international law, a treaty is favored over municipal law
pursuant to the principle of pactasuntservanda. Hence, "[e]very treaty in force is binding
upon the parties to it and must be performed by them in good faith." Further, a party to a
treaty is not allowed to "invoke the provisions of its internal law as justification for its
failure to perform a treaty."

HELD: NO. Petition and the petition-in-intervention are hereby DISMISSED without Our Constitution espouses the opposing view as stated in section 5 of Article VIII: “The
prejudice to the filing of a new petition sufficient in form and substance in the proper Supreme Court shall have the following powers: xxx
Regional Trial Court - Supreme Court is not a trier of facts (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and order of lower courts in:
Doctrine of Importance to the Public (A) All cases in which the constitutionality or validity of any treaty, international or
Considering however the importance to the public of the case at bar, and in keeping with executive agreement, law, presidential decree, proclamation, order, instruction,
the Court's duty, under the 1987 Constitution, to determine whether or not the other ordinance, or regulation is in question.”
branches of the government have kept themselves within the limits of the Constitution Ichong v. Hernandez: “provisions of a treaty are always subject to qualification or
and the laws that they have not abused the discretion given to them, the Court has amendment by a subsequent law, or that it is subject to the police power of the State”
brushed aside technicalities of procedure and has taken cognizance of this petition. Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty, not only
when it conflicts with the fundamental law, but, also, when it runs counter to an act of
Although courts generally avoid having to decide a constitutional question based on the Congress.”
doctrine of separation of powers, which enjoins upon the department of the government a
becoming respect for each other's act, this Court nevertheless resolves to take The foregoing premises leave us no doubt that US forces are prohibited / from engaging
cognizance of the instant petition. in an offensive war on Philippine territory.
Law on Treaties
1. Santos III vs. Northwest Orient Airlines
This case involves the Warsaw Convention. The Convention is a treaty commitment
voluntarily assumed by the Philippine government and, as such, has the force and effect
of law in this country.
The Republic of the Philippines is a party to the Convention for the
Unification of Certain Rules Relating to International Transportation by Air,
otherwise known as the Warsaw Convention. It took effect on February 13,
1933. The Convention was concurred in by the Senate, through its
Resolution No. 19, on May 16, 1950. The Philippine instrument of accession
was signed by President ElpidioQuirino on October 13, 1950, and was
deposited with the Polish government on November 9, 1950. The
Convention became applicable to the Philippines on February 9, 1951. On
September 23, 1955, President Ramon Magsaysay issued Proclamation No.
201, declaring our formal adherence thereto, "to the end that the same and
every article and clause thereof may be observed and fulfilled in good faith
by the Republic of the Philippines and the citizens thereof.
Facts:
Santos III, is a minor and a resident of the Philippines. Private respondent Northwest
Orient Airlines (NOA) is a foreign corporation with principal office in Minnesota, U.S.A.,
and licensed to do business and maintain a branch office in the Philippines.
On October 21, 1986, Santos purchased from NOA a round-trip ticket in San Francisco,
U.S.A., for his flight from San Francisco to Manila via Tokyo and back. On December 19,
1986, the petitioner checked in at the NOA counter in the San Francisco airport for his
scheduled departure to Manila. Despite a previous confirmation and re-confirmation, he
was informed that he had no reservation for his flight from Tokyo to Manila. He therefore
had to be wait-listed. The petitioner sued NOA for damages in the Regional Trial Court of
Makati. The lower court dismissed the case, appealed to Court of Appeals, which
affirmed the decision of the lower court. Hence, submitted the case to the Supreme
Court.
Respondent’s Argument:
NOA moved to dismiss the complaint on the ground of lack of jurisdiction because the
case was filed not within the court of jurisdiction enumerated in Article 28(1) of the
Warsaw Convention,
“An action for damage must be brought at the option of the plaintiff, in the
territory of one of the High Contracting Parties either:
1. the court of the domicile of the carrier;
2. the court of its principal place of business;
3. the court where it has a place of business through which the contract had
been made;
4. the court of the place of destination.
The private respondent contended that the Philippines was not its domicile nor was this
its principal place of business. Neither was the petitioner's ticket issued in this country
nor was his destination Manila but San Francisco in the United States.
Petitioner’s Argument:
The petitioner contends that Article 28(1) cannot be applied in the present case because
it is unconstitutional:
a. there is no substantial distinction between a person who purchases a
ticket in Manila and a person who purchases his ticket in San
Francisco. The classification of the places in which actions for
damages may be brought is arbitrary and irrational and thus violates
the due process and equal protection clauses.
b. Warsaw Convention is inapplicable because of a fundamental change
in the circumstances that served as its basis.
c. the expenses and difficulties he will incur in filing a suit in the United
States would constitute a constructive denial of his right to access to
our courts for the protection of his rights
Issues:
1. Is Article 28 (1) of Warsaw Convention violates the due process and equal
protection clauses for arbitrariness of classification of places in which actions
for damages may be brought?
2. Is the doctrine of rebus sic stantibus applicable in this case?
3. Is there constructive denial of his right to access to our courts for the
protection of his rights?
Ruling:
1. NO. The treaty which is the subject matter of this petition was a joint
legislative-executive act. The presumption is that it was first carefully studied
and determined to be constitutional before it was adopted and given the
force of law in this country. The petitioner's allegations are not convincing
enough to overcome this presumption. Apparently, the Convention
considered the four places designated in Article 28 the most convenient
forums for the litigation of any claim that may arise between the airline and
its passenger, as distinguished from all other places.
2. NO. " Doctrine of rebus sic stantibus constitutes an attempt to formulate a
legal principle which would justify non-performance of a treaty obligation if
the conditions with relation to which the parties contracted have changed so
materially and so unexpectedly as to create a situation in which the exaction
of performance would be unreasonable."
The key element of this doctrine is the vital change in the condition of the
contracting parties that they could not have foreseen at the time the treaty
was concluded.
It is true that at the time the Warsaw Convention was drafted, the airline
industry was still in its infancy. However, that circumstance alone is not
sufficient justification for the rejection of the treaty at this time. The changes
recited by the petitioner were, realistically, not entirely unforeseen although
they were expected in a general sense only.
But the more important consideration is that the treaty has not been rejected
by the Philippine government. The doctrine of rebus sic stantibus does not
operate automatically to render the treaty inoperative. Here is a necessity
for a formal act of rejection, usually made by the head of State, with a
statement of the reasons why compliance with the treaty is no longer
required. In lieu thereof, the treaty may be denounced even without an
expressed justification for this action.
Such denunciation is authorized under its Article 39, viz: Article
39.
(1) Any one of the High Contracting Parties may denounce this
convention by a notification addressed to the Government of the
Republic of Poland, which shall at once inform the Government
of each of the High Contracting Parties.
(2) Denunciation shall take effect six months after the
notification of denunciation, and shall operate only as regards
the party which shall have proceeded to denunciation.
Obviously, rejection of the treaty, whether on the ground of
rebus sic stantibus or pursuant to Article 39, is not a function of
the courts but of the other branches of government. This is a
political act. The conclusion and renunciation of treaties is the
prerogative of the political departments and may not be usurped
by the judiciary. The courts are concerned only with the
interpretation and application of laws and treaties in force and
not with their wisdom or efficacy.
3. NO. Obviously, the constitutional guaranty of access to courts refers only to
courts with appropriate jurisdiction as defined by law. It does not mean that a
person can go to any court for redress of his grievances regardless of the
nature or value of his claim. If the petitioner is barred from filing his complaint
before our courts, it is because they are not vested with the appropriate
jurisdiction under the Warsaw Convention, which is part of the law of our
land.
2. Tanada III vs. Angara
Secretary Navarro of the Department of Trade and Industry, representing the Philippines,
signed the Final Act Embodying the Results of the Uruguay Round of Multilateral
Negotiations. As a result, the Philippines agreed to submit the World Trade organization
(WTO) Agreement for approval with the authorities of the country and adoption of the
same. The President of the Philippines certified the necessity of the immediate adoption
a resolution for the ratification of the WTO.
On December 14, 1994, the Philippine Senate adopted Resolution No. 97, thereby
concurring in the ratification by the President of the WTO Agreement.
Petitioners filed this petition, questioning the constitutionality of the ratification by the
Senate. Petitioners allege that the Senate concurrence in the WTO Agreement and its
annexes - but not in the other documents referred to in the Final Act, namely the
Ministerial Declaration and Decisions and the Understanding on Commitments in
Financial Services. They submit that such concurrence in the WTO Agreement alone is
flawed because it is in effect a rejection of the Final Act, which in turn was the document
signed by Secretary Navarro, in representation of the Republic upon authority of the
President. They contend that the second letter of the President to the Senate 53 which
enumerated what constitutes the Final Act should have been the subject of concurrence
of the Senate.
Issue:
WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS
ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE
THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?
Ruling: YES. "A final act, sometimes called protocol de clature, is an instrument which
records the winding up of the proceedings of a diplomatic conference and usually
includes a reproduction of the texts of treaties, conventions, recommendations and other
acts agreed upon and signed by the plenipotentiaries attending the conference." It is not
the treaty itself. It is rather a summary of the proceedings of a protracted conference
which may have taken place over several years. The text of the "Final Act Embodying the
Results of the Uruguay Round of Multilateral Trade Negotiations" is contained in just one
page 55 in Vol. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By
signing said Final Act, Secretary Navarro as representative of the Republic of the
Philippines undertook:
"(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the Agreement in
accordance with their procedures; and (b) to adopt the Ministerial Declarations and
Decisions."
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final
Act required from its signatories, namely, concurrence of the Senate in the WTO
Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for
ratification. They were approved by the ministers by virtue of Article XXV: 1 of GATT
which provides that representatives of the members can meet "to give effect to those
provisions of this Agreement which invoke joint action, and generally with a view to
facilitating the operation and furthering the objectives of this Agreement.
3. Arthur Lim et.al., vs. Executive Secretary
FACTS:
Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the
armed forces of the United States of America started arriving in Mindanao to take part in
"Balikatan 02-1” on January 2002. The Balikatan 02-1 exercises involves the simulation
of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense
agreement entered into by the Philippines and the United States in 1951. The exercise is
rooted from the international anti-terrorism campaign declared by President George W.
Bush in reaction to the 3 commercial aircrafts hijacking that smashed into twin towers of
the World Trade Center in New York City and the Pentagon building in Washington, D.C.
allegedly by the al-Qaeda headed by the Osama bin Laden that occurred on September
11, 2001. Arthur D. Lim and Paulino P. Ersando as citizens, lawyers and taxpayers filed
a petition for certiorari and prohibition attacking the constitutionality of the joint exercise.
PartylistsSanlakas and Partido Ng Manggagawa as residents of Zamboanga and Sulu
directly affected by the operations filed a petition-in-intervention.
Petitioner’s Argument:
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE
TREATY (MDT) in 1951 TO PROVIDE MUTUAL MILITARY ASSISTANCE IN
ACCORDANCE WITH THE 'CONSTITUTIONAL PROCESSES' OF EACH COUNTRY
ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR,
MEANING A THIRD COUNTRY AGAINST ONE OF THEM.
BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU SAYYAF
BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS
SUBJECT THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT U.S.
MILITARY ASSISTANCE UNDER THE MDT OF 1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE
IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK
"IF FIRED UPON".
Respondent’s Argument:
The Solicitor General commented the prematurity of the action as it is based only on a
fear of future violation of the Terms of Reference and impropriety of availing of certiorari
to ascertain a question of fact specifically interpretation of the VFA whether it is covers
"Balikatan 02-1” and no question of constitutionality is involved. Moreover, there is lack
of locus standi since it does not involve tax spending and there is no proof of direct
personal injury.
ISSUE:
1. Is "Balikatan 02-1" is covered by the Visiting Forces Agreement?
2. Is the MDT or the VFA allowed foreign troops to engage in an offensive war on
Philippine territory?
