BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT v refers to a case where the act complained of directly involves
ined of directly involves the illegal concurred in by the Senate, ratified by a majority of the votes cast in a
EXECUTIVE SECRETARY RONALDO ZAMORA
G.R. No. 138570 October 10, 2000
FACTS: The Philippines and the United States entered into a Mutual
Defense Treaty on August 30, 1951, To further strengthen their defense and
security relationship. Under the treaty, the parties agreed to respond to any
external armed attack on their territory, armed forces, public vessels, and
aircraft.
On September 16, 1991, the Philippine Senate rejected the proposed RP-
US Treaty of Friendship, Cooperation and Security which, in effect, would
have extended the presence of US military bases in the Philippines.
On July 18, 1997 RP and US exchanged notes and discussed, among other
things, the possible elements of the Visiting Forces Agreement (VFA).This
resulted to a series of conferences and negotiations which culminated on
January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the
VFA, which was respectively signed by Secretary Siazon and United States
Ambassador Thomas Hubbard.
On October 5, 1998, President Joseph E. Estrada, through respondent
Secretary of Foreign Affairs, ratified the VFA. On October 6, 1998, the
President, acting through respondent Executive Secretary Ronaldo Zamora,
officially transmitted to the Senate of the Philippines,the Instrument of
Ratification, the letter of the President and the VFA, for concurrence
pursuant to Section 21, Article VII of the 1987 Constitution.
Petitions for certiorari and prohibition, petitioners – as legislators, non-
governmental organizations, citizens and taxpayers – assail the
constitutionality of the VFA and impute to herein respondents grave abuse
of discretion in ratifying the agreement.
Petitioner contends, under they provision cited, the “foreign military bases,
troops, or facilities” may be allowed in the Philippines unless the following
conditions are sufficiently met: a) it must be a treaty,b) it must be duly
concurred in by the senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required by congress, and c)
recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is
applicable so that, what is requires for such treaty to be valid and effective is
the concurrence in by at least two-thirds of all the members of the senate.
ISSUES AND RULING:
1. Issue 1: Do the Petitioners have legal standing as concerned citizens,
taxpayers, or legislators to question the constitutionality of the VFA?
NO. Petitioners Bayan Muna, etc. have no standing. A party bringing a suit
challenging the Constitutionality of a law must show not only that the law is
invalid, but that he has sustained or is in immediate danger of sustaining
some direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. Petitioners have failed to show that
they are in any danger of direct injury as a result of the VFA.
As taxpayers, they have failed to establish that the VFA involves the
exercise by Congress of its taxing or spending powers. A taxpayer's suit
disbursement of public funds derived from taxation. Before he can invoke
the power of judicial review, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by taxation and
that he will sustain a direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he has merely a
general interest common to all members of the public. Clearly, inasmuch as
no public funds raised by taxation are involved in this case, and in the
absence of any allegation by petitioners that public funds are being misspent
or illegally expended, petitioners, as taxpayers, have no legal standing to
assail the legality of the VFA.
Similarly, the petitioner-legislators (Tanada, Arroyo, etc.) do not possess the
requisite locus standi to sue. In the absence of a clear showing of any direct
injury to their person or to the institution to which they belong, they cannot
sue. The Integrated Bar of the Philippines (IBP) is also stripped of standing
in these cases. The IBP lacks the legal capacity to bring this suit in the
absence of a board resolution from its Board of Governors authorizing its
National President to commence the present action.
Notwithstanding, in view of the paramount importance and the constitutional
significance of the issues raised, the Court may brush aside the procedural
barrier and takes cognizance of the petitions.
2. Issue 2: Is the VFA governed by section 21, Art. VII, or section 25, Art.
XVIII of the Constitution?
Section 25, Art XVIII, not section 21, Art. VII, applies, as the VFA involves
the presence of foreign military troops in the Philippines.
The Constitution contains two provisions requiring the concurrence of the
Senate on treaties or international agreements.
Section 21, Article VII reads: “[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.”
Section 25, Article XVIII, provides:”[a]fter the expiration in 1991 of the
Agreement between the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires, ratified by
a majority of the votes cast by the people in a national referendum held for
that purpose, and recognized as a treaty by the other contracting State.”
Section 21, Article VII deals with treaties or international agreements in
general, in which case, the concurrence of at least two-thirds (2/3) of all the
Members of the Senate is required to make the treaty valid and binding to
the Philippines. This provision lays down the general rule on treaties. All
treaties, regardless of subject matter, coverage, or particular designation or
appellation, requires the concurrence of the Senate to be valid and effective.
In contrast, 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. Sec 25 further requires that “foreign military bases, troops, or
facilities” may be allowed in the Philippines only by virtue of a treaty duly
national referendum held for that purpose if so required by Congress, and
recognized as such by the other contracting state.
On the whole, the VFA is an agreement which defines the treatment of US
troops visiting the Philippines. It provides for the guidelines to govern such
visits of military personnel, and further defines the rights of the US and RP
government in the matter of criminal jurisdiction, movement of vessel and
aircraft, import and export of equipment, materials and supplies.
Undoubtedly, 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, however, the provisions of Section 21,
Article VII will find applicability with regard to determining the number of
votes required to obtain the valid concurrence of the Senate.
It is specious to argue that Section 25, Article XVIII is inapplicable to mere
transient agreements for the reason that there is no permanent placing of
structure for the establishment of a military base. The Constitution makes no
distinction between “transient” and “permanent”. We find nothing in Section
25, Article XVIII that requires foreign troops or facilities to be stationed or
placed permanently in the Philippines. When no distinction is made by law;
the Court should not distinguish. We do not subscribe to the argument that
Section 25, Article XVIII is not controlling since no foreign military bases, but
merely foreign troops and facilities, are involved in the VFA. The proscription
covers “foreign military bases, troops, or facilities.” Stated differently, this
prohibition is not limited to the entry of troops and facilities without any
foreign bases being established. The clause does not refer to “foreign
military bases, troops, or facilities” collectively but treats them as separate
and independent subjects, such that three different situations are
contemplated — a military treaty the subject of which could be either (a)
foreign bases, (b) foreign troops, or (c) foreign facilities — any of the three
standing alone places it under the coverage of Section 25, Article XVIII.
3. Issue 3: Was Sec 25 Art XVIII's requisites satisfied to make the VFA
effective?
YES
Section 25, Article XVIII disallows foreign military bases, troops, or facilities
in the country, unless the following conditions are sufficiently met:
(a) it must be under a treaty;
(b) the treaty must be duly concurred in by the Senate and, when so
required by Congress, ratified by a majority of the votes cast by the people
in a national referendum; and
(c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case
of the VFA. The concurrence handed by the Senate through Resolution No.
18 is in accordance with the Constitution, as there were at least 16 Senators
that concurred.
As to condition (c), the Court held that the phrase “recognized as a treaty”
means that the other contracting party accepts or acknowledges the
agreement as a treaty. To require the US to submit the VFA to the US
Senate for concurrence pursuant to its Constitution, is to accord strict
meaning to the phrase. Well-entrenched is the principle that the words used
in the Constitution are to be given their ordinary meaning except where
technical terms are employed, in which case the significance thus attached
to them prevails. Its language should be understood in the sense they have
in common use.
The records reveal that the US Government, through Ambassador Hubbard,
has stated that the US has fully committed to living up to the terms of the
VFA. For as long as the US accepts or acknowledges the VFA as a treaty,
and binds itself further to comply with its treaty obligations, there is indeed
compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification by the President of the VFA, and
the concurrence of the Senate, should be taken as a clear and unequivocal
expression of our nation's consent to be bound by said treaty, with the
concomitant duty to uphold the obligations and responsibilities embodied
thereunder. Ratification is generally held to be an executive act, undertaken
by the head of the state, 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. In our 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.
With the ratification of the VFA it now becomes obligatory and incumbent on
our part, under principles of international law (pacta sunt servanda), to be
bound by the terms of the agreement. Thus, no less than Section 2, Article II
declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity with all nations.
LIM V. 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. Partylists Sanlakas and Partido Ng
Manggagawa as residents of Zamboanga and Sulu directly affected by the
operations filed a petition-in-intervention.
The Solicitor General commented the prematurity of the action as it is
based only on a fear of future violation of the Terms of Reference and
impropriety of availing of certiorari to ascertain a question of fact specifically
interpretation of the VFA whether it is covers "Balikatan 02-1” and no
question of constitutionality is involved. Moreover, there is lack of locus
standi since it does not involve tax spending and there is no proof of direct
personal injury.
ISSUE: W/N the petition and the petition-in-intervention should prosper.
HELD: NO. Petition and the petition-in-intervention are hereby DISMISSED
without prejudice to the filing of a new petition sufficient in form and
substance in the proper Regional Trial Court - Supreme Court is not a trier
of facts
Doctrine of Importance to the Public
Considering however the importance to the public of the case at bar, and in
keeping with the Court's duty, under the 1987 Constitution, to determine
whether or not the other branches of the government have kept themselves
within the limits of the Constitution and the laws that they have not abused
the discretion given to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of this petition.
Although courts generally avoid having to decide a constitutional question
based on the doctrine of separation of powers, which enjoins upon the
department of the government a becoming respect for each other's act, this
Court nevertheless resolves to take cognizance of the instant petition.
Interpretation of Treaty
The VFA permits United States personnel to engage, on an impermanent
basis, in "activities," the exact meaning of which was left undefined. The
expression is ambiguous, permitting a wide scope of undertakings subject
only to the approval of the Philippine government. The sole encumbrance
placed on its definition is couched in the negative, in that United States
personnel must "abstain from any activity inconsistent with the spirit of this
agreement, and in particular, from any political activity." All other activities, in
other words, are fair game.
To aid in this, the Vienna Convention on the Law of Treaties Article 31
SECTION 3 and Article 32 contains provisos governing interpretations of
international agreements. It is clear from the foregoing that the cardinal rule
of interpretation must involve an examination of the text, which is presumed
to verbalize the parties' intentions. The Convention likewise dictates what
may be used as aids to deduce the meaning of terms, which it refers to as
the context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context. According to Professor Briggs,
writer on the Convention, the distinction between the general rule of
interpretation and the supplementary means of interpretation is intended
rather to ensure that the supplementary means do not constitute an
alternative, autonomous method of interpretation divorced from the general
rule.
The meaning of the word “activities" was deliberately made that way to give
both parties a certain leeway in negotiation. Thus, the VFA gives legitimacy
to the current Balikatan exercises. Both the history and intent of the Mutual
Defense Treaty and the VFA support the conclusion that combat-related
activities -as opposed to combat itself -such as the one subject of the instant
petition, are indeed authorized.
The Terms of Reference are explicit enough. Paragraph 8 of section I
stipulates that US exercise participants may not engage in combat "except
in self-defense." ." The indirect violation is actually petitioners' worry, that in
reality, "Balikatan 02-1" is actually a war principally conducted by the United
States government, and that the provision on self-defense serves only as
camouflage to conceal the true nature of the exercise. A clear
pronouncement on this matter thereby becomes crucial. In our considered
opinion, neither the MDT nor the VFA allow foreign troops to engage in an
offensive war on Philippine territory. Under the salutary proscription stated
in Article 2 of the Charter of the United Nations.
Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all
other treaties and international agreements to which the Philippines is a
party, must be read in the context of the 1987 Constitution especially Sec. 2,
7 and 8 of Article 2: Declaration of Principles and State Policies in this
case. The Constitution also regulates the foreign relations powers of the
Chief Executive when it provides that "[n]o treaty or international agreement
shall be valid and effective unless concurred in by at least two-thirds of all
the members of the Senate." Even more pointedly Sec. 25 on Transitory
Provisions which shows antipathy towards foreign military presence in the
country, or of foreign influence in general. Hence, foreign troops are
allowed entry into the Philippines only by way of direct exception.
International Law vs. Fundamental Law and Municipal Laws
Conflict arises then between the fundamental law and our obligations arising
from international agreements.
Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that international law
has been made part of the law of the land does not by any means imply the
primacy of international law over national law in the municipal sphere. Under
the doctrine of incorporation as applied in most countries, rules of
international law are given a standing equal, not superior, to national
legislation.”
From the perspective of public international law, a treaty is favored over
municipal law pursuant to the principle of pacta sunt servanda. Hence,
"[e]very treaty in force is binding upon the parties to it and must be
performed by them in good faith." Further, a party to a treaty is not allowed
to "invoke the provisions of its internal law as justification for its failure to
perform a treaty."
Our Constitution espouses the opposing view as stated in section 5 of
Article VIII: “The Supreme Court shall have the following powers: xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the
law or the Rules of Court may provide, final judgments and order of lower
courts in:
(A) All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question.”
Ichong v. Hernandez: “provisions of a treaty are always subject to
qualification or amendment by a subsequent law, or that it is subject to the
police power of the State”
Gonzales v. Hechanova: “our Constitution authorizes the nullification of a
treaty, not only when it conflicts with the fundamental law, but, also, when it
runs counter to an act of Congress.”
The foregoing premises leave us no doubt that US forces are prohibited /
from engaging in an offensive war on Philippine territory.
SEN. AQUILINO PIMENTEL, JR. ET. AL VS OFFICE OF THE EXECUTIVE
SECRETARY, ET. AL.
G.R. No. 158088 July 6, 2005 EN BANC
Facts: This is a petition for mandamus filed by petitioners 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 Philippines for its concurrence in accordance with
Section 21, Article VII of the 1987 Constitution.
The Rome Statute established the International Criminal Court which “shall
have the power to exercise its jurisdiction over persons for the most serious
crimes of international concern xxx and shall be complementary to the
national criminal jurisdictions.” Its jurisdiction covers the crime of genocide,
crimes against humanity, war crimes and the crime of aggression as defined
in the Statute. The Statute was opened for signature by all states in Rome
on July 17, 1998 and had remained open for signature until December 31,
2000 at the United Nations Headquarters in New York. The Philippines
signed the Statute on December 28, 2000 through Charge d’ Affairs Enrique
A. Manalo of the Philippine Mission to the United Nations. Its provisions,
however, require that it be subject to ratification, acceptance or approval of
the signatory states.
Petitioners filed the instant petition to compel the respondents — the Office
of the Executive Secretary and the Department of Foreign Affairs — to
transmit the signed text of the treaty to the Senate of the Philippines for
ratification.
It is the theory of the petitioners that ratification of a treaty, under both
domestic law and international law, is a function of the Senate. Hence, it is
the duty of the executive department to transmit the signed copy of the
Rome Statute to the Senate to allow it to exercise its discretion with respect
to ratification of treaties. Moreover, petitioners submit that the Philippines
has a ministerial duty to ratify the Rome Statute under treaty law and
customary international law.
Petitioners invoke the Vienna Convention on the Law of Treaties enjoining
the states to refrain from acts which would defeat the object and purpose of
a treaty when they have signed the treaty prior to ratification unless they
have made their intention clear not to become parties to the treaty.
Issue: W/N the executive department has no duty to transmit the Rome
Statute to the Senate for concurrence; or
Whether the Executive Secretary and the Department of Foreign Affairs
have a ministerial duty to transmit to the Senate the copy of the Rome
Statute signed by a member of the Philippine Mission to the United Nations
even without the signature of the President.
Held: In our system of government, the President, being the head of state,
is regarded as the sole organ and authority in external relations and is the
country’s sole representative with foreign nations. As the chief architect of
foreign policy, the President acts as the country’s mouthpiece with respect
to international affairs. Hence, the President is vested with the authority to
deal with foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise transact the
business of foreign relations. In the realm of treaty-making, the President
has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and
enter into treaties, the Constitution provides a limitation to his power by
requiring the concurrence of 2/3 of all the members of the Senate for the
validity of the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that “no treaty or international agreement shall be valid
and effective unless concurred in by at least two-thirds of all the Members of
the Senate.” The 1935 and the 1973 Constitution also required the
concurrence by the legislature to the treaties entered into by the executive.
It should be emphasized that under our Constitution, the power to ratify is
vested in the President, subject to the concurrence of the Senate. The role
of the Senate, however, is limited only to giving or withholding its consent, or
concurrence, to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it. Although the refusal of a state to
ratify a treaty which has been signed in its behalf is a serious step that
should not be taken lightly, such decision is within the competence of the
President alone, which cannot be encroached by this Court via a writ of
mandamus. This Court has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties. The Court, therefore,
cannot issue the writ of mandamus prayed for by the petitioners as it is
beyond its jurisdiction to compel the executive branch of the government to
transmit the signed text of Rome Statute to the Senate.
IN VIEW WHEREOF, the petition is DISMISSED. SO ORDERED.
(DIGEST 2)
ISSUE: Whether or not the Executive Secretary and the DFA have a
ministerial duty to transmit to the Senate the copy of the Rome Statute
HELD: We rule in the negative.
In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the
country’s sole representative with foreign nations. As the chief architect of
foreign policy, the President acts as the country’s mouthpiece with respect
to international affairs. Hence, the President is vested with the authority to
deal with foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise transact the
business of foreign relations. In the realm of treaty-making, the President
has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and
enter into treaties, the Constitution provides a limitation to his power by
requiring the concurrence of 2/3 of all the members of the Senate for the
validity of the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that “no treaty or international agreement shall be valid
and effective unless concurred in by at least two-thirds of all the Members of
the Senate.”
The participation of the legislative branch in the treaty-making process was
deemed essential to provide a check on the executive in the field of foreign
relations. By requiring the concurrence of the legislature in the treaties
entered into by the President, the Constitution ensures a healthy system of
checks and balance necessary in the nation’s pursuit of political maturity
and growth.
Signing vs. Ratification of Treaty
It should be underscored that the signing of the treaty and the ratification are
two separate and distinct steps in the treaty-making process. As earlier
discussed, the signature is primarily intended as a means of authenticating
the instrument and as a symbol of the good faith of the parties. It is usually
performed by the state’s authorized representative in the diplomatic mission.
Ratification, on the other hand, is the formal act by which a state confirms
and accepts the provisions of a treaty concluded by its representative. It is
generally held to be an executive act, undertaken by the head of the state or
of the government.
Purpose of Ratification
Petitioners’ submission that the Philippines is bound under treaty law and
international law to ratify the treaty which it has signed is without basis. The
signature does not signify the final consent of the state to the treaty. It is the
ratification that binds the state to the provisions thereof. In fact, the Rome
Statute itself requires that the signature of the representatives of the states
be subject to ratification, acceptance or approval of the signatory states.
Ratification is the act by which the provisions of a treaty are formally
confirmed and approved by a State. By ratifying a treaty signed in its behalf,
a state expresses its willingness to be bound by the provisions of such
treaty. After the treaty is signed by the state’s representative, the President,
being accountable to the people, is burdened with the responsibility and the
duty to carefully study the contents of the treaty and ensure that they are not
inimical to the interest of the state and its people. Thus, the President has
the discretion even after the signing of the treaty by the Philippine
representative whether or not to ratify the same. The Vienna Convention on
the Law of Treaties does not contemplate to defeat or even restrain this
power of the head of states. If that were so, the requirement of ratification of
treaties would be pointless and futile. It has been held that a state has no
legal or even moral duty to ratify a treaty which has been signed by its
plenipotentiaries. There is no legal obligation to ratify a treaty, but it goes
without saying that the refusal must be based on substantial grounds and
not on superficial or whimsical reasons. Otherwise, the other state would be
justified in taking offense.
President has the Power to Ratify Treaties
It should be emphasized that under our Constitution, the power to ratify is
vested in the President, subject to the concurrence of the Senate. The role
of the Senate, however, is limited only to giving or withholding its consent, or
concurrence, to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it. Although the refusal of a state to
ratify a treaty which has been signed in its behalf is a serious step that
should not be taken lightly, such decision is within the competence of the
President alone, which cannot be encroached by this Court via a writ of
mandamus. This Court has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties. The Court, therefore,
cannot issue the writ of mandamus prayed for by the petitioners as it is
beyond its jurisdiction to compel the executive branch of the government to
transmit the signed text of Rome Statute to the Senate.
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE
PHILIPPINES VS. DUQUE III
(Austria-Martinez, October 9, 2007)
Nature: Special Civil Action in the Supreme Court. Certiorari
Petitioner: Pharmaceutical and Healthcare Association of the Philippines
Respondents: DOH Sec. Francisco Duque III, DOH Undersecretaries Dr.
Ethelyn Nieto, Dr. Margarita Galon, Atty. Alexander Padilla and Dr. Jade Del
Mundo; and Asst. Secretaries Dr. Mario Villaverde, Dr. David Lozada and
Dr. Nemesio Gako
Facts:
- Executive Order No. 51 (The Milk Code - TMC) was issued by Pres.
Aquino on Oct. 28, 1986 by virtue of the legislative powers granted to
her under the Freedom Constitution.
(1) One of the preambular clauses of TMC – the law seeks to give
effect to Article 11 of the International Code of Marketing of
Breastmilk Substituttes (ICMBS), a code adopted by the WHA
(World Health Assembly) in 1981.
 - In 1990, the Philippine ratified the International Convention on the
Rights of the Child. Art. 24 of the instrument mandates that States
should take measure to diminish infant mortality and should ensure
that all segments of society are informed of the advantages of
breastfeeding.
- From 1982 – 2006, the WHA adopted several resolutions to the effect
that breastfeeding should be supported, promoted and protected,
hence, it should be ensured that nutrition and health claims are not
permitted for breastmilk substitutes.
- May 15, 2006 – DOH issues the assailed RIRR (Revised
Implementing Rules and Regulations of E.O. 51 or A.O. No. 2006-
0012) which was to take effect on July 7, 2006. – The RIRR imposes
a ban on all advertisements of breastmilk substitutes
- June 28, 2006 – Petitioner filed the present Petition for Certiorari and
Prohibition with Prayer for the Issuance of a TRO or Writ of
Preliminary injunction.
- August 15, 2006 – the Court issued a Resolution granting the TRO,
enjoining the respondents from implementing the assailed RIRR.
- Petitioner assails the RIRR for going beyond the provisions of TMC
thereby amending and expanding the coverage of the said law.
- DOH meanwhile contends that the RIRR implements not only TMC
but also various international instruments regarding infant and young
child nutrition. They posit that the said international instruments are
deemed part of the law of the land and therefore may be implemented
by the DOH in the RIRR.
Issue: W/n the RIRR is unconstitutional?
Sub-issue(s): W/n the RIRR is in accord with TMC? W/n pertinent
international agreements entered into by the Philippines are part of the law
of the land and may thus be implemented through an RIRR, if so, is the
RIRR in accord with such international agreements?
Note: I focused on the parts on international law. The other matters (in case
ma’am asks) are at the bottom of the digest.
Held: No. However what may be implemented is the RIRR based on the
Milk Code which in turn is based on the ICMBS as this is deemed part of the
law of the land. The other WHA Resolutions however cannot be imposed as
they are not deemed part of the law of the land.
Ratio:
1. Are the international instruments referred to by the respondents part of
the law of the land?
- The various international instruments invoked by respondents are:
(1) The UN Conventions on the Rights of the Child
(2) The International Convenant on Economic, Social, and Cultural
Rights
(3) Convention on the Elimination of All Forms of Discrimination
Against Women
- These instruments only provide general terms of the steps that States
must take to prevent child mortality. Hence, they do not have anything
about the use and marketing of breastmilk substitutes
- The ICMBS and other WHA Resolutions however, are the
international instruments which have specific provisions on breastmilk
substitutes
- Under the 1987 Constitution, international law can become part of
domestic law in 2 ways:
(1) Transformation – an international law is transformed into a
domestic law through a constitutional mechanism such as local
legislation
 Treaties become part of law of the land through this method,
pursuant to Art 7, Sec 21 – wherein “no treaty or
international agreement shall be valid.. unless concurred by
at least 2/3 of Senate”
 The ICMBS and WHA Resolutions are NOT treaties as they
haven’t been concurred in by the required 2/3 vote.
 HOWEVER, the ICMBS has been transformed into domestic
law through local legislation that is TMC.
 Therefore, it is not the ICMBS per se that has the
force of law but it’s TMC.
o While TMC is almost a verbatim reproduction of the
ICMBS, it did not adopt the latter’s provision on the
absolute prohibition on advertising of products
within the scope of the ICMBS. Instead the MC
provides that advertising promotion or other
marketing materials may be allowed if such
materials are approved by a committee.
(2) Incorporation – by mere constitutional declaration, international
law is deemed to have the force of domestic law
 This is found under Art 2, Sec 2 – The Philippines… adopts
generally accepted principles of international law as part of
the law of the land
 In Mihares v. Ranada: International law becomes customary
rules accepted as binding as a result of two elements:
1.) Established, widespread, and consistent practice on
part of the state
2.) Opinion juris sive necessitates (opinion as to law or
necessity.
 Generally accepted principles of international law refer to
norms of general or customary international law which are
binding on all states, valid through all kinds of human
societies, and basic to legal systems generally
 Fr. Bernas has a definition similar to the one above.
Customary international law has two factors:
1.) Material factor – how states behave
 The consistency and the generality of the practice
2.) Psychological or subjective factor – why they behave
the way they do
 Once state practice has been established, now
determine why they behave they do. Is it ouor of
courtesy or opinio juris (the belief that a certain type
of behavior is obligatory)
 When a law satisfies the two factors it becomes part of
customary international law which is then incorporated into
our domestic system
2. Since the WHA Resolutions have not been embodied in any local
legislation, have they attained the status of customary law and hence
part of our law of the land?
- The World Health Organization (WHO) is one of the international
specialized agencies of the UN.
- According to the WHO Constitution, it’s the WHA which determines
the policies of the WHO, the former also has the power to “adopt
regulations concerning advertising and labeling of pharmaceutical and
similar products” and “to make recommendations to members on any
matter within the Organization’s competence”
- Note that the legal effect of a regulation as opposed to
recommendation is quite different
(1) Regulations which are duly adopted by the WHA are binding on
member states
(2) On the other hand, recommendations of the WHA do not come
into force for its members unlike regulations. Rather, they carry
moral and political weight as they constitute the judgment on a
health issue of the collective membership of the highest body in
the field of health.
- The WHA resolution adopting the ICMBS and the subsequent WHA
resolutions urging states to implement the ICMBS are merely
recommendatory and legally non-binding.
- Hence, unlike the ICMBS which has become TMC through legislative
enactment, the subsequent WHA Resolutions, which provide for
exclusive breastfeeding and prohibition on advertisements and
promotions of breastmilk have not been adopted as domestic law.
- WHA Resolutions have been viewed to constitute “soft law” or non-
binding norms, which influence state behavior. Soft law has been
noted to be a rapid means of norm creation, in order to reflect and
respond to the changing needs and demands of constituents (of the
UN.)
- As previously discussed, for an international rule to be considered
customary law, it must be established that such rule is followed by
states because it is considered obligatory (opinio juris).
- In the case at bar, respondents have not presented any evidence to
prove that the WHA Resolutions are in fact enforced or practice by
member states. Further, they failed to establish that provisions of
pertinent WHA Resolutions are customary international law that may
be deemed part of law of the land.
- Hence, legislation is necessary to transform the WHA resolutions into
domestic law. They cannot thus be implemented by executive
agencies without the need of a law to be enacted by legislature.
On other issues:
W/n the petitioner is the real party in interest? Yes.
- An association has standing to file suit for its workers despite its lack
of direct interest of its members are affected by the action. An
organization has standing to assert the concerns of its constituents.
(Exec Sec vs CA)
- The Court has rules that an association has the legal personality to
represent its members because the results of the case will affect their
vital interests. (Purok Bagong Silang Association Inc. vs. Yuipco)
- In the petitioner’s Amended Articles of Incorporation, it states that the
association is formed “to represent directly or through approved
representatives the pharmaceutical and health care industry before
the Philippine Government and any of its agencies, the medical
professions and the general public.”
- Therefore, the petitioner, as an organization, has an interest in fulfilling
its avowed purpose of representing members who are part of the
pharmaceutical and health care industry. Petitioner is duly authorized
to bring to the attention of the government agencies and courts any
grievance suffered by its members which are directly affected by the
assailed RIRR.
 - The petitioner, whose legal identity is deemed fused with its members,
should be considered as a legal party-in-interest which stands to be
benefited or injured by any judgment in the case.
W/n the DOH has the power to implement the WHA Resolutions under the
Revised Administrative Code even in the absence of a domestic law? Only
the provisions of the Milk Code. (as per the discussion above)
- Section 3, Chapter 1, Title IX of the RAC of 1987 provides that the
DOH shall define the national health policy and can issue orders and
regulations concerning the implementation of established health
policies.
- A.O. No 2005 -0014 which provides the national policy on infant and
young child feeding, does not declare that as part of its policy, the
advertisement or promotion of breastmilk substitutes should be
absolutely prohibited.
- Only the provisions of the Milk Code, but not those of the subsequent
WHA Resolutions, can be validly implemented by the DOH through
the subject RIRR.
