J.

International Human Rights Law

Human rights are the basic entitlements that belong to each and every one of us,
regardless of our background, where we live, what we look like, what we think or
what we believe. Based on the principles of dignity, equality and mutual respect,
they have been agreed upon by governments from all around the world.

The Universal Declaration of Human Rights, adopted by the United Nations on 10
December 1948, sets out the basic rights and freedoms that apply to all men,
women and children. It has become the most important document of its kind and
although not legally-binding itself, forms the basis of many legally-binding
international agreements.

These includes two major international agreements: one on civil and political rights,
such as freedom of speech and freedom from torture, and one on economic,social
and cultural rights, such as the right to health and the right to education.

International human rights laws protect people from racial discrimination, from
torture and from enforced disappearances. They also recognise the rights of
specific groups of people, including women, children, people with disability,
indigenous peoples and migrant workers.

Some of these treaties are complemented by optional protocols that deal with
specific issues or allow people to make complaints.

Marcos v. Manglapus
G.R. No. 88211 September 15, 1989

FACTS:
It is a case of a dictator President Ferdinand Marcos of the Philippines forced out
of office and into exile after causing twenty years of political, economic and social
havoc in the country and who within the short space of three years seeks to return
to the Philippines to die.

But Mrs. Aquino, considering the dire consequences to the nation of his return at a
time when the stability of government is threatened from various directions and
the economy is just beginning to rise and move forward, has stood firmly on the
decision to bar the return of Mr. Marcos and his family.

ISSUE:
1 . Whether or not the ban of Mr. Marcos and family from returning to the
Philippines has international precedents?
2. Whether or not the President acted in grave abuse of discretion in determining
the return of the Marcoses?

RULING:
NO, The right to return to one's country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode and the
right to travel, but it is our well-considered view that the right to return may be
considered, as a generally accepted principle of international law and, under our
Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.]

However, it is distinct and separate from the right to travel and enjoys a different
protection under the International Covenant of Civil and Political Rights, i.e.,
against being "arbitrarily deprived" thereof [Art. 12 (4).] The Declaration speaks of
the "right to freedom of movement and residence within the borders of each state"
[Art. 13(l)] separately from the "right to leave any country, including his own, and
to return to his country." [Art. 13(2).]

On the other hand, the Covenant guarantees the "right to liberty of movement and
freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave any
country, including his own." [Art. 12(2)] which rights may be restricted by such laws
as "are necessary to protect national security, public order, public health or morals
or enter your own country" of which one cannot be "arbitrarily deprived." [Art.
12(4).]

It would therefore be inappropriate to construe the limitations to the right to
return to one's country in
the same context as those pertaining to the liberty of abode and the right to travel.

2.NO. The President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his family at the
present time and under present circumstances poses a serious threat to national
interest and welfare and in prohibiting their return to the Philippines. The power
involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people.
Petition is Dismissed

Ang Ladlad v. Commission on Elections
G.R. No. 190582 8 April 2010

Facts
Ang Ladlad was a political organisation composed of members of the Filipino LGBT
community. In 2006, in accordance with Filipino law, Ang Ladlad applied for
registration with the Commission on Elections. The application was denied because
the Commission on Elections found that the organisation lacked a substantial
membership base. The group applied again in 2009, but the Commission on
Elections again dismissed the application, this time on moral and religious grounds.

The Commission on Elections found that Ang Ladlad, as an LGBT organisation,
“tolerate[d] immorality which offends religious beliefs”. It cited the Bible and the
Koran as proof that homosexual activity violated standards of morality, and held
that it could only recognise law-abiding parties.

The Commission believed that Ang Ladlad’s support of LGBT issues violated several
statutes (including Articles 201, 695 and 1306 of the Civil Code of the Republic of
the Philippines) that referred to concepts such as “morality,” “mores, good
customs,” “public morals,” and “morals”. Additionally, the Commission believed
that approving Ang Ladlad would violate the constitutional duty to “promote and
protect [the youth’s] physical, moral, spiritual, intellectual, and social well-being”.
Issue
Whether the Commission on Elections’ refusal to register Ang Ladlad violated the
right of the organisation and its members to freedom of association, freedom of
expression, and political participation.

Domestic Law
Civil Code of the Philippines, Articles 201 (immoral doctrines, obscene publications
and exhibitions, and indecent shows), 695 and 1306.

1987 Constitution of the Philippines, Article II, 13 (State protection of youth),
Article III, Section 1 (equal protection), and Section 5 (freedom of religion).

Comparative Law
Constitution of the United States, 14th Amendment (Equal Protection).

Fricke v. Lynch, United States District Court of Rhode Island, 1980 (holding that
LGBT groups could not be denied the right of freedom of association; limiting
government’s involvement in that right).

Lawrence v. Texas, United States Supreme Court, 2003 (affirming that same-sex
sexual conduct between consenting adults was part of the liberty protected by the
substantive due process clause of the 14th Amendment to the federal Constitution,
and striking down Texas’ sodomy law).

International Law
International Covenant on Civil and Political Rights, Article 25 (rights to take part in
the conduct of public affairs, to vote and to be elected, to have access on general
terms of equality to public service); and Article 26 (rights of equality before the law,
equal protection of the law, and non-discrimination).

Universal Declaration of Human Rights, Article 21 (1) (right to take part in the
government either directly or through freely chosen representatives).

United Macedonian Organisation Ilinden and Others v. Bulgaria, ECtHR, 2006
(holding that seemingly radical or shocking political and social ideas are protected
through the exercise of the right of association).

Toonen v. Australia, United Nations Human Rights Committee, 1994 (holding that
Article 26 of the ICCPR prohibits discrimination based on sex, which includes sexual
orientation).

RULING:
The Supreme Court rejected all the reasons given by the Commission on Elections
(COMELEC). Philippine case law clearly interpreted Article III, Section 5 of the
Constitution as a call for “government neutrality in religious matters”. The
Commission on Elections’ use of the Bible and the Koran was thus a significant
constitutional violation.

The Court also rejected any public morals argument. While it recognised prejudice
and discrimination against homosexuals were widespread, it refused to
acknowledge that public sentiment was a source of law, stating: “We recall that the
Philippines has not seen fit to criminalise homosexual conduct. Evidently,
therefore, these ‘generally accepted public morals’ have not been convincingly
transplanted into the realm of law.” The Commission on Elections had provided no
evidence to show that the government had a secular, as opposed to religious or
moral, interest in prohibiting the formation of an LGBT political party.

Further, the Court found that the accusation of unlawful activity by Ang Ladlad was
“flimsy, at best; disingenuous, at worst”. The Commission on Elections’ selective
targeting of Ang Ladlad provided grounds for a claim under the Constitution’s Equal
Protection Clause.

While the Court refused to identify homosexuals as a separate class in need of
special or differentiated treatment, it nonetheless held that the Commission on
Elections’ decision violated the Equal Protection Clause. Philippine jurisprudence
affirmed that any government intervention, even one that did not burden a suspect
class or breach a fundamental right, must reflect a rational interest of government.
The Court stated that the asserted interest in this case, the “moral disapproval of
an unpopular minority”, was “not a legitimate state interest that is sufficient to
satisfy rational basis review under the equal protection clause”. The only interest
favoured by the Commission on Elections’ differentiation was “disapproval of or
dislike for a disfavoured group”.

The Court also found that the Commission on Elections ruling violated the
Philippine doctrine of freedom of expression. While the Constitution placed power
in the hands of the majority, it also limited the power of that majority to “ride
roughshod over the dissenting minorities”. According to the Court, freedom of
expression could be limited only by restrictions that were “proportionate to the
legitimate aim pursued”:

Absent any compelling state interest, it is not for the COMELEC or this Court to
impose its views on the populace. Otherwise stated, the COMELEC is certainly not
free to interfere with speech for no better reason than promoting an approved
message or discouraging a disfavoured one. This position gains even more force if
one considers that homosexual conduct is not illegal in this country. It follows that
both expressions concerning one’s homosexuality and the activity of forming a
political association that supports LGBT individuals are protected as well.

The Court supported its reasoning with references to international and
comparative constitutional decisions. Constitutionally, when it infringed on the
freedom of association of an individual or group, the government’s actions must
involve “more than a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint”. Even radical or shocking political and
social ideas were protected through the exercise of the right of association.

The Court recognised that many Philippine citizens disapproved of homosexuality
and Ang Ladlad’s agenda. Nonetheless, the Court held, Philippine democracy
“precludes using the religious or moral views of part of the community to exclude
from consideration the values of other members of the community”.

Finally, the Court ruled that international law required the Commission on Elections
to recognise Ang Ladlad. According to the Human Rights Committee’s decision in
Toonen v. Australia, Article 26 of the ICCPR prohibited discrimination based on sex,
including sexual orientation. Reading the right to participate in government under
Article 21 of the UDHR in light of Toonen, the Court held that international law
protected the right of LGBT organisations to participate in the political process and
that the Commission on Elections’ decision contravened that right.

Based on constitutional and international law, the Court held that Ang Ladlad must
be recognised by the Commission on Elections as a political party in the Philippines.

Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1,
shall act in accordance with the following Principles.

The Organization is based on the principle of the sovereign equality of all its
Members.
All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfill in good faith the obligations assumed by them in
accordance with the present Charter.
All Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.

K. INTERNATIONAL HUMANITARIAN LAW AND NEUTRALITY
International humanitarian law (IHL) is the law that regulates the conduct of war
(jus in bello). It is that branch of international law which seeks to limit the effects
of armed conflict by protecting persons who are not participating in hostilities, and
by restricting and regulating the means and methods of warfare available to
combatants.

IHL is inspired by considerations of humanity and the mitigation of human
suffering. "It comprises a set of rules, established by treaty or custom, that seeks
to protect persons and property/objects that are (or may be) affected by armed
conflict and limits the rights of parties to a conflict to use methods and means of
warfare of their choice".[1] It includes "the Geneva Conventions and the Hague
Conventions, as well as subsequent treaties, case law, and customary international
law". It defines the conduct and responsibilities of belligerent nations, neutral
nations, and individuals engaged in warfare, in relation to each other and to
protected persons, usually meaning non-combatants. It is designed to balance
humanitarian concerns and military necessity, and subjects warfare to the rule of
law by limiting its destructive effect and mitigating human suffering.

Serious violations of international humanitarian law are called war crimes.
International humanitarian law, jus in bello, regulates the conduct of forces when
engaged in war or armed conflict. It is distinct from jus ad bellum which regulates
the conduct of engaging in war or armed conflict and includes crimes against peace
and of war of aggression. Together the jus in bello and jus ad bellum comprise the
two strands of the laws of war governing all aspects of international armed
conflicts.

The law is mandatory for nations bound by the appropriate treaties. There are also
other customary unwritten rules of war, many of which were explored at the
Nuremberg War Trials. By extension, they also define both the permissive rights of
these powers as well as prohibitions on their conduct when dealing with irregular
forces and non-signatories.

Neutrality is the state of a nation that takes no part in a war between two or more
other powers.

Since the nineteenth century, International Law has recognized the right of a nation
to abstain from participation in a war between other states. In an international war,
those taking no part are called neutrals. This means that a neutral state cannot
provide assistance to the belligerents, the principal hostile powers, or to their allies,
who cooperate and assist them.

The law of neutrality that emerged from the nineteenth century was codified in
several of the Hague Conferences of 1907, including No. 3, Convention Relative to
the Opening of Hostilities (requiring notice to neutrals of a state of war); No. 5,
Convention Respecting Rights and Duties of Neutral Powers and Persons in Case of
War on Land; and No. 11, Convention Relative to Certain Restrictions with Regard
to the Exercise of the Right of Capture in Naval War.