Ruling:
1. Yes.The VFA permits United States personnel to engage, on an impermanent basis, in
"activities," the exact meaning of which was left undefined. The expression is ambiguous,
permitting a wide scope of undertakings subject only to the approval of the Philippine
government. The sole encumbrance placed on its definition is couched in the negative, in
that United States personnel must "abstain from any activity inconsistent with the spirit of
this agreement, and in particular, from any political activity." All other activities, in other
words, are fair game.
To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3
and Article 32 contains provisos governing interpretations of international agreements.
It is clear from the foregoing that the cardinal rule of interpretation must involve an
examination of the text, which is presumed to verbalize the parties' intentions. The
Convention likewise dictates what may be used as aids to deduce the meaning of terms,
which it refers to as the context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context. According to Professor Briggs, writer on the
Convention, the distinction between the general rule of interpretation and the
supplementary means of interpretation is intended rather to ensure that the
supplementary means do not constitute an alternative, autonomous method of
interpretation divorced from the general rule.
The meaning of the word “activities" was deliberately made that way to give both parties
a certain leeway in negotiation. Thus, the VFA gives legitimacy to the current
Balikatanexercises. Both the history and intent of the Mutual Defense Treaty and the
VFA support the conclusion that combat-related activities -as opposed to combat itself -
such as the one subject of the instant petition, are indeed authorized.
2. No. The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates
that US exercise participants may not engage in combat "except in self-defense." ." The
indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is actually a
war principally conducted by the United States government, and that the provision on
self-defense serves only as camouflage to conceal the true nature of the exercise. A
clear pronouncement on this matter thereby becomes crucial. In our considered opinion,
neither the MDT nor the VFA allow foreign troops to engage in an offensive war on
Philippine territory.Under the salutary proscription stated in Article 2 of the Charter of the
United Nations.
Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other
treaties and international agreements to which the Philippines is a party, must be read in
the context of the 1987 Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of
Principles and State Policies in this case. The Constitution also regulates the foreign
relations powers of the Chief Executive when it provides that "[n]o treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all the
members of the Senate." Even more pointedly Sec. 25 on Transitory Provisions which
shows antipathy towards foreign military presence in the country, or of foreign influence
in general. Hence, foreign troops are allowed entry into the Philippines only by way of
direct exception.
Conflict arises then between the fundamental law and our obligations arising from
international agreements.
Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that international law has been
made part of the law of the land does not by any means imply the primacy of
international law over national law in the municipal sphere. Under the doctrine of
incorporation as applied in most countries, rules of international law are given a
standing equal, not superior, to national legislation.”
From the perspective of public international law, a treaty is favored over municipal law
pursuant to the principle of pactasuntservanda. Hence, "[e]very treaty in force is binding
upon the parties to it and must be performed by them in good faith." Further, a party to a
treaty is not allowed to "invoke the provisions of its internal law as justification for its
failure to perform a treaty."
Our Constitution espouses the opposing view as stated in section 5 of Article VIII: “The
Supreme Court shall have the following powers: xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.”
Ichong v. Hernandez: “provisions of a treaty are always subject to qualification or
amendment by a subsequent law, or that it is subject to the police power of the State”
Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty, not only
when it conflicts with the fundamental law, but, also, when it runs counter to an act of
Congress.”
The foregoing premises leave us no doubt that US forces are prohibited / from engaging
in an offensive war on Philippine territory.
4. BAYAN et al., vs. Executive Secretary
Facts:
On March 14, 1947, the Philippines (RP) and the United States of America (US) forged a
Military Bases Agreement which formalized the use of installations in the Philippine
territory by United States military personnel.
The RP-US Military Bases Agreement expired in 1991 without having been renewed.
Notwithstanding, the defense and security relationship between the Philippines and the
US continued pursuant to a Mutual Defense Treaty entered into on August 30, 1951.
In 1997, negotiations began between the RP and US for a Visiting Forces Agreement
(VFA). President Ramos approved the VFA, which was respectively signed by Foreign
Affairs Secretary Siazon and US Ambassador Thomas Hubbard on February 10, 1998.
Subsequently, President Estrada ratified the VFA and officially transmitted to the Senate
of the Philippines the Instrument of Ratification for concurrence pursuant to Section 21,
Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its
Committee on Foreign Relations and Committee on National Defense and Security for
joint hearing.
Thereafter, Senate Resolution No. 443 was approved by the Senate by a two-thirds (2/3)
vote of its members. It became re-numbered as Senate Resolution No. 18.
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes
between Foreign Affairs Secretary Siazon and US Ambassador Hubbard.
The VFA provides for the mechanism for regulating the circumstances and conditions
under which US Armed Forces and defense personnel may be present in the Philippines.
Petitioners - as legislators, non-governmental organizations, citizens and taxpayers -
assail the constitutionality of the VFA and impute grave abuse of discretion in the
ratification of the agreement.
Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has
for its subject the presence of foreign military troops in the Philippines. Respondents
maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing
arrangement but an agreement which involves merely the temporary visits of US
personnel engaged in joint military exercises.
Petitioners contend that the phrase "recognized as a treaty," embodied in section 25,
Article XVIII, means that the VFA should have the advice and consent of the United
States Senate pursuant to its own constitutional process, and that it should not be
considered merely an executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard
stating that the VFA is binding on the United States Government is conclusive, on the
point that the VFA is recognized as a treaty by the United States of America. According
to respondents, the VFA, to be binding, must only be accepted as a treaty by the United
States.
Issues:
1. Is the VFA governed by the provisions of Section 25, Article XVIII of the
Constitution?
2. Is consideration of VFA as an executive agreement qualifies the phrase "recognized
as a treaty," embodied in section 25, Article XVIII of the Constitution?
3. Is there grave abuse of discretion in the ratification of the agreement?
Ruling:
1. Yes. Section 25, Article XVIII is a special provision that applies to treaties which
involve the presence of foreign military bases, troops or facilities in the Philippines. Under
this provision, the concurrence of the Senate is only one of the requisites to render
compliance with the constitutional requirements and to consider the agreement binding
on the Philippines. Section 25, Article XVIII further requires that "foreign military bases,
troops, or facilities" may be allowed in the Philippines only by virtue of a treaty duly
concurred in by the Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress, and recognized as such by
the other contracting state.
The VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment, materials and supplies.
Section 25, Article XVIII, which specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant case. To a certain extent and in a
limited sense, however, the provisions of section 21, Article VII will find applicability with
regard to the issue and for the sole purpose of determining the number of votes required
to obtain the valid concurrence of the Senate.
2. Yes. 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 (USA) to submit the VFA to the United States Senate for concurrence pursuant to
its Constitution is to accord strict meaning to the phrase.
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
It is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, there is no difference between treaties and
executive agreements in their binding effect upon states concerned, as long as the
negotiating functionaries have remained within their powers. International law continues
to make no distinction between treaties and executive agreements: they are equally
binding obligations upon nations. 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.
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.
In international law, there is no difference between treaties and executive agreements in
their binding effect upon states concerned, as long as the negotiating functionaries have
remained within their powers.[38] International law continues to make no distinction
between treaties and executive agreements: they are equally binding obligations upon
nations.
3. No. Ratification is generally held to be an executive act, undertaken by the head of the
state or of the government, as the case may be, through which the formal acceptance of
the treaty is proclaimed.
A State may provide in its domestic legislation the process of ratification of a treaty. The
consent of the State to be bound by a treaty is expressed by ratification when: (a) the
treaty provides for such ratification, (b) it is otherwise established that the negotiating
States agreed that ratification should be required, (c) the representative of the State has
signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty
subject to ratification appears from the full powers of its representative, or was expressed
during the negotiation
In the Philippine jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the ratification.
In the Philippine jurisdiction, we have recognized the binding effect of executive
agreements even without the concurrence of the Senate or Congress.
It is the Court's considered view that the President, in ratifying the VFA and in submitting
the same to the Senate for concurrence, acted within the confines and limits of the
powers vested in him by the Constitution. It is of no moment that the President, in the
exercise of his wide latitude of discretion and in the honest belief that the VFA falls within
the ambit of Section 21, Article VII of the Constitution, referred the VFA to the Senate for
concurrence under the aforementioned provision. Certainly, no abuse of discretion, much
less a grave, patent and whimsical abuse of judgment, may be imputed to the President
in his act of ratifying the VFA and referring the same to the Senate for the purpose of
complying with the concurrence requirement embodied in the fundamental law. In doing
so, the President merely performed a constitutional task and exercised a prerogative that
chiefly pertains to the functions of his office. Even if he erred in submitting the VFA to the
Senate for concurrence under the provisions of Section 21 of Article VII, instead of
Section 25 of Article XVIII of the Constitution, still, the President may not be faulted or
scarred, much less be adjudged guilty of committing an abuse of discretion in some
patent, gross, and capricious manner.
5. Pimentel vs. Executive Secretary
Facts:
The petitioners filed a petition for mandamus to compel the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome
Statute of the International Criminal Court to the Senate of the Philippinesfor its
concurrence pursuant to Sec. 21, Art VII of the 1987 Constitution.
The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the
most serious crimes as genocide, crimes against humanity, war crimes and crimes of
aggression as defined by the Statute. The Philippines through the Chargie du Affairs in
UN. The provisions of the Statute however require that it be subject to ratification,
acceptance or approval of the signatory state.
Petitioners contend that ratification of a treaty, under both domestic and international law,
is a function of the Senate, hence it is the duty of the Executive Department to transmit
the signed copy to the senate to allow it to exercise its discretion.
The OSG, representing respondents, contends that the executive department has no
duty to transmit the said treaty to the Senate for concurrence.
Issue:
Is Executive Secretary and DFA have the ministerial duty to transmit to the Senate the
copy of the Rome Statute signed by a member of the Philippine mission to the U.N. even
without the signature of the President?
RULING:
No. The President, being the head of the Sate, is regarded as the sole organ and
authority in external relations with foreign nations. In the realm of treaty-making, the
President has the sole authority to negotiate with other states.
Although it is correct that the Constitution, in Article VII, Section 21, provides for the
concurrence of 2/3 of all members of the Senate for validating a treaty and is deemed
essential to provide check on the executive’s foreign relations, it is not absolute. The
power to ratify does not belong to the Senate.
The process of treaty making: negotiation, signature, ratification, and exchance of th
instruments of ratification. Petitioner’s arguments equate the signing of the treaty by the
Phil. representative with ratification. However, it should be noted that signature and
ratification is two separate steps. Signature is for authentication, on the other hand,
ratification is the formal act of acceptance. the latter is generally an executive act
undertaken by the head of the state.
Moreover, under E.O. 459, issued by Pres. Ramos, provides for guidelines in the
negotiation of international agreements and its ratification. The said Order provides that a
treaty, after it was signed by the representative of the State, shall be subject to
ratification by the President. before the Senate can concur it, the President must ratify it
first.
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 latter is limited only
to giving consent to the ratification. Hence, the President has the authority to refuse to
submit a treaty to the Senate, and/or refuse to ratify it.
6. Constantino vs. Cuisia
During the Corazon Aquino regime, her administration came up with a scheme to reduce
the country’s external debt. The solution resorted to was to incur foreign debts. Three
restructuring programs were sought to initiate the program for foreign debts – they are
basically buyback programs and bond-conversion programs. The spouses Renato
Constantino, Jr. and Lourdes Constantino, as a taxpayers, and in behalf of their minor
children who are Filipino citizens, together with FFDC (Freedom From Debt Coalition)
averred that the buyback and bond-conversion schemes were onerous and they do not
constitute the loan “contract” or “guarantee” contemplated in Sec. 20, Art. VII of the
Constitution.And assuming that the President has such power, unlike other powers which
may be validly delegated by the President, the power to incur foreign debts is expressly
reserved by the Constitution in the person of the President, hence, the respondents
herein, Central Bank Governor JosseCuisia et al, cannot incur debts for the Philippines
or such power can be delegated to them. Constantino argue that the gravity by which
the exercise of the power will affect the Filipino nation requires that the President alone
must exercise this power. They argue that the requirement of prior concurrence of an
entity specifically named by the Constitution–the Monetary Board–reinforces the
submission that not respondents but the President “alone and personally” can validly
bind the country. Hence, they would like Cuisia et al to stop acting pursuant to the said
scheme.