W/n the provisions of the RIRR being in accordance with the Milk Code? Not
all of them
- Assailed provisions: [1] extending the coverage to young children; [2]
imposing exclusive breastfeeding for infants from 0-6 months; [3]
imposes an absolute ban on advertising and promotion for breastmilk
substitutes; [4] requiring additional labeling requirements; [5] prohibits
the dissemination of information on infant formula; [6] forbids milk
manufacturers and distributors to extend assistance in research and
continuing education Although the DOH has the power under the Milk
Code to control information regarding breastmilk vis-à-vis breastmilk
substitutes, this power is not absolute because it has no power to
impose an absolute prohibition in the marketing, promotion and
advertising of breastmilk substitutes. Several provisions of the Milk
Code attest to the fact that such power to control information is not
absolute.
- Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code
because such provisions impose an absolute prohibition on
advertising, promotion and marketing of breastmilk substitutes, which
is not provided for in the Milk Code. Section 46 is violative of the Milk
Code because the DOH has exceeded its authority in imposing such
fines or sanctions when the Milk Code does not do so. Other assailed
provisions are in accordance with the Milk Code.
W/n Section 13 of the RIRR providing a sufficient standard? Yes.
- Questioned provision, in addition to Section 26 of Rule VII provide
labeling requirements for breastmilk substitutes  found to be in
consonance with the Milk Code
- The provisions in question provide reasonable means of enforcing
related provisions in the Milk Code.
W/n Section 57 of the RIRR repeals existing laws?
- Section in question only repeals orders, issuances and rules and
regulations, not laws. The provision is valid as it is within the DOH’s
rule-making power.
- An administrative agency has quasi-legislative or rule-making power.
However, such power is limited to making rules and regulation
subjected to the boundaries set by the granting statute and the
Constitution. The power is also subject to the doctrine of non-
delegability and separability of powers. The power, which includes
amending, revising, altering or repealing, is granted to allow for
flexibility in the implementation of the laws.
W/n On Section 4, 5(w), 11, 22, 32, 47 and 52 violates the due process
clause of the Constitution (Article III Section 1)?
- Despite the fact that the present Constitution enshrines free
enterprise as a policy, it nonetheless reserves to the government the
power to intervene whenever necessary to promote the general
welfare… free enterprise does not call for the removal of protective
regulations. It must be clearly explained and proven by competent
evidence just exactly how such protective regulation would result in
the restraint of trade.
- Section 4 – proscription of milk manufacturers’ participation in any
policymaking body; Section 22 – classes and seminars for women
and children; Section 32 – giving of assistance, support and logistics
or training; Section 52 – giving of donations
- In the instant case, petitioner failed to show how the aforementioned
sections hamper the trade of breastmilk substitutes. They also failed
to establish that these activities are essential and indispensable to
their trade.
Disposition: The Petition is Partially Granted. Only sections 4(f), 11 and
46 of A.O. 2006-0014 are declared null and void for being ultra vires.
The TRO is lifted insofar as the rest of the provisions of A.O. 2006-0012
is concerned.
Province of North Cotabato, Province of Zamboanga Del Norte, City of
Iligan, City of Zamboanga, petitioners in intervention Province of
Sultan Kudarat, City of Isabela and Municipality of Linnamon,
Intervenors Franklin Drilon and Adel Tamano and Sec. Mar Roxas
-vs-
Ermita Exec.Sec., Romulo Sec DFA, Andaya Sec DBM, Ventura
Administrator National Mapping & Resource Information Authority and
Davide Jr. and respondents in intervention Muslim Multi-Sectoral
Movement for Peace and Development and Muslim Legal Assistance
Foundation Inc.,
Facts: Subject of this case is the Memorandum of Agreement on the
Ancestral Domain (MOA-AD) which is scheduled to be signed by the
Government of the Republic of the Philippines and the MILF in August 05,
2008. Five cases bearing the same subject matter were consolidated by this
court namely:-
 GR 183591 by the Province of Cotabato and Vice Governor Pinol
on its prayer to declare unconstitutional and to have the MOA-AD
disclosed to the public and be open for public consultation.
 GR 183752 by the City of Zamboanga et al on its prayer to declare
null and void said MOA-AD and to exclude the city to the BJE.
 GR 183893 by the City of Iligan enjoining the respondents from
signing the MOA-AD and additionally impleading Exec. Sec.
Ermita.
 GR 183951 by the Province of Zamboanga del Norte et al, praying
to declare null and void the MOA-AD and without operative effect
and those respondents enjoined from executing the MOA-AD.
 GR 183692 by Maceda, Binay and Pimentel III, praying for a
judgment prohibiting and permanently enjoining respondents from
formally signing and executing the MOA-AD and or any other
agreement derived therefrom or similar thereto, and nullifying the
MOA-AD for being unconstitutional and illegal and impleading
Iqbal.
The MOA-AD is a result of various agreements entered into by and
between the government and the MILF starting in 1996; then in 1997, they
signed the Agreement on General Cessation of Hostilities; and the following
year, they signed the General Framework of Agreement of Intent on August
27, 1998. However, in 1999 and in the early of 2000, the MILF attacked a
number of municipalities in Central Mindanao. In March 2000, they took the
hall of Kauswagan, Lanao del Norte; hence, then Pres. Estrada declared an
all-out war-which tolled the peace negotiation. It was when then Pres.
Arroyo assumed office, when the negotiation regarding peace in Mindanao
continued. MILF was hesitant; however, this negotiation proceeded when
the government of Malaysia interceded. Formal peace talks resumed and
MILF suspended all its military actions. The Tripoli Agreement in 2001 lead
to the ceasefire between the parties. After the death of MILF Chairman
Hashim and Iqbal took over his position, the crafting of MOA-AD in its final
form was born.
 MOA-AD Overview
This is an agreement to be signed by the GRP and the MILF. Used as
reference in the birth of this MOA-AD are the Tripoli Agreement, organic act
of ARMM, IPRA Law, international laws such as ILO Convention 169, the
UN Charter etc., and the principle of Islam i.e compact right entrenchment
(law of compact, treaty and order). The body is divided into concepts and
principles, territory, resources, and governance.
Embodied in concepts and principles, is the definition of Bangsamoro as all
indigenous peoples of Mindanao and its adjacent islands. These people
have the right to self- governance of their Bangsamoro homeland to which
they have exclusive ownership by virtue of their prior rights of occupation in
the land. The MOA-AD goes on to describe the Bangsamoro people as "the
‘First Nation' with defined territory and with a system of government having
entered into treaties of amity and commerce with foreign nations." It then
mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it
grants the authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro.
As defined in the territory of the MOA-AD, the BJE shall embrace the
Mindanao-Sulu-Palawan geographic region, involving the present ARMM,
parts of which are those which voted in the inclusion to ARMM in a
plebiscite. The territory is divided into two categories, “A” which will be
subject to plebiscite not later than 12 mos. after the signing and “B” which
will be subject to plebiscite 25 years from the signing of another separate
agreement. Embodied in the MOA-AD that the BJE shall have jurisdiction
over the internal waters-15kms from the coastline of the BJE territory; they
shall also have "territorial waters," which shall stretch beyond the BJE
internal waters up to the baselines of the Republic of the Philippines (RP)
south east and south west of mainland Mindanao; and that within these
territorial waters, the BJE and the government shall exercise joint
jurisdiction, authority and management over all natural resources. There will
also be sharing of minerals in the territorial waters; but no provision on the
internal waters.
Included in the resources is the stipulation that the BJE is free to enter into
any economic cooperation and trade relations with foreign countries and
shall have the option to establish trade missions in those countries, as well
as environmental cooperation agreements, but not to include aggression in
the GRP. The external defense of the BJE is to remain the duty and
obligation of the government. The BJE shall have participation in
international meetings and events" like those of the ASEAN and the
specialized agencies of the UN. They are to be entitled to participate in
Philippine official missions and delegations for the negotiation of border
agreements or protocols for environmental protection and equitable sharing
of incomes and revenues involving the bodies of water adjacent to or
between the islands forming part of the ancestral domain. The BJE shall
also have the right to explore its resources and that the sharing between the
Central Government and the BJE of total production pertaining to natural
resources is to be 75:25 in favor of the BJE. And they shall have the right to
cancel or modify concessions and TLAs.
And lastly in the governance, the MOA-AD claims that the relationship
between the GRP and MILF is associative i.e. characterized by shared
authority and responsibility. This structure of governance shall be further
discussed in the Comprehensive Compact, a stipulation which was highly
contested before the court. The BJE shall also be given the right to build,
develop and maintain its own institutions, the details of which shall be
discussed in the comprehensive compact as well.
Issues:
1. WON the petitions have complied with the procedural requirements for
the exercise of judicial review
2. WON respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later
initialed the MOA-AD; and
3. WON the contents of the MOA-AD violated the Constitution and the laws
Ruling:
The SC declared the MOA-AD contrary to law and the Constitution.
 On the Procedural Issue
1st issue: As regards the procedural issue, SC upheld that there is indeed a
need for the exercise of judicial review.
The power of judicial review is limited to actual cases or controversy, that is
the court will decline on issues that are hypothetical, feigned problems or
mere academic questions. Related to the requirement of an actual case or
controversy is the requirement of ripeness. The contention of the SolGen is
that there is no issue ripe for adjudication since the MOA-AD is only a
proposal and does not automatically create legally demandable rights and
obligations. Such was denied.
The SC emphasized that the petitions are alleging acts made in violation of
their duty or in grave abuse of discretion. Well-settled jurisprudence states
that acts made by authority which exceed their authority, by violating their
duties under E.O. No. 3 and the provisions of the Constitution and statutes,
the petitions make a prima facie case for Certiorari, Prohibition, and
Mandamus, and an actual case or controversy ripe for adjudication exists.
When an act of a branch of government is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of
the judiciary to settle the dispute. This is aside from the fact that concrete
acts made under the MOA-AD are not necessary to render the present
controversy ripe and that the law or act in question as not yet effective does
not negate ripeness.
With regards to the locus standi, the court upheld the personalities of the
Province of Cotabato, Province of Zamboanga del norte, City of Iligan, City
of Zamboanga, petitioners in intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linnamon to have locus standi since it is their
LGUs which will be affected in whole or in part if include within the BJE.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as
taxpayers, assert that government funds would be expended for the conduct
of an illegal and unconstitutional plebiscite to delineate the BJE territory. On
that score alone, they can be given legal standing. Senator Mar Roxas is
also given a standing as an intervenor. And lastly, the Intervening
respondents Muslim Multi-Sectoral Movement for Peace and Development,
an advocacy group for justice and the attainment of peace and prosperity in
Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a non-
government organization of Muslim lawyers since they stand to be benefited
or prejudiced in the resolution of the petitions regarding the MOA-AD.
On the contention of mootness of the issue considering the signing of the
MOA-AD has already been suspended and that the President has already
disbanded the GRP, the SC disagrees. The court reiterates that the moot
and academic principle is a general rule only, the exceptions, provided in
David v. Macapagal-Arroyo, that it will decide cases, otherwise moot and
academic, if it finds that (a) there is a grave violation of the Constitution; (b)
the situation is of exceptional character and paramount public interest is
involved; (c) the constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and (d) the case is
capable of repetition yet evading review; and that where there is a voluntary
cessation of the activity complained of by the defendant or doer, it does not
divest the court the power to hear and try the case especially when the
plaintiff is seeking for damages or injunctive relief.
Clearly, the suspension of the signing of the MOA-AD and the disbandment
of the GRP did not render the petitions moot and academic. The MOA-AD is
subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this case,
the government and its negotiating entity.
At all events, the Court has jurisdiction over most if not the rest of the
petitions. There is a reasonable expectation that petitioners will again be
subjected to the same problem in the future as respondents' actions are
capable of repetition, in another or any form. But with respect to the prayer
of Mandamus to the signing of the MOA-AD, such has become moot and
academic considering that parties have already complied thereat.
 On the Substantive Issue
2nd Issue: The SC ruled that the MOA-AD is a matter of public concern,
involving as it does the sovereignty and territorial integrity of the State,
which directly affects the lives of the public at large.
As enshrined in the Constitution, the right to information guarantees the right
of the people to demand information, and integrated therein is the
recognition of the duty of the officialdom to give information even if nobody
demands. The policy of public disclosure establishes a concrete ethical
principle for the conduct of public affairs in a genuinely open democracy,
with the people's right to know as the centerpiece. It is a mandate of the
State to be accountable by following such policy. These provisions are vital
to the exercise of the freedom of expression and essential to hold public
officials at all times accountable to the people.
Also, it was held that such stipulation in the Constitution is self-executory
with reasonable safeguards —the effectivity of which need not await the
passing of a statute. Hence, it is essential to keep open a continuing
dialogue or process of communication between the government and the
people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and
be responsive to the people's will.
The idea of a feedback mechanism was also sought for since it is corollary
to the twin rights to information and disclosure. And feedback means not
only the conduct of the plebiscite as per the contention of the respondents.
Clearly, what the law states is the right of the petitioners to be consulted in
the peace agenda as corollary to the constitutional right to information and
disclosure. As such, respondent Esperon committed grave abuse of
discretion for failing to carry out the furtive process by which the MOA-AD
was designed and crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereto. Moreover, he cannot invoke of executive privilege
because he already waived it when he complied with the Court’s order to the
unqualified disclosure of the official copies of the final draft of the MOA-AD.
In addition, the LGU petitioners has the right to be involved in matters
related to such peace talks as enshrined in the State policy. The MOA-AD is
one peculiar program that unequivocally and unilaterally vests ownership of
a vast territory to the Bangsamoro people, which could pervasively and
drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.
With respect to the ICC/IPPs they also have the right to participate fully at all
levels on decisions that would clearly affect their lives, rights and
destinies. The MOA-AD is an instrument recognizing ancestral domain,
hence it should have observed the free and prior informed consent to the
ICC/IPPs; but it failed to do so. More specially noted by the court is the
excess in authority exercised by the respondent—since they allowed
delineation and recognition of ancestral domain claim by mere agreement
and compromise; such power cannot be found in IPRA or in any law to the
effect.
3rd issue: With regard to the provisions of the MOA-AD, there can be no
question that they cannot be all accommodated under the present
Constitution and laws. Not only its specific provisions but the very concept
underlying them:

 On matters of the Constitution.
Association as the type of relationship governing between the parties.
The parties manifested that in crafting the MOA-AD, the term association
was adapted from the international law. In international law, association
happens when two states of equal power voluntarily establish durable links
i.e. the one state, the associate, delegates certain responsibilities to the
other, principal, while maintaining its international status as state; free
association is a middle ground between integration and independence. The
MOA-AD contains many provisions that are consistent with the international
definition of association which fairly would deduced that the agreement vest
into the BJE a status of an associated state, or at any rate, a status closely
approximating it. The court vehemently objects because the principle of
association is not recognized under the present Constitution.
 On the recognition of the BJE entity as a state. The concept
implies power beyond what the Constitution can grant to a local
government; even the ARMM do not have such recognition; and
the fact is such concept implies recognition of the associated entity
as a state. There is nothing in the law that contemplate any state
within the jurisdiction other than the Philippine State, much less
does it provide for a transitory status that aims to prepare any part
of Philippine territory for independence. The court disagrees with
the respondent that the MOA-AD merely expands the ARMM. BJE
is a state in all but name as it meets the criteria of a state laid
down in the Montevideo Convention, namely, a permanent
population, a defined territory, a government, and a capacity to
enter into relations with other states. As such the MOA-AD clearly
runs counter to the national sovereignty and territorial integrity of
the Republic.
 On the expansion of the territory of the BJE. The territory included
in the BJE includes those areas who voted in the plebiscite for
them to become part of the ARMM. The stipulation of the
respondents in the MOA-AD that these areas need not participate
in the plebiscite is in contrary to the express provision of the
Constitution. The law states that that "[t]he creation of the
autonomous region shall be effective when approved by a majority
of the votes cast by the constituent units in a plebiscite called for
the purpose, provided that only provinces, cities, and geographic
areas voting favorably in such plebiscite shall be included in the
autonomous region." Clearly, assuming that the BJE is just an
expansion of the ARMM, it would still run afoul the wordings of the
law since those included in its territory are areas which voted in its
inclusion to the ARMM and not to the BJE.
 On the powers vested in the BJE as an entity. The respondents
contend that the powers vested to the BJE in the MOA-AD shall be
within sub-paragraph 9 of sec 20, art. 10 of the constitution and
that a mere passage of a law is necessary in order to vest in the
BJE powers included in the agreement. The Court was not
persuaded. SC ruled that such conferment calls for amendment of
the Constitution; otherwise new legislation will not concur with the
Constitution. Take for instance the treaty making power vested to
the BJE in the MOA-AD. The Constitution is clear that only the
President has the sole organ and is the country’s sole
representative with foreign nation. Should the BJE be granted with
the authority to negotiate with other states, the former provision
must be amended consequently. Section 22 must also be
amended—the provision of the law that promotes national unity
and development. Because clearly, associative arrangement of the
MOA-AD does not epitomize national unity but rather, of
semblance of unity. The associative ties between the BJE and the
national government, the act of placing a portion of Philippine
territory in a status which, in international practice, has generally
been a preparation for independence, is certainly not conducive to
national unity.
 On matters of domestic statutes.
o Provisions contrary to the organic act of ARMM. RA 9054 is a bar to the
adoption of the definition of Bangsamoro people used in the MOA-AD. Said
law specifically distinguishes between the Bangsamoro people and the
Tribal peoples that is contrary with the definition of the MOA-AD which
includes all indigenous people of Mindanao.
o Provisions contrary to the IPRA law. Also, the delineation and recognition
of the ancestral domain is a clear departure from the procedure embodied in
the IPRA law which ironically is the term of reference of the MOA-AD.
 On matters of international law.
The Philippines adopts the generally accepted principle of international law
as part of the law of the land. In international law, the right to self-
determination has long been recognized which states that people can freely
determine their political status and freely pursue their economic, social, and
cultural development. There are the internal and external self-
determination—internal, meaning the self-pursuit of man and the external
which takes the form of the assertion of the right to unilateral secession.
This principle of self-determination is viewed with respect accorded to the
territorial integrity of existing states. External self-determination is only
afforded in exceptional cases when there is an actual block in the
meaningful exercise of the right to internal self-determination. International
law, as a general rule, subject only to limited and exceptional cases,
recognizes that the right of disposing national territory is essentially an
attribute of the sovereignty of every state.
On matters relative to indigenous people, international law states that
indigenous peoples situated within states do not have a general right to
independence or secession from those states under international law, but
they do have rights amounting to what was discussed above as the right to
internal self-determination; have the right to autonomy or self-government in
matters relating to their internal and local affairs, as well as ways and means
for financing their autonomous functions; have the right to the lands,
territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.
Clearly, there is nothing in the law that required the State to guarantee the
indigenous people their own police and security force; but rather, it shall be
the State, through police officers, that will provide for the protection of the
people. With regards to the autonomy of the indigenous people, the law
does not obligate States to grant indigenous peoples the near-independent
status of a state; since it would impair the territorial integrity or political unity
of sovereign and independent states.
 On the basis of the suspensive clause.
o It was contented by the respondents that grave abuse of discretion
cannot be had, since the provisions assailed as unconstitutional shall not
take effect until the necessary changes to the legal framework are effected.
The Court is not persuaded. This suspensive clause runs contrary to
Memorandum of Instructions from the President stating that negotiations
shall be conducted in accordance to the territorial integrity of the country—
such was negated by the provision on association incorporated in the MOA-
AD. Apart from this, the suspensive clause was also held invalid because of
the delegated power to the GRP Peace panel to advance peace talks even if
it will require new legislation or even constitutional amendments. The legality
of the suspensive clause hence hinges on the query whether the President
can exercise such power as delegated by EO No.3 to the GRP Peace
Panel. Well settled is the rule that the President cannot delegate a power
that she herself does not possess. The power of the President to conduct
peace negotiations is not explicitly mentioned in the Constitution but is
rather implied from her powers as Chief Executive and Commander-in-chief.
As Chief Executive, the President has the general responsibility to promote
public peace, and as Commander-in-Chief, she has the more specific duty
to prevent and suppress rebellion and lawless violence.
As such, the President is given the leeway to explore, in the course of peace
negotiations, solutions that may require changes to the Constitution for their
implementation. At all event, the president may not, of course, unilaterally
implement the solutions that she considers viable; but she may not be
prevented from submitting them as recommendations to Congress, which
could then, if it is minded, act upon them pursuant to the legal procedures
for constitutional amendment and revision.
While the President does not possess constituent powers - as those powers
may be exercised only by Congress, a Constitutional Convention, or the
people through initiative and referendum - she may submit proposals for
constitutional change to Congress in a manner that does not involve the
arrogation of constituent powers. Clearly, the principle may be inferred that
the President - in the course of conducting peace negotiations - may validly
consider implementing even those policies that require changes to the
Constitution, but she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that body were
assumed as a certainty. The President’s power is limited only to the
preservation and defense of the Constitution but not changing the same but
simply recommending proposed amendments or revisions.
o The Court ruled that the suspensive clause is not a suspensive condition
but is a term because it is not a question of whether the necessary changes
to the legal framework will take effect; but, when. Hence, the stipulation is
mandatory for the GRP to effect the changes to the legal framework –which
changes would include constitutional amendments. Simply put, the
suspensive clause is inconsistent with the limits of the President's authority
to propose constitutional amendments, it being a virtual guarantee that the
Constitution and the laws of the Republic of the Philippines will certainly be
adjusted to conform to all the "consensus points" found in the MOA-AD.
Hence, it must be struck down as unconstitutional.
 On the concept underlying the MOA-AD.
While the MOA-AD would not amount to an international agreement or
unilateral declaration binding on the Philippines under international law,
respondents' act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective. The MOA-
AD not being a document that can bind the Philippines under international
law notwithstanding, respondents' almost consummated act of guaranteeing
amendments to the legal framework is, by itself, sufficient to constitute grave
abuse of discretion. The grave abuse lies not in the fact that they
considered, as a solution to the Moro Problem, the creation of a state within
a state, but in their brazen willingness to guarantee that Congress and the
sovereign Filipino people would give their imprimatur to their
solution.Upholding such an act would amount to authorizing a usurpation of
the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.
(DIGEST 2)
ISSUES:
1. Whether or not the constitutionality and the legality of the MOA is ripe for
adjudication;
2. Whether or not there is a violation of the people's right to information on
matters of public concern (Art 3 Sec. 7) under a state policy of full disclosure
of all its transactions involving public interest (Art 2, Sec 28) including public
consultation under RA 7160 (Local Government Code of 1991)
3. Whether or not the signing of the MOA, the Government of the Republic
of the Philippines would be binding itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not recognized
by law;
b) to revise or amend the Constitution and existing laws to conform to the
MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front
for ancestral domain in violation of Republic Act No. 8371 (THE
INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)
RULINGS:
1. Yes, the petitions are ripe for adjudication. The failure of the respondents
to consult the local government units or communities affected constitutes a
departure by respondents from their mandate under EO No. 3. Moreover,
the respondents exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the Constitution by
any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public
interest or of transcendental importance, the Court grants the petitioners,
petitioners-in-intervention and intervening respondents the requisite locus
standi in keeping with the liberal stance adopted in David v. Macapagal-
Arroyo.
In Pimentel, Jr. v. Aguirre, this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of
the challenged action, the dispute is said to have ripened into a judicial
controversy even without any other overt act . Indeed, even a singular
violation of the Constitution and/or the law is enough to awaken judicial
duty.x x x x
By the same token, when an act of the President, who in our constitutional
scheme is a coequal of Congress, is seriously alleged to have infringed the
Constitution and the laws x x x settling the dispute becomes the duty and
the responsibility of the courts.
That the law or act in question is not yet effective does not negate ripeness.
2. Yes. The Court finds that there is a grave violation of the Constitution
involved in the matters of public concern (Sec 7 Art III) under a state policy
of full disclosure of all its transactions involving public interest (Art 2, Sec 28)
including public consultation under RA 7160 (Local Government Code of
1991).
(Sec 7 ArtIII) The right to information guarantees the right of the people to
demand information, while Sec 28 recognizes the duty of officialdom to give
information even if nobody demands. The complete and effective exercise of
the right to information necessitates that its complementary provision on
public disclosure derive the same self-executory nature, subject only to
reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern
involving public interest in the highest order. In declaring that the right to
information contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no distinction as to the
executory nature or commercial character of the agreement.
E.O. No. 3 itself is replete with mechanics for continuing consultations on
both national and local levels and for a principal forum for consensus-
building. In fact, it is the duty of the Presidential Adviser on the Peace
Process to conduct regular dialogues to seek relevant information,
comments, advice, and recommendations from peace partners and
concerned sectors of society.
3.
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not recognized
by law;
Yes. The provisions of the MOA indicate, among other things, that the
Parties aimed to vest in the BJE the status of an associated state or, at
any rate, a status closely approximating it.
The concept of association is not recognized under the present
Constitution.
No province, city, or municipality, not even the ARMM, is recognized under
our laws as having an “associative” relationship with the national
government. Indeed, the concept implies powers that go beyond anything
ever granted by the Constitution to any local or regional government. It also
implies the recognition of the associated entity as a state. The
Constitution, however, 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.
The BJE is a far more powerful entity than the autonomous region
recognized in the Constitution. It is not merely an expanded version of the
ARMM, the status of its relationship with the national government being
fundamentally different from that of the ARMM. Indeed, BJE is a state in all
but name as it meets the criteria of a state laid down in the Montevideo
Convention, namely, a permanent population, a defined territory, a
government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any
portion of Philippine territory, the spirit animating it – which has betrayed
itself by its use of the concept of association – runs counter to the national
sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national
government and the BJE being itself contrary to the present Constitution, it
is not surprising that many of the specific provisions of the MOA-AD on the
formation and powers of the BJE are in conflict with the Constitution and the
laws. The BJE is more of a state than an autonomous region. But even
assuming that it is covered by the term “autonomous region” in the
constitutional provision just quoted, the MOA-AD would still be in conflict
with it.
b) to revise or amend the Constitution and existing laws to conform to the
MOA:
The MOA-AD provides that “any provisions of the MOA-AD requiring
amendments to the existing legal framework shall come into force upon the
signing of a Comprehensive Compact and upon effecting the necessary
changes to the legal framework,” implying an amendment of the
Constitution to accommodate the MOA-AD. This stipulation, in effect,
guaranteed to the MILF the amendment of the Constitution .
It will be observed that the President has authority, as stated in her oath of
office, only to preserve and defend the Constitution. Such presidential power
does not, however, extend to allowing her to change the Constitution, but
simply to recommend proposed amendments or revision. As long as she
limits herself to recommending these changes and submits to the proper
procedure for constitutional amendments and revision, her mere
recommendation need not be construed as an unconstitutional act.
The “suspensive clause” in the MOA-AD viewed in light of the above-
discussed standards.
Given the limited nature of the President’s authority to propose
constitutional amendments, she cannot guarantee to any third party
that the required amendments will eventually be put in place, nor even
be submitted to a plebiscite. The most she could do is submit these
proposals as recommendations either to Congress or the people, in whom
constituent powers are vested.
c) to concede to or recognize the claim of the Moro Islamic Liberation Front
for ancestral domain in violation of Republic Act No. 8371 (THE
INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)
This strand begins with the statement that it is “the birthright of all Moros and
all Indigenous peoples of Mindanao to identify themselves and be accepted
as ‘Bangsamoros.’” It defines “Bangsamoro people” as the natives or
original inhabitants of Mindanao and its adjacent islands including Palawan
and the Sulu archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses.
Thus, the concept of “Bangsamoro,” as defined in this strand of the MOA-
AD, includes not only “Moros” as traditionally understood even by Muslims,
but all indigenous peoples of Mindanao and its adjacent islands. The MOA-
AD adds that the freedom of choice of indigenous peoples shall be
respected. What this freedom of choice consists in has not been specifically
defined. The MOA-AD proceeds to refer to the “Bangsamoro homeland,” the
ownership of which is vested exclusively in the Bangsamoro people by virtue
of their prior rights of occupation. Both parties to the MOA-AD acknowledge
that ancestral domain does not form part of the public domain.
Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997
provides for clear-cut procedure for the recognition and delineation of
ancestral domain, which entails, among other things, the observance of the
free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the
Executive Department or any government agency the power to delineate
and recognize an ancestral domain claim by mere agreement or
compromise.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires
all national offices to conduct consultations beforeany project or program
critical to the environment and human ecology including those that may call
for the eviction of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people, which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total
environment.
CONCLUSION:
In sum, the Presidential Adviser on the Peace Process committed grave
abuse of discretion when he failed to carry out the pertinent consultation
process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic
Act No. 8371. The furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority, and amounts to
a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.
It illustrates a gross evasion of positive duty and a virtual refusal to perform
the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws.