1. Categories of armed conflicts
There are three types of conflicts that are recognized by international
humanitarian law: international armed conflict, internationalized armed
conflict, and non-international armed conflict.

International humanitarian law does make it clear what an international
armed conflict is. According to the Geneva Conventions of 1949, common
article 2 states that “all cases of declared war or of any armed conflict that
may arise between two or more high contracting parties, even if the state of
war is not recognized, the convention shall also apply to all cases of partial
or total occupation of the territory of a high contracting party even if the said
occupation meets with no armed resistance'' (Geneva Convention, 1949,
common art.2). This means that the occurrence of international armed
conflict is clear, that is, it would be a conflict between the legal armed forces
of two different states. A good example would be the North Korean- South
Korean war of 1950.

The second armed conflict recognized by international humanitarian law is a
new phenomenon known as 'an internationalized armed conflict'. The
situation of an internationalized armed conflict can occur when a war occurs
between two different factions fighting internally but supported by two
different states (Stewart, 2003, p 315). The most visible example of an
internationalized armed conflict was the conflict in the Democratic Republic
of Congo in 1998 when the forces from Rwanda, Angola, Zimbabwe and
Uganda intervened to support various groups in the DRC (Stewart, 315).

Non-international armed conflicts, according to common article 3 of the
Geneva Convention, are ‘armed conflicts that are non-international in nature
occurring in one of the High contracting parties’ (Geneva Convention,
common article 3, 1949). This means that one of the parties involved is
nongovernmental in nature. However, common article 3 also states that it
does not apply to other forms of violence such as riots, isolated and sporadic
acts of violence. This abstract definition has made it difficult to make a clear
distinction between a mere disturbance and an armed conflict, therefore
relying heavily on the political will of states to classify the situation as an
armed conflict. For a situation to be classified as a non-international armed
conflict, it has to achieve two variables: first, the hostilities have to reach a
certain minimum level of intensity and form in a collective character; and
second, there has to be a level of organization of the parties

Wars of national liberation or national liberation revolutions are conflicts
fought by nations to gain independence. The term is used in conjunction with
wars against foreign powers (or at least those perceived as foreign) to
establish separate sovereign states for the rebelling nationality. From a
different point of view, these wars are called insurgencies, rebellions, or wars
of independence. Guerrilla warfare or asymmetric warfare is often utilized
by groups labeled as national liberation movements, often with support from
other states.

The term "wars of national liberation" is most commonly used for those
fought during the decolonization movement. Since these were primarily in
the third world against Western powers and their economic influence and a
major aspect of the Cold War, the phrase itself has often been viewed as
biased or pejorative.

2. Core International obligations of States in IHL
Under general international law, the responsibility of a State is engaged if
the actions of its agents or actions otherwise attributable to it constitute
internationally wrongful acts, in violation of its international obligations. Five
circumstances may preclude wrongfulness and are listed in the ILC’s Articles
on State Responsibility (Arts. 21- 25). There are distinct legal consequences
in the case that a State’s responsibility is engaged. The State is required to
cease the unlawful conduct and to make reparation for the injury caused by
its wrongful conduct.

In terms of IHL, Common Article 1 to the Four Geneva Conventions demands
that every State, whether party to an armed conflict or not, ensure respect
for the laws of war. Hence, if a violation occurs, not only the injured State
but every State may and must take measures to restore respect for IHL.
When involved in armed conflict, a State bears responsibility for complying
with IHL. To ascertain the existence of a violation, Article 90 of Protocol I
establishes a Fact-Finding Commission and sets out procedures for its
functioning. If a State is found responsible, it has to compensate the injured
State but, in conformity with the traditional structure of international law,
 no right to compensation arises for individual victims of violations. However,
in situations of internal armed conflicts, victims are often nationals of the
State concerned. Therefore, Human Rights Law requires that the State makes
reparations directly to the beneficiary of the rule.

In the event that a State does not cease its unlawful conduct, injured States
are entitled to take countermeasures against the State that is in violation of
its obligations. However, under IHL, reprisals against the civilian population
or protected persons and objects are prohibited. Furthermore, certain
circumstances precluding wrongfulness, such as consent and
countermeasures, cannot be used to preclude the wrongfulness of acts that
are violations of IHL.





3. Principles of IHL
International Humanitarian Law is founded upon the following principles:

o distinction between civilians and combatants
o prohibition of attacks against those hors de combat
o prohibition on the infliction of unnecessary suffering
o principle of proportionality
o notion of necessity
o principle of humanity

Each basic principle should be found within the specific rules and norms of
IHL itself, but the principles may also help interpretation of the law when the
legal issues are unclear or controversial. Depending on the issue, the balance
between the principles and interest shifts. For example, during hostilities,
military necessity may limit the notion of humanity by allowing for
destruction, but in other situations such as the protection of the wounded
and sick, the principle of humanity is at the heart of the legal rules.

 ü The principle of distinction between civilians and combatants
The principle of distinction underpinning many rules of IHL is that only
fighters may be directly targeted. This is a necessary compromise that IHL provides
for in order to protect civilians in armed conflict. Without the principle of
distinction, they would be no limitation on the methods of warfare.

The specific rules where the principle of distinction is set out concerns Article
48 and 52 of Additional Protocal 1 to the Geneva Conventions. This defines who is
a combatant and a military object that can be lawfully attacked. Any direct attack
against a civilian or civilian object is not only a violation of IHL but also a grave
breach. Direct attacks against civilians and/or civilians objects are categorised as
war crimes. Additionally, any weapon which is incapable of distinguishing between
civilians/civilian objects and fighters/military objects is also prohibited under IHL.
The principle is also a rule of customary international law, binding on all states.

ü The prohibition of attacks against those hors de combat
The prohibition to attack any person hors de combat (those who are sick and
wounded, prisoners of war) is a fundamental rule under IHL. For example, while a
solider could be targeted lawfully under normal circumstances, if that soldiers
surrenders or is wounded and no longer poses a threat, then it is prohibited to
attack that person. Additionally, they may be entitled to extensive protections if
they meet the criteria of being a Prisoner of War.

ü The prohibition on the infliction of unnecessary suffering
While IHL does permit violence, it prohibits the infliction of unnecessary
suffering and superfluous injury. While the meaning of such terms is unclear and
the protection may as such be limited, even fighters who may be lawfully attacked,
are provided protection by this prohibition. One rule that has been established
based on this principle is the prohibition on the use of blinding laser weapons.


ü The principle of proportionality
The principle of proportionality limits and protects potential harm to civilians
by demanding that the least amount of harm is caused to civilians, and when harm
to civilians must occur it needs be proportional to the military advantage. The
article where proportionality is most prevalent is in Article 51(5) (b) of API
concerning the conduct of hostilities which prohibits attacks when the civilian harm
would be excessive in relation to the military advantage sought. This is an area of
hostilities where we often hear the term ‘collateral damage’.

The principle cannot be applied to override specific protections, or create
exceptions to rules where the text itself does not provide for one. As with the
principle of necessity, the principle of proportionality itself is to be found within
the rules of IHL themselves. For example, direct attacks against civilians are
prohibited and hence a proportionality assessment is not a relevant legal
assessment as any direct attack against even a single civilian who is not taking part
in hostilities is a clear violation of IHL. Proportionality is only applied when a strike
is made against a lawful military target.

ü The notion of necessity
A dominant notion within the framework of IHL is military necessity, often
the principle which clashes most with humanitarian protection. Military necessity
permits armed forces to engage in conduct that will result in destruction and harm
being inflicted. The concept of military necessity acknowledges that under the laws
of war, winning the war or battle is a legitimate consideration.

However the concept of military necessity does not give the armed forces
the freedom to ignore humanitarian considerations altogether and do what they
want. It must be interpreted in the context of specific prohibitions and in
accordance with the other principles of IHL.

It is important to note that the notion itself is to be found within the rules
of IHL. For example, Article 52 of Addition Protocol I lists those objects that can be
subject to lawful attacks. The notion cannot be applied to override specific
protections, or create exceptions to rules where the text itself does not provide for
one.

ü The principle of humanity
 The principle of humanity, and its absence during the battle of Solferino of
1859, was the central notion that inspired the founder of the International
Committee of the Red Cross (ICRC), Henry Dunant. The principle stipulates that all
humans have the capacity and ability to show respect and care for all, even their
sworn enemies. The notion of humanity is central to the human condition and
separates humans from animals.

IHL, the principles of which can be found in all major religions and cultures,
set out only basic protections, but ones which look to demonstrate that even during
armed conflict there is some common sense of and respect for humanity. Modern
IHL is not naive and accepts that harm, destruction and death can be lawful during
armed conflict. IHL simply looks to limit the harm, and the principle of humanity is
very much at the heart of this ambition. Many rules of IHL are inspired by this
notion, specifically those setting out protections for the wounded and sick.

Prisoners of war and detainees protected under international humanitarian law

The third Geneva Convention provides a wide range of protection for prisoners of
war. It defines their rights and sets down detailed rules for their treatment and
eventual release. International humanitarian law (IHL) also protects other persons
deprived of liberty as a result of armed conflict.

The rules protecting prisoners of war (POWs) are specific and were first detailed in
the 1929 Geneva Convention. They were refined in the third 1949 Geneva
Convention, following the lessons of World War II, as well as in Additional Protocol
I of 1977.

The status of POW only applies in international armed conflict. POWs are usually
members of the armed forces of one of the parties to a conflict who fall into the
hands of the adverse party. The third 1949 Geneva Convention also classifies other
categories of persons who have the right to POW status or may be treated as POWs.

POWs cannot be prosecuted for taking a direct part in hostilities. Their detention
is not a form of punishment, but only aims to prevent further participation in the
conflict. They must be released and repatriated without delay after the end of
hostilities. The detaining power may prosecute them for possible war crimes, but
not for acts of violence that are lawful under IHL.

POWs must be treated humanely in all circumstances. They are protected against
any act of violence, as well as against intimidation, insults, and public curiosity. IHL
also defines minimum conditions of detention covering such issues as
accommodation, food, clothing, hygiene and medical care.

The fourth 1949 Geneva Convention and Additional Protocol I also provide
extensive protection for civilian internees during international armed conflicts. If
justified by imperative reasons of security, a party to the conflict may subject
civilians to assigned residence or to internment. Therefore, internment is a security
measure, and cannot be used as a form of punishment. This means that each
interned person must be released as soon as the reasons which necessitated
his/her internment no longer exist.

Rules governing the treatment and conditions of detention of civilian internees
under IHL are very similar to those applicable to prisoners of war.

In non-international armed conflicts, Article 3 common to the 1949 Geneva
Conventions and Additional Protocol II provide that persons deprived of liberty for
reasons related to the conflict must also be treated humanely in all circumstances.
In particular, they are protected against murder, torture, as well as cruel,
humiliating or degrading treatment. Those detained for participation in hostilities
are not immune from criminal prosecution under the applicable domestic law for
having done so.

Neutrality, the legal status arising from the abstention of a state from all
participation in a war between other states, the maintenance of an attitude of
impartiality toward the belligerents, and the recognition by the belligerents of this
abstention and impartiality. Under international law this legal status gives rise to
certain rights and duties between the neutral and the belligerents.

4. Law on Neutrality
Neutrality, the legal status arising from the abstention of a state from all
participation in a war between other states, the maintenance of an attitude of
impartiality toward the belligerents, and the recognition by the belligerents of
this abstention and impartiality. Under international law this legal status gives
rise to certain rights and duties between the neutral and the belligerents.

The fifth Hague Convention of 1907 declares that the territory of neutral
powers is inviolable and that… The laws concerning the rights and duties of
neutrality are contained, for the most part, in the Declaration of Paris of 1856,
Hague Convention V, 1907 (neutrality in land war), and Hague Convention XIII,
1907 (neutrality in maritime war). One of the first recommendations of the last
convention was that, when war breaks out between certain powers, each nation
wishing to remain impartial should normally issue either a special or general
declaration of neutrality. Such a declaration, however, is not required by
international law. A neutral state may, during the course of the hostilities,
repeal, change, or modify its position of neutrality, provided that such
alterations are applied without bias to all belligerents.