Petitioner’s Arguments:
First, they object to the debt-relief contracts entered into pursuant to the Financing
Program as beyond the powers granted to the President under Section 20, Article VII of
the Constitution.[16] The provision states that the President may contract or guarantee
foreign loans in behalf of the Republic. It is claimed that the buyback and
securitization/bond conversion schemes are neither "loans" nor "guarantees," and hence
beyond the power of the President to execute.
Second, according to petitioners even assuming that the contracts under the Financing
Program are constitutionally permissible, yet it is only the President who may exercise
the power to enter into these contracts and such power may not be delegated to
respondents.
Third, petitioners argue that the Financing Program violates several constitutional
policies and that contracts executed or to be executed pursuant thereto were or will be
done by respondents with grave abuse of discretion amounting to lack or excess of
jurisdiction.
Petitioners contend that the Financing Program was made available for debts that were
either fraudulently contracted or void. In this regard, petitioners rely on a 1992
Commission on Audit (COA) report which identified several "behest" loans as either
contracted or guaranteed fraudulently during the Marcos regime.
They posit that since these and other similar debts, such as the ones pertaining to the
Bataan Nuclear Power Plant,[18] were eligible for buyback or conversion under the
Program, the resultant relief agreements pertaining thereto would be void for being
waivers of the Republic's right to repudiate the void or fraudulently contracted loans.
For their part, respondents dispute the points raised by petitioners. They also question
the standing of petitioners to institute the present petition and the justiciability of the
issues presented.
The Court shall tackle the procedural questions ahead of the substantive issues
Issues:
1. Is buyback and securitization/bond conversion schemes beyond the power of the
President to execute?
2. Is the President allowed to delegate his power to enter into contracts under the
Financing Program?
Ruling:
1. Yes. Even petitioners concede that "[t]he Constitution, as a rule, does not enumerate-
let alone enumerate all-the acts which the President (or any other public officer) may not
do,"[50] and "[t]he fact that the Constitution does not explicitly bar the President from
exercising a power does not mean that he or she does not have that power."[51] It is
inescapable from the standpoint of reason and necessity that the authority to contract
foreign loans and guarantees without restrictions on payment or manner thereof coupled
with the availability of the corresponding appropriations, must include the power to effect
payments or to make payments unavailing by either restructuring the loans or even
refusing to make any payment altogether.
More fundamentally, when taken in the context of sovereign debts, a buyback is simply
the purchase by the sovereign issuer of its own debts at a discount. Clearly then, the
objection to the validity of the buyback scheme is without basis.
2. Yes. The President can delegate this power to her direct subordinates. The evident
exigency of having the Secretary of Finance implement the decision of the President to
execute the debt-relief contracts is made manifest by the fact that the process of
establishing and executing a strategy for managing the government’s debt is deep within
the realm of the expertise of the Department of Finance, primed as it is to raise the
required amount of funding, achieve its risk and cost objectives, and meet any other
sovereign debt management goals. If the President were to personally exercise every
aspect of the foreign borrowing power, he/she would have to pause from running the
country long enough to focus on a welter of time-consuming detailed activities–the
propriety of incurring/guaranteeing loans, studying and choosing among the many
methods that may be taken toward this end, meeting countless times with creditor
representatives to negotiate, obtaining the concurrence of the Monetary Board,
explaining and defending the negotiated deal to the public, and more often than not,
flying to the agreed place of execution to sign the documents. This sort of constitutional
interpretation would negate the very existence of cabinet positions and the respective
expertise which the holders thereof are accorded and would unduly hamper the
President’s effectivity in running the government.
In Re: Letter Puno
FACTS: The petitioner, Reynato S. Puno, was first appointed as Associate Justice of the
Court of Appeals on 1980. On 1983, the Court of Appeals was reorganized and became
the Intermediate Appellate Court pursuant to BP Blg. 129. On 1984, petitioner was
appointed to be Deputy Minister of Justice in the Ministry of Justice. Thus, he ceased to
be a member of the Judiciary. After February 1986 EDSA Revolution, there was a
reorganization of the entire government, including the Judiciary. A Screening Committee
for the reorganization of the Intermediate Appelate Court and lower courts recommended
the return of petitioner as Associate Justice of the new court of Appeals and assigned
him the rank of number 11 in the roster of appellate court justices. When the
appointments were signed by Pres. Aquino, petitioner's seniority ranking changes from
number 11 to 26. Then, petitioner alleged that the change in seniority ranking was due to
"inadvertence" of the President, otherwise, it would run counter to the provisions of
Section 2 of E.O. No. 33. Petitioner Justice Reynato S. Puno wrote a letter to the Court
seeking the correction of his seniority ranking in the Court of Appeals. The Court en banc
granted Justice Puno's request. A motion for reconsideration was later filed by Associate
Justices Campos Jr. and Javellana who are affected by the ordered correction. They
alleged that petitioner could not claim reappointment because the courts where he had
previously been appointed ceased to exist at the date of his last appointment.
ISSUE: WON the present Court of Appeals is merely a continuation of the old Court of
Appeals and Intermediate Appellate Court existing before the promulgation of E.O. No.
33.
HELD: The Court held that the Court of Appeals and Intermediate Appellate Court
existing prior to E.O. No. 33 phased out as part of the legal system abolished by the
1987 Revolution. The Court of Appeals that was established under E.O. No. 33 is
considered as an entirely new court. The present Court of Appeals is a new entity,
different and distinct from the courts existing before E.O. No. 33. It was created in the
wake of the massive reorganization launched by the revolutionary government of
Corazon Aquino in the aftermath of the people power in 1986. Revolution is defined as
"the complete overthrow of the established government in any country or state by those
who were previously subject to it." or "as sudden. radical and fundamental change in the
government or political system, usually effected with violence or at least some acts of
violence."
Holy See vs. Hon. Eriberto Rosario, Jr.
FACTS: Petitioner is the Holy See who exercises sovereignty over the Vatican City in
Rome, Italy, and is represented in the Philippines by the Papal Nuncio; Private
respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the
real estate business.
This petition arose from a controversy over a parcel of land consisting of 6,000 square
meters located in the Municipality of Paranaque registered in the name of petitioner. Said
lot was contiguous with two other lots registered in the name of the Philippine Realty
Corporation (PRC). The three lots were sold to Ramon Licup, through Msgr. Domingo A.
Cirilos, Jr., acting as agent to the sellers. Later, Licup assigned his rights to the sale to
private respondent.
In view of the refusal of the squatters to vacate the lots sold to private respondent, a
dispute arose as to who of the parties has the responsibility of evicting and clearing the
land of squatters. Complicating the relations of the parties was the sale by petitioner of
Lot 5-A to Tropicana Properties and Development Corporation (Tropicana).
private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati,
Metro Manila for annulment of the sale of the three parcels of land, and specific
performance and damages against petitioner, represented by the Papal Nuncio, and
three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana
petitioner and Msgr. Cirilos separately moved to dismiss the complaint — petitioner for
lack of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an
improper party. An opposition to the motion was filed by private respondent.
the trial court issued an order denying, among others, petitioner’s motion to dismiss after
finding that petitioner “shed off [its] sovereign immunity by entering into the business
contract in question” Petitioner forthwith elevated the matter to us. In its petition,
petitioner invokes the privilege of sovereign immunity only on its own behalf and on
behalf of its official representative, the Papal Nuncio.
ISSUE: Whether the Holy See is immune from suit insofar as its business relations
regarding selling a lot to a private entity
HELD: The Republic of the Philippines has accorded the Holy See the status of a foreign
sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic
representations with the Philippine government since 1957 (Rollo, p. 87). This appears to
be the universal practice in international relations.
There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the courts of another sovereign. According to the
newer or restrictive theory, the immunity of the sovereign is recognized only with regard
to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure
gestionis
If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure
imperii, especially when it is not undertaken for gain or profit.
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a
real estate business, surely the said transaction can be categorized as an act jure
gestionis. However, petitioner has denied that the acquisition and subsequent disposal of
Lot 5-A were made for profit but claimed that it acquired said property for the site of its
mission or the Apostolic Nunciature in the Philippines. Private respondent failed to
dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The
donation was made not for commercial purpose, but for the use of petitioner to construct
thereon the official place of residence of the Papal Nuncio. The right of a foreign
sovereign to acquire property, real or personal, in a receiving state, necessary for the
creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna
Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines on November 15, 1965.
The decision to transfer the property and the subsequent disposal thereof are likewise
clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain. It
merely wanted to dispose of the same because the squatters living thereon made it
almost impossible for petitioner to use it for the purpose of the donation. The fact that
squatters have occupied and are still occupying the lot, and that they stubbornly refuse to
leave the premises, has been admitted by private respondent in its complaint
Private respondent is not left without any legal remedy for the redress of its grievances.
Under both Public International Law and Transnational Law, a person who feels
aggrieved by the acts of a foreign sovereign can ask his own government to espouse his
cause through diplomatic channels. Private respondent can ask the Philippine
government, through the Foreign Office, to espouse its claims against the Holy See. Its
first task is to persuade the Philippine government to take up with the Holy See the
validity of its claims. Of course, the Foreign Office shall first make a determination of the
impact of its espousal on the relations between the Philippine government and the Holy
See (Young, Remedies of Private Claimants Against Foreign States, Selected Readings
on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once the
Philippine government decides to espouse the claim, the latter ceases to be a private
cause.
Lawyers League for a Better Philippines vs. Corazon Aquino
FACTS: On February 25, 1986, President Corazon Aquino issued Proclamation No. 1
announcing that she and Vice President Laurel were taking power. On March 25, 1986,
proclamation No.3 was issued providing the basis of the Aquino government assumption
of power by stating that the “new government was installed through a direct exercise of
the power of the Filipino people assisted by units of the New Armed Forces of the
Philippines.”Petitioners alleged that the Aquino government is illegal because it was
not established pursuant to the 1973 Constitution.
ISSUE: Whether or not the government of Corazon Aquino is legitimate.
HELD: The community of nations has recognized the legitimacy of the provisional It was
the people that made the judgement and accepted the new government. Thus, the
Supreme Court held its legitimacy.
People vs. Perfecto
FACTS: The issue started when the Secretary of the Philippine Senate, Fernando
Guerrero, discovered that the documents regarding the testimony of the witnesses in an
investigation of oil companies had disappeared from his office. Then, the day following
the convening of Senate, the newspaper La Nacion – edited by herein respondent
Gregorio Perfecto – published an article against the Philippine Senate. Here, Mr.
Perfecto was alleged to have violated Article 256 of the Spanish Penal Code – provision
that punishes those who insults the Ministers of the Crown. Hence, the issue.
ISSUE: Whether or not Article 256 of the Spanish Penal Code (SPC) is still in force and
can be applied in the case at bar?
HELD: The Court stated that during the Spanish Government, Article 256 of the SPC
was enacted to protect Spanish officials as representatives of the King. However, the
Court explains that in the present case, we no longer have Kings nor its representatives
for the provision to protect. Also, with the change of sovereignty over the Philippines from
Spanish to American, it means that the invoked provision of the SPC had been
automatically abrogated. The Court determined Article 256 of the SPC to be ‘political’ in
nature for it is about the relation of the State to its inhabitants, thus, the Court
emphasized that ‘it is a general principle of the public law that on acquisition of territory,
the previous political relations of the ceded region are totally abrogated.’ Hence, Article
256 of the SPC is considered no longer in force and cannot be applied to the present
case. Therefore, respondent was acquitted.