Not only its specific provisions but the very concept underlying them,
namely, the associative relationship envisioned between the GRP and the
BJE, are unconstitutional, for the concept presupposes that the associated
entity is a state and implies that the same is on its way to independence.
BAYAN MUNA, as represented by REP. SATUR OCAMPO, ET AL.,
Petitioners, v. ALBERTO ROMULO, in his capacity as Executive
Secretary, et al., Respondents.
G.R. No. 159618 : February 1, 2011VELASCO, JR.,J.:
FACTS: Having a key determinative bearing on this case is the Rome
Statute establishing the International Criminal Court (ICC) with the power to
exercise its jurisdiction over persons for the most serious crimes of
international concern and shall be complementary to the national criminal
jurisdictions. The serious crimes adverted to cover those considered grave
under international law, such as genocide, crimes against humanity, war
crimes, and crimes of aggression.
On December 28, 2000, the RP, through Charge d'Affaires Enrique A.
Manalo, signed the Rome Statute which, by its terms,is subject to
ratification, acceptance or approval by the signatory states. As of the filing of
the instant petition,only 92 out of the 139 signatory countries appear to have
completed the ratification, approval and concurrence process.The
Philippines is not among the 92.
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US
Embassy Note No. 0470 to the Department of Foreign Affairs (DFA)
proposing the terms of the non-surrender bilateral agreement (Agreement,
hereinafter) between the USA and the RP.
ViaExchange of Notes No. BFO-028-03 dated May 13, 2003 (E/N BFO-028-
03, hereinafter), the RP, represented by then DFA Secretary Ople, agreed
with and accepted the US proposals embodied under the US Embassy Note
adverted to and put in effect the Agreement with the US government.Inesse,
theAgreementaims to protect what it refers to and defines aspersons of the
RP and US from frivolous and harassment suits that might be brought
against them in international tribunals.[8]It is reflective of the increasing pace
of the strategic security and defense partnership between the two
countries.As of May 2, 2003, similar bilateral agreements have been
effected by and between theUSand 33 other countries.
In response to a query of then Solicitor General Alfredo L. Benipayo on the
status of the non-surrender agreement, Ambassador Ricciardone replied in
his letter of October 28, 2003 that the exchange of diplomatic notes
constituted a legally binding agreement under international law; and that,
under US law, the said agreement did not require the advice and consent of
the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion to
respondents in concluding and ratifying the Agreement and prays that it be
struck down as unconstitutional, or at least declared as without force and
effect.
For their part, respondents question petitioners standing to maintain a suit
and counter that the Agreement, being in the nature of an executive
agreement, does not require Senate concurrence for its efficacy. And for
reasons detailed in their comment, respondents assert the constitutionality
of the Agreement.
ISSUES:
1) whether or not the Agreement was contracted validly, which resolves
itself into the question of whether or not respondents gravely abused their
discretion in concluding it; and
2) whether or not the Agreement,which has not been submitted to the
Senate for concurrence, contravenes and undermines the Rome Statute and
other treaties.But because respondents expectedly raised it, we shall first
tackle the issue of petitioners legal standing.
HELD: This petition is bereft of merit.
REMEDIAL LAW:locus standi of petitioner
Locus standi is a right of appearance in a court of justice on a given
question. Specifically, it is a party's personal and substantial interest in a
case where he has sustained or will sustain direct injury as a result of the
act being challenged, and calls for more than just a generalized grievance.
The term interest refers to material interest, as distinguished from one that is
merely incidental.The rationale for requiring a party who challenges the
validity of a law or international agreement to allege such a personal stake in
the outcome of the controversy is to assure the concrete adverseness which
sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.
Locus standi, however, is merely a matter of procedure and it has been
recognized that, in some cases, suits are not brought by parties who have
been personally injured by the operation of a law or any other government
act, but by concerned citizens, taxpayers, or voters who actually sue in the
public interest.Consequently, in a catena of cases, this Court has invariably
adopted a liberal stance on locus standi.
Going by the petition, petitioners representatives pursue the instant suit
primarily as concerned citizens raising issues of transcendental importance,
both for the Republic and the citizenry as a whole.
When suing as a citizen to question the validity of a law or other government
action, a petitioner needs to meet certain specific requirements before he
can be clothed with standing.Francisco, Jr. v. Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino, Inc.expounded on this
requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and
legislators when specific requirements have been met have been given
standing by this Court.
When suing as acitizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some
indefinite way.It must appear that the person complaining has been or is
about to be denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by reason of
the statute or act complained of.In fine, when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the
requirement of personal interest.
In the case at bar, petitioners representatives have complied with the
qualifying conditions or specific requirements exacted under thelocus
standirule.As citizens, their interest in the subject matter of the petition is
direct and personal.At the very least, their assertions questioning
theAgreementare made of a public right,i.e., to ascertain that
theAgreementdid not go against established national policies, practices, and
obligations bearing on the States obligation to the community of nations.
POLITICAL LAW: Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its
threshold posture being that E/N BFO-028-03 cannot be a valid medium for
concluding the Agreement.
Petitioners contention perhaps taken unaware of certain well-recognized
international doctrines, practices, and jargon is untenable. One of these is
the doctrine of incorporation, as expressed in Section 2, Article II of the
Constitution, wherein the Philippines adopts the generally accepted
principles of international law and international jurisprudence as part of the
law of the land and adheres to the policy of peace, cooperation, and amity
with all nations.An exchange of notes falls into the category of inter-
governmental agreements,which is an internationally accepted form of
international agreement. The United Nations Treaty Collections (Treaty
Reference Guide) defines the term as follows:
An exchange of notes is a record of a routine agreement, that has many
similarities with the private law contract.The agreement consists of the
exchange of two documents, each of the parties being in the possession of
the one signed by the representative of the other. Under the usual
procedure, the accepting State repeats the text of the offering State to
record its assent.The signatories of the letters may be government
Ministers, diplomats or departmental heads.The technique of exchange of
notes is frequently resorted to, either because of its speedy procedure, or,
sometimes, to avoid the process of legislative approval.
In another perspective, the terms exchange of notes and executive
agreements have been used interchangeably, exchange of notes being
considered a form of executive agreement that becomes binding through
executive action. On the other hand, executive agreements concluded by
the President sometimes take the form of exchange of notes and at other
times that of more formal documents denominated agreements or protocols.
As former US High Commissioner to the Philippines Francis B. Sayre
observed in his work,The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other
governments ends and agreements whether denominated executive
agreements or exchange of notes or otherwise begin, may sometimes be
difficult of ready ascertainment. It is fairly clear from the foregoing
disquisition that E/NBFO-028-03be it viewed as the Non-Surrender
Agreement itself, or as an integral instrument of acceptance thereof or as
consent to be bound is a recognized mode of concluding a legally binding
international written contract among nations.
POLITICAL LAW: Senate Concurrence Not Required; treaties
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as
an international agreement concluded between states in written form and
governed by international law,whether embodied in a single instrument or in
two or more related instrumentsand whatever its particular
designation.International agreements may be in the form of (1) treaties that
require legislative concurrence after executive ratification; or (2) executive
agreements that are similar to treaties, except that they do not require
legislative concurrence and are usually less formal and deal with a narrower
range of subject matters than treaties.
Under international law, there is no difference between treaties and
executive agreements in terms of their binding effects on the contracting
states concerned,as long as the negotiating functionaries have remained
within their powers.Neither,on the domestic sphere, can one be held valid if
it violates the Constitution.Authorities are, however, agreed that one is
distinct from another for accepted reasons apart from the concurrence-
requirement aspect. As has been observed by US constitutional scholars, a
treaty has greater dignity than an executive agreement, because its
constitutional efficacy is beyond doubt, a treaty having behind it the authority
of the President, the Senate, and the people;a ratified treaty, unlike an
executive agreement, takes precedence over any prior statutory enactment.
POLITICAL LAW: The Agreement Not in Contravention of the Rome
Statute
Contrary to petitioners pretense, theAgreementdoes not contravene or
undermine, nor does it differ from, the Rome Statute.Far from going against
each other, one complements the other.As a matter of fact, the principle of
complementarity underpins the creation of the ICC.As aptly pointed out by
respondents and admitted by petitioners, the jurisdiction of the ICC is to be
complementary to national criminal jurisdictions of the signatory states. Art.
1 of the Rome Statute pertinently provides:
Article 1
The Court
AnInternational Crimininal Court(the Court) is hereby established.It x x xshall
have the power to exercise its jurisdictionover persons for the most serious
crimes of international concern, as referred to in this Statute, andshall be
complementary to national criminal jurisdictions.The jurisdiction and
functioning of the Court shall be governed by the provisions of this Statute.
Significantly, the sixth preambular paragraph of the Rome Statute declares
that it is the duty of every State to exercise its criminal jurisdiction over those
responsible for international crimes.This provision indicates that primary
jurisdiction over the so-called international crimes rests, at the first instance,
with the state where the crime was committed; secondarily, with the ICC in
appropriate situations contemplated under Art. 17, par. 1of theRomeStatute.
Of particular note is the application of the principle ofne bis in idemunder
par. 3 of Art. 20, Rome Statute, which again underscores the primacy of the
jurisdiction of a state vis-a-vis that of the ICC.As far as relevant, the
provision states that no person who has been tried by another court for
conduct [constituting crimes within its jurisdiction] shall be tried by the
[International Criminal] Court with respect to the same conduct.
The foregoing provisions of the Rome Statute, taken collectively, argue
against the idea of jurisdictional conflict between the Philippines, as party to
the non-surrender agreement, and the ICC; or the idea of
theAgreementsubstantially impairing the value of the RPs undertaking under
the Rome Statute.Ignoring for a while the fact that the RP signed the Rome
Statute ahead of the Agreement, it is abundantly clear to us that the Rome
Statute expressly recognizes the primary jurisdiction of states, like the RP,
over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the
signatory states are unwilling or unable to prosecute.
Given the above consideration, petitioners suggestionthat the RP, by
entering into theAgreement, violated its duty required by the imperatives of
good faith and breached its commitment under the Vienna Conventionto
refrain from performing any act tending to impair the value of a treaty, e.g.,
the Rome Statutehas to be rejected outright.For nothing in the provisions of
the Agreement,in relation to the Rome Statute, tends to diminish the efficacy
of the Statute, let alone defeats the purpose of the ICC.Lest it be
overlooked, the Rome Statute contains a proviso that enjoins the ICC from
seeking the surrender of an erring person, should the process require the
requested state to perform an act that would violate some international
agreement it has entered into.We refer to Art. 98(2) of the Rome Statute,
which reads:
Article 98
Cooperation with respect to waiver of immunity and consent to surrender
2. The Court may not proceed with a request for surrender which would
require the requested State to act inconsistently with its obligations under
international agreements pursuant to which the consent of a sending State
is required to surrender a person of that State to the Court, unless the Court
can first obtain the cooperation of the sending State for the giving of consent
for the surrender.
Moreover, under international law, there is a considerable difference
between a State-Party and a signatory to a treaty. Under the Vienna
Convention on the Law of Treaties, a signatory state is only obliged to
refrain from acts which would defeat the object and purpose of a
treaty;whereas a State-Party, on the other hand, is legally obliged to follow
all the provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory
to the Rome Statute and not a State-Party for lack of ratification by the
Senate. Thus, it is only obliged to refrain from acts which would defeat the
object and purpose of the Rome Statute. Any argument obliging the
Philippines to follow any provision in the treaty would be premature.
As a result, petitioners argument that State-Parties with non-surrender
agreements are prevented from meeting their obligations under the Rome
Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only
legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that the
Agreement is not incompatible with the Rome Statute. Specifically, Art. 90(4)
provides that if the requesting State is a State not Party to this Statute the
requested State, if it is not under an international obligation to extradite the
person to the requesting State, shall give priority to the request for surrender
from the Court In applying the provision, certain undisputed facts should be
pointed out:first, the US is neither a State-Party nor a signatory to the Rome
Statute; and second, there is an international agreement between the US
and the Philippines regarding extradition or surrender of persons, i.e., the
Agreement. Clearly, even assuming that the Philippines is a State-Party, the
Rome Statute still recognizes the primacy of international agreements
entered into between States, even when one of the States is not a State-
Party to the Rome Statute.
POLITICAL LAW: Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its
sovereignty by bargaining away the jurisdiction of the ICC to prosecute US
nationals, government officials/employees or military personnel who commit
serious crimes of international concerns in the Philippines.Formulating
petitioners argument a bit differently, the RP,by entering into the Agreement,
does thereby abdicate its sovereignty, abdication being done by its waiving
or abandoning its right to seek recourse through the Rome Statute of the
ICC for erring Americans committing international crimes in the country.
We are not persuaded.As it were, theAgreementis but a form of affirmance
and confirmance of thePhilippines national criminal jurisdiction.National
criminal jurisdiction being primary, as explained above, it is always the
responsibility and within the prerogative of the RP either to prosecute
criminal offenses equally covered by the Rome Statute or to accede to the
jurisdiction of the ICC.Thus, thePhilippinesmay decide to try persons of
theUS, as the term is understood in theAgreement, under our national
criminal justice system.Or it may opt not to exercise its criminal jurisdiction
over its erring citizens or overUSpersons committing high crimes in the
country and defer to the secondary criminal jurisdiction of the ICC over
them.As to persons of the US whom the Philippines refuses to prosecute,
the country would, in effect, accorddiscretion to the US to exercise either its
national criminal jurisdiction over the person concerned or to give its consent
to the referral of the matter to the ICC for trial.In the same breath,
theUSmust extend the same privilege to thePhilippineswith respect to
persons of the RP committing high crimes withinUSterritorial jurisdiction.
To be sure, the nullity of the subject non-surrender agreement cannot be
predicated on the postulate that some of its provisions constitute a virtual
abdication of its sovereignty.Almost every time a state enters into an
international agreement, it voluntarily sheds off part of its sovereignty.The
Constitution, as drafted, did not envision a reclusivePhilippinesisolated from
the rest of the world.It even adheres, as earlier stated, to the policy of
cooperation and amity with all nations.
By their nature, treaties and international agreements actually have a
limiting effect on the otherwise encompassing and absolute nature of
sovereignty.By their voluntary act, nations may decide to surrender or waive
some aspects of their state power or agree to limit the exercise of their
otherwise exclusive and absolute jurisdiction.The usual underlying
consideration in this partial surrender may be the greater benefits derived
from a pact or a reciprocal undertaking of one contracting party to grant the
same privileges or immunities to the other.On the rationale that the
Philippines has adopted the generally accepted principles of international
law aspart of the law of the land, a portion of sovereignty may be waived
without violating the Constitution. Such waiver does not amount to an
unconstitutional diminution or deprivation of jurisdiction of Philippine courts.
POLITICAL LAW: Agreement Not Immoral/Not at Variance with
Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for
imposing immoral obligations and/or being at variance with allegedly
universally recognized principles of international law.The immoral aspect
proceeds from the fact that the Agreement, as petitioner would put it, leaves
criminals immune from responsibility for unimaginable atrocities that deeply
shock the conscience of humanity; it precludes our country from delivering
an American criminal to the ICC.
The above argument is a kind of recycling of petitioner's earlier position,
which, as already discussed, contends that the RP, by entering into the
Agreement,virtually abdicated its sovereignty and in the process undermined
its treaty obligations under the Rome Statute, contrary to international law
principles.
The Court is not persuaded. Suffice it to state in this regard that the non-
surrender agreement, as aptly described by the Solicitor General, is an
assertion by the Philippines of its desire to try and punish crimes under its
national law. The agreement is a recognition of the primacy and competence
of the country's judiciary to try offenses under its national criminal laws and
dispense justice fairly and judiciously.
Petitioner, we believe, labors under the erroneous impression that the
Agreement would allow Filipinos and Americans committing high crimes of
international concern to escape criminal trial and punishment.This is
manifestly incorrect.Persons who may have committed acts penalized under
the Rome Statute can be prosecuted and punished in the Philippines or in
the US; or with the consent of the RP or the US, before the ICC, assuming,
for the nonce, that all the formalities necessary to bind both countries to the
Rome Statute have been met.For perspective, what the Agreement
contextually prohibits is the surrender by either party of individuals to
international tribunals, like the ICC, without the consent of the other party,
which may desire to prosecute the crime under its existing laws.With the
view we take of things, there is nothing immoral or violative of international
law concepts in the act of the Philippines of assuming criminal jurisdiction
pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.
REMEDIAL LAW: No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates
concurrence in the Agreement.And without specifically saying so, petitioner
would argue that the non-surrender agreement was executed by the
President, thru the DFA Secretary, in grave abuse of discretion.
The Court need not delve on and belabor the first portion of the above
posture of petitioner, the same having been discussed at length earlier
on.As to the second portion, We wish to state thatpetitioner virtually faults
the President for performing, through respondents, a task conferred the
President by the Constitutionthe power to enter into international
agreements.
By constitutional fiat and by the nature of his or her office, the President, as
head of state and government, is the sole organ and authority in the external
affairs of the country. The Constitution vests in the President the power to
enter into international agreements, subject, in appropriate cases, to the
required concurrence votes of the Senate.But as earlier indicated, executive
agreements may be validly entered into without such concurrence.As the
President wields vast powers and influence, her conduct in the external
affairs of the nation is, asBayanwould put it, executive altogether.The right of
the President to enter into or ratify binding executive agreements has been
confirmed by long practice.
In thus agreeing to conclude theAgreementthru E/N BFO-028-03, then
President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign
Affairs, acted within the scope of the authority and discretion vested in her
by the Constitution.At the end of the day, the Presidentby ratifying, thru her
deputies, the non-surrender agreementdid nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her office.
POLITICAL LAW: Agreement Need Not Be in the Form of a Treaty
A view is advanced that the Agreement amends existing municipal laws on
the States obligation in relation to grave crimes against the law of
nations,i.e., genocide, crimes against humanity and war crimes.Relying on
the above-quoted statutory proviso, the view posits that the Philippine is
required to surrender to the proper international tribunal those persons
accused of the grave crimes defined under RA 9851, if it does not exercise
its primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to
prosecute a foreign national for violations of RA 9851, the Philippines has
only two options, to wit: (1) surrender the accused to the proper international
tribunal; or (2) surrender the accused to another State if such surrender is
pursuant to the applicable extradition laws and treaties.But the Philippines
may exercise these options only in cases where another court or
international tribunal is already conducting the investigation or undertaking
the prosecution of such crime; otherwise, the Philippines must prosecute the
crime before its own courts pursuant to RA 9851.
Posing the situation of a US national under prosecution by an international
tribunal for any crime under RA 9851, the Philippines has the option to
surrender such US national to the international tribunal if it decides not to
prosecute such US national here.The view asserts that this option of the
Philippines under Sec. 17 of RA 9851 is not subject to the consent of theUS,
and any derogation of Sec. 17 of RA 9851, such as requiring the consent of
the US before the Philippines can exercise such option, requires an
amendatory law.In line with this scenario, the view strongly argues that
theAgreementprevents thePhilippineswithout the consent of theUSfrom
surrendering to any international tribunal US nationals accused of crimes
covered by RA 9851, and, thus, in effect amends Sec. 17 of RA
9851.Consequently, the view is strongly impressed that the Agreement
cannot be embodied in a simple executive agreement in the form of an
exchange of notes but must be implemented through an extradition law or a
treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the
Constitution, where thePhilippinesadopts, as a national policy, the generally
accepted principles of international law as part of the law of the land, the
Court is further impressed to perceivethe Rome Statute as declaratory of
customary international law.In other words, the Statute embodies principles
of law which constitute customary international law or custom and for which
reason it assumes the status of an enforceable domestic law in the context
of the aforecited constitutional provision.As a corollary, it is argued that any
derogation from the Rome Statute principles cannot be undertaken via a
mere executive agreement, which, as an exclusive act of the executive
branch, can only implement, but cannot amend or repeal, an existing
law.TheAgreement, so the argument goes, seeks to frustrate the objects of
the principles of law or alters customary rules embodied in the Rome
Statute.
Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified
with the concurrence of the Senate, the theory being that a Senate- ratified
treaty partakes of the nature of a municipal law that can amend or
supersede another law, in this instance Sec. 17 of RA 9851 and the status
of the Rome Statute as constitutive of enforceable domestic law under Sec.
2, Art. II of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that
the Agreement does not amend or is repugnant to RA 9851.For another, the
view does not clearly state what precise principles of law, if any, the
Agreement alters.And for a third, it does not demonstrate in the concrete
how the Agreement seeks to frustrate the objectives of the principles of law
subsumed in the Rome Statute.
Nonetheless, despite the lack of actual domestic legislation, theUSnotably
follows the doctrine of incorporation.As early as 1900, the esteemed Justice
Gray inThe Paquete Habana case already held international law as part of
the law of theUS, to wit:

International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as often as
questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no controlling
executive or legislative act or judicial decision, resort must be had to the
customs and usages of civilized nations, and, as evidence of these, to the
works of jurists and commentators who by years of labor, research, and
experience have made themselves peculiarly well acquainted with the
subjects of which they treat. Such works are resorted to by judicial tribunals,
not for the speculations of their authors concerning what the law ought to be,
but for the trustworthy evidence of what the law really is.
Thus, a person can be tried in the US for an international crime despite the
lack of domestic legislation.The cited ruling in U.S. v. Coolidge,which in turn
is based on the holding inU.S. v. Hudson, only applies to common law and
not to the law of nations or international law.Indeed, the Court inU.S. v.
Hudson only considered the question, whether the Circuit Courts of the
United States can exercise a common law jurisdiction in criminal
cases.Stated otherwise, there is no common law crime in the US but this is
considerably different from international law.
TheUSdoubtless recognizes international law as part of the law of the land,
necessarily including international crimes, even without any local statute.In
fact, years later, US courts would apply international law as a source of
criminal liability despite the lack of a local statute criminalizing it as such. So
it was that in Ex Parte Quir in the US Supreme Court noted that from the
very beginning of its history this Court has recognized and applied the law of
war as including that part of the law of nations which prescribes, for the
conduct of war, the status, rights and duties of enemy nations as well as of
enemy individuals. It went on further to explain that Congress had not
undertaken the task of codifying the specific offenses covered in the law of
war, thus:
It is no objection that Congress in providing for the trial of such offenses has
not itself undertaken to codify that branch of international law or to mark its
precise boundaries, or to enumerate or define by statute all the acts which
that law condemns. An Act of Congress punishing the crime of piracy as
defined by the law of nations is an appropriate exercise of its constitutional
authority, Art. I, s 8, cl. 10, to define and punish the offense since it has
adopted by reference the sufficiently precise definition of international law.
Similarly by the reference in the 15th Article of War to offenders or offenses
that by the law of war may be triable by such military commissions.
Congress has incorporated by reference, as within the jurisdiction of military
commissions, all offenses which are defined as such by the law of war, and
which may constitutionally be included within that jurisdiction.
This rule finds an even stronger hold in the case of crimes against humanity.
It has been held that genocide, war crimes and crimes against humanity
have attained the status of customary international law.Some even go so far
as to state that these crimes have attained the status of jus cogens.
Customary international law or international custom is a source of
international law as stated in the Statute of the ICJ. It is defined as the
general and consistent practice of states recognized and followed by them
from a sense of legal obligation.In order to establish the customary status of
a particular norm, two elements must concur: State practice, the objective
element; andopinio juris sive necessitates, the subjective element.
State practice refers to the continuous repetition of the same or similar kind
of acts or norms by States.It is demonstrated upon the existence of the
following elements: (1) generality; (2) uniformity and consistency; and (3)
duration. While,opinio juris, the psychological element, requires that the
state practice or norm be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule of
law requiring it.
The term jus cogens means the compelling law.Corollary, ajus cogensnorm
holds the highest hierarchical position among all other customary norms and
principles.As a result,jus cogensnorms are deemed peremptory and non-
derogable.When applied to international crimes, jus cogens crimes have
been deemed so fundamental to the existence of a just international legal
order that states cannot derogate from them, even by agreement.
These jus cogens crimes relate to the principle of universal jurisdiction, i.e.,
any state may exercise jurisdiction over an individual who commits certain
heinous and widely condemned offenses, even when no other recognized
basis for jurisdiction exists.The rationale behind this principle is that the
crime committed is so egregious that it is considered to be committed
against all members of the international community and thus granting every
State jurisdiction over the crime.
Therefore, even with the current lack of domestic legislation on the part of
the US, it still has both the doctrine of incorporation and universal jurisdiction
to try these crimes.
WHEREFORE, the petition for certiorari, mandamus and prohibition is
hereby DISMISSED for lack of merit.
Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void
ab initio for contracting obligations that are either immoral or otherwise at
variance with universally recognized principles of international law.
Ruling: The petition is bereft of merit.
Validity of the RP-US Non-Surrender Agreement
Petitioner’s initial challenge against the Agreement relates to form, its
threshold posture being that E/N BFO-028-03 cannot be a valid medium for
concluding the Agreement.
Petitioners’ contention––perhaps taken unaware of certain well-recognized
international doctrines, practices, and jargons––is untenable. One of these
is the doctrine of incorporation, as expressed in Section 2, Article II of the
Constitution, wherein the Philippines adopts the generally accepted
principles of international law and international jurisprudence as part of the
law of the land and adheres to the policy of peace, cooperation, and amity
with all nations. An exchange of notes falls “into the category of inter-
governmental agreements,” which is an internationally accepted form of
international agreement. The United Nations Treaty Collections (Treaty
Reference Guide) defines the term as follows:
An “exchange of notes” is a record of a routine agreement, that has many
similarities with the private law contract. The agreement consists of the
exchange of two documents, each of the parties being in the possession of
the one signed by the representative of the other. Under the usual
procedure, the accepting State repeats the text of the offering State to
record its assent. The signatories of the letters may be government
Ministers, diplomats or departmental heads. The technique of exchange of
notes is frequently resorted to, either because of its speedy procedure, or,
sometimes, to avoid the process of legislative approval.
In another perspective, the terms “exchange of notes” and “executive
agreements” have been used interchangeably, exchange of notes being
considered a form of executive agreement that becomes binding through
executive action. On the other hand, executive agreements concluded by
the President “sometimes take the form of exchange of notes and at other
times that of more formal documents denominated ‘agreements’ or
‘protocols.’” As former US High Commissioner to the Philippines Francis B.
Sayre observed in his work, The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other
governments ends and agreements – whether denominated executive
agreements or exchange of notes or otherwise – begin, may sometimes be
difficult of ready ascertainment. x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it
viewed as the Non-Surrender Agreement itself, or as an integral instrument
of acceptance thereof or as consent to be bound––is a recognized mode of
concluding a legally binding international written contract among nations.
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for
imposing immoral obligations and/or being at variance with allegedly
universally recognized principles of international law. The immoral aspect
proceeds from the fact that the Agreement, as petitioner would put it, “leaves
criminals immune from responsibility for unimaginable atrocities that deeply
shock the conscience of humanity; x x x it precludes our country from
delivering an American criminal to the [ICC] x x x.”63
The above argument is a kind of recycling of petitioner’s earlier position,
which, as already discussed, contends that the RP, by entering into the
Agreement, virtually abdicated its sovereignty and in the process
undermined its treaty obligations under the Rome Statute, contrary to
international law principles.
The Court is not persuaded. Suffice it to state in this regard that the non-
surrender agreement, as aptly described by the Solicitor General, “is an
assertion by the Philippines of its desire to try and punish crimes under its
national law. x x x The agreement is a recognition of the primacy and
competence of the country’s judiciary to try offenses under its national
criminal laws and dispense justice fairly and judiciously.”
Petitioner, we believe, labors under the erroneous impression that the
Agreement would allow Filipinos and Americans committing high crimes of
international concern to escape criminal trial and punishment. This is
manifestly incorrect. Persons who may have committed acts penalized
under the Rome Statute can be prosecuted and punished in the Philippines
or in the US; or with the consent of the RP or the US, before the ICC,
assuming, for the nonce, that all the formalities necessary to bind both
countries to the Rome Statute have been met. For perspective, what the
Agreement contextually prohibits is the surrender by either party of
individuals to international tribunals, like the ICC, without the consent of the
other party, which may desire to prosecute the crime under its existing laws.
With the view we take of things, there is nothing immoral or violative of
international law concepts in the act of the Philippines of assuming criminal
jurisdiction pursuant to the non-surrender agreement over an offense
considered criminal by both Philippine laws and the Rome Statute.
G.R. No. 185572
CHINA NATIONAL MACHINERY & EQUIPMENT CORP.
(GROUP), Petitioner vs. HON. CESAR D. SANTAMARIA, in his official
capacity as Presiding Judge of Branch 145, Regional Trial Court of Makati
City, HERMINIO HARRY L. ROQUE, JR. (HELLOOOO?), JOEL R.