The most important of the rights that result from a state of neutrality is the right
of territorial integrity. Belligerents may not use a neutral’s territory as a base of
operations or engage in hostilities therein. This right applies not only to neutral
territory and water but extends to air space above that territory as well. Under
the Hague Rules of Air Warfare, 1923 (which never became legally binding),
neutrals have the right to defend their air space from passage of belligerent
aircraft. The emergence of ballistic missiles and space satellites as tools of
warfare, however, has raised questions regarding the extent of a state’s upper
boundary.

A neutral also has the right to maintain diplomatic communications with other
neutral states and with the belligerents; the right to demand compliance with
its domestic regulations designed to secure its neutrality; and the right to
require belligerents not to interfere with the commercial intercourse of its
citizens, unless such interference is warranted by international law.

The events of World Wars I and II foreshadowed a breakdown of some of the
basic concepts of neutrality. With the German invasion of Belgium, the Italian
invasion of Greece, the British occupation of Iceland, and the passage by the
United States of the Lend-Lease Act (1941), the traditional rules of neutrality
appeared no longer viable. By the middle of the 20th century new developments
in the law of neutrality were evident. (1) The total character of modern war,
with its use of economic as well as mechanized means of warfare, has sharply
reduced the traditional area of freedom of the neutral. (2) Under the provisions
of the Charter of the United Nations, neutrality, as a permissive legal status,
disappears for those members that the Security Council “calls upon” or requires
in specific instances to take military or other measures of coercion against an
aggressor (Articles 41, 48). (3) The socialization of national economies may
result in a lessening of neutral trade; many business enterprises that could
formerly trade with belligerents as private traders could no longer legally do so
as state enterprises.


Yamashita vs Styer
G.R. No. L-129 December 19, 1945

Facts:
Petitioner Tomoyuki Yamashita, the commanding general of the 14th army group
of the Japanese Imperial Army in the Philippines, after his surrender became a
prisoner of war of the United States of America but was later removed from such
status and placed in confinement as an accused war criminal charged before an
American Military Commission constituted by respondent Lieutenant General
Styer, Commanding General of the United States Army Forces, Western Pacific.

Filing for habeas corpus and prohibition against respondent, he asks that he be
reinstated to his former status as prisoner of war, and that the Military Commission
be prohibited from further trying him. He questions, among others, the jurisdiction
of said Military Commission.

Issue/s:
1. Should the petitions for habeas corpus and prohibition be granted in this case?
NO
2. Was the Military Commission validly constituted by respondent, therefore having
jurisdiction over the war crimes? YES

Ruling:

1. A petition for habeas corpus is improper when release of petitioner is not sought.
It seeks no discharge of petitioner from confinement but merely his restoration to
his former status as a prisoner of war, to be interned, not confined. The relative
difference as to the degree of confinement in such cases is a matter of military
measure, disciplinary in character, beyond the jurisdiction of civil courts.
Prohibition cannot issue against one not made party respondent. Neither may the
petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The Military
Commission is not made party respondent in this case, and although it may be
acting, as alleged, without jurisdiction, no order may be issued in these case
proceedings requiring it to refrain from trying the petitioner.

The Court further ruled that it has no jurisdiction to entertain the petition even if
the commission be joined as respondent. As it has said, in Raquiza vs. Bradford (pp.
50, 61, ante), “. . . an attempt of our civil courts to exercise jurisdiction over the
United States Army before such period (state of war) expires, would be considered
as a violation of this country’s faith, which this Court should not be the last to keep
and uphold.”

2. Under the laws of war, a military commander has an implied power to appoint
and convene a military commission. This is upon the theory that since the power to
create a military commission is an aspect of waging war, military commanders have
that power unless expressly withdrawn from them.
By the Articles of War, and especially Article 15, the Congress of the United States
has explicitly provided, so far as it may constitutionally do so, that military tribunals
shall have jurisdiction to try offenders or offenses against the laws of war in
appropriate cases


Dante Liban, et al. v. Richard Gordon
G.R. No. 175352, January 18, 2011

FACTS
Petitioners Liban, et al., who were officers of the Board of Directors of the Quezon
City Red Cross Chapter, filed with the Supreme Court what they styled as “Petition
to Declare Richard J. Gordon as Having Forfeited His Seat in the Senate” against
respondent Gordon, who was elected Chairman of the Philippine National Red
Cross (PNRC) Board of Governors during his incumbency as Senator.

Petitioners alleged that by accepting the chairmanship of the PNRC Board of
Governors, respondent Gordon ceased to be a member of the Senate pursuant to
Sec. 13, Article VI of the Constitution, which provides that “[n]o Senator . . . may
hold any other office or employment in the Government, or any subdivision,
agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries, during his term without forfeiting his seat.”
Petitioners cited the case of Camporedondo vs. NLRC, G.R. No. 129049, decided
August 6, 1999, which held that the PNRC is a GOCC, in supporting their argument
that respondent Gordon automatically forfeited his seat in the Senate when he
accepted and held the position of Chairman of the PNRC Board of Governors.

Formerly, in its Decision dated July 15, 2009, the Court, voting 7-5,[1] held that the
office of the PNRC Chairman is NOT a government office or an office in a GOCC for
purposes of the prohibition in Sec. 13, Article VI of the 1987 Constitution. The PNRC
Chairman is elected by the PNRC Board of Governors; he is not appointed by the
President or by any subordinate government official. Moreover, the PNRC is NOT a
GOCC because it is a privately-owned, privately-funded, and privately-run
charitable organization and because it is controlled by a Board of Governors four-
fifths of which are private sector individuals. Therefore, respondent Gordon did not
forfeit his legislative seat when he was elected as PNRC Chairman during his
incumbency as Senator.

The Court however held further that the PNRC Charter, R.A. 95, as amended by PD
1264 and 1643, is void insofar as it creates the PNRC as a private corporation since
Section 7, Article XIV of the 1935 Constitution states that “[t]he Congress shall not,
except by general law, provide for the formation, organization, or regulation of
private corporations, unless such corporations are owned or controlled by the
Government or any subdivision or instrumentality thereof.” The Court thus
directed the PNRC to incorporate under the Corporation Code and register with the
Securities and Exchange Commission if it wants to be a private corporation. The
fallo of the Decision read:

WHEREFORE, we declare that the office of the Chairman of the Philippine National
Red Cross is not a government office or an office in a government-owned or
controlled corporation for purposes of the prohibition in Section 13, Article VI of
the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10,
11, 12, and 13 of the Charter of the Philippine National Red Cross, or Republic Act
No. 95, as amended by Presidential Decree Nos. 1264 and 1643, are VOID because
they create the PNRC as a private corporation or grant it corporate powers.

Respondent Gordon filed a Motion for Clarification and/or for Reconsideration of
the Decision. The PNRC likewise moved to intervene and filed its own Motion for
Partial Reconsideration. They basically questioned the second part of the Decision
with regard to the pronouncement on the nature of the PNRC and the
constitutionality of some provisions of the PNRC Charter.

ISSUE
Was it correct for the Court to have passed upon and decided on the issue of the
constitutionality of the PNRC charter? Corollarily: What is the nature of the PNRC?

RULING
[The Court GRANTED reconsideration and MODIFIED the dispositive portion of the
Decision by deleting the second sentence thereof.]

NO, it was not correct for the Court to have decided on the constitutional issue
because it was not the very lis mota of the case. The PNRC is sui generis in nature;
it is neither strictly a GOCC nor a private corporation.

The issue of constitutionality of R.A. No. 95 was not raised by the parties, and was
not among the issues defined in the body of the Decision; thus, it was not the very
lis mota of the case. We have reiterated the rule as to when the Court will consider
the issue of constitutionality in Alvarez v. PICOP Resources, Inc., thus:

This Court will not touch the issue of unconstitutionality unless it is the very lis
mota. It is a well-established rule that a court should not pass upon a constitutional
question and decide a law to be unconstitutional or invalid, unless such question is
raised by the parties and that when it is raised, if the record also presents some
other ground upon which the court may [rest] its judgment, that course will be
adopted and the constitutional question will be left for consideration until such
question will be unavoidable.

[T]his Court should not have declared void certain sections of . . . the PNRC Charter.
Instead, the Court should have exercised judicial restraint on this matter, especially
since there was some other ground upon which the Court could have based its
judgment. Furthermore, the PNRC, the entity most adversely affected by this
declaration of unconstitutionality, which was not even originally a party to this
case, was being compelled, as a consequence of the Decision, to suddenly
reorganize and incorporate under the Corporation Code, after more than sixty (60)
years of existence in this country.

Since its enactment, the PNRC Charter was amended several times, particularly on
June 11, 1953, August 16, 1971, December 15, 1977, and October 1, 1979, by virtue
of R.A. No. 855, R.A. No. 6373, P.D. No. 1264, and P.D. No. 1643, respectively. The
passage of several laws relating to the PNRC’s corporate existence notwithstanding
the effectivity of the constitutional proscription on the creation of private
corporations by law is a recognition that the PNRC is not strictly in the nature of a
private corporation contemplated by the aforesaid constitutional ban.

A closer look at the nature of the PNRC would show that there is none like it[,] not
just in terms of structure, but also in terms of history, public service and official
status accorded to it by the State and the international community. There is merit
in PNRC’s contention that its structure is sui generis. It is in recognition of this sui
generis character of the PNRC that R.A. No. 95 has remained valid and effective
from the time of its enactment in March 22, 1947 under the 1935 Constitution and
during the effectivity of the 1973 Constitution and the 1987 Constitution. The PNRC
Charter and its amendatory laws have not been questioned or challenged on
constitutional grounds, not even in this case before the Court now.

[T]his Court [must] recognize the country’s adherence to the Geneva Convention
and respect the unique status of the PNRC in consonance with its treaty obligations.
The Geneva Convention has the force and effect of law. Under the Constitution,
the Philippines adopts the generally accepted principles of international law as part
of the law of the land. This constitutional provision must be reconciled and
harmonized with Article XII, Section 16 of the Constitution, instead of using the
latter to negate the former. By requiring the PNRC to organize under the
Corporation Code just like any other private corporation, the Decision of July 15,
2009 lost sight of the PNRC’s special status under international humanitarian law
and as an auxiliary of the State, designated to assist it in discharging its obligations
under the Geneva Conventions.

The PNRC, as a National Society of the International Red Cross and Red Crescent
Movement, can neither “be classified as an instrumentality of the State, so as not
to lose its character of neutrality” as well as its independence, nor strictly as a
private corporation since it is regulated by international humanitarian law and is
treated as an auxiliary of the State.

Although [the PNRC] is neither a subdivision, agency, or instrumentality of the
government, nor a GOCC or a subsidiary thereof . . . so much so that respondent,
under the Decision, was correctly allowed to hold his position as Chairman thereof
concurrently while he served as a Senator, such a conclusion does not ipso facto
imply that the PNRC is a “private corporation” within the contemplation of the
provision of the Constitution, that must be organized under the Corporation Code.
[T]he sui generis character of PNRC requires us to approach controversies involving
the PNRC on a case-to-case basis.

In sum, the PNRC enjoys a special status as an important ally and auxiliary of the
government in the humanitarian field in accordance with its commitments under
international law. This Court cannot all of a sudden refuse to recognize its
existence, especially since the issue of the constitutionality of the PNRC Charter
was never raised by the parties. It bears emphasizing that the PNRC has responded
to almost all national disasters since 1947, and is widely known to provide a
substantial portion of the country’s blood requirements. Its humanitarian work is
unparalleled. The Court should not shake its existence to the core in an untimely
and drastic manner that would not only have negative consequences to those who
depend on it in times of disaster and armed hostilities but also have adverse effects
on the image of the Philippines in the international community. The sections of the
PNRC Charter that were declared void must therefore stay.