(Tinoco Case) Great Britain v. Costa Rica
FACTS: The Tinoco regime that had seized power in Costa Rica by coup was not
recognized by Great Britain and the United States. When the regime was removed, the
new government nullified all Tinoco’c contract including an oil concession to a British
company. The claim of Great Britain (P) was that the contract could not be repudiated
because the Tinoco government was the only government in existence at the time of the
contract was signed. This view was not shared by Costa Rica (D) who claimed that Great
Britain (P) was estopped from enforcing the contract by its non-recognition of the Tinoco
regime. The matter was sent for arbitration.
ISSUE: Does a government need to conform to a previous constitution if the government
had established itself and maintained a peaceful de facto administration and does non-
recognition of the government by other government destroy the de facto status of the
government?
HELD: No. A government need not conform to a previous constitution if the government
had established itself and maintained a peaceful de facto administration and non-
recognition of the government by other government does not destroy the de facto status
of the government. The non-recognition of the Tinoco regime by Great Britain did not
dispute the de facto existence of that regime. There is no estoppel since the successor
government had not been led by British non-recognition to change its position.
Mexico vs. US
_______________________________________________________________________
_______
FACTS: Fifty one Mexican nationals were in jail on various charges. This included three
prisoners who had been convicted of a capital crime and who were on death row. At the
time of arrest, the prisoners were not warned that they had the right to contact the
Embassy of Mexico. Under the Vienna Convention on Consular Rights 36(1)(b), foreign
nationals have the right to contact their embassy at the time of their arrest. The United
States was a party to the Convention. Mexico went to the International Court of Justice
(ICJ). The ICJ ordered that the United States "take all measures necessary" to prevent
the execution.
ISSUE: Was the United States in breach of their obligations under the treaty?
HELD: Yes, The ICJ found that the United States was indeed in breach of their treaty
obligations. The ICJ found sthat in order to make it good, the United States would have
to review the Mexican nationals' sentences. Mexico had pushed to have the sentences
be annulled, but the ICJ did not feel that it was required. What you should learn from this
case Foreign nationals have a right to contact their embassy at the time of arrest if the
country is a party to the Vienna Convention on Consular Rights.
Republic of the Philippines vs. Ferdinand Marcos
_______________________________________________________________________
_______FACTS: The Republic alleges that the acts were repeated, forming a pattern of
predicate acts under RICO and thereby giving rise to civil liability under RICO. Contrary
to the contention of the Marcoses, the Republic as a governmental body is a person
within the meaning of 18 U.S.C. The foreign nature of the Republic does not deprive it of
statutory personhood. Accordingly the Republic has standing to assert the RICO claims.
Contrary to the contention of the Marcoses, the complaint, as interpreted by the district
court, sufficiently alleges a RICO offense. The Republic alleges that the Marcoses and
the other defendants arranged for the investment in real estate in Beverly Hills, California
of $4 million fraudulently obtained by the Marcoses; that the Marcoses arranged for the
creation of two bank accounts in the name of Imelda Marcos at Lloyds Bank of California
totaling over $800,000 also fraudulently obtained by the Marcoses; and that the
Marcoses transported into Hawaii money, jewels, and other property worth over $7
million also fraudulently obtained by them. Criminal conduct under RICO "forms a pattern
if it embraces criminal acts that have the same or similar purposes, results, participants,
victims, or methods of commission, or otherwise are interrelated by distinguishing
characteristics and are not isolated events." The purposes of the acts here alleged are
the same--to invest and to conceal fraudulently-obtained booty. The results are the
same--the investment of the booty. The principals are the same--the Marcoses. The
victim is the same--the Republic. The episodes are not isolated events. They represent a
plan and a practice of getting the fruits of fraud out of the Philippines and into the
assumed safety of the United States. If proved, the allegations show acts that form a
pattern. Contrary to the contention of the Marcoses, the complaint as read by the district
court also alleges a RICO enterprise. A RICO enterprise has been found to consist of "a
group of individuals associated in fact for the purpose of illegally trafficking in narcotics
..., utilizing the United States mail to defraud ..., and corruptly influencing ... the outcome
of state court proceedings." Here there is alleged to be a group of individuals associated
in fact for the purpose of illegally investing the fruits of fraud and illegally using the mails
and wire and illegally transporting in interstate commerce the fruits of the fraud.
ISSUE: Are Marcos’ acts considered as acts of state?
RULING: In the instant case the Marcoses offered no evidence whatsoever to support
the classification of their acts as acts of state. The burden of proving acts of state rested
upon them. Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 695, 96 S.
Ct. 1854, 1861, 48 L. Ed. 2d 301 (1976). They did not even undertake the proof. The On August 5, 2008, the GRP and MILF were scheduled to sign the MOA-AD in Kuala
United States, invited by the court to address this matter as an amicus, assures us that Lumpur, Malaysia. However, upon the initiative of several groups, the Supreme Court
the Executive does not at present see the applicability of this defense. Brief of the United issued a Temporary Restraining Order enjoining the GRP from signing the same.
States of America as Amicus Curiae, p. 11. The act of state doctrine, the Executive
declares, has "no bearing" on this case as it stands. As the doctrine is a pragmatic one, The MOA-AD is challenged on several grounds, among which is the creation of a
we cannot exclude the possibility that, at some later point in the development of this “Bangsamoro Juridical Entity” (BJE) to which it grants the authority and jurisdiction over
litigation, the Marcoses might produce evidence that would warrant its application. On the the Ancestral Domain and Ancestral Lands of the Bangsamoro people.
present record, the defense does not apply.
The MOA-AD seeks to introduce the concept of an “associative relationship” between the
BJE and the Central Government.
SGS SocieteGenerale de Surveillance S.A v. Republic of the Philippines
Held:
FACTS: SGS is part of a large group providing, inter alia, certification services based on
preshipment inspections carried out on behalf of the governmental authorities of the Ripeness for Adjudication
importing country in the country of export. Pre-shipment inspection not only covers
quality, quantity and export market price, but also seeks to verify compliance with import 1. For a case to be considered ripe for adjudication, it is a prerequisite that something
regulations, the declared value of goods and their classification for customs purposes. In had then been accomplished or performed by either branch before a court may come into
addition SGS provides assistance in the modernization of customs and tax the picture, and the petitioner must allege the existence of an immediate or threatened
infrastructures in the country of import. injury to itself as a result of the challenged action.
In the 1980s, the Philippines decided to appoint an inspector in its countries of supply to
provide a comprehensive import supervision service (CISS), including verification of the 2. That the law or act in question is not yet effective does not negate ripeness.
quality, quantity and price of imported goods prior to shipment to the Philippines. The
Philippines entered into two successive CISS contracts with SGS in 1986 before putting 3. Concrete acts under the MOA-AD are not necessary to render the present controversy
the subsequent contract out to tender. A number of companies were short-listed in a ripe.As held in Pimentel v Aguirre,"by the mere enactment of the questioned law or the
bidding process conducted on 6 November 1990, which led to a new agreement entered approval of the challenged action, the dispute is said to have ripened into a judicial
into with SGS on 23 August 1991 (the CISS Agreement) for an initial period of three controversy even without any other overt act."
years. Conclusion of the CISS Agreement was approved by the President of the
Philippines. Before the end of the three year period, the parties agreed on the extension 4. Any alleged violation of the Constitution by any branch of government is a proper
of the CISS Agreement, with certain modifications, for a further three year term (the First matter for judicial review.
Addendum). Subsequently, they agreed to introduce further amendments and to extend
the duration of the CISS Agreement from 15 March 1998 to 31 December 1999 (the Right to Information on Matters of Public Concern vis-a-vis Policy of Public
Second Addendum). By a document dated 22 December 1999, the Philippines asked Disclosure
SGS and the latter agreed to extend the provision of services under the CISS Agreement
as amended. This further extension lasted from 31 December 1999 to 31 March 2000, at 5. The right of access to public documents is a self-executory constitutional right.
which point SGS’s services under the CISS Agreement were discontinued. In the early
years there was some opposition to the CISS system, but this seems to have dissipated 6. Likewise, Section 28 is intended to be self-executing. The effectivity of the policy of
by the time of the First and Second Addendums. In any event the Tribunal has no public disclosure need not await the passing of a statute.
evidence that the discontinuance in 2000 was due to any overall dissatisfaction on the
part of the Philippines Bureau of Customs (BOC) with the service provided by SGS. It 7. The MOA-AD is a matter of public concern, involving as it does the sovereignty and
seems that it was primarily motivated by changes to customs arrangements associated territorial integrity of the State, which directly affects the lives of the public at large.
with the implementation of the GATT-WTO Valuation System, in accordance with which
customs duty would be chargeable on transaction values rather than assessed values, 8. Matters of public concern covered by the right to information include steps and
reducing the need for physical inspection of imports. negotiations leading to the consummation of the contract.

ISSUE: Who should determine the amount payable? 9. The policy of full public disclosure enunciated in Section 28, Article II of the1987
Constitution complements the right of access to information on matters of public concern
RULING: found in the Bill of Rights. The right to information guarantees the right of the people to
In the circumstances the Tribunal concludes that the circumstance of the fixing of the demand information, while policy of full public disclosurerecognizes the duty of
amount payable under the CISS Agreement—whether by definitive agreement between officialdom to give information even if nobody demands.
the parties or by proceedings before the courts of the Philippines—should not require the
bringing of a new ICSID claim by SGS, but falls within the framework of SGS’s existing Concept of “Association” under International Law
claim in this arbitration.That being so, justice would be best served if the Tribunal were to
stay the present proceedings pending determination of the amount payable, either by 10. The MOA-AD describes the relationship of the Central Government and the BJE as
agreement between the parties or by the Philippine courts in accordance with Article 12 “associative,” characterized by shared authority and responsibility.
of the CISS Agreement.
The stay of proceedings may be lifted for sufficient cause on application by either party. 11. In the international legal context, an association is formed "when two states of
The Tribunal calls on both parties to expedite proceedings before the Philippine courts unequal power voluntarily establish durable links. In the basic model, one state,
and, in general, to take all necessary measures to ensure a prompt and effective the associate, delegates certain responsibilities to the other, the principal,while
resolution of the dispute. maintaining its international status as a state. Free associations represent a middle
The parties are directed to report briefly to the Tribunal, either jointly or separately, at ground between integration and independence"
sixthmonthly intervals commencing 1 July 2004, on the steps being taken for the
resolution of the present claim. 12. In international practice, the “associated state” arrangement has usually been used
Province of North Cotobato v. GRP Peace Panel (2008) as a transitional device of former colonies on their way to full independence.
G.R. No. 183591 and G.R. No. 183752 and G.R. No. 183893 and G.R. No. 183962 |
2008-10-14 The concept of Association is not recognized under the1987 Constitution

Subject: 13. The MOA-AD contains many provisions which are consistent with the international
legal concept of association, specifically the following: (a) the BJE’s capacity to enter into
Constitutionality challenge-Ripeness for adjudication, Right to information on matters of economic and trade relations with foreign countries, (b) the commitment of the Central
public concern, Associative relationship under the Constitution, Creation of an Government to ensure the BJE’s participation in meetings and events in the ASEAN and
autonomous region, Bangsamoro People, Right to self-determination under International the specialized UN agencies, and (c) the continuing responsibility of the Central
Law Government over external defense, etc. These provisions of the MOA indicate that
theParties aimed to vest in the BJE the status of an associated state or, at any rate, a
Facts: status closely approximating it.

Petitioners, comprised of several groups, challenge the constitutionality of the MOA- 14. The concept of Association is not recognized under the 1987 Constitution
AD (Memorandum of Agreement on the Ancestral Domain) entered into between the
Government of the Republic of the Philippines(GRP) and the MILF. a. No province, city, or municipality, not even the ARMM, is recognized under ourlaws as
having an “associative” relationship with the national government. The concept implies
powers that go beyond anything granted by the Constitution to any local or regional
government.
b. It also implies the recognition of the associated entity as a state. The Constitution
does not contemplate any state in this jurisdiction other than the Philippine State, much
less does it provide for a transitory status that aims to prepare any part of Philippine
territory for independence.
