PIL Sarmiento Notes

NOTES:
2008 LEI Notes in
Public International Law

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“Nam omnia praeclara tam difficilia quam rara sunt”

For all that is excellent and eminent is as difficult as it is rare
-Spinoza on Ethics
2 PUBLIC INTERNATIONAL LAW 2008
Notes:
INTRODUCTION t of through tribunals
Dispu internatio through local
Definition te nal modes administrativ
Public v Private International Law of e and judicial
Basis of Public International Law settlemen processes.
1. Naturalist t – like
2. Positivists negotiatio
3. Eccletics ns and
Three Grand Divisions arbitratio
Relations between International and Municipal n,
Law reprisals
1. From the viewpoint of doctrine and even
a. Dualist war
b. Monists 3. Derived Consists
2. From the view of practice Sourc from such mainly from
a. Doctrine of Transformation e sources as the
b. Doctrine of Incorporation internatio lawmaking
nal authority of
¯°º°¯ customs, each state.
DEFINITION OF Public International Law internatio
It is the body of rules and principles that are nal
recognized as legally binding and which govern conventio
the relations of states and other entities invested ns and the
with international legal personality. Formerly general
known as “law of nations” coined by Jeremy principles
Bentham in 1789. of law.
Public International Law Distinguished From 4. Applies to Regulates the
Private International Law/Conflict of Laws Subje relations relations of
It is that part of the law of each State which ct states individuals
determines whether, in dealing with a factual inter se whether of
situation, an event or transaction between private and other the same
individuals or entities involving a foreign element, internatio nationality or
the law of some other State will be recognized. nal not.
persons.
Public Private
1. Public is As a rule, 5. Infractions Generally,
Natur internatio Private is
Respo are entails only
e nal in national or nsibil usually individual
nature. It municipal in
ity collective responsibility
is a law of character. for in the .
a Except when
violat sense that
sovereign embodied in ion it
over those a treaty or
attaches
subjected convention, directly to
to his becomes
the state
sway international and not to
[Openhei in character.
its
m – It is a law, nationals.
Lauterpac not above,
ht, 38.] but between,
sovereign BASIS OF PIL – 3 SCHOOLS OF THOUGHT [Why are
states and is, rules of international law binding?]
therefore, a
weaker law. 1. Naturalist –
[Openheim – ★ PIL is a branch of the great law of nature –
Lauterpacht, the sum of those principles which ought to
38.] control human conduct, being founded on
the very nature of man as a rational and
2. Disputes Recourse is
social being. [Hugo Grotius]
Settl are with
★ PIL is binding upon States
emen resolved municipal
★ State legally bound to observe its treaty

2. Positivist – obligations, once signed and ratified Notes:
★ Basis is to be found in the consent and
conduct of States. 2. Municipal Sphere – depends on what doctrine is
★ Tacit consent in the case of customary followed:
international law.
★ Express in conventional law. Doctrine of Incorporation -
★ Presumed in the general law of nations. Rules of international law form part of the law of
[Cornelius van Bynkershoek] the land and no further legislative action is
3. Groatians or Eclectics – needed to make such rules applicable in the
★ Accepts the doctrine of natural law, but domestic sphere. [Sec. of Justice v. Lantion GRN
maintained that States were accountable 139465, Jan. 18, 2000]
only to their own conscience for the
observance of the duties imposed by This is followed in the Philippines:
natural law, unless they had agreed to be Art. II, Sec. 2 – “The Philippines…adopts the
bound to treat those duties as part of generally accepted principles of international law
positive law. [Emerich von Vattel] as part of the law of the land…” However, no
★ Middle ground primacy is implied.
3 GRAND DIVISIONS Q: What are these generally accepted

1. Laws of Peace – normal relations between principles?
states in the absence of war. A: Pacta sunt servanda, sovereign equality among
states, principle of state immunity; right of states
2. Laws of War – relations between hostile or to self-defense
belligerent states during wartime.
Secretary Of Justice v. Judge Lantion and
3. Laws of Neutrality – relations between a non- Jimenez [GR 139465, 18 Jan. 2000]
participant state and a participant state during
wartime. This also refers to the relations among FACTS: A possible conflict between the US-RP
non-participating states. Extradition Treaty and Philippine law
RELATIONS BETWEEN INTERNATIONAL LAW AND
MUNICIPAL LAW ISSUE: WON, under the Doctrine of Incorporation,
International Law prevails over Municipal Law
From the Viewpoint of Doctrine
1. Dualists – HELD: NO.
★ International Law and Municipal Law are
two completely separate realms. Under the doctrine of incorporation, rules of
★ See distinctions Nos. 1,3 &4. international law form part of the law of the land
and no further legislative action is needed to
2. Monists – make such rules applicable in the domestic
★ Denies that PIL and Municipal Law are sphere.
essential different.
★ In both laws, it is the individual persons
The doctrine of incorporation is applied whenever
who in the ultimate analysis are regulated
local courts are confronted with situations in
by the law. That both laws are far from
which there appears to be a conflict between a
being essentially different and must be
rule of international law and the provisions of the
regarded as parts of the same juristic
local state’s constitution/statute.
conception. For them there is oneness or
unity of all laws.
★ PIL is superior to municipal law— First, efforts should first be exerted to harmonize
international law, being the one which them, so as to give effect to both. This is because
determines the jurisdictional limits of the it is presumed that municipal law was enacted
personal and territorial competence of with proper regard for the generally accepted
States. principles of international law in observance of
the incorporation clause.
From the Viewpoint of Practice
1. International Tribunals However, if the conflict is irreconcilable and a
★ PIL superior to Municipal Law choice has to be made between a rule of
★ Art. 27, Vienna Convention in the law of international law and municipal law,
Treaties – A state “may not invoke the jurisprudence dictates that the municipal courts
provisions of its internal law as justification should uphold municipal law.
for its failure to perform a treaty”
This is because such courts are organs of are given equal standing with, but are not
municipal law and are accordingly bound by it in superior to, national legislative enactments. Notes:
all circumstances. The fact that international law Accordingly, the principle of lex posterior derogat
was made part of the law of the land does not priori takes effect – a treaty may repeal a statute
pertain to or imply the primacy of international and a statute may repeal a treaty. In states
law over national/municipal law in the municipal where the Constitution is the highest law of the
sphere. land, such as the Republic of the Philippines, both
statutes and treaties may be invalidated if they
are in conflict with the Constitution. (Secretary
The doctrine of incorporation, as applied in most
of Justice v. Hon. Ralph C. Lantion, G.R. No.
countries, decrees that rules of international law
139465, Jan. 18, 2000, En Banc [Melo])
are given equal standing with, but are not
superior to, national legislative enactments.
Q: Is sovereignty really absolute and all-
encompassing? If not, what are its restrictions
In case of conflict, the courts should harmonize and limitations?
both laws first and if there exists an unavoidable Held: While sovereignty has traditionally been
contradiction between them, the principle of lex deemed absolute and all-encompassing on the
posterior derogat priori - a treaty may repeal a domestic level, it is however subject to
statute and a statute may repeal a treaty - will restrictions and limitations voluntarily agreed to
apply. But if these laws are found in conflict with by the Philippines, expressly or impliedly, as a
the Constitution, these laws must be stricken out member of the family of nations. By the doctrine
as invalid. of incorporation, the country is bound by
generally accepted principles of international law,
In states where the constitution is the highest law which are considered to be automatically part of
of the land, such as in ours, both statutes and our own laws. One of the oldest and most
treaties may be invalidated if they are in conflict fundamental rules in international law is pacta
with the constitution. sunt servanda – international agreements must be
performed in good faith. A state which has
Supreme Court has the power to invalidate a contracted valid international obligations is bound
treaty – Sec. 5(2)(a), Art. VIII, 1987 Constitution to make in its legislations such modifications as
may be necessary to ensure the fulfillment of the
obligations.
Q: What is the doctrine of incorporation? How
is it applied by local courts?
By their inherent nature, treaties really limit or
Held: Under the doctrine of incorporation, rules
restrict the absoluteness of sovereignty. By their
of international law form part of the law of the
voluntary act, nations may surrender some
land and no further legislative action is needed to
aspects of their state power in exchange for
make such rules applicable in the domestic
greater benefits granted by or derived from a
sphere.
convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of
The doctrine of incorporation is applied whenever
mutually covenanted objectives and benefits,
municipal tribunals (or local courts) are
they also commonly agree to limit the exercise of
confronted with situations in which there appears
their otherwise absolute rights. Thus, treaties
to be a conflict between a rule of international
have been used to record agreements between
law and the provisions of the Constitution or
States concerning such widely diverse matters as,
statute of the local state. Efforts should first be
for example, the lease of naval bases, the sale or
exerted to harmonize them, so as to give effect to
cession of territory, the termination of war, the
both since it is to be presumed that municipal law
regulation of conduct of hostilities, the formation
was enacted with proper regard for the generally
of alliances, the regulation of commercial
accepted principles of international law in
relations, the settling of claims, the laying down
observance of the Incorporation Clause in Section
of rules governing conduct in peace and the
2, Article II of the Constitution. In a situation
establishment of international organizations. The
however, where the conflict is irreconcilable and
sovereignty of a state therefore cannot in fact and
a choice has to be made between a rule of
in reality be considered absolute. Certain
international law and municipal law,
restrictions enter into the picture: (1) limitations
jurisprudence dictates that municipal law should
imposed by the very nature of membership in the
be upheld by the municipal courts for the reason
family of nations and (2) limitations imposed by
that such courts are organs of municipal law and
treaty stipulations. (Tanada v. Angara, 272 SCRA
are accordingly bound by it in all circumstances.
18, May 2, 1997 [Panganiban])
The fact that international law has been made
part of the law of the land does not pertain to or
Doctrine of Transformation –
imply the primacy of international law over
Legislative action is required to make the treaty
national or municipal law in the municipal sphere.
enforceable in the municipal sphere.
The doctrine of incorporation, as applied in most
countries, decrees that rules of international law
Generally accepted rules of international law are Q: A treaty was concurred between RP and
not per se binding upon the state but must first be China. Later, a law was passed which has Notes:
embodied in legislation enacted by the lawmaking conflicting provisions with the treaty. Rule.
body and so transformed into municipal law. This A: A treaty is part of the law of the land. But as
doctrine runs counter Art. II, Sec. 2, of the 1987 internal law, it would not be superior to a
Constitution. legislative act, rather it would be in the same
A reading of the case of Kuroda v Jalandoni, [GRN class as the latter. Thus, the latter law would be
L-2662 March 26, 1949], one may say that considered as amendatory of the treaty, being a
Supreme Court expressly ruled out the Doctrine of subsequent law under the principle lex posterior
Transformation when they declared that generally derogat priori. (Abbas vs. COMELEC)
accepted principles of international law form a
part of the law of our nation even if the
Philippines was not a signatory to the convention
embodying them, for our Constitution has been
deliberately general and extensive in its scope
and is not cofined to the recognition of rules and
principles of international law as contained in
treaties to which our government may have been
or shall be a signatory.
Pacta Sunt Servanda SOURCES

International agreements must be performed in
Good Faith. A treaty engagement is not a mere Article 38 of the Statute of International Court of
moral obligation but creates a legally binding Justice (SICJ) directs that the following be
obligation on the [arties. A state which has considered before deciding a case:
contracted a valid international obligation is
bound to make in its legislation such modifications A. Primary
as may be necessary to ensure the fulfillment of I. Treaties or International Conventions
the obligations undertaken. II. International Custom
III. General Principles of Law Recognized by
Tañada vs. Angara Civilized Nations
GRN 118295 May 2, 1997
B. Secondary
While sovereignty has traditionally been deemed IV. Judicial Decisions
absolute and all encompassing on the domestic V. Teachings of authoritative publicists
level, it is however subject to restrictions and
limitations voluntarily agreed to by the ¯°º°¯
Philippines, expressly or impliedly as a member of
the family of nations. The Constitution does not A. Primary
envision a hermit type isolation of the country
from the rest of the world. I. Treaties or International Conventions – 2
KINDS:
1. Contract Treaties [Traite-Contrat] –
By the doctrine of incorporation, the country is
bound by generally accepted principles of ★ Bilateral arrangements concerning matters
international law, which are considered to be
of particular or special interest to the
automatically part of our own laws.
contracting parties
★ Source of “Particular International Law”
The constitutional policy of a "self-reliant and ★ BUT: May become primary sources of
independent national economy" does not international law when different contract
necessarily rule out the entry of foreign treaties are of the same nature, containing
investments, goods and services. It contemplates practically uniform provisions, and are
neither “economic seclusion" nor "mendicancy in concluded by a substantial number of States
the international community." EX.: Extradition Treaties
2. Law-Making Treaty [Traite-Loi] –

Concept of Sovereignty as Autolimitation ★ Concluded by a large number of States for
When the Philippines joined the United Nations as purposes of:
one of its 51 charter members, it consented to 1. Declaring, confirming, or defining their
restrict its sovereign rights under the "concept of understanding of what the law is on a
sovereignty as autolimitation. particular subject;
2. Stipulating or laying down new general
rules for future international conduct;
3. Creating new international institutions
★ Source of “General International Law” cumulative effect of uniform decisions of the

courts of the most important States is to afford Notes:
II. International Custom – evidence of international custom.
Matters of international concern are not usually
covered by international agreements and many V. Teachings of authoritative publicists –
States are not parties to most treaties; including learned writers
international custom remains a significant source Such works are resorted to by judicial tribunals
of international law, supplementing treaty rules. not for the speculation of their authors
concerning what the law ought to be, but for
Custom is the practice that has grown up between trustworthy evidence of what the law really is.
States and has come to be accepted as binding by [Mr. Justice Gray in Paquete Habana case, 175
the mere fact of persistent usage over a long U.S. 677.]
period of time
Q: State your general understanding of the
It exists when a clear and continuous habit of primary sources and subsidiary sources of
doing certain things develops under the international law, giving an illustration of each.
CONVICTION that it is obligatory and right. (2003 Bar)
A: Under Article 38 of the Statute of International
This conviction is called “Opinio Juris” Court of Justice, the primary sources of
international law are the following:
When there’s no conviction that it is obligatory
and right, there’s only a Usage. 1. International conventions, e.g. Vienna
Convention on the Law of Treaties.
Usage is also a usual course of conduct, a long- 2. International customs, e.g. cabotage, the
established way of doing things by States. prohibition against slavery, and the
prohibition against torture.
To elevate a mere usage into one of a customary 3. General principles of law recognized by
rule of international law, there must be a degree civilized nations, e.g. prescription, res
of constant and uniform repetition over a period judicata, and due process.
of time coupled with opinio juris.
The subsidiary sources of international law are
III. General Principles of Law Recognized by judicial decisions, subject to the provisions of
Civilized Nations Article 59, e.g., the decision in the Anglo-
Norwegian Fisheries Case and Nicaragua v. US, and
Salonga opines that resort is taken from general teachings of the most highly qualified publicists of
principles of law whenever no custom or treaty various nations, e.g., Human Rights in
provision is applicable. The idea of “civilized International Law by Lauterpacht and
nations” was intended to restrict the scope of the International Law by Oppenheim-Lauterpacht.
provision to European States, however, at present
the term no longer have such connotation, thus Alternative A: Reflecting general international
the term should include all nations. law, Article 38(1) of the Statute of International
Court of Justice is understood as providing for
Examples of general principles are: estoppel, international convention, international custom,
pacta sunt servanda, consent, res judicata and and general principles of law as primary sources
prescription; including the principles of justice, of international law, while indicating that judicial
equity and peace. decisions and teachings of the most highly
qualified publicists as “subsidiary means for the
B. Secondary determination of the rules of law.”
IV. Judicial decisions The primary sources may be considered as formal

The doctrine of stare decisis is not applicable in sources in that they are considered methods by
international law per Art.59 of the ICJ which which norms of international law are created and
states that “The decision of the Court has no recognized. A conventional or treaty norm and a
binding force except between the parties and in customary norm is the product of the formation of
respect to that particular case.” This means that general practice accepted as law.
these decisions are not a direct source, but they
do exercise considerable influence as an impartial By way of illustrating international Convention as
and well-considered statement of the law by a source of law, we may refer to the principle
jurists made in the light of actual problems which embodied in Article 6 of the Vienna Convention on
arise before them, and thus, accorded with great the Law on Treaties which reads: “Every State
respect. possesses capacity to conclude treaties.” It tells
us what the law is and the process or method by
This includes decisions of national courts, which it cam into being. International Custom
although they are not a source of law, the may be concretely illustrated by pacta sunt
servanda, a customary or general norm which c. Consequences of Recognition of

came about through extensive and consistent Government Notes:
practice by a great number of states recognizing C. Recognition of Belligerency
it as obligatory. a. Belligerency
b. 2 Senses of Belligerency
The subsidiary means serves as evidence of law. A c. Requisites of Belligerency
decision of the International Court of Justice, for d. Consequences of Recognition of
example, may serve as material evidence Belligerents
confirming or showing that the prohibition against e. Forms of Recognition
the use of force is a customary norm, as the
decision of the Court has demonstrated in the ¯°º°¯
Nicaragua Case. The status of a principle as a
norm of international law may find evidence in Subject Defined
the works of highly qualified publicists in A Subject is an entity that has an international
international law, such as McNair, Kelsen or personality. An entity has an international
Oppenheim. personality if it can directly enforce its rights and
duties under international law. Where there is no
direct enforcement of accountability and an
intermediate agency is needed, the entity is
merely an object not a subject of international
SUBJECTS law.
Subject Defined Q: When does an entity acquire international

Object Defined personality?
2 Concepts of Subjects of International Law A: When it has right and duties under
State as Subjects of International Law international law; can directly enforce its rights;
Elements of a State and may be held directly accountable for its
4. People obligations.
5. Territory Objects Defined
6. Government An Object is a person or thing in respect of which
a) 2 kinds rights are held and obligations assumed by the
(1) De Jure Subject. Thus, it is not directly governed by the
(2) De Facto – 3 kinds rules of international law. There is no direct
b) 2 functions enforcement and accountability. An intermediate
(1) Constituent agency—the Subject—is required for the
(2) Ministrant enjoyment of its rights and for the discharge of its
c) Effects of change in government obligations.
7. Sovereignty
a) Kinds SUBJECTS OF INTERNATIONAL LAW
b) Characteristics 2 Concepts:
c) Effects of change in sovereignty 1. Traditional concept
Principle of State Continuity ★ Only States are considered subjects of
Fundamental Rights of States international law.
1. Right to Sovereignty and Independence;
2. Right to Property and Jurisdiction; 2. Contemporary concept
3. Right to Existence and Self-Defense ★ Individuals and international
4. Right to Equality organizations are also subjects because
5. Right to Diplomatic Intercourse they have rights and duties under
Recognition international law. (Liang vs. People, GRN
Level of Recognition 125865 [26 March 2001])
A. Recognition of State - 2 Schools of
Thought The STATE as subject of International Law
a. Constitutive School State is a community of persons more or less
b. Declaratory School numerous, permanently occupying a definite
B. Recognition of Government portion of territory, independent of external
a. Criteria for Recognition control, and possessing an organized government
1. Objective Test – to which the great body of inhabitants render
2. Subjective Test habitual obedience.
(a) Tobar/Wilson Doctrine
(b) Estrada Doctrine Q: The Japanese government confirmed that
b. Kinds of Recognition during the Second World War, Filipinas were
1. De Jure among those conscripted as “comfort women”
2. De Facto (prostitutes) for Japanese troops in various
parts of Asia. The Japanese government has
accordingly launched a goodwill campaign and Reports 293, 302 [1924]) (Holy See, The v. Rosario,
offered the Philippine government substantial Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc Notes:
assistance for a program that will promote [Quiason])
through government and non-governmental
organization women’s rights, child welfare, Q: What is the status of an individual under
nutrition and family health care. An executive public international law? (1981 Bar)
agreement is about to be signed for that A: According to Hanks Kelson, “while as a general
purpose. The agreement includes a clause rule, international law has as its subjects states
whereby the Philippine government and obliges only immediately, it exceptionally
acknowledges that any liability to the comfort applies to individuals because it is to man that the
women or their descendants are deemed norms of international law apply, it is to man
covered by the reparations agreements signed whom they restrain, it is to man who,
and implemented immediately after the Second international law thrusts the responsibilities of
World War. Julian Iglesias, descendant of now law and order.”
deceased comfort woman, seeks you advise on
the validity of the agreement. Advise him. Q: Is the Vatican City a state?
(1992 Bar) A: YES!
A: The agreement is valid. The comfort woman
and their descendant cannot assert individual
claims against Japan. As stated in Paris Moore v.
Reagan, 453 US 654, the sovereign authority of
the state to settle claims of its nationals against Holy See v. Rosario
foreign countries has repeatedly been recognized. [GR 101949, 01 Dec. 1994]
This may be made without the consent of the
nationals or even without consultation with them.
Since the continued amity between the State and The Lateran Treaty established the STATEHOOD of
the Vatican City “for the purpose of assuring to
other countries may require a satisfactory
compromise of mutual claims, the necessary the Holy See absolute and visible independence
and of guaranteeing to it indisputable sovereignty
power to make such compromise has been
recognized. The settlement of such claims may also in the field of international relations”.
be made by executive agreement.
From the wordings of the Lateran Treaty, it is
Q: What must a person who feels aggrieved by difficult to determine whether the statehood is
the acts of a foreign sovereign do to espouse his vested in the Holy See or in the Vatican City.
cause?
Held: Under both Public International Law and The Vatican City fits into none of the established
Transnational Law, a person who feels aggrieved categories of states, and the attribution to it of
by the acts of a foreign sovereign can ask his own “sovereignty” must be made in a sense different
government to espouse his cause through from that in which it is applied to other states.
diplomatic channels.
The Vatican City represents an entity organized
Private respondent can ask the Philippine
not for political but for ecclesiastical purposes
government, through the Foreign Office, to and international objects.
espouse its claims against the Holy See. Its first
task is to persuade the Philippine government to
take up with the Holy See the validity of its Despite its size and object, it has an independent
claims. Of course, the Foreign Office shall first government of its own, with the Pope, who is also
make a determination of the impact of its head of the Roman Catholic Church, as the Holy
espousal on the relations between the Philippine See or Head of State, in conformity with its
government and the Holy See. Once the traditions, and the demands of its mission.
Philippine government decides to espouse the Indeed, its world-wide interests and activities are
claim, the latter ceases to be a private cause. such as to make it in a sense an “international
state”.
According to the Permanent Court of International
Justice, the forerunner of the International Court It was noted that the recognition of the Vatican
of Justice: City as a state has significant implication – that it
is possible for any entity pursuing objects
“By taking up the case of one of its subjects and essentially different from those pursued by states
by resorting to diplomatic action or international to be invested with international personality.
judicial proceedings on his behalf, a State is in
reality asserting its own rights – its right to Since the Pope prefers to conduct foreign
ensure, in the person of its subjects, respect for relations and enter into transactions as the Holy
the rules of international law.” (The Mavrommatis See and not in the name of the Vatican City, one
Palestine Concessions, 1 Hudson, World Court
can conclude that in the Pope's own view, it is the essentially different from those pursued by states
Holy See that is the international person. to be invested with international personality. Notes:
Inasmuch as the Pope prefers to conduct foreign
The Philippines has accorded the Holy See the
relations and enter into transactions as the Holy
status of a foreign sovereign. The Holy See,
See and not in the name of the Vatican City, one
through its Ambassador, the Papal Nuncio, has had
can conclude that in the Pope's own view, it is the
diplomatic representations with the Philippine
Holy See that is the international person.
government since 1957. This appears to be the
universal practice in international relations.
The Republic of the Philippines has accorded the
Holy See the status of a foreign sovereign. The
Q: Discuss the Status of the Vatican and the Holy Holy See, through its Ambassador, the Papal
See in International Law. Nuncio, has had diplomatic representations with
Held: Before the annexation of the Papal States the Philippine government since 1957. This
by Italy in 1870, the Pope was the monarch and appears to be the universal practice in
he, as the Holy See, was considered a subject of international relations. (Holy See, The v. Rosario,
International Law. With the loss of the Papal Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc
States and the limitation of the territory under [Quiason])
the Holy See to an area of 108.7 acres, the
position of the Holy See in International Law
became controversial.
In 1929, Italy and the Holy See entered into the

Lateran Treaty, where Italy recognized the
exclusive dominion and sovereign jurisdiction of ELEMENTS OF A STATE:
the Holy See over the Vatican City. It also A. People –
recognized the right of the Holy See to receive ★ the inhabitants of the State
foreign diplomats, to send its own diplomats to
★ must be numerous enough to be self-
foreign countries, and to enter into treaties
sufficing and to defend themselves and
according to International Law.
small enough to be easily administered
and sustained.
The Lateran Treaty established the statehood of
★ the aggregate of individuals of both sexes
the Vatican City “for the purpose of assuring to
who live together as a community
the Holy See absolute and visible independence
despite racial or cultural differences
and of guaranteeing to it indisputable sovereignty
★ groups of people which cannot comprise
also in the field of international relations.”
a State:
1. Amazons – not of both sexes; cannot
In view of the wordings of the Lateran Treaty, it is
perpetuate themselves
difficult to determine whether the statehood is
2. Pirates – considered as outside the
vested in the Holy See or in the Vatican City.
pale of law, treated as an enemy of
Some writers even suggested that the treaty
all mankind; “hostis humani generis”
created two international persons - the Holy See
and Vatican City.
B. Territory –
★ the fixed portion of the surface of the
The Vatican City fits into none of the established
earth inhabited by the people of the
categories of states, and the attribution to it of
State
“sovereignty” must be made in a sense different
★ the size is irrelevant – San Marino v.
from that in which it is applied to other states. In
China
a community of national states, the Vatican City
★ BUT, practically, must not be too big as
represents an entity organized not for political
to be difficult to administer and defend;
but for ecclesiastical purposes and international
but must not be too small as to unable to
objects. Despite its size and object, the Vatican
provide for people’s needs
City has an independent government of its own,
★ Q: Why important to determine?
with the Pope, who is also head of the Roman
A: Determines the area over which the
Catholic Church, as the Holy See or Head of State,
State exercises jurisdiction
in conformity with its traditions, and the demands
★ Nomadic tribe not a State
of its mission in the world. Indeed, the world-
wide interests and activities of the Vatican City
Q: What comprises the Philippine Archipelago?
are such as to make it in a sense an “international
A: §1, Article 1, 1987 Philippine Constitution.
state.”
“The national territory comprises the Philippine
One authority wrote that the recognition of the
archipelago, with all the islands and waters
Vatican City as a state has significant implication -
embraced therein, and all other territories over
that it is possible for any entity pursuing objects
which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, ★ the agency or instrumentality through

and aerial domains, including its territorial sea, which the will of the State is formulated, Notes:
the seabed, the subsoil, the insular shelves, and expressed and realized
other submarine areas. The waters around, ★ 2 KINDS:
between, and connecting the islands of the 1. De Jure
archipelago, regardless of their breadth and  One with rightful title but not power
dimensions, form part of the internal waters of or control, because:
the Philippines.” ☀ Power was withdrawn;
☀ Has not yet entered into the
Q: The provision deleted the reference to exercise of power
territories claimed “by historic right or legal 2. De Facto
title.” Does this mean that we have abandoned  A government of fact
claims to Sabah?  Actually exercises power or control,
A: NO! This is not an outright or formal but has NO legal title
abandonment of the claim. Instead, the claim was  3 Kinds:
left to a judicial body capable of passing a) By revolution – that which is
judgment over the issue established by the inhabitants
who rise in revolt against and
★ The definition covers the following depose the legitimate regime;
territories:
1. Ceded to the US under the Treaty of Paris EX. the Commonwealth
of 10 Dec. 1898 established by Oliver Cromwell
2. Defined in the 07 Nov. 1900 Treaty which supplanted the monarchy
between US and Spain, on the following under Charles I of England
islands;
3. Cagayan; b) By government of paramount
4. Sulu; force – that which is established
5. Sibuto in the course of war by the
6. Defined in the 02 Jan. 1930 Treaty invading forces of one
between the US and the UK over the belligerent in the territory of
Turtle and Mangsee Islands the other belligerent, the
7. Island of Batanes government of which is also
8. Contemplated in the phrase “belonging displaced
to the Philippines by historic right or
legal title” EX. the Japanese occupation
government in the Philippines
Q: What is the basis of the Philippine’s claim to which replaced the
a part of the Spratlys Islands? (2000 Bar) Commonwealth government
A: The basis of the Philippine claim is effective during WWII
occupation of a territory not subject to the
sovereignty of another state. The Japanese forces c) By secession – that which is
occupied the Spratly Islands Group during the established by the inhabitants of
Second World War. However, under the San a state who cedes therefrom
Francisco Peace Treaty of 1951, Japan formally without overthrowing its
renounced all right and claim to the Spratlys. The government
San Francisco Treaty or any other international
agreement, however, did not designate any EX. the confederate government
beneficiary state following the Japanese during the American Civil War
renunciation of right. Subsequently, the Spratlys which, however, did not seek to
became terra nullius and was occupied by the depose the union government
Philippines in the title of sovereignty. Philippine
sovereignty was displayed by open and public Q: Is the Cory Aquino Government a de facto or
occupation of a number of islands by stationing de jure government?
military forces, by organizing a local government A: De Jure! While initially the Aquino
unit, and by awarding petroleum drilling rights, Government was a de facto government because
among other political and administrative acts. In it was established thru extra-constitutional
1978, it confirmed its sovereign title by the measures, it nevertheless assumed a de jure
promulgation of Presidential Decree No. 1596, status when it subsequently recognized by the
which declared the Kalayaan Island Group part of international community as the legitimate
Philippine territory. government of the Republic of the Philippines.
Moreover, a new Constitution was drafted and
C. Government – overwhelmingly ratified by the Filipino people and
national elections were held for that purpose.
[Lawyers League for a Better Philippines v.