[Thus, R.A. No. 95 remains valid and constitutional in its entirety. The Court
MODIFIED the dispositive portion of the Decision by deleting the second sentence,
to now read as follows:

WHEREFORE, we declare that the office of the Chairman of the Philippine National
Red Cross is not a government office or an office in a government-owned or
controlled corporation for purposes of the prohibition in Section 13, Article VI of
the 1987 Constitution.]
Bayan Muna vs. Romulo
GR No. 159618 February 1, 2011

Facts:
Petitioner Bayan Muna is a duly registered party-list group established to represent
the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was
the Secretary of Foreign Affairs during the period material to this case. Respondent
Alberto Romulo was impleaded in his capacity as then Executive Secretary.

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 x x x 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.
RP-US Non-Surrender Agreement

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.
Via Exchange of Notes No. BFO-028-037 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. In esse, the Agreement aims
to protect what it refers to and defines as “persons” 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 the US and 33 other countries.

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, “persons” are current or former Government
officials, employees (including contractors), or military personnel or nationals of
one Party.

2. Persons of one Party present in the territory of the other shall not, absent the
express consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for
any purpose, unless such tribunal has been established by the UN Security Council,
or

(b) be surrendered or transferred by any means to any other entity or third country,
or expelled to a third country, for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been established by the UN Security
Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the
Philippines to a third country, the [US] will not agree to the surrender or transfer
of that person by the third country to any international tribunal, unless such
tribunal has been established by the UN Security Council, absent the express
consent of the Government of the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the
[USA] to a third country, the [GRP] will not agree to the surrender or transfer of
that person by the third country to any international tribunal, unless such tribunal
has been established by the UN Security Council, absent the express consent of the
Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one
party notifies the other of its intent to terminate the Agreement. The provisions of
this Agreement shall continue to apply with respect to any act occurring, or any
allegation arising, before the effective date of termination.

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.

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.


L. LAW OF THE SEA
Law of the Sea is a body of international law that concerns the principles and rules
by which public entities, especially states, interact in maritime matters, including
navigational rights, sea mineral rights, and coastal waters jurisdiction. It is the
public law counterpart to admiralty law, which concerns private maritime
intercourse. The United Nations Convention on the Law of the Sea (UNCLOS),
concluded in 1982 and coming into force in 1994, is generally accepted as a
codification of customary international law of the sea.

United Nations Law of the Sea Convention (UNCLOS)

The United Nations has long been at the forefront of efforts to ensure the peaceful,
cooperative, legally defined uses of the seas and oceans for the individual and
common benefit of humankind. Urgent calls for an effective international regime
over the seabed and the ocean floor beyond a clearly defined national jurisdiction
set in motion a process that spanned 15 years and saw the creation of the United
Nations Seabed Committee, the signing of a treaty banning nuclear weapons on the
seabed, the adoption of the declaration by the General Assembly that all resources
of the seabed beyond the limits of national jurisdiction are the common heritage
of mankind and the convening of the Stockholm Conference on the Human
Environment.

The UN’s groundbreaking work in adopting the 1982 Law of the Sea Convention
stands as a defining moment in the extension of international law to the vast,
shared water resources of our planet. The convention has resolved a number of
important issues related to ocean usage and sovereignity, such as:

ü Established freedom-of-navigation rights
ü Set territorial sea boundaries 12 miles offshore
ü Set exclusive economic zones up to 200 miles offshore
ü Set rules for extending continental shelf rights up to 350 miles offshore
ü Created the International Seabed Authority
ü Created other conflict-resolution mechanisms (e.g., the UN Commission on
the Limits of the Continental Shelf)
ü Protection of marine environment and biodiversity

REPUBLIC ACT No. 3046 (as amended by RA 5446)
AN ACT DEFINE THE BASELINES OF THE TERRITORIAL SEA OF THE PHILIPPINES.

WHEREAS, the Constitution of the Philippines describes the national territory as
comprising all the territory ceded to the United States by the Treaty of Paris
concluded between the United States and Spain on December 10, 1898, the limits
of which are set forth in Article III of said treaty, together with all the islands
embraced in the treaty concluded at Washington, between the United States and
Spain on November 7, 1900, and in the treaty concluded between the United States
and Great Britain on January 2, 1930, and all the territory over which the
Government of the Philippine Islands exercised jurisdiction at the time of the
adoption of the Constitution;

WHEREAS, all the waters within the limits set forth in the above-mentioned treaties
have always been regarded as part of the territory of the Philippine Islands;

WHEREAS, all the waters around, between and connecting the various islands of
the Philippines archipelago, irrespective of their width or dimension, have always
been considered as necessary appurtenances of the land territory, forming part of
the inland or internal waters of the Philippines;

WHEREAS, all the waters beyond the outermost islands of the archipelago but
within the limits of the boundaries set forth in the aforementioned treaties
comprise the territorial sea of the Philippines;

WHEREAS, the baselines from which the territorial sea of the Philippines is
determined consist of straight lines joining appropriate points of the outermost
islands of the archipelago; and

WHEREAS, the said baselines should be clarified and specifically defined and
described for the information of all concerned; Now, therefor,

Section 1. The baselines for the territorial sea of the Philippines are hereby defined
and described specifically.

Section 2. All waters within the baselines provided for in Section one hereof are
considered inland or internal waters of the Philippines.

Section 3. This Act shall take effect upon its approval.

Approved: June 17, 1961.

1. Baselines serve as basis for a country’s maritime jurisdiction and a means
to establish maritime boundaries with neighboring coastal States.

2. Archipelagic States is a designation used for certain island countries that
consist of an archipelago
"archipelagic State" means a State constituted wholly by one or more
archipelagos and may include other islands;

 "archipelago" means a group of islands, including parts of islands,
interconnecting waters and other natural features which are so closely
interrelated that such islands, waters and other natural features form an
intrinsic geographical, economic and political entity, or which historically
have been regarded as such.

Article 47 (UNCLOS)
Archipelagic baselines

1. An archipelagic State may draw straight archipelagic baselines joining the
outermost points of the outermost islands and drying reefs of the archipelago
provided that within such baselines are included the main islands and an area in
which the ratio of the area of the water to the area of the land, including atolls, is
between 1 to 1 and 9 to 1.

2. The length of such baselines shall not exceed 100 nautical miles, except that
up to 3 per cent of the total number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent
from the general configuration of the archipelago.

4. Such baselines shall not be drawn to and from low-tide elevations, unless
lighthouses or similar installations which are permanently above sea level have
been built on them or where a low-tide elevation is situated wholly or partly at a
distance not exceeding the breadth of the territorial sea from the nearest island.

5. The system of such baselines shall not be applied by an archipelagic State in
such a manner as to cut off from the high seas or the exclusive economic zone the
territorial sea of another State.

6. If a part of the archipelagic waters of an archipelagic State lies between two
parts of an immediately adjacent neighbouring State, existing rights and all other
legitimate interests which the latter State has traditionally exercised in such waters
and all rights stipulated by agreement between those States shall continue and be
respected.

7. For the purpose of computing the ratio of water to land under paragraph l,
land areas may include waters lying within the fringing reefs of islands and atolls,
including that part of a steep-sided oceanic plateau which is enclosed or nearly
enclosed by a chain of limestone islands and drying reefs lying on the perimeter of
the plateau.

8. The baselines drawn in accordance with this article shall be shown on charts
of a scale or scales adequate for ascertaining their position. Alternatively, lists of
geographical coordinates of points, specifying the geodetic datum, may be
substituted.

9. The archipelagic State shall give due publicity to such charts or lists of
geographical coordinates and shall deposit a copy of each such chart or list with the
Secretary-General of the United Nations.

3. Internal Waters are waters landward of the baseline over which the state
has complete sovereignty: not even innocent passage is allowed without
explicit permission from said state. Lakes and rivers are considered
internal waters. All "archipelagic waters" within the outermost islands of
an archipelagic state such as Indonesia or the Philippines are also
considered internal waters, and are treated the same with the exception
that innocent passage through them must be allowed. However,
archipelagic states may designate certain sea lanes through these waters.

Territorial sea, as defined by the 1982 United Nations Convention on the Law of
the Sea,[1] is a belt of coastal waters extending at most 12 nautical miles (22.2 km;
13.8 mi) from the baseline (usually the mean low-water mark) of a coastal state.
The territorial sea is regarded as the sovereign territory of the state, although
foreign ships (military and civilian) are allowed innocent passage through it, or
transit passage for straits; this sovereignty also extends to the airspace over and
seabed below. Adjustment of these boundaries is called, in international law,
maritime delimitation.

A state's territorial sea extends up to 12 nautical miles (22.2 km; 13.8 mi) from its
baseline. If this would overlap with another state's territorial sea, the border is
taken as the median point between the states' baselines, unless the states in
question agree otherwise. A state can also choose to claim a smaller territorial sea.

An exclusive economic zone (EEZ) is a sea zone prescribed by the United Nations
Convention on the Law of the Sea over which a state has special rights regarding
the exploration and use of marine resources, including energy production from
water and wind.[1] It stretches from the baseline out to 200 nautical miles (nmi)
from its coast. In colloquial usage, the term may include the continental shelf. The
term does not include either the territorial sea or the continental shelf beyond the
200 nmi limit. The difference between the territorial sea and the exclusive
economic zone is that the first confers full sovereignty over the waters, whereas
the second is merely a "sovereign right" which refers to the coastal state's rights
below the surface of the sea. The surface waters, as can be seen in the map, are
international waters.

The contiguous zone is a band of water extending farther from the outer edge of
the territorial sea to up to 24 nautical miles (44.4 km; 27.6 mi) from the baseline,
within which a state can exert limited control for the purpose of preventing or
punishing "infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea". This will typically be 12 nautical
miles (22 km; 14 mi) wide, but could be more (if a state has chosen to claim a
territorial sea of less than 12 nautical miles), or less, if it would otherwise overlap
another state's contiguous zone. However, unlike the territorial sea, there is no
standard rule for resolving such conflicts and the states in question must negotiate
their own compromise. The United States invoked a contiguous zone out to 24 nmi
from the baseline on 29 September 1999.

4. Continental shelf extends out to the outer edge of the continental margin
but at least 200 nautical miles (370 km; 230 mi) from the baselines of the
territorial sea if the continental margin does not stretch that far. Coastal
states have the right of exploration and exploitation of the seabed and
the natural resources that lie on or beneath it, however other states may
 lay cables and pipelines if they are authorised by the coastal state. The
outer limit of a country's continental shelf shall not stretch beyond 350
nautical miles (650 km; 400 mi) of the baseline, or beyond 100 nautical
miles (190 km; 120 mi) from the 2,500 metres (8,200 ft) isobath, which is
a line connecting the depths of the seabed at 2,500 meters.

The outer edge of the continental margin for the purposes of this article is defined
as:

*a series of lines joining points not more than 60 nautical miles (110 km; 69 mi)
apart where the thickness of sedimentary rocks is at least 1% of the height of the
continental shelf above the foot of the continental slope; or
*a series of lines joining points not more than 60 nautical miles apart that is not
more than 60 nautical miles from the foot of the continental margin. The foot of
the continental slope is determined as the point of maximum change in the
gradient at its base.