BUTUYAN, ROGER R. RAYEL, ROMEL R. BAGARES, CHRISTOPHER
FRANCISCO C. BOLASTIG, LEAGUE OF URBAN POOR FOR ACTION
(LUPA), KILUSAN NG MARALITA SA MEYCAUAYAN (KMM-LUPA
CHAPTER), DANILO M. CALDERON, VICENTE C. ALBAN, MERLYN M.
VAAL, LOLITA S. QUINONES, RICARDO D. LANOZO, JR., CONCHITA G.
GOZO, MA. TERESA D. ZEPEDA, JOSEFINA A. LANOZO, and SERGIO C.
LEGASPI, JR., KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY),
EDY CLERIGO, RAMMIL DINGAL, NELSON B. TERRADO, CARMEN
DEUNIDA, and EDUARDO LEGSON, Respondents
[International Responsibility – Definition of Treaty]
DATE: February 7, 2012
PONENTE: Sereno, J.
En Banc Decision
SHORT VERSION:
FACTS: Respondents prayed for the annulment of contracts entered into by
CNMEG and Northrail. These contracts involved the construction of the
North Luzon Railway System from Caloocan to Malolos on a turnkey basis.
CNMEG prays for the dismissal of the suit, contending that it is entitled to
immunity, precluding it from being sued before a local court, and that the
contract agreement is an executive agreement, such that it cannot be
questioned by or before a local court.
HELD: The contract agreement is not an executive agreement. It was not
concluded between the government of the Philippines and China but
between Northrail and CNMEG, which is neither a government nor a
government agency of China but a corporation duly organized and created
under the laws of the People’s Republic of China.
Because the Contract Agreement explicitly provides that Philippine Law
shall be applicable, the parties have effectively conceded that their rights
and obligations thereunder are not governed by international law. It is
merely an ordinary commercial contract that can be questioned before the
local courts.
CNMEG engaged in a proprietary activity hence was not covered by
sovereign immunity. The Memorandum of Understanding between CNMEG
and Northrail showed that CNMEG sought the construction of the Luzon
Railways as a proprietary or commercial venture in the ordinary course of its
business. It was clear that CNMEG initiated the undertaking, and not the
Chinese government.
FACTS:
14 September 2002: China National Machinery & Equipment Corp. (Group)
(CNMEG), represented by its chairperson, Ren Hongbin, entered into a
Memorandum of Understanding (MOU) with the North Luzon Railways
Corporation (Northrail), represented by its president, Jose L. Cortes, Jr. for
the conduct of a feasibility study on a possible railway line from Manila to
San Fernando, La Union (the Northrail Project).
30 August 2003: the Export Import Bank of China (EXIM Bank) and the
Department of Finance (DOF) entered into an MOU (Aug 30 MOU), wherein
China agreed to extend Preferential Buyer’s Credit to the Philippine
government to finance the Northrail Project.
- The Chinese government designated EXIM Bank as the lender,
while the Philippine government named the DOF as the borrower.
- Under the Aug 30 MOU, EXIM Bank agreed to extend an amount
not exceeding USD 400,000,000 in favor of the DOF, payable in
20 years, with a 5-year grace period, and at the rate of 3% per
annum.5
1 October 2003: the Chinese Ambassador to PH, Wang Chungui (Amb.
Wang), wrote a letter to DOF Sec. Jose Isidro Camacho (Sec. Camacho)
informing him of CNMEG’s designation as the Prime Contractor for the
Northrail Project.
30 December 2003: Northrail and CNMEG executed a Contract Agreement
for the construction of Section I, Phase I of the North Luzon Railway System
from Caloocan to Malolos on a turnkey basis (the Contract Agreement). The
contract price for the Northrail Project was pegged at USD 421,050,000
(kickback!)
26 February 2004: PH govt and EXIM Bank entered into a counterpart
financial agreement – Buyer Credit Loan Agreement (the Loan Agreement).
- EXIM Bank agreed to extend Preferential Buyer’s Credit in the
amount of USD 400,000,000 in favor of the Philippine government
in order to finance the construction of Phase I of the Northrail
Project.
13 February 2006: The respondents filed a Complaint for Annulment of
Contract and Injunction with Urgent Motion for Summary Hearing to
Determine the Existence of Facts and Circumstances Justifying the
Issuance of Writs of Preliminary Prohibitory and Mandatory Injunction and/or
TRO against CNMEG, the Office of the Executive Secretary, DOF, DBM,
NEDA and Northrail with RTC Makati.
- Respondents alleged that the Contract Agreement and the Loan
Agreement were void for being contrary to (a) the Constitution; (b)
RA 9184 (Government Procurement Reform Act) (c) PD 1445
(Government Auditing Code) and (d) EO 292 (Admin Code)
RTC issued an Order setting the case for hearing on the issuance of
injunctive reliefs. CNMEG filed an Urgent MR of this Order. Before RTC
could rule on the MR, CNMEG filed a Motion to Dismiss arguing that RTC
did not have the jurisdiction over (a) its person, as it was an agent of the
Chinese government, making it immune from suit, and (b) the subject
matter, as the Northrail Project was a product of an executive agreement.
RTC issued an Omnibus Order denying MTD and set the case for summary
hearing. CNMEG filed an MR, which was denied by RTC. CNMEG filed
before the CA a Petition for Certiorari with Prayer for the Issuance of TRO
and/or Writ of Preliminary Injunction. CA dismissed this petition, and the
subsequent MR.
21 January 2009: CNMEG filed the instant Petition for Review on Certiorari.
ISSUES AND RATIO:
1. Whether CNMEG is entitled to immunity, precluding it from
being sued before a local court.
This Court explained the doctrine of sovereign immunity in Holy See v.
Rosario:
- There are two conflicting concepts of sovereign immunity, each
widely held and firmly established.
o According to the classical or absolute theory, a
sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign.
o 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.
 The restrictive theory came about because
of the entry of sovereign states into purely
commercial activities remotely connected
with the discharge of governmental
functions. This is particularly true with
respect to the Communist states which
took control of nationalized business
activities and international trading.
JUSMAG v. National Labor Relations Commission: SC affirmed the
Philippines’ adherence to the restrictive theory
- The doctrine of state immunity from suit has undergone further
metamorphosis. The view evolved that the existence of a contract
does not, per se, mean that sovereign states may, at all times, be
sued in local courts. The complexity of relationships between
sovereign states, brought about by their increasing commercial
activities, mothered a morerestrictive application of the doctrine.
- As it stands now, the application of the doctrine of immunity from
suit has been restricted to sovereign or governmental activities
(jure imperii). The mantle of state immunity cannot be extended to
commercial, private and proprietary acts (jure gestionis).
Since the Philippines adheres to the restrictive theory, it is crucial to
ascertain the legal nature of the act involved – whether the entity
claiming immunity performs governmental, as opposed to proprietary,
functions.
As held in United States of America v. Ruiz:
The restrictive application of State immunity is proper only
when the proceedings arise out of commercial transactions of
the foreign sovereign, its commercial activities or economic
affairs. Stated differently, a State may be said to have 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. It does not apply where the contract relates to the
exercise of its sovereign functions.
 WON CNMEG performed proprietary functions. YES!
The parties executed the Contract Agreement for the purpose of
constructing the Luzon Railways: to construct railways from Caloocan to
Malolos, Contractor has offered to provide the project on turnkey basis, etc
etc.. --- Court said these did not on their own reveal whether the
construction of the Luzon railways was meant to be a proprietary endeavor.
The above-cited portion of the Contract Agreement, however, does not on
its own reveal whether the construction of the Luzon railways was meant to
be a proprietary endeavor. In order to fully understand the intention behind
and the purpose of the entire undertaking, the Contract Agreement must not
be read in isolation.
 Instead, it must be construed in conjunction with 3 other
documents executed in relation to the Northrail Project:
1. Memorandum of Understanding dated 14 September 2002 shows
that CNMEG sought the construction of the Luzon Railways as a
proprietary venture.
WHEREAS, CNMEG has the financial capability, professional
competence and technical expertise to assess the state of the and
recommend implementation plans as well as undertake its rehabilitation
and/or modernization;
WHEREAS, CNMEG has expressed interest in the rehabilitation and/or
modernization of the MLN from Metro Manila to San Fernando, La
Union passing through the provinces of Bulacan, Pampanga, Tarlac,
Pangasinan and La Union.
WHEREAS, the NORTHRAIL CORP. welcomes CNMEG’s proposal to
undertake a Feasibility Study (the "Study") at no cost to NORTHRAIL
CORP.
xxx
APPROVAL PROCESS x x x regulations and procedures required from
both parties, the parties shall commence the preparation and
negotiation of the terms and conditions of the Contract to be entered
into between them on the implementation of the Project. The parties
shall use their best endeavors to formulate and finalize a Contract with
a view to signing the Contract within one hundred twenty (120) days
from CNMEG’s presentation of the Study.
Clearly, it was CNMEG that initiated the undertaking, and not the
Chinese government. The Feasibility Study was conducted not
because of any diplomatic gratuity from or exercise of sovereign
functions by the Chinese government, but was plainly a business
strategy employed by CNMEG with a view to securing this commercial
enterprise.
2. Letter dated 1 October 2003 by Amb. Wang - CNMEG, and not the
Chinese government, initiated the Northrail Project was confirmed by Amb.
Wang:
1. CNMEG has the proven competence and capability to
undertake the Project as evidenced by the ranking of 42 given by
the ENR among 225 global construction companies.
2. CNMEG already signed an MOU with the North Luzon Railways
Corporation during the visit of Chairman Li Peng. Such being the
case, they have already established an initial working relationship
with your North Luzon Railways Corporation. This would
categorize CNMEG as the state corporation within the People’s
Republic of China which initiated our Government’s involvement in
the Project.
3. Among the various state corporations of the People’s Republic
of China, only CNMEG has the advantage of being fully familiar
with the current requirements of the Northrail Project having
already accomplished a Feasibility Study which was used as
inputs by the North Luzon Railways Corporation in the approvals
process required by the Republic of the Philippines.
Thus, the desire of CNMEG to secure the Northrail Project was in the
ordinary or regular course of its business as a global construction
company. The implementation of the Northrail Project was intended to
generate profit for CNMEG, with the Contract Agreement placing a
contract price of USD 421,050,000 for the venture.
The use of the term "state corporation" to refer to CNMEG was only
descriptive of its nature as a government-owned and/or -controlled
corporation, and its assignment as the Primary Contractor did not
imply that it was acting on behalf of China in the performance of the
latter’s sovereign functions.
- To imply otherwise would result in an absurd situation, in which all
Chinese corporations owned by the state would be automatically
considered as performing governmental activities, even if they are
clearly engaged in commercial or proprietary pursuits.
3. The Loan Agreement
CNMEG claims immunity on the ground that the Aug 30 MOU on the
financing of the Northrail Project was signed by the Philippine and Chinese
governments, and its assignment as the Primary Contractor meant that it
was bound to perform a governmental function on behalf of China.
However, the Loan Agreement, which originated from the
same Aug 30 MOU, belies this reasoning:
Article 11. Commercial Activity: The execution and delivery of
this Agreement by the Borrower constitute, and the Borrower’s
performance of and compliance with its obligations under this
Agreement will constitute, private and commercial acts done
and performed for commercial purposes under the laws of the
Republic of the Philippines and neither the Borrower nor any
of its assets is entitled to any immunity or privilege
(sovereign or otherwise) from suit, execution or any other
legal process with respect to its obligations under this
Agreement, as the case may be, in any jurisdiction.
Notwithstanding the foregoing, the Borrower does not waive any
immunity with respect of its assets which are (i) used by a
diplomatic or consular mission of the Borrower and (ii) assets of a
military character and under control of a military authority or
defense agency and (iii) located in the Philippines and dedicated to
public or governmental use (as distinguished from patrimonial
assets or assets dedicated to commercial use).
(k) Proceedings to Enforce Agreement In any proceeding in the
Republic of the Philippines to enforce this Agreement, the choice
of the laws of the People’s Republic of China as the governing law
hereof will be recognized and such law will be applied. The waiver
of immunity by the Borrower, the irrevocable submissions of the
Borrower to the non-exclusive jurisdiction of the courts of the
People’s Republic of China and the appointment of the Borrower’s
Chinese Process Agent is legal, valid, binding and enforceable and
any judgment obtained in the People’s Republic of China will be if
introduced, evidence for enforcement in any proceedings against
the Borrower and its assets in the Republic of the Philippines
provided that (a) the court rendering judgment had jurisdiction over
the subject matter of the action in accordance with its jurisdictional
rules, (b) the Republic had notice of the proceedings, (c) the
judgment of the court was not obtained through collusion or fraud,
and (d) such judgment was not based on a clear mistake of fact or
law.
Further, the Loan Agreement likewise contained an express waiver of
immunity:
15.5 Waiver of Immunity - The Borrower irrevocably and
unconditionally waives, any immunity to which it or its property
may at any time be or become entitled, whether characterized as
sovereign immunity or otherwise, from any suit, judgment, service
of process upon it or any agent, execution on judgment, set-off,
attachment prior to judgment, attachment in aid of execution to
which it or its assets may be entitled in any legal action or
proceedings with respect to this Agreement or any of the
transactions contemplated hereby or hereunder. Notwithstanding
the foregoing, the Borrower does not waive any immunity in
respect of its assets which are (i) used by a diplomatic or consular
mission of the Borrower, (ii) assets of a military character and
under control of a military authority or defense agency and (iii)
located in the Philippines and dedicated to a public or
governmental use (as distinguished from patrimonial assets or
assets dedicated to commercial use).
Thus, despite CNMEG’s claim that the EXIM Bank extended financial
assistance to Northrail because the bank was mandated by the
Chinese government, and not because of any motivation to do
business in the Philippines, it is clear from the foregoing provisions
that the Northrail Project was a purely commercial transaction.
Admittedly, the Loan Agreement was entered into between EXIM Bank and
the Philippine government, while the Contract Agreement was between
Northrail and CNMEG. Although the Contract Agreement is silent on the
classification of the legal nature of the transaction, the foregoing provisions
of the Loan Agreement, which was an inextricable part of the entire
undertaking, nonetheless revealed the intention of the parties to the
Northrail Project to classify the whole venture as commercial or proprietary
in character.
 WON CNMEG is immune from suit under Chinese law. It failed
to adduce evidence!
Even assuming that CNMEG performs governmental functions, such claim
does not automatically vest it with immunity.
- Malong v. Phil. National Railways: Immunity from suit is
determined by the character of the objects for which the entity was
organized."
In this regard, Court examined its ruling in Deutsche Gesellschaft Für
Technische Zusammenarbeit (GTZ) v. CA, where it ruled that GTZ was
not immune from suit. [basically the court discussed this case here]
Germany and the Philippines entered into a Technical Cooperation
Agreement, pursuant to which both signed an arrangement promoting the
Social Health Insurance–Networking and Empowerment (SHINE) project.
The two governments named their respective implementing organizations:
the DOH and the Philippine Health Insurance Corporation (PHIC) for the
Philippines, and GTZ for the implementation of Germany’s contributions.
The arguments raised by GTZ and OSG were the ff:
- The SHINE project was implemented pursuant to the bilateral
agreements between the Philippine and German governments.
- GTZ was tasked, under the 1991 agreement, with the
implementation of the contributions of the German government.
- The activities performed by GTZ pertaining to the SHINE project
are governmental in nature, related as they are to the promotion of
health insurance in the Philippines.
The fact that GTZ entered into employment contracts with the private
respondents did not disqualify it from invoking immunity from suit, as held in
cases such as Holy See v. Rosario, Jr., which set forth what remains valid
doctrine:
Certainly, the mere entering into a contract by a foreign state
with a private party cannot be the ultimate test. Such an act
can only be the start of the inquiry. The logical question is
whether the foreign state is engaged in the activity in the
regular course of business. If the foreign state is not engaged
regularly in a business or trade, the particular act or
transaction must then be tested by its nature. If the act is in
pursuit of a sovereign activity, or an incident thereof, then it is
an act jure imperii, especially when it is not undertaken for
gain or profit.
GTZ and OSG failed to address if GTZ, by conception, enjoyed the Federal
Republic’s immunity from suit.
The principle of state immunity from suit, whether a local state or a foreign
state, is reflected in Section 9, Article XVI of the Constitution, which states
that "the State may not be sued without its consent." Who or what consists
of "the State"?
- For one, the doctrine is available to foreign States insofar as they
are sought to be sued in the courts of the local State, necessary as
it is to avoid "unduly vexing the peace of nations."
If the instant suit had been brought directly against the Federal Republic of
Germany, there would be no doubt that it is a suit brought against a State,
and the only necessary inquiry is whether said State had consented to be
sued. However, the present suit was brought against GTZ.
- GTZ’s counsel characterizes GTZ as "the implementing agency
of the Government of the Federal Republic of Germany.”
- BUT SC said assuming that the characterization is correct, it does
not automatically invest GTZ with the ability to invoke State
immunity from suit.
- The distinction lies in whether the agency is incorporated or
unincorporated.
State immunity from suit may be waived by general or special law. The
special law can take the form of the original charter of the incorporated
government agency. Jurisprudence is replete with examples of incorporated
government agencies which were ruled not entitled to invoke immunity from
suit, owing to provisions in their charters manifesting their consent to be
sued.
- Court noted that PHIC was established by RA 7875 which granted
the corporation the power “to sue and be sued in court”
Is GTZ an incorporated agency of the German government? There is
some mystery surrounding that question. Neither GTZ nor the OSG go
beyond the claim that petitioner is "the implementing agency of the
Government of the Federal Republic of Germany."
- GTZ has not supplied any evidence defining its legal nature
beyond that of the bare descriptive "implementing agency."
- There is no doubt that the 1991 Agreement designated GTZ as the
"implementing agency" in behalf of the German government. Yet
the catch is that such term has no precise definition that is
responsive to our concerns. Inherently, an agent acts in behalf of a
principal, and the GTZ can be said to act in behalf of the German
state. But that is as far as "implementing agency" could take us.
- The term by itself does not supply whether GTZ is incorporated or
unincorporated, whether it is owned by the German state or by
private interests, whether it has juridical personality independent of
the German government or none at all.
- GTZ has failed to establish that under German law, it has not
consented to be sued despite it being owned by the Federal
Republic of Germany.
The Court adhered to the rule that in the absence of evidence to the
contrary, foreign laws on a particular subject are presumed to be the
same as those of the Philippines, and following the most intelligent
assumption the Court gathered, GTZ was akin to a governmental
owned or controlled corporation without original charter which, by
virtue of the Corporation Code, has expressly consented to be sued.
Applying the abovementioned ruling, it was readily apparent that CNMEG
cannot claim immunity from suit, even if it contends that it performs
governmental functions.
- Its designation as the Primary Contractor does not automatically
grant it immunity, just as the term "implementing agency" has no
precise definition for purposes of ascertaining whether GTZ was
immune from suit.
- Although CNMEG claims to be a government-owned corporation,
it failed to adduce evidence that it has not consented to be sued
under Chinese law.
- CNMEG is to be presumed to be a government-owned and -
controlled corporation without an original charter. As a result,
it has the capacity to sue and be sued under Section 36 of the
Corporation Code.
 CNMEG failed to present a certification from the Department
of Foreign Affairs
Holy See v. Rosario: The determination by the Executive that an entity is
entitled to sovereign or diplomatic immunity is a political question conclusive
upon the courts.
- In Public International Law, when a state or international agency
wishes to plead sovereign or diplomatic immunity in a foreign
court, it requests the Foreign Office of the state where it is sued to
convey to the court that said defendant is entitled to immunity.
- In the Philippines, the practice was for the foreign government or
the international organization to first secure an executive
endorsement of its claim of sovereign or diplomatic immunity.
PAANO? It varies.
 In International Catholic Migration Commission v. Calleja:
The Secretary of Foreign Affairs just sent a letter directly
to the Secretary of Labor and Employment, informing the
latter that the respondent-employer could not be sued
because it enjoyed diplomatic immunity.
 In World Health Organization v. Aquino: the Secretary of
Foreign Affairs sent the trial court a telegram to that
effect.
 In Baer v. Tizon: The US Embassy asked the Secretary
of Foreign Affairs to request the Solicitor General to
make, in behalf of the Commander of the United States
Naval Base at Olongapo City, Zambales, a "suggestion"
to respondent Judge. The Solicitor General embodied the
"suggestion" in a Manifestation and Memorandum
as amicus curiae.
In this case, the DFA through the Office of Legal Affairs moved with the SC
to be allowed to intervene on the side of CNMEG. The Court allowed DFA to
file its memorandum
In some cases, the defense of sovereign immunity was submitted directly to
the local courts by the respondents through their private counsels. In cases
where the foreign states bypass the Foreign Office, the courts can inquire
into the facts and make their own determination as to the nature of the acts
and transactions involved.
 WON any agency of the Executive Branch can make a
determination of immunity from suit, which may be
considered as conclusive upon the courts. YES. THE DFA!
DFA v. NLRC emphasized the DFA’s competence and authority to
provide such necessary determination:
- The DFA’s function includes the determination of persons and
institutions covered by diplomatic immunities, a determination
which, when challenged, entitles it to seek relief from the court so
as not to seriously impair the conduct of the country's foreign
relations.
- The DFA must be allowed to plead its case whenever necessary or
advisable to enable it to help keep the credibility of the Philippine
government before the international community.
- When international agreements are concluded, the parties thereto
are deemed to have likewise accepted the responsibility of seeing
to it that their agreements are duly regarded. In our country, this
task falls principally of the DFA as being the highest executive
department with the competence and authority to so act in this
aspect of the international arena.
The fact that this authority is EXCLUSIVE to the DFA was also
emphasized in GTZ v. CA:
- SC said that LA, in both of its rulings, noted that it was imperative
for GTZ to secure from the DFA "a certification of respondents’
diplomatic status and entitlement to diplomatic privileges including
immunity from suits."
- The requirement might not necessarily be imperative. However,
had GTZ obtained such certification from the DFA, it would have
provided factual basis for its claim of immunity that would, at the
 very least, establish a disputable evidentiary presumption that the
foreign party is indeed immune which the opposing party will have
to overcome with its own factual evidence.
CNMEG offers the Certification executed by the Economic and Commercial
Office of the Embassy of the People’s Republic of China, stating that the
Northrail Project is in pursuit of a sovereign activity.
- This is NOT the kind of certification that can establish their claim to
immunity, because it was said in the case of Holy See v. Rosario
that such certification unequivocally refers to the determination of
the "Foreign Office of the state where it is sued."
CNMEG also claims that its immunity from suit has the executive
endorsement of both the OSG and the Office of the Government Corporate
Counsel (OGCC), which must be respected by the courts.
- However, as expressly ruled in GTZ v. CA, this determination by
the OSG, or by the OGCC for that matter, does not inspire the
same degree of confidence as a DFA certification.
- BUT SC SAID: Even with a DFA certification, SC is not precluded
from making an inquiry into the intrinsic correctness of such
certification.
 WON an agreement to submit any dispute to arbitration may
be construed as an implicit waiver of immunity from suit.
In the US, the Foreign Sovereign Immunities Act of 1976 provides for a
waiver by implication of state immunity.
- In the said law, the agreement to submit disputes to arbitration in a
foreign country is construed as an implicit waiver of immunity from
suit.
Although there is no similar law in the Philippines, there is reason to apply
the legal reasoning behind the waiver in this case.
- The Conditions of Contract, which is an integral part of the
Contract Agreement stated:
33. SETTLEMENT OF DISPUTES AND ARBITRATION
33.2. Arbitration
All disputes or controversies arising from this Contract which
cannot be settled between the Employer and the Contractor shall
be submitted to arbitration in accordance with the UNCITRAL
Arbitration Rules at present in force and as may be amended by
the rest of this Clause. The appointing authority shall be Hong
Kong International Arbitration Center. The place of arbitration shall
be in Hong Kong at Hong Kong International Arbitration Center
(HKIAC).
Under the above provisions, if any dispute arises between
Northrail and CNMEG, both parties are bound to submit the matter
to the HKIAC for arbitration. x x x The party to arbitration wishing
to have an arbitral award recognized and enforced in the
Philippines must petition the proper regional trial court (a) where
the assets to be attached or levied upon is located; (b) where the
acts to be enjoined are being performed; (c) in the principal place
of business in the Philippines of any of the parties; (d) if any of the
parties is an individual, where any of those individuals resides; or
(e) in the National Capital Judicial Region.
It is clear that CNMEG has agreed that it will not be afforded immunity from
suit. Thus, the courts have the competence and jurisdiction to ascertain the
validity of the Contract Agreement.
2. WON the Contract Agreement is an executive agreement. NO!!
(finally)
Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna
Convention) defines a treaty as follows:
An international agreement concluded between States in written
form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and
whatever its particular designation.
Bayan Muna v. Romulo: SC held that an executive agreement is similar to
a treaty, except that the former
a) does not require legislative concurrence
b) is usually less formal
c) deals with a narrower range of subject matters
Despite these differences, to be considered an executive agreement, the
following three requisites provided under the Vienna Convention must
nevertheless concur:
a) the agreement must be between states
b) it must be written
c) it must governed by international law
The 1st and 3rd requisites are absent in this case.
A. CNMEG is neither a government nor a government agency.
The Contract Agreement was not concluded between the Philippines and
China, but between Northrail and CNMEG.
 By the terms of the Contract Agreement, Northrail is a GOCC while
CNMEG is a corporation duly organized and created under the
laws of PRC.
 Thus, both Northrail and CNMEG entered into the Contract
Agreement as entities with personalities distinct and separate from
the Philippine and Chinese governments, respectively.
Neither can it be said that CNMEG acted as agent of the Chinese
government.
- The fact that Amb. Wang, in his letter (Oct 2003) described
CNMEG as a "state corporation" and declared its designation as
the Primary Contractor in the Northrail Project did not mean it was
to perform sovereign functions on behalf of China.
- That label was only descriptive of its nature as a state-owned
corporation, and did not preclude it from engaging in purely
commercial or proprietary ventures.
B. The Contract Agreement is to be governed by Philippine law.
Article 2 of the Conditions of Contract, which under Article 1.1 of the
Contract Agreement is an integral part of the latter, states:
APPLICABLE LAW AND GOVERNING LANGUAGE
The contract shall in all respects be read and construed in
accordance with the laws of the Philippines.
The contract shall be written in English language. All
correspondence and other documents pertaining to the Contract
which are exchanged by the parties shall be written in English
language.
- Since the Contract Agreement explicitly provides that Philippine
law shall be applicable, the parties have effectively conceded that
their rights and obligations thereunder are not governed by
international law.
- It is therefore clear from the foregoing reasons that the Contract
Agreement does not partake of the nature of an executive
agreement. It is merely an ordinary commercial contract that can
be questioned before the local courts.
WHEREFORE, the instant Petition is DENIED. Petitioner China National
Machinery & Equipment Corp. (Group) is not entitled to immunity from suit,
and the Contract Agreement is not an executive agreement. CNMEG’s
prayer for the issuance of a TRO and/or Writ of Preliminary Injunction is
DENIED for being moot and academic. This case is REMANDED to the
Regional Trial Court of Makati, Branch 145, for further proceedings as
regards the validity of the contracts subject of Civil Case No. 06-203.
Corona, C.J., Carpio, Velasco, Leonardo-De Castro, Brion, Peralta,
Bersamin, Del Castillo, Abad, Villarama, Perez, Mendoza, Reyes, Perlas
Bernabe JJ. Concur.
(DIGEST 2)
Facts: On 14 September 2002, petitioner China National Machinery &
Equipment Corp. (Group) (CNMEG), represented by its chairperson, Ren
Hongbin, entered into a Memorandum of Understanding with the North
Luzon Railways Corporation (Northrail), represented by its president, Jose
L. Cortes, Jr. for the conduct of a feasibility study on a possible railway line
from Manila to San Fernando, La Union (the Northrail Project).
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the
Department of Finance of the Philippines (DOF) entered into a
Memorandum of Understanding (Aug 30 MOU), wherein China agreed to
extend Preferential Buyer’s Credit to the Philippine government to finance
the Northrail Project.3 The Chinese government designated EXIM Bank as
the lender, while the Philippine government named the DOF as the
borrower. Under the Aug 30 MOU, EXIM Bank agreed to extend an amount
not exceeding USD 400,000,000 in favor of the DOF, payable in 20 years,
with a 5-year grace period, and at the rate of 3% per annum.
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang
Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose Isidro
Camacho (Sec. Camacho) informing him of CNMEG’s designation as the
Prime Contractor for the Northrail Project.
On 30 December 2003, Northrail and CNMEG executed a Contract
Agreement for the construction of Section I, Phase I of the North Luzon
Railway System from Caloocan to Malolos on a turnkey basis (the Contract
Agreement).7 The contract price for the Northrail Project was pegged at USD
421,050,000.
On 26 February 2004, the Philippine government and EXIM Bank entered
into a counterpart financial agreement – Buyer Credit Loan Agreement No.