Aquino, G.R. No. 73748 (1986)] Harm justifies the replacement of the government Notes:
by revolution – “Direct State Action”
★ The Cory government won! All de facto
governments lost in the end! EFFECTS OF A CHANGE IN GOVERNMENT:
It is well settled that as far as the rights of the
★ 2 Functions: predecessor government are concerned, they are
1. Constituent – constitutes the very bonds inherited in toto by the successor government.
of society – COMPULSORY. Regarding obligations, distinction is made
according to the manner of the establishment of
Examples: the new government.
(a) Keeping of order and providing for
the protection of persons and The rule is that where the new government was
property from violence and robber; organized by virtue of a constitutional reform duly
(b) Fixing of legal relations between ratified in a plebiscite, the obligations of the
spouses and between parents and replaced government are also completely assumed
children; by the former. Conversely, where the new
(c) Regulation of the holding, government was established through violence, as
transmission, and interchange of by a revolution, it may lawfully reject the purely
property, and the determination of personal or political obligations of the
liabilities for debt and crime; predecessor government but not those contracted
(d) Determination of contractual by it in the ordinary course of official business.
relations between individuals;
(e) Definition and punishment of crimes
(f) Administration of justice in civil
cases; Summary:
(g) Administration of political duties, A. Change of Government by Constitutional
privileges, and relations of citizens; Reform
(h) Dealings of the States with foreign ★ The new government inherits all the
powers rights and obligations of the former
government
2. Ministrant – undertaken to advance the
general interests of society – merely B. Change by Extra-Constitutional Means
OPTIONAL. ★ Rights – all are inherited;
★ Obligations – distinguish:
Examples: ★ Contracted in the regular course
(a) Public works; of business – Inherited;
(b) Public charity;
(c) Regulation of trade and industry EX.: Payment of postal money orders
bought by an individual
Q: Is the distinction still relevant?
A: No longer relevant! ★ Purely Personal/Political
Obligations – Not bound! May
ACCFA v. CUGCO [30 SCRA 649] reject!
EX.: Payment for arms bought by old
Constitution has repudiated the laissez faire government to fight the rebels
policy
Constitution has made compulsory the
Q: The Federation of Islamabad concluded an
performance of ministrant functions.
agreement with the republic of Baleria when
the leaders of Islamabad made a state visit to
Examples: the latter. The agreement concerns the
Promote social justice; facilitation of entry of Balerian contract workers
Land reform in Islamabad. Thereafter, a revolution broke
Provide adequate social services out in Islamabad which is now governed by a
revolutionary junta. Most of Balerian contract
Q: What is the mandate of the Philippine workers were arrested by Islamabad
Government? Immigration officers for not having with them
A: Art. II, Sec. 4 – “The prime duty of the the necessary papers and proper documents.
Government is to serve and protect the people…” Upon learning of the incident, the government
Thus, whatever good is done by government – of Baleria lodged a formal protest with the
attributed to the State; whatever harm is done by Islamabad revolutionary government invoking
the government – attributed to the government certain provisions of the aforementioned
alone, not the State agreement. The latter replied, however that
the new government is not internationally Q: What happens to sovereignty if the acts of
bound by the agreement that was concluded by authority cannot be exercised by the legitimate Notes:
the former government of Islamabad and authority?
Baleria. Moreover, Islamabad further contended A: Sovereignty not suspended.
that the agreement was contrary to its
plasmatic law. Is the Islamabad revolutionary EX.: Japanese Occupation during WWII
government under obligation pursuant to ★ Sovereignty remained with the US
international law, to comply with what was ★ Japanese merely took over the exercise
agreed upon and set forth in the agreement of acts of sovereignty
concluded between Baleria and its former
government? Reasons. (1985 Bar) Q: In this case, what are the effects on the
A: Yes. A new government is exempt from laws?
obligation of treaties entered into by the previous A: Political Laws -
government only with respect to those whose GR: Suspended!
subject matter is political in nature. The ★ Subject to revival under jus postliminium
facilitation of entry by Balerian contract workers – i.e., once the legitimate authority
to Islamabad is non political. Hence, the treaty returns, the political laws are revived
embodying such agreement is binding on the new
government of Islamabad. Nor may the new ★ Jus Postliminium – roman law concept. If
government evade its international obligation on a Roman Citizen is captured, he loses his
the ground that the agreement is contrary to its rights as a Roman citizen, but once he
Plasmatic law. The rule is settled that a state returns to Rome, he recovers all those
cannot evade its international obligation by rights again
invoking its internal law. It is presumed that the XPN:
treaty is in conformity with its internal law. (a) Laws of Treason – Not suspended!
D. Sovereignty – ★ Preservation of allegiance to sovereign
★ the supreme and uncontrollable power does not demand positive action, but
inherent in a State by which that State is only a passive attitude or forbearance
governed. May be legal or political from adhering to the enemy by giving the
★ KINDS: latter aid and comfort (Laurel v. Misa)
1. Legal and Political Sovereignty
(b) Combatants – not covered by said rule
Legal - ★ Thus, AFP members still covered by
☀ the authority which has the power to National Defense Act, Articles of War,
issue final commands etc. (Ruffy v. Chief of Staff)
☀ Congress is legal sovereign ★ Rule applies only to civilians
Political - Civil Laws:

☀ the power behind the legal GR: Remains in force
sovereign, or the sum of the XPN: Amended or superseded by affirmative
influences that operate upon it act of belligerent occupant
☀ the different sectors molding public
opinion Q: What happens to judicial decisions made
during the occupation?
2. Internal and External Sovereignty A: Those of a Political Complexion –
★ automatically annulled upon restoration
Internal – of legitimate authority
☀ the power of a State to control its ★ conviction for treason against the
internal affairs belligerent
External - Non-political
☀ the power of the State to direct its ★ remains valid
relations with other States ★ EX.: Conviction for defamation
☀ also called “Independenc”e
EFFECTS OF A CHANGE IN SOVEREIGNTY
Characteristics of Sovereignty 1. Political Laws are deemed ABROGATED.
1. permanent Q: Why?
2. exclusivity A: They govern relations between the State
3. comprehensiveness and the people.
4. absoluteness
5. individuality 2. Non-Political Laws generally continue in
6. inalienability operation.
7. imprescriptibility Q: Why?
A: Regulates only private relations
occupied territory were still bound by their

XPN: allegiance to the latter during the enemy Notes:
(a) Changed by the new sovereign occupation. Since the preservation of the
(b) Contrary to institutions of the new allegiance or the obligation of fidelity and
sovereign obedience of a citizen or subject to his
government or sovereign does not demand from
Q: What is the effect of change of sovereignty him a positive action, but only passive attitude or
when the Spain ceded the Philippines to the forbearance from adhering to the enemy by giving
U.S.? the latter aid and comfort, the occupant has no
A: The effect is that the political laws of the power, as a corollary of the preceding
former sovereign are not merely suspended but consideration, to repeal or suspend the operation
abrogated. As they regulate the relations of the law of treason.
between the ruler and the rules, these laws fall to
the ground ipso facto unless they are retained or Q: Was there a case of suspended allegiance
re-enacted by positive act of the new sovereign. during the Japanese occupation?
Non-political laws, by contrast, continue in A: None. Adoption of the petitioner's theory of
operation, for the reason also that they regulate suspended allegiance would lead to disastrous
private relations only, unless they are changed by consequences for small and weak nations or
the new sovereign or are contrary to its states, and would be repugnant to the laws of
institutions. humanity and requirements of public conscience,
for it would allow invaders to legally recruit or
Q: What is the effect of Japanese occupation to enlist the quisling inhabitants of the occupied
the sovereignty of the U.S. over the Philippines? territory to fight against their own government
A: Sovereignty is not deemed suspended although without the latter incurring the risk of being
acts of sovereignty cannot be exercised by the prosecuted for treason. To allow suspension is to
legitimate authority. Thus, sovereignty over the commit political suicide.
Philippines remained with the U.S. although the
Americans could not exercise any control over the Q: Is sovereignty really absolute?
occupied territory at the time. What the A: In the domestic sphere – YES! In international
belligerent occupant took over was merely the sphere – NO!
exercise of acts of sovereignty.
Tañada, et al. vs. Angara, et al.
Q: Distinguish between Spanish secession to the [GR 118295, 02 May 1997]
U.S. and Japanese occupation during WWII
regarding the political laws of the Philippines.
A: There being no change of sovereignty during While sovereignty has traditionally been deemed
absolute and all-encompassing on the domestic
the belligerent occupation of Japan, the political
laws of the occupied territory are merely level, it is however subject to restrictions and
limitations voluntarily agreed to by the
suspended, subject to revival under jus
postliminium upon the end of the occupation. In Philippines, expressly or impliedly, as a member
of the family of nations.
both cases, however, non-political laws, remains
effective.
By the doctrine of incorporation, the country is
NOTES: bound by generally accepted principles of
Members of the armed forces are still covered by international law, which are considered to be
the National Defense Act, the Articles of War and automatically part of our own laws.
other laws relating to the armed forces even
during the Japanese occupation. One of the oldest and most fundamental rules in
international law is pacta sunt servanda –
A person convicted of treason against the international agreements must be performed in
Japanese Imperial Forces was, after the good faith.
occupation, entitled to be released on the ground
that the sentence imposed on him for his political A treaty engagement is not a mere moral
offense had ceased to be valid but not on non-
obligation but creates a legally binding obligation
political offenses. on the parties. By their inherent nature, treaties
limit or restrict the absoluteness of sovereignty.
Q: May an inhabitant of a conquered State be By their voluntary act, nations may surrender
convicted of treason against the legitimate
some aspects of their state power in exchange for
sovereign committed during the existence of greater benefits granted by or derived from a
belligerency?
convention or pact.
A: YES. Although the penal code is non-political
law, it is applicable to treason committed against
the national security of the legitimate States, like individuals, live with coequals, and in
government, because the inhabitants of the pursuit of mutually covenanted objectives and
benefits, they also commonly agree to limit the RIGHTS OF THE STATE
exercise of their otherwise absolute rights. Notes:
Fundamental Rights of States [ S P E E D ]
1. Right to Sovereignty
Thus, a state’s sovereignty cannot in fact and in
and Independence;
reality be considered absolute. Certain
2. Right to Property and
restrictions enter into the picture:
Jurisdiction;
Limitations imposed by the very nature of 3. Right to Existence
membership in the family of nations; and and Self-Defense
Limitations imposed by treaty stipulations. 4. Right to Equality
5. Right to Diplomatic
Thus, when the Philippines joined the UN as one Intercourse
of its 51 charter members, it consented to restrict
its sovereign rights under the “concept of RIGHT OF EXISTENCE AND SELF-DEFENSE
sovereignty as AUTO-LIMITATION.” ★ The most elementary and important right of a
State
The underlying consideration in this partial ★ All other rights flow from this right
surrender of sovereignty is the reciprocal ★ Recognized in the UN Charter, Article 51:
commitment of the other contracting states in
granting the same privilege and immunities to the “Nothing in the present charter shall impair
Philippines, its officials and its citizens. the inherent right of individual or collective
self-defense if an armed attack occurs against
a Member of the UN, until the SC has taken
Clearly, a portion of sovereignty may be waived
measures necessary to maintain international
without violating the Constitution, based on the
peace and security. Measures taken by
rationale that the Philippines “adopts the
Members in the exercise of this right of self-
generally accepted principles of international law
defense shall be immediately reported to the
as part of the law of the land and adheres to the
SC and shall not in any way affect the
policy of . . . cooperation and amity with all
authority and responsibility of the SC under
nations.”
the present Charter to take at any time such
action as it deems necessary in order to
Principle of State Continuity maintain or restore international peace and
State is not lost when one of its elements is security.”
changed; it is lost only when at least one of its
elements is destroyed. State does not lose its ★ Art. II, Sec. 2 – “The Philippines renounces
identity but remains one and the same war as an instrument of national policy…”
international person notwithstanding changes in ★ This prohibits an offensive/aggressive war
the form of its government, territory, people, or ★ But, it allows DEFENSIVE WAR!
sovereignty. See Holy See vs. Rosario (238 SCRA ★ Thus, when attacked, the Philippines can
524) exercise its inherent right of existence and
self-defense
From the moment of its creation, the State ★ This right is a generally accepted principle of
continues as a juristic being, despite changes in international law – thus, it is part of our law
its elements. EX.: of the land, under the Incorporation Clause
(1) Reduction of population due to natural (Art. II, Sec. 2, 1987 Constitution)
calamity
(2) Changes in territory Q: State the occasions when the use of force
However, the disappearance of any of the may be allowed under the UN Charter.
elements causes the extinction of the state. A: There are only two occasions when the use of
force is allowed under the UN Charter. The first is
Q: In the famous Sapphire Case, Emperor Louis when it is authorized in pursuance of the
Napoleon filed damage suit on behalf of France enforcement action that may be decreed by the
in an American Court, but he was deposed and Security Council under Art. 42. The second is
replaced as head of State pendent elite. Was when it is employed in the exercise of the
the action abated? (Bar) inherent right of self-defense under conditions
A: No, because it had in legal effect been filed by prescribed in Art. 51. (Justice Isagani A. Cruz, in
France, whose legal existence had not been an article entitled “A New World Order” written in
affected by change in head of its government. his column “Separate Opinion” published in the
Napoleon had sued not in his personal capacity March 30, 2003 issue of the Philippines Daily
but officially as sovereign of France. Hence, upon Inquirer)
recognition of the duly authorized representative
of the new government, the litigation could Q: Not too long ago, “allied forces”, led by
continue. Amercian and British armed forces, invaded Iraq
to “liberate Iraqis and destroy suspected
weapons of mass destruction.” The Security disarmament process,” giving Iraq “a final
Council of the United Nations failed to reach a opportunity to comply with its disarmament Notes:
consensus on whether to support or oppose the obligations.” This resolution was in the process of
“war of liberation.” Can the action taken by implementation; so was Iraq’s compliance with
the allied forces find justification in such disarmament obligations.
International Law? Explain. (2003 Bar)
A: The United States and its allied forces cannot Q: On 31 October 2001, members of Ali Baba, a
justify their invasion of Iraq on the basis of self- political extremist organization based in and
defense under Article 51, attack by Iraq, and under the protection of Country X and
there was no necessity for anticipatory self- espousing violence worldwide as a means of
defense which may be justified under customary achieving its objective, planted high-powered
international law. Neither can they justify their explosives and bombs at the International Trade
invasion on the ground that Article 42 of the Tower (ITT) in Jewel City in Country Y, a
Charter of the United Nations permits the use of member of the United Nations. As a result of
force against a State if it is sanctioned by the the bombing and the collapse of the 100-story
Security Council. Resolution 1441, which gave twin towers, about 2000 people, including
Iraq a final opportunity to disarm or face serious women and children were killed or injured and
consequences, did not authorize the use of armed billions of dollars in property were lost.
force.
Immediately after the incident, Ali Baba,
Alternative A: In International Law, the action speaking through its leader Bin Derdandat,
taken by the allied forces cannot find admitted and owned responsibility for the
justification. It is covered by the prohibition bombing of ITT, saying that it was done to
against the use of force prescribed by the United pressure Country Y to release captured
Nations Charter and it does not fall under any of members of the terrorist group. Ali Baba
the exceptions to that prohibition. threatened to repeat its terrorist acts against
Country Y if the latter and its allies failed to
The UN Charter in Article 2(4) prohibits the use of accede to Ali Baba’s demands. In response,
force in the relations of states by providing that Country Y demanded that Country X surrender
all members of the UN “shall refrain in their and deliver Bin Derdandat to the government
international relations from the threat or use of authorities of Country Y for the purpose of trial
force against the territorial integrity or political and “in the name of justice.” Country X refused
independence of any state, or in any other to accede to the demand of Country Y.
manner inconsistent with the purposes of the
United Nations.” This mandate does not only What action or actions can Country Y legally
outlaw war; it encompasses all threats of and acts take against Ali Baba and Country X to stop the
of force or violence short of war. terrorist activities of Ali Baba and dissuade
Country X from harboring and giving protection
As thus provided, the prohibition is addressed to to the terrorist organization? Support your
all UN members. However, it is now recognized as answer with reasons. (2002 Bar)
a fundamental principle in customary
international law and, as such, is binding on all A: (1) Country Y may exercise the right of self-
members of the international community. defense, as provided under Article 51 of the UN
Charter “until the Security Council has taken
The action taken by the allied forces cannot be measure necessary to maintain international
justified under any of the three exceptions to the peace and security.” Self-defense enables
prohibition against the use of force which the UN Country Y to use force against Country X as well
Charter allows. These are: (1) inherent right of as against the Ali Baba organization.
individual or collective self-defense under Article
51; (2) enforcement measure involving the use of (2) It may bring the matter to the Security Council
armed forces by the UN Security Council under which may authorize sanctions against Country X,
Article 42; and (3) enforcement measure by including measure invoking the use of force.
regional arrangement under Article 53, as Under Article 4 of the UN Charter, Country Y may
authorized by the UN Security Council. The allied use force against Country X as well as against the
forces did not launch military operations and did Ali Baba organization by authority of the UN
not occupy Iraq on the claim that their action was Security Council.
in response to an armed attacked by Iraq, of
which there was none. Alternative A: Under the Security Council
Resolution No. 1368, the terrorist attack of Ali
Moreover, the action of the alleged allied forces Baba may be defined as a threat to peace, as it
was taken in defiance or disregard of the Security did in defining the 11 September 2001 attacks
Council Resolution No. 1441 which set up “an against the United States. The resolution
enhanced inspection regime with the aim of authorizes military and other actions to respond
bringing to full and verified completion the to terrorist attacks. However, the use of military
force must be proportionate and intended for the will not retroactively legalize that invasion, which
purpose of detaining the persons allegedly was, legally speaking, null and void ab initio. Notes:
responsible for the crime and to destroy military (Justice Isagani A. Cruz, in an article entitled “A
objectives used by the terrorists. New World Order” written in his column
“Separate Opinion” published in the March 30,
The fundamental principles of international 2003 issue of the Philippines Daily Inquirer)
humanitarian law should be respected. Country Y
cannot be granted sweeping discretionary powers Q: State B, relying on information gathered by
that include the power to decide what states are its intelligence community to the effect that its
behind the terrorist organizations. It is for the neighbor, State C, is planning an attack on its
Security Council to decide whether force may be nuclear plan and research institute, undertook
used against specific states and under what a “preventive” attack in certain bases on State
conditions the force may be used. C located near the border of the two states. As
a result, State C presented the incident to the
Q: Is the United States justified in invading Iraq UN General Assembly but the latter referred it
invoking its right to defend itself against an to the UN Security Council as a matter, which
expected attack by Iraq with the use of its disturbs or threatens “international peace and
biological and chemical weapons of mass security”. State B argued that it was acting
destruction? within the legal bounds of Article 51 of the UN
A: The United States is invoking its right to Charter and that it was a permitted use of force
defend itself against an expected attack by Iraq in self-defense and against armed attack. Is
with the use of its biological and chemical State B responsible under International Law?
weapons of mass destruction. There is no Did State B act within the bounds set forth in
evidence of such a threat, but Bush is probably the UN Charter on the use of force in self-
invoking the modern view that a state does not defense? (1985 Bar)
have to wait until the potential enemy fires first. A: An armed attack is not a requirement for the
The cowboy from Texas says that outdrawing the exercise of the right of self-defense. However,
foe who is about to shoot is an act of self- the attack of State B on State C cannot be
defense. justified as an act of self-defense under Art. 51 of
the UN Charter considering that the danger
Art. 51 says, however, that there must first be an perceived by State B was not imminent. State B
“armed attack” before a state can exercise its ought to have exhausted peaceful and pacific
inherent right of self-defense, and only until the methods of settlements instead of resorting to the
Security Council, to which the aggression should use of force.
be reported, shall have taken the necessary
measures to maintain international peace and Q: Who can declare war?
security. It was the United States that made the A: No one! The Constitution has withheld this
“armed attack” first, thus becoming the power from the government. What the
aggressor, not Iraq. Iraq is now not only Constitution allows is a declaration of a “State of
exercising its inherent right of self-defense as War”. Under Art. VI, Sec. 23(1) – “Congress, by a
recognized by the UN Charter. (Justice Isagani A. vote of 2/3 of both Houses, in joint session
Cruz, in an article entitled “A New World Order” assembled, voting separately, shall have the sole
written in his column “Separate Opinion” power to declare the existence of a state of war.
published in the March 30, 2003 issue of the This means that we are already under attack
Philippines Daily Inquirer)
Q: What are the effects when Congress declares
Q: Will the subsequent discovery of weapons of a state of war?
mass destruction in Iraq after its invasion by the A: 1. Art. VI, Sec. 23 – “In times of war…the
US justify the attack initiated by the latter? Congress may, by law, authorize the President, for
A: Even if Iraq’s hidden arsenal is discovered – or a limited period and subject to such restrictions
actually used – and the United States is justified as it may prescribe, to exercise powers necessary
in its suspicions, that circumstance will not and proper to carry out a declared national policy.
validate the procedure taken against Iraq. It is Unless sooner withdrawn by resolution of the
like searching a person without warrant and Congress, such powers shall cease upon the next
curing the irregularity with the discovery of adjournment thereof.”
prohibited drugs in his possession. The process
cannot be reversed. The warrant must first be 2. Art. VII, Sec. 18 – “The President shall be the
issued before the search and seizure can be Commander-in-Chief of all armed forces…and
made. whenever it becomes necessary, he may call out
such armed forces to prevent or suppress…
The American invasion was made without invasion…In case, invasion…when the public safety
permission from the Security Council as required requires it, he may, for a period not exceeding 60
by the UN Charter. Any subsequent discovery of days, suspend the privilege of the writ of habeas
the prohibited biological and chemical weapons
corpus or place the Philippines or any part thereof  While the intervention was upon
under martial law…” invitation, it was still condemned Notes:
because the Hungarian government
☀ This is in line with the UN Charter, which was a mere Soviet puppet
also renounces war
☀ As charter-member of the UN, our 3. By UN Authorization and Resolution
Constitution also renounces war as an ★ EX.: 1. Korean War
instrument of national policy  In fact, it is UN itself that intervened
RIGHTS OF SOVEREIGNTY AND INDEPENDENCE 2. 1990 Iraqi Annexation of Kuwait

Intervention  There was an SC Resolution,
It is “the dictatorial interference by a State in the authorizing the US-led multilateral
internal affairs of another State, or in the force to intervene
relations between other States, which is either
forcible or backed by the threat of force.” 4. On Humanitarian Grounds
★ This has recently evolved by
Intervention is Different from “Intercession” international custom
☀ Intercession is allowed! ★ Thus, has become a primary source of
☀ EX.: Diplomatic Protest, Tender of Advice international law
★ EX.: 1. Intervention in Somalia
Generally Intervention is Prohibited (Drago
Doctrine) 2. Intervention in Bosnia and Kosovo
★ Prohibits intervention for the collection of  No UN Resolution, but NATO
contractual debts, public or private intervened militarily
★ Formulated by Foreign Minister Luis Drago  Ground: There was ethnic
(Argentina), in reaction to the Venezuelan
cleansing by Serbs of ethnic
Incident minorities
Venezuelan Incident 3. Intervention in East Timor
In 1902, UK, Germany and Italy blockaded
 Purpose: To protect the East
Venezuelan ports to compel it to pay its
Timorese
contractual debts leading Foreign Minister Drago
Q: At the United Nations, the Arab League,
to formulate a doctrine that “ a public debt
through Syria, sponsors a move to include in the
cannot give rise to the right of intervention. This
agenda of the General Assembly the discussion
principle was later adopted in the Second Hague
of this matter: “The Muslim population of
Conference, but subject to the qualification that
Mindanao, Philippines has expressed the desire
the debtor state should not refuse or neglect to
to secede from the Republic of the Philippines
reply to an offer of arbitration or after accepting
in order to constitute a separate and
the offer, prevent any compromis from being
independent state and has drawn attention to
agreed upon, or after the arbitration, fail to
the probability that the continuation of the
submit to the award, the qualification is known as
armed conflict in Mindanao constitutes a threat
the Porter resolution.
to peace.” You are asked by the Philippine
Government to draft a position paper opposing
Pacific Blockade
the move. Briefly outline your arguments
★ one imposed during times of peace
supporting the Philippine position, specifically
★ were the countries at war, then a blockade is
discussing the tenability of Arab League’s action
a legitimate measure
from the standpoint of International Law. (1984
★ in fact, a blockade must not be violated by a
Bar)
neutral State
A: The Muslim secessionist movement is not an
★ if breached, the neutral vessel is seized
international dispute, which under Article 35(1) of
the UN Charter, a member of the United Nations
WHEN INTERVENTION ALLOWED, Exceptions
may bring to the attention of the Security Council
1. Intervention as an Act of Individual and
or the General Assembly. Such dispute can arise
Collective Self-Defense
only between two or more States. The attempt of
2. Intervention by Treaty Stipulation or by
the Arab League to place on the agenda of the
Invitation
General Assembly the Muslim problem in Mindanao
can only be views as an interference with a purely
“Intervention by Invitation”
domestic affair.
★ Presupposes that the inviting State is not
a mere puppet of the intervening State
When Use of Force is Allowed under the UN
★ EX.: Hungary
Charter By UNSC Resolution – Arts. 41 and 42
 In 1956, Hungary was in internal Art. 41 – “The SC may decide what measures not
turmoil, and asked the Soviet forces involving the use of armed force are to be
to intervene employed to give effect to its decisions, and it
may call upon the Members of the UN to apply State, if such an operation, because of its scale
such measures. These may include complete or and effects, would have been classified as an Notes:
partial interruption of economic relations and of armed attack rather than as a mere frontier
rail, sea, air, postal, telegraphic, radio, and other incident had it been carried out by regular armed
means of communication, and the severance of forces. But the Court does not believe that the
diplomatic relations.” concept of 'armed attack' includes not only acts by
armed bands where such acts occur on a
Art. 42 – “Should the SC consider that measures significant scale but also assistance to rebels in
provided for in Article 41 would be inadequate or the form of the provision of weapons or logistical
have proved to be inadequate, it may take such or other support. Such assistance may be regarded
action by air, sea, or land forces as may be as a threat or use of force, or amount to
necessary to maintain or restore international intervention in the internal or external affairs of
peace and security. Such action may include other States.”
demonstrations, blockade, and other operations
by air, sea, or land forces of Members of the UN.” RECOGNITION
3 LEVELS
In the exercise of right of self-defense, against A. Recognition of State
armed attacks – Art. 51: B. Recognition of Government
C. Recognition of Belligerency
“Nothing in the present charter shall impair
the inherent right of individual or collective RECOGNITION OF STATE
self-defense if an armed attack occurs against 2 Schools of Thought
a Member of the UN, until the SC has taken Constitutive School
measures necessary to maintain international - recognition is the act which gives to a
peace and security. Measures taken by political entity international status as a
Members in the exercise of this right of self- State;
defense shall be immediately reported to the - it is only through recognition that a State
SC and shall not in any way affect the becomes an International Person and a
authority and responsibility of the SC under subject of international law
the present Charter to take at any time such - thus, recognition is a legal matter—not a
action as it deems necessary in order to matter of arbitrary will on the part of
maintain or restore international peace and one State whether to recognize or refuse
security.” to recognize another entity but that
where certain conditions of fact exist, an
NOTE: There is a limited definition of armed entity may demand, and the State is
attacks – Nicargua v. United States under legal duty to accord recognition
Nicaragua v. United States Declaratory School