The portion of the continental shelf beyond the 200 nautical mile limit is also known
as the extended continental shelf. Countries wishing to delimit their outer
continental shelf beyond 200 nautical miles have to submit scientific information
for the basis of their claim to the UN Commission on the Limits of the Continental
Shelf. The Commission then validates or makes recommendations on the scientific
basis for the extended continental shelf claim. The scientific judgement of the
Commission shall be final and binding. If validated extended continental shelf
claims overlap any demarcation between two or more parties are decided by
bilateral or multilateral negotiation, not by the Commission.

Rights over the continental shelf
Articles 77 to 81 define the rights of a country over its continental shelf.
A coastal nation has control of all resources on or under its continental shelf, living
or not, but no control over any living organisms above the shelf that are beyond its
exclusive economic zone. This gives it the right to conduct hydrocarbon exploration
and drilling works.

5. International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea is an independent judicial body
established by the United Nations Convention on the Law of the Sea to adjudicate
disputes arising out of the interpretation and application of the Convention. The
Tribunal is composed of 21 independent members, elected from among persons
enjoying the highest reputation for fairness and integrity and of recognized
competence in the field of the law of the sea.

The Tribunal has jurisdiction over any dispute concerning the interpretation or
application of the Convention, and over all matters specifically provided for in any
other agreement which confers jurisdiction on the Tribunal (Statute, article 21). The
Tribunal is open to States Parties to the Convention (i.e. States and international
organisations which are parties to the Convention). It is also open to entities other
than States Parties, i.e., States or intergovernmental organisations which are not
parties to the Convention, and to state enterprises and private entities "in any case
expressly provided for in Part XI or in any case submitted pursuant to any other
agreement conferring jurisdiction on the Tribunal which is accepted by all the
parties to that case" (Statute, article 20).

Pursuant to the provisions of its Statute, the Tribunal has formed the following
Chambers: the Chamber of Summary Procedure, the Chamber for Fisheries
Disputes, the Chamber for Marine Environment Disputes and the Chamber for
Maritime Delimitation Disputes.

At the request of the parties, the Tribunal has also formed special chambers to deal
with the Case concerning the Conservation and Sustainable Exploitation of
Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community)
and the Dispute Concerning Delimitation of the Maritime Boundary between
Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire).

Disputes relating to activities in the International Seabed Area are submitted to the
Seabed Disputes Chamber of the Tribunal, consisting of 11 judges. Any party to a
dispute over which the Seabed Disputes Chamber has jurisdiction may request the
Seabed Disputes Chamber to form an ad hoc chamber composed of three members
of the Seabed Disputes Chamber.

The Tribunal is open to States Parties to the Convention and, in certain cases, to
entities other than States Parties (such as international organizations and natural
or legal persons) (Access to the Tribunal).

The jurisdiction of the Tribunal comprises all disputes submitted to it in accordance
with the Convention. It also extends to all matters specifically provided for in any
other agreement which confers jurisdiction on the Tribunal. To date, twelve
multilateral agreements have been concluded which confer jurisdiction on the
Tribunal (relevant provisions of these agreements).

Unless the parties otherwise agree, the jurisdiction of the Tribunal is mandatory in
cases relating to the prompt release of vessels and crews under article 292 of the
Convention and to provisional measures pending the constitution of an arbitral
tribunal under article 290, paragraph 5, of the Convention.

The Seabed Disputes Chamber is competent to give advisory opinions on legal
questions arising within the scope of the activities of the International Seabed
Authority. The Tribunal may also give advisory opinions in certain cases under
international agreements related to the purposes of the Convention.

Disputes before the Tribunal are instituted either by written application or by
notification of a special agreement. The procedure to be followed for the conduct
of cases submitted to the Tribunal is defined in its Statute and Rules.


MAGALONA VS ERMITA
G.R. No. 187167 16Aug2011

Facts:

In March 2009, R.A. 9522 was enacted by the Congress to comply with the terms
of the United Nations Convention on the Law of the Sea (UNCLOS III), which the
Philippines ratified on February 27, 1984.

Professor Merlin Magallona et al questioned the validity of RA 9522 as they
contend, among others, that the law decreased the national territory of the
Philippines. Some of their particular arguments are as follows:

RA 9522 reduces Philippine maritime territory, and logically, the reach of the
Philippine state’s sovereign power, in violation of Article 1 of the 1987 Constitution,
embodying the terms of the Treaty of Paris and ancillary treaties.

RA 9522 opens the country’s waters landward of the baselines to maritime passage
by all vessels and aircrafts, undermining Philippine sovereignty and national
security, contravening the country’s nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional provisions. RA 9522’s treatmentof
the KIG as “regime of islands” not only results in the loss of a large maritime area
but also prejudices the livelihood of subsistence fishermen.

Hence, petitioners files action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 95221 (RA 9522) adjusting the country’s
archipelagic baselines and classifying the baseline regime of nearby territories.

Issues:
Whether or not RA 9522, the amendatory Philippine Baseline Law is
unconstitutional.

Discussions:

The provision of Art I 198 Constitution clearly affirms the archipelagic doctrine,
which we connect the outermost points of our archipelago with straight baselines
and consider all the waters enclosed thereby as internal waters. RA 9522, as a
Statutory Tool to Demarcate the Country’s Maritime Zones and Continental Shelf
Under UNCLOS III, gave nothing less than an explicit definition in congruent with
the archipelagic doctrine.
Rulings:
No. The Court finds R.A. 9522 constitutional. It is a Statutory Tool to Demarcate the
Country’s Maritime Zones and Continental Shelf Under UNCLOS III, not to Delineate
Philippine Territory. It is a vital step in safeguarding the country’s maritime zones.
It also allows an internationally-recognized delimitation of the breadth of the
Philippine’s maritime zones and continental shelf.

Additionally, The Court finds that the conversion of internal waters into
archipelagic waters will not risk the Philippines as affirmed in the Article 49 of the
UNCLOS III, an archipelagic State has sovereign power that extends to the waters
enclosed by the archipelagic baselines, regardless of their depth or distance from
the coast. It is further stated that the regime of archipelagic sea lanes passage will
not affect the status of its archipelagic waters or the exercise of sovereignty over
waters and air space, bed and subsoil and the resources therein.

The Court further stressed that the baseline laws are mere mechanisms for the
UNCLOS III to precisely describe the delimitations. It serves as a notice to the
international family of states and it is in no way affecting or producing any effect
like enlargement or diminution of territories.

ANGLO-NORWEIGIAN FISHERIES CASE
UK vs. NORWAY 1951 ICJ

Since 1911 British trawlers had been seized and condemned for violating measures
taken by the Norwegian government specifying the limits within which fishing was
prohibited to foreigners. In 1935, a decree was adopted establishing the lines of
delimitation of the Norwegian fisheries zone.

On 24th September 1949 the government of the United Kingdom filed the registry
of the international court of justice an application instituting proceedings against
Norway. The subject of the proceeding was the validity, under international law, of
the lines of delimitation of the Norwegian fisheries zone as set forth in a Decree of
12th July 1935.

The application referred to the declaration by which the united Kingdom and
Norway had accepted the compulsory jurisdiction of the International Court of
Justice in accordance with article 36 (2) of its statute.

The parties involved in this case were Norway and the United Kingdom, of Great
Britain and Northern Ireland. The implementation of the Royal Norwegian Decree
of the 1935 was met with resistance from the United Kingdom. The decree covers
the drawing of straight lines, called “baselines” 4 miles deep into the sea. This 4
miles area is reserved fishing exclusive for Norwegian nationals. Under article 36(2)
both UK and Norway were willing to accept the jurisdiction of the ICJ on this case
and with no appeal. The issues that constitute the case were submitted to the court
and the arguments presented by both countries. The issues claims the court to:
declare the principles of international law applicable in defining the baselines by
reference to which Norwegian government was entitled to delimit a fisheries zone
and exclusively reserved to its nationals; and to define the said “base lines” in the
light of the arguments of the parties in order to avoid further legal difference; and
secondly to award damages to the government of the United Kingdom in respect
of all interferences by the Norwegian authorities with British fishing vessels outside
the fisheries zone, which in accordance with ICJ’s decision, the Norwegian
government may be entitled to reserve for its nationals.

The United Kingdom argued that;
• Norway could only draw straight lines across bays
• The length of lines drawn on the formations of the Skaergaard fjord must not
exceed 10 nautical miles( the 10 Mile rule)
• That certain lines did not follow the general direction of the coast or did not
follow it sufficiently , or they did not respect certain connection of sea and
land separating them
• That the Norwegian system of delimitation was unknown to the British and
lack the notoriety to provide the basis of historic title enforcement upon
opposable to by the United Kingdom

The Kingdom of Norway argued;

• That the base lines had to be drawn in such a way as to respect the general
direction of the coast and in a reasonable manner.

The case was submitted to the International Court of Justice by the government of
the United Kingdom. The government of United Kingdom wants the ICJ to declare
the validity of the base lines under international law and receive compensation for
damages caused by Norwegian authorities as to the seizures of British Fishing
vessels.

The judgment of the court first examines the applicability of the principles put
forward by the government of the UK, then the Norwegian system, and finally the
conformity of that system with international law. The first principle put forward by
the UK is that the baselines must be low water mark, this indeed is the criterion
generally adopted my most states and but differ as to its application. (Johnson 154).
The court considered the methods of drawing the lines but, the court rejected the
“trace Parallele” which consists of drawing the outer limits of the belt following the
coast and all its sinuosity. The court also rejected the “courbe tangent” (arcs of a
circle) and it is not obligatory under international law to use these methods of
drawing the lines. The court also paid particular attention to the geographical
aspect of the case. The geographical realities and historic control of the Norwegian
coast inevitably contributed to the final decision by the ICJ. The coast of Norway is
too indented and is an exception under international law from the 3 miles territorial
waters rule. The fjords, Sunds along the coastline which have the characteristic of
a bay or legal straits should be considered Norwegian for historical reasons that the
territorial sea should be measured from the line of low water mark. So it was agreed
on the outset of both parties and the court that Norway had the right to claim a 4
mile belt of territorial sea. The court concluded that it was the outer line of the
Skaergaard that must be taken into account in admitting the belt of the Norwegian
territorial waters. (Johnson 154- 158). “There is one consideration not to be
overlooked, the scope of which extends beyond geographical factors. That of
certain economic interests peculiar to a region, the reality and importance of which
are clearly evidenced by a long usage” (Johnson 160)

The law relied upon mainly international Law of the sea; how far a state can modify
its territorial waters and its control over it, exclusively reserving fishing for its
nationals. In this case, rules that are practiced for instance how long a baseline
should be. Only a 10 mile long straight line is allowed and this has been the practice
by most states however it is different in the case of Norway because of Norway’s
geographic indentation, islands and islets.

The international customary law has been a law of reference in the court
arguments. Judge Read from Canada asserts that Customary international law does
not recognize the rule according to which belts of territorial waters of coastal states
is to be measured. More so public international law has been relied upon in this
case. It regulates relation between states; the United Kingdom and Norway.
The judgment was rendered in favor of Norway on the 18th December 1951. By 10
votes to 2 the court held that the method employed in the delimitation of the
fisheries zone by the Royal Norwegian decree of the 12th July 1935 is not contrary
to international law. By 8 votes to 4 votes the court also held that the base lines
fixed by this decree in application are not contrary to international law. However
there are separate opinions and dissenting opinions from the judges in the court.

Judge Hackworth declared that he concurred with the operative part of the
judgment because he considered that the Norwegian government had proved the
existence of historic title of the disputed areas of water.

Judge Alvarez from Chile relied on the evolving principles of the law of nations
applicable to the law of the sea.

States have the right to modify the extent of the of their territorial sea

Any state directly concerned may object to another state’s decision as to the extent
of its territorial sea

International status of bays and straits must be determined by the coastal state
directly concerned with due regard to the general interest and

Historic rights and concept of prescription in international law.