BLA 04055 (the Loan Agreement). In the Loan Agreement, EXIM Bank
agreed to extend Preferential Buyer’s Credit in the amount of USD
400,000,000 in favor of the Philippine government in order to finance the
construction of Phase I of the Northrail Project.
On 13 February 2006, respondents filed a Complaint for Annulment of
Contract and Injunction with Urgent Motion for Summary Hearing to
Determine the Existence of Facts and Circumstances Justifying the immunity performs governmental, as opposed to proprietary, functions. As property in Quezon City may be
Issuance of Writs of Preliminary Prohibitory and Mandatory Injunction and/or held in United States of America v. Ruiz estimated modestly at
TRO against CNMEG, the Office of the Executive Secretary, the DOF, the Admittedly, the Loan Agreement was entered into between EXIM P700,000.00.
Department of Budget and Management, the National Economic Bank and the Philippine government, while the Contract Agreement was  He is also the owner of a house
Development Authority and Northrail. The case was filed before the Regional between Northrail and CNMEG. Although the Contract Agreement is silent on and lot located in Cebu City. The
Trial Court, National Capital Judicial Region, Makati City, Branch 145 (RTC the classification of the legal nature of the transaction, the foregoing provisions lot has an area of 3,327 square
Br. 145). In the Complaint, respondents alleged that the Contract Agreement of the Loan Agreement, which is an inextricable part of the entire undertaking, meters.
and the Loan Agreement were void for being contrary to (a) the Constitution; nonetheless reveal the intention of the parties to the Northrail Project to  Communication equipment and
(b) Republic Act No. 9184 (R.A. No. 9184), otherwise known as the classify the whole venture as commercial or proprietary in character. facilities are found in the
Government Procurement Reform Act; (c) Presidential Decree No. 1445, Thus, piecing together the content and tenor of the Contract premises of Elizabeth Dimaano,
otherwise known as the Government Auditing Code; and (d) Executive Agreement, the Memorandum of Understanding dated 14 September 2002, a Confidential Agent of the
Order No. 292, otherwise known as the Administrative Code. Amb. Wang’s letter dated 1 October 2003, and the Loan Agreement would Military Security Unit, and
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEG’s reveal the desire of CNMEG to construct the Luzon Railways in pursuit of a are confiscated by elements of
Motion to Dismiss and setting the case for summary hearing to determine purely commercial activity performed in the ordinary course of its business. the PC Command of Batangas.
whether the injunctive reliefs prayed for should be issued. CNMEG then filed  These items could not have been
a Motion for Reconsideration, which was denied by the trial court in an Order in the possession of Elizabeth
dated 10 March 2008. Thus, CNMEG filed before the CA a Petition for REPUBLIC OF THE PHILIPPINES V. SANDIGANBAYAN, MAJOR Dimaano if not given for her use
Certiorari with Prayer for the Issuance of TRO and/or Writ of Preliminary GENERAL JOSEPHUS Q. RAMAS, ELIZABETH DIMAANO by respondent Commanding
Injunction dated 4 April 2008. G.R. No. 104768 General of the Philippine Army.
the appellate court dismissed the Petition for Certiorari. Subsequently, Facts  Aside from the military
CNMEG filed a Motion for Reconsideration, which was denied by the CA in a  Presidential Commission on Good Governance (PCGG) equipment/items and
Resolution dated 5 December 2008. o President Corazon C. Aquino, immediately communications equipment, the
Petitioners Argument: Petitioner claims that the EXIM Bank extended upon assuming Malacañang, enacts Executive raiding team was also able to
financial assistance to Northrail because the bank was mandated by the Order 1 (EO No. 1) or the Presidential confiscate money in the amount
Chinese government, and not because of any motivation to do business in the Commission on Good Governance (PCGG). It of P2,870,000.00 and $50,000
Philippines, it is clear from the foregoing provisions that the Northrail Project is mandated to recover all ill-gotten wealth of US Dollars in the house of
was a purely commercial transaction. former President Ferdinand E. Marcos, his Elizabeth Dimaano on 3 March
Respondents Argument: respondents alleged that the Contract Agreement immediate family, relatives, subordinates and 1986.
and the Loan Agreement were void for being contrary to (a) the Constitution;
(b) Republic Act No. 9184 (R.A. No. 9184), otherwise known as the
close associates.  Aside from the military
o EO No. 1 vested the PCGG with the power: equipment/items and
Government Procurement Reform Act; (c) Presidential Decree No. 1445,  (a) to conduct investigation as communications equipment, the
otherwise known as the Government Auditing Code; and (d) Executive may be necessary in order to raiding team was also able to
Order No. 292, otherwise known as the Administrative Code. accomplish and carry out the confiscate money in the amount
Issues: Whether or not petitioner CNMEG is an agent of the sovereign purposes of this order and the of P2,870,000.00 and $50,000
People’s Republic of China. power US Dollars in the house of
Whether or not the Northrail contracts are products of an executive
 (h) to promulgate such rules and Elizabeth Dimaano on 3 March
agreement between two sovereign states.
regulations as may be necessary 1986.
Ruling: The instant Petition is DENIED. Petitioner China National Machinery
& Equipment Corp. (Group) is not entitled to immunity from suit, and the
to carry out the purpose of this  Elizabeth Dimaano is
order. allegedly Major General Q.
Contract Agreement is not an executive agreement. CNMEG’s prayer for the
issuance of a TRO and/or Writ of Preliminary Injunction is DENIED for being
o Accordingly, the PCGG, through its then Josephus Ramas’ mistress. She
Chairman Jovito R. Salonga, created an AFP does not have any means to
moot and academic.
Anti-Graft Board (AFP Board) tasked to acquire the communications
The Court explained the doctrine of sovereign immunity in Holy
investigate reports of unexplained wealth and equipment as well as the
See v. Rosario, to wit:
corrupt practices by AFP personnel, whether in aforementioned money.
There are two conflicting concepts of sovereign immunity, each widely held
and firmly established. According to the classical or absolute theory, a
the active service or retired. o The AFP Board finds a prima facie case
sovereign cannot, without its consent, be made a respondent in the  AFP Board against Major General Josephus Ramas for ill
courts of another sovereign. According to the newer or restrictive theory, o The AFP Board, in line with its mandate, gotten wealth and unexplained wealth in the
the immunity of the sovereign is recognized only with regard to public investigates Major General Q. Josephus amount of P2,974,134.00 and $50,000 US
acts or acts jure imperii of a state, but not with regard to private acts or Ramas. Dollars.
acts jure gestionis. (Emphasis supplied; citations omitted.) o On July 1987, the AFP Board issues a o Decision: It is recommended that Maj. Gen.
As it stands now, the application of the doctrine of immunity from suit has resolution and findings on Ramas’ alleged ill Josephus Q. Ramas (ret.) be prosecuted and
been restricted to sovereign or governmental activities (jure imperii). The gotten wealth. It submits the following findings: tried for violation of RA 3019, as amended,
mantle of state immunity cannot be extended to commercial, private and  Evidence in the record showed otherwise known as Anti-Graft and Corrupt
proprietary acts (jure gestionis). that respondent is the owner of a Practices Act and RA 1379, as amended,
Since the Philippines adheres to the restrictive theory, it is crucial house and lot located at 15- otherwise known as The Act for the Forfeiture
to ascertain the legal nature of the act involved – whether the entity claiming Yakan St., La Vista, Quezon of Unlawfully Acquired Property.
City. The aforementioned
 o On 1 August 1987, the PCGG filed a petition for
forfeiture under Republic Act No. 1379 (RA No.
1379) against Ramas.
o Amended Complaint: Amended Complaint
further alleged that Ramas acquired funds,
assets and properties manifestly out of
proportion to his salary as an army officer and
his other income from legitimately acquired
property by taking undue advantage of his
public office and/or using his power, authority
and influence as such officer of the Armed
Forces of the Philippines and as a subordinate
and close associate of the deposed President
Ferdinand Marcos.
o The Amended Complaint also alleged that the
AFP Board, after a previous inquiry, found
reasonable ground to believe that respondents
have violated RA No. 1379. The Amended
Complaint prayed for, among others, the
forfeiture of respondents properties, funds and
equipment in favor of the State.
 Ramas’ Answer:
o Ramas contends that his property consisted
only of a residential house at La Vista
Subdivision, Quezon City, valued at P700,000,
which was not out of proportion to his salary
and other legitimate income.
o He denies ownership of any mansion in Cebu
City and the cash, communications equipment
and other items confiscated from the house of
Dimaano.
o Dimaano filed her own Answer to the Amended
Complaint. Admitting her employment as a
clerk-typist in the office of Ramas from January-
November 1978 only, Dimaano claimed
ownership of the monies, communications
equipment, jewelry and land titles taken from
her house by the Philippine Constabulary
raiding team.
 The Sandiganbayan
o On 13 April 1989, petitioner filed a motion for
leave to amend the complaint in order to
charge the delinquent properties with being
subject to forfeiture as having been unlawfully
acquired by defendant Dimaano alone x x x.
o Petitioner fails to present witnesses and delays
the court for over a year.
o on 18 May 1990, petitioner again expressed its
inability to proceed to trial because it had no
further evidence to present. Again, in the
interest of justice, the Sandiganbayan granted
petitioner 60 days within which to file an
appropriate pleading. The Sandiganbayan,
however, warned petitioner that failure to act
would constrain the court to take drastic action.
o Private respondents then filed their motions to
dismiss based on Republic v. Migrino.The
Court held in Migrino that the PCGG does not
have jurisdiction to investigate and prosecute
military officers by reason of mere position held
without a showing that they are subordinates of
former President Marcos.
o Dispositive: WHEREFORE, judgment is
hereby rendered dismissing the Amended
Complaint, without pronouncement as to costs.
The counterclaims are likewise dismissed for
lack of merit, but the confiscated sum of money,
communications equipment, jewelry and land
titles are ordered returned to Elizabeth
Dimaano.
o The records of this case are hereby remanded
and referred to the Hon. Ombudsman, who
has primary jurisdiction over the forfeiture
cases under R.A. No. 1379, for such
appropriate action as the evidence warrants.
This case is also referred to the Commissioner
of the Bureau of Internal Revenue for a
determination of any tax liability of respondent
Elizabeth Dimaano in connection herewith.
o Ruling of the Sandiganbayan
 (1.) The actions taken by the
PCGG are not in accordance
with the rulings of the Supreme
Court in Cruz, Jr. v.
Sandiganbayan[10] and Republic
v. Migrino[11] which involve the
same issues.
 (2.) No previous inquiry similar to
preliminary investigations in
criminal cases was conducted
against Ramas and Dimaano.
 (3.) The evidence adduced
against Ramas does not
constitute a prima facie case
against him.
 (4.) There was an illegal search
and seizure of the items
confiscated.
Issues
1. PCGG’s Jurisdiction to Investigate Private Respondents
2. Propriety of Dismissal of Case Before Completion of
Presentation of Evidence — Petitioner also contends that
the Sandiganbayan erred in dismissing the case before
completion of the presentation of petitioners evidence.
3. Third Issue: Legality of the Search and Seizure —
Petitioner claims that the Sandiganbayan erred in declaring
the properties confiscated from Dimaanos house as illegally
seized and therefore inadmissible in evidence. This issue
bears a significant effect on petitioners case since these
properties comprise most of petitioners evidence against
private respondents. Petitioner will not have much evidence to
support its case against private respondents if these
properties are inadmissible in evidence.Ruling
1. First issue:
1. The PCGG, through the AFP Board, can only
investigate the unexplained wealth and corrupt
practices of AFP personnel who fall under
either of the two categories mentioned in
Section 2 of EO No. 1. These are: (1) AFP
personnel who have accumulated ill-gotten
wealth during the administration of former
President Marcos by being the latters
immediate family, relative, subordinate or close
associate, taking undue advantage of their
public office or using their powers, influence x x
x; or (2) AFP personnel involved in other cases
of graft and corruption provided the President
assigns their cases to the PCGG.
2. Ramas case should fall under the first category
of AFP personnel before the PCGG could
exercise its jurisdiction over him. Petitioner
argues that Ramas was undoubtedly a
subordinate of former President Marcos
because of his position as the Commanding
General of the Philippine Army. Petitioner
claims that Ramas position enabled him to
receive orders directly from his commander-in-
chief, undeniably making him a subordinate of
former President Marcos.
3. We hold that Ramas was not a subordinate of
former President Marcos in the sense
contemplated under EO No. 1 and its
amendments.
4. Mere position held by a military officer does not
automatically make him a subordinate as this
term is used in EO Nos. 1, 2, 14 and 14-A
absent a showing that he enjoyed close
association with former President Marcos.
2. Second issue:
1. Based on the findings of the Sandiganbayan
and the records of this case, we find that
petitioner has only itself to blame for non-
completion of the presentation of its evidence.
First, this case has been pending for four years
before the Sandiganbayan dismissed it.
3. Third issue:
1. On 3 March 1986, the Constabulary raiding
team served at Dimaanos residence a search
warrant captioned Illegal Possession of
Firearms and Ammunition. Dimaano was not
present during the raid but Dimaanos cousins
witnessed the raid. The raiding team seized the
items detailed in the seizure receipt together
with other items not included in the search
warrant. The raiding team seized these items:
one baby armalite rifle with two magazines; 40
rounds of 5.56 ammunition; one pistol, caliber
.45; communications equipment, cash
consisting of P2,870,000 and US$50,000,
jewelry, and land titles.
2. Petitioner wants the Court to take judicial notice
that the raiding team conducted the search and
 seizure on March 3, 1986 or five days after the
successful EDSA revolution. Petitioner argues
that a revolutionary government was operative
at that time by virtue of Proclamation No. 1
announcing that President Aquino and Vice
President Laurel were taking power in the
name and by the will of the Filipino
people. Petitioner asserts that the
revolutionary government
effectively withheld the operation of the
1973 Constitution which guaranteed private
respondents exclusionary right.
3. Moreover, petitioner argues that the
exclusionary right arising from an illegal search
applies only beginning 2 February 1987, the
date of ratification of the 1987 Constitution.
Petitioner contends that all rights under the Bill
of Rights had already reverted to its embryonic
stage at the time of the search. Therefore, the
government may confiscate the monies and
items taken from Dimaano and use the same in
evidence against her since at the time of their
seizure, private respondents did not enjoy any
constitutional right.
4. Petitioner is partly right in its arguments.
5. The correct issues are: (1) whether the
revolutionary government was bound by the Bill
of Rights of the 1973 Constitution during the
interregnum, that is, after the actual and
effective take-over of power by the
revolutionary government following the
cessation of resistance by loyalist forces up to
24 March 1986 (immediately before the
adoption of the Provisional Constitution); and
(2) whether the protection accorded to
individuals under the International Covenant on
Civil and Political Rights (Covenant) and the
Universal Declaration of Human Rights
(Declaration) remained in effect during the
interregnum.
6. We hold that the Bill of Rights under the 1973
Constitution was not operative during the
interregnum. However, we rule that the
protection accorded to individuals under the
Covenant and the Declaration remained in
effect during the interregnum.
7. During the interregnum, the directives and
orders of the revolutionary government were
the supreme law because no constitution
limited the extent and scope of such directives
and orders. With the abrogation of the 1973
Constitution by the successful revolution, there
was no municipal law higher than the directives
and orders of the revolutionary government.
Thus, during the interregnum, a person could
not invoke any exclusionary right under a Bill of
Rights because there was neither a constitution
nor a Bill of Rights during the interregnum.
8. As the Court explained in Letter of Associate
Justice Reynato S. Puno:A revolution has been
defined as the complete overthrow of the
established government in any country or state
by those who were previously subject to it or as
a sudden, radical and fundamental change in
the government or political system, usually
effected with violence or at least some acts of
violence. In Kelsen’s book, General Theory of
Law and State, it is defined as that which
occurs whenever the legal order of a
community is nullified and replaced by a new
order . . . a way not prescribed by the first order
itself.
9. During the interregnum, the government in
power was concededly a revolutionary
government bound by no constitution. No one
could validly question the sequestration orders
as violative of the Bill of Rights because there
was no Bill of Rights during the interregnum.
However, upon the adoption of the Freedom
Constitution, the sequestered companies
assailed the sequestration orders as contrary to
the Bill of Rights of the Freedom Constitution.
10. The revolutionary government did not repudiate
the Covenant or the Declaration during the
interregnum. Whether the revolutionary
government could have repudiated all its
obligations under the Covenant or the
Declaration is another matter and is not the
issue here. Suffice it to say that the Court
considers the Declaration as part of customary
international law, and that Filipinos as human
beings are proper subjects of the rules of
international law laid down in the Covenant.
The fact is the revolutionary government did not
repudiate the Covenant or the Declaration in
the same way it repudiated the 1973
Constitution. As the de jure government, the
revolutionary government could not escape
responsibility for the States good faith
compliance with its treaty obligations under
international law.
11. During the interregnum when no constitution or
Bill of Rights existed, directives and orders
issued by government officers were valid so
long as these officers did not exceed the
authority granted them by the revolutionary
government. The directives and orders should
not have also violated the Covenant or the
Declaration. In this case, the revolutionary
government presumptively sanctioned the
warrant since the revolutionary government did
not repudiate it. The warrant, issued by a
judge upon proper application, specified the
items to be searched and seized. The
warrant is thus valid with respect to the
items specifically described in the warrant.
12. It is obvious from the testimony of Captain
Sebastian that the warrant did not include the
monies, communications equipment, jewelry
and land titles that the raiding team
confiscated. The search warrant did not
particularly describe these items and the
raiding team confiscated them on its own
authority. The raiding team had no legal basis
to seize these items without showing that these
items could be the subject of warrantless
search and seizure. Clearly, the raiding team
exceeded its authority when it seized these
items.The seizure of these items was therefore
void, and unless these items are contraband
per se, and they are not, they must be returned
to the person from whom the raiding seized
them. However, we do not declare that such
person is the lawful owner of these items,
merely that the search and seizure warrant
could not be used as basis to seize and
withhold these items from the possessor. We
thus hold that these items should be returned
immediately to Dimaano.
The Dispositive
WHEREFORE, the petition for certiorari is DISMISSED. The questioned
Resolutions of the Sandiganbayan dated 18 November 1991 and 25 March
1992 in Civil Case No. 0037, remanding the records of this case to the
Ombudsman for such appropriate action as the evidence may warrant, and
referring this case to the Commissioner of the Bureau of Internal Revenue
for a determination of any tax liability of respondent Elizabeth Dimaano,
are AFFIRMED.
THE PAQUETE HABANA, 175 U.S. 677 (1900)
Facts: These are two appeals from decrees of the district court of the United
States for the southern district of Florida condemning two fishing vessels
and their cargoes as prize of war.
Each vessel was a fishing smack, running in and out of Havana, and
regularly engaged in fishing on the coast of Cuba. It sailed under the
Spanish flag and was owned by a Spanish subject of Cuban birth, living in
the city of Havana. It was commanded by a subject of Spain, also residing in
Havana. Her master and crew had no interest in the vessel, but were
entitled to share her catch.
Her cargo consisted of fresh fish, caught by her crew from the sea, put on
board as they were caught, and kept and sold alive. Until stopped by the
blockading squadron she had no knowledge of the existence of the war or of
any blockade. She had no arms or ammunition on board, and made on
attempt to run the blockade after she knew of its existence, nor any
resistance at the time of the capture.
The Paquete Habana (1st vessel) was a sloop and had a crew of three
Cubans, including the master, who had a fishing license from the Spanish
government, and no other commission or license. She left Havana and was
captured by the United States gunboat Castine.
The Lola (2nd vessel) was a schooner and had a crew of six Cubans,
including the master, and no commission or license. She was stopped by
the United States steamship Cincinnati, and was warned not to go into
Havana, but was told that she would be allowed to land at Bahia Honda.
She then set for Bahia Honda, but on the next morning, when near that port,
was captured by the United States steamship Dolphin.
Both the fishing vessels were brought by their captors into Key West. A libel
for the condemnation of each vessel and her cargo as prize of war was filed.
Each vessel was sold by auction (the Paquete Habana for the sum of $490
and the Lola for the sum of $800). There was no other evidence in the
record of the value of either vessel or of her cargo.
Issue: Whether or not the fishing smacks were subject to capture during the
war with Spain.
Held: No. By an ancient usage among civilized nations, beginning centuries
ago, and gradually ripening into a rule of international law, coast fishing
vessels, pursuing their vocation of catching and bringing in fresh fish, have
been recognized as exempt, with their cargoes and crews, from capture as
prize of war. (The case then discussed instances throughout history where
fishing vessels were captured.)
It will be convenient to refer to some leading French treatises on
international law as determined by the general consent of civilized nations.
'Enemy ships,' say Pistoye and Duverdy, in their Treatise on Maritime
Prizes, published in 1855, 'are good prize. Not all, however; for it results
from the unanimous accord of the maritime powers that an exception should
be made in favor of coast fishermen. Such fishermen are respected by the
enemy so long as they devote themselves exclusively to fishing.'
De Cussy, in his work on the Phases and Leading Cases of the Maritime
Law of Nations, affirms in the clearest language the exemption from capture
of fishing boats, saying, that 'in time of war the freedom of fishing is
respected by belligerents; fishing boats are considered as neutral; in law, as
in principle, they are not subject either to capture or to confiscation.
Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la
Mer, after stating the general rule that the vessels and cargoes of subjects
of the enemy are lawful prize, says: 'Nevertheless, custom admits an
exception in favor of boats engaged in the coast fishery; these boats, as well
as their crews, are free from capture and exempt from all hostilities. The
coast-fishing industry is, in truth, wholly pacific, and of much less importance
in regard to the national wealth that it may produce than maritime commerce
or the great fisheries. Peaceful and wholly inoffensive, those who carry it on,
may be called the harvesters of the territorial seas, since they confine
themselves to gathering in the products thereof; they are for the most part
poor families who seek in this calling hardly more than the means of gaining
their livelihood.' Again, after observing that there are very few solemn public
treaties which make mention of the immunity of fishing boats in time of war,
he says: 'From another point of view the custom which sanctions this
immunity is not so general that it can be considered as making an absolute
international rule; but it has been so often put in practice, and, besides, it
accords so well with the rule in use in wars on land, in regard to peasants
and husbandmen, to whom coast fishermen may be likened, that it will
doubtless continue to be followed in maritime wars to come. (A lot of
opinions of other writers were also included which will not be mentioned in
this digest)
This review of the precedents and authorities on the subject appears to us
abundantly to demonstrate that at the present day, by the general consent of
the civilized nations of the world, and independently of any express treaty or
other public act, it is an established rule of international law, founded on
considerations of humanity to a poor and industrious order of men, and of
the mutual convenience of belligerent states, that coast fishing vessels, with
their implements and supplies, cargoes and crews, unarmed and honestly
pursuing their peaceful calling of catching and bringing in fresh fish, are
exempt from capture as prize of war.
The exemption, of course, does not apply to coast fishermen or their vessels
if employed for a warlike purpose, or in such a way as to give aid or
information to the enemy; nor when military or naval operations create a
necessity to which all private interests must give way.
Nor has the exemption been extended to ships or vessels employed on the
high sea in taking whales or seals or cod or other fish which are not brought
fresh to market, but are salted or otherwise cured and made a regular article
of commerce.
This rule of international law is one which prize courts administering the law
of nations are bound to take judicial notice of, and to give effect to, in the
absence of any treaty or other public act of their own government in relation
to the matter.
By the practice of all civilized nations, vessels employed only for the
purposes of discovery or science are considered as exempt from the
contingencies of war, and therefore not subject to capture. It has been usual
for the government sending out such an expedition to give notice to other
powers; but it is not essential.
To this subject in more than one aspect are singularly applicable the words
uttered by Mr. Justice Strong, speaking for this court: 'Undoubtedly no single
nation can change the law of the sea. The law is of universal obligation and
no statute of one or two nations can create obligations for the world. Like all
the laws of nations, it rests upon the common consent of civilized
communities. It is of force, not because it was prescribed by any superior
power, but because it has been generally accepted as a rule of conduct.
Whatever may have been its origin, whether in the usages of navigation, or
in the ordinances of maritime states, or in both, it has become the law of the
sea only by the concurrent sanction of those nations who may be said to
constitute the commercial world. Many of the usages which prevail, and
which have the force of law, doubtless originated in the positive
prescriptions of some single state, which were at first of limited effect, but
which, when generally accepted, became of universal obligation.'
In the case, each vessel was of a moderate size, such as is not unusual in
coast fishing smacks, and was regularly engaged in fishing on the coast of
Cuba. The crew of each were few in number, had no interest in the vessel,
and received, in return for their toil and enterprise, two thirds of her catch,
the other third going to her owner by way of compensation for her use. Each
vessel went out from Havana to her fishing ground, and was captured when
returning along the coast of Cuba. The cargo of each consisted of fresh fish,
caught by her crew from the sea, and kept alive on board. Although one of
the vessels extended her fishing trip, we cannot doubt that each was
engaged in the coast fishery, and not in a commercial adventure, within the
rule of international law.
The case was adjudged that the capture was unlawful and without probable
cause ordered that the proceeds of the sale of the vessel, together with the
proceeds of any sale of her cargo, be restored to the claimant, with
damages and costs.
(DIGEST 2)
Facts: Two fishing vessels that were fishing out of Havana, Cuba, sailed
under a Spanish flag were fishing off the Cuba coast. They were owned a
Spanish subject that was born in Cuba and living in Havana. The vessels
were commanded by a subject of Spain, also residing in Havana. Their
cargo consisted of fresh fish, caught by their crew. The fish were kept alive
to be sold alive. Until stopped by the blockading squadron they had no
knowledge of the existence of the war or of any blockade. She had no arms
or ammunition on board, and made no attempt to run the blockade after she
knew of its existence, nor any resistance at the time of the capture.
Procedural History: DC for the Southern District of Florida condemned the
two fishing vessels and their cargos as prizes of war.
Issues: Whether a court may look to established rules of other nations when
their own nation lacks any treaty, legislation, proclamation, or instruction that
is on point for a particular matter?
Analysis: By an ancient usage among civilized nations, beginning centuries
ago, and gradually ripening into a rule of international law, coast fishing
vessels, pursuing their vocation of catching and bringing in fresh fish, have
been recognized as exempt, with their cargoes and crews, from capture as
prize of war.
In 1403 and 1406 Henry IV ordered that fisherman of foreign nations
become under his special protection so that the fisherman in the course of
their duty would not be hindered, interfered, or molested by any of his
subjects.
The doctrine which exempts coast fishermen, with their vessels and
cargoes, from capture as prize of war, has been familiar to the United States
from the time of the War of Independence.
On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to his
admiral, informing him that the wish he had always had of alleviating, as far
as he could, the hardships of war, had directed his attention to that class of
his subjects which devoted itself to the trade of fishing, and had no other
means of livelihood; that he had thought that the example which he should
give to his enemies, would determine them to allow to fishermen the same
facilities which he should consent to grant; and that he had therefore given
orders to the commanders of all his ships not to disturb English fishermen,
nor to arrest their vessels laden with fresh fish, provided they had no
offensive arms, and were not proved to have made any signals creating a
suspicion of intelligence with the enemy; and the admiral was directed to
communicate the King’s intentions to all officers under his control.
Among the standing orders made by Sir James Marriott, Judge of the
English High Court of Admiralty, was one of April 11, 1780, by which it was
‘ordered that all causes of prize of fishing boats or vessels taken from the
enemy may be consolidated in one monition, and one sentence or
interlocutory, if under 50 tons burthen, and not more than 6 in number.’ But
by the statements of his successor, and of both French and English writers,
it apears that England, as well as France, during the American
Revolutionary War, abstained from interfering with the coast fisheries.
In the treaty of 1785 between the United States and Prussia, provided that, if
war should arise between the contracting parties, ‘all women and children,
scholars of every faculty, cultivators of the earth, artisans, manufacturers,
and fishermen, unarmed and inhabiting unfortified towns, villages, or places,
and in general all others whose occupations are for the common
subsistence and benefit of mankind, shall be allowed to continue their
respective employments, and shall not be molested in their persons, nor
shall their houses or goods be burnt or otherwise destroyed, nor their fields
wasted by the armed force of the enemy, into whose power, by the events of
war, they may happen to fall; but if anything is necessary to be taken from
them for the use of such armed force, the same shall be paid for at a
reasonable price.’ Here was the clearest exemption from hostile molestation
or seizure of the persons, occupations, houses, and goods of unarmed
fishermen inhabiting unfortified places.
Wheaton’s International Laws, says: ‘In many treaties and decrees,
fishermen catching fish as an article of food are added to the class of
persons whose occupation is not to be disturbed in war.’
The English government, soon afterwards, more than once unqualifiedly
prohibited the molestation of fishing vessels employed in catching and
bringing to market fresh fish. On May 23, 1806, it was ‘ordered in council
that all fishing vessels under Prussian and other colors, and engaged for the
purpose of catching fish and conveying them fresh to market, with their
crews, cargoes, and stores, shall not be molested on their fishing voyages
and bringing the same to market.