- recognition merely an act that declares
“195. In the case of individual self-defense, the as a fact something that has hitherto
exercise of this right is subject to the State been uncertain
concerned having been the victim of an armed - it simply manifests the recognizing
attack. Reliance on collective self-defense of State’s readiness to accept the normal
course does not remove the need for this. There consequences of the fact of Statehood
appears now to be general agreement on the - recognition is a political act, i.e., it is
nature of the acts which can be treated as entirely a matter of policy and discretion
constituting armed attacks. In particular, it may to give or refuse recognition, and that no
be considered to be agreed that an armed attack entity possesses the power, as a matter
must be understood as including not merely action of legal right, to demand recognition
by regular armed forces across an international - there is no legal right to demand
border, but also 'the sending by or on behalf of a recognition
State of armed bands, groups, irregulars or - followed by most nations
mercenaries, which carry out acts of armed force
against another State of such gravity as to amount ★ recognition of a State has now been
to' (inter alia) an actual armed attack conducted substituted to a large extent by the act
by regular forces, 'or its substantial involvement of admission to the United Nations
therein'. This description, contained in Article 3, ★ it is the “assurance given to a new State
paragraph (g), of the Definition of Aggression that it will be permitted to hold its place
annexed to General Assembly resolution 3314 and rank in the character of an
(XXIX), may be taken to reflect customary independent political organism in the
international law. The Court sees no reason to society of nations”
deny that, in customary law, the prohibition of
armed attacks may apply to the sending by a
State of armed bands to the territory of another
Q: Explain, using example, the Declaratory (2) Once recognition of state is accorded, it is
Theory of Recognition Principle. (1991 Bar) generally irrevocable. Recognition of Notes:
A: The declaratory theory of recognition is a government, on the other hand, may be withheld
theory according to which recognition of a state is from a succeeding government brought about by
merely an acknowledgment of the fact of its violent or unconstitutional means.
existence. In other words, the recognized state
already exists and can exist even without such Criteria for Recognition
recognition. For example, when other countries 1. Objective Test –
recognize Bangladesh, Bangladesh already existed ★ government should be EFFECTIVE and
as a state even without such recognition. STABLE
★ government is in possession of State
Q: Distinguish briefly but clearly between the machinery
constitutive theory and the declaratory theory ★ there is little resistance to its authority
concerning recognition of states. (2004 Bar)
A: The constitutive theory is the minority view 2. Subjective Test –
which holds that recognition is the last element ★ WILLINGNESS and ABILITY
that converts or constitutes the entity being ★ the government is willing and able to
recognized into an international person; while the discharge its international obligations
declaratory theory is the majority view that ★ 2 Doctrines
recognition affirms the pre-existing fact that the
entity being recognized already possesses the Tobar or Wilson Doctrine
status of an international person. In the former ☀ suggested by Foreign Minister Tobar
recognition is regarded as mandatory and legal (Ecuador); reiterated by President
and may be demanded as a matter of right by any Woodrow Wilson (US)
entity that can establish its possession of the four ☀ recognition is withheld from governments
essential elements of a state; while the latter established by revolutionary means –
recognition is highly political and discretionary. revolution, civil war, coup d’etat, other
forms of internal violence, UNTIL, freely
elected representatives of the people
have organized a constitutional
government
RECOGNITION OF GOVERNMENT Estrada Doctrine

☀ a reaction to the Tobar/Wilson Doctrine;
Recognitio Recogniti formulated by Mexican Foreign Minister
n of on of Genaro Estrada
Governme ☀ disclaims right of foreign states to rule
nt State
upon legitimacy of a government of a
foreign State
As to Does not Includes
☀ a policy of never issuing any declaration
Scope necessarily recognitio
giving recognition to governments –
signify n or
instead, it simply accepts whatever
that governme
government is in effective control
recognitio nt –
without raising the issue of recognition
n of a governme
State – to nt an
Q: Distinguish briefly but clearly between the
governmen essential
Wilson doctrine and the Estrada doctrine
t may not element
regarding recognition of governments. (2004
be of a State
Bar)
independe
A: In the Wilson or Tobar doctrine, a government
nt
established by means revolution, civil war, coup
As to Revocable Generally, d’ etat or other forms of internal violence will not
Revocabili irrevocabl be recognized until the freely elected
ty e representatives of the people have organized a
constitutional government, while in the Estrada
doctrine any diplomatic representatives in a
Q: Distinguish recognition of State from country where an upheaval has taken place will
recognition of Government. (1975 Bar) deal or not deal with whatever government is in
A: (1) Recognition of state carries with it the control therein at the time and either action shall
recognition of government since the former not be taken as a judgment on the legitimacy of
implies that a state recognized has all the the said government.
essential requisites of a state at he time
recognition is extended. Kinds of Recognition
Recognition De Recogni
Jure tion De
Facto Constitution which vests this power in any

department. But since under the Constitution, Notes:
As to Relatively Provisio the President is empowered to appoint and
Durati permanent nal, receive ambassadors and public ministers, it is
on conceded that by implication, it is the Executive
As to Brings about Limited Department that is primarily endowed with the
Effect full diplomatic to power to recognize foreign governments and
on relations/inter certain States. [Art. VII, 1987 Constitution]
Diplom course juridical
atic relation The legality and wisdom of recognition accorded
Relatio s; for any foreign entity is not subject to judicial
ns instance review. The courts are bound by the acts of
, it does political department of the government. The
not action of the Executive in recognizing or refusing
bring to recognize a foreign State or government is
about properly within the scope of judicial notice.
diploma
tic Q: Is the recognition extended by the President
immunit to a foreign government subject to judicial
ies review?
A: NO! It is purely a political question.
As to Vests title to Does not
Effect recognized vest Marcos v. Manglapus
on government in such
[GR 88211 15 Sept. 1989]
Proper properties title
ties abroad
Abroad The Constitution limits resort to the political
question doctrine and broadens the scope of
judicial inquiry…But nonetheless there remain
Recognition De Jure issues beyond the Court’s jurisdiction the
★ Given to a government that satisfies both the determination of which is exclusively for the
objective and subjective criteria President…We cannot, for example, question the
President’s recognition of a foreign government,
Recognition De Facto no matter how premature or improvident such
★ Given to governments that have not fully action may appear...”
satisfied objective and subjective criteria
★ EX.: While wielding effective power, it might
ICMC vs. Calleja
have not yet acquired sufficient stability
[GR 85750, 28 Sept. 1990]
Consequences of Recognition of Government
1. The recognized government or State acquires A categorical recognition by the Executive Branch
the capacity to enter into diplomatic that ICMC enjoy immunities…is a political question
relations with recognizing States and to make conclusive upon the Courts in order not to
treaties with them embarrass a political department of Government.
2. The recognized government or State acquires
the right of suing in the courts of law of the BELLIGERENCY
recognizing State 2 Senses of Belligerency
3. It is immune from the jurisdiction of the 1. State of War between 2 or more States
courts of law of recognizing State ☀ Belligerency
4. It becomes entitled to demand and receive ☀ the States at war are called “Belligerent
possession of property situated within the States”
jurisdiction of a recognizing State, which
formerly belonged to the preceding 2. Actual Hostilities amounting to Civil War
government at the time of its supercession within a State
5. Its effect is to preclude the courts of ☀ Insurgency
recognizing State from assign judgment on ☀ there is just 1 State
the legality of its acts, past and future. ☀ presupposes the existence of a rebel
Recognition being retroactive. movement
 Thus, Act of State Doctrine now applies Developments in a Rebel Movement

Stage of Insurgency
Q: Who has the authority to recognize? ★ Earlier/nascent/less-developed stage of
A: It is a matter to be determined according to rebellion
the municipal law of each State. In the ★ There is not much international complication
Philippines, there is no explicit provision in the ★ Matter of municipal law
★ EX.: Captured rebels are prosecuted for

rebellion ★ Camp Abu-Bakr—MILF almost had control Notes:
of a substantial portion of territory
Stage of Belligerency ★ government had to use all its military
★ A higher stage, as the stage of insurgency might and divert its budget
becomes widespread ★ CPP/NPA sends message that they are
★ Already a matter of international law, not of observing the Laws of War
municipal law ★ Captured soliders are announced as
★ EX.: Captures rebels – must be treated like POWs; had Red Cross representatives
prisoners of war; considered as combatants;
hence, cannot be executed 4. willingness on the part of the rebels to
observe the rules and customs of war.
Insurgency Belligerency
Q: Explain, using example, recognition of
a mere initial more serious and belligerency. (1991 Bar)
stage of war. It widespread and A: Recognition of belligerency is the formal
involves a rebel presupposes the acknowledgment by a third party of the existence
movement, and is existence of war of a state of war between the central government
usually not between 2 or and a portion of that state. Belligerency exists
recognized more states (1st when a sizable portion of the territory of a state
sense) or actual is under the effective control of an insurgent
civil war within a community which is seeking to establish a
single state (2nd separate government and the insurgents are in de
sense) facto control of a portion of the territory and
sanctions are governed by the population, have a political organization, and are
governed by rules on able to maintain such control and conduct
municipal law – international law themselves according to the laws of war. For
Revised Penal as the belligerents example, Great Britain recognized a state of
Code, i.e. may be given belligerency in the United States during the Civil
rebellion international War.
personality
Consequences of Recognition of Belligerents
1. Before recognition as such, it is the
Note: Abu Sayaff is not a rebel group it is a mere legitimate government that is responsible for
bandit group. the acts of the rebels affecting foreign
nationals and their properties. Rebel
Requisites of Belligerency [COWS] government is responsible for the acts of the
1. an organized civil government that has rebels affecting foreign nationals and
control and direction over the armed struggle properties;
launched by the rebels; 2. Laws and customs of war in conducting the
★ a “provisional government” hostilities must be observed;
★ EX.: cannot execute captured rebels,
2. occupation of a substantial portion of the considered as POWs
state’s territory; 3. From the point of view of 3 rd States, the
★ more or less permanent occupation effect of recognition of belligerency is to put
★ legitimate government must use superior them under obligation to observe strict
military force to dislodge the rebels neutrality and abide by the consequences
arising from that position.
3. seriousness of the struggle, which must be so ★ must observe Laws of Neutrality
widespread thereby leaving no doubt as to ★ EX.:
the outcome; and 1. must abstain from taking part in the
★ must be so widespread, leaving no doubt hostilities;
as to the outcome 2. most acquiesce to restrictions
★ Q: Has the CPP/NPA and MILF complied imposed by the rebels, such as visit
with these conditions? and search of its merchant ships
A: NO! BUT, there are some indications 4. Rebels are enemy combatants and accorded
they are striving to meet the conditions. the rights of prisoners of war. and
They executed common criminals, after a ★ essentially, this means that there are 2
trial. It is like saying they have a competing governments in 1 country
government 5. On the side of the rebels, the recognition of
belligerency puts them under responsibility to
Note: The maintenance of peace and order, and 3rd States and to the legitimate government
administration of justice, are constituent for all their acts which do not conform to the
functions of the government laws and customs of war.
(1) Administer; and

FORMS OF RECOGNITION (2) Defend from external aggression Notes:
1. Express
2. Implied Modes of Acquisition of Territory
(1) By Original Title
EX.; Proclamation by the legitimate a. Discovery and Occupation
government of a blockade of ports held by b. Accretion
the rebels c. “Sector Principle”
(2) By Derivative Title
★ Done by Lincoln during the American Civil a. Prescription
War b. Cession
★ Q: What about peace talks? c. Conquest/Subjugation
A: NOT implied recognition. But,
circumstances may be such as to become Other Modes
an implied recognition (a) Dereliction/Abando
EX.: Holding peach talks in a foreign nment
country. Rebels call the foreign country (b) Erosion
a “neutral state”. If a mere insurgency, (c) Revolution
it is a purely internal matter – no need (d) Natural Causes
for talks abroad
Discovery and Occupation
★ An original mode of acquisition of territory
TERRITORY OF STATES belonging to no one – “terra nullius”
Territory Defined ★ land to be acquired must be terra nullius
Characteristics of Territory
Modes of Acquisition of Territory ★ Q: Today, few, if any places are terra
(1) Dereliction/Abandonment nullius. Why is this mode then important?
(2) Cession A: Past occupations are source of modern
(3) Conquest/Subjugation boundary disputes
(4) Prescription ★ Q: When is a territory “terra nullius?”
(5) Erosion A: Under the Old Concept a territory is not
(6) Revolution necessarily uninhabited! A territory is terra
(7) Natural Causes nullius, if, even if occupied, the people
COMPONENTS OF TERRITORY occupying it has a civilization that falls below
(1) Territorial Domain the European standard. This was the
(2) Maritime and Fluvial Domain justification for the Spanish colonization of
a. Territorial Sea the Philippines, and the European
b. Contiguous Zone colonization of Africa. However, this old
c. Exclusive Economic Zone (EEZ) concept is no longer valid under
d. Continental Shelf contemporary international law!
e. High Seas
(3) Aerial Domain ★ 2 REQUISITES
a. Air Space (1) Discovery/Possession
b. Outer Space ☀ Mere discovery gives only an
b. Inchoate Right of Discovery
Territory ☀ Q: What is the effect of this right?
- the fixed and permanent portion on the A: It bars other states, within a
earth’s surface inhabited by the people reasonable time, from entering the
of the state and over which it has territory, so that the discovering
supreme authority state may establish a settlement
- consists of the portion of the surface of therein an commence administration
the globe on which that State settles and and occupation. Once the
over which it has supreme authority discovering state begins exercising
- an exercise of sovereignty, covering not sovereign rights over the territory,
only land, but also the atmosphere as the inchoate right ripens and is
well perfected into a full title
CHARACTERISTICS OF TERRITORY ☀ Q: What if the discovering state

1. Permanent fails to exercise sovereign rights?
2. Definite/Indicated with Precision A: The inchoate title is extinguished,
★ Generally, the territory’s limits define and the territory becomes terra
the State’s jurisdiction nullius again.
3. Big enough to sustain the population
4. Not so extensive as to be difficult to: ☀ Q: How is this done and effected?
A: Possession must be claimed on ☀ No rule as to length of time required

behalf of the State represented by ☀ Question of fact Notes:
the discoverer. It may then be
effected through a formal ★ Q: What is the source of this right?
proclamation and the symbolic act of A: Roman principle of “usucapio” (long
raising the state’s national flag. continued use of real property ripened into
ownership)
2. Effective Occupation
☀ Does not necessarily require Cession
continuous display of authority in ★ a derivative mode of acquisition by which
every part of the territory claimed territory belonging to 1 State is transferred to
☀ Authority must be exercised as and the sovereignty of another State in
when occasion demands accordance with an agreement between them
☀ Thus, when the territory is thinly ★ a bilateral agreement whereby one State
populated and uninhabited, very transfers sovereignty over a definite portion
little actual exercise of sovereign of territory to another State
rights is needed in the absence of E.g. Treaty of cession (maybe an outcome of
competition peaceful negotiations [voluntary] or the
result of war[forced])
Doctrine of Effective Occupation ★ 2 KINDS:
☀ discovery alone gives only an 1. Total Cession
inchoate title; it must be followed - comprises the entirety of 1 State’s
within a reasonable time by domain
effective occupation - the ceding State is absorbed by the
☀ effective occupation does not acquiring State and ceases to exist
necessarily require continuous - EX.: Cession of Korea to Japan under the
display of authority in every part of 22 Aug. 1910 Treaty
the territory claimed
☀ an occupation made is valid only 2. Partial Cession
with respect to and extends only to - comprises only a fractional portion of the
the area effectively occupied. ceding State’s territory
☀ under the “Principle of Effective - cession of the Philippine Islands by Spain
Occupation,” the following to the US in the Treaty of Paris of 10 Dec.
doctrines/principles are no longer 1988
applicable today: - Forms:
a) Treaty of Sale
a) Hinterland Doctrine
EX.: (1) Sale by Russia of Alaska to US
Occupation of coasts results to claim
(2) Sale by Spain of Caroline
on the unexplored interior
Islands to Germany
b) Free Gifts
b) Right of Contiguity
EX: (1) Cession of a portion of the
Effective occupation of a territory
Horse-Shoe Reef in Lake
makes the possessor’s sovereignty
Erie
extend over neighboring territories
by UK to US
as far as is necessary for the
integrity, security and defense of the
Conquest
land actually occupied
★ derivative mode of acquisition whereby the
territory of 1 State is conquered in the course
Prescription
of war and thereafter annexed to and placed
★ acquisition of territory by an averse holding
under the sovereignty of the conquering State
continued through a long term of years
★ the taking possession of hostile territory
★ derivative mode of acquisition by which
through military force in time of war and by
territory belonging to 1 State is transferred to
which the victorious belligerent compels the
the sovereignty of another State by reason of
enemy to surrender sovereignty of that
the adverse and uninterrupted possession
territory thus occupied
thereof by the latter for a sufficiently long
★ acquisition of territory by force of arms
period of time
★ however, conquest alone merely gives an
★ 2 REQUISITES
inchoate right; acquisition must be completed
a) continuous and undisturbed possession
by formal act of annexation
☀ Q: What if there are claims or
★ no longer regarded as lawful
protests to the State’s possession?
★ UN Charter prohibits resort to threat or use of
A: NOT undisturbed!
force against a State’s territorial integrity or
political independence
b) lapse of a period of time
Conquest is Different from “Military or  In peacetime, freedom of navigation

Belligerent Occupation” is allowed or recognized by Notes:
☀ Act whereby a military commander in the conventional international law
course of war gains effective possession
of an enemy territory Lakes and Land-locked Seas
☀ By itself, does not effect an acquisition ☀ If entirely enclosed by territory of 1 state:
of territory Part of that State’s territory
☀ If surrounded by territories of several States:
Accretion Part of the surrounding States
★ the increase in the land area of a State Canals
caused by the operation of the forces of ☀ Artificially constructed waterways
nature, or artificially, through human labor ☀ GR: Belongs to the State’s territory
★ Accessio cedat principali (accessory follows ☀ XPN: Important Inter-Oceanic Canals
the principal) is the rule which, in general, governed by Special Regime
governs all the forms of accretion. (1) Suez Canal
★ EX.: (1) Reclamation projects in Manila Bay (2) Panama Canal
(2) Polders of the Netherlands Historic Waters
☀ Waters considered internal only because of
COMPONENTS OF TERRITORY existence of a historic title, otherwise, should
TERRITORIAL DOMAIN not have that charater
★ The landmass where the people live ☀ EX.: Bay of Cancale in France
Internal Waters MARITIME AND FLUVIAL DOMAIN

★ These are bodies of water within the land Zones of the Sea
boundaries of a State, or are closely linked to - Waters adjacent to the coasts of a State to a
its land domain, such that they are specified limit
considered as legally equivalent to national
land 1. Territorial Sea
★ includes: rivers, lakes and land-locked seas, ★ comprises in the marginal belt adjacent
canals, and polar regions. to the land area or the coast and
includes generally the bays, gulfs and
Rivers straights which do not have the character
☀ Kinds of Rivers of historic waters (waters that are
(1) National Rivers legally part of the internal waters of the
State)
 Lie wholly within 1 State’s territorial ★ portion of the open sea adjacent to the
domain – from source to mouth State’s shores, over which that State
 Belongs exclusively to that State exercises jurisdictional control
 EX.: Pasig River ★ Basis – necessity of self-defense
★ Effect – territorial supremacy over the
(2) Boundary Rivers territorial sea, exclusive enjoyment of
 Separates 2 Different States fishing rights and other coastal rights
 Belongs to both States: ★ BUT: Subject to the RIGHT OF INNOCENT
 If river is navigable – the PASSAGE (a foreign State may exercise its
boundary line is the middle of right of innocent passage)
the navigable channel “thalweg” ★ Q: When is passage innocent?
 If the river is not navigable – the A: When it is not prejudicial to the
boundary line is the midchannel peace, good order, or security of the
 EX.: St. Lawrence River between US coastal State
and Canada
Right of Innocent Passage
The right of continuous and expeditious navigation
(3) Multinational Rivers
of a foreign shop through a State’s territorial sea
 Runs through several States
for the purpose of traversing that sea without
 Forms part of the territory of the entering the internal waters or calling at a
States through which it passes roadstead or port facility outside the internal
 EX.: Congo River, Mekong River waters, or proceeding to or from internal waters
(4) International Rivers or a call at such roadstead or port facility
 navigable from the open sea, and
which separate or pass through Q: Explain Innocent Passage. (1991 Bar)
several States between their sources
and mouths
A: Innocent passage means the right of continuous A: The claim of the master of the vessel and the
and expeditious navigation of a foreign ship owner of the cargo is not meritorious. Although Notes:
through the territorial sea of a State for the their claim of transit passage and innocent
purpose of traversing that sea without entering passage through the Balintang Channel is tenable
the internal waters or calling at a roadstead or under the 1982 Convention on the Law of the Sea,
port facility outside internal water or proceeding the fact that they attached special hooks and nets
to or from internal waters or a call at such to their vessel which dragged up red corrals is
roadstead or port facility. The passage is innocent reprehensible. The Balintang Channel is
so long as it is not prejudicial to the peace, good considered part of our internal waters and thus is
order or security of the coastal State. within the absolute jurisdiction of the Philippine
government. Being so, no foreign vessel,
Extent and Limitations of Right of Innocent merchant or otherwise, could exploit or explore
Passage any of our natural resources in any manner of
☀ Extends to ALL ships – merchant and warships doing so without the consent of our government.
☀ Submarines must navigate on the surface and
show their flag Q: What is the extent of the territorial sea?
☀ Nuclear-powered ships, ships carrying nuclear A: 1. Formerly, 3 nautical miles from the low
and dangerous substances must carry water mark based on the theory that this is all
documents and observe special safety that a State could defend. This has been
measures practically abandoned.
Q: En route to the tuna fishing grounds in the 2. 1982 Convention of the Law of the Sea provides
Pacific Ocean, a vessel registered in Country TW the maximum limit of 12 nautical miles from the
entered the Balintang Channel north of Babuyan baseline.
Island and with special hooks and nets dragged
up red corrals found near Batanes. By Q: What is the baseline?
International Convention certain corals are A: Depends on the method:
protected species. Just before the vessel 1. Normal Baseline Method
reached ☀ Territorial sea is drawn from the low-
the high water mark.
seas, the ☀ Q: What is the low-water mark?
Coast A: The line on the shore reached by the
Guard sea at low tide. Otherwise known as the
patrol “baseline.”
2. Straight Baseline Method