15. The BJE, as contemplated, is a state in all but name as it meets the criteria of a state
laid down in the Montevideo Convention, namely, (a) a permanent population, (b) a
defined territory, (c) a government, and (d) a capacity to enter into relations with other
states.
Creation of an autonomous region
16. The BJE is more of a state than an autonomous region. But even assuming that it is
covered by the term “autonomous region”, the MOA-AD would still be in conflict with the
Constitution.
a. ArticleX, Section 18 of the Constitution provides 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.”
b. TheMOA-AD, in delineating the territorial boundaries of the BJE, provided that the
municipalities of Lanaodel Norte which voted for inclusion in the ARMMduring the 2001
plebiscite shall be automatically part of the BJE without need of another plebiscite.
c. Under the Constitution, a separate plebiscite is still required because what these areas
voted for then was their inclusion in the ARMM, not the BJE.
Bangsamoro People
17. The definition of “Bangsamoro people” used in the MOA-AD is inconsistent with the
Organic Act of the ARMM and the IPRA.
a. under the MOA-AD, Bangsamoro people refers to those who are natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization of its descendants whether mixed or
of full blood.
b. the Organic Act, in contrast, does not lump together the identities of the Bangsamoro
and other indigenous peoples living in Mindanao, but instead makes a distinction
between Bangsamoro people and Tribal peoples.
Right to Self-determination under International Law
18. The right of a people to self-determination has acquired a status beyond ‘convention’
and is considered a general principle of international law
19. The people’s right to self-determination should not be understood as extending to a
unilateral right of secession. A distinction should be made between the right of internal
and external self-determination.
a. internal self-determination – a people’s pursuit of its political, economic, social and
cultural development within the framework of an existing state.
b. external self-determination (which potentially takes the form of the assertion of aright
to unilateral secession) arises in only the most extreme of cases and, even then, under
carefully defined circumstances.
20. Positive International Law does not recognize the right of national groups, as such, to
separate themselves from the State of which they form part by the simple expression of a
wish. The grant or refusal of the right to a portion of its population of determining its own
political fate by plebiscite or by some other method, is, exclusively, an attribute of the
sovereignty of every State.
W E S T E R N S A H A R A C A S E
Facts
: On December 17, 1974, the UN General Assembly by Resolution 3292requested the
ICJ to give an advisory opinion on the following questions:1.
Was Western Sahara (Rio de Oro and Sakiet el Hamra) at the time ofcolonization by
Spain a territory belonging to no one?
(terra nullius)
If the answer to the first question is in the negative,2.
What were the legal ties between this territory and the Kingdom ofMorocco and the
Mauritian entity?
2
This request took place in the context of decolonization of Western Sahara,formerly a
protectorate of Spain. Morocco and Mauritania are rival claimants, botharguing that
portions of the disputed area formed part of their pre-colonialterritories and seeking to
have the former colony re-integrated to their respectivenational territories.
Held:
1. Western Sahara at the time of colonization by Spain was not
terra nullius.
2. [There are] legal ties of allegiance between the Sultan of Morocco and someof the
tribes living in the territory of Western Sahara. [There are also] legal tiesbetween the
Mauritanian entity
and the territory of Western Sahara. [However,such] do not establish any tie of territorial
sovereignty between the territory ofWestern Sahara and the Kingdom of Morocco or the
Mauritanian entity.3
Island of Palmas case
Facts
Both the United States (P) laid claim to the ownership of the Island of Palmas. While the
U.S. (P) maintained that it was part of the Philippines, the Netherlands (D) claimed it as
their own. The claim of the U.S. (P) was back up with the fact that the islands had been
ceded by Spain by the Treaty of Paris in 1898, and as successor to the rights of Spain
over the Philippines, it based its claim of title in the first place on discovery. On the part of
the Netherlands (D), they claimed to have possessed and exercised rights of sovereignty
over the island from 1677 or earlier to the present.
Issue. Can a title which is inchoate prevail over a definite title found on the continuous
and peaceful display of sovereignty
Held. No. A title that is inchoate cannot prevail over a definite title found on the
continuous and peaceful display of sovereignty. The peaceful and continuous display of
territorial sovereignty is as good as title. However, discovery alone without subsequent
act cannot suffice to prove sovereignty over the island. The territorial sovereignty of the
Netherlands (D) was not contested by anyone from 1700 to 1906. The title of discovery
at best an inchoate title does not therefore prevail over the Netherlands (D) claims of
sovereignty.
Eastern Greenland case
Facts.
By an Application instituting proceedings, filed with the Registry of the Court on July 12th,
1931, in accordance with Article 40 of the Statute and Article 35 of the Rules of Court,
the Royal Danish Government, relying on the optional clause of Article 36, paragraph 2,
of the Statute, brought before the Permanent Court of International Justice a suit against
the Royal Norwegian Government on the ground that the latter Government had, on July
10th, 1931, published a proclamation declaring that it had proceeded to occupy certain
territories in Eastern Greenland, which, in the contention of the Danish Government,
were subject to the sovereignty of the Crown of Denmark. The Application, after thus
indicating the subject of the dispute, proceeds, subject to the subsequent presentation of
any cases, counter-cases and any other documents or evidence, to formulate the claim
by asking the Court for judgment to the effect that "the promulgation of the above-
mentioned declaration of occupation and any steps taken in this respect by the
Norwegian Government constitute a violation of the existing legal situation and are
accordingly unlawful and invalid".The agreement not to obstruct Danish (P) plans with
regard to Greenland was what Denmark wanted to obtain from Norway (D). To this
request, a declaration on behalf of the Norwegian government (D) was made by its
Minister for Foreign Affairs that Norway (D) would not make any difficulty in the
settlement of the question.
Issue. Is a country bound by the reply given on its behalf by its Minister of Foreign
Affairs?
Held. Yes. A country is bound by the reply given on its behalf by its Minister of Foreign
Affairs. Therefore in this case, the response by the diplomatic representative of a foreign
power is binding upon the country the Minister represents.
Sovereignty over PulauLigitan and PulauSipadan (Indonesia/Malaysia)
On 2 November 1998, the Republic of Indonesia and Malaysia jointly notified the Court of
a Special Agreement between the two States, signed at Kuala Lumpur on 31 May 1997
and having entered into force on 14 May 1998. In accordance with that Special
Agreement, they requested the Court to determine, on the basis of the treaties,
agreements and any other evidence furnished by them, to which of the two States
sovereignty over PulauLigitan and PulauSipadan belonged.
Shortly after the filing by the Parties of the Memorials, Counter-Memorials and Replies,
the Philippines, on 13 March 2001, requested permission to intervene in the case. In its
Application, the Philippines indicated that the object of its request was to
“preserve and safeguard the historical and legal rights [of its Government] arising from its
claim to dominion and sovereignty over the territory of North Borneo, to the extent that
those rights [were] affected, or [might] be affected, by a determination of the Court of the
question of sovereignty over PulauLigitan and PulauSipadan”.
The Philippines specified that it was not seeking to become a party in the case. Further,
the Philippines specified that “[its] Constitution . . . as well as its legislation ha[d] laid
claim to dominion and sovereignty over North Borneo”. The Application for permission to
intervene drew objections from Indonesia and Malaysia. Among other things, Indonesia
stated that the Application should be rejected on the ground that it had not been filed in
time and that the Philippines had not shown that it had an interest of a legal nature at
issue in the case. Meanwhile, Malaysia added that the object of the Application was
inadequate. The Court therefore decided to hold public sittings to hear the Philippines,
Indonesia and Malaysia, before ruling on whether to grant the Application for permission
to intervene. Following those sittings, the Court, on 23 October 2001, delivered a
Judgment by which it rejected the Application by the Philippines for permission to
intervene.
After the holding of public sittings in June 2002, the Court delivered its Judgment on the
merits on 17 December 2002. In that Judgment, it began by recalling the complex
historical background of the dispute between the Parties. It then examined the titles
invoked by them. Indonesia asserted that its claim to sovereignty over the islands was
based primarily on a conventional title, the 1891 Convention between Great Britain and
the Netherlands.
After examining the 1891 Convention, the Court found that, when read in the context and
in the light of its object and purpose, that instrument could not be interpreted as
establishing an allocation line determining sovereignty over the islands out to sea, to the
east of the island of Sebatik, and that as a result the Convention did not constitute a title
on which Indonesia could found its claim to Ligitan and Sipadan. The Court stated that
that conclusion was confirmed both by the travauxpréparatoires and by the subsequent
conduct of the parties to the Convention. The Court further held that the cartographic
material submitted by the Parties in the case did not contradict that conclusion.Having
rejected that argument by Indonesia, the Court turned to consideration of the other titles
on which Indonesia and Malaysia claimed to found their sovereignty over the islands of
Ligitan and Sipadan. The Court sought to determine whether Indonesia or Malaysia
obtained a title to the islands by succession. In that connection, it did not accept
Indonesia’s contention that it retained title to the islands as successor to the Netherlands,
which had allegedly acquired it through contracts concluded with the Sultan of Bulungan,
the original title-holder. Nor did the Court accept Malaysia’s contention that it had
acquired sovereignty over the islands of Ligitan and Sipadan following a series of alleged
transfers of the title originally held by the former sovereign, the Sultan of Sulu, that title
having allegedly passed in turn to Spain, to the United States, to Great Britain on behalf
of the State of North Borneo, to the United Kingdom and finally to Malaysia.
Having found that neither of the Parties had a treaty-based title to Ligitan and Sipadan,
the Court next considered the question whether Indonesia or Malaysia could hold title to
the disputed islands by virtue of the effectivités cited by them. In that regard, the Court
determined whether the Parties’ claims to sovereignty were based on activities
evidencing an actual, continued exercise of authority over the islands, i.e., the intention
and will to act as sovereign.
In that connection, Indonesia cited a continuous presence of the Dutch and Indonesian
navies in the vicinity of Ligitan and Sipadan. It added that the waters around the islands
had traditionally been used by Indonesian fishermen. In respect of the first of those
arguments, it was the opinion of the Court that from the facts relied upon in the case “it
[could] not be deduced . . . that the naval authorities concerned considered Ligitan and
Sipadan and the surrounding waters to be under the sovereignty of the Netherlands or
Indonesia”. As for the second argument, the Court considered that “activities by private
persons [could] not be seen as effectivités if they [did] not take place on the basis of
official regulations or under governmental authority”.
Having rejected Indonesia’s arguments based on its effectivités, the Court turned to the
consideration of the effectivités relied on by Malaysia. As evidence of its effective
administration of the islands, Malaysia cited inter alia the measures taken by the North
Borneo authorities to regulate and control the collecting of turtle eggs on Ligitan and
Sipadan, an activity of some economic significance in the area at the time. It relied on the
Turtle Preservation Ordinance of 1917 and maintained that the Ordinance “[had been]
applied until the 1950s at least” in the area of the two disputed islands. It further invoked
the fact that the authorities of the colony of North Borneo had constructed a lighthouse
on Sipadan in 1962 and another on Ligitan in 1963, that those lighthouses still existed
and that they had been maintained by Malaysian authorities since its independence. The
Court noted that
“the activities relied upon by Malaysia . . . [we]re modest in number but . . . they [we]re
diverse in character and include[d] legislative, administrative and quasi-judicial acts.
They cover[ed] a considerable period of time and show[ed] a pattern revealing an
intention to exercise State functions in respect of the two islands in the context of the
administration of a wider range of islands.”
The Court further stated that “at the time when these activities were carried out, neither
Indonesia nor its predecessor, the Netherlands, [had] ever expressed its disagreement or
protest”.
The Court concluded, on the basis of the above-mentioned effectivités, that sovereignty
over PulauLigitan and PulauSipadan belonged to Malaysia.