In the war with Mexico, in 1846, the United States recognized the exemption
of coast fishing boats from capture. It appears that Commodore Conner,
commanding the Home Squadron blockading the east coast of Mexico, on
May 14, 1846, wrote a letter to Mr. Bancroft, the Secretary of the Navy,
inclosing a copy of the commodore’s ‘instructions to the commanders of the
vessels of the Home Squadron, showing the principles to be observed in the
blockade of the Mexican ports,’ one of which was that ‘Mexican boats
engaged in fishing on any part of the coast will be allowed to pursue their
labors unmolested;’ and that on June 10, 1846, those instructions were
approved by the Navy Department.
In the treaty of peace between the United States and Mexico, in 1848, were
inserted the very words of the earlier treaties with Prussia, already quoted,
forbidding the hostile molestation or seizure in time of war of the persons,
occupations, houses, or goods of fishermen.
France in the Crimean war in 1854, and in her wars with Italy in 1859 and
with Germany in 1870, by general orders, forbade her cruisers to trouble the
coast fisheries, or to seize any vessel or boat engaged therein, unless naval
or military operations should make it necessary.
Since the English orders in council of 1806 and 1810, before quoted, in
favor of fishing vessels employed in catching and bringing to market fresh
fish, no instance has been found in which the exemption from capture of
private coast fishing vessels honestly pursuing their peaceful industry has
been denied by England or by any other nation. And the Empire of Japan by
an ordinance promulgated at the beginning of its war with China in August,
1894, established prize courts, and ordained that ‘the following enemy’s
vessels are exempt from detention,’ including in the exemption ‘boats
engaged in coast fisheries,’ as well as ‘ships engaged exclusively on a
voyage of scientific discovery, philanthrophy, or religious mission.’
Wheaton observes: ‘Without wishing to exaggerate the importance of these
writers, or to substitute, in any case, their authority for the principles of
reason, it may be affirmed that they are generally impartial in their judgment.
They are witnesses of the sentiments and usages of civilized nations, and
the weight of their testimony increases every time that their authority is
invoked by statesmen, and every year that passes without the rules laid
down in their works being impugned by the avowal of contrary principles.’
Chancellor Kent says: ‘In the absence of higher and more authoritative
sanctions, the ordinances of foreign states, the opinions of eminent
statesmen, and the writings of distinguished jurists, are regarded as of great
consideration on questions not settled by conventional law. In cases where
the principal jurists agree, the presumption will be very great in favor of the
solidity of their maxims; and no civilized nation that does not arrogantly set
all ordinary law and justice at defiance will venture to disregard the uniform
sense of the established writers on international law.’
This review of the precedents and authorities on the subject appears to us
abundantly to demonstrate that at the present day, by the general consent of
the civilized nations of the world, and independently of any express treaty or
other public act, it is an established rule of international law, founded on
considerations of humanity to a poor and industrious order of men, and of
the mutual convenience of belligerent states, that coast fishing vessels, with
their implements and supplies, cargoes and crews, unarmed and honestly
pursuing their peaceful calling of catching and bringing in fresh fish, are
exempt from capture as prize of war.
This rule of international law is one which prize courts administering the law
of nations are bound to take judicial notice of, and to give effect to, in the
absence of any treaty or other public act of their own government in relation
to the matter.
Holding: Yes
Judgment: Ordered, that the decree of the District Court be reversed, and
the proceeds of the sale of the vessel, together with the proceeds of any
sale of her cargo, be restored to the claimant, with damages and costs.
Rule: A court may look to established rules of other nations when their own
nation lacks any treaty, legislation, proclamation, or instruction that is on
point for a particular matter.
Where there is no treaty and no controlling executive or legislative act or
judicial decision, resort must be had to the customs and usages of civilized
nations, and, as evidence of these, to the works of jurists and commentators
who by years of labor, research, and experience have made themselves
peculiarly well acquainted with the subjects of which they treat.
Dissent or Concurrence: Mr. Chief Justice Fuller, with whom concurred Mr.
Justice Harlan and Mr. Justice McKenna, dissenting:
The district court held these vessels and their cargoes liable because not
‘satisfied that as a matter of law, without any ordinance, treaty, or
proclamation, fishing vessels of this class are exempt from seizure. This
court holds otherwise, not because such exemption is to be found in any
treaty, legislation, proclamation, or instruction granting it, but on the ground
that the vessels were exempt by reason of an established rule of
international law applicable to them, which it is the duty of the court to
enforce.
ASYLUM CASE (COLUMBIA/PERU);
Year of the decision: 1950; and Court: ICJ.
Overview: Columbia granted asylum to a Peruvian, accused of taking part
in a military rebellion in Peru. Was Columbia entitled to make a unilateral
and definitive qualification of the offence (as a political offence) in a manner
binding on Peru and was Peru was under a legal obligation to provide safe
passage for the Peruvian to leave Peru?
Facts of the Case: Peru issued an arrest warrant against Victor Raul Haya
de la Torre “in respect of the crime of military rebellion” which took place on
October 3, 1949, in Peru. 3 months after the rebellion, Torre fled to the
Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed
that Torre was granted diplomatic asylum in accordance with Article 2(2) of
the Havana Convention on Asylum of 1928 and requested safe passage for
Torre to leave Peru. Subsequently, the Ambassador also stated Colombia
had qualified Torre as a political refugee in accordance with Article 2
Montevideo Convention on Political Asylum of 1933 (note the term refugee
is not the same as the Refugee Convention of 1951). Peru refused to accept
the unilateral qualification and refused to grant safe passage.
Questions before the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally
qualify the offence for the purpose of asylum under treaty law and
international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a
guarantee of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of
1928 (hereinafter called the Havana Convention) when it granted asylum
and is the continued maintenance of asylum a violation of the treaty?
The Court’s Decision:
Relevant Findings of the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally
qualify the offence for the purpose of asylum under treaty law and
international law?
1. The court stated that in the normal course of granting diplomatic asylum a
diplomatic representative has the competence to make
a provisional qualification of the offence (for example, as a political offence)
and the territorial State has the right to give consent to this qualification. In
the Torre’s case, Colombia has asserted, as the State granting asylum, that
it is competent to qualify the nature of the offence in a unilateral and
definitive manner that is binding on Peru. The court had to decide if such a
decision was binding on Peru either because of treaty law (in particular the
Havana Convention of 1928 and the Montevideo Convention of 1933), other
principles of international law or by way of regional or local custom.
2. The court held that there was no expressed or implied right of unilateral
and definitive qualification of the State that grants asylum under the Havana
Convention or relevant principles of international law (p. 12, 13). The
Montevideo Convention of 1933, which accepts the right of unilateral
qualification, and on which Colombia relied to justify its unilateral
qualification, was not ratified by Peru. The Convention, per say, was not
binding on Peru and considering the low numbers of ratifications the
provisions of the latter Convention cannot be said to reflect customary
international law (p. 15).
3. Colombia also argued that regional or local customs support the
qualification. The court held that the burden of proof on the existence of an
alleged customary law rests with the party making the allegation:
“The Party which relies on a custom of this kind must prove that this custom
is established in such a manner that it has become binding on the other
Party… (that) it is in accordance with a (1) constant and uniform usage (2)
practiced by the States in question, and that this usage is (3) the expression
of a right appertaining to the State granting asylum (Columbia) and (4) a
duty incumbent on the territorial State (in this case, Peru). This follows from
Article 38 of the Statute of the Court, which refers to international custom “as
evidence of a general practice accepted as law(text in brackets added).”
4. The court held that Columbia did not establish the existence of a regional
custom because it failed to prove consistent and uniform usage of the
alleged custom by relevant States. The fluctuations and contradictions in
State practice did not allow for the uniform usage (see also Mendelson,
1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of
State practice). The court also reiterated that the fact that a particular State
practice was followed because of political expediency and not because of a
belief that the said practice is binding on the State by way of a legal
obligation (opinio juris) is detrimental to the formation of a customary law
(see North Sea Continental Shelf Cases and Lotus Case for more on opinio
juris):
“[T]he Colombian Government has referred to a large number of particular
cases in which diplomatic asylum was in fact granted and respected. But it
has not shown that the alleged rule of unilateral and definitive qualification
was invoked or … that it was, apart from conventional stipulations, exercised
by the States granting asylum as a right appertaining to them and respected
by the territorial States as a duty incumbent on them and not merely for
reasons of political expediency. The facts brought to the knowledge of the
Court disclose so much uncertainty and contradiction, so much fluctuation
and discrepancy in the exercise of diplomatic asylum and in the official
views expressed on various occasions, there has been so much
inconsistency in the rapid succession of conventions on asylum, ratified by
some States and rejected by others, and the practice has been so much
influenced by considerations of political expediency in the various cases,
that it is not possible to discern in all this any constant and uniform usage,
mutually accepted as law, with regard to the alleged rule of unilateral and
definitive qualification of the offence.”
5. The court held that even if Colombia could prove that such a regional
custom existed, it would not be binding on Peru, because Peru “far from
having by its attitude adhered to it, has, on the contrary, repudiated it by
refraining from ratifying the Montevideo Conventions of 1933 and 1939,
which were the first to include a rule concerning the qualification of the
offence [as “political” in nature] in matters of diplomatic asylum.” (See in this
regard, the lesson on persistent objectors. Similarly in the North Sea
Continental Shelf Cases the court held ‘in any event the . . . rule would
appear to be inapplicable as against Norway in as much as she had always
opposed any attempt to apply it to the Norwegian coast’.)
6. The court concluded that Columbia, as the State granting asylum, is not
competent to qualify the offence by a unilateral and definitive decision,
binding on Peru.
(2) In this specific case, was Peru, as the territorial State, bound to give a
guarantee of safe passage?
7. The court held that there was no legal obligation on Peru to grant safe
passage either because of the Havana Convention or customary law. In the
case of the Havana Convention, a plain reading of Article 2 results in an
obligation on the territorial state (Peru) to grant safe passage only after it
requests the asylum granting State (Columbia) to send the person granted
asylum outside its national territory (Peru). In this case the Peruvian
government had not asked that Torre leave Peru. On the contrary, it
contested the legality of asylum granted to him and refused to grant safe
conduct.
8. The court looked at the possibility of a customary law emerging from
State practice where diplomatic agents have requested and been granted
safe passage for asylum seekers, before the territorial State could request
for his departure. Once more, the court held that these practices were a
result of a need for expediency and other practice considerations over an
existence of a belief that the act amounts to a legal obligation (see
paragraph 4 above).
“There exists undoubtedly a practice whereby the diplomatic representative
who grants asylum immediately requests a safe conduct without awaiting a
request from the territorial state for the departure of the refugee…but this
practice does not and cannot mean that the State, to whom such a request
for safe-conduct has been addressed, is legally bound to accede to it.”
(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when
it granted asylum and is the continued maintenance of asylum a violation of
the treaty?
9. Article 1 of the Havana Convention states that “It is not permissible for
States to grant asylum… to persons accused or condemned for common
crimes… (such persons) shall be surrendered upon request of the local
government.”
10. In other words, the person-seeking asylum must not be accused of a
common crime (for example, murder would constitute a common crime,
while a political offence would not).The accusations that are relevant are
those made before the granting of asylum. Torre’s accusation related to a
military rebellion, which the court concluded was not a common crime and
as such the granting of asylum complied with Article 1 of the Convention.
11. Article 2 (2) of the Havana Convention states that “Asylum granted to
political offenders in legations, warships, military camps or military aircraft,
shall be respected to the extent in which allowed, as a right or through
humanitarian toleration, by the usages, the conventions or the laws of the
country in which granted and in accordance with the following
provisions: First: Asylum may not be granted except in urgent cases and for
the period of time strictly indispensable for the person who has sought
asylum to ensure in some other way his safety.”
12. An essential pre-requisite for the granting of asylum is the urgency or, in
other words, the presence of “an imminent or persistence of a danger for the
person of the refugee”. The court held that the facts of the case, including
the 3 months that passed between the rebellion and the time when asylum
was sought, did not establish the urgency criteria in this case (pp. 20 -23).
The court held:
“In principle, it is inconceivable that the Havana Convention could have
intended the term “urgent cases” to include the danger of regular
prosecution to which the citizens of any country lay themselves open by
attacking the institutions of that country… In principle, asylum cannot be
opposed to the operation of justice.”
13. In other words, Torre was accused of a crime but he could not be tried in
a court because Colombia granted him asylum. The court held that
“protection from the operation of regular legal proceedings” was not justified
under diplomatic asylum.
14. The court held:
“In the case of diplomatic asylum the refugee is within the territory of the
State. A decision to grant diplomatic asylum involves a derogation from the
sovereignty of that State. It withdraws the offender from the jurisdiction of
the territorial State and constitutes an intervention in matters which are
exclusively within the competence of that State. Such a derogation from
territorial sovereignty cannot be recognised unless its legal basis is
established in each particular case.”
15. As a result, exceptions to this rule are strictly regulated under
international law.
An exception to this rule (asylum should not be granted to those facing
regular prosecutions) can occur only if, in the guise of justice, arbitrary
action is substituted for the rule of law. Such would be the case if the
administration of justice were corrupted by measures clearly prompted by
political aims. Asylum protects the political offender against any measures of
a manifestly extra-legal character which a Government might take or attempt
to take against its political opponents… On the other hand, the safety which
arises out of asylum cannot be construed as a protection against the regular
application of the laws and against the jurisdiction of legally constituted
tribunals. Protection thus understood would authorize the diplomatic agent
to obstruct the application of the laws of the country whereas it is his duty to
respect them… Such a conception, moreover, would come into conflict with
one of the most firmly established traditions of Latin-America, namely, non-
intervention [for example, by Colombia into the internal affairs of another
State like Peru]….
16. Asylum may be granted on “humanitarian grounds to protect political
prisoners against the violent and disorderly action of irresponsible sections
of the population.” (for example during a mob attack where the territorial
State is unable to protect the offender). Torre was not in such a situation at
the time when he sought refuge in the Colombian Embassy at Lima.
17. The court concluded that the grant of asylum and reasons for its
prolongation were not in conformity with Article 2(2) of the Havana
Convention (p. 25).
“The grant of asylum is not an instantaneous act which terminates with the
admission, at a given moment of a refugee to an embassy or a legation. Any
grant of asylum results in, and in consequence, logically implies, a state of
protection, the asylum is granted as long as the continued presence of the
refugee in the embassy prolongs this protection.”
NB: The court also discussed the difference between extradition and
granting of asylum – you can read more on this in pp. 12 – 13 of the
judgment. The discussions on the admissibility of the counter claim of Peru
are set out in pp. 18 – 19.
(DIGEST 2)
Facts Victor Raul Haya de la Torre was a Peruvian national. In Oct 3rd,
1948 one military rebellion broke out in Peru which is organized and directed
by the American People’s Revolutionary Alliance led by Haya de la Torre.
The rebellion was unsuccessful. The Peruvian Government issued a warrant
for his arrest on criminal charges related to this political uprising. He fled to
the Columbian embassy in Lima seeking for asylum from them. Columbia
the requested permission from Peru for Haya de la Torre’s safe passage
from the Columbian embassy, through Peru, goes to Columbia. Peru
refused to give such permission. Columbia then brought this suit against
Peru in the International Court of Justice, based on the agreement made by
both named Act of Lima. These are the submissions made by the two
parties: 1) The Columbian had pleaded for the court to declare that
Columbia had properly granted asylum based on 2 submissions:- a. They
are competent to qualify the offence for the purpose of the said asylum. b.
That Peru is bound to give the guarantees necessary for the departure of
the Haya de la Torre, from the country, with due regard to the inviolability of
his person. 2) Counter-claim by Peru is that for the court to declare that the
grant of asylum made by the Columbian Ambassador to Haya de la Torre
was made in violation of the Convention on Asylum. Argument Plaintiff
(Columbian) arguments based on the Convention in force which are the
Bolivarian Agreement 1911 on Extradition, the Havana Convention 1928 on
Asylum, the Montevideo Convention 1933 on Political Asylum and American
International Law. The Defendant (Peru) counter-claim relied on the rules of
Havana Convention first, Haya de la Torre was accused, not a political
offense but of a common crime and second, because the urgency which
was required under the Havana Convention in order to justify asylum was
absent in that case. Issue 1. Whether or not Columbia is competent in
granting asylum to qualify the offence as based on conventions, which in
force between both countries, and in general from American international
law. 2. Whether or not Peru is bound to give the guarantees necessary for
the departure of the refugees from the country, with due regard to the
inviolability of his person? Decision 1) Columbia was not competent to
qualify the nature of the offence by a unilateral and definitive decision
binding on Peru. 2) Columbia was not entitled to claim that the Peru was
bound to gives guarantees necessary for the departure of Haya de la Torre,
with due regard to the inviolability of his person. 3) Peru counter-claim that
Haya de la Torre was an accused of a common crime was rejected.
Therefore it was not in accordance with Article I, Paragraph I of the Havana
convention. 4) Peru Counter-claim that the grant of asylum by the
Columbian government to Haya de la Torre Torre was made in violation of
Article 2, Paragraph 2 of the Havana Convention was approved by the court.
Ratio Decidendi 1) The court reject the Columbian argument based on
Bolivarian Agreement on the reason that the principle of International Law
did not recognize any rule of unilateral and definitive qualification by the
state granting diplomatic asylum. On the other hand, the Bolivarian
Agreement laid down rules on extradition and it was not possible to deduce
from them conclusions concerning diplomatic asylum as it was different in
the meaning. The court also rejected the Havana Convention invoke by the
Columbian as the convention did not recognize the right of unilateral
qualification. And the third convention, Convention of Montevideo, had not
been ratified by Peru and could not be invoked against it. As for the
American international law, Columbia had failed to prove that it had constant
and uniform practice of unilateral qualification as a right of the State of
refuge and an obligation upon the territorial state. The fact submitted to the
court disclosed too much contradiction and fluctuation, shows that therein a
usage peculiar to Latin America and accepted as law. 2) The court also
rejected the Columbian claim based on Havana Convention that the Peru
was bound to gives guarantees necessary for the departure of Haya de la
Torre, on the reason that the convention only applicable if the territorial
State demanded the departure of the refugee from its territory. It was only
after such demand that the diplomatic Agent who granted asylum could
require safe-conduct. 3) Peru counter-claim that Haya de la Torre was an
accused of a common crime was rejected on the reason that the refugee
was charged for military rebellion, which was not a common crime as
needed under the Havana Convention. 4) The court came into conclusion on
Peru Counter-claim that the grant of asylum by the Columbian government
to Haya de la Torre Torre was made in violation of Article 2, Paragraph 2 of
the Havana Convention was on the reason that the absent of element of
urgency needed to justify the asylum, in order to protect the person from
danger. In this case the danger that only faced by Haya de la Torre is legal
preceding that will be imposed on him, not a deprivation of his right. The
Havana Convention according to the court was not intended to protect a
citizen who had plotted against the institutions of his country from regular
legal proceedings. Asylum could only intervene against the action of justice
in cases where arbitrary action was substituted for the rule of law. Rationale
1) Before a convention can be accepted to be used as the law under Article
38 of Statute of International Court of Justice, it must be ratified by the
contesting state. – This has been shown by the reluctance of the court to
used certain provision in the convention as had not been ratified by the party
country. – Ie: see rules on Montevideo Convention. 2) The principle of
International Law that are not recognizing the rules of unilateral treaty. 3)
This decision also shows us that in order for the custom to be international
custom it must be a general practice. – Ie: see rules on American
International Law
THE NORTH SEA CONTINENTAL SHELF CASES
(GERMANY/DENMARK; GERMANY/NETHERLANDS);
Year of Decision: 1969; and Court: ICJ.
NB: This post discussed only aspects of the case related to treaty or
customary international law.
Overview: The jurisprudence of the North Sea Continental Shelf Cases sets
out the dual requirement for forming customary international law – State
practice (objective element) and opinio juris (subjective element). It
elaborated the criteria necessary to establish State practice – widespread
and representative participation. The case highlighted that the State practice
of importance were of those States whose interests were affected by the
custom. It also identified the fact that uniform and consistent practice was
necessary to show opinio juris – a belief that the practice amounts to a legal
obligation. The North Sea Continental Self Cases also dispelled the myth
that duration of the practice (i.e. the number of years) was an essential
factor in forming customary international law.
The case involved the delimitation of the continental shelf areas in the North
Sea between Germany and Denmark and Germany and Netherlands
beyond the partial boundaries previously agreed upon by these States. The
parties requested the ICJ to decide the principles and rules of international
law that are applicable to the above delimitation. The parties disagreed on
the applicable principles or rules of delimitation – Netherlands and Denmark
relied on the principle of equidistance (the method of determining the
boundaries in such a way that every point in the boundary is equidistant
from the nearest points of the baselines from which the breath of the
territorial sea of each State is measured). Germany sought to get a decision
in favour of the notion that the delimitation of the relevant continental shelf is
governed by the principle that each coastal state is entitled to a just and
equitable share (hereinafter called just and equitable principle/method).
Contrary to Denmark and Netherlands, Germany argued that the principle of
equidistance was neither a mandatory rule in delimitation of the continental
shelf nor a rule of customary international law that was not binding on
Germany. The court was not asked to delimit – the parties agreed to delimit
the continental shelf as between their countries, by agreement, after the
determination of the ICJ on the applicable principles.
Facts of the Case:
Netherlands and Denmark had drawn partial boundary lines based on the
equidistance principle (A-B and C-D). An agreement on further prolongation
of the boundary proved difficult because Denmark and Netherlands wished
this prolongation to take place based on the equidistance principle (B-E and
D-E) where as Germany was of the view that, together, these two
boundaries would produce an inequitable result for her. Germany stated that
due to its concave coastline, such a line would result in her loosing out on
her share of the continental shelf based on proportionality to the length of its
North Sea coastline. The Court had to decide the principles and rules of
international law applicable to this delimitation. In doing so, the court had to
decide if the principles espoused by the parties were binding on the parties
either through treaty law or customary international law.
Questions before the Court (as relevant to this post):
Is Germany under a legal obligation to accept the equidistance-special
circumstances principle, contained in Article 6 of the Geneva Convention,
either as a customary international law rule or on the basis of the Geneva
Convention?
The Court’s Decision:
The use of the equidistance method had not crystallised into customary law
and was is not obligatory for the delimitation of the areas in the North Sea
related to the present proceedings.
Relevant Findings of the Court:
Nature of the treaty obligation: Is the 1958 Geneva Convention, and in
particular Article 6, binding on Germany?
1. Article 6 of the Geneva Convention on the Continental Shelf states that
unless the parties have agreed on a method for delimitation or unless
special circumstances exist, the equidistance method would apply (see
Article 6). Germany has signed but not ratified the Geneva Convention,
while Netherlands and Denmark are parties to the Convention. The latter
two States argue that while Germany is not a party to the Convention (not
having ratified it), she is still bound by Article 6 of the Convention because:
“…(1) by conduct, by public statements and proclamations, and in other
ways, the Republic has unilaterally assumed the obligations of the
Convention; or has manifested its acceptance of the conventional regime; or
has recognized it as being generally applicable to the delimitation of
continental shelf areas…
(2) the Federal Republic had held itself out as so assuming, accepting or
recognizing, in such a manner as to cause other States, and in particular
Denmark and the Netherlands, to rely on the attitude thus taken up” (the
latter is called the principle of estoppel).
2. The Court rejected the first argument. It stated that only a ‘very definite
very consistent course of conduct on the part of a State’ would allow the
court to presume that a State had somehow become bound by a treaty (by a
means other than in a formal manner: i.e. ratification) when the State was ‘at
all times fully able and entitled to…’ accept the treaty commitments in a
formal manner. The Court held that Germany had not unilaterally assumed
obligations under the Convention. The court also took notice of the fact that
even if Germany ratified the treaty, she had the option of entering into a
reservation on Article 6 following which that particular article would no longer
be applicable to Germany (i.e. even if one were to assume that Germany
had intended to become a party to the Convention, it does not presuppose
that it would have also undertaken those obligations contained in Article 6).
3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT),
which came into force in 1980, discusses more fully the obligations of third
States to treaties. It clearly stipulates that an obligation arises for a third
State from a provision of a treaty only if (1) the parties to the treaty intend
the provision to create this obligation for the third States; and (2) the third
State expressly accepts that obligation in writing (A. 35 of the VCLT). The
VCLT was not in force when the ICJ deliberated on this case. However,
as seen above, the ICJ’s position was consistent the VCLT. (See the
relevant provisions of the Vienna Convention on the Law of Treaties).
4. The court held that the existence of a situation of estoppel would have
allowed Article 6 to become binding on Germany – but held that Germany’s
action did not support an argument for estoppel. The court also held that the
mere fact that Germany may not have specifically objected to the
equidistance principle as contained in Article 6 is not sufficient to state that
the principle is now binding upon it.
5. In conclusion, the court held that Germany had not acted in any way to
incur obligations contained in Article 6 of the Geneva Convention. The
equidistance – special circumstances rule was not binding on Germany by
way of treaty.
Nature of the customary international law obligation: Is Germany bound by
the provisions of Article 6 of the Geneva Convention by way of customary
international law?
6. Netherlands and Denmark argued that Article 6 also reflected ‘the
accepted rule of general international law on the subject of continental shelf
delimitation’ and existed independently of the Convention. Therefore, they
argued, Germany is bound by it by way of customary international law.
7. To decide if the equidistance principle bound Germany by way of
customary international law, the court examined (1) the status of the
principle contained in Article 6 as it stood when the Convention was being
drawn up (2) and after the latter came into force.
What was the customary law status of Article 6 at the time of drafting the
Convention?
8. The court held the principle of equidistance, as contained in Article 6, did
not form a part of existing or emerging customary international law at the
time of drafting the Convention. The Court supported this finding based on
(1) the hesitation expressed by the drafters of the Convention – International
Law Commission – on the inclusion of Article 6 (para. 62) and (2) the fact
reservations to Article 6 was permissible under the Convention (Article 12).
The court held:
… Article 6 is one of those in respect of which, under the reservations article
of the Convention (Article 12) reservations may be made by any State on
signing, ratifying or acceding for, speaking generally, it is a characteristic of
purely conventional rules and obligations that, in regard to them, some
faculty of making unilateral reservations may, within certain limits, be
admitted; whereas this cannot be so in the case of general or customary law
rules and obligations which, by their very nature, must have equal force for
all members of the international community, and cannot therefore be the
subject of any right of unilateral exclusion exercisable at will by any one of
them in its own favor…. The normal inference would therefore be that any
articles that do not figure among those excluded from the faculty of
reservation under Article 12, were not regarded as declaratory of previously
existing or emergent rules of law (see para 65 for a counter argument and
the court’s careful differentiation)…”
Did the provisions in Article 6 on the equidistance principle attain the
customary law status after the Convention came into force?
9. The court then examined whether the rule contained in Article 6 had
become customary international law after the Convention entered into force
– either due the convention itself (i.e., if enough States had ratified the
Convention in a manner to fulfil the criteria specified below), or because of
subsequent State practice (i.e. even if adequate number of States had not
ratified the Convention one could find sufficient State practice to meet the
criteria below). The court held that Article 6 of the Convention had not
attained a customary law status (compare the 1958 Geneva Convention with
the four Geneva Conventions on 1949 in the field of international
humanitarian law in terms of its authority as a pronouncement of customary
international law).
10. For a customary rule to emerge the court held that it needed: (1) very
widespread and representative participation in the convention, including
States whose interests were specially affected (i.e. generality); and (2)
virtually uniform practice (i.e. consistent and uniform usage) undertaken in a
manner that demonstrates (3) a general recognition of the rule of law or
legal obligation (i.e. opinio juries). In the North Sea Continental Shelf cases
the court held that the passage of a considerable period of time was
unnecessary (i.e. duration) for the formation of a customary law.
Widespread and representative participation
11. The court held that the first criteria was not met. The number of
ratifications and accessions to the convention (39 States) were not
adequately representative (including of coastal States – i.e. those States
whose rights are affected) or widespread.
Duration
12. The court held that duration taken for the customary law rule to emerge
is not as important as widespread and representative participation, uniform
usage and the existence of an opinio juris.
“Although the passage of only a short period of time (in this case, 3 – 5
years) is not necessarily, or of itself, a bar to the formation of a new rule of
customary international law on the basis of what was originally a purely
conventional rule, an indispensable requirement would be that within the
period in question, short though it might be, State practice, including that of
States whose interests are specially affected, should have been both
extensive and virtually uniform in the sense of the provision invoked and
should moreover have occurred in such a way as to show a general
recognition that a rule of law or legal obligation is involved (text in brackets
added).”
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in
omissions (Lotus case) in so far as those acts or omissions are
done following a belief that the said State is obligated by law to act or refrain
from acting in a particular way. (For more on opinio juris click here).