☀ A straight line is drawn across the sea,
from headland to headland, or from
island to island. That straight line then
becomes the baseline from which the
territorial sea is measured.
☀ Q: What happens to the waters inside
the line?
A: Considered internal waters. However,
the baseline must not depart to any
appreciable extent from the general
direction of the coast
☀ Q: When is this used?
A: When the coastline is deeply
indented, or when there is a fringe of
islands along the coast in its immediate
vicinity.
Distinguish briefly but clearly between the

territorial sea and the internal waters of the
Philippines. (2004 Bar)
intercepted the vessel and seized its cargo Territorial water is defined by historic right or
including tuna. The master of the vessel and the treaty limits while internal water is defined by
owner of the cargo protested, claiming the the archipelago doctrine. The territorial waters,
rights of transit passage and innocent passage, as defined in the Convention on the Law of the
and sought recovery of the cargo and the Sea, has a uniform breadth of 12 miles measured
release of the ship. Is the claim meritorious or from the lower water mark of the coast; while the
not? Reason briefly. (2004 Bar) outermost points of our archipelago which are
connected with baselines and all waters
comprised therein are regarded as internal superjacent waters of the sea-bed and the
waters. resources of the sea-bed and subsoil; Notes:
2. sovereign rights with respect to the other
2. Contiguous Zone activities for the economic exploitation and
★ zone adjacent to the territorial sea, over exploration of the zone or EEZ, such as
which the coastal State may exercise such production of energy from water, currents
control as is necessary to: and winds;
 Prevent infringement of its customs, 3. jurisdictional right with respect to
fiscal, immigration or sanitary laws establishment and use of artificial islands;
within its territory or territorial sea; 4. jurisdictional right as to protection and
 Punish such infringement preservation of the marine environment; and
☀ extends to a maximum of 24 nautical miles 5. jurisdictional right over marine scientific
from the baseline from which the territorial research
sea is measured. 6. other rights and duties provided for in the
Law of the Sea Convention. (Article 56, Law
3. Exclusive Economic Zone of the Sea Convention)
☀ a maximum zone of 200 nautical miles from
the baseline from which the territorial sea is These treaty provisions form part of the Philippine
measured, over which, the coastal State Law, the Philippines being a signatory to the
exercises sovereign rights over all the UNCLOS.
economic resources of the sea, sea-bed and
subsoil 4. Continental Shelf
Q: Explain the meaning of continental shelf.
Rights of other States in the EEZ (1991 Bar)
(a) Freedom of navigation and overflight A: The continental shelf comprises the seabed and
(b) Freedom to lay submarine cables and subsoil of the submarine areas that extend beyond
pipelines the territorial sea throughout the natural
(c) Freedom to engage in other internationally prolongation of its land territory to the outer edge
lawful uses of the sea related to said of the continental margin; or to a distance of
functions more than 200 nautical miles from the baselines
form which the breadth of the territorial sea is
Rights of Land-locked States measured where the outer edge of the continental
Right to participate, on an equitable basis, in the shelf does not extend up to that distance.
exploitation of an appropriate part of the surplus
of the living resources of the EEZ of the coastal Rights of the Coastal State
States of the same sub-region or region ☀ sovereign rights for the purpose of
exploring and exploiting its natural
Distinguish briefly but clearly between the resources
contiguous zone and exclusive economic zone. ☀ rights are exclusive – if the State does
(2004 Bar) not explore or exploit the continental
The contiguous zone is the area which is known as shelf, no one may do so without its
the protective jurisdiction and starts from 12th express consent
nautical mile from low water mark (baseline),
while the EEZ is the area which ends at the 200th
nautical mile from the baseline. In the latter, no Archipelagic Doctrine
state really has exclusive ownership of it but the  2 Kinds of Archipelagos:
state which has a valid claim on it according to 1. Coastal Archipelago
the UN Convention on the Law of the Seas ☀ situated close to a mainland, and
agreement has the right to explore and exploit its may be considered part of such
natural resources; while in the former the coastal mainland
state may exercise the control necessary to a)
prevent infringement of its customs, fiscal 2. Mid-Ocean Archipelago
immigration or sanitary regulations within its ☀ groups of islands situated in the
territory b) punish infringement of the above ocean at such distance from the
regulations within its territory or territorial sea. coasts of firm land (mainland)
☀ EX.: Philippines
Q: Enumerate the rights of the coastal state in  emphasizes the unity of land and waters
the exclusive economic zone. (2005, 2000 Bar) by defining an archipelago either as:
A: The following are the rights of the coastal state  A group of island surrounded by
in the exclusive economic zone: waters; or
1. sovereign rights for the purpose of exploring  A body of water studded with islands
and exploiting, conserving and managing the  thus, baselines are drawn by connecting
living and non-living resources in the the appropriate points of the outermost
islands to encircle the islands within the this purpose, it requires that baselines be drawn
archipelago. by connecting the appropriate points of the Notes:
outermost islands to encircle the islands within
Rules Governing the Baselines the archipelago. The waters on the landward side
(a) Such baselines should not depart radically of the baselines regardless of breadth, or
from the general direction of the coast, or dimensions are merely internal waters.
from the general configuration of the
archipelago Article I, Sec. 1 of the Constitution provides that
(b) Within the baselines are included the main the national territory of the Philippines includes
islands an area with a maximum water area the Philippine archipelago, with all the islands
to land area ratio of 9:1 and waters embraced therein; and the waters
(c) Length of baselines shall not exceed 1— around, between, and connecting the islands of
nautical miles the archipelago, regardless of their breadth and
 XPN: Up to 3% of the total number of dimensions form part of the internal waters of the
baselines may have a maximum length of Philippines.
125 nautical miles
5. The regime of the High Seas
Effect of the Baselines ★ belongs to everyone and to no one – both res
(a) The waters inside the baselines are commones and res nullius
considered internal waters; ★ everyone may enjoy the following rights over
(b) The territorial sea, etc. are measured from the high seas:
such baselines; (a) Navigation
(c) Archipelagic State exercises sovereign rights (b) Fishing
over all the waters enclosed by the baselines (c) Scientific research
(d) Mining
Limitation – Archipelagic Sealanes (e) Laying of submarine cables or
☀ Archipelagic State must designate sea lands pipelines; and
an air route for the continuous and (f) other human activities in the open
expeditious passage of foreign ships and sea and the ocean floor
aircraft through or over its archipelagic ★ the freedoms extend to the air space above
waters and adjacent territorial sea the high seas
 Passage only for continuous,
expeditious, and unobstructed Doctrine of Hot Pursuit
transit between 1 part of the high ☀ The pursuit of a foreign vessel undertaken by
seas or an EEX to another part of the the coastal State which has “good reason to
high seas or an EEZ believe that the ship has violated the laws
 Q: What if none are designated? and regulations of that State.”
A: Right of archipelagic sealane ☀ The pursuit must:
passage may still be exercised 1. Be commenced when the ship is within the
through the routes normally used for pursuing State’s:
international navigation a. Internal Waters;
b. Territorial Sea; or
 The Philippines adheres to the c. Contiguous Zone
Archipelagic Doctrine – Art. I, 1987 2. May be continued outside such waters if the
Constitution: pursuit has not been interrupted
“The waters around, between, and 3. Continuous and unabated
connecting the islands of the 4. Ceases as soon as the foreign ship enters the
archipelago, regardless of their breadth territorial sea of:
and dimensions, form part of the internal a. Its own State; or
waters of the Philippines.” b. That of a 3rd State
5. Be undertaken by:
 Also embodied in the 1982 Convention of a. Warships; or
the Law of the Sea, Art. 47 b. Military aircraft; or
 UNCLOS became effective on 16 Nov. c. Other ships/aircraft cleared and
identifiable as being in the government
1994, after its ratification by more than
service and authorized to that effect
the required 60 of the signatory States
☀ Also applies to violations of laws and
regulations of the coastal State applicable to
Q: What do you understand by the archipelagic
the EEZ and to the continental shelf.
doctrine? Is this reflected in the 1987
Constitution? (1989, 1979, 1975 Bar)
Deep Sea Bed
A: The archipelagic doctrine emphasizes the unity
☀ The sea-bed beyond the continental shelf
of land and waters by defining an archipelago
either as a group of islands surrounded by waters
or a body of water with studded with islands. For
☀ Under the UNCLOS – resources of the deep the right to sail ships on the seas which is open to
sea-bed are reserved as the “common all States and land-locked countries Notes:
heritage of mankind”
General Rule: vessels sailing on the high seas are
Q: In the Pacific Ocean, while on its way to subject only to international law and the laws of
Northern Samar to load copra, a Norweigian the flag state
freighter collides with Philippine Luxury Liner
resulting in the death of ten (10) Filipino Exceptions: a) foreign merchant ships
passengers. Upon the Norweigian vessel’s violating the laws of the coastal State; b)
arrival in Catarman, Northern Samar, the pirate ships; c) slave trade ships; d) any ship
Norweigian captain and the helmsman assisting engaged in unauthorized broadcasting; and e)
were arrested and charged with multiple ships without nationality, or flying a false flag
homicide through reckless imprudence. Apart or refusing to show its flag.
from filing a protest with the Ministry of Foreign
Affairs, the Norweigian Embassy, through a local Flag State
counsel helps the accused in filing a motion to the State whose nationality (ship’s registration)
quash. It is pointed out that the incident the ship possesses, for it is nationality which gives
happened on the high seas, the accused were the right to fly a country’s flag
on board a Norweigian vessel and only a
Norweigian court can try the case even if the Flags of Convenience –
death occurred on a Philippine ship. Resolve registration of any ship in return for a payment
the motion stating the reason for your decision. fee
(1986 Bar)
A: The motion to quash should be sustained. In Q: Distinguish briefly but clearly between the
the Lotus case [PCIJ Pub 198i2 Series A No 10 flag state and the flag of convenience. (2004
p.25], a French mail steamer, Lotus, collided with Bar)
a Turkish collier, Boz Kourt. As a result, eight (8) A: Flag state means a ship has the nationality of
Turkish subjects died. The collision took place in the flag state it flies, but there must be a genuine
the Aegean Sea, outside of Turkish territorial link between the state and the ship. (Article 91 of
waters. The Lotus proceeded to Constantinople the Convention of the Law of the Sea.) Flag of
where its officers were tried and convicted for convenience refers to a state with which a vessel
manslaughter. The French government protested is registered for various reasons such as low or
on the ground that Turkey had no jurisdiction over non-existent taxation or low operating costs
an act committed on the high seas by foreigners although the ship has no genuine link with that
on board foreign vessels whose flag state has state. (Harris, Cases and Materilas on
exclusive jurisdiction as regards such acts. The International Law, 5th ed., 1998, p. 425.)
dispute was referred by agreement to the
Permanent Court of International Justice which AERIAL DOMAIN
held in a split decision that Turkey had “not acted ★ the airspace above the territorial and
in conflict with the principles of International maritime domains of the State, to the limits
Law,” because the act committed produced of the atmosphere
affects on board the Boz Kourt under Turkish flag, ★ does not include the outer space
and thus on Turkish territory. The principle that
vessels on the high seas are subject to no 1. Air Space
authority except that the flag State whose flag ★ the air space above the State’s terrestrial and
they fly was thus affirmed. maritime territory
★ “…Every State has complete and exclusive
NOTE: Justice Jorge Coquia, in his book however, sovereignty over the air space above its
opined that the ruling in the Lotus case is no territory”
longer controlling in view of Art. 97 of the UN ★ Convention on International Civil Aviation
Convention on the Law of the Sea which provides –“Territory” – includes terrestrial and
that in the event of collision or any other incident maritime territory
of navigation concerning a ship on the high seas, ★ thus, includes air space above territorial sea
involving the penal or disciplinary responsibility of ★ NOTE: NO right of innocent passage!
the master or any other person in the service of ★ the air space above the high seas is open to
the ship, the penal or disciplinary proceedings all aircraft, just as the high seas is accessible
may be instituted only before State of which such to ships of all States
person is a national. For this purpose, no arrest - the State whose aerial space is violated
or detention of the ship, even as a measure of can take measures to protect itself, but
navigation shall be ordered by the authorities it does not mean that States have an
other than those of the flag state. unlimited right to attack the intruding
aircraft (intruding aircraft can be
Freedom of Navigation ordered either to leave the State’s air
space or to land)
space, infinity, the lowest altitude of an artificial

Q: What are the 5 air freedoms? satellite, and an altitude approximating Notes:
A: aerodynamic lift. Another school of thought
(a) overflight without landing; proceeds by analogy to the law of the sea. It
(b) landing for non-traffic purposes; proposes that a State should exercise full
(c) put down traffic from state to airline; sovereignty up to the height to which an aircraft
(d) embark traffic destined for state of can ascend. Non-militant flight instrumentalities
aircraft; and should be allowed over a second area, a
(e) embark traffic or put down traffic to or contiguous zone of 300 miles. Over that should be
from a third state outer space. The boundary between airspace and
outer space has not yet been defined. (Harris,
2. Outer Space (res commones) Cases and Materials on International Law, 5 th Ed.,
★ the space beyond the airspace surrounding pp. 251-253) Under Article 8 of the Treaty on the
the earth or beyond the national airspace, Principles Governing the Activities of States in the
which is completely beyond the sovereignty Exploration and Use of Outer Space, Including the
of any State Moon and Other Celestial Bodies, a State on whose
★ the moon and the other celestial bodies form registry an object launched into outer space
part of the outer space (Moon Treaty of 1979) retains jurisdiction over the astronauts while they
★ thus, it is not subject to national are in outer space.
appropriation
★ free for all exploration and use by all States Alternative A: Outer space is the space beyond
and cannot be annexed by any State the airspace surrounding the Earth or beyond the
★ governed by a regime similar to that of the national airspace. In law, the boundary between
high seas outer space and airspace has remained
undetermined. But in theory, this has been
Treaty on Principles Governing the Activities of estimated to be between 80 to 90 kilometers.
States in the Exploration and Use of Outer Space Outer space in this estimate begins from the
(Outer Space Treaty) lowest altitude an artificial satellite can remain in
☀ Outer Space is free for exploration and use by orbit. Under the Moon Treaty of 1979, the moon
States and the other celestial bodies form part of outer
☀ Cannot be annexed by any State space.
☀ Its use and exploration must be carried out
for the benefit of all countries and in In outer space, the space satellites or objects are
accordance with international law under the jurisdiction of States of registry which
☀ Celestial bodies shall be used exclusively for covers astronauts and cosmonauts. This matter is
peaceful purposes covered by the Registration of Objects in Space
☀ Nuclear weapons and weapons of mass Convention of 1974 and the Liability for Damage
destruction shall not be placed in orbit Caused by Spaced Objects Convention of 1972.
around the earth
Q: May the USA lay exclusive claim over the
Q: What is the boundary between the air space moon, having explored it and having planted
and the outer space? her flag therein to the exclusion of other states?
A: No accepted answer yet! There are different Explain. (1979 Bar)
opinions: A: No, because the outer space and celestial
1. That it should be near the lowest altitude bodies found therein including the moon are not
(perigee) at which artificial earth satellites susceptible to the national appropriation but
can remain in orbit without being destroyed legally regarded as res communes.
by friction with the air around 190 km from
earth’s surface
2. Theoretical limit of air flights is 90 km above

the earth
3. Functional Approach
 The legal regime governing space
activities are based, not on a boundary
line, but on the nature of the activities
Q: What is outer space? Who or which can THE UNITED NATIONS

exercise jurisdiction over astronauts while in
outer space? (2003 Bar) The United Nations
A: There are several schools of thought regarding Formation of the United Nations
the determination of outer space, such as the Purpose of United Nations
limit of air flight, the height of atmospheric Principles of United Nations
Membership 4. In the judgment of the Organization, be

Principal Organs able and willing to carry out such Notes:
Privileges and Immunities of the United Nations obligation.
¯°º°¯ How is Admission conducted?

1. Recommendation of a qualified majority in
THE UNITED NATIONS the Security Council
It is an international organization created at the - The affirmative vote of at least 9
San Francisco Conference which was held in the members including the Big 5.
United States from April 25 to June 26, 1945. The 2. Approval of the General Assembly (GA) by a
U.N., as it is commonly called, succeeded the vote of at least 2/3 of those present and
League of Nations and is governed by a Charter voting.
which came into force on October 24, 1945.
composed originally of only 51 members, the UN Note: Both SC and GA votes must be complied
has grown rapidly to include most of the states in with.
the world.
Suspension of Membership
Who was the advocate of forming the UN? Suspension may occur when a preventive or
In his famous Fourteen Points for the peace enforcement action has been taken by the SC.
settlement, Woodrow Wilson called for the The SC may, by a qualified majority, recommend
establishment of a “general association of nations suspension to the GA who shall in turn concur with
for world peace under specific covenants for a 2/3 vote of those present and voting.
mutual guarantees of political independence and
territorial integrity to large and small States Discipline does not suspend the member’s
alike.” And so, the League of Nations was obligations but only the exercise of its rights and
formed. privileges as a member. Only the SC may lift the
suspension by a qualified majority.
Who coined the name UN?
It was President Roosevelt who suggested early in Expulsion of a Member
1942 the name UN for the group of countries The penalty of expulsion may be imposed upon a
which were fighting the Axis powers. member which has persistently violated the
principles in the UN Charter. Same voting
What are the principal purposes of the UN? requirement as to suspension.
1. To maintain international peace and security
2. To develop friendly relations among nations Withdrawal of Membership – Indonesia Case
3. To achieve international cooperation in The Charter is silent regarding withdrawal of
solving international economic, social, membership. In 1985, Indonesia withdrew its
cultural and humanitarian problems membership from the UN and it was not
4. To promote respect for human rights compelled to remain. Subsequently, upon
5. To be a center of harmonizing the actions of President Sukarno’s overthrow, Indonesia resumed
nations towards those common goals. its membership, which was accepted by the UN.
What are the principles of the UN? The Principal Organs

1. All its members are equal and all are 1. General Assembly (GA)
committed to fulfill in good faith their 2. Security Council (SC)
obligations under the Charter 3. Economic and Social Council (ESC)
2. To settle their disputes with each other by 4. Trusteeship Council (TC)
peaceful means 5. International Court of Justice (ICJ)
3. To refrain form the threat or use of force in 6. Secretariat
their international relations
4. To refrain from assisting any State against Subsidiary Organs – those which was created by
which the UN is taking preventive or the Charter itself or which it allows to be created
enforcement action. whenever necessary by the SC or GA.
1. Little Assembly – Interim Committee, created
2 Kinds of Membership in 1947 for a term of one eyar and re-
a. Original established in 1949 for an indefinite term.
b. Elective – those subsequently admitted upon Composed of one delegate for each member-
the recommendation of the UN Security Council. state, it meets when the General Assembly is
in recess and assists this body in the
Qualifications for Membership performance of its functions.
1. Must be State 2. Military Staff Committee
2. Must be Peace-loving  3. Human Rights Commission
3. Must accept the obligations as member
Specialized Agencies – not part of the UN, but members of the TC and all the members of
have been brought into close contact with it the ESC, and with the SC selects the judges of Notes:
because of their purposes and functions, such as: the ICJ; also participates in the amendment
1. World Health Organization of the Charter.
2. International Monetary Fund 4. Budgetary – controls the finances of the UN
3. Technical Assistance Board 5. Constituent – amendment of the charter.
Proposals for Amendments to the UN Charter GA Voting Rules

and Ratification Each member or delegation has 1 vote in the GA.
2 ways of adopting proposals: Important Questions are decided by 2/3 majority
a. directly, by 2/3 votes of all GA members of those present and voting. All other matters,
b. by 2/3 of a general conference called for this including the determination of whether a question
purpose by 2/3 of the GA and any 9 members of is important or not, are decided by simple
the SC. majority.
Important Questions include:
Any amendment thus proposed shall be subject to a) peace and security
ratification by at least 2/3 of the GA, including b) membership
the permanent members of the SC. c) election
d) trusteeship system
¯°º°¯ e) budget
UN General Assembly
GA Main Committees
This is the central organ of the UN. The principal Most questions are then discussed in its six main
deliberative body of the organization and is committees:
vested with jurisdiction over matters concerning  1st Committee - Disarmament &
the internal machinery and operations of the UN. International Security
 2nd - Economic & Financial
GA Composition  3rd - Social, Humanitarian & Cultural
Consists of all the members of the UN. Each
 4th - Special Political & Decolonization
member is entitled to send no more than 5
 5th - Administrative & Budgetary
delegates and 5 alternates and as many technical
and other personnel as it may need.  6th - Legal
The reason for this system of multiple delegates is
to enable the members to attend of several Some issues are considered only in plenary
meetings that may be taking place at the same meetings, while others are allocated to one of the
time in the different organs or committees of the six main committees. All issues are voted on
Organization. through resolutions passed in plenary meetings,
usually towards the end of the regular session,
However, each delegation is entitled only to one after the committees have completed their
vote in the decisions to be made by the GA. consideration of them and submitted draft
resolutions to the plenary Assembly.
GA Sessions
1. Regular sessions – every year beginning the Voting in Committees is by a simple majority. In
third Tuesday of September. plenary meetings, resolutions may be adopted by
2. Special sessions – may be called at the acclamation, without objection or without a vote,
request of the SC, a majority of the member or the vote may be recorded or taken by roll-call.
states, or one member with the concurrence While the decisions of the Assembly have no
of the majority. legally binding force for governments, they carry
3. Emergency special session – may be called the weight of world opinion, as well as the moral
within 24 hours at the request of the SC by authority of the world community.
vote of any 9 members or by a majority of the
members of the UN. The work of the UN year-round derives largely
from the decisions of the General Assembly - that
Some Important Functions of the GA is to say, the will of the majority of the members
1. Deliberative – discuss principles regarding as expressed in resolutions adopted by the
maintenance of international peace and Assembly. That work is carried out:
security and may take appropriate measures a. by committees and other bodies established
toward this end. by the Assembly to study and report on
2. Supervisory – receives and considers reports specific issues, such as disarmament,
from the other organs of the UN. peacekeeping, development and human
3. Elective – important voting functions are also rights;
vested in the GA, such as the election of the b. in international conferences called for by the
non-permanent members of the SC, some Assembly; and
c. by the Secretariat of the UN - the Secretary- The SC is required to function continuously and to
General and his staff of international civil hold itself in readiness in case of threat to or Notes:
servants. actual breach of international peace. For this
purpose, all members should be represented at all
¯°º°¯ times at the seat of the Organization.
UN Security Council
SC Voting Rules
An organ of the UN primarily responsible for the Each member of the SC has 1 vote, but distinction
maintenance of international peace and security. is made between the permanent and the non-
Their responsibility makes the SC a key influence permanent members in the decision of substantive
in the direction of the affairs not only of the questions.
Organization but of the entire international
community as well. Yalta Voting Formula
a. Procedural matters – 9 votes of any of SC
SC Functions and Powers: members
1. to maintain international peace and security b. Substantive matters – 9 votes including 5
in accordance with the principles and permanent votes.
purposes of the UN;
2. to investigate any dispute or situation which No member, permanent or not, is allowed to vote
mightlead to international friction; on questions concerning the pacific settlement of
3. to recommend methods of adjusting such a dispute to which it is a party.
disputes or the terms of settlement;
4. to formulate plans for the establishment of a Rule of Great-Power Unanimity: a negative vote
system to regulate armaments; by any permanent member on a non-procedural
5. to determine the existence of a threat to the matter, often referred to as “veto”, means
peace or act of aggression and to recommend rejection of the draft resolution or proposal, even
what action should be taken; if it has received 9 affirmative votes.
6. to call on Members to apply economic - Abstention or absence of a member is not
sanctions and other measures not involving regarded as veto
the use of force to prevent or stop
aggression; Procedural and Substantive Matters
7. to take military action against an aggressor; Distinguished
8. to recommend the admission of new Procedural matters include:
Members; a. questions relating to the organization and
9. to exercise the trusteeship functions of the meetings of the Council;
UN in "strategic areas"; and b. the establishment of subsidiary organs; and
10. to recommend to the General Assembly the c. the participation of states parties to a dispute
appointment of the Secretary-General and, in the discussion of the SC.
together with the Assembly, to elect the
Judges of the International Court of Justice. Substantial matters include those that may
require the SC under its responsibility of
SC Composition maintaining or restoring world peace to invoke
Composed of 15 members, 5 of which are measures of enforcement.
permanent. The so-called Big Five are China,
France, the European Union, the United Kingdom, What is the role of a Member of the UN but not
and the United States. a member of the Security Council?
Although not a member of the SC, it may
The other ten members are elected for 2-year participate (without vote) in the discussion of any
terms by the GA, 5 from the African and Asian question before the Council whenever the latter
states, 1 from Eastern European states, 2 from feels that the interests of that member are
Latin American states, and 2 from Western specially affected. Such member is likewise to
European and other states. Their terms have be invited by the Council to participate (without
been so staggered as to provide for the retirement vote)in the discussion of any dispute to which the
of ½ of them every year. Member is a party.
These members are not eligible for immediate re- Q: Loolapalooza conducted illegal invasion and
election. conquest against Moooxaxa. The UN Security
Council called for enforcement action against
Chairmanship of the SC is rotated monthly on the Loolapalooza. Does enforcement action include
basis of the English alphabetical order of the sending of fighting troops?
names of the members. A: NO. Compliance with the resolution calling for
enforcement action does not necessarily call for
SC Sessions the sending of fighting troops. There must be a
special agreement with the SC before sending of b. by virtue of a jurisdictional clause, i.e.,
fighting troops may be had and such agreement typically, when they are parties to a treaty Notes:
shall govern the numbers and types of forces, containing a provision whereby, in the event
their degree of readiness and general locations, of a disagreement over its interpretation or
and the nature of the facilities and assistance to application, one of them may refer the
be supplied by UN members. dispute to the Court. Several hundred treaties
or conventions contain a clause to such
effect; or
International Court of Justice c. through the reciprocal effect of declarations
made by them under the Statute whereby
International Court of Justice each has accepted the jurisdiction of
Composition the Court as compulsory in the event of a
Qualifications dispute with another State having made a
Jurisdiction similar declaration. The declarations
Functions of International Court of Justice of 65 States are at present in force, a number
Procedure of them having been made subject to the
exclusion of certain categories of dispute.
¯°º°¯
In cases of doubt as to whether the Court has
International Court of Justice jurisdiction, it is the Court itself which decides.
The International Court of Justice is the principal
judicial organ of the United Nations. Its seat is at Term of Office
the Peace Palace in The Hague (Netherlands). It Term of 9 years, staggered at three year year
began work in 1946, when it replaced the intervals by dividing the judges first elected into
Permanent Court of International Justice which three equal groups and assigning them by lottery
had functioned in the Peace Palace since 1922. It terms of three, six and nine years respectively.
operates under a Statute largely similar to that of Immediate re-election is allowed. The President
its predecessor, which is an integral part and the Vice President elected by the Court for
of the Charter of the United Nations. three years, may also be re-elected. Terms of
office of 5 of the 15 members shall expire at the
ICJ Composition and Qualifications end of every 3 years.
The Court is composed of 15 judges elected to
nine-year terms of office by the United Nations How members of ICJ are chosen
General Assembly and Security Council sitting 1. Nomination made by national groups in
independently of each other. It may not include accordance with the Hague Conventions of
more than one judge of any nationality. Elections 1907. No group shall nominate more than
are held every three years for one-third of the four persons and not more than two of whom
seats, and retiring judges may be re-elected. The shall be of their own nationality.
Members of the Court do not represent their 2. Candidates obtaining an absolute
governments but are independent magistrates. majority in the GA and SC are considered
elected. In the event that more than 1
QUALIFICIATIONS OF JUDGES national of the same state obtain the
1. They must be of high moral character; requisite majorities in both bodies, only the
2. Possess the qualifications required in eldest is chosen.
their respective countries for appointment to 3. In cases when membership is not
the highest judicial office or are jurists of completed by the regular elections, a joint
recognized competence in international law; conference shall be convened. If this still
and fails, the judges elected shall fill the
3. As much as possible, they must represent remaining vacancies.
the main forms of civilization and the
principal legal systems of the world. ICJ Sessions
The Court shall remain permanently in session at
When the Court does not include a judge the Hague or elsewhere as it may decide, except
possessing the nationality of a State party to a during the judicial vacations the dates and
case, that State may appoint a person to sit as a duration of which it shall fix.
judge ad hoc for the purpose of the case.
Procedure in the ICJ
ICJ Jurisdiction The procedure followed by the Court in
The Court is competent to entertain a dispute contentious cases is defined in its Statute, and in
only if the States concerned have accepted its the Rules of Court adopted by it under the
jurisdiction in one or more of the following ways: Statute. The latest version of the Rules dates
a. by the conclusion between them of a special from 5 December 2000. The proceedings include
agreement to submit the dispute to the a written phase, in which the parties file and
Court; exchange pleadings, and an oral phase consisting
of public hearings at which agents and counsel On receiving a request, the Court decides which
address the Court. As the Court has two official States and organizations might provide useful Notes:
languages (English and French) everything written information and gives them an opportunity of
or said in one language is translated into the presenting written or oral statements. The Court's
other. advisory procedure is otherwise modelled on that
for contentious proceedings, and the sources of
After the oral proceedings the Court deliberates applicable law are the same. In principle the
in camera and then delivers its judgment at a Court's advisory opinions are consultative in
public sitting. The judgment is final and without character and are therefore not binding as such on
appeal. Should one of the States involved fail to the requesting bodies. Certain instruments or
comply with it, the other party may have recourse regulations can, however, provide in advance that
to the Security Council. the advisory opinion shall be binding.
T
The Court discharges its duties as a full court but,  Only organizations can request advisory
at the request of the parties, it may also establish
opinions [Article 65(1)]: The Court may give
a special chamber. A Chamber of Summary
an advisory opinion on any legal question at
Procedure is elected every year by the Court in
the request of whatever body may be
accordance with its Statute. In July 1993 the
authorized by or in accordance with the
Court also established a seven-member Chamber
Charter of the UN to make such a request.
to deal with any environmental cases falling
within its jurisdiction
 There is no rule of stare decisis.
ICJ Voting Rules
All questions before the Court are decided by a Q: A, a citizen of State X, was arrested and
majority of the judges present, the quorum being detained for several years without charges or
nine when it is sitting en banc. In case of tie, the trial. He brings his case to the courts of State
President or his substitute shall have a casting X, but to no avail. He desires to seek redress
vote. from any international forum. He goes to you
as counsel to file his case with the International
Rule for Inhibition of Judges Court of Justice. Will the action prosper?
No judge may participate in the decision of a case (1978 Bar)
in which he has previously taken part as agent, A: No! Only States may be parties in contentious
counsel or advocate for one of the parties, or as a cases before the International Court of Justice. In
member of a national or international court, or of fact, only States which are parties to the statute
a commission of injury, or in any other capacity. of the ICJ and other states on conditions to be
laid down by the Security Council may be such
Functions of ICJ parties. Therefore, a private individual like A
The principal functions of the Court are: cannot bring an action before it.
2. to decide contentious case; and
3. to render advisory opinions. Q: May the United States be sued in our courts for
the value of private properties requisitioned by its
Who may file contentious cases? Army during the last World War, as well as Japan
Only states can file contentious cases and both for the “Mickey Mouse” money in payment for
must agree to the court’s jurisdiction. Only States private properties, which have not been
may apply to and appear before the Court. The redeemed until now? May the suit be brought to
Member States of the United Nations (at present the ICJ? (1979 Bar)
numbering 191) are so entitled. A: No! Even foreign states are entitled to the
doctrine of state immunity in the local state. The
 Article 34(1): Only states may be parties
suit may not be brought before the ICJ without
in cases before the Court.
the consent of the United States as jurisdiction of
 2. Article 36(1): The jurisdiction of the the ICJ in contentious cases is based upon the
Court comprises all cases which the parties consent of the parties.
refer to it and all matters specially provided
for in the Charter of the UN or in treaties and Q: The State of Nova, controlled by an
conventions in force. authoritarian government, had unfriendly
relations with its neighboring state, America;
Advisory Opinions Bresia, another neighboring state, had been
The advisory procedure of the Court is open solely shipping arms and ammunitions to Nova for use
to international organizations. The only bodies at in attacking America. To forestall am attack,
present authorized to request advisory opinions of America placed floating mines on the territorial
the Court are five organs of the United Nations and waters surrounding Nova. America supported a
16 specialized agencies of the United Nations group of rebels organized to overthrow the
family. government of Nova and to replace it with a
friendly government. Nova decided to file a
case against America in the International Court America violated the principle against the use of
of Justice. force and the principle of non-intervention. The Notes:
1) What grounds may Nova’s cause of defense of anticipatory self-defense cannot be
action against America be based? sustained because there is no showing that Nova
2) On what grounds may America move to had mobilized to such an extent that if America
dismiss the case with the ICJ? were to wait for Nova to strike first it would not
3) Decide the case. (1994 Bar) be able to retaliate.
A: 1) If Nova and America are members of the UN, However, if jurisdiction over America is not
Nova can premise its cause of action on a established, the case should be decided in its
violation of Art. 2(4) of the UN Charter, which favor because of the principle of sovereign
requires members to refrain from threat or use of immunity.
force against the territorial integrity of political
independence of any state. If either or both Q: The sovereignty over certain island is
America and Nova are not members of the UN, disputed between State A and State B. These
Nova may premise its cause of action of violation two states agreed to submit their disputes to
of the non-use of force principle in customary the ICJ.
international law which exist parallel as to Art. 1) Does the ICJ have the jurisdiction to
2(4) of the UN Charter. take cognizance of the case?
2) Who shall represent the parties before
In the case concerning the Military and the Court?
Parliamentary activities in and against Nicaragua 3) What language shall be used in the
(1986 ICJ Report 14), the International Court of pleading and the oral arguments?
Justice considered the planting mines by one 4) In case State A, the petitioner fails to
state within the territorial waters of another as a appear at the oral argument, can State
violation of Art. 2(4) of the UN Charter. If the B, the respondent, move for the
support provided by America to rebels of Nova dismissal of the action? (1994 Bar)
goes beyond the mere giving of monetary or A: 1) The ICJ has jurisdiction because the parties
psychological support but consist in the provision have jointly submitted the case to it and have
of arms and training, the acts of America can be thus indicated their consent to its jurisdiction.
considered as indirect aggression amount to 2) Parties to a case may appoint agents to appear
another violation of Art. 2(4). before the ICJ in their behalf, and these agents
need not be their own nationals. However, under
In addition, even if the provision of support is not Art. 16 of the Statute of ICJ, no member of the
enough to consider the act a violation of the non- Court may appear as agent in any case.
use of force principle, this is a violation of the 3) Under Art. 39 of the Statute of ICJ, the official
principle of non-intervention in customary languages of the Court are English and French. In
international law. the absence of an agreement, each party may use
the language it prefers. At the request of any
Aggression is the use of armed force by a state party, the Court may authorize a party to use a
against the sovereignty or territorial integrity or language other than English or French.
political independence of another state or in any 4) Under Art. 51 of the Statute of ICJ, whenever
other manner inconsistence with the UN Charter. one of the parties does not appear before the
court or fails to defends its case, the other party
2) By virtue of the principle of sovereign may ask the Court to decide in favor of its claim.
immunity, no sovereign state can be made a party However, the Court must, before doing so, satisfy
to a proceeding before the ICJ unless it has given itself that it has jurisdiction and that the claim is
its consent. If America has not accepted the well-founded in fact and in law.
jurisdiction of the ICJ, it can invoke the defense
of lack of jurisdiction. Even if it has accepted the PIMENTEL, JR., v. OFFICE OF THE EXECUTIVE
jurisdiction of the ICJ but the acceptance limited SECRETARY
and the limitation applies to the case, it may 462 SCRA 622, 6 July 2005
invoke such limitations of its consent as a bar to En Banc, Garcia J.
the assumption of jurisdiction.
If the jurisdiction has been accepted, America can This is a petition for mandamus to compel the
involve the principle of anticipatory self-defense Office of the Executive Secretary and the
recognized under customary international law Department of Foreign Affairs to transmit the
because Nova is planning to launch an attack signed copy of the Rome Statute of the
against America by using the arms it brought from International Criminal Court to the Senate of the
Bresia. Philippines for its concurrence in accordance with
§21, Article VII of the 1987 Constitution.
3) If jurisdiction over America is established, the
case should be decided in favor of Nova, because
The Rome State of the International Criminal Bianca Hacintha Roque and Harrison Jacob Roque,
Court aged two (2) and one (1), respectively, at the Notes:
The Rome Statute established the International time of filing of the instant petition, and suing
Criminal Court which “shall have the power to under the doctrine of inter-generational rights
exercise its jurisdiction over person for the most enunciated in the case of Oposa vs. Factoran, Jr.
serious crimes of international concern x x x and 224 SCRA 792 (1993) and a group of fifth year
shall be complementary to the national criminal working law students from the University of the
jurisdictions.” (Article I, Rome Statute) Its Philippines College of Law who are suing as
jurisdiction covers the crime of genocide, crimes taxpayers.
against humanity, war crimes, and the crime of
aggression as defined in the Statute (Article 5, Xxx
Rome Statute). The Statute was opened for
signature by all states in Rome on July 17, 1988 We find that among the petitioners, only Senator
and had remained open for signature until Pimentel has the legal standing to file the instant
December 31, 2000 at the United Nations suit. The other petitioners maintain their
Headquarters in New York. The Philippines signed standing as advocates and defenders of human
the Statute on December 28, 2000 through Charge rights, and as citizens of the country. They have
d’ Affairs Enrique A. Manalo of the Philippine not shown, however, that they have sustained or
Mission to the United Nations. Its provisions, will sustain a direct injury from the non-
however, require that it be subject to ratification, transmittal of the signed text of the Rome Statute
acceptance or approval of the signatory states to the Senate. Their contention that they will be
(Article 25, Rome Statute). deprived of their remedies for the protection and
enforcement of their rights does not persuade.
Issues The Rome Statute is intended to complement
It is the theory of the petitioners that ratification national criminal laws and courts. Sufficient
of a treaty, under both domestic law and remedies are available under our national laws to
international law, is a function of the Senate. protect our citizens against human rights
Hence, it is the duty of the executive department violations and petitioners can always seek redress
to transmit the signed copy of the Rome Statute for any abuse in our domestic courts.
to the Senate to allow it to exercise its discretion
with respect to ratification of treaties. Moreover, As regards Senator Pimentel, it has been held that
petitioners submit that the Philippines has a “to the extent the powers of Congress are
ministerial duty to ratify the Rome Statute under impaired, so is the power of each member
treaty law and customary international law. thereof, since his office confers a right to
Petitioners invoke the Vienna Convention on the participate in the exercise of the powers of that
Law of Treaties enjoining the states to refrain institution.”[Del Mar vs. Philippine Amusement
from acts which would defeat the object and and Gaming Corporation, 346 SCRA 485 (2000)]
purpose of a treaty when they have signed the Thus, legislators have the standing to maintain
treaty prior to ratification unless they have made inviolate the prerogatives, powers and privileges
their intention clear not to become parties to the vested by the Constitution in their office and are
treaty (Article 18, Vienna Convention on the Law allowed to sue to question the validity of any
of Treaties). official action which they claim infringes their
prerogatives as legislators. The petition at bar
invokes the power of the Senate to grant or
On Locus Standi of Petitioners withhold its concurrence to a treaty entered into
The petition at bar was filed by Senator Aquilino by the executive branch, in this case, the Rome
Pimentel, Jr. who asserts his legal standing to file Statute. The petition seeks to order the
the suit as member of the Senate; Congresswoman executive branch to transmit the copy of the
Loretta Ann Rosales, a member of the House of treaty to the Senate to allow it to exercise such
Representatives and Chairperson of its Committee authority. Senator Pimentel, as member of the
on Human Rights; the Philippine Coalition for the institution, certainly has the legal standing to
Establishment of the International Criminal Court assert such authority of the Senate.
which is composed of individuals and corporate
entities dedicated to the Philippine ratification of The Substantive Issue
the Rome Statute; the Task Force Detainees of the The core issue in this petition for mandamus is
Philippines, a juridical entity with the avowed whether the Executive Secretary and the
purpose of promoting the cause of human rights Department of Foreign Affairs have a ministerial
and human rights victims in the country; the duty to transmit to the Senate the copy of the
Families of Victims of Involuntary Disappearances, Rome Statute signed by a member of the
a juridical entity duly organized and existing Philippine Mission to the United Nations even
pursuant to Philippine Laws with the avowed without the signature of the President.
purpose of promoting the cause of families and
victims of human rights violations in the country;
We rule in the negative. other negotiators at the start of the formal