Judge Hsu Mo from china opinions diverge from the court’s with regards to
conformity with principles of international law to the straight lines drawn by the
Decree of 1935. He allowed possibility in certain circumstances, for instance, belt
measured at low tide, Norway’s geographic and historic conditions. But drawing
the straight lines as of the 1935 degree is a moving away from the practice of the
general rule. (Johnson 171)

The dissenting opinions from judge McNair rested upon few rules of law of
international waters. Though there are exceptions, in case of bays, the normal
procedure to calculate territorial waters in from the land, a line which follows the
coastline. Judge McNair rejected the argument upon which Norway based its
decree including:

Protecting Norway’s economic and other social interests

The UK should not be precluded from objecting the Norwegian system embodied
in the Decree because previous acquiescence in the system and

An historic title allowing the state to acquire waters that would otherwise have the
status of deep sea. Judge McNair concluded that the 1935 decree is not compatible
with international law.(Johnson173)

Furthermore, Judge Read from Canada was unable to concur with parts of the
judgment. Read rejected justification by Norway for enlarging her maritime domain
and seizing and condemning foreign ships (Johnson 173);

Sovereignty of the coastal state is not the basis for Norway to claim 4 mile belt from
straight base lines

Customary international law does not recognize the rule according to which belts
of territorial waters of coastal states is to be measured.

Norwegian system cannot be compatible with international law.

CORFU CHANNEL CASE
UK vs. ALBANIA 1949 ICJ

Brief Fact Summary. The fact that the Albanian (P) authorities did not make the
presence of mines in its waters was the basis of the United Kingdom (D) claim
against them.

Synopsis of Rule of Law. International obligations in peace time are created through
elementary consideration.

Facts.
The explosion of mines in the Albanian (P) waters resulted in the death of a British
naval personnel. It was on this basis that the United Kingdom (D) claimed that
Albania (P) was internationally responsible for damages.

Issue.
Are international obligations in time of peace created through elementary
consideration?

Held.
Yes. International obligations in peace time are created through elementary
consideration. Every state has an obligation not to knowingly allow its territory to
be used for acts contrary to the rights of other states.


Discussion. In this case, the Court found that the Hague Convention of 1907 could
not be applied but the Convention was applicable only in time of war. It was on the
basis of the principle of freedom of maritime communication that this case was
decided.




Held. Yes. International obligations in peace time are created through elementary
consideration. Every state has an obligation not to knowingly allow its territory to
be used for acts contrary to the rights of other states.

Discussion. In this case, the Court found that the Hague Convention of 1907 could
not be applied but the Convention was applicable only in time of war. It was on the
basis of the principle of freedom of maritime communication that this case was
decided.

M. INTERNATIONAL ENVIRONMENTAL LAW

International environmental law is a body of international law concerned with
protecting the environment, primarily through bilateral and multilateral
international agreements. International environmental law developed as a subset
of international law in the mid-twentieth century. Although conservation
movements developed in many nations in the nineteenth century, these
movements typically only addressed environmental concerns within a single
nation. A growing body of environmental scientific evidence from the 1950s and
1960s, however, illustrated global environmental stresses, along with the need for
a multinational solution to environmental issues. Scientific research established
that air and water pollution, overfishing, and other environmental issues often
have effects that reach far beyond the borders of any particular nation. By the late-
1960s, the international community realized that an international approach to
environmental issues was required.

PART XII
PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT

SECTION 1. GENERAL PROVISIONS
Article 192
General obligation

States have the obligation to protect and preserve the marine environment.

Article 193
Sovereign right of States to exploit their natural resources

States have the sovereign right to exploit their natural resources pursuant to their
environmental policies and in accordance with their duty to protect and preserve
the marine environment.

Article 194
Measures to prevent, reduce and control pollution of the marine environment

1. States shall take, individually or jointly as appropriate, all measures
consistent with this Convention that are necessary to prevent, reduce and control
pollution of the marine environment from any source, using for this purpose the
best practicable means at their disposal and in accordance with their capabilities,
and they shall endeavour to harmonize their policies in this connection.

2. States shall take all measures necessary to ensure that activities under their
jurisdiction or control are so conducted as not to cause damage by pollution to
other States and their environment, and that pollution arising from incidents or
activities under their jurisdiction or control does not spread beyond the areas
where they exercise sovereign rights in accordance with this Convention.

3. The measures taken pursuant to this Part shall deal with all sources of
pollution of the marine environment. These measures shall include, inter alia, those
designed to minimize to the fullest possible extent:

(a) the release of toxic, harmful or noxious substances, especially those which
are persistent, from land-based sources, from or through the atmosphere or by
dumping;

(b) pollution from vessels, in particular measures for preventing accidents and
dealing with emergencies, ensuring the safety of operations at sea, preventing
intentional and unintentional discharges, and regulating the design, construction,
equipment, operation and manning of vessels;

(c) pollution from installations and devices used in exploration or exploitation
of the natural resources of the seabed and subsoil, in particular measures for
preventing accidents and dealing with emergencies, ensuring the safety of
operations at sea, and regulating the design, construction, equipment, operation
and manning of such installations or devices;

(d) pollution from other installations and devices operating in the marine
environment, in particular measures for preventing accidents and dealing with
emergencies, ensuring the safety of operations at sea, and regulating the design,
construction, equipment, operation and manning of such installations or devices.

4. In taking measures to prevent, reduce or control pollution of the marine
environment, States shall refrain from unjustifiable interference with activities
carried out by other States in the exercise of their rights and in pursuance of their
duties in conformity with this Convention.

5. The measures taken in accordance with this Part shall include those
necessary to protect and preserve rare or fragile ecosystems as well as the habitat
of depleted, threatened or endangered species and other forms of marine life.

Oposa vs Factoran
GR No. 101083; July 30 1993

FACTS:
A taxpayer’s class suit was filed by minors Juan Antonio Oposa, et al., representing
their generation and generations yet unborn, and represented by their parents
against Fulgencio Factoran Jr., Secretary of DENR. They prayed that judgment be
rendered ordering the defendant, his agents, representatives and other persons
acting in his behalf to:

1. Cancel all existing Timber Licensing Agreements (TLA) in the country;
2. Cease and desist from receiving, accepting, processing, renewing, or
appraising new TLAs;

and granting the plaintiffs “such other reliefs just and equitable under the
premises.” They alleged that they have a clear and constitutional right to a balanced
and healthful ecology and are entitled to protection by the State in its capacity as
parens patriae. Furthermore, they claim that the act of the defendant in allowing
TLA holders to cut and deforest the remaining forests constitutes a
misappropriation and/or impairment of the natural resources property he holds in
trust for the benefit of the plaintiff minors and succeeding generations.
The defendant filed a motion to dismiss the complaint on the following grounds:

 1. Plaintiffs have no cause of action against him;
2. The issues raised by the plaintiffs is a political question which properly
pertains to the legislative or executive branches of the government.

ISSUE:
Do the petitioner-minors have a cause of action in filing a class suit to “prevent the
misappropriation or impairment of Philippine rainforests?”

HELD:
Yes. Petitioner-minors assert that they represent their generation as well as
generations to come. The Supreme Court ruled that they can, for themselves, for
others of their generation, and for the succeeding generation, file a class suit. Their
personality to sue in behalf of succeeding generations is based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right considers the “rhythm and harmony of nature”
which indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country’s forest, mineral, land,
waters, fisheries, wildlife, offshore areas and other natural resources to the end
that their exploration, development, and utilization be equitably accessible to the
present as well as the future generations.
Needless to say, every generation has a responsibility to the next to preserve that
rhythm and harmony for the full enjoyment of a balanced and healthful ecology.
Put a little differently, the minor’s assertion of their right to a sound environment
constitutes at the same time, the performance of their obligation to ensure the
protection of that right for the generations to come.

Laguna Lake Development Authority vs CA
GR No. 120865-71; Dec. 7 1995

FACTS:
The Laguna Lake Development Authority (LLDA) was created through Republic Act
No. 4850. It was granted, inter alia, exclusive jurisdiction to issue permits for the
use of all surface water for any project or activity in or affecting the said region
including navigation, construction, and operation of fishpens, fish enclosures, fish
corrals and the like.
Then came RA 7160, the Local Government Code of 1991. The municipalities in the
Laguna Lake region interpreted its provisions to mean that the newly passed law
gave municipal governments the exclusive jurisdiction to issue fishing privileges
within their municipal waters.

ISSUE:
Who should exercise jurisdiction over the Laguna Lake and its environs insofar as
the issuance of permits for fishing privileges is concerned, the LLDA or the towns
and municipalities comprising the region?

HELD:
LLDA has jurisdiction over such matters because the charter of the LLDA prevails
over the Local Government Code of 1991. The said charter constitutes a special law,
while the latter is a general law. It is basic in statutory construction that the
enactment of a later legislation which is a general law, cannot be construed to have
repealed a special law. The special law is to be taken as an exception to the general
law in the absence of special circumstances forcing a contrary conclusion.
In addition, the charter of the LLDA embodies a valid exercise of police power for
the purpose of protecting and developing the Laguna Lake region, as opposed to
the Local Government Code, which grants powers to municipalities to issue fishing
permits for revenue purposes.

Thus it has to be concluded that the charter of the LLDA should prevail over the
Local Government Code of 1991 on matters affecting Laguna de Bay.

JUSTICE SOCIETY VS. ATIENZA
G. R. No. 156052 February 13, 2008

Facts:
The Social Justice Society sought to compel respondent Hon. Jose L. Atienza, Jr.,
then mayor of the City of Manila, to enforce Ordinance No. 8027 that was enacted
by the Sangguniang Panlungsod of Manila in 2001. Ordinance No. 8027 reclassified
the area described therein from industrial to commercial and directed the owners
and operators of businesses disallowed under the reclassification to cease and
desist from operating their businesses within six months from the date of effectivity
of the ordinance. Among the businesses situated in the area are the so-called
“Pandacan Terminals†of the oil companies.

In 2002, the City of Manila and the Department of Energy (DOE) entered into a
memorandum of understanding (MOU) with the oil companies. They agreed that
“the scaling down of the Pandacan Terminals [was] the most viable and
practicable option.†The Sangguniang Panlungsod ratified the MOU in Resolution
No. 97. In the same resolution, the Sanggunian declared that the MOU was
effective only for a period of six months starting 25 July 2002, which period was
extended up to 30 April 2003.

This is the factual backdrop of the Supreme Court’s 7 March 2007 Decision. The SC
ruled that respondent had the ministerial duty under the Local Government Code
(LGC) to “enforce all laws and ordinances relative to the governance of the
city,†including Ordinance No. 8027. After the SC promulgated its Decision,
Chevron Philippines Inc. (Chevron), Petron Corporation (Petron) and Pilipinas Shell
Petroleum Corporation (Shell) (the “oil companies†) and the Republic of the
Philippines, represented by the DOE, sought to intervene and ask for a
reconsideration of the decision.

Intervention of the oil companies and the DOE allowed in the interest of justice

Intervention is a remedy by which a third party, not originally impleaded in the
proceedings, becomes a litigant therein to enable him, her or it to protect or
preserve a right or interest which may be affected by such proceedings. The
allowance or disallowance of a motion to intervene is addressed to the sound
discretion of the court. While the motions to intervene respectively filed by the oil
companies and the DOE were filed out of time, these motions were granted
because they presented novel issues and arguments. DOE’s intervention was
also allowed considering the transcendental importance of this case.

Ordinance No. 8119 did not impliedly repeal Ordinance No. 8027

Repeal by implication proceeds on the premise that where a statute of later date
clearly reveals the intention of the legislature to abrogate a prior act on the subject,
that intention must be given effect. Implied repeals are not favored and will not be
so declared unless the intent of the legislators is manifest.