Clipperton Island Case (France v Mexico) (1932)
FACTS: France claimed to have occupied an island but Mexico also claimed that Spain
discovered it and that it "as the successor Clipperton Island is an uninhabited island coral atoll in
the eastern Pacific Ocean' southwest of Mexico' west of Costa Rica and northwest of Galapagos Islands,
Equador. The island was discovered by French. They drew up the first map and annexed it to
France. The %first scientific expedition took. place in 1725 under Frenchman M Bocage
who lived on the island for several
months.M e x i c o a l s o c l a i m e d i t d u e t o a c t i v i t i e s u n d e r t a k e n t h
e r e i n a s e a r l - a s 1 8 4 8 - 1 9 4 9 9 e m p e r o r N a p o l e o n I I I annexed it as
part of the French colony of Tahiti
# This did not settle the ownership question After which there were no apparent acts of
sovereignty on the part of France. The island remain without population. On November
1897, French naval authorities found 3 americans working for the American guano
company, who raised the American flag. US authourities denounce their acts assuring
the French that they did not intend American sovereignty.
Mexico and France signed a compromise agreement, in 1909 agreeing to submit dispute
over cliperton island to binding arbitration
Issue:
Who has sovereignty?
Held: For occupation you need to possess the land, which france did. The island was in
legal terratorium nullius, and therefore susceptible for occupation. The question remains
whether the france proceeded to an effective occupation satisfying the conditions
required by international law for the validity of its kind of territorial acquisition.
It is beyond doubt that by immemorial usage having the force of law , besides the animus
occupandi, the actual and not the nominal, taking of position is necessary condition of
occupation. This taking of possession consist in the act, or series of act by which the
occupying state reduces its possession the territory in question and takes steps to
exercise exclusive authority there. Strictly speaking in ordinary cases, that only takes
place when the state establishes in the territory itself an organization capable of making
its laws respected. But this step, is properly speaking, but means of procedure to the
taking of possession and therefore, is not identical with the latter. There may always be
cases that it is unnecessary to have recourse to this method. Thus if a territory by virtue
of the fact that it was completely uninhabited, from the first moment when the occupying
state makes its appearance there, at the absolute and undisputed disposition of that
state from the moment the taking of possession must be considered as accomplish
Kasikili/Sedudu Island (Botswana v. Namibia)
Facts
On 29 May 1996, Botswana and Namibia jointly notified to the Registrar the text of a
Special Agreement signed at Gaborone (Botswana) on 15 February 1996 and having
entered into force on 15 May 1996 for the submission to the Court of a dispute between
them concerning the boundary around Kasikili/Sedudu Island. The Special Agreement
referred inter alia to a Treaty signed on 1 July 1890 between Great Britain and Germany,
delimiting their respective spheres of influence in Africa.
Under the terms of the Special Agreement, the Parties asked the Court to determine, on
the basis of the Anglo-German Treaty of 1 July 1890 and the rules and principles of
international law, the boundary between Namibia and Botswana around Kasikili/Sedudu
Island and the legal status of the island. The real dispute between the Parties concerns
the location of that main channel, Botswana contending that it is the channel running
north of Kasikili/Sedudu Island and Namibia the channel running south of the island.
Since the Treaty does not define the notion of “main channel”, the Court itself proceeds
to determine which is the main channel of the Chobe River around the Island.
Issue:
Kasikili/Sedudu Island forms part of the territory of the Republic of Botswana as to wit
Anglo-German Treaty.
Ruling:
The Court begins by stating that the island in question, which in Namibia is known as
“Kasikili”, and in Botswana as Sedudu, is approximately 3.5 square kilometres in area,
that it is located in the Chobe River, which divides around it to the north and south, and
that it is subject to flooding of several months’ duration, beginning around March. It briefly
outlines the historical context of the dispute, then examines the text of the 1890 Treaty
which, in respect of the region concerned, locates the dividing line between the spheres
of influence of Great Britain and Germany.
In order to do so, it takes into consideration, inter alia, the depth and the width of the
channel, the flow (that is, the volume of water carried), the bed profile configuration and
the navigability of the channel. After having considered the figures submitted by the
Parties, as well as surveys carried out on the ground at different periods, the Court
concludes that “the northern channel of the River Chobe around Kasikili/Sedudu Island
must be regarded as its main channel”.
After evoking the object and purpose of the 1890 Treaty, the Court examines at length
the subsequent practice of the parties to the Treaty. The Court finds that this practice did
not result in any agreement between them regarding the interpretation of the Treaty or
the application of its provisions.

In its Judgment the Court finds, by 11 votes to 4, that“the boundary between the Republic
of Botswana and the Republic of Namibia follows the line of the deepest soundings in the
northern channel of the Chobe River around Kasikili/Sedudu Island” and, by 11 votes to 4
again, that Kasikili/Sedudu Island forms part of the territory of the Republic of Botswana”.
The Court adds unanimously that,“in the two channels around Kasikili/Sedudu Island, the
nationals of, and vessels flying the flags of, the Republic of Botswana and the Republic
of Namibia shall enjoy equal national treatment”.
USA VS RUIZ (Doctrine of Immunity from Suit)
G.R. No. L-35645 136 scra 487 May 22, 1985
UNITED STATES OF AMERICA, CAPT. JAMES E. GALLOWAY, WILLIAM I. COLLINS
and ROBERT GOHIER, petitioners,
vs.
HON. V. M. RUIZ, Presiding Judge of Branch XV, Court of First Instance of Rizal and
ELIGIO DE GUZMAN & CO., INC., respondents.
Facts:
This is a petition to review, set aside certain orders and restrain perpetually the
proceedings done by Hon. Ruiz for lack of jurisdiction on the part of the trial court.
The United States of America had a naval base in Subic, Zambales. The base was one
of those provided in the Military Bases Agreement between the Philippines and the
United States. Sometime in May, 1972, the United States invited the submission of bids
for a couple of repair projects. Eligio de Guzman land Co., Inc. responded to the
invitation and submitted bids. Subsequent thereto, the company received from the US
two telegrams requesting it to confirm its price proposals and for the name of its bonding
company. The company construed this as an acceptance of its offer so they complied
with the requests. The company received a letter which was signed by William I. Collins
of Department of the Navy of the United States, also one of the petitioners herein
informing that the company did not qualify to receive an award for the projects because
of its previous unsatisfactory performance rating in repairs, and that the projects were
awarded to third parties. For this reason, a suit for specific performance was filed by him
against the US.
Issues
Whether or not the US naval base in bidding for said contracts exercise governmental
functions to be able to invoke state immunity.
Rulings:
Yes. The Supreme Court held that the contract relates to the exercise of its sovereign
functions. 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.
The restrictive application of state immunity is proper only when the proceedings arise
out of commercial transactions of the foreign sovereign. Its commercial activities of
economic affairs. A state may be descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued. Only when it enters into business
contracts.
UNITED STATES OF AMERICA vs. REYES
Petition for Certiorari to Annul & Set Aside RTC Cavite Branch 22 Resolution, 1993
FACTS:
Respondent Nelia Montoya, an American Citizen, worked as an ID checker at the US
Navy Exchange (NEX) at the US Military Assistance Group (JUSMAG) headquarters in
Quezon City. In January 22, 1987 Montoya bought some items from the retail store
Bradford managed, where she had purchasing privileges. After shopping and while she
was already at the parking lot, Mrs. Yong Kennedy, a fellow ID checker approached her
and told her that she needed to search her bags upon Bradford’s instruction. Montoya
approached Bradford to protest the search but she was told that it was to be made on all
JUSMAG employees on that day. Mrs. Kennedy then performed the search on her
person, bags and car in front of Bradford & other curious onlookers. Nothing irregular
was found thus she was allowed to leave afterwards.
Montoya learned that she was the only person subjected to such search that day & she
was informed by NEX Security Manager Roynon that NEX JUSMAG employees are not
searched outside the store unless there is a strong evidence of a wrong-doing. Montoya
can’t recall any circumstance that would trigger suspicion of a wrong-doing on her part.
Montoya filed a suit against Bradford for damages due to the oppressive and
discriminatory acts committed by petitioner in excess of her authority as store manager.
She claims that she has been exposed to contempt and ridicule causing her undue
embarrassment and indignity. She further claims that the act was not motivated by any
other reason aside from racial discrimination in our own land which is a blow to our
national pride and dignity. She seeks for moral damages of P500k and exemplary
damages of P100k.
May 13, 1987 – Summons and complaint were served on Bradford but instead of filing an
answer, she along with USA government filed a motion to dismiss on grounds that: (1)
this is a suit against US which is a foreign sovereign immune from suit without its consent
and (2) Bradford is immune from suit for acts done in the performance of her official
functions under Phil-US Military Assistance Agreement of 1947 and Military Bases
Agreement of 1947. They claim that US has rights, power and authority within the bases,
necessary for the establishment, use and operation and defense thereof. It will also use
facilities and areas within bases and will have effective command over the facilities, US
personnel, employees, equipment and material. They further claim that checking of
purchases at NEX is a routine procedure observed at base retail outlets to protect and
safeguard merchandise, cash and equipment pursuant to par. 2 & 4(b) of
NAVRESALEACT SUBIC INST. 5500.1.
Montoya claims that Bradford was acting as a civilian employee thus not performing
governmental functions. Even if she were performing governmental acts, she would still
not be covered by the immunity since she was acting outside the scope of her authority.
She claims that criminal acts of a public officer/employee are his private acts & he alone
is liable for such acts and Bradford does not possess diplomatic immunity.
ISSUES
1. Whether or not the case at bar is a suit against the State.
No. Doctrine of state immunity is expressed in Art. XVI, Sec. 3 of the 1987 Constitution.
This immunity also applies to complaints filed against officials of the state for acts
allegedly performed by them in discharge of their duties since it will require the state to
perform an affirmative act such as appropriation of amount to pay damages. This will be
regarded as a case against the state even if it has not be formally impleaded. But this is
not all encompassing. It’s a different matter where the public official is made to account in
his capacity as such for acts contrary to law and injurious to rights of plaintiff. State
authorizes only legal acts by its officers. Action against officials by one whose rights have
been violated by such acts is not a suit against the State within the rule of immunity of
the State from suit. The doctrine of state immunity cannot be used as an instrument for
perpetrating an injustice. It will not apply and may not be invoked where the public official
is being sued in his private and personal capacity as an ordinary citizen. This usually
arises where the public official acts without authority or in excess of the powers vested in
him. A public official is liable if he acted with malice and in bad faith or beyond the scope
of his authority or jurisdiction. (Shauf vs. CA) Also, USA vs. Guinto declared that USA is
not conferred with blanket immunity for all acts done by it or its agents in the Philippines
merely because they have acted as agents of the US in the discharge of their official
functions. In this case, Bradford was sued in her private/personal capacity for acts done
beyond the scope and place of her official function, thus, it falls within the exception to
the doctrine of state immunity.
2. Whether or not Bradford enjoys diplomatic immunity.
No. First of all, she is not among those granted diplomatic immunity under Art. 16(b) of
the 1953 Military Assistance Agreement creating the JUSMAG. Second, even diplomatic
agents who enjoy immunity are liable if they perform acts outside their official functions
(Art. 31, Vienna Convention on Diplomatic Relations).
HELD: Petition denied.
Wright v. CA
GR. No. 113213 Aug. 15, 1994
Lessons: extradition treaty
Laws: Section 21, Article VII of the 1987 Constitution
FACTS:
To suppress crimes, Australia and the Government of the Philippines entered into a
Treaty of Extradition on the 7th of March 1988. It 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. The Treaty adopts a "non-list, double criminality
approach" which provides for broader coverage of extraditable offenses between the 2
countries and embraces crimes punishable by imprisonment for at least 1 year. It also
allows extradition for crimes committed prior to the treaty's date of effectivity, provided
that these crimes were in the statute books of the requesting State at the time of their
commission.
Under the Treaty, each contracting State agrees to extradite “persons wanted for
prosecution of the imposition or enforcement of a sentence in the Requesting State for
an extraditable offense." A request for extradition requires, if the person is accused of an
offense, the furnishing by the requesting State of either a warrant for the arrest or a copy
of the warrant of arrest of the person, or, where appropriate, a copy of the relevant
charge against the person sought to be extradited.