discussions. It is standard practice for one of the Notes:
In our system of government, the President, being parties to submit a draft of the proposed treaty
the head of state, is regarded as the sole organ which, together with the counter-proposals,
and authority in external relations and is the becomes the basis of the subsequent
country’s sole representative with foreign negotiations. The negotiations may be brief or
nations(Cortes, The Philippine Presidency: A protracted, depending on the issues involved, and
Study of Executive Power (1966), p. 187) As the may even “collapse” in case the parties are
chief architect of foreign policy, the President unable to come to an agreement on the points
acts as the country’s mouthpiece with respect to under consideration.
international affairs. Hence, the President is
vested with the authority to deal with foreign If and when the negotiators finally decide on the
states and governments, extend or withhold terms of the treaty, the same is opened for
recognition, maintain diplomatic relations, enter signature. This step is primarily intended as a
into treaties, and otherwise transact the business means of authenticating the instrument and for
of foreign relations [Cruz, Philippine Political Law the purpose of symbolizing the good faith of the
(1996 Ed.), p. 223] . In the realm of treaty- parties; but, significantly, it does not indicate
making, the President has the sole authority to the final consent of the state in cases where
negotiate with other states. ratification of the treaty is required. The
document is ordinarily signed in accordance with
Nonetheless, while the President has the sole the alternat, that is, each of the several
authority to negotiate and enter into treaties, the negotiators is allowed to sign first on the copy
Constitution provides a limitation to his power by which he will bring home to his own state.
requiring the concurrence of 2/3 of all the
members of the Senate for the validity of the Ratification, which is the next step, is the formal
treaty entered into by him. xxx act by which a state confirms and accepts the
provisions of a treaty concluded by its
The participation of the legislative branch in the representatives. The purpose of ratification is to
treaty-making process was deemed essential to enable the contracting states to examine the
provide a check on the executive in the field of treaty more closely and to give them an
foreign relations (Cortes, supra note 12, p. 189). opportunity to refuse to be bound by it should
By requiring the concurrence of the legislature in they find it inimical to their interests. It is for
the treaties entered into by the President, the this reason that most treaties are made subject
Constitution ensures a healthy system of checks to the scrutiny and consent of a department of
and balance necessary in the nation’s pursuit of the government other than that which
political maturity and growth [Bayan vs. Zamora, negotiated them.
342 SCRA 449 (2000)].
xxx
In filing this petition, the petitioners interpret
Section 21, Article VII of the 1987 Constitution to The last step in the treaty-making process is the
mean that the power to ratify treaties belongs to exchange of the instruments of ratification,
the Senate. which usually also signifies the effectivity of the
treaty unless a different date has been agreed
We disagree. upon by the parties. Where ratification is
dispensed with and no effectivity clause is
embodied in the treaty, the instrument is deemed
Justice Isagani Cruz, in his book on International effective upon its signature [Cruz, International
Law, describes the treaty-making process in this Law (1998 Ed.), pp. 172-174]. [emphasis supplied]
wise:
Petitioners’ arguments equate the signing of the
The usual steps in the treaty-making process are: treaty by the Philippine representative with
negotiation, signature, ratification, and exchange ratification. It should be underscored that the
of the instruments of ratification. The treaty may signing of the treaty and the ratification are two
then be submitted for registration and publication separate and distinct steps in the treaty-making
under the U.N. Charter, although this step is not process. As earlier discussed, the signature is
essential to the validity of the agreement as primarily intended as a means of authenticating
between the parties. the instrument and as a symbol of the good faith
of the parties. It is usually performed by the
Negotiation may be undertaken directly by the state’s authorized representative in the
head of state but he now usually assigns this task diplomatic mission. Ratification, on the other
to his authorized representatives. These hand, is the formal act by which a state confirms
representatives are provided with credentials and accepts the provisions of a treaty concluded
known as full powers, which they exhibit to the
by its representative. It is generally held to be an It should be emphasized that under our

executive act, undertaken by the head of the Constitution, the power to ratify is vested in the Notes:
state or of the government (Bayan vs. Zamora, President, subject to the concurrence of the
supra note 15). Thus, Executive Order No. 459 Senate. The role of the Senate, however, is
issued by President Fidel V. Ramos on November limited only to giving or withholding its consent,
25, 1997 provides the guidelines in the or concurrence, to the ratification (Bayan vs.
negotiation of international agreements and its Zamora, supra note 15). Hence, it is within the
ratification. It mandates that after the treaty has authority of the President to refuse to submit a
been signed by the Philippine representative, the treaty to the Senate or, having secured its consent
same shall be transmitted to the Department of for its ratification, refuse to ratify it (Cruz,
Foreign Affairs. The Department of Foreign Affairs International Law, supra note 16, p.174).
shall then prepare the ratification papers and Although the refusal of a state to ratify a treaty
forward the signed copy of the treaty to the which has been signed in its behalf is a serious
President for ratification. After the President has step that should not be taken lightly (Salonga and
ratified the treaty, the Department of Foreign Yap, supra note 18), such decision is within the
Affairs shall submit the same to the Senate for competence of the President alone, which cannot
concurrence. Upon receipt of the concurrence of be encroached by this Court via a writ of
the Senate, the Department of Foreign Affairs mandamus. This Court has no jurisdiction over
shall comply with the provisions of the treaty to actions seeking to enjoin the President in the
render it effective. xxx performance of his official duties. [See Severino
vs. Governor-General, 16 Phil. 366 (1910)]. The
Xxx Court, therefore, cannot issue the writ of
mandamus prayed for by the petitioners as it is
beyond its jurisdiction to compel the executive
Petitioners’ submission that the Philippines is branch of the government to transmit the signed
bound under treaty law and international law to text of Rome Statute to the Senate.
ratify the treaty which it has signed is without
basis. The signature does not signify the final
consent of the state to the treaty. It is the
ratification that binds the state to the provisions
thereof. In fact, the Rome Statute itself requires Jurisdiction of States
that the signature of the representatives of the
states be subject to ratification, acceptance or Bases of Jurisdiction
approval of the signatory states. Ratification is 1. Territoriality Principle
the act by which the provisions of a treaty are 2. Nationality Principle
formally confirmed and approved by a State. By 3. Protective Principle
ratifying a treaty signed in its behalf, a state 4. Universality Principle
expresses its willingness to be bound by the Exemptions from Jurisdiction
provisions of such treaty. After the treaty is signed Doctrine of Sovereign Immunity
by the state’s representative, the President, being Act of State Doctrine
accountable to the people, is burdened with the Right of Legation
responsibility and the duty to carefully study the Classes of Heads of Missions
contents of the treaty and ensure that they are Diplomatic Corps
not inimical to the interest of the state and its Privileges and Immunities
people. Thus, the President has the discretion Letter of Credence
even after the signing of the treaty by the Functions of Diplomatic Representatives
Philippine representative whether or not to ratify Waiver of Diplomatic Immunity and Privileges
the same. The Vienna Convention on the Law of Duration of Immunity
Treaties does not contemplate to defeat or even Termination of Diplomatic Relation
restrain this power of the head of states. If that Consular Immunity
were so, the requirement of ratification of 2 Kinds of Consuls
treaties would be pointless and futile. It has been Consular Privileges and Immunities
held that a state has no legal or even moral duty
to ratify a treaty which has been signed by its ¯°º°¯
plenipotentiaries [Salonga and Yap, Public
International Law (5th Edition), p. 138]. There is BASES OF JURISDICTION
no legal obligation to ratify a treaty, but it goes A. Territoriality Principle
without saying that the refusal must be based on ☀ all persons, property, transactions and
substantial grounds and not on superficial or occurrences within the territory of a
whimsical reasons. Otherwise, the other state State are under its jurisdiction, as well as
would be justified in taking offense (Cruz, over certain consequences produced
International Law, supra note 16, p.174). within the territory by persons acting
outside it.
☀ vests jurisdiction in state where offense
was committed
☀ Art. 14, NCC only the members of the crew and is of such a
petty nature as not to disturb the peace of the Notes:
EXTRATERRITORIAL JURISDICTION – local state.
☀ often claimed by States with respect to
so-called continuing offenses where the B. Nationality Principle
commission of the crime has started in ☀ a State may punish offenses committed
one State and is consummated in by its nationals anywhere in the world.
another. Under such situation, both ☀ vest jurisdiction in state of offender
states have jurisdiction. ☀ Art. 15, NCC; tax laws
Q: What is the meaning or concept of C. Protective Principle

extraterritoriality? (1977 Bar) ☀ States claim extraterritorial criminal
A: The term “extraterritoriality has been used to jurisdiction to punish crimes committed
denote the status of a person or things physically abroad which are prejudicial to their
present on a State’s territory, but wholly or partly national security or vital interests, even
withdrawn from the State’s jurisdiction” by a rule where the offenses are perpetrated by
of international law. non-nationals.
☀ vest jurisdiction in state whose national
Note: The concept of extraterritoriality is already interests is injured or national security
obsolete. compromised
☀ counterfeiting, treason, espionage
Q: Distinguish “exTERritoriality” and
“exTRAterritoriality.” Q: Explain the Protective Personality Principle.
A: (1991 Bar)
exTERritoriality exTRAterritoriality A: Protective Personality Principle is the principle
on which the State exercise jurisdiction over the
exception of used to denote the acts of an alien even if committed outside its
persons and status of a person territory, if such acts are adverse to the interest
property from local or things physically of the national state.
jurisdiction on present on a
basis of State’s territory, D. Universality Principle
international but wholly or ☀ A State has extraterritorial jurisdiction
customs partly withdrawn over all crimes regardless of where they
from the State’s are committed or who committed them,
jurisdiction” by a whether nationals or non-nationals. This
rule of is, however, generally considered as
international law forbidden.
☀ vest jurisdiction in state which has
Q: How can the observance of our law on custody of offender of universal crimes
national theory be enforced upon individuals, ☀ piracy, genocide
and upon states? (1979 Bar)
A: All persons within our national territory are Q: A Filipino owned construction company with
subject to the jurisdiction of the Philippines, with principal office in Manila leased an aircraft
certain exceptions like heads and diplomatic registered in England to ferry construction
agents of foreign states. workers to the Middle East. While on a flight to
Saudi Arabia with Filipino crew provided by the
States are required under international law, lessee, the aircraft was highjacked by drug
specifically under Article II, paragraph 4 of the UN traffickers. The hijackers were captured in
Charter, to respect the territorial integrity of Damaseus and sent to the Philippines for trial.
other states. Any encroachments upon our Do courts of Manila have jurisdiction over the
territory, for example, by a foreign vessel, may be case? (1981 Bar)
punished under our own laws, or by sanctions A: Yes. Hijacking is actually piracy, defined in
allowed under the generally accepted principles People vs. Lol-lo, 43 Phil 19 as robbery or forcible
of international law. depredation in the high seas without lawful
authority and done animo furandi and in the spirit
Q: A crime was committed in a private vessel and intention of universal hostility.
registered in Japan by a Filipino against an
Englishman while the vessel is anchored in a Piracy is a crime against all mankind. Accordingly,
port of State A. Where can he be tried? (1979 it may be punished in the competent tribunal if
Bar) any country where the offender may be found or
A: Under both the English and French rules, the into which he may be carried.
crime will be tried by the local state A, if serious
enough as to compromise the peace of its port; The jurisdiction on piracy unlike all other crimes
otherwise by the flag state, Japan if it involves has no territorial limits. As it is against all, all so
may punish it. Nor does it matter that the crime signed by the parties in Jakarta. Marikina Shoe
was committed within the jurisdictional 3-mile Expo was able to deliver only 200,000 pairs of Notes:
limit of a foreign state for those limits, though combat boots in Jakarta by October 30, 1990
neutral to war, are not neutral to crimes. and received payment for 100,000 pairs or a
total of $3,000,000. The Ministry of the Army
DOCTRINE OF SOVEREIGN IMMUNITY promised to pay for the other 100,000 pairs
already delivered as soon as the remaining
Under this doctrine, a state enjoys immunity from
300,000 pairs of combat boots are delivered, at
the exercise of jurisdiction by another state. The
which time the said 300,000 pairs will also be
courts of one state may not assume jurisdiction
paid for.
over another state.
Q: Marikina Shoe Corporation failed to deliver
Restrictive Application of the Doctrine of State any more combat boots. On June 1, 1991, the
Immunity Republic of Indonesia filed an action before the
Q: The Republic of Balau opened and operated RTC of Pasig, to compel Marikina Shoe
in Manila an office engaged in trading of Balau Corporation to perform the balance of its
products with the Philippine products. In one obligation under the contract and for damages.
transaction, the local buyer complained that the In its Answer, Marikina Shoe Corporation sets up
Balau goods delivered to him were substandard a counterclaim for $3,000,000 representing the
and he sued the Republic of Balau before the payment for the 100,000 pairs of combat boots
RTC of Pasig for damages. (1996 Bar) already delivered but unpaid. Indonesia moved
a) How can the Republic of Balau invoke its to dismiss the counterclaim asserting that it is
sovereign immunity? Explain. entitled to sovereign immunity from suit. The
b) Will such defense of sovereign immunity trial court denied the motion to dismiss and
prosper? Explain. issued two writs of garnishment upon
Indonesian Government funds deposited in the
A: a) By filing a motion to dismiss in accordance PNB and BPI. Indonesia went to the Court of
with Section 1 (a) Rule 16 of the Rules of Court on Appeals on a petition for certiorari under Rule
the ground that the court has no jurisdiction over 65 of the Rules of Court. How would the Court
its person. of Appeals decide the case? (1991 Bar)
A: The Court of Appeals should dismiss the
According to the case of Holy See vs. Rosario, in petition in so far as it seeks to annul the order
Public International Law, when a state wishes to denying the motion of the Government of
plead sovereign immunity in a foreign court, it Indonesia to dismiss the counterclaim. The
requests the Foreign office of the state where it is counterclaim in this case is a compulsory
being sued to convey to the court that it is counterclaim since it arises from the same
entitled to immunity. In the Philippines, the contract involved in the complaint. As such, it
practice is for the foreign government to first must be set up, otherwise, it will be barred.
secure an executive endorsement of its claim of Above all, as held in Froilan vs. Pan Oriental
immunity. In some case, the defense of sovereign Shipping Co. 95 Phil 905, by filing a complaint, the
immunity is submitted directly to the local court state of Indonesia waived its immunity from suit.
by the foreign state through counsel by filing a It is not right that it can sue in the courts of the
motion to dismiss on the ground that the court has Philippines if in the first place it cannot be sued.
no jurisdiction over its person. The defendant therefore acquires the right to set
up a compulsory counterclaim against it.
b) No. The sale of Balau products as a contract
involves a commercial activity. As held by the However, The Court of Appeals should grant the
Supreme Court in the case of USA vs. Ruiz and USA petition of the Indonesian Government insofar as
vs. Guinto, it was stated that a foreign state it sought to annul the garnishment of the funds of
couldn’t invoke immunity from suit if it enters Indonesia, which were deposited in the PNB and
into a commercial contract. The Philippines BPI.
adheres to restrictive Sovereign Immunity.
Consent to the exercise of jurisdiction of a foreign
In February 1990, the Ministry of the Army, court does not involve waiver of the separate
Republic of Indonesia, invited for a bid for the immunity from execution. (You can look but you
supply of 500,000 pairs of combat boots for the can’t touch.)
use of the Indonesian Army. The Marikina Shoe
Corporation, a Philippine Corporation, which Thus as held in the case of Dexter vs. Carpenters,
has a branch office and with no assets in P2d 705, it was held that consent to be sued does
Indonesia, submitted a bid to supply 500,000 not give consent to the attachment of the
pairs of combat boots at $30 per pair delivered property of sovereign government.
in Jakarta on or before October 1990. The
contract was awarded by the Ministry of the Exemptions from Jurisdiction
Army to Marikina Shoe Corporation and was 1. Doctrine of State Immunity;
2. Act of State Doctrine – court of one state will Passive right of legation – receive diplomatic
not sit in judgment over acts of government representatives Notes:
of another state done in its territory.
3. Diplomatic Immunity; Resident Missions
4. Immunity of UN Specialized agencies, other Classes of heads of missions [ A N E M I C ]
International Organizations, and its Officers; a. Ambassadors or nuncios accredited to Heads
5. Foreign Merchant vessels exercising the right of State and other heads of missions of
of innocent passage; equivalent rank;
6. Foreign armies passing through or stationed in b. Envoys ministers and internuncios accredited
the territory with the permission of the State; to Heads of State;
7. Warships and other public vessels of another c. Charges d’affaires accredited to Ministers for
State operated for non-commercial purposes. Foreign Affairs.
ACT OF STATE DOCTRINE Functions of Diplomatic Missions