There are two kinds of implied repeal. The first is: where the provisions in the two
acts on the same subject matter are irreconcilably contradictory, the latter act, to
the extent of the conflict, constitutes an implied repeal of the earlier one. The
second is: if the later act covers the whole subject of the earlier one and is clearly
intended as a substitute, it will operate to repeal the earlier law. The oil companies
argue that the situation here falls under the first category.

For the first kind of implied repeal, there must be an irreconcilable conflict between
the two ordinances. However, there was no legislative purpose to repeal Ordinance
No. 8027. There is no conflict since both ordinances actually have a common
objective, i.e., to shift the zoning classification from industrial to commercial
(Ordinance No. 8027) or mixed residential/commercial (Ordinance No. 8119).
While it is true that both ordinances relate to the same subject matter, i.e.,
classification of the land use of the area where Pandacan oil depot is located, if
there is no intent to repeal the earlier enactment, every effort at reasonable
construction must be made to reconcile the ordinances so that both can be given
effect.

Moreover, it is a well-settled rule in statutory construction that a subsequent
general law does not repeal a prior special law on the same subject unless it clearly
appears that the legislature has intended by the latter general act to modify or
repeal the earlier special law. The special law must be taken as intended to
constitute an exception to, or a qualification of, the general act or provision.
Ordinance No. 8027 is a special law since it deals specifically with a certain area
described therein (the Pandacan oil depot area) whereas Ordinance No. 8119 can
be considered a general law as it covers the entire city of Manila.

Mandamus lies to compel respondent Mayor to enforce Ordinance No. 8027

The oil companies insist that mandamus does not lie against respondent in
consideration of the separation of powers of the executive and judiciary. However,
while it is true that Courts will not interfere by mandamus proceedings with the
legislative or executive departments of the government in the legitimate exercise
of its powers, there is an exception – to enforce mere ministerial acts required
by law to be performed by some officer thereof. A writ of mandamus is the power
to compel “the performance of an act which the law specifically enjoins as a
duty resulting from office, trust or station.â€

The oil companies also argue that petitioners had a plain, speedy and adequate
remedy to compel respondent to enforce Ordinance No. 8027, which was to seek
relief from the President of the Philippines through the Secretary of the
Department of Interior and Local Government (DILG) by virtue of the
President’s power of supervision over local government units. This suggested
process, however, would be unreasonably long, tedious and consequently injurious
to the interests of the local government unit (LGU) and its constituents whose
welfare is sought to be protected. A party need not go first to the DILG in order to
compel the enforcement of an ordinance. Besides, the resort to an original action
for mandamus before the SC is undeniably allowed by the Constitution.

Ordinance No. 8027 is constitutional and valid

The tests of a valid ordinance are well established. For an ordinance to be valid, it
must not only be within the corporate powers of the LGU to enact and be passed
according to the procedure prescribed by law, it must also conform to the following
substantive requirements: (1) must not contravene the Constitution or any statute;
(2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4)
must not prohibit but may regulate trade; (5) must be general and consistent with
public policy and (6) must not be unreasonable. There is no showing that the
Ordinance is unconstitutional.

The City of Manila has the power to enact Ordinance No. 8027

Ordinance No. 8027 was passed by the Sangguniang Panlungsod of Manila in the
exercise of its police power. Police power is the plenary power vested in the
legislature to make statutes and ordinances to promote the health, morals, peace,
education, good order or safety and general welfare of the people. This power
flows from the recognition that salus populi est suprema lex (the welfare of the
people is the supreme law).

While police power rests primarily with the national legislature, such power may
be delegated. Section 16 of the LGC, known as the general welfare clause,
encapsulates the delegated police power to local governments. LGUs like the City
of Manila exercise police power through their respective legislative bodies, in this
case, the Sangguniang Panlungsod or the city council. Specifically, the Sanggunian
can enact ordinances for the general welfare of the city.

This police power was also provided for in RA 409 or the Revised Charter of the City
of Manila. Specifically, the Sanggunian has the power to “reclassify land within
the jurisdiction of the city.â€

The enactment of Ordinance No. 8027 is a legitimate exercise of police power

As with the State, local governments may be considered as having properly
exercised their police power only if the following requisites are met: (1) the
interests of the public generally, as distinguished from those of a particular class,
require its exercise; and (2) the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals. In
short, there must be a concurrence of a lawful subject and a lawful method.

Ordinance No. 8027 is a valid police power measure because there is a concurrence
of lawful subject and lawful method. It was enacted “for the purpose of
promoting sound urban planning, ensuring health, public safety and general
welfare†of the residents of Manila. The Sanggunian was impelled to take
measures to protect the residents of Manila from catastrophic devastation in case
of a terrorist attack on the Pandacan Terminals. Towards this objective, the
Sanggunian reclassified the area defined in the ordinance from industrial to
commercial.

The ordinance was intended to safeguard the rights to life, security and safety of
all the inhabitants of Manila and not just of a particular class. The depot is
perceived, rightly or wrongly, as a representation of western interests which means
that it is a terrorist target. As long as it there is such a target in their midst, the
residents of Manila are not safe. It therefore became necessary to remove these
terminals to dissipate the threat. Wide discretion is vested on the legislative
authority to determine not only what the interests of the public require but also
what measures are necessary for the protection of such interests. Clearly, the
Sanggunian was in the best position to determine the needs of its constituents.

In the exercise of police power, property rights of individuals may be subjected to
restraints and burdens in order to fulfill the objectives of the government.
Otherwise stated, the government may enact legislation that may interfere with
personal liberty, property, lawful businesses and occupations to promote the
general welfare. However, the interference must be reasonable and not arbitrary.
And to forestall arbitrariness, the methods or means used to protect public health,
morals, safety or welfare must have a reasonable relation to the end in view.

The means adopted by the Sanggunian was the enactment of a zoning ordinance
which reclassified the area where the depot is situated from industrial to
commercial. A zoning ordinance is defined as a local city or municipal legislation
which logically arranges, prescribes, defines and apportions a given political
subdivision into specific land uses as present and future projection of needs. As a
result of the zoning, the continued operation of the businesses of the oil companies
in their present location will no longer be permitted. The power to establish zones
for industrial, commercial and residential uses is derived from the police power
itself and is exercised for the protection and benefit of the residents of a locality.
Consequently, the enactment of Ordinance No. 8027 is within the power of the
Sangguniang Panlungsod of the City of Manila and any resulting burden on those
affected cannot be said to be unjust.

Ordinance No. 8027 is not unfair, oppressive or confiscatory which amounts to
taking without compensation

According to the oil companies, Ordinance No. 8027 is unfair and oppressive as it
does not only regulate but also absolutely prohibits them from conducting
operations in the City of Manila. However, the oil companies are not prohibited
from doing business in other appropriate zones in Manila. The City of Manila merely
exercised its power to regulate the businesses and industries in the zones it
established.

The oil companies also argue that the ordinance is unfair and oppressive because
they have invested billions of pesos in the depot, and the forced closure will result
in huge losses in income and tremendous costs in constructing new facilities. This
argument has no merit. In the exercise of police power, there is a limitation on or
restriction of property interests to promote public welfare which involves no
compensable taking. Compensation is necessary only when the state’s power
of eminent domain is exercised. In eminent domain, property is appropriated and
applied to some public purpose. Property condemned under the exercise of police
power, on the other hand, is noxious or intended for a noxious or forbidden
purpose and, consequently, is not compensable. The restriction imposed to protect
lives, public health and safety from danger is not a taking. It is merely the
prohibition or abatement of a noxious use which interferes with paramount rights
of the public. In the regulation of the use of the property, nobody else acquires the
use or interest therein, hence there is no compensable taking.

In this case, the properties of the oil companies and other businesses situated in
the affected area remain theirs. Only their use is restricted although they can be
applied to other profitable uses permitted in the commercial zone.

Ordinance No. 8027 is not partial and discriminatory

The oil companies take the position that the ordinance has discriminated against
and singled out the Pandacan Terminals despite the fact that the Pandacan area is
congested with buildings and residences that do not comply with the National
Building Code, Fire Code and Health and Sanitation Code.

An ordinance based on reasonable classification does not violate the constitutional
guaranty of the equal protection of the law. The requirements for a valid and
reasonable classification are: (1) it must rest on substantial distinctions; (2) it must
be germane to the purpose of the law; (3) it must not be limited to existing
conditions only; and (4) it must apply equally to all members of the same class. The
law may treat and regulate one class differently from another class provided there
are real and substantial differences to distinguish one class from another.

Here, there is a reasonable classification. What the ordinance seeks to prevent is a
catastrophic devastation that will result from a terrorist attack. Unlike the depot,
the surrounding community is not a high-value terrorist target. Any damage caused
by fire or explosion occurring in those areas would be nothing compared to the
damage caused by a fire or explosion in the depot itself. Accordingly, there is a
substantial distinction. The enactment of the ordinance which provides for the
cessation of the operations of these terminals removes the threat they pose.
Therefore it is germane to the purpose of the ordinance. The classification is not
limited to the conditions existing when the ordinance was enacted but to future
conditions as well. Finally, the ordinance is applicable to all businesses and
industries in the area it delineated.

Ordinance No. 8027 is not inconsistent with RA 7638 and RA 8479

The oil companies and the DOE assert that Ordinance No. 8027 is unconstitutional
because it contravenes RA 7638 (DOE Act of 1992) and RA 8479 (Downstream Oil
Industry Deregulation Law of 1998).

It is true that ordinances should not contravene existing statutes enacted by
Congress. However, a brief survey of decisions where the police power measure of
the LGU clashed with national laws shows that the common dominator is that the
national laws were clearly and expressly in conflict with the ordinances/resolutions
of the LGUs. The inconsistencies were so patent that there was no room for doubt.
This is not the case here. The laws cited merely gave DOE general powers to
“establish and administer programs for the exploration, transportation,
marketing, distribution, utilization, conservation, stockpiling, and storage of energy
resources†and “to encourage certain practices in the [oil] industry which
serve the public interest and are intended to achieve efficiency and cost reduction,
ensure continuous supply of petroleum products.†These powers can be
exercised without emasculating the LGUs of the powers granted them. When these
ambiguous powers are pitted against the unequivocal power of the LGU to enact
police power and zoning ordinances for the general welfare of its constituents, it is
not difficult to rule in favor of the latter. Considering that the powers of the DOE
regarding the Pandacan Terminals are not categorical, the doubt must be resolved
in favor of the City of Manila.

The principle of local autonomy is enshrined in and zealously protected under the
Constitution. An entire article (Article X) of the Constitution has been devoted to
guaranteeing and promoting the autonomy of LGUs. The LGC was specially
promulgated by Congress to ensure the autonomy of local governments as
mandated by the Constitution. There is no showing how the laws relied upon by
the oil companies and DOE stripped the City of Manila of its power to enact
ordinances in the exercise of its police power and to reclassify the land uses within
its jurisdiction.

The DOE cannot exercise the power of control over LGUs

Another reason that militates against the DOE’s assertions is that Section 4 of
Article X of the Constitution confines the President’s power over LGUs to one
of general supervision. Consequently, the Chief Executive or his or her alter egos,
cannot exercise the power of control over them. The President and his or her alter
egos, the department heads, cannot interfere with the activities of local
governments, so long as they act within the scope of their authority. Accordingly,
the DOE cannot substitute its own discretion for the discretion exercised by the
sanggunian of the City of Manila. In local affairs, the wisdom of local officials must
prevail as long as they are acting within the parameters of the Constitution and the
law.

Ordinance No. 8027 is not invalid for failure to comply with RA 7924 and EO 72

The oil companies argue that zoning ordinances of LGUs are required to be
submitted to the Metropolitan Manila Development Authority (MMDA) for review
and if found to be in compliance with its metropolitan physical framework plan and
regulations, it shall endorse the same to the Housing and Land Use Regulatory
Board (HLURB). Their basis is Section 3 (e) of RA 7924 and Section 1 of E.O. 72. They
argue that because Ordinance No. 8027 did not go through this review process, it
is invalid.