The Treaty defined extraditable offenses to include all offenses "punishable under the
Laws of both Contracting States by imprisonment for a period of at least 1 year, or by a
more severe penalty." For the purpose of the definition, the Treaty states that: (a) an
offense shall be an extraditable offense whether or not the laws of the Contracting States
place the offense within the same category or denominate the offense by the same
terminology, (b) the totality of the acts or omissions alleged against the person whose
extradition is requested shall be taken into account in determining the constituent
elements of the offense.
On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the Department of Foreign
Affairs indorsed to the Department of Justice Diplomatic Note No. 080/93 dated February
19, 1993 from the Government of Australia to the Department of Justice through Attorney
General Michael Duffy seeking to indict Paul Joseph Wright, an Australian Citizen for:
a. 1 count of Obtaining Property by Deception contrary to Section 81(1)
of the Victorian Crimes Act of 1958;
b. 13 counts of Obtaining Properties by Deception contrary to Section
81(1) of the Victorian Crimes Act of 1958, where he is an insurance
agent;
c. 1 count of Attempting to Obtain Property by Deception contrary to
Section 321(m) and 1 count of Perjury contrary to Section 314 of
Victorian Crimes Act of.
In accordance to Section 5 of PD No. 1069 (September 10, 1990), an extradition
proceedings was initiated on April 6, 1993 before the Regional Trial Court of Makati. The
Regional Trial Court on June 14, 1993 granted the petition for extradition requested by
the Government of Australian concluding that the extradition could be granted
irrespective of when the offense was committed. The extradition proceeding resulted in
an order of his deportation. The decision was sustained and Motion for Reconsideration
was denied by the Court of Appeals. Wright filed a review on certiorari to set aside the
order of deportation contending 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. Moreover, he argues that the trial court's decision ordering his
extradition is based on evidence that failed to show that he is wanted for prosecution in
his country.
ISSUES:
a. Whether or NOT the Regional Trial Court committed an order in granting the
extradition proceeding.
b. Whether or NOT enforcement of Article 18 of the Treaty states a prohibition
for the retroactive application of offenses committed prior to the date of its
effectivity
c. Whether or not such retroactive application is in violation of the Constitution
for being an ex post facto law
HELD: AFFIRM the decision of the Court of Appeals and DENY the instant petition for
lack of merit
i. NO.
Complying with Article 2, Section 2 of the Treaty, the crimes for which the Mr. Wright was
charged and for which warrants for his arrest were issued in Australia were offenses in
the Requesting State at the time they were alleged to have been committed. The trial
court correctly determined the offenses under our penal laws are Articles 315(2) and 183
of the Revised Penal Code on swindling/estafa and false testimony/perjury, respectively.
The provisions of the Treaty was properly complied with. The signature and official seal
of the Attorney-General of Australia were sufficient to authenticate all the documents
annexed to the Statement of the Acts and Omissions, including the statement itself. The
last requirement was accomplished by the certification made by the Philippine Consular
Officer in Canberra, Australia.
The relevant provisions merely requires "a warrant for the arrest or a copy of the
warrant for the arrest of the person sought to be extradited.” It does not limited the
phrase "wanted for prosecution" to a person charged with an information or a criminal
complaint as it will render the Treaty ineffective over individuals who abscond for the
purpose of evading arrest and prosecution. Moreover, the “Charge and Warrant of Arrest
Sheets” shows that he is not only wanted for prosecution but has absconded to evade
arrest and criminal prosecution. Since a charge or information under the Treaty is
required only when appropriate such as in cases where an individual charged before a
competent court in the Requesting State thereafter absconds to the Requested State, a
charge or a copy thereof is not required if the offender has already absconded before a
criminal complaint could be filed.
ii. YES.
Article 18 states: “ENTRY INTO FORCE AND TERMINATION
This Treaty shall enter into force thirty (30) days after the date on which the Contracting
States have notified each other in writing that their respective requirements for the entry
into force of this Treaty have been complied with.
Either contracting State may terminate this Treaty by notice in writing at any time and it
shall cease to be in force on the one hundred and eightieth day after the day on which
notice is given.”
The first paragraph of Article 18 refers to the Treaty's date of effectivity and the second
paragraph pertains to its termination. There is no prohibition for its retroactive effect.
Furthermore, Article 2(4) of the Treaty unequivocally provides that: “4. Extradition may be
granted pursuant to provisions of this Treaty irrespective of when the offense in relation
to which extradition is requested was committed, provided that:
(a) it was an offense in the Requesting State at the time of the acts or omissions
constituting the offense; and
(b) the acts or omissions alleged would, if they had taken place in the Territory of the
Requested State at the time of the making of the request for extradition, have constituted
an offense against the laws in force in that state.”
iii. NO.
Calder vs. Bull concluded that the concept of ex post facto laws in our Constitution was
limited only to penal and criminal statutes which affects the substantial rights of the
accused. As concluded by the Court of Appeals, 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."
KHOSROW MINUCHER vs. HON. COURT OF APPEALS and ARTHUR SCALZO
(G.R. No. 142396 February 11, 2003)
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
• Certifications from officials of both the Philippine Department of Foreign Affairs and
the United States Embassy
• 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.
V. STATE RESPONSIBILITY AND INTERNATIONAL HUMAN RIGHTS
1. Smith and Grady vs. UK, 29 EHRR 493 (1999)
Facts:
Smith and Grady are both members of Royal Air Force.
Jeanette Smith joined Royal Air Force to serve for nine years as an enrolled
nurse. Subsequently, Smith fond a message on her answering machine from unidentified
female caller, said caller stated that she informed the air force authorities of her
homosexuality and she was sexually harassed by Smith. Thereafter, Smith was called for
pre-disciplinary interview where she admitted that she was homosexual and had previous
and current homosexual relationship. Then a unit investigation report was opened and an
investigator was appointed, thus, she was interviewed/ investigated on the same day
where she was asked questions about her past and current partners, sexual
relationships, and even HIV status. Then, the investigation report was sent to Smith's
commanding officer, recommended Smith's administrative discharge. Smith, then,
received a certificate of discharge from the armed forces.
Graeme Grady joined the Royal Air Force at the rank of aircraftman serving
as a trainee administrative clerk then had achieved the rank of sergeant and worked as
personnel administrator and became a chief clerk who led the support staff of British
Defense Intelligence Liason Service (BDILS). Grady, who is married with two children,
told his wife that he is homosexual. Grady's wife told wife of head BDILS about former's
homosexuality, then of then the nanny of the head told him about Grady, Thereafter, an
investigation was conducted. Prior to interview, Grady's security clearance was replaced
with a lower security clearance and was relieved of his duties in BDILS. On the same
day, he was brought to his home to pack belongings and was required to leave
Washington for United Kingdom and remain at a relevant Air Force Base there. After the
interview, Grady's lower security clearance was suspended. The interview questions
include Grady's marriage, extramarital affairs, his and his wife's sex life, and financial
situations. Grady was asked several times about his homosexuality which he denied.
Then, they informed Grady that they had a warrant and will search his accommodation.
Grady get a solicitor, the investigator then mentioned that investigations involving acts of
alleged homosexuality did not warrant the provision of legal advice and solicitor is only
delaying the matters. After several investigation and interview, Grady eventually admitted
his homosexuality and confirmed that he denied it at first because he was not clear about
the position as regards the retention of certain benefits on discharge and was concerned
about family's financial position. Another interview/ investigation was conducted which is
now about his homosexuality and the questions involved are his homosexual partners,
nature of their relationship, HIV status and even the type of sex they had. Thereafter,
applicant was administratively discharge.
Smith and Grady obtained leave to apply for judicial review of the decisions
to discharge them from the Armed Forces. They argued that the policy of Ministry of
Defence against homosexuals in the armed forces are irrational, a breach of the
Convention and was contrary to Equal Treatment Directive. The Ministry of Defence
maintained that the policy was necessary mainly to maintain morale and unit
effectiveness, in view of the loco parentis role of the services as regards minor recruits
and in light of the requirement of communal living in the armed forces.Hence, this case.
Issue:
Whether or not the discharge of Smith and Grady on the ground of
homosexuality constitute a violation of their human right specifically right to respect for
private lives protected by Article 8 of the Convention.
Ruling:
Yes.
Court is of the view that the investigations by the military police into the
applicants’ homosexuality, which included detailed interviews with each of them and with
third parties on matters relating to their sexual orientation and practices, together with the
preparation of a final report for the armed forces’ authorities on the investigations,
constituted a direct interference with the applicants’ right to respect for their private lives.
Their consequent administrative discharge on the sole ground of their sexual orientation
also constituted an interference with that right. Such interferences can only be
considered justified if it is in accordance with the law and necessary in democratic
society.
Given the matters at issue in the present case, the Court would underline the
link between the notion of “necessity” and that of a “democratic society”, the hallmarks of
the latter including pluralism, tolerance and broadmindedness. The Court recognises that
it is for the national authorities to make the initial assessment of necessity, though the
final evaluation as to whether the reasons cited for the interference are relevant and
sufficient is one for this Court. A margin of appreciation is left to Contracting States in the
context of this assessment, which varies according to the nature of the activities
restricted and of the aims pursued by the restrictions. Accordingly, when the relevant
restrictions concern “a most intimate part of an individual’s private life”, there must exist
“particularly serious reasons” before such interferences can satisfy the requirements of
Article 8 of the Convention.
It is common ground that the sole reason for the investigations conducted
and for the applicants’ discharge was their sexual orientation. Concerning as it did a most
intimate aspect of an individual’s private life, particularly serious reasons by way of
justification were required. In the case of the present applicants, the Court finds the
interferences to have been especially grave.
Certain lines of questioning of both applicants were, in the Court’s view,
particularly intrusive and offensive and, indeed, the Government conceded that they
could not defend the question put to Ms Smith about whether she had had a sexual
relationship with her foster daughter.Ms Smith’s partner was also interviewed. Mr Grady’s
accommodation was searched, many personal items (including a letter to his
homosexual partner) were seized and he was later questioned in detail on the content of
these items. After the interviews, a service police report was prepared for the air force
authorities on each applicant’s homosexuality and related matters.
2. Johansen vs. Norway, 23 EHRR 33 (1996)
Facts:
Johansen has a son, C, at the age of seventeen and they became
dependent on social assistance. Consequently, she cohabited with a man who was
sentenced to two years imprisonment for drug offences and who mistreated her and C.
Johansen was assisted by welfare authorities in several occasions with C but problems
and friction arose with Johansen and C. Due to that, C was provisionally taken into
children's home.
Meanwhile, Johansen who was pregnant was given accommodation in a
center for victims of domestic ill-treatment. It was found that Johansen's mental and
physical condition is very poor. Due to that authorities refrained from contracting the child
welfare authorities, fearing that this would further injure her. After she gave birth with
daughter S, S was taken provisionally into Care because of Johansen's poor condition
and inability to take care of her. Johansen did not lodge appeal nor challenge the
arrangement for visitation. A separate report recommend that S should be taken into
compulsory care and placed in a foster home with a view to adoption to create security
and stability for her. Access was refused and address was kept from Johansen.
C ran away twice from the Children's Home and went to Johansen. Since
then, C lived with Johansen. Then, Johansen appealed with Committee's decision
regarding taking of S into public care and depriving her of parental responsibilities. The
appeal was said to take four or five months. After that, upon meeting with Johansen,
county governor upheld the decision of Committee and as a consequence her appeal
was dismissed also in court's ruling. Due to that, Johanseen brought proceedings against
child and family affairs ministry seeking the care decision to be lifted or parental
responsibilities be restored. The ministry dismissed the case alleging that she is now a
stranger to S and S would be in critical situation, and that her development would be
adversely affected if taken from secure and stimulating conditions. Hence, this case
where Johansen alleged that the taking of S into care and the maintenance in force of
the care is a violation of Article 8 which guarantees respect for family life as regards to
deprivation of parental rights and access to S.