Q: What is an Act of State? 1. representing sending state in receiving state;
A: An act of state is an act done by the sovereign 2. protecting in receiving state interests of
power of a country, or by its delegate, within the sending state and its nationals;
limits of the power vested in him. An act of State 3. negotiating with government of receiving
cannot be questioned or made the subject of legal state;
proceedings in court of law. Courts cannot 4. promoting friendly relations between sending
pass judgment on acts of State done within its and receiving states and developing their
territorial jurisdiction. It is different from economic, cultural and scientific relations;
Sovereign Immunity from Suit. Here, you cannot 5. ascertaining by all lawful means conditions
sue a sovereign State in the courts of another and developments in receiving state and
State. reporting thereon to government of sending
state; and
Q: Why? 6. in some cases, representing friendly
A: Would unduly vex the peace of nations based governments at their request.
on the doctrine of sovereign equality of States –
“Par in parem non habet imperium” Diplomatic Corps
A body formed by all diplomatic envoys accredited
Q: What is the meaning or concept of “Act of to the same State. The Doyen or head of this body
State” Doctrine? (1977 Bar) is usually the Papal Nuncio, or the oldest
A: The Act of State Doctrine states that every accredited ambassador or plenipotentiary.
sovereign state is bound to respect the
independence of other states and the court of one Privileges and immunities
country will not sit in judgment to the acts of the a. Personal inviolability;
foreign government done within its territory. b. Inviolability of premises and archives;
Redress of grievances by reason of such acts must c. Right of an official communication;
be obtained through the means open to be availed d. Exemption from local jurisdiction;
of by sovereign powers as between themselves. e. Exemption from subpoena as witness;
f. Exemption from taxation
DIPLOMATIC IMMUNITY
THE RIGHT OF LEGATION Q: Who are the usual agents of diplomatic
It is the right to send and receive diplomatic intercourse?
missions. It is strictly not a right since no State A: The diplomatic relations of a state are usually
can be compelled to enter into diplomatic conducted through:
relations with another State. Diplomatic relations i. The head of state;
is established by mutual consent between two ii. The foreign secretary or minister; and
States. iii. The members of the diplomatic service.
Q: Is the state obliged to maintain diplomatic Sometimes the state may appoint special
relations with other states? diplomatic agents charged with either political or
A: No, as the right of legation is purely ceremonial duties, such as the negotiation of a
consensual. If it wants to, a state may shut itself treaty or attendance at a state function like a
from the rest of the world, as Japan did until the coronation or a funeral.
close of the 19th century. However, a policy of
isolation would hinder the progress of a state Q: How are the regular diplomatic
since it would be denying itself of the many representatives classified?
benefits available from the international
A:
community. i. Ambassadors or nuncios accredited to
heads of states
Active right of legation – send diplomatic ii. Envoys, ministers and internuncios
representatives
accredited to heads of states
iii. Charges d’ affaires accredited to ministers The functions of diplomatic mission consist inter
for foreign affairs alia in: Notes:
a) Representing the sending state
The diplomatic corps consists of different in the receiving state.
diplomatic representatives who have been b) Protecting in the receiving state
accredited to the local or receiving state. A doyen the interests of the sending state and its
du corps or a dean, who is usually the member of nationals.
the highest rank and the longest service to the c) Negotiating with the
state, heads it. government of the receiving state.
d) Ascertainment through lawful
In Catholic countries, the dean is the Papal means of the conditions and developments in
Nuncio. the receiving state and reporting thereon to
the government of the sending state.
Q: How are diplomatic representatives chosen? e) Promoting friendly relations
A: The appointment of diplomats is not merely a between the sending and receiving state and
matter of municipal law for the receiving state is developing their economic, cultural and
not obliged to accept a representative who is a scientific relations.
persona non grata to it. Indeed, there have been f) In some cases, representing
cases when duly accredited diplomatic friendly governments at their request.
representatives have been rejected, resulting in
strained relations between the sending and Pointers on Diplomatic Immunities and
receiving state. Privileges
The more important are the following:
To avoid such awkward situation, most states now a) The person of a diplomatic
observe the practice of agreation, by means of agent shall be inviolable and he shall not be
which inquiries are addressed to the receiving liable to any form of arrest or detention. The
state regarding a proposed diplomatic receiving state shall treat him with due
representative of the sending state. It is only respect and shall take all appropriate steps to
when the receiving state manifests its agreement prevent any attack on his person, freedom or
or consent that the diplomatic representative is dignity.
appointed and formally accredited.
b) A diplomatic agent shall enjoy
Q: What is agreation? immunity from the criminal, civil and
A: It is a practice of the states before appointing administrative jurisdiction of the receiving
a particular individual to be the chief of their state, except in certain cases as, for
diplomatic mission in order to avoid possible example, when the civil action deals with
embarrassment. It consist of two acts: property held by him in a private or
i. The Inquiry, usually informal, proprietary capacity.
addressed by the sending state to the
receiving state regarding the acceptability of c) The diplomatic premises shall be
an individual to be its chief of mission; and inviolable, and the agents of the receiving
ii. The agreement, also informal, state may not enter them without the
by which the receiving state indicates to the consent of the head of the mission. Such
sending state that such person, would be premises, their furnishings and other property
acceptable. thereon and the means of transportation of
the mission shall be immune from search,
Letter of Credence (Letre d’ Creance) requisition, attachment or execution. (See
The document, which the envoy receives from his movie “Red Corner” starring Richard Gere).
government accrediting him to the foreign state
to which he is being sent. It designates his rank d) The archives and documents of
and the general object of his mission and asks the mission shall be inviolable at any time
that he be received favorably and that full and wherever they may be.
credence be given to what he says on behalf of his
state. e) The receiving state shall permit
and protect free communication on the part
Letter Patent (Letre d’ Provision) of the mission for all official purposes. In
The appointment of a consul is usually evidenced communicating with the government and
by a commission, known sometimes as letter other missions, and consulates of the sending
patent or letre d’ provision, issued by the state wherever situated, the mission may
appointing authority of the sending state and employ all appropriate means, including
transmitted to the receiving state through diplomatic couriers and messages in code or
diplomatic channels. cipher. The official correspondence of the
mission shall be inviolable.
Functions of diplomatic representatives
f) Subject to its laws and

regulations concerning national security, the Q: Who else besides the head of the mission are Notes:
receiving state shall insure to all members of entitled to diplomatic immunities and
the mission freedom of movement and travel privileges?
in its territory. A: The diplomatic immunities and privileges are
also enjoyed by the diplomatic suite or retinue,
g) A diplomatic agent is not obliged which consists of the official and non-official staff
to give evidence as a witness. of the mission.
h) A diplomatic agent shall be The official staff is made up of the administrative

exempt from all dues and taxes, personal or and technical personnel of the mission, including
real, national, regional, or municipal except those performing clerical work, and the member
in certain specified cases like the imposition of their respective families. The non-official staff
of indirect taxes. is composed of the household help, such as the
domestic servants, butlers, and cooks and
i) The mission and its head shall chauffeurs employed by the mission.
have the right to use the flag and emblem of
the sending state on the premises of the As a rule, however, domestic servants enjoy
mission, including the residences of the head immunities and privileges only to the extent
of the mission and on his means of transport. admitted by the receiving state and insofar as
they are connected with the performance of their
duties.
Q: Who may waive the diplomatic immunity and
privileges? Q: Italy, through its Ambassador, entered into a
A: The waiver may be made expressly by the contract with Abad for the maintenance and
sending state. It may also be done impliedly, as repair of specified equipment at its Embassy
when the person entitled to the immunity from and Ambassador’s Residence, such as air
jurisdiction commences litigation in the local conditioning units, generator sets, electrical
courts and thereby opens himself to any facilities, water heaters, and water motor
counterclaim directly connected with the pumps. It was stipulated that the agreement
principal claim. shall be effective for a period of four years and
automatically renewed unless cancelled.
However, waiver of immunity from jurisdiction Further, it provided that any suit arising from
with regard to civil and administrative the contract shall be filed with the proper
proceedings shall not be held to mean implied courts in the City of Manila.
waiver of the immunity with respect to the
execution of judgment, for which a separate Claiming that the Maintenance Contract was
waiver shall be necessary. unilaterally, baselessly and arbitrarily
terminated, Abad sued the State of Italy and its
Q: Is Diplomatic Immunity a Political Question? Ambassador before a court in the City of
A: Diplomatic immunity is essentially a political Manila. Among the defenses they raised were
question and the courts should refuse to look “sovereign immunity” and “diplomatic
beyond the determination by the executive immunity”. (2005 Bar)
branch. (DFA vs. NLRC, 1996) (a) As counsel of Abad, refute the defenses of
“sovereign immunity” and “diplomatic
Duration of the diplomatic immunities immunity” raised by the State of Italy and
Unless waived, diplomatic immunities and its Ambassador.
privileges begin from the moment diplomatic (b) At any rate, what should be the court’s
agent arrives in the territory of the receiving ruling on the said defenses?
state or, if already there, form the moment his A: (a) As a counsel of Abad, I shall argue that the
appointment is notified to its government, and contract is not a sovereign function and that the
lasts until he leaves, which must be within a stipulation that any suit arising under the contract
reasonable period following the termination of his shall be filed with the proper courts of the City of
mission. Manila is a waiver of the sovereign immunity from
suit of Italy. I shall also argue that the
With respect to his official acts, however, his ambassador does not enjoy diplomatic immunity,
immunity from the jurisdiction of the receiving because the suit relates to a commercial activity.
state continues indefinitely as these are the acts
attributed not to him but to the sending state. (b) The court should reject the defenses. Since
But this rule does not apply to his private acts, for the establishment of a diplomatic mission requires
which he may later be sued or prosecuted should the maintainance and upkeep of the embassy and
he return in a private capacity to the receiving the residence of the ambassador, Italy was acting
state or fail to leave it in due time after the end in pursuit of a sovereign activity when it entered
of his mission. into the contract. The provision in the contract
regarding the venue of lawsuits is not necessarily (even if they are not Philippine nationals or
a wavier of sovereign immunity from suit. It residents) as set out in Article 37(3), if at the time Notes:
should be interpreted to apply only where Italy of the arrest they were in “acts performed in the
elects to sue in the Philippine courts or waives its course of their duties.” If a driver was among the
immunity by a subsequent act. The contract does said rank and file employees and he was arrested
not involve a commercial activity of the while driving a diplomatic vehicle or engaged in
ambassador, because it is connected with his related acts, still he would be covered by the
official functions. [Republic of Indonesia v. immunity.
Vinzon, 405 SCRA 126 (2003)]
Q: A foreign ambassador to the Philippines
Q: A group of high-ranking officials and rank and leased a vacation house in Tagaytay for his
file employees stationed in a foreign embassy in personal use. For some reason, he failed to pay
Manila were arrested outside embassy grounds the rentals for more than one year. The lessor
and detained at Camp Crame on suspicion that filed an action for the recovery of his property
they were actively collaborating with in court.
“terrorists” out to overthrow or destabilize the a) Can the foreign ambassador invoke his
Philippine Government. The Foreign diplomatic immunity to resist the lessor’s
Ambassador sought their immediate release, action?
claiming that the detained embassy officials and b) The lessor gets hold of evidence that the
employees enjoyed diplomatic immunity. If ambassador is about to return to his home
invited to express your legal opinion on the country. Can the lessor ask the court to
matter, what advice would you give. (2003 Bar) stop the ambassador’s departure from the
A: I shall advise that the high ranking officials and Philippine? (2000 Bar)
rank and file employees be released because of A: a) No, the foreign ambassador cannot invoke
their diplomatic immunity. Article 29 of the the diplomatic immunity to resist the action,
Vienna Convention on Diplomatic Relations since he is not using the house in Tagaytay City for
provides: the purposes of his mission but merely for
vacation. Under 3(1)(a) of the Vienna Convention
“The person of a diplomatic agent shall be on Diplomatic Relations, a diplomatic agent has
inviolable. He shall not be liable to any form of no immunity in case of a real action relating to
arrest or detention.” private immovable property situated in the
territory of the receiving State unless he holds it
Under Article 37 of the Vienna Convention on on behalf of the sending State for purposes of the
Diplomatic Relations, members of the mission.
administrative and technical staff of the
diplomatic mission, shall, if they are not nationals b) No, the lessor cannot ask the court to stop the
of or permanent residents in the receiving State, departure of the ambassador from the Philippines.
enjoy the privileges and immunities specified in Under Article 29 of the Vienna Convention, a
Article 29. diplomatic agent shall not be liable to any form of
arrest or detention.
Under Article 9 of the Vienna Convention on
Diplomatic Relations, the remedy is to declare the Q: The United States Ambassador from the
high-ranking officials and rank and file employees Philippines and the American Consul General
personae non gratae and ask them to leave. also in the Philippines quarreled in the lobby of
Manila Hotel and shot each other. May the
Alternative A: Under the Vienna Convention on Philippine courts take jurisdiction over them for
Diplomatic Relations, a diplomatic agent “shall trial and punishment for the crime they may
not be liable to any form of arrest or detention have committed? (1979 Bar)
(Article 29) and he enjoys immunity from criminal A: The Ambassador is immune from prosecution
jurisdiction (Article 31). for all crimes committed by him whether officially
or in his private capacity.
This immunity may cover the “high ranking
officials” in question, who are assumed to be The consul is immune from criminal prosecution
diplomatic officers or agents. ONLY for acts committed by him in connection
with his official functions.
With respect to the “rank and file employees”
that are covered by the immunity referred to
above, provided that are not nationals or
permanent residents of the Philippines pursuant
to Article 37(2) of the said Convention.
If the said rank and file employees belong to the

service staff of the diplomatic mission (such as
drivers) they may be covered by the immunity
Q: The Ambassador of State X to the Philippines receiving state may resort to the more
bought in the name of his government drastic method of dismissal, by means of Notes:
two houses and lots at Forbes Park, which the offending diplomat is
Makati. One house is used as the summarily presented with his passport
chancery and residence of the and asked to leave the country.
ambassador, and the other as quarters
for nationals of State X who are Q: Will the termination of diplomatic relations
studying in De La Salle University. The also terminate consular relations between the
Register of Deeds refused to register sending and receiving states?
the sale and to issue Transfer A: NO. Consuls belong to a class of state agents
Certificates of Title in the name of distinct from that of diplomatic officers. They do
State X. Is his refusal justified? not represent their state in its relations with
A: The prohibition in the Constitution against foreign states and are not intermediaries through
alienation of lands in favor of aliens does not whom matters of state are discussed between
apply to alienation of the same in favor of foreign governments.
governments to be used as chancery and They look mainly after the commercial interest of
residence of its diplomatic representatives. The their own state in the territory of a foreign state.
receiving state is under obligation to facilitate the
acquisition on its territory, in accordance with its They are not clothed with diplomatic character
laws, by the sending state of premises necessary and are not accredited to the government of the
for its mission, or to assist the latter in obtaining country where they exercised their consular
accommodation in some other way. Therefore, functions; they deal directly with local
the refusal of the Register of Deeds to register the authorities.
sale and the issuance of TCT in the name of state
X is unjustified. 2 Kinds of Consuls
b) consules missi – professional or career
However, in so far as the house and lot to be used consuls who are nationals of the sending
as quarters of the nationals of State X who are state and are required to devote their
studying in De La Salle University are concerned, full time to the discharge of their duties.
the Register of Deeds correctly refused c) consules electi –may or may not be
registration. Here, the prohibition in the nationals of the sending state and
constitution against the transfer of properties to perform their consular functions only in
parties other than the Filipino citizens or addition to their regular callings.
corporation 60% of the capital of which is owned
by such citizens should be followed. Q: Where do consuls derive their authority?
A: Consuls derive their authority from two
Termination of Diplomatic Relation principal sources, to wit, the letter patent or
A diplomatic mission may come to an end by any letter ‘de provision, which is the commission
of the usual methods of terminating official issued by the sending state, and the exequator,
relations like: which is the permission given them by the
receiving state to perform their functions therein.
Under Municipal Law: [ R A D A R ]
a) Resignation Q: Do consuls enjoy their own immunities and
b) Accomplishment of the purpose privileges? Explain.
c) Death A: Yes, but not to the same extent as those
enjoyed by the diplomats.
d) Abolition of the office
e) Removal Like diplomats, consuls are entitled to the
inviolability of their correspondence, archives and
Under the International Law: [ W E R ] other documents, freedom of movement and
a) War - the outbreak of war between the travel, immunity from jurisdiction for acts
sending and receiving states terminates performed in their official capacity and
their diplomatic relations, which is exemption from certain taxes and customs duties.
usually severed before the actual
commencement of hostilities; However, consuls are liable to arrest and
b) Extinction - extinction of either the punishment for grave offenses and may be
sending state or the receiving state will required to give testimony, subject to certain
also automatically terminate diplomatic exceptions.
relations between them; OR
c) Recall – may be demanded by the The consular offices are immune only with respect
receiving state when the foreign to that part where the consular work is being
diplomat becomes a persona non grata to performed and they may be expropriated for
it for any reason. Where the demand is purposes of national defense or public utility.
rejected by the sending state, the
Q: Discuss the differences, if any, in the c) Can E ask the court to stop D’s departure
privileges or immunities of diplomatic envoys from the Philippines? Notes:
and consular officers from the civil and criminal A: a) Yes Article 31 of the Vienna Convention on
jurisdiction of the receiving state. (1995 Bar) Diplomatic Relations provides:
A: Under Article 32 of the Vienna Convention of
Diplomatic Relations, a diplomatic agent shall “A diplomatic agent shall enjoy immunity
enjoy immunity from the criminal jurisdiction of from the criminal jurisdiction of the receiving
the receiving state. He shall also enjoy immunity state. He shall also enjoy immunity from its
from its civil and administrative jurisdiction civil and administrative jurisdiction, except in
except in the case of: the case of: A real action relating to private
immovable property situated in the territory
a) A real action relating to private of the receiving state, unless he holds it on
immovable property situated in the territory behalf of the sending state for the purpose
of the receiving state, unless he holds it on of the mission.
behalf of the sending state for the purpose of
the mission; The action against the ambassador is a real action
involving private immovable property situated
b) An action relating to succession within the territory of the Philippines as the
in which the diplomatic agent is involved as receiving state. The action falls within the
executor, administrator, heir or legatee as exception to the grant of immunity from the civil
private person and not on behalf of the and administrative jurisdiction of the Philippines.
sending state;
Alternative A: No, the action will not prosper.
c) An action relating to any Although the action is a real action relating to
professional or commercial activity exercised private immovable property within the territory of
by the diplomatic agent in the receiving state the Philippines, nonetheless, the vacation house
outside of his official functions. may be considered property held by the
Ambassador in behalf of his State (Kingdom of
On the other hand, under Article 41 of the Vienna Nepal) for the purposes of the mission, and
Convention on the Consular Relations, a consular therefore, such is beyond the civil and
officer does not enjoy immunity from the criminal administrative jurisdiction of the Philippines,
jurisdiction of the receiving state. Under Article including its court.
43 of the Vienna Convention on Consular
Relations, consular officers are not amenable to b) No, E cannot ask for the attachment of the
the jurisdiction of the judicial or administrative personal properties of the Ambassador. Article 30
authorities of the receiving state in respect of and 31 of the Vienna Convention on Diplomatic
acts performed in the exercise of consular Relations provide that the papers, correspondence
functions. and the property of the diplomatic agent shall be
inviolable. Therefore, a writ of attachment
However, this does not apply in respect of a civil cannot be issued against the furniture and any
action either: personal property. Moreover, on the assumption
that the Kingdom of Nepal grants similar
a) Arising out of a CONTRACT protection to Philippine diplomatic agents,
concluded by a consular officer in which he Section 4 of RA 75 provides that any writ or
did not enter expressly or impliedly as an process issued by any court in the Philippines for
agent of the sending state. the attachment of the goods or chattel of the
b) By a third party for DAMAGES ambassador of a foreign state to the Philippines
arising from an accident in the receiving state shall be void.
caused by a vehicle, vessel or aircraft.
c) No, E cannot ask the court to stop the
Q: D, the Ambassador of the Kingdom of Nepal departure of the Ambassador of the Kingdom of
to the Philippines leased a house in Baguio City Nepal from the Philippines. Article 29 of the
as his personal vacation home. On account of Vienna Convention on Diplomatic Relations
military disturbance in Nepal, D did not receive provides: “The person of a diplomatic agent shall
his salary and allowances from his government be inviolable. He shall not be liable to any form
and so he failed to pay his rental for more than of arrest or detention.
one year. E, the lessor, filed an action for
recovery of his property with the RTC of Baguio Q: Explain, using example, the meaning of
City. (2000, 1989 Bar) exequator. (1991 Bar)
a) Can the action of E prosper? A: Exequator is an authorization from the
b) Can E ask for the attachment of the receiving state admitting the head of a consular
furniture and other personal properties of d post to the exercise of his functions. For
after getting hold of evidence that D is example, if the Philippines appoint a consul
about to leave the country? general for New York, he cannot start performing
his functions unless the President of the United b) Yes, Under Article 40 of the Vienna Convention,
States issues an exequator to him. if a diplomatic agent is in the territory of a third Notes:
state, which has granted him a passport visa if
Q: X, a secretary and consul in the American such was necessary, while proceeding to take up
embassy in Manila, bought from B a diamond his post, the third state shall accord him
ring in the amount of P 50,000, which he later inviolability and such other immunities as may be
gave as a birthday present to his Filipino required to ensure his transit.
girlfriend. The purchase price was paid in
check drawn upon the Citibank. Upon
presentment for payment, the check was MUNICHER v. CA
dishonored for insufficiency of funds. Because G.R. No. 142396, 11 February 2003
X’s failure to make good of the dishonored
check, B filed a complaint against X in the If the acts giving rise to a suit are those of a
Office of the City Prosecutor of Manila for foreign government done by its foreign agent,
violation of BP 22. After preliminary although not necessarily a diplomatic personage,
investigation, the information was filed against but acting in his official capacity, the complaint
X in the City Court of Manila. X filed a motion could be barred by the immunity of the foreign
to dismiss the case against him on the ground sovereign from suit without its consent.
that he is a Secretary and Consul in the
American Embassy enjoying diplomatic Q: Adams and Baker are American citizens
immunity from criminal prosecution in the residing in the Philippines. Adams befriended
Philippines. If you were the judge, how would Baker and became a frequent visitor at his
you resolve the motion to dismiss? (1997 Bar) house. One day, Adams arrived with 30
members of the Philippine National Police,
A: The motion to dismiss should be granted. As armed with a Search Warrant authorizing the
consul, X is not immune from criminal search of Baker’s house and its premises for
prosecution. Under paragraph 3 of Article 41 of dangerous drugs being trafficked to the United
the Vienna Conventions, a consular officer is not States of America.
immune from the criminal jurisdiction of the
receiving state. In Schneekenburger vs. Mora, 63 The search purportedly yielded positive results,
Phil 249, it was held that a consul is not exempt and Baker was charged with Violation of the
from criminal prosecution in the country where he Dangerous Drugs Act. Adams was the
is assigned. prosecution’s principal witness. However, for
failure to prove his guilt beyond reasonable
However, as a secretary in the American Embassy, doubt, Baker was acquitted.
X enjoys diplomatic immunity from the criminal
prosecution. As secretary, he is a diplomatic Baker then sued Adams for damages for filing
agent. Under paragraph 1 of Article 3 of the trumped-up charges against him. Among the
Vienna Convention, a diplomatic agent against defenses raised by Adams is that he has
enjoys immunity from the criminal jurisdiction of diplomatic immunity, conformably with the
the receiving state. Vienna Convention on Diplomatic Relations. He
presented Diplomatic Notes from the American
Q: a) A consul of a South American country
Embassy stating that he is an agent of the
stationed in Manila was charged with serious
United States Drug Enforcement Agency tasked
physical injuries. May he claim immunity from
with “conducting surveillance operations” on
jurisdiction of the local court? Explain.
suspected drug dealers in the Philippines
b) Suppose after he was charged, he was believed to be the source of prohibited drugs
appointed as his country’s ambassador to the being shipped to the U.S. It was also stated that
Philippines. Can his newly gained diplomatic after having ascertained the target, Adams
status be a ground for the dismissal of his would then inform the Philippine narcotic
criminal case? Explain. (1995 Bar) agents to make the actual arrest. (2005 Bar)
(a) As counsel of plaintiff Baker, argue why his
A: a) No, Under Article 41 of the Vienna complaint should not be dismissed on the
Convention, consuls do not enjoy immunity from ground of defendant Adams’ diplomatic
the criminal jurisdiction of the receiving state. immunity from suit.
He is not liable to arrest or detention pending the (b) As counsel of defendant Adams, argue for
trial unless the offense was committed against his the dismissal of the complaint.
father, mother, child, ascendant, descendant or A: (a) As a counsel of Baker, I shall argue that
spouse. Consuls are not liable to arrest and Baker has no diplomatic immunity, because he is
detention pending trial except in the case of not performing diplomatic functions.
grave crime and pursuant to a decision by the
competent judicial authority. The crime of Alternative A: (a) As a counsel for Baker, I will
physical injuries is not a grave crime unless it is argue that Adam’s diplomatic immunity cannot be
committed against the above-mentioned persons. accepted as the sole basis for the dismissal of the
damage suit, by mere presentation of Diplomatic