14. The Court examined 15 cases where States had delimited their
boundaries using the equidistance method, after the Convention came into
force (paras. 75 -77). The court concluded, even if there were some State
practice in favour of the equidistance principle the court could not deduct the
necessary opinio juris from this State practice. The North Sea Continental
Shelf Cases confirmed that both State practice (the objective element)
and opinio juris (the subjective element) are essential pre-requisites for the
formation of a customary law rule. This is consistent with Article 38 (1) (b) of
the Statute of the ICJ. The following explains the concept of opinio juris and
the difference between customs (i.e. habits) and customary law:
Not only must the acts concerned amount to a settled practice, but they
must also be such, or be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule of
law requiring it. The need for such a belief, i.e, the existence of a subjective
element, is implicit in the very notion of the opinio juris sive necessitatis. The
States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character
of the acts is not in itself enough. There are many international acts, e.g., in
the field of ceremonial and protocol, which are performed almost invariably,
but which are motivated only by considerations of courtesy, convenience or
tradition, and not by any sense of legal duty.
15. The court concluded that the equidistance principle was not binding on
Germany by way of treaty or customary international law because, in the
case of the latter, the principle had not attained a customary international
law status at the time of the entry into force of the Geneva Convention or
thereafter. As such, the court held that the use of the equidistance method is
not obligatory for the delimitation of the areas concerned in the present
proceedings.
NUCLEAR TEST CASE
(AUSTRALIA VS NEW ZEALAND VS FRANCE)
1974 ICJ 253, December 20, 1974
Synopsis:France in the South Pacific completed a series of nuclear tests.
This action prompted Australia and New Zealand to apply to the I.C.J.
demanding that France cease testing immediately. Before the case could be
completed, France announced it had completed the test and did not plan
any further test. So France moved for the dismissal of the application, which
was upheld by the court, averring that France’s Declaration made through
unilateral acts may have the effect of creating legal obligations. In this case,
the statement made by the President of France must be held to constitute
an engagement of the State in regard to the circumstances and intention
with which they were made. Therefore, these statement made by the France
are relevant and legally binding.
Facts: In 1974 Australia and New Zealand challenged France for
conducting atmospheric nuclear testing in the South Pacific. It was further
claimed that the test gives rise to radioactive fall out which had an alleged
adverse effects on their respective territories. In more detail the
aforementioned governments asked the International Court of Justice to
declare that the conduct by the French Government constitutes a violation of
New Zealand and Australia’s rights under international law, and that these
rights will be violated by any such further tests.
France on the other challenged the jurisdiction of the court. They
did not appear in the proceedings nor filed any pleadings. During the
jurisdictional deliberation by the International Court of Justice, France
declared its intention to stop atmospheric nuclear testing under normal
conditions and to shift its operation underground. Consequently Australia
and New Zealand objected alleging that the termination of atmospheric
testing is not an assurance that the nuclear testing will cease completely.
Issue: Whether or not the unilateral declaration of France to stop the
nuclear testing established an erga omnes obligation to stop nuclear testing.
Ruling: YES, The Court held that the dispute no longer exists and
proceeding with the case would be futile. Hence the court did not rule on the
legality of the nuclear testing.
In announcing that the 1974 series of atmospheric tests would be
the last, the French Government conveyed to the world at large, including
the Applicant, its intention effectively to terminate these tests. It was bound
to assume that other States might take note of these statements and rely on
their being effective. The validity of these statements and their legal
consequences must be considered within the general framework of the
security of international intercourse, and the confidence and trust, which are
so essential in the relations among States. It is from the actual substance of
these statements and from the circumstances attending their making, that
the legal implications of the unilateral act must be deduced. The objects of
these statements are clear and they were addressed to the international
community as a whole, and the Court holds that they constitute an
undertaking possessing legal effect. The Court considers that the President
of the Republic, in deciding upon the effective cessation of atmospheric
tests, gave an undertaking to the inter- national community to which his
words were addressed. It is true that the French Government has
consistently maintained that its nuclear experiments do not contravene any
subsisting provision of international law, nor did France recognize that it was
bound by any rule of international law to terminate its tests, but this does not
affect the legal consequences of the statements examined above. The Court
finds that the unilateral undertaking resulting from these statements cannot
be interpreted as having been made in implicit reliance on an arbitrary
power of reconsideration. The Court finds further that the French
Government has undertaken an obligation the precise nature and limits of
which must be understood in accordance with the actual terms in which they
have been publicly expressed.
Overview: Australia and New Zealand (P) demanded that France (D) cease
atmospheric nuclear tests in the South Pacific. France (D) completed a
series of nuclear tests in the South Pacific. Australia and New Zealand (P)
applied to the !.C.). demanding that France (D) cease testing immediately.
While the case was pending, France (D) announced the series of tests was
complete and that it did not plan any further such tests. France (D) moved to
dismiss the applications.
Issue: May declarations made by way of unilateral acts have the effect of
creating legal obligations?
Rule: declerations made by way of unilateral acts may have the effect of
creating legal obligations.
Analysis: The unilateral statements made by French authorities were first
communicated to the government of Australia. To have legal effect there
was no need tor the statements to be directed to any particular state. The
general nature and characteristics of the statements alone were relevant for
evaluation of their legal implications.
Outcome: Yes. Declarations made by way of unilateral acts may have the
effect of creating legal obligations. The sole relevant question is whether the
language employed in any given declaration reveals a clear intention. One
of the basic principles governing the creation and performance of legal
obligations is the principle of good faith. The statements made by the
President of the French Republic must be held to constitute an engagement
of the State in regard to the circumstances and intention with which they
were made. The statements made by the French authorities are therefore
relevant and legally binding. Applications dismissed.
CASE CONCERNING THE MILITARY AND PARAMILITARY ACTIVITIES
IN AND AGAINST NICARAGUA (NICARAGUA VS UNITED STATES)
Year of Decision: 1986. Court: ICJ.
NB: This blog post will discuss only the court’s deliberations on
customary international law.For a brief summary of the facts and matters
on the definition of an armed attack, use of force, self-defense and
intervention, the reader is referred to a previous post.
Overview: The case involved military and paramilitary activities conducted
by, or with the assistance of, the United States against Nicaragua from 1981
to 1984. Due to a multilateral treaty reservation of the United States
(hereinafter called the Vandenberg reservation), the Court was compelled to
base its findings only on customary and general principles of international
law. As a result, the Nicaragua case developed significant jurisprudence on
clarifying customary international law on the use of force and non-
intervention, elements necessary to form customary international law and
the relationship between the latter and treaty law. Controversial aspects of
the decision included the court’s methodology used to determine that the
principle of non-intervention had attained customary law status, the court’s
reliance on UN resolutions as a source of opinio juris and the court’s
reliance on multilateral treaties to determine customary international law in
face of the Vandenberg reservation.
Recommendation: The Nicaragua case contains in-depth discussions on
the relationship between treaty and customary international law. Students
may wish to read this post on the relationship before reading the synopsis of
the case.
In the Nicaragua case, the ICJ discussed:
 The competence of the ICJ to give its determination based on
customary international law in the face of the Vandenberg
reservation of the United States.
 The relationship between treaty law and customary international
law.
 Elements of customary international law.
 The prohibition on the use of force as a jus cogens norm.
 Customary international law status of the principle of non-
intervention.
The competence of the ICJ to give its determination based on
customary international law
1. The United States when accepting the compulsory jurisdiction of the
ICJ (under Article 36(2) of the ICJ Statute) entered into the Vandenberg
reservation. This reservation barred the ICJ from using certain multilateral
treaties in the adjudication of the dispute.
2. The United States held that this reservation barred the Court from
determining the case even on the basis of customary and general principles
of international law because customary law provisions, on which Nicaragua
relied on, were identical to provisions in treaties sought to be excluded.
Because of the identical content, the United States argued, treaty provisions
supervene and subsume the parallel customary law provision (see below).
3. The Court disagreed. It held that multilateral treaty reservations could not
preclude the Court from determining cases relying customary international
law because the latter exists independently of treaty law.
NB: The United States disagreed with the Court’s determination to proceed
with the case and refused to participate further, including at the merits stage
(see the declaration made by the United States in this regard). Although the
Court was barred from resorting to multilateral treaties, it referred to the
latter, including the UN Charter, to identify the existence, nature and scope
of various customary law principles. Commentators criticised the Court for
circumventing the multilateral reservation in this manner.
Relationship between treaty law and customary international law
4. As we noted before, the United States argued that when customary
international law and treaty law contain the same content; the treaty law
subsumes and supervenes customary international law. In other words, “the
existence of principles in the United Nations Charter precludes the
possibility that similar rules might exist independently in customary
international law, either because existing customary rules had been
incorporated into the Charter, or because the Charter influenced the later
adoption of customary rules with a corresponding content” (para 174).
5. In its response, the Court distinguished two situations:
(a) Situations where the customary law principles were identical to treaty
provisions; and
(b) Situations where customary law and treaty law rights and obligations
differed in respect of the same subject matter.
6. In situations where customary law principles were identical to treaty
provisions (reflected as (a) above), the Court, quite correctly, disagreed with
the view of the United States. It held that even if principles of customary
international law are codified into treaties, the former continues to exist side
by side with the latter. For treaty parties, both customary and treaty law
apply and if, for some reason, the treaty ceases to apply the identical
customary law provision continues to apply between them unaffected (see
more on para 178).
7. The fact that customary international law exists alongside treaty law was
an argument brought by Norway and Denmark in the North Sea Continental
Shelf Cases. In these cases, the two countries having failed to attribute an
obligation under Article 6 of the Geneva Conventions of 1958 to Germany,
sought to bind Germany via customary international law. In this case the
Court determined that Article 6 neither reflected customary law at the time of
the codification, nor had it attained that status at the time of the
determination. In the Nicaragua case, the Court relied on the North Sea
Continental Shelf Cases to support the assertion that principles of
customary international law can exist side by side with identical treaty law
provisions and the latter does not supervene the former in a manner where
the former ceases to exist (para 177).
8. The Court also relied on Article 51 of the UN Charter to show that a treaty
itself can recognise the existence of customary international law on the
same subject matter. The term “inherent” in Article 51 recognised that
customary law rights of self-defense existed alongside treaty provisions.
9. Rules containing the same content could be treated differently in
customary international law and in treaty law. For example, treaty law may
contain institutions or mechanisms to ensure the effective implementation of
its provisions, including those that reflect customary law. One could take the
Court’s reading of Article 51 as an example. A State that exercises the right
of self-defence under Article 51, according to the UN Charter, has an
obligation to report the use of force immediately to the Security Council. The
Court held that this was a treaty requirement and one that did not exist
under customary law. Interestingly, although the failure to report did not
result in a breach of customary international law, the Court indicated that the
United State’s failure to observe this requirement contradicted her claim to
be acting in self defence (see paras 200, 235).
10. The Court discussed situations where customary international law and
treaty law provisions were not identical (see point (b) above). For example,
the Court referred to the fact that concepts such and necessity and
proportionality, or the definition of what constitutes an armed attack, are not
found under Article 51, or the UN Charter, but in customary law. The Court
concluded that (1) this proves that customary international law continues to
exist alongside treaty law and that (2) areas governed by the two sources of
law do not (always) overlap and the rules do not (always) have the same
content.
“…the Charter, having itself recognized the existence of this right (inherent
customary law right of self-defence under A. 51 of the UN Charter), does not
go on to regulate directly all aspects of its content. For example, it does not
contain any specific rule whereby self-defence would warrant only measures
which are proportional to the armed attack and necessary to respond to it, a
rule well established in customary international law. Moreover, a definition of
the “armed attack” which, if found to exist, authorises the exercise of the
“inherent right” of self-defence, is not provided in the Charter, and is not part
of treaty law. It cannot therefore be held that Article 51 is a provision which
“subsumes and supervenes” customary international law.”
11. In case of a divergence between treaty law and customary international
law, for the parties to the treaty, amongst themselves, the treaty provisions
apply as lex specialis. The court’s support for this principle can be found in
paras 180 and 181. The Court, in conclusion, explained the relationship
between the UN Charter and customary international law in the following
manner:
“However, so far from having constituted a marked departure from a
customary international law which still exists unmodified, the Charter gave
expression in this field (on the use of force and self defence) to principles
already present in customary international law, and that law has in the
subsequent four decades developed under the influence of the Charter, to
such an extent that a number of rules contained in the Charter have
acquired a status independent of it. The essential consideration is that both
the Charter and the customary international law flow from a common
fundamental principle outlawing the use of force in international relations.
The differences which may exist between the specific content of each are
not, in the Court’s view, such as to cause a judgment confined to the field of
customary international law to be ineffective or inappropriate (to the parties
of the Charter who are bound by the Charter)… (text in brackets
added)(para 181).”
The relationship between customary international law and jus cogens
13. The court cited material presented by Nicaragua, the United States and
the International Law Commission to argue that the prohibition on the use of
force contained in Article 2(4) of the UN Charter has attained the status of a
jus cogens norm. The Court found this to be “A further confirmation of the
validity as customary international law of the principle of the prohibition of
the use of force expressed in Article 2, paragraph 4, of the Charter of the
United Nations…” (para 190).
The necessary elements to determine the existence of customary
international law
14. The Court, similar to the North Sea Continental Shelf Case, considered
both the subjective element (opinio juris) and the objective element (State
practice) as essential pre-requisites to the formation and elucidation of a
customary international law norm (para 207). The jurisprudence of the
Nicaragua case contained an important clarification – inconsistent State
practice does not affect the formation or continued existence of a customary
principle so long as the inconsistency is justified as a breach of the rule.
“It is not to be expected that in the practice of States the application of the
rules in question should have been perfect, in the sense that States should
have refrained, with complete consistency, from the use of force or from
intervention in each other’s internal affairs.
The Court does not consider that, for a rule to be established as customary,
the corresponding practice must be in absolutely rigorous conformity with
the rule. In order to deduce the existence of customary rules, the Court
deems it sufficient that the conduct of States should, in general, be
consistent with such rules, and that instances of State conduct inconsistent
with a given rule should generally have been treated as breaches of that
rule, not as indications of the recognition of a new rule.
If a State acts in a way prima facie incompatible with a recognized rule, but
defends its conduct by appealing to exceptions or justifications contained
within the rule itself, then whether or not the State’s conduct is in fact
justifiable on that basis, the significance of that attitude is to confirm rather
than to weaken the rule. (para 186)”
15. The Nicaragua jurisprudence explained how one could deduct opinio
juris from acts of State. The Court held that opinio juris could be deduced
from:
– the attitude of States towards certain General Assembly resolutions. For
example, the “Declaration on Principles of International Law concerning
Friendly Relations…” (hereafter called the Declaration on Friendly
Relations). The Court held that:
“The effect of consent to the text of such resolutions cannot be understood
as merely that of a “reiteration or elucidation” of the treaty commitment
undertaken in the Charter. On the contrary, it may be understood as an
acceptance of the validity of the rule or set of rules declared by the
resolution by themselves…It would therefore seem apparent that the attitude
referred to expresses an opinio juris respecting such rule (or set of rules), to
be thenceforth treated separately from the provisions, especially those of an
institutional kind, to which it is subject on the treaty-law plane of the
Charter”
– Statements by State representatives.
– Obligations undertaken by participating States in international forums
(the Court provided the example of the Conference on Security and Co-
operation in Europe, Helsinki)
– The International Law Commission’s findings that a concept amounts to a
customary law principle.
– Multilateral conventions.
NB: The fact that the Court relied on resolutions of the United Nations to
deduct opinio juris was subject to criticism. As you know, opinio juris is the
subjective element necessary to form customary law. Opinio juris is reflected
in instances where the State undertakes a particular practice because it
believes that it is legally bound to do so. Voting patterns in the United
Nations are often guided by policy considerations over legal merits. The
General Assembly’s subject matter is more policy oriented than legal (for
which we have the 6th Committee). For example, when the United States
voted for the Friendly Relations Declaration it stated on record its belief that
the Declaration was “only a statement of political intention and not an
expression of the law.” This is not to say that provisions on General
Assembly Resolutions that guide the international community to act in a
certain way may not eventually become binding international law (either by
attaining customary law status or becoming codified into treaty law). It can, if
there is adequate State practice and opinio juris. The argument is that opinio
juris cannot be said to exist based merely on a vote in favour of a non-
binding resolution – in the absence of an examination of subsequent
consistent and general State practice (which, in turn, reflects or confirms
opinio juris).
Customary international law relating to principles of non-intervention
16. The Court held that “Principles such as those of the non-use of force
(para 191), non-intervention (para 192), respect for the independence and
territorial integrity of States, right of collective self defence (para 193) and
the freedom of navigation, continue to be binding as part of customary
international law, despite the operation of provisions of conventional law in
which they have been incorporated (text in brackets added).”
17. The Court’s finding that principle of non-intervention formed a part of
customary international law invited criticism from commentators, partly
because they disagreed that the principle formed customary international
law and partly because of the Court’s own contradictions in coming to its
conclusions and inadequacy of analysis (see below). The Court’s
contradiction stems from this statement: ” The principle of non-intervention
involves the right of every sovereign State to conduct its affairs without
outside interference; though examples of trespass against this principle
are not infrequent, the Court considers that it is part and parcel of
customary international law…”(emphasis added. Para 202).
18. The Court began its analysis with two questions: “Notwithstanding the
multiplicity of declarations by States accepting the principle of non-
intervention, there remain two questions: first, what is the exact content of
the principle so accepted, and secondly, is the practice sufficiently in
conformity with it for this to be a rule of customary international law?” The
first question was discussed in a previous post and will not be discussed
here.

18. Although the question seemed to direct the Court towards identifying an
existing custom, in its response the Court seemed to have already
determined that the customary law prohibition of non-intervention existed. In
the following passage the Court deliberates if, in contrast, a customary law
right to intervention had evolved.
“There have been in recent years a number of instances of foreign
intervention for the benefit of forces opposed to the government of another
State. The Court is not here concerned with the process of decolonisation…
It has to consider whether there might be indications of a practice illustrative
of belief in a kind of general right for States to intervene, directly or
indirectly, with or without armed force, in support of an internal opposition in
another State, whose cause appeared particularly worthy by reason of the
political and moral values with which it was identified. For such a general
right to come into existence would involve a fundamental modification of the
customary law principle of non-intervention.” (paras 206, 207).
19. The Court went on to hold, as before, that for a new customary rule to be
formed, not only must the acts concerned “amount to a settled practice”, but
they must be accompanied by the opinio juris sive necessitates”.
“The significance for the Court of cases of State conduct prima facie
inconsistent with the principle of non-intervention lies in the nature of the
ground offered as justification. Reliance by a State on a novel right or an
unprecedented exception to the principle might, if shared in principle by
other States, tend towards a modification of customary international law. In
fact however the Court finds that States have not justified their conduct by
reference to a new right of intervention or a new exception to the principle of
its prohibition. The United States authorities have on some occasions clearly
stated their grounds for intervening in the affairs of a foreign State for
reasons connected with, for example, the domestic policies of that country,
its ideology, the level of its armaments, or the direction of its foreign policy.
But these were statements of international policy, and not an assertion of
rules of existing international law.”
20. The Court also noted that the United States has not sought to justify its
intervention in Nicaragua on legal grounds, but had only justified it at a
political level. The United States had not asserted for itself legal right of
intervention in these circumstances. The Court, without further analysis into
State practice, almost immediately proceeded to find that “…no such
general right of intervention, in support of an opposition within another State,
exists in contemporary international law. The Court concludes that acts
constituting a breach of the customary principle of non-intervention will also,
if they directly or indirectly involve the use of force, constitute a breach of the
principle of non-use of force in international relations (para 209).”
Development of a parallel customary international law?
In addition to the comments made above in italics, another interesting
aspect of the judgment is that it sought to divorce customary international
law obligation from the identical treaty obligation because of the
jurisdictional bar to consider multilateral treaties. In its consideration of
customary international law it developed certain principles independently of
the treaty. For example, Article 2(4) of the UN Charter prohibits the threat or
use of force against another State. The Court held that the same prohibition
on the use of force could be found under customary international law and as
a jus cogens norm. The Court then went on to categorize the use of force
under customary law as either a “grave use of force” (i.e. use of force
amounting to an armed attack) or a “less grave use of force” (i.e. use of
force that falls short of an armed attack – for example, the threat to use
force). The Court, then, restricted the right of self-defense to a situation
where there had been a grave use of force (or an armed attack, as defined
by the Court). If one were to hold that the relevant Charter principles were
clear, precise and unambiguous, one could say this divorced interpretation
could result in customary law developing in a manner that is not in line with
the Charter and thereby creating separate rights/ regimes of law that govern
the same subject matter. This is because, then, the two regimes would be
irreconcilable. However, the fact remains that the Charter does leave room
for interpretation – for example, on the definition of an armed attack or on
the use of force. In cases of ambiguity, Article 31 of the Vienna Convention
on the Law of Treaties directs us to look at, inter alia, subsequent practice
and any relevant rules of international law that maybe applicable. In other
words, a treaty can be interpreted with the assistance of customary and
general principles of international law. In this case, the development of
customary law would also mean a potential development of ambiguous
treaty law – and a reconciliation of treaty and customary law provisions.
Material on the Nicaragua case
The following contains a list of scholarly articles and other material that
discuss the Nicaragua case. If you would like to add to the list, please note
your suggestions in the comment box.
The judgment including separate opinions of individual
judges and summaries of the judgment and orders
The World Court and Jus Cogens, 81 AMJIL 93, Gorden A.
Christenson. Christenson argues that an independent development of the
customary law right divorced from the treaty can have wider consequences:
We have then a double irony. The Court uses the United States position
accepting the treaty norm against the threat or use of force also as a
customary norm possibly having jus cogens quality, in part, to justify taking
jurisdiction as a matter quite independent of the norm that otherwise falls
under the multilateral treaty reservation. Since there are two separate
sources of the law, the choice of the one source rather than the other means
that the norm relied upon survives the jurisdictional bar to the use of the
other. Yet the two norms are not different enough to undermine completely
the content of the Charter norm. This formalism simply masks the more
interesting question of the Court’s institutional claim, given the
ineffectiveness of the UN Security system, to develop an international public
order case by case, by breaking away form the strictures of the Charter and
treaty norms. The Court untied the treaty norms from their constraints within
the United Nations or regional collective security systems, a potentially
destabilizing decision, one whose consequences are unforeseen. The
decision based on the validity of an autonomous norm of customary
international law free from the Charter is a constitutive one of potential great
significance (81 AMJIL 100, 1987).
Trashing customary international law, Antony D’Amato, 81 AMJIL 102
(1987) (full text): (D’Amato discusses the paucity of State practice examined
by the international court of justice before concluding that the principle non-
intervention formed part of customary international law. He argues that the
acceptance of General Assembly resolutions do not manifest opinio juris. He
states that the Court failed to consider that Article 2(4) continued to evolve
through the years.)
The World Court’s Achievement, Richard Falk, 81 AMJIL 106 (Falk takes a
generally positive approach to the judgment, gives a good overview of the
case and Judge Shwebel’s dissent)
Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a cold-war
contextual approach to the judgment and supports the Court’s narrow view
of an armed attack and self defence).
Some observations on the ICJ’s procedural and substantive innovations,
Thomas M. Franck, 81 AMJIL 116 (criticizes the determination of relevant
State practice in relation to non-intervention and the reliance on UN
resolutions to illicit opinio juris (it alleges that the Court sought to harden soft
law prematurely). Frank points out that the interventions falling short of
armed attacks would not allow States to target rebel groups in another
State’s territory even if the insurgency is planned, trained, armed and
directed from that territory).
Protecting the Court’s institutional interests: Why not the Marbury approach?
Michael J. Glennon, 81 AMJIL 121 (discusses reservations before the ICJ
and the Court’s prerogative to determine its own jurisdiction)
Discretion to decline to exercise jurisdiction, Edward Gorden, 81 AMJIL
129 (discusses the discretionary power of the court to decline to exercise its
jurisdiction at the merit stages).
The Nicaragua judgment and the future of the law of force and self-defense,
John Lawrence Hargrove 81AMJIL 135 (Hargrove criticizes the ICJ’s
construction of the notion of collective self defense, armed attack and
forcible countermeasures).
Somber reflections on the compulsory jurisdiction of the international court,
Mark Weston Janis, 81 AMJIL 144
Custom on a sliding scale, Frederic L. Kirgis 81 AMJIL 146 (Kirgis discusses
the relationship between State practice and opinio juris, criticizes the
methods (or lack thereof) of the Court in determining the customary law
nature of Article 2(4) of the Charter. Points out that actual State practice on
intervention did not support the Court’s findings).
The International Court lives unto its name, Herbert W. Briggs, 81 AMJIL 78.
Determining US responsibility for contra operations under international law,
Francis V. Boyle
Customary international law in the Nicaragua Case, Rijpkema. (Abstract: On
27 June 1986 the International Court of Justice passed judgment in the case
concerning military and paramilitary activities in and against Nicaragua.
Because of a reservation that the United States had made when it accepted
the jurisdiction of the Court, the Court could not pronounce a decision
regarding the dispute insofar as it concerned multilateral convertions. As a
resuld of this, the Court was compelled to base its judgment largely on rules
of customary international law and general principles of law. The rules of
customary law which were relevant for the judgment corresponded to a
significant extent, as regards their content, to the rules of treaty law which
the Court was unable to apply, such as the prohibition on the use of force of
Article 2, paragraph 4 of the Charter of the United Nations. This led the
Court to indicate in precise terms how rules of treaty law and rules of
customary law which have a corressponding content can co-exist and how
the existence of rules of customary international law can be established in
general. In addition, the Court examined in some detail the existence and
content of certain specific rules of customary international law.)
Le peuple, c’est moi!The world court and human rights, 81 AMJIL 173
LJIL Symposium: Discussion of the ICJ Nicaragua Judgment
The Impact of the Nicaragua Case on the Court and Its Role: Harmful,
Helpful, or In Between?, Lori Fisler Damrosch (Abstract: At the time the
United States withdrew from participation in the Nicaragua case at the
International Court of Justice, the US government expressed concern that
‘the course on which the Court may now be embarked could do enormous
harm to it as an institution and to the cause of international law’. This essay
examines whether or to what extent the anticipated negative effects came to
pass. It concludes that dire predictions of harm to the Court were overstated.
Twenty-five years later, the rate at which states accept the Court’s
jurisdiction has held steady. Only a few states have added jurisdictional
reservations concerning military activities. The mix of cases being brought to
the Court has shifted towards a more representative distribution. States are
generally complying with the Court’s decisions, though some compliance
problems remain. The most serious negative impact has been on the
willingness of the United States (still the Court’s most active litigant) to
participate fully in international dispute settlement.)
LJIL Symposium: The Nicaragua Case: Its Impact, John Dugard
LJIL Symposium: Response of Lori F. Damrosch to Comments by John
Dugard, Lori F. Damrosch
The Principle of Non-Intervention 25 Years after the Nicaragua Judgment,
by Marcelo Kohen (Abstract: This article focuses on the analysis by the
International Court of Justice of the principle of non-intervention in domestic
affairs in its judgment of 27 June 1986 in the case concerning Military and
Paramilitary Activities in and against Nicaragua and contrasts it with the
evolution of international law and practice in this field. It is proposed that the
Court’s 1986 analysis not only remains of actuality today, but also
constitutes a precursor to legal developments that have since taken place.
This is particularly the case with regard to the relationship between the
protection of human rights on the one hand and the safeguard of state
sovereignty and the collective security regime on the other. The 1986
judgment helped to clarify the content of humanitarian assistance. It
constituted the starting point for the development of this concept in a series
of GA resolutions that were subsequently adopted. The controversial
doctrine of ‘humanitarian intervention’, as well as state practice in violation
of this principle, in no way led to modifying existing international law.
Similarly, the new concept of ‘responsibility to protect’, which places
emphasis on collective security and discounts unilateral action, has not led
to the disappearance of the principle of non-intervention either.)
LJIL Symposium: From Nicaragua to R2P: Continuity and Change, André
Nollkaemper
Brief Fact Summary. Nicaragua (P) brought a suit against the United States
(D) on the ground that the United States (D) was responsible for illegal
military and paramilitary activities in and against Nicaragua. The jurisdiction
of the International Court of Justice to entertain the case as well as the
admissibility of Nicaragua’s (P) application to the I.C.J. was challenged by
the United States (D).
(DIGEST 2)
Synopsis of Rule of Law. Nicaragua (P) brought a suit against the United
States (D) on the ground that the United States (D) was responsible for
illegal military and paramilitary activities in and against Nicaragua. The
jurisdiction of the International Court of Justice to entertain the case as well
as the admissibility of Nicaragua’s (P) application to the I.C.J. was
challenged by the United States (D).