The argument is flawed. RA 7942 does not give MMDA the authority to review land
use plans and zoning ordinances of cities and municipalities. This was only found in
its implementing rules which made a reference to EO 72. EO 72 expressly refers to
comprehensive land use plans (CLUPs) only. Ordinance No. 8027 is admittedly not
a CLUP nor intended to be one. Instead, it is a very specific ordinance which
reclassified the land use of a defined area in order to prevent the massive effects
of a possible terrorist attack. It is Ordinance No. 8119 which was explicitly
formulated as the “Manila [CLUP] and Zoning Ordinance of 2006.†CLUPs are
the ordinances which should be submitted to the MMDA for integration in its
metropolitan physical framework plan and approved by the HLURB to ensure that
they conform with national guidelines and policies. Moreover, even assuming that
the MMDA review and HLURB ratification are necessary, the oil companies did not
present any evidence to show that these were not complied with. In accordance
with the presumption of validity in favor of an ordinance, its constitutionality or
legality should be upheld in the absence of proof showing that the procedure
prescribed by law was not observed.

Conclusion

Essentially, the oil companies are fighting for their right to property. They allege
that they stand to lose billions of pesos if forced to relocate. However, based on
the hierarchy of constitutionally protected rights, the right to life enjoys
precedence over the right to property. The reason is obvious: life is irreplaceable,
property is not. When the state or LGU’s exercise of police power clashes with
a few individuals’ right to property, the former should prevail.

Both law and jurisprudence support the constitutionality and validity of Ordinance
No. 8027. Without a doubt, there are no impediments to its enforcement and
implementation. Any delay is unfair to the inhabitants of the City of Manila and its
leaders who have categorically expressed their desire for the relocation of the
terminals. Their power to chart and control their own destiny and preserve their
lives and safety should not be curtailed by the intervenors’ warnings of
doomsday scenarios and threats of economic disorder if the ordinance is enforced.

Just the same, the Court noted that it is not about to provoke a crisis by ordering
the immediate relocation of the Pandacan Terminals out of its present site. The
enforcement of a decision, specially one with far-reaching consequences, should
always be within the bounds of reason, in accordance with a comprehensive and
well-coordinated plan, and within a time-frame that complies with the letter and
spirit of our resolution. To this end, the oil companies have no choice but to obey
the law.

MMDA v. Concerned Residents of Manila Bay
GR No. 171947-48 18 December 2008

FACTS:

Respondents filed a complaint before the RTC against several government
agencies, among them the petitioners, for the cleanup, rehabilitation, and
protection of the Manila Bay. The complaint alleged that the water quality of the
Manila Bay had fallen way below the allowable standards set by law, specifically PD
1152. Respondents, as plaintiffs, prayed that petitioners be ordered to clean the
Manila Bay and submit to the RTC a concerted concrete plan of action for the
purpose.

RTC rendered a Decision in favor of respondents, ordering the defendant-
government agencies to clean up and rehabilitate Manila Bay.

Petitioners, before the CA, argued that PD 1152 relates only to the cleaning of
specific pollution incidents and do not cover cleaning in general. Apart from raising
concerns about the lack of funds, petitioners also asserted that the cleaning of the
Manila Bay is not a ministerial act, which can be compelled by mandamus.

The CA denied petitioners’ appeal and affirmed the Decision of the RTC in toto.
Hence, this petition.

ISSUES:

Does PD 1152 include a cleanup in general or is it limited only to the cleanup of
specific pollution incidents?
Whether or not petitioners may be compelled by mandamus to clean up and
rehabilitate the Manila Bay?
RULING:

Issue 1:

PD 1152 does not in any way state that the government agencies concerned ought
to confine themselves to the containment, removal, and cleaning operations when
a specific pollution incident occurs. The underlying duty to upgrade the quality of
water is not conditional on the occurrence of any pollution incident.

Even assuming the absence of a categorical legal provision specifically prodding
petitioners to clean up the bay, they and the men and women representing them
cannot escape their obligation to future generations of Filipinos to keep the waters
of the Manila Bay clean and clear as humanly as possible.

Issue 2:

Yes, petitioners may be compelled.

The MMDA’s duty in the area of solid waste disposal is set forth not only in the
Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty of
putting up a proper waste disposal system cannot be characterised as
discretionary, for, as earlier stated, discretion presupposes the power or right given
by law to public functionaries to act officially according to their judgment or
conscience.

A perusal of other petitioners’ respective charters would yield to the conclusion
that these government agencies are enjoined, as a matter of statutory obligation,
to perform certain functions relating directly or indirectly to the cleanup,
rehabilitation, protection, and preservation of the Manila Bay. They are precluded
from choosing not to perform these duties.

The petition is DENIED.

DANUBE DAM CASE
The Gabcíkovo-Nagymaros Project
(Hungary/Slovakia)
Judgment of 25 September 1997

The case arose out of the signature, on 16 September 1977, by the Hungarian
People's Republic and the Czechoslovak People's Republic, of a treaty concerning
the construction and operation of the Gabcíkovo-Nagymaros system of locks in
order to further the utilization of the natural resources of the Bratislava-Budapest
section of the Danube river. The project was essentially aimed at the production of
hydroelectricity, the improvement of navigation on the relevant section of the
Danube and the protection of the areas along the banks against flooding. It
provided for the building of two series of locks, one at Gabcíkovo (in Czechoslovak
territory) and the other at Nagymaros (in Hungarian territory), to constitute a single
and indivisible operational system of works.
As a result of intense criticism which the project had generated in Hungary, the
Hungarian Government decided on 13 May 1989 to suspend the works at
Nagymaros pending the completion of various studies. In October 1989, Hungary
decided to not continue the work any further.
During this period, negotiations took place between the parties. Czechoslovakia
also started investigating alternative solutions. One of them, an alternative solution
subsequently known as "Variant C", entailed a unilateral diversion of the Danube
by Czechoslovakia on its territory. On 23 July 1991, the Slovak Government decided
to begin construction to put the Gabcíkovo Project into operation by the above-
mentioned alternative solution.

On 19 May 1992, the Hungarian Government transmitted to the Czechoslovak
Government a note verbale unilaterally terminating the 1977 Treaty with effect
from 25 May 1992. On 15 October 1992, Czechoslovakia began work to enable the
Danube to be closed and, starting on 23 October, proceeded to the damming of the
river, before Slovakia became an independent State on 1 January 1993.

Slovakia and Hungary then concluded in April 1993 a compromis, inter alia
requesting the Court to decide whether the Republic of Hungary had been entitled
to suspend and subsequently abandon, in 1989, the works on the project.

In its judgment of 25 September 1997, the Court started by taking the view that in
many respects the provisions of the Vienna Convention concerning the termination
and the suspension of the operation of treaties, set forth in its Articles 60 to 62, are
to be considered as a codification of customary international law. It then found that
in suspending and subsequently abandoning the works for which it was still
responsible Hungary had expressed its unwillingness to comply with at least some
of the provisions of the Treaty of 1977, the effect of which was to render impossible
the accomplishment of the system of works that the Treaty expressly described as
single and indivisible.

The Court further considered that the state of necessity is a ground recognized by
customary international law for precluding the wrongfulness of an act not in
conformity with an international obligation. It also considered, moreover, that such
ground for precluding wrongfulness can only be accepted on an exceptional basis.
It acknowledged that the concerns expressed by Hungary for its natural
environment in the region related to an essential interest, but that the perils
invoked by Hungary, without prejudging their possible gravity, were not sufficiently
established in 1989, nor had they been imminent; and that Hungary had had
available to it at that time means of responding to these perceived perils other than
the suspension and abandonment of works with which it had been entrusted.

The Court also noted that Hungary - when it decided to conclude the 1977 Treaty
– had been presumably aware of the situation as then known; and that the need to
ensure the protection of the environment had not escaped the parties. The Court
therefore concluded that, even if it had been established that there was, in 1989, a
state of necessity linked to the performance of the 1977 Treaty, Hungary would not
have been permitted to rely upon that state of necessity in order to justify its failure
to comply with its treaty obligations, as it had helped to bring it about. In the light
of the conclusions reached above, the Court found that Hungary had not been
entitled to suspend and subsequently abandon the works for which it was
responsible.

As to the question whether the Czech and Slovak Federal Republic had been
entitled to proceed, in November 1991, to the provisional solution and to put into
operation from October 1992 this system, the Court observed that the basic
characteristic of the 1977 Treaty was to provide for the construction of the system
of locks as a joint investment constituting a single and indivisible operational
system of works. The Court accordingly concluded that Czechoslovakia, in
unilaterally putting Variant C into operation, was not applying the 1977 Treaty but,
on the contrary, violated certain of its express provisions, and, in so doing, had
committed an internationally wrongful act.

As to the legal effects of the notification of the termination of the Treaty by the
Republic of Hungary, the Court first observed that, even if a state of necessity is
found to exist, it is not a ground for the termination of a treaty but may be only
invoked to exonerate from its responsibility a State which has failed to implement
a treaty.

Besides, in the Court's view, the prevailing political conditions had not been so
closely linked to the object and purpose of the Treaty that they constituted an
essential basis of the consent of the parties and, in changing, therefore did not
radically alter the extent of the obligations still to be performed. The changed
circumstances advanced by Hungary had thus, in the Court's view, not been of such
a nature that their effect would radically transform the extent of the obligations
still to be performed in order to accomplish the project.

While reiterating that Czechoslovakia had violated the treaty when it diverted the
waters of the Danube, the Court found that it had not yet done so when
constructing the works which eventually led to the putting into operation of Variant
C. In the Court's view, therefore, the notification of termination by Hungary on 19
May 1992 had been premature and Hungary had thus not been entitled to invoke
any such breach of the treaty as a ground for terminating it when it did.

Finally, the Court took the view that although it had found that both Hungary and
Czechoslovakia had failed to comply with their obligations under the 1977 Treaty,
this reciprocal wrongful conduct did not bring the Treaty to an end nor did it justify
its termination.

In the light of these conclusions, the Court found that the notification of
termination by Hungary of 19 May 1992 did not have the legal effect of terminating
the 1977 Treaty.

As to the question whether Slovakia had become a party to the 1977 Treaty as a
successor State of Czechoslovakia, the Court referred to the principle that treaties
of a territorial character remain unaffected by a succession of States, a principle
which, according to the Court, is part of customary international law. The Court
accordingly concluded that the Treaty itself had not been affected by a succession
of States and had thus become binding upon Slovakia on 1 January 1993.

As to the legal consequences of the judgment, the Court observed that the 1977
Treaty was still in force and consequently primarily governed the relationship
between the Parties. Taking into account the fact, however, that the Treaty had not
been fully implemented by either party for years, it considered that the factual
situation as it had developed since 1989 was to be placed within the context of the
preserved and developing treaty relationship, in order to achieve its object and
purpose in so far as that is feasible.

President Schwebel and Judge Rezek appended declarations to the judgment while
Judges Weeramantry, Bedjaoui and Koroma all appended separate opinions.
Finally, Judges Oda, Ranjeva, Herzegh, Fleischhauer, Vereshetin and Parra-
Aranguren and Judge ad hoc Skubiszewski appended dissenting opinions.

On September 3, 1998, Slovakia, on the basis of Article 5 (3) of the Special
Agreement, filed a request for an additional judgment in the case, such an
additional judgment being necessary, according to Slovakia, because of the
unwillingness of Hungary to implement the Judgment delivered by the Court. At
the moment of writing, this item was still under negotiations between the Parties;
no formal act having been taken by the Court.