Notes stating that he is an agent of the US Drug It should not require Notes:
Enforcement Agency. His diplomatic status was that the name of the
matter of serious doubt on account of his failure crime described should
to disclose it when he appeared as principal be the same in both
witness in the earlier criminal (drug) case against countries. It is enough
Baker, considering that as a matter of diplomatic that the particular act
practice a diplomatic agent may be allowed or charged is a crime in
authorized to give evidence as a witness by the both jurisdictions.
sending state. Thus, his diplomatic status was not
sufficiently established.
Q: What is extradition? To whom does it apply?
(b) As counsel of Adams, I shall argue that since Held: It is the “process by which persons charged
he was acting within his assigned functions with with or convicted of crime against the law of a
the consent of the Philippines, the suit against State and found in a foreign State are returned by
him is a suit against the United States without its the latter to the former for trial or punishment.
consent and is barred by state immunity from It applies to those who are merely charged with
suit. [Minucher v. CA, 397 SCRA 244, (2003)] an offense but have not been brought to trial; to
those who have been tried and convicted and
have subsequently escaped from custody; and
JURISDICTIONAL ASSISTANCE those who have been convicted in absentia. It
does not apply to persons merely suspected of
having committed an offense but against whom no
Extradition Defined charge has been laid or to a person whose
Extradition distinguished from Double Criminality presence is desired as a witness or for obtaining
Basis for Allowing Extradition or enforcing a civil judgment.” (Weston, Falk, D'
Rules in Interpretation of Extradition Treaty Amato, International Law and Order, 2nd ed., p.
Extradition Distinguished from Deportation 630 [1990], cited in Dissenting Opinion, Puno, J.,
Fundamental Principles Governing Extradition in Secretary of Justice v. Hon. Ralph C. Lantion,
Extradition of War Criminals and Terrorists G.R. No. 139465, Jan. 18, 2000, En Banc)
Attentat Clause
Five Postulates of Extradition Q: Discuss the basis for allowing extradition.
Right of Asylum Held: Extradition was first practiced by the
Asylum Distinguished from Refugees Egyptians, Chinese, Chaldeans and Assyro-
3 Essentials Elements of Refugees Babylonians but their basis for allowing
Non-Refoulment Principle extradition was unclear. Sometimes, it was
Nationality Distinguished from Citizenship granted due to pacts; at other times, due to plain
Doctrine of Effective Nationality good will. The classical commentators on
Statelessness international law thus focused their early views
on the nature of the duty to surrender an
¯°º°¯ extraditee --- whether the duty is legal or moral
in character. Grotius and Vattel led the school of
Extradition thought that international law imposed a legal
The delivery of an accused or a convicted duty called civitas maxima to extradite criminals.
individual to the State in whose territory he is In sharp contrast, Puffendorf and Billot led the
alleged to have committed a crime by the State school of thought that the so-called duty was but
on whose territory the alleged criminal or criminal an "imperfect obligation which could become
happens to be at the time. enforceable only by a contract or agreement
between states.
The legal duty to extradite a fugitive from justice
is based only on treaty stipulations, which are Modern nations tilted towards the view of
classified under two major types: Puffendorf and Billot that under international law
there is no duty to extradite in the absence of
Older Type Principle of treaty, whether bilateral or multilateral. Thus,
Double Criminality the US Supreme Court in US v. Rauscher (119 US
One, which contains a Sometimes called “no 407, 411, 7 S Ct. 234, 236, 30 L. ed. 425 [1886]),
specific list of offenses list treaty” held: “x x x it is only in modern times that the
that a fugitive should nations of the earth have imposed upon
have committed in The more modern type themselves the obligation of delivering up these
order to be extradited. contains no list of fugitives from justice to the states where their
crimes but provides that crimes were committed, for trial and punishment.
the offenses in question This has been done generally by treaties x x x
should be punishable in Prior to these treaties, and apart from them there
both states. was no well-defined obligation on one country to
deliver up such fugitives to another; and though we hold for the procedural due process required
such delivery was often made it was upon the by a given set of circumstances “must begin with Notes:
principle of comity x x x.” (Dissenting Opinion, a determination of the precise nature of the
Puno, J., in Secretary of Justice v. Hon. Ralph C. government function involved as well as the
Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc) private interest that has been affected by
governmental action.” The concept of due
Q: What is the nature of an extradition process is flexible for “not all situations calling
proceeding? Is it akin to a criminal proceeding? for procedural safeguards call for the same kind
Held: [A]n extradition proceeding is sui generis. of procedure.” (Secretary of Justice v. Hon. Ralph
It is not a criminal proceeding which will call into C. Lantion, G.R. No. 139465, Oct. 17, 2000, En
operation all the rights of an accused as Banc [Puno])
guaranteed by the Bill of Rights. To begin with,
the process of extradition does not involve the Q: Will the retroactive application of an
determination of the guilt or innocence of an extradition treaty violate the constitutional
accused. His guilt or innocence will be adjudged prohibition against "ex post facto" laws?
in the court of the state where he will be Held: The prohibition against ex post facto law
extradited. Hence, as a rule, constitutional rights applies only to criminal legislation which affects
that are only relevant to determine the guilt or the substantial rights of the accused. This being
innocence of an accused cannot be invoked by an so, there is no merit in the contention that the
extraditee especially by one whose extradition ruling sustaining an extradition treaty’s
papers are still undergoing evaluation. As held by retroactive application violates the constitutional
the US Supreme Court in United States v. Galanis: prohibition against ex post facto laws. The treaty
is neither a piece of criminal legislation nor a
“An extradition proceeding is not a criminal criminal procedural statute. (Wright v. CA, 235
prosecution, and the constitutional safeguards SCRA 341, Aug. 15, 1994 [Kapunan])
that accompany a criminal trial in this country do
not shield an accused from extradition pursuant to Q: The Philippines and Australia entered into a
a valid treaty.” (Wiehl, Extradition Law at the Treaty of Extradition concurred in by the Senate
Crossroads: The Trend Toward Extending Greater of the Philippines on September 10, 1990. Both
Constitutional Procedural Protections To Fugitives governments have notified each other that the
Fighting Extradition from the United States, 19 requirements for the entry into force of the
Michigan Journal of International Law 729, 741 Treaty have been complied with. It took effect
[1998], citing United States v. Galanis, 429 F. in 1990.
Supp. 1215 [D. Conn. 1977])
The Australian government is requesting the
There are other differences between an Philippine government to extradite its citizen,
extradition proceeding and a criminal proceeding. Gibson, who has committed in his country the
An extradition proceeding is summary in natural indictable offense of Obtaining Property by
while criminal proceedings involve a full-blown Deception in 1985. The said offense is among
trial. In contradistinction to a criminal those enumerated as extraditable in the Treaty.
proceeding, the rules of evidence in an
extradition proceeding allow admission of For his defense, Gibson asserts that the
evidence under less stringent standards. In terms retroactive application of the extradition treaty
of the quantum of evidence to be satisfied, a amounts to an ex post facto law. Rule on
criminal case requires proof beyond reasonable Gibson’s contention. (2005 Bar)
doubt for conviction while a fugitive may be
ordered extradited “upon showing of the A: The contention of Gibson is not tenable. The
existence of a prima facie case.” Finally, unlike prohibition in Section 22, Article III of the
in a criminal case where judgment becomes Constitution refers to ex post facto laws. An
executory upon being rendered final, in an extradition treaty is not a criminal law. [Wright v.
extradition proceeding, our courts may adjudge CA, 235 SCRA 341 (1994)]
an individual extraditable but the President has
the final discretion to extradite him. The United Q: Discuss the rules in the interpretation of
States adheres to a similar practice whereby the extradition treaties.
Secretary of State exercises wide discretion in Held: [A]ll treaties, including the RP-US
balancing the equities of the case and the Extradition Treaty, should be interpreted in light
demands of the nation's foreign relations before of their intent. Nothing less than the Vienna
making the ultimate decision to extradite. Convention on the Law of Treaties to which the
Philippines is a signatory provides that “a treaty
As an extradition proceeding is not criminal in shall be interpreted in good faith in accordance
character and the evaluation stage in an with the ordinary meaning to be given to the
extradition proceeding is not akin to a preliminary terms of the treaty in their context and in light of
investigation, the due process safeguards in the its object and purpose.” X x x. It cannot be
latter do not necessarily apply to the former. This gainsaid that today, countries like the Philippines
forge extradition treaties to arrest the dramatic another state

rise of international and transnational crimes like Notes:
terrorism and drug trafficking. Extradition Where? The alien will be The undesirable
treaties provide the assurance that the surrendered to alien may be sent
punishment of these crimes will not be frustrated the state asking to any state
by the frontiers of territorial sovereignty. Implicit for his willing to accept
in the treaties should be the unbending extradition him
commitment that the perpetrators of these crimes
will not be coddled by any signatory state.
Fundamental Principles Governing Extradition:
a) There is no legal obligation to surrender a
It ought to follow that the RP-US Extradition
fugitive unless there is a treaty.
Treaty calls for an interpretation that will
b) Religious and political offenses are generally
minimize if not prevent the escape of extraditees
not extraditable.
from the long arm of the law and expedite their
c) A person extradited can be prosecuted by the
trial. X x x
requesting state only for the crime for which
he was extradited; and
[A]n equally compelling factor to consider is the
d) Unless provided for in a treaty, the crime for
understanding of the parties themselves to the
which a person is extradited must have been
RP-US Extradition Treaty as well as the general
committed in the territory of the requesting
interpretation of the issue in question by other
state.
countries with similar treaties with the
Philippines. The rule is recognized that while
Q: John is a former President of the Republic X,
courts have the power to interpret treaties, the
bent on regaining power which he lost to
meaning given them by the departments of
President Harry in an election. Fully convinced
government particularly charged with their
that he was cheated, he set out to destabilize
negotiation and enforcement is accorded great
the government of President Harry by means of
weight. The reason for the rule is laid down in
a series of protest actions. His plan was to
Santos III v. Northwest Orient Airlines, et al. (210
weaken the government and when the situation
SCRA 256, 261 [1992]), where we stressed that a
became ripe for a take-over, to assassinate
treaty is a joint executive-legislative act which
President Harry.
enjoys the presumption that “it was first carefully
studied and determined to be constitutional
William, on the other hand, is a believer in
before it was adopted and given the force of law
human rights and a former follower of President
in the country.” (Secretary of Justice v. Hon.
Harry. Noting the systematic acts of harassment
Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000,
committed by government agents against
En Banc [Puno])
farmers protesting the seizure of their lands,
laborers complaining of low wages, and students
Q: What is the difference, if any, between
seeking free tuition, William organized groups
extradition and deportation? (1995 Bar)
which held peaceful rallies in front of the
A:
Presidential Palace to express their grievances.
BASIS EXTRADITION DEPORTATION On the eve of the assassination attempt, John’s
Nature Normally Even if no crime men were caught by member of the Presidential
committed with was committed as Security Group. President Harry went on air
criminal long as the alien threatening to prosecute plotters and dissidents
offenses in the is extraditable of his administration. The next day, the
territory of the government charged John with assassination
requesting state attempt and William with inciting to sedition.
Benefit Effected for the Effected for the John fled to Republic A. William, who was in
benefit of the protection of the Republic B attending a lecture on democracy,
state to which state expelling an was advised by his friends to stay in Republic B.
the person being alien because his
extradited will presence is Both Republic A and Republic B have
be surrendered inimical to public conventional extradition treaties with Republic
because he is a good X.
fugitive criminal
in that state If Republic X requests the extradition of John
and William, can Republic A deny the request?
How? Effected on the The unilateral act Why? State your reason fully. (2002 Bar)
basis of an of the state
extradition expelling the A: Republic A can refuse to extradite John,
treaty or upon alien because his offense is a political offense. John
the request of was plotting to take over the government and the
plan of John to assassinate President Harry was

part of such plan. However, if the extradition Q: Explain, using example, the principle of Notes:
treaty contains an attentat clause, Republic A can Double Criminality. (1991 Bar)
extradite John because under the attentat clause, A: The principle of double criminality is the rule
the taking of the life or attempt against the life of in extradition which states that for a request to
a head of state or that of the members of his be honored, the crime for which the extradition is
family does not constitute a political offense and requested must be a crime in both the requesting
is therefore extraditable. state and the state to which the fugitive fled. For
example, since murder is a crime both in the
Alternative A: Republic A may or can refuse the Philippines and Canada, under the Treaty of
request of extradition of William because he is extradition between the Philippines and Canada,
not in its territory and thus it is not in the position the Philippines can request Canada to extradite
to deliver him to Republic X. Filipino who has fled to Canada.
Even if William were in the territorial jurisdiction Q: Patrick is charged with illegal recruitment
of Republic A, he may not be extradited because and estafa before the RTC of Manila. He
inciting to sedition, of which he is charged, jumped bail and managed to escape to America.
constitutes a political offense. It is a standard Assume that there is an extradition treaty
provision of extradition treaties, such as the one between the Philippines and America and it
between Republic A and Republic X, that political does not include illegal recruitment as one of
offenses are not extraditable. the extraditable offenses. Upon surrender of
Patrick by the US Government to the
Alternative A: Republic B can deny the request Philippines, Patrick protested that he could not
the request of Republic X to extradite William, be tried for illegal recruitment. Decide. (1998
because his offense was not a political offense. Bar)
On the basis of the predominance of A: Under the principle of specialty in extradition,
proportionality test, his acts were not directly Patrick cannot be tried for illegal recruitment
connected to any purely political offense. since this is not included in the list of extraditable
offenses in the extradition treaty between the
Q: On November 1, 1976, A, B, C and D, self Philippines and the United States, unless the
styled Moro rebels long wanted by the United States does not object to the trial of
authorities for the fatal ambuscade of a bus Patrick for illegal recruitment.
load of innocent civilians, hijacked a PAL lane
on its Manila-Davao flight which they forcibly Q: The Extradition Treaty between France and
diverted to, and landed in Jakarta Indonesia. In the Philippines is silent as to applicability with
that country, A, B, C and D sought political respect to crimes committed prior to its
asylum, invoking the UN Declaration on Human effectivity.
Rights. Reacting, the Philippine Government, a) Can France demand the extradition of A, a
through proper diplomatic channels sought after French national residing in the Philippines,
their extradition. May Indonesia grant asylum for an offense committed in France prior to
or should it extradite A, B, C and D to the the effectivity of the treaty? Explain.
Philippines. (1976 Bar) b) Can A contest his extradition on the ground
that it violates the ex post facto provision
Q: Sergio Osmeña III and Eugenio Lopez Jr. both in the Philippine Constitution? Explain.
charged with attempted assassination of (1996 Bar)
President Marcos before the military tribunal, A: a) In Clough vs. Strakesh, 109 Fed 330, it was
escaped from military custody, flew to Hong held that an extradition treaty applies to Crimes
Kong and then to California USA where they are committed before its effectivity unless the
reportedly seeking political asylum. There is no extradition treaty expressly exempts them. As
extradition treaty however between the Whiteman points out, extradition does not define
Philippines and the United States.Assuming that crimes but merely provides a means by which a
the Philippine Government desires the state may obtain the return and punishment of
surrender of the above-named fugitives to the persons charged with or convicted of having
Philippines to face trial before the military committed a crime who fled the jurisdiction of
tribunal, how can this be legally done under the state whose law has been violated. It is
International Law? (1978 Bar) therefore immaterial whether at the time of the
A: The Philippines may only request and cannot commission of the crime for which extradition is
demand the surrender of the two fugitives. As sought no treaty was in existence. If at the time
territorial sovereign, the United States is not of extradition is requested there is in force
obliged to return them but may decide to do so between the requesting and the requested state a
for reasons of comity. This is likely, however, treaty covering the offense on which the request
because the escapees are sought for political is based, the treaty is applicable.
offense and can claim the right of asylum under
the Universal Declaration of Human Rights.
b) No, as held in WRIGHT vs. CA, 295 SCRA 341, extradition treaty signifies our confidence in the
the prohibition against ex post facto laws in capacity and the willingness of the other state to Notes:
Section 22 of Article III of the Constitution applies protect the basic rights of the person sought to be
to penal laws only and does not apply to extradited. That signature signifies our full faith
extradition treaties. that the accused will be given, upon extradition
to the requesting state, all relevant and basic
Extradition of War Criminals and Terrorists rights in the criminal proceedings that will take
(Violators of crimes against international law) place therein; otherwise, the treaty would not
As violators of crimes against international law, have been signed, or would have been directly
war criminals are subject to extradition in 1946, attacked for its unconstitutionality.
the UN General Assembly passed a resolution
recommending to members and calling upon all
The Proceedings Are Sui Generis.
non-members to extradite war criminals,
including traitors.
THIRD, as pointed out in Secretary of Justice vs.
Lantion, extradition proceedings are not criminal
Attentat Clause in nature. In criminal proceedings, the
A provision in an extradition treaty that stipulates constitutional rights of the accused are at fore; in
that the murder of the head of a foreign extradition, which is sui generis - in a class by
government or the member of his family should itself – they are not.
not be considered as a political offense.
Given the foregoing, it is evident that the
Doctrine of Reciprocity
extradition court is not called upon to ascertain
If the requesting state is shown to be willing to the guilt or the innocence of the person sought to
surrender its own nationals for trial by the courts be extradited. Such determination during the
of another country, the detaining state must also extradition proceedings will only result in
surrender its own citizens for trial. needless duplication and delay.
5 POSTULATES OF EXTRADITION Extradition is merely a measure of international

judicial assistance through which a person
Extradition Is a Major Instrument for the charged with or convicted of a crime is restored
Suppression of Crime. to a jurisdiction with the best claim to try that
person. It is not part of the function of the
FIRST, extradition treaties are entered into for assisting authorities to enter into questions, which
the purpose of suppressing crime by facilitating are the prerogative of that jurisdiction.
the arrest and the custodial transfer of a fugitive
from one state to the other. The ultimate purpose of extradition proceedings
in court is only to determine whether the
With the advent of easier and faster means of extradition request complies with the Extradition
international travel, the flight of affluent Treaty, and whether the person sought is
Criminals from one country to another for the extraditable.
purpose of committing crime and evading
prosecution have become more frequent. Compliance Shall Be in Good Faith.
Accordingly, governments are adjusting their
methods of dealing with criminals and crimes that FOURTH, our executive branch of government
transcend international boundaries. voluntarily entered into the Extradition Treaty,
and our legislative branch ratified it. Hence, the
Today, “a majority of nations in the world Treaty carries the presumption that its
community have come to look upon extradition as implementation will serve the national interest.
the major effective instrument of international
co-operation in the suppression of crime”. It is Fulfilling our obligations under the Extradition
the only regular system hat has been devised to Treaty promotes comity with the requesting state.
return fugitives to the jurisdiction of a court On the other hand, failure to fulfill our obligations
competent to try them in accordance with thereunder paints a bad image of our country
municipal and international law. before the world community. Such failure would
discourage other states from entering into
The Requesting State Will Accord Due Process to treaties with us, particularly an extradition treaty
the Accused. that hinges on reciprocity.
SECOND, an extradition treaty presupposes that Verily, we are bound by pacta sunt servanda to
both parties thereto have examined and that both comply in good faith with our obligations under
accept and trust each other’s legal system and the Treaty. This principle requires that we deliver
judicial process. More pointedly, our duly the accused to the requesting country if the
authorized representative’s signature on an conditions precedent to extradition, as set forth
in the Treaty, is satisfied. In other words, the received the summons fail to answer within the
demanding government, where it has done all that time fixed, the presiding judge shall hear the case Notes:
the treaty and the law require it to do, is entitled or set another date for the hearing thereof.
to the delivery of the accused on the issue of the
proper warrant, and the other government is (2) The order and notice as well as a copy of the
under obligation to make the surrender.” warrant of arrest, if issued, shall be promptly
Accordingly, the Philippines must be ready and in served each upon the accused and the attorney
a position to deliver the accused, should it be having charge of the case.”
found proper.
Does this provision sanction RTC Judge Purganan’s
There Is an Underlying Risk of Flight act of immediately setting for hearing the
issuance of a warrant of arrest? We rule in the
FIFTH, persons to be extradited are presumed to negative:
be flight risks. This prima facie presumption finds
reinforcement in the experience of the executive
branch nothing short of confinement can ensure A. On the Basis of the Extradition law
that the accused will not flee the jurisdiction of
the requested state in order to thwart their It is significant to note that Section 6 of PD 1069,
our Extradition Law, uses the word “immediate”
extradition to the requesting state.
to qualify the arrest of the accused. This
“qualification would be rendered nugatory by
The present extradition case further validates the
premise that persons sought to be extradited have setting for hearing the issuance of the arrest
warrant. Hearing entails sending notices to the
a propensity to flee. Indeed, extradition hearings
would not even begin, if only the accused were opposing parties, receiving facts and arguments
from them, and giving them time to prepare and
willing to submit to trial in the requesting
country. Prior acts of herein respondent: present such facts and arguments. Arrest
subsequent to a hearing can no longer be
c) Leaving the requesting state right before the considered “immediate”. The law could not have
intended the word as a mere superfluity but on
conclusion of his indictment proceedings
there; and the whole as a means of imparting a sense of
urgency and swiftness in the determination of
d) Remaining in the requested state despite
learning that the requesting state is seeking whether a warrant of arrest should be issued.
his return and that the crimes he is charged
with are bailable - eloquently speak of his By using the phrase “if it appears,” the law
further conveys that accuracy is not as important
aversion to the processes in the requesting
state, as well as his predisposition to avoid as speed at such early stage. The trial court is
not expected to make an exhaustive
them at all cost.
determination to ferret out the true and actual
situation, immediately upon the filling of the
These circumstances point to an ever-present,
underlying high risk of flight. He has petition. From the knowledge and the material
then available to it, the court is expected merely
demonstrated that he has the capacity and the
will to flee. Having fled once, what is there to to get a good first impression - a prima facie
finding - sufficient to make a speedy initial
stop him, given sufficient opportunity, from
fleeing a second time? determination as regards the arrest and detention
of the accused.
Q: Is the respondent in extradition proceeding
entitled to notice and hearing before the We stress that the prima facie existence of
issuance of a warrant of arrest? probable cause for hearing the petition and, a
A: Both parties cite section 6 of PD 1069 in priori, for issuing an arrest warrant was already
support of their arguments. It states: evident from the petition itself and its supporting
documents. Hence, after having already
“SEC. 6. Issuance of Summons; Temporary Arrest, determined therefrom that a prima facie finding
Hearing, Service of Notices - did not exist, respondent judge gravely abused his
discretion when he set the matter for hearing
(1) Immediately upon receipt of the petition, the upon motion of Jimenez.
presiding judge of the court shall, as soon as
practicable, summon the accused to appear and Moreover, the law specifies that the court se a
to answer the petition on the day and hour fixed hearing upon receipt of the answer or upon failure
in the order. He may issue a warrant for the of the accused to answer after receiving the
immediate arrest of the accused which may be summons. In connection with the matter of
served any where within the Philippines if it immediate arrest, however, the word “hearing” is
appears to the presiding judge that the immediate notably absent from the provision. Evidently, had
arrest and temporary detention of the accused the holding of a hearing at that stage been
will best serve the ends of justice. Upon receipt intended, the law could have easily so provided.
of the answer, or should the accused after having It also bears emphasizing at this point that
extradition proceedings are summary in nature. the certainty of guilt of an accused. In

Hence, the silence of the Law and the Treaty doing so, judges do not conduct a de novo Notes:
leans to the more reasonable interpretation that hearing to determine the existence of
there is no intention to punctuate with a hearing probable cause. They just personally review
every little step in the entire proceedings. the initial determination of the prosecutor
finding a probable cause to see if it is
Verily, as argued by petitioner, sending to persons supported by substantial evidence.”
sought to be extradited a notice of the request for
their arrest and setting it for hearing at some At most, in cases of clear insufficiency of
future date would give them ample opportunity to evidence on record, judges merely further
prepare and execute an escape. Neither the examine complainants and their witnesses. In the
Treaty nor the Law could have intended that present case validating the act of respondent
consequence, for the very purpose of both would judge and instituting the practice of hearing the
have been defeated by the escape of the accused accused and his witnesses at this early stage
from the requested state. would be discordant with the rationale for the
entire system. If the accused were allowed to be
heard and necessarily to present evidence during
the prima facie determination for the issuance of
B. On the Basis of the Constitution a warrant of arrest, what would stop him from
presenting his entire plethora of defenses at this
Even Section 2 of Article III of our Constitution, stage -- if he so desires -- in his effort to negate
which is invoked by Jimenez, does not require a a prima facie finding? Such a procedure could
notice or a hearing before the issuance of a convert the determination of a prima facie case
warrant of arrest. It provides: into a full-blown trial of the entire proceedings
and possibly make trial of the main case
“Sec. 2 - The right of the people to be secure superfluous. This scenario is also anathema to the
in their persons, houses, papers, and effects summary nature of extraditions.
against unreasonable searches and seizures and
seizures of whatever nature and for any purpose That the case under consideration is an
shall be inviolable, and no search warrant or extradition and not a criminal action is not
warrant of arrest shall issue except upon sufficient to justify the adoption of a set of
probable cause to be determined personally by procedures more protective of the accused. If a
the judge after examination under oath or different procedure were called for at all, a more
affirmation of the complainant and the restrictive one – not the opposite – would be
witnesses he may produce, and particularly justified in view of respondent’s demonstrated
describing the place to be searched and the predisposition to flee.
persons or things to be seized.”
Q: Is respondent Mark Jimenez entitled to bail
To determine probable cause for the issuance of during the pendency of the Extradition
arrest warrants, the Constitution itself requires Proceeding?
only the examination - under oath or affirmation A: We agree with petitioner: As suggested by the
- of complainants and the witnesses they may use of the word “conviction,” the constitutional
produce. There is no requirement to notify and provision on bail quoted above, as well as Section
hear the accused before the issuance of warrants 4 of Rule 114 pf the Rules of Court, applies only
of arrest. when a person has been arrested and detained for
violation of Philippine criminal laws. It does not
In Ho vs. People and in all the cases cited therein, apply to extradition proceedings, because
never was a judge required to go to the extent of extradition courts do not render judgments of
conducting a hearing just for the purpose of conviction or acquittal.
personally determining probable cause for the
issuance of a warrant of arrest. All we required Moreover, the constitutional right to bail “flows
was that the “judge must have sufficient from the presumption of innocence in favor of
supporting documents upon which to make his every accused who should not be subjected to the
independent judgment, or at the very least, upon loss of freedom as thereafter he would be entitled
which to verify the findings of the prosecutor as to acquittal, unless his guilt be proved beyond
to the existence of probable cause.” reasonable doubt.
In Webb vs. De Leon, the Court categorically It follows that the constitutional provision on bail
stated that a judge was not supposed to conduct a will not apply to a case like extradition, where
hearing before issuing a warrant of arrest: the presumption of innocence is not at issue.
“Again, we stress that before issuing The provision in the Constitution stating that the
warrants of arrest, judges merely “right to bail shall not be impaired even when the
determine personally the probability, not privilege of the writ of habeas corpus is
suspended” does not detract from the rule that It is also worth noting that before the US
the constitutional right to bail is available only in government requested the extradition of Notes:
criminal proceedings. It must be noted that the respondent, proceedings had already been
suspension of the privilege of the writ of habeas conducted in that country. But because he left
corpus finds application “only to persons judicially the jurisdiction of the requesting state before
charged for rebellion or offenses inherent in or those proceedings could be completed, it was
directly connected with invasion.” Hence, the hindered from continuing with the due processes
second sentence in the constitutional provision on prescribed under its laws. His invocation of due
bail merely emphasizes the right to bail in process now has thus become hollow. He already
criminal proceedings for the aforementioned had that opportunity in the requesting state; yet
offenses. It cannot be taken to mean that the instead of taking it, he ran away.
right is available even in extradition proceedings
In this light, would it be proper and just for the
that are not criminal in nature.
government to increase the risk of violating its
treaty obligations in order to accord Respondent
That the offenses for which Jimenez is sought to
be extradited are bailable in the United States is Jimenez his personal liberty in the span of time
that it takes to resolve the Petition for
not an argument to grant him one in the present
case. To stress, extradition proceedings are Extradition? His supposed immediate deprivation
of liberty without the due process that he had
separate and distinct from the trial for the
offenses for which he is charged. He should apply previously shunned pales against the government’s
interest in fulfilling its Extradition Treaty
for bail before the courts trying the criminal cases
against him, not before the extradition court. obligations and in cooperating with the world
community in the suppression of crime. Indeed,
Q: Will Mark Jimenez detention prior to the “constitutional liberties do not exist in a vacuum;
the due process rights accorded to individuals
conclusion of the extradition proceedings not
amount of his right to due process? must be carefully balanced against exigent and
palpable government interests.”
A: Contrary to his contention, his detention prior
to the conclusion of the extradition proceedings
Too, we cannot allow our country to be a haven
does not amount to a violation of his right to due
process. We reiterate the familiar doctrine that for fugitives, cowards and weaklings who, instead
of facing the consequences of their actions,
the essence of due process is the opportunity to
be heard but, at the same time, point out that choose to run and hide. Hence, it would not be
good policy to increase the risk of violating our
the doctrine does not always call for a prior
opportunity to be heard. Where the treaty obligations if, through overprotection or
excessively liberal treatment, persons sought to
circumstances—such as those present in an
extradition case – call for it, a subsequent be extradited are able to evade arrest or escape
from our custody. In the absence of any provision
opportunity to be heard is enough. In the present
case, respondent will be given full opportunity to - in the Constitution, the law or the treaty -
expressly guaranteeing the right to bail in
be heard subsequently, when the extradition court
hears the Petition for Extradition. Hence, there is extradition proceedings, adopting the practice of
not granting them bail, as a general rule, would
no violation of his right to due process and
fundamental fairness. be a step towards deterring fugitives from coming
to the Philippines to hide from or evade their
Contrary to the contention of Jimenez, we find no prosecutors.
arbitrariness, either, in the immediate deprivation
of his liberty prior to his being heard. That his The denial of bail as a matter of course in
extradition cases falls into place with and gives
arrest and detention will not be arbitrary is
sufficiently ensured by: life to Article 14 of the Treaty, since this practice
would encourage the accused to voluntarily
1) The DOJ’s filing in court of the Petition with surrender to the requesting state to cut short
their detention here. Likewise, their detention
its supporting documents after a
determination that the extradition request pending the resolution of extradition proceedings
would fall into place with the emphasis of the
meets the requirements of the law and the
relevant treaty; Extradition Law on the summary nature of
extradition cases and the need for their speedy
2) The extradition judge’s independent prima disposition.
facie determination that his arrest will best
serve the ends of justice before the issuance Q: What are the exceptions to the “No Bail”
Rule in Extradition Proceedings?
of a warrant for his arrest; and
A: The rule, we repeat, is that bail is not a matter
of right in extradition cases.
3) His opportunity, once he is under the court’s
custody, to apply for bail as an exception to
However, the judiciary has the constitutional duty
the no-initial-bail rule.
to curb grave abuse of discretion and tyranny, as
well as the power to promulgate rules to protect
and enforce constitutional rights. Furthermore, People vs. Jalosjos, the Court has already
we believe that the right to due process is broad debunked the disenfranchisement argument xxx. Notes:
enough to include the grant of basic fairness to
extraditees. Indeed, the right to due process
It must be noted that even before private
extends to the “life, liberty or property” of every
person. It is “dynamic and resilient, adaptable to respondent ran for and won a congressional seat
in Manila, it was already of public knowledge that
every situation calling for its application.”
the United States was requesting extradition.
Hence, his constituents were or should have been
Accordingly and to best serve the ends of justice,
we believe and so hold that, after a potential prepared for the consequences of the extradition
case against their representative, including his
extraditee has been arrested or placed under the
custody of the law, bail may be applied for and detention pending the final resolution of the case.
Premises considered and in line with Jalosjos, we
granted as an exception, only upon a clear and
convincing showing of the following: are constrained to rule against his claim that his
election to public office is by itself a compelling
1) That, once granted bail, the applicant will reason to grant him bail.
not be a flight risk or a danger to the
community; and 2. Anticipated Delay
2) That there exist special, humanitarian and
compelling circumstances including, as a Respondent Jimenez further contends that
because the extradition proceedings are lengthy,
matter of reciprocity, those cited by the
highest court in the requesting state when it it would be unfair to confine him during the
pendency of the case. Again we are not
grants provisional liberty in extradition case
therein. convinced. We must emphasize that extradition
cases are summary in nature. They are resorted
3) That, the extraditee will abide with all the
orders and processes of the extradition court. to merely to determine whether the extradition
petition and its annexes conform to the
Extradition Treaty, not to determine guilt or
Since this exception has no express or specific innocence. Neither is it, as a rule, intended to
statutory basis, and since it is derived essentially address issues relevant to the constitutional rights
from general principles of justice and fairness, available to the accused in a criminal action. We
the applicant bears the burden of proving the are not overruling the possibility that petitioner
above two-tiered requirement with clarity; may, in bad faith, unduly delay the proceedings.
precision and emphatic forcefulness. This is another matter that is not at issue here.
Thus, any further discussion of this point would be
The Court realizes that extradition is basically an merely anticipatory and academic. However, if
executive; not a judicial, responsibility arising the delay were due to maneuverings of
from the presidential power to conduct foreign respondent, with all the more reason would the
relations. In its barest concept, it partakes of the grant of bail not be justified. Giving premium to
nature of police assistance amongst states, which delay by considering it as a special circumstance
is not normally a judicial prerogative. for the grant of bail would be tantamount to
Hence, any intrusion by the courts into the giving him the power to grant bail to himself. It
exercise of this power should be characterized by would also encourage him to stretch out and
caution, so that the vital international and unreasonably delay the extradition proceedings
bilateral interests of our country will not be even more. This we cannot allow.
unreasonably impeded or compromised. In short,
while this Court is ever protective of “the 3. Not a Flight Risk?
sporting idea of fair play,” it also recognizes the
limits of its own prerogatives and the need to Jimenez further claims that he is not a flight risk.
fulfill international obligations. To support this claim, he stresses that he learned
of the extradition request in June 1999; yet, he
Along this line, Jimenez contends that there are has not fled the country. True, he has not actually
special circumstances that are compelling enough fled during the preliminary stages of the request
for the Court to grant his request for provisional for his extradition. Yet, this fact cannot be taken
release on bail. We have carefully examined to mean that he will not flee as the process moves
these circumstances and shall now discuss them. forward to its conclusion, as he hears the
footsteps of the requesting government inching
1. Alleged Disenfranchisement closer and closer. That he has not yet fled from
the Philippines cannot be taken to mean that he
will stand his ground and still be within reach of
While his extradition was pending, Respondent our government if and when it matters; that is,
Jimenez was elected as a member of the House of upon the resolution of the Petition for Extradition.
Representatives. On that basis, he claims that his
detention will disenfranchise his Manila district of In any event, it is settled that bail may be applied
600,000 residents. We are not persuaded. In for and granted by the trial court at anytime after
the applicant has been taken into custody and there exist a special, humanitarian or compelling
prior to judgment, even after bail has been circumstances. The grounds used by the highest Notes:
previously denied. In the present case, the court in the requesting state for the grant of bail
extradition court may continue hearing evidence therein may be considered, under the principle of
on the application for bail, which may be granted reciprocity as a special circumstance.
in accordance with the guidelines in this Decision.
In extradition cases, bail is not a matter of right;
Discuss the Ten Points in it is subject to judicial discretion in the context of
Extradition proceedings. the peculiar facts of each case.
1) The ultimate purpose of extradition 6) Potential extraditees are entitled to the