Issue:
Whether or not Johansen is correct in contending that her parental right was
deprived, hence, a violation of Article 8 which guarantees respect for family life.
Ruling:
Yes.
In the light of the foregoing, the Court is satisfied that the taking of the
applicant's daughter S. into care and the maintenance in force of the care decision
concerned were based on reasons which were not only relevant but also sufficient for the
purposes of paragraph 2 of Article 8 (art. 8-2). The measures were supported by
painstaking and detailed assessments by the experts appointed by the Committee and
the City Court. The finding of fact being primarily a matter for the national authorities, the
Court will not substitute its views for theirs as to the relative weight to be given to the
expert evidence."
However, it cannot be said that those difficulties and that risk were of such a
nature and degree as to dispense the authorities altogether from their normal obligation
under Article 8 of the Convention (art. 8) to take measures with a view to reuniting them if
the mother were to become able to provide the daughter with a satisfactory upbringing.
Against this background, the Court does not consider that the decision of 3
May 1990, in so far as it deprived the applicant of her access and parental rights in
respect of her daughter, was sufficiently justified for the purposes of Article 8 paragraph 2
(art. 8-2), it not having been shown that the measure corresponded to any overriding
requirement in the child's best interests.
3. USA vs. Iran (December 15, 1979)
Facts:
Armed Iranian students who are followers of Imam Line support Iranian
Revolution, attacked United States Embassy in Tehran and overtook it. More than sixty
American Diplomats and citizens were held hostage for 444 days. Iran promised
protection to US Embassy but the guards disappeared during the takeover. Iran did not
attempt to stop the hostage taking nor rescued hostages. US arranged to meet Iranian
Authorities, however, the leader of Iranian Revolution Ayatolla Khomeini prevent the
officials to meet them.
US saw this hostage-taking as a violation of the principles of International
law, which granted diplomats immunity from arrest and made diplomatic compounds
inviolable. Hence, this case.
Issue:
Whether or not Iran government violated its obligation to the United States to
take appropriate steps to protect US Embassy as part of their State Responsibility,
hence, violating principles of international law mentioned.
Ruling:
Yes.
Court is led to conclude that the Iranian authorities were equally aware of
their obligations to protect the United States Consulates at Tabriz and Shiraz, and of the
need for action on their part, and similarly failed to use the means which were at their
disposal to comply with their obligations.
Iranian authorities were fully aware of their obligations under conventions in
force to take appropriate steps to protect the premises of US Embassy and its diplomatic
and consular staff from ay attack and from any infringement of their inviolability, and to
ensure the security of such other persons. Appeals for help made by US means urgent
need for action on their part, having means at their disposal to perform their obligations;
completely failed to comply.
4. Iran vs. USA (November 6, 2003)
Facts:
Iran instituted this case due to the alleged attack and destruction of three
offshore oil production complexes, owned and operated for commercial purposes by the
National Iranian Oil Company, by several US warships. Iran contended that these acts
constitute a fundamental breach of various provisions of the Treaty of Amity, Economic
Relations and Consular Rights between US and Iran, as well as of international law.
US counter claimed that Iran also breached its obligations under the 1955
Treaty by attacking vessels in Persian Gulf and otherwise engaging in military actions
that were dangerous and detrimental to commerce and navigation between US and Iran.
Both sought reparation.
Issue:
1. Whether or not US in destroying the platforms had impeded their normal
operation, thus preventing Iran from enjoying freedom of commerce as guaranteed in the
Treaties, hence, should be given reparation.
2. Whether or not the incidents attributed by US to Iran infringed the freedom
of navigation between the territories of both US and Iran, infringing the treaties and thus,
should be given reparation.
Ruling:
Both cannot ask reparation from each other.
1. The attack on the said platforms could not be considered as having
affected freedom of commerce. All trades in crude oil between Iran and US had been
suspended first as a result of repair and second as a result of an embargo imposed by
Executive Order adopted by US authorities, hence, no trade in crude oil.
2. Court found that none of the ships alleged by US to have been damaged
by Iranian attacks was engaged in commerce or navigation between the territories of the
two States nor said actions had made the Persian Gulf unsafe for shipping, concluding
that according to evidence, there was not any actual impediment to commerce or
navigation.
5. (La Grand Case) Germany vs. USA (2001)
Facts:
Brothers Karl-Heinz and Walter Bernhard Lagrand, German nationals,
bungled an armed bank robbery in US, killing a man and severely injured a woman. The
two were tried and sentenced to death without having been informed of their rights as
required in Vienna Convention, which required the competent authorities of US to inform
Legrands of their right to have Consulate of Germany notified their arrest.
Germany alleged that the failure to provide the required notification
precluded Germany from protecting its nationals' interest. Thus, Germany initiated this
legal action.
Issue:
Whether or not, US violated Vienna Convention in proceeding in trial and
execution of death sentence of the Legrands brothers without informing their rights to
have Consulate be notified.
Ruling:
Yes.
Court observed that the United States did not deny that, in relation to
Germany, it had violated Article 36, paragraph 1 (b), of the Vienna Convention, which
required the competent authorities of the United States to inform the LaGrands of their
right to have the Consulate of Germany notified of their arrest. It added that, in the case
concerned, that breach had led to the violation of paragraph 1 (a) and paragraph 1 (c) of
that Article, which dealt respectively with mutual rights of communication and access of
consular officers and their nationals, and the right of consular officers to visit their
nationals in prison and to arrange for their legal representation. The Court further stated
that the United States had not only breached its obligations to Germany as a State party
to the Convention, but also that there had been a violation of the individual rights of the
LaGrands under Article 36, paragraph 1, which rights could be relied on before the Court
by their national State.
5. Ireland vs. UK, 2EHRR 25 (1978)
Facts:
Island of Ireland was a constituent part of the United Kingdom, however, due
to series of political events this island became two different nations;
a. The Irish Republic which is an independent sovereign nation-state, and
b. Northern Ireland which is under the sovereignty of UK.
Even there was already a partition; tensions which is deeply rooted, social,
and economic differences remained between Northern Ireland's Protestant and Catholic
populations. This tension worsen whereby Loyalists-Protestants who supported the
Union with UK and the Irish Republican Army (IRA) who aimed for united Ireland became
violent which causes death of 1100 people, injured 11500, and destroyed properties.
Given the situation, Northern Ireland Government introduced "Operation
Demetrius", which was a series of extrajudicial measures of detention and interment of
suspected terrorists. The principal target of these measures was the suspected members
of the IRA.
The said Operation used serious interrogation techniques known as "five
techniques".
1. "Wall standing (forcing detainees to remain in a stress position for hours at a time);
2. Hooding (keeping a bag over detainees heads at all times, except during
interrogation);
3. Subjection to continuous loud noise;
4. Deprivation of sleep;
5. Deprivation of food and drink.
Ireland contended that it is probable that physical violence was sometimes
used in the forcible application of the five techniques which is a clear violation of Article 3
of European Convention on Human Rights which guaranteed freedom from cruel and
unusual treatment and put a stop on torture. UK on the other hand argued that it is a
valid derogation of rights as provided under Article 15 considering the situation. UK
contended that these measures were necessary because normal procedures of law and
order had become inadequate to deal with IRA terrorists. Hence, this case.
Issue:
Whether or not UK is correct that such measure is a valid derogation of
rights in consideration of the situation.
Ruling:
Yes.
Court concluded that the five techniques breached Article 3 as they
amounted to inhuman and degrading treatment but, this is not serious enough to amount
to torture. It further determined that although some rights were derogated, the existence
of an emergency that would permit derogation, is perfectly clear from the facts and
therefore, there is no breach. Moreover, IRA perpetrated the majority of the violence.
Although the five techniques, as applied in combination, undoubtedly
amounted to inhuman and degrading treatment, although their object was the extraction
of confessions, the naming of others and/or information and although they were used
systematically, they did not occasion suffering of the particular intensity and cruelty
implied by the word torture as so understood.
6. Aksoy vs. Turkey, 23 EHRR 553 (1996).
Facts:
A violent confrontation has raged in the South-East of Turkey, between the
security forces and the members of the PKK (Worker's Party of Kurdistan) whose
terrorists activity has according to government claimed lives of civilians and members of
the security forces.
Aksoy, was suspected as member of the PKK, hence, he was taken into
custody between 11 pm and midnight by approximately 20 policemen. Policemen were
accompanied by a detainee named Metin who allegedly identified Aksoy as member,
even though he told police that he did not know Metin.
Subsequently, Aksoy was detained in 14 days and was allegedly subjected
by police to torture known as Palestinian Hanging, in order for him to confess that he is a
member of PKK and knows Metin. The Palestinian Hanging involved being stripped
naked, electrocuted in the genitals, kicked, slapped, and verbally abused. Due to that,
Aksoy lost the use of his arms. Hence, Aksoy claimed that there was a violation of Article
3 and Article 5 of Convention for the Protection of Human Rights and Fundamental
Freedoms.
Issue:
Whether or not rights of Aksoy provided under Articles 3 and 5 of the
Convention was violated.
Ruling:
Yes.
The European Court of Human Rights found violation of Article 3 and 5.
When an individual is taken into police custody in good health and found injured at the
time of release, the State had an obligation to explain the causing of the injury. The Court
found that the treatment inflicted to the applicant was deliberate, serious and cruel so it
was torture. Accordingly there had been a violation of Article 3 ECHR. The Court also
held that the fourteen days of detention without judicial supervision was exceptionally
long and thus was in breach of article 5

7. Aydin vs. Turkey, 25 EHRR 251 (1997).

Facts:
SukranAydin, Turkish citizen, was at the time of the events in issue was 17
years old. This time still involved the raged between security forces and members of the
PKK (Worker's Party of Kurdistan), who are allegedly terrorists.
Aydin and two members of her family were taken and detained by policemen
claiming that they were members of the PKK. Aydin averred that on arrival on the
headquarters, she was separated from her family as she was taken to a room which was
later referred as "torture room". There, she was allegedly stripped, put into a car tyre and
spun round and round. She was also beaten and sprayed with cold water from high-
pressure jets. At a later stage she was taken clothed but blindfolded to an interrogation
room. With the door of the room locked, an individual in military clothing forcibly removed
her clothes, laid her on her back and raped her. By the time he had finished she was in
severe pain and covered in blood. She was ordered to get dressed and subsequently
taken to another room. According to the applicant, she was later brought back to the
room where she had been raped. She was beaten for about an hour by several persons
who warned her not to report on what they had done to her. Now, she is asking for
reparation.
Policemen sets an alibi as defense, contending that the was no indication in
the custody register kept at the headquarter at that time further; interrogation of terrorists
never took place in any other headquarters than the main headquarter. Hence, this case.

Issue:
Whether or not Aydin's right as provided for under the Convention was
violated hence, should be compensated.

Ruling:
Yes.
Evidence adduced proved beyond reasonable doubt that applicant raped
and ill-treated in custody rape of a detainee by an official of the State an especially grave
and abhorrent form of ill-treatment – applicant 17 years old at the time also subjected to
other forms of physical and mental suffering – terrifying and humiliating experiences
accumulation of acts of violence, especially act of rape, amounted to torture.
Further, Article 125 of the Turkish Constitution provides as follows:
"All acts or decisions of the administration are subject to judicial review.
The administration shall be liable to indemnify any damage caused by its
own acts and measures."
This provision is not subject to any restrictions even in a state of emergency
or war. The latter requirement of the provision does not necessarily require proof of the
existence of any fault on the part of the administration, whose liability is of an absolute,
objective nature, based on the theory of "social risk". Thus the administration is liable to
indemnify persons who have suffered damage from acts committed by unknown or
terrorist authors when the State may be said to have failed in its duty to maintain public
order and safety, or in its duty to safeguard individual life and property.
The principle of administrative liability is reflected in the additional section 1
of Law no. 2935 of 25 October 1983 on the state of emergency, which provides:
"... actions for compensation in relation to the exercise of the powers conferred by this
Law are to be brought against the administration before the administrative courts."