Facts. The United States (D) challenged the jurisdiction of the I.C.J when it
was held responsible for illegal military and paramilitary activities in and
against Nicaragua (P) in the suit the plaintiff brought against the defendant
in 1984. Though a declaration accepting the mandatory jurisdiction of the
Court was deposited by the United States (D) in a 1946, it tried to justify the
declaration in a 1984 notification by referring to the 1946 declaration and
stating in part that the declaration “shall not apply to disputes with any
Central American State….”
Apart from maintaining the ground that the I.C.J lacked jurisdiction, the
States (D) also argued that Nicaragua (P) failed to deposit a similar
declaration to the Court. On the other hand, Nicaragua (P) based its
argument on its reliance on the 1946 declaration made by the United states
(D) due to the fact that it was a “state accepting the same obligation” as the
United States (D) when it filed charges in the I.C.J. against the United States
(D).
Also, the plaintiff intent to submit to the compulsory jurisdiction of the I.C.J.
was pointed out by the valid declaration it made in 1929 with the I.C.J’s
predecessor, which was the Permanent Court of International Justice, even
though Nicaragua had failed to deposit it with that court. The admissibility of
Nicaragua’s (P) application to the I.C.J. was also challenged by the United
States (D).
Issue. (1) Is the jurisdiction to entertain a dispute between two states, if they
both accept the Court’s jurisdiction, within the jurisdiction of the International
Court of Justice?
(2) Where no grounds exist to exclude the application of a state, is the
application of such a state to the International Court of Justice admissible?
Held. (1) Yes. The jurisdiction of the Court to entertain a dispute between
two states if each of the States accepted the Court’s jurisdiction is within the
jurisdiction of the International Court of Justice. Even though Nicaragua (P)
declaration of 1929 was not deposited with the Permanent Court, because
of the potential effect it had that it would last for many years, it was valid.
Thus, it maintained its effect when Nicaragua became a party to the Statute
of the I.C.J because the declaration was made unconditionally and was valid
for an unlimited period. The intention of the current drafters of the current
Statute was to maintain the greatest possible continuity between it and the
Permanent Court. Thus, when Nicaragua (P) accepted the Statute, this
would have been deemed that the plaintiff had given its consent to the
transfer of its declaration to the I.C.J.
(2) Yes. When no grounds exist to exclude the application of a state, the
application of such a state to the International Court of Justice is admissible.
The five grounds upon which the United States (D) challenged the
admissibility of Nicaragua’s (P) application were that the plaintiff failed
because there is no “indispensable parties” rule when it could not bring forth
necessary parties, Nicaragua’s (P) request of the Court to consider the
possibility of a threat to peace which is the exclusive province of the Security
Council, failed due to the fact that I.C.J. can exercise jurisdiction which is
concurrent with that of the Security Council, that the I.C.J. is unable to deal
with situations involving ongoing armed conflict and that there is nothing
compelling the I.C.J. to decline to consider one aspect of a dispute just
because the dispute has other aspects due to the fact that the case is
incompatible with the Contadora process to which Nicaragua (P) is a party.
Discussion. Although the questions of jurisdiction and admissibility are
primarily based on the principle that the I.C.J. has only as much power as
that agreed to by the parties, these can be quite complicated. The 1946
declaration of the United States and the 1929 declaration of Nicaragua was
the main focus of the case on declaration and each of these declarations
pointed out the respective parties’ intent as it related to the I.C.J’s
jurisdiction.
Issue:
(I) Does the International Court of Justice have jurisdiction to hear a dispute
between two states if each accepted the Court’s jurisdiction? (2) Is the
application by a state to the International Court of Justice admissible where
no grounds exist to exclude it?
Rule:
(1) the ICJ has jurisdiction to hear a dispute between two states if each
accepted court’s jurisdiction; (2)the application by a state to the ICJ is
admissible where no grounds exist to exclude it
Analysis:
The questions of jurisdiction and admissibility are very complicated, but are
based primarily on the principle that the I.C.J. has ono/ as much power as
that agreed to by the parties. A primary focus of the case was on the
declarations-the 1946 declaration of the United States, and the 1929
declaration of Nicaragua-and what each declaration indicated about the
respective parties’ intent as it relates to the I.C.J.’s jurisdiction .
Outcome:
(I) Yes. The International Court of Justice has jurisdiction to hear a
dispute between two states if each accepted the Court’s jurisdiction.
Nicaragua’s (P) declaration of 1929 is valid even though it was not
deposited with the Permanent Court, because it had potential
effect that would last for many years. Because it was
made unconditionally and was valid for an unlimited period, it retained
its potential effect when Nicaragua (P) became a party to the Statute of
the I. C.). The drafters of the current Statute wanted to maintain the
greatest possible continuity between it and the Permanent Court.
Nicaragua (P) may be deemed to have given its consent to the transfer of
its declaration to the l.C.]. when it accepted the Statute. In addition, the
conduct of Nicaragua (P) and the United States (D) suggest that both
intended to be bound by the compulsory jurisdiction of the I. C.)., and
the conduct ofthe United States (D) constitutes recognition of the
validity of the declaration of Nicaragua (P) of 1929. Because the
Nicaraguan declaration of 1929 is valid, Nicaragua (P) was a “state
accepting the same obligation” as the United States (D) at the date of
filing of the charges with the I.C.J., and therefore could rely on the
United States’ (D) declaration of 1946. The 1984 notification by the
Untied States (D) does not prohibit jurisdiction in this case, because the
United States (D) appended by its own choice a six months’ notice
clause to its declaration, and it was not free to disregard it with respect to
Nicaragua (P). The obligation of the United States (D) to submit to the
jurisdiction of the I. C.J. in this case cannot be overridden by the I 984
notification. The “multilateral treaty reservation” that was appended to
the United States’ (D) declaration of 1946, which limited the I.C.J.’s
compulsory jurisdiction, also does not prohibit jurisdiction in this
case. Through the declaration, the United States (D) accepted
jurisdiction except with respect to “disputes arising under a multilateral
treaty, unless (I) all parties to the treaty affected by the decision are also
parties to the case before the Court, or (2) the United States of America
specially agrees to jurisdiction.” Nicaragua’s (P) application in this case
relies on four multilateral treaties, and the United States (D) argued that the
I.C.J. could exercise jurisdiction only if all treaty parties affected by a
decision were also parties to the case. But the effect on other states is not a
jurisdictional problem, and the United States’ (D) objection to jurisdiction on
the basis of the multilateral treaty reservation is unfounded. (2) Yes. The
application by a state to the International Court of Justice is admissible
where no grounds exist to exclude it. The United States (D) challenged the
admissibility of Nicaragua’s (P) application on five separate grounds. The
first-that Nicaragua (P) failed to bring forth necessary parties-fails because
there is no “indispensable parties” rule. The second and thirdthat Nicaragua
(P) is asking the Court to consider the existence of a threat to peace, which
is the eXclusive province of the Security Council-fails because the l.C.J. can
exercise jurisdiction concurrent with that of the Security Council. Both
proceedings can be pursued pari passu. The fourth-that the I.C.J. is unable
to deal with situations involving ongoing armed conflict-is not a show-
stopper because any judgment on the merits is limited to the evidence
submitted and proven by the litigants. The fifth-that the case is incompatible
with the Contadora process, to which Nicaragua (P) is a party-fails because
there is nothing compelling the I.C.J. to decline to consider one aspect of a
dispute just because the dispute has other aspects. The fact that
negotiations are being conducted subject to the Contadora process does not
pose any legal obstacle to the exercise by the Court of its judicial function.
TAÑADA V. ANGARA
G.R. No. 118295 | May 2, 1997
Petitioners: Wigberto Tanada, et al.
Respondents: Edgardo Angara, et al.
Summary: Petitioners assail the constitutionality of the Philippines acceding
to the World Trade Organization for being violative of provisions which are
supposed to give preference to Filipino workers and economy and on the
ground that it infringes legislative and judicial power. The WTO, through it
provisions on “most favored nation” and national treatment, require that
nationals and other member countries are placed in the same footing in
terms of products and services. However, the Court brushed off these
contentions and ruled that the WTO is constitutional. Sections 10 and 12 of
Article XII (National Economy and Patrimony) should be read in relation to
Sections 1 and 13 (promoting the general welfare). Also, Section 10 is self-
executing only to “rights, privileges, and concessions covering national
economy and patrimony” but not every aspect of trade and commerce.
There are balancing provisions in the Constitution allowing the Senate to
ratify the WTO agreement. Also, the Constitution doesn’t rule out foreign
competition. States waive certain amount of sovereignty when entering into
treaties.
Facts:
 This case questions the constitutionality of the Philippines being
part of the World Trade Organization, particularly when President
Fidel Ramos signed the Instrument of Ratification and the Senate
concurring in the said treaty.
 Following World War 2, global financial leaders held a conference
in Bretton Woods to discuss global economy. This led to the
establishment of three great institutions: International Bank for
Reconstruction and Development (World Bank), International
Monetary Fund and International Trade Organization.
 However, the ITO failed to materialized. Instead, there was the
General Agreement on Trades and Tariffs. It was on the Uruguay
Round of the GATT that the WTO was then established.
 The WTO is an institution regulating trade among nations,
including the reduction of tariff and barriers.
 Petitioners filed a case assailing the WTO Agreement for violating
the mandate of the 1987 Constitution to “develop a self-reliant and
independent national economy effectively controlled by Filipinos, to
give preference to qualified Filipinos and to promote the
preferential use of Filipino labor, domestic materials and locally
produced goods.”
 It is petitioners’ position that the “national treatment” and “parity
provisions” of the WTO Agreement “place nationals and products
of member countries on the same footing as Filipinos and local
products,” in contravention of the “Filipino First” policy of the
Constitution. They allegedly render meaningless the phrase
“effectively controlled by Filipinos.”
Issue 1: Does the petition present a justiciable controversy? YES!
In seeking to nullify the Senate’s act as being unconstitutional, the petition
no doubt raises a justiciable controversy. It becomes not only the right but in
fact the duty of the judiciary to settle the dispute
Issue 2: Do the provisions of the WTO Agreement contravene Section 19,
Article II and Section 10 & 12, Artilce XII of the 1987 Constitution? NO!
Petitioners’ Contentions:
 Petitioners argue that the “letter, spirit and intent” of the
Constitution mandating “economic nationalism” are violated by the
so-called “parity provisions” and “national treatment” clauses
scattered in parts of WTO Agreement
o This is in view of the most-favored nation clause (MFN)
of the TRIMS (trade-related investment measures),
TRIPS (Trade Related aspects of intellectual property
rights), Trade in Services, and par. 4 of Article III of
GATT 1994.
o “shall be accorded treatment no less favorable than that
accorded to like products of national origin”
 Sec. 19, Art II:The State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos.
 Sec. 10, Art XII: Congress shall enact measures that will
encourage the formation and operation of enterprises whose
capital is wholly owned by Filipinos. In the grant of rights,
privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
 Sec. 12, Art XII: The State shall promote the preferential use of
Filipino labor, domestic materials and locally produced goods, and
adopt measures that help make them competitive.”
Ruling:
 These provisions are not self-executing
o Merely guides in the exercise of judicial review and in
making laws.
 Secs. 10 and 12 of Article XII should be read and understood in
relation to the other sections in said article, especially Sec. 1 and
13:
o A more equitable distribution of opportunities, income
and wealth;
o A sustained increase in the amount of goods and
services
o An expanding productivity as the key to raising the
quality of life
 The issue here is not whether this paragraph of Sec. 10 of Art. XII
is self-executing or not. Rather, the issue is whether, as a rule,
there are enough balancing provisions in the Constitution to allow
the Senate to ratify the Philippine concurrence in the WTO
Agreement. And we hold that there are.
 WTO Recognizes Need to Protect Weak Economies
o Unlike in the UN where major states have permanent
seats and veto powers in the Security Council, in the
WTO, decisions are made on the basis of sovereign
equality, with each member’s vote equal in weight.
 Specific WTO Provisos Protect Developing Countries
o Tariff reduction – developed countries must reduce at
rate of 36% in 6 years, developing 24% in 10 years
o Domestic subsidy – developed countries must reduce
20% over six (6) years, developing countries at 13% in
10 years
o Export subsidy – developed countries, 36% in 6 years;
developing countries, 3/4ths of 36% in 10 years
 Constitution Does Not Rule Out Foreign Competition
o Encourages industries that are competitive in both
domestic and foreign markets
 The Court will not pass upon the advantages and disadvantages of
trade liberalization as an economic policy. It will only perform its
constitutional duty of determining whether the Senate committed
grave abuse of discretion
Issue 3: Does the text of the WTO and its Annexes limit, restrict or impair
the exercise of legislative power by Congress? NO!
 A portion of sovereignty may be waived without violating the
Constitution.
 While sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to
restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations.
 The sovereignty of a state therefore cannot in fact and in reality be
considered absolute. Certain restrictions enter into the picture:
limitations imposed by the nature of membership in the family of
nations & limitations imposed by treaty stipulations.
II. THE ISSUE
Does the 1987 Constitution prohibit our country from participating
in worldwide trade liberalization and economic globalization and from
integrating into a global economy that is liberalized, deregulated and
privatized?
III. THE RULING
[The Court DISMISSED the petition. It sustained the concurrence
of the Philippine Senate of the President’s ratification of the Agreement
establishing the WTO.]
NO, the 1987 Constitution DOES NOT prohibit our country
from participating in worldwide trade liberalization and economic
globalization and from integrating into a global economy that is
liberalized, deregulated and privatized.
There are enough balancing provisions in the Constitution to allow
the Senate to ratify the Philippine concurrence in the WTO Agreement.
[W]hile 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. In other
words, the Constitution did not intend to pursue an isolationist policy. It did
not shut out foreign investments, goods and services in the development of
the Philippine economy. While the Constitution does not encourage the
unlimited entry of foreign goods, services and investments into the country,
it does not prohibit them either.In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair.

xxx xxx xxx
[T]he constitutional policy of a “self-reliant and independent
national economy” does not necessarily rule out the entry of foreign
investments, goods and services. It contemplates neither “economic
seclusion” nor “mendicancy in the international community.” As explained by
Constitutional Commissioner Bernardo Villegas, sponsor of this
constitutional policy:
Economic self-reliance is a primary objective of a developing
country that is keenly aware of overdependence on external assistance for
even its most basic needs. It does not mean autarky or economic seclusion;
rather, it means avoiding mendicancy in the international community.
Independence refers to the freedom from undue foreign control of the
national economy, especially in such strategic industries as in the
development of natural resources and public utilities.
The WTO reliance on “most favored nation,” “national treatment,”
and “trade without discrimination” cannot be struck down as unconstitutional
as in fact they are rules of equality and reciprocity that apply to all WTO
members. Aside from envisioning a trade policy based on “equality and
reciprocity,” the fundamental law encourages industries that are “competitive
in both domestic and foreign markets,” thereby demonstrating a clear policy
against a sheltered domestic trade environment, but one in favor of the
gradual development of robust industries that can compete with the best in
the foreign markets. Indeed, Filipino managers and Filipino enterprises have
shown capability and tenacity to compete internationally. And given a free
trade environment, Filipino entrepreneurs and managers in Hongkong have
demonstrated the Filipino capacity to grow and to prosper against the best
offered under a policy of laissez faire.
xxx xxx xxx
It is true, as alleged by petitioners, that broad constitutional
principles require the State to develop an independent national economy
effectively controlled by Filipinos; and to protect and/or prefer Filipino labor,
products, domestic materials and locally produced goods. But it is equally
true that such principles — while serving as judicial and legislative guides —
are not in themselves sources of causes of action. Moreover, there are other
equally fundamental constitutional principles relied upon by the Senate
which mandate the pursuit of a “trade policy that serves the general welfare
and utilizes all forms and arrangements of exchange on the basis of equality
and reciprocity” and the promotion of industries “which are competitive in
both domestic and foreign markets,” thereby justifying its acceptance of said
treaty. So too, the alleged impairment of sovereignty in the exercise of
legislative and judicial powers is balanced by the adoption of the generally
accepted principles of international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation and amity with all
nations.
That the Senate, after deliberation and voting, voluntarily and
overwhelmingly gave its consent to the WTO Agreement thereby making it
“a part of the law of the land” is a legitimate exercise of its sovereign duty
and power. We find no “patent and gross” arbitrariness or despotism “by
reason of passion or personal hostility” in such exercise. It is not impossible
to surmise that this Court, or at least some of its members, may even agree
with petitioners that it is more advantageous to the national interest to strike
down Senate Resolution No. 97. But that is not a legal reason to attribute
grave abuse of discretion to the Senate and to nullify its decision. To do so
would constitute grave abuse in the exercise of our own judicial power and
duty. Ineludibly, what the Senate did was a valid exercise of its authority. As
to whether such exercise was wise, beneficial or viable is outside the realm
of judicial inquiry and review. That is a matter between the elected policy
makers and the people. As to whether the nation should join the worldwide
march toward trade liberalization and economic globalization is a matter that
our people should determine in electing their policy makers. After all, the
WTO Agreement allows withdrawal of membership, should this be the
political desire of a member.
MIJARES V. RANADA
G.R. No. 139325 April 12, 2005
FACTS: May 9 1991: a complaint was filed by ten Filipino citizens
representing a class of 10,000 members who each alleged having suffered
human rights abuses such as arbitrary detention, torture and rape in the
hands of police or military forces during the Marcos regime with the United
States District Court (US District Court), District of Hawaii, against the Estate
of former Philippine President Ferdinand E. Marcos (Marcos Estate)
US District Court and Affirmed by US CA: awarded them $1,964,005,859.90
Petitioners filed Complaint with Makati RTC for the enforcement of the Final
Judgment
Marcos Estate filed a motion to dismiss, raising, among others, the non-
payment of the correct filing fees paying only P410
Petitioners claimed that an action for the enforcement of a foreign judgment
is not capable of pecuniary estimation
RTC: estimated the proper amount of filing fees was approximately P472
and dismissing the case without prejudice
Petition for Certiorari under Rule 65
ISSUE: W/N the enforcement of a foreign judgment is incapable of
pecuniary estimation
HELD: NO. (But belongs to "other actions not involving property") petition is
GRANTED.
There is an evident distinction between a foreign judgment in an action in
rem and one in personam. For an action in rem, the foreign judgment is
deemed conclusive upon the title to the thing, while in an action in
personam, the foreign judgment is presumptive, and not conclusive, of a
right as between the parties and their successors in interest by a
subsequent title
However, in both cases, the foreign judgment is susceptible to impeachment
in our local courts on the grounds of want of jurisdiction or notice to the
party, collusion, fraud, or clear mistake of law or fact. Thus, the party
aggrieved by the foreign judgment is entitled to defend against the
enforcement of such decision in the local forum. It is essential that there
should be an opportunity to challenge the foreign judgment, in order for the
court in this jurisdiction to properly determine its efficacy even if such
judgment has conclusive effect as in the case of in rem actions, if only for
the purpose of allowing the losing party an opportunity to challenge the
foreign judgment. Consequently, the party attacking a foreign judgment has
the burden of overcoming the presumption of its validity. Absent perhaps a
statutory grant of jurisdiction to a quasi-judicial body, the claim for
enforcement of judgment must be brought before the regular courts.
There are distinctions, nuanced but discernible, between the cause of action
arising from the enforcement of a foreign judgment, and that arising from the
facts or allegations that occasioned the foreign judgment. They may pertain
to the same set of facts, but there is an essential difference in the right-duty
correlatives that are sought to be vindicated. Extensive litigation is thus
conducted on the facts, and from there the right to and amount of damages
are assessed. On the other hand, in an action to enforce a foreign judgment,
the matter left for proof is the foreign judgment itself, and not the facts from
which it prescinds.
As stated in Section 48, Rule 39, the actionable issues are generally
restricted to a review of jurisdiction of the foreign court, the service of
personal notice, collusion, fraud, or mistake of fact or law. The limitations on
review is in consonance with a strong and pervasive policy in all legal
systems to limit repetitive litigation on claims and issues. Otherwise known
as the policy of preclusion, it seeks to protect party expectations resulting
from previous litigation, to safeguard against the harassment of defendants,
to insure that the task of courts not be increased by never-ending litigation of
the same disputes, and in a larger sense to promote what Lord Coke in the
Ferrer's Case of 1599 stated to be the goal of all law: "rest and quietness." If
every judgment of a foreign court were reviewable on the merits, the plaintiff
would be forced back on his/her original cause of action, rendering
immaterial the previously concluded litigation.
Marcos Estate cites Singsong v. Isabela Sawmill and Raymundo v. Court of
Appeals:
In determining whether an action is one the subject matter of which is not
capable of pecuniary estimation this Court has adopted the criterion of first
ascertaining the nature of the principal action or remedy sought. If it is
primarily for the recovery of a sum of money, the claim is considered
capable of pecuniary estimation, and whether jurisdiction is in the municipal
courts or in the courts of first instance would depend on the amount of the
claim. However, where the basic issue is something other than the right to
recover a sum of money, where the money claim is purely incidental to, or a
consequence of, the principal relief sought, this Court has considered such
actions as cases where the subject of the litigation may not be estimated in
terms of money, and are cognizable exclusively by courts of first instance
(now Regional Trial Courts).
An examination of Section 19(6), B.P. 129 reveals that the instant complaint
for enforcement of a foreign judgment, even if capable of pecuniary
estimation, would fall under the jurisdiction of the Regional Trial Courts
The complaint to enforce the US District Court judgment is one capable of
pecuniary estimation. But at the same time, it is also an action based on
judgment against an estate, thus placing it beyond the ambit of Section 7(a)
of Rule 141. It is covered by Section 7(b)(3), involving as it does, "other
actions not involving property." The petitioners thus paid the correct amount
of filing fees, and it was a grave abuse of discretion for respondent judge to
have applied instead a clearly inapplicable rule and dismissed the complaint.
Facts: Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom
suffered human rights violations during the Marcos era, obtained a Final
Judgment in their favor against the Estate of the late Ferdinand Marcos
amounting to roughly $1.9B in compensatory and exemplary damages for
tortuous violations of international law in the US District Court of Hawaii.
This Final Judgment was affirmed by the US Court of Appeals.
As a consequence, Petitioners filed a Complaint with the RTC Makati for the
enforcement of the Final Judgment, paying P410 as docket and filing fees
based on Rule 141, §7(b) where the value of the subject matter is incapable
of pecuniary estimation. The Estate of Marcos however, filed a MTD alleging
the non-payment of the correct filing fees. RTC Makati dismissed the
Complaint stating that the subject matter was capable of pecuniary
estimation as it involved a judgment rendered by a foreign court ordering the
payment of a definite sum of money allowing for the easy determination of
the value of the foreign judgment. As such, the proper filing fee was P472M,
which Petitioners had not paid.
Issue: Whether or not the amount paid by the Petitioners is the proper filing
fee.
Held: Yes, but on a different basis—amount merely corresponds to the
same amount required for “other actions not involving property”. RTC Makati
erred in concluding that the filing fee should be computed on the basis of the
total sum claimed or the stated value of the property in litigation. The
Petitioner’s Complaint was lodged against the Estate of Marcos but it is
clearly based on a judgment, the Final Judgment of the US District Court.
However, the Petitioners err in stating that the Final Judgment is incapable
of pecuniary estimation because it is so capable. On this point, Petitioners
state that this might lead to an instance wherein a first level court (MTC,
MeTC, etc.) would have jurisdiction to enforce a foreign judgment. Under the
B.P.129, such courts are not vested with such jurisdiction. §33 of B.P.129
refers to instances wherein the cause of action or subject matter pertains to
an assertion of rights over property or a sum of money. But here, the subject
matter is the foreign judgment itself. §16 of B.P.129 reveals that the
complaint for
enforcement of judgment even if capable of pecuniary estimation would fall
under the jurisdiction of the RTCs. Thus, the Complaint to enforce the US
District Court judgment is one capable of pecuniary estimations but at the
same time, it is also an action based on judgment against an estate, thus
placing it beyond the ambit of §7(a) of Rule 141. What governs the proper
computation of the filing fees over Complaints for the enforcement of foreign
judgments is §7(b)(3), involving “other actions not involving property.”
FILARTIGA V. PENA-IRALA, COURT OF APPEALS, SECOND CIRCUIT,
30 JUNE 1980
OVERVIEW: On April 6, 1979, the suit was brought by an alien residing in
the United States charging a former official of Paraguay then visiting the
United States. The complaint alleged torture of the plaintiff's brother leading
to his death. The court of appeals ruled that deliberate torture perpetrated by
a person invested with official authority was a violation of customary law
supporting the jurisdiction of the district courts over "a civil action by an alien
for a tort only, committed in violation of the law of nations." The court further
declared that "indeed, for purposes of civil liability, the torturer has become
like the pirate and slave trader before him hostis humani generis, an enemy
of all mankind". The court found that torture perpetrated by a person
invested with official authority violates universally accepted human rights
norms, regardless of the nationality of the parties.
.  The Court emphasized the ruling in The Paquete Habana which
FACTS OF THE CASE: The Filartiga are citizens of the Republc of
Paraguay. They alleged that their 17year old son Joelito was kidnapped and
tortured to death by Norberto Pena-Irala in Paraguay. Filártiga claims this
was done in retaliation for his father's political activities and beliefs. Filártiga
brought a criminal case in Paraguayan court, but his attorney was arrested ,
threatened with death, and supposedly disbarred without just cause. Four
years later, another man confessed to the murder, claiming he found Joelito Such works are resorted to by judicial tribunals, not for the
and his wife together, and said the crime was one of passion, but he was speculations of their authors concerning what the law ought to be,
never convicted, and also the evidence showed that Joelito's death "was the but for trustworthy evidence of what the law really is.
result of professional methods of torture."  The Court ruled that although there is no universal agreement as
to the precise extent of the human rights and fundamental
In 1978, Dolly Filártiga came to the US and applied for political freedoms guaranteed to all by the charter, there is at present no
asylum. While Peña also entered the United States under a visitor’s visa but dissent from the view that the guaranties include, at a bare
remained in the US beyond the term of their visas. Dolly learned of Pena minimum, the right to be free from torture. This prohibition has
and reported it to the Immigration and Naturalization Service, Peña then was become part of customary international law, as evidenced and
arrested for staying past the expiration of his visa. When Peña was taken to defined by the Universal Declaration of Human Rights.
the Brooklyn Navy Yard pending deportation, Dolly lodged a civil complaint  Likewise, the Court having examined the sources from which
in U.S. courts for Joelito's wrongful death by torture. customary international law is derived the usage of nations, judicial
The Filartiga argued that Peña's actions had violated wrongful opinion and the works of jurists, the Court concluded that official
death statutes, the United Nations Charter, the Universal Declaration of torture is now prohibited by the law of nations. The prohibition is
Human Rights, the American Declaration of the Rights and Duties of Man, clear and unambiguous, and admits of no distinction between
and other customary international law. treatment of aliens and citizens.
Peña claimed the U.S. courts had jurisdiction to hear the case
under the Alien Tort Statute, which grants district courts original jurisdiction Second Issue
to hear tort claims brought by an alien that have been "committed in violation  The Court stated “the sphere of domestic jurisdiction is not an
of the law of nations or a treaty of the United States". irreducible sphere of rights which are somehow inherent, natural,
Although the district court initially stayed Peña’s deportation, it or fundamental. It does not create an impenetrable barrier to the
ultimately granted Peña’s motion to dismiss the complaint and allowed his development of international law. Matters of domestic jurisdiction
return to Paraguay, ruling that, although the proscription of torture had are not those which are unregulated by international law, but those
become “a norm of customary international law,” the court was bound to which are left by international law for regulation by States. There
follow appellate precedents which narrowly limited the function of are, therefore, no matters which are domestic by their “nature”. All
international law only to relations between states. are susceptible of international regulation and may become the
subjects of new rules of customary law of treaty obligations.”
ISSUES:
 Whether act of torture is part of international concern, thus, under
the customary international law?
 Whether a violation of the law of nations arises only when there
has been “ a violation by one or more individuals of those
standards, rules or customs if (a) affecting the relationship
between states or between an individual and a foreign state and
(b) used by those states for their common good and/or in dealing
per se”
THE RULING OF THE COURT:
First Issue
 The Court ruled that in light of the universal condemnation of
torture in numerous international agreements, the renunciation of
torture as an instrument of official policy by virtually all of the
nations of the world (in principle if not in practice) we find that an
act of torture committed by a state official against one held in
detention violated established norms of the international law of
human rights, hence the law of the nations.
 Also, the Supreme Court enumerated the appropriate sources of
international law. The law of nations “may be ascertained by
consulting the works of jurists, writing professedly on public law; or
by the general usage and practice of nations; or by judicial
decisions recognizing and enforcing that law.”
reaffirmed that where there is no treaty, and no controlling
executive or legislative act or judicial decision, resort must be had
to the customs and usages of civilized nations; and as evidenced
of these, to the works of jurists and commentators, who by years of
labor, research and experienced, have made themselves
peculiarly well acquainted with the subjects of which they treat.