proceedings is to determine whether the request rights to due process and to fundamental
expressed in the petition, supported by its fairness. Due process does not always call for
annexes and the evidence that may be adduced a prior opportunity to be heard. A
during the hearing of the petition, complies with subsequent opportunity to be heard is
the Extradition Treaty and Law and whether the sufficient due process to the flight risk
person sought is extraditable. The proceedings involved. Indeed, available during the
are intended merely to assist the requesting state hearings on the petition and the answer is the
in bringing the accused -- or the fugitive who has full chance to be heard and to enjoy
illegally escaped -- back to its territory, so that fundamental fairness that is compatible with
the criminal process may proceed therein. the summary nature of extradition.
2) By entering into an extradition treaty, the 7) This Court will always remain a protector of
Philippines is deemed to have reposed its trust in human rights, a bastion of liberty, a bulwark
the reliability or soundness of the legal and of democracy and the conscience of society.
judicial system of its treaty partner, as well as in But it is also well aware of the limitations of
the ability and the willingness of the latter to its authority and of the need for respect for
grant basic rights to the accused in the pending the prerogatives of the other co-equal and
criminal case therein. co-independent organs of government.
3) By nature then, extradition proceedings are 8) We realize that extradition is essentially an

not equivalent to a criminal case in which guilt executive, not a judicial, responsibility
or innocence is determined. Consequently, an arising out of the presidential power to
extradition case is not one in which the conduct foreign relations and to implement
constitutional rights of the accused are treaties. Thus, the Executive Department of
necessarily available. It is more akin, if at all, to government has broad discretion in its duty
a court’s request to police authorities for the and power of implementation.
arrest of the accused who is at large or has
escaped detention or jumped bail. Having once 9) On the other hand, courts merely perform
escaped the jurisdiction of the requesting state, oversight functions and exercise review
the reasonable prima facie presumption is that authority to prevent the exercise of grave
the person would escape again if given the abuse and tyranny. They should not allow
opportunity. contortions, delays and “over-due process”
every little step of the way, lest these
4) Immediately upon receipt of the petition summary extradition proceedings become not
for extradition and its supporting documents, only inutile but also sources of international
the judge shall make a prima facie finding embarrassment due to our inability to comply
whether the petition is sufficient in form and in in good faith with a treaty partner’s simple
substance, whether it complies with the request to return a fugitive. Worse our
Extradition Treaty and the Law, and whether the country should not be converted into a
person sought is extraditable. The magistrate has dubious haven where fugitives and escapes
discretion to require the petitioner to submit can unreasonably delay, mummify, mock,
further documentation, or to personally examine frustrate, checkmate and defeat the quest
the affiants or witnesses. If convinced that a for bilateral justice and international
prima facie case exists, the judge immediately cooperation.
issues a warrant for the arrest of the potential
extraditee and summons him or her to answer and 10) At the bottom, extradition proceedings
to appear at scheduled hearing on the petition. should be conducted with all deliberate
speed to determine compliance with the
5) After being taken into custody, potential Extradition Treaty and the Law; and while
extraditees may apply for bail. Since the safeguarding basic individual rights, to avoid
applicants have a history of absconding, they have the legalistic contortions, delays and
the burden of showing that (a) their is no flight technicalities that may negate that purpose.
risk and no danger to the community; and (b)
upon an accused is a factor to consider in

CUEVAS V. MUŇOZ determining the likelihood that the accused will Notes:
G.R. No. 140520, 18 December 2000, Second abscond if allowed provisional liberty. It is, after
Division, De Leon, J. all, but human to fear a lengthy, if not a lifetime,
incarceration. Furthermore, it has also not
possessed of sufficient resources to facilitate an
JUAN ANTONIO MUÑOZ is charged with seven (7)
counts of accepting an advantage as an agent escape from this jurisdiction.
contrary to Section 9(1)(a) of the Prevention of
Bribery Ordinance of. Cap 201 of Hong Kong, and That respondent did not flee despite the
seven (7) counts of conspiracy to defraud, investigation conducted by the Central bank and
contrary to the common law of Hong Kong, for the NBI way back in 1994, nor when the warrant
each count of which, if found guilty, he may be for his arrest was issued by the Hong Kong ICAC in
punished with seven (7) and fourteen (14) years August 1997, is not a guarantee that he will no
imprisonment, respectively. The Hong Kong flee now that proceedings for his extradition are
Magistrate’s Court issued a warrant for his arrest. well on the way. Respondent is about to leave the
Thereafter, the Philippine DOJ received a request protective sanctuary of his mother state to face
for the provisional arrest of MUÑOZ pursuant to criminal charges in another jurisdiction. It cannot
the RP-Hong Kong Extradition Agreement. The be denied that this is sufficient impetus for him to
Philippine DOJ forwarded the request for flee the country as soon as the opportunity to do
provisional arrest to the NBI, which filed an so arises.
application for the provisional arrest of MUÑOZ Respondent also avers that his mother’s impending
with RTC of Manila for and in behalf of the death makes it impossible for him to leave the
government of Hong Kong. RTC granted the country. However, by respondent’s own admission,
application. However, CA declared the Order of his mother finally expired at the Cardinal Santos
Arrest null and void. Hospital in Madaluyong City last December 5,
1999.24
ISSUE: Whether Munoz should be provisionally
arrested The request for provisional arrest of respondent
and its accompanying document are valid despite
HELD: lack of authentication. There is no requirement
There was urgency for the provisional arrest of for the authentication of a request for provisional
arrest and its accompanying documents. The
the respondent. “Urgency" connotes such
conditions relating to the nature of the offense pertinent provision of the RP-Hong Kong
Extradition Agreement enumerates the documents
charged and the personality of the prospective
extraditee which would make him susceptible to that must accompany the request, as follows: (1)
an indication of the intention to request the
the inclination if he were to learn about the
impending request for his extradition and/or surrender of the person sought; (2) the text of a
warrant of arrest or judgement of conviction
likely to destroy the evidence pertinent to the
said request or his eventual prosecution and against that person; (3) a statement of penalty for
that offense; and (4) such further information as
without which the latter could not proceed. Such
conditions exist in Munoz’s case. would justify the issue of a warrant of arrest had
the offense been committed or the person
convicted within the jurisdiction of the requested
At the time the request for provisional arrest was party. That the enumeration does not specify that
made, respondent’s pending application for the these documents must be authenticated copies, is
discharge of a restraint order over certain assets not a mere omission of law. This may be gleaned
held in relation to the offenses with which he is from the fact that while Article 11(1) does not
being charged, was set to be heard by the Court require the accompanying documents of a request
of First Instance of Hong Kong on September 17, for provisional arrest to be authenticated, Article
1999. The Hong Kong DOJ was concerned that the 9 of the same Extradition Agreement makes
pending request for the extradition of the authentication a requisite for admission in
respondent would be disclosed to the latter during evidence of any document accompanying a
the said proceedings, and would motivate request for surrender or extradition. In other
respondent to flee the Philippines before the words, authentication is required for the request
request for extradition could be made. for surrender or extradition but not for the
request for provisional arrest.
There is also the fact that respondent is charged
with seven (7) counts of accepting an advantage the provisions of PD 1069 and the RP-Hong Kong
as an agent and seven (7) counts of conspiracy to Extradition Agreement, as they are worded, serve
defraud, for each count of which, if found guilty, the purpose sought to be achieved by treaty
he may be punished with seven (7) and fourteen stipulations for provisional arrest. The process of
(14) years imprisonment, respectively. preparing a formal request for extradition and its
Undoubtedly, the gravity of the imposable penalty accompanying documents, and transmitting them
through diplomatic channels, is not only time- the administrative stage to the execution stage
consuming but also leakage-prone. There is depending on factors that will come into play. In Notes:
naturally a great likelihood of flight by criminals sum, we rule that the temporary hold on private
who get an intimation of the pending request for respondent’s privilege of notice and hearing is a
their extradition. To solve this problem, speedier soft retrains on his right to due process which will
initial steps in the form of treaty stipulations for not deprive him of fundamental fairness should he
provisional arrest were formulated. Thus, it is an decide to resist the request for his extradition to
accepted practice for the requesting state to rush the United States. There is no denial of due
its request in the form of a telex or diplomatic process as long as fundamental fairness is assured
cable, the practically of the use of which in a party.
conceded. even our own Extradition Law (PD
1069) allows the transmission of a request for
provisional arrest via telegraph. In the advent of GOVERNMENT OF HONG KONG SPECIAL
modern technology, the telegraph or cable have ADMINISTRATIVE REGION V. JUDGE OLALIA, JR.
been conveniently replaced by the facsimile AND MUÑOZ,
machine. Therefore, the transmission by the Hong GR No. 153675, April 19, 2007
Kong DOJ of the request for respondent’s
provisional arrest and the accompanying Bail Can Be Granted to Potential Extraditee on
documents, namely, a copy of the warrant of Basis of Clear and Convincing Evidence
arrest against respondent, a summary of the facts
of the case against him, particulars of his birth
and address, a statement of the intention to In its petition, Hong Kong sought the nullification
request his provisional arrest and the reason of the Manila RTC’s December 20, 2001 Order
therefor, by fax machine, more than serves this allowing Muñoz to post bail, and April 10, 2002
purpose of expediency. Order denying the motion to vacate the said Order
filed by the Government of Hong Kong Special
Administrative Region, represented by the
In tilting the balance in favor of the interests of Philippine Department of Justice. Hong Kong
the State, the Court stresses that it is not ruling alleged that both Orders were issued by the judge
that the private respondent has no right to due with grave abuse of discretion amounting to lack
process at all throughout the length and breath of or excess of jurisdiction as there is no provision in
the extrajudicial proceedings. Procedural due the Constitution granting bail to a potential
process requires a determination of what process extraditee.
is due when it is due and the degree of what is
due. Stated otherwise, a prior determination
should be made as to whether procedural A potential extraditee may be granted bail on the
protections are at all due and when they are due, basis of clear and convincing evidence that the
which in turn depends on the extent to which an person is not a flight risk and will abide with all
individual will be condemned to suffer grievous the orders and processes of the extradition court.
loss,’ We have explained why an extraditee has
not right to notice and hearing during the Thus held the Supreme Court in dismissing the
evaluation stage of the extradition process. As petition of the Government of Hong Kong Special
aforesaid, P.D. 1069 xxx affords an extraditee Administrative Region to nullify two orders by a
sufficient opportunity to meet the evidence Manila Regional Trial Court (RTC) allowing a
against him once the petition is filed in court. The potential extraditee to post bail.
time for the extraditee to know the basis of the
request for his extradition is merely moved to the In a unanimous decision penned by Justice
filing in court of the formal petition for Angelina Sandoval-Gutierrez in Government of
extradition. The extradites right to know is Hong Kong v. Judge Olalia, Jr. and Muñoz (GR No.
momentarily withheld during the evaluation stage 153675), the Court also remanded to the Manila
of the extradition process to accommodate the RTC, Branch 8 to determine whether Juan Antonio
more compelling interest of the State to prevent Muñoz is entitled to bail on the basis of “clear and
escape of potential extradites which can be convincing evidence.” If Muñoz is not entitled to
precipitated by premature which can be such, the trial court should order the cancellation
precipitated by premature information of the of his bail bond and his immediate detention; and
basis of the request for his extradition. No Less thereafter, conduct the extradition proceedings
compelling at that stage of the extradition with dispatch.
proceedings is the need to be more deferential to
the judgement of a co-equal branch of the
Muñoz was charged before the Hong Kong Court
governments, the Executive, which has been
with three counts of the offense of “accepting an
endowed by our Constitution with greater power
advantage as agent,” in violation of sec. 9 (1) (a)
over matters involving our foreign relations.
of the Prevention of Bribery Ordinance, Cap. 201
Needless to state, this balance of interests is not
of Hong Kong. He also faces seven counts of the
a static but a moving balance which can be
adjusted as the extradition process moves from
offense of conspiracy to defraud, penalized by the trial to determine the guilt or innocence of
common law of Hong Kong. potential extraditee. Nor is it a full-blown civil Notes:
action, but one that is merely administrative in
Citing the various international treaties giving character. By Jay B. Rempillo (SC website)
recognition and protection to human rights, the
Court saw the need to reexamine its ruling in
Government of United States of America v. Judge The Right of Asylum
Purganan which limited the exercise of the right Every foreign State can be at least a provisional
to bail to criminal proceedings. asylum for any individual, who, being persecuted
in his home State, goes to another State. In the
It said that while our extradition law does not absence of any international treaty stipulating the
provide for the grant of bail to an extraditee, contrary, no state is, by international laws,
there is no provision prohibiting him or her from obliged to refuse admission into its territory to
filing a motion for bail, a right under the such a fugitive or in case he has been admitted,
Constitution. to expel him or deliver him up to the prosecuting
state.
“The time-honored principle of pacta sunt The right of asylum is not a right possessed by an
servanda demands that the Philippines honor its alien to demand that a state protect him and
obligations under the Extradition grant him asylum. At present, it is just a privilege
Treaty….However, it does not necessarily mean granted by a state to allow an alien escaping from
that in keeping with its treaty obligations, the the persecution of his country for political reasons
Philippines should diminish a potential to remain and to grant him asylum.
extraditee’s rights to life, liberty, and due
process. More so, where these rights are Q: Explain the right of asylum in international
guaranteed, not only by our Constitution, but also law. (Bar)
by international conventions, to which the A: The right of asylum is the competence of
Philippines is a party. We should not, therefore, every state inferred from its territorial supremacy
deprive an extraditee of his right to apply for bail, to allow a prosecuted alien to enter and to remain
provided that a certain standard for the grant is on its territory under its protection and thereby
satisfactorily met,” the Court said. grant asylum to him.
RP, being a signatory to the 1996 UN General Asylum and Refugees

Assembly which adopted the International A refugee is any person who is outside the country
Covenant on Civil and Political Rights, is “under of his nationality or the country of his former
obligation to make available to every person habitual residence because he has or had well
under detention such remedies which safeguard founded fear of persecution by reason of his race,
their fundamental right to liberty,” said the religion, nationality or political opinion and is
Court. The RP and Hong Kong signed in 1995 an unable or, because of such fear, is unwilling to
extradition treaty which became effective in avail himself of the protection of the government
1997. of the country of his nationality, or, if he has no
nationality, to return to the country of his former
The Court noted that Munoz had been detained habitual residence.
from September 23, 1999 to December 20, 2001,
or for over two years without having been 3 Essential Elements to be considered a
convicted of any crime. Refugee:
1) The person is outside the country of his
nationality, or in the case of stateless
“If bail can be granted in deportation cases, we
persons, outside the country of habitual
see no justification why it should not also be
residence;
allowed in extradition cases. Likewise,
2) The person lacks national protection;
considering that the Universal Declaration of
3) The person fears persecution in his own
Human Rights applies to deportation cases, there
country.
is no reason why it cannot be invoked in
extradition cases. After all, both are
The second element makes, a refugee a stateless
administrative proceeding where the innocence or
person. Because a refugee approximates a
guilt of the person detained is not in issue,” the
stateless person, he can be compared to a vessel
Court said.
on the open sea not sailing under the flag of any
state, or be called flotsam and res nullius.
It further said that even if a potential extradite is
a criminal, an extradition proceeding is not by its Only a person who is granted asylum by another
nature criminal, for it is not punishment for a state can apply for refugee status; thus the
crime, even though such punishment may follow refugee treaties imply the principle of asylum.
extradition. It added that “extradition is not a
Q: Sandoval’s Open Question No. 1 Statelessness

Is a refugee is included in the term stateless Statelessness is the condition or status of an Notes:
person or is it the other way around? individual who is born without any nationality or
who loses his nationality without retaining or
Suggested Answer: Analyze the elements before acquiring another.
one could be considered a refugee.
An example of the first case would be that of an
individual born in a state where only the jus
sanguinis is recognized to parents whose state
Non-Refoulment Principle observes only jus soli. The second case may be
Non-refoulment non-contracting state expel or illustrated by an individual who, after renouncing
return (refouler) a refugee, in any manner his original nationality in order to be naturalized
whatsoever, to the frontiers of territories where in another state, is subsequently denaturalized
his life or freedom would be threatened. (Article and thereafter denied repatriation by his former
33 of the Convention Relating to the Status of country.
Refugees)
The Principle of the non-refoulment was declared Q: Who are stateless persons under
to be a generally accepted principle by the International Law? (1995 Bar)
Convention relating to the status of stateless A: They are those who are not considered as
persons. national by any state under the operation of its
laws.
Nationality v. Citizenship
Nationality is the membership in a political Q: What are the consequences of statelessness?
community with all its concomitant rights and (1995 Bar)
obligations. It is the tie that binds an individual A: These are:
to his state, from which he can claim protection i. No state can intervene or
from the laws, which he is also obliged to follow. complain in behalf of the stateless
person for an international delinquency
Citizenship has a more exclusive meaning in that committed by another state in inflicting
it applies only to certain members of the state injury upon him;
accorded more privileges than the rest of the ii. He cannot be expelled by
people who owe it allegiance. Its significance is the state if he is lawfully in its territory
municipal and not international. except on grounds of national security or
public order;
Nationality is Important in Int’l Law iii. He cannot avail himself of
It is important because an individual can the protection and benefits of citizenship
ordinarily participate in international relations like securing for himself a passport or
only through the instrumentality of the state to visa and personal documents.
which he belongs, as when his government asserts
a claim on his behalf for injuries suffered by him Q: Victor Korchnoi, a stateless resident of
in foreign jurisdiction. This remedy would not be Switzerland, was the challenger to the world
available to a stateless person who will have no chess title held by Russian Anatoly Karpov.
state with international personality to intercede After 32 grueling games were played in Baguio
for him under the laws of nations. city, Karpov finally retained his title of a close 6
to 5 win. Korchnoi protested no-payment of his
Example, in the case of Holy See vs. Rosario, the prize money and alleged unfair treatment he
defendant in this case can invoke his rights received from the tournament organizers in the
against the Holy See not under the Municipal Law Philippines particularly in the 32nd crucial game,
but under International Law through his which he attributes as the main case of his
government, which will espouse his cause of defeat. May he press for his right to the prize
action in his behalf. If this happens, his concern money against the Philippine government
ceases to be a private one but becomes one for through the Swiss government? (1978 Bar)
the public, that is, for the state. A: No, Switzerland even if she so desires, cannot
espouse a diplomatic claim against the Philippines
DOCTRINE OF EFFECTIVE NATIONALITY in behalf of Victor Korchnoi. Nationality is the
Within a third state, a person having more than basis of the right of state to espouse such claim.
one nationality shall be treated as if he had only In this case, Korchnoi is not a Swiss national but a
one. Under the principle of effective nationality, stateless person.
the third state shall recognized conclusively in its
territory either the nationality of the country in Q: Is a stateless person entirely without right,
which he is habitually and principally present or protection or recourse under the Law of
the nationality of the country with which he Nations? Explain. (1995 Bar)
appears to be in fact most closely connected. A: No. Under the Convention in Relation to the
Status of Stateless Persons, the Contracting States
agree to accord the stateless persons within their

territories treatment at least as favorable as that Sources: Notes:
accorded their nationals with respect to; 1) International agreements – e.g. treaties
a) Freedom of religion; concluded between States
b) Access to the courts; 2) Customary international law – e.g. the
c) Rationing of products in doctrine of rebus sic stantibus
short supply;
d) Elementary education; A. THE LAW OF TREATIES
Treaty Defined
e) Public relief and assistance;
Q: What is a Treaty? Discuss.
f) Labor legislation; and Held: A treaty, as defined by the Vienna
g) Social Security Convention on the Law of Treaties, is “an
They also agree to accord them treatment not less international instrument concluded between
favorable than that accorded to aliens generally States in written form and governed by
in the same circumstances. The Convention also international law, whether embodied in a single
provides for the issuance of identity papers and instrument or in two or more related instruments,
travel documents to the stateless persons. and whatever its particular designation.” There
are many other terms used for a treaty or
Q: What measures, if any, has International Law international agreement, some of which are: act,
taken to prevent statelessness? (1995 Bar) protocol, agreement, compromis d' arbitrage,
A: In the Convention on the Conflict of concordat, convention, declaration, exchange of
Nationality Laws of 1930, the Contracting States notes, pact, statute, charter and modus vivendi.
agree to accord nationality to persons born in All writers, from Hugo Grotius onward, have
their territory who would otherwise be stateless. pointed out that the names or titles of
The convention on the Reduction of Statelessness international agreements included under the
of 1961 provides that if the law of the Contracting general term treaty have little or no significance.
States results in the loss of nationality, as a Certain terms are useful, but they furnish little
consequence of marriage or termination of more than mere description
marriage, such loss must be conditional upon
possession or acquisition of another nationality. Article 2(2) of the Vienna Convention provides
that “the provisions of paragraph 1 regarding the
use of terms in the present Convention are
without prejudice to the use of those terms, or to
The Law on International Obligations the meanings which may be given to them in the
internal law of the State.” (BAYAN [Bagong
Sources of International Obligations Alyansang Makabayan] v. Executive Secretary
The Law of Treaties Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000,
Treaty Defined En Banc [Buena])
2 Kinds of Treaties
Parties Protocol de Clôture
Requisites for Validity A final act, sometimes called protocol de cloture
Peremptory Norm is an instrument which records the winding up of
Process of Treaty Making the proceedings of a diplomatic conference and
Principle of Alternat usually includes a reproduction of the texts of
Subject Matters of Treaties treaties, conventions, recommendations and other
Subject Matters of Executive Agreements acts agreed upon and signed by the
Most Favored Nation Clause plenipotentiaries attending the conference. It is
Pacta Sunt Servanda not the treaty itself. It is rather a summary of
Rebus Sic Stantibus the proceedings of a protracted conference which
Effect of Territorial Changes may have taken place over several years.
Interpretation of Treaties
Termination of Treaties Q: What is a "protocol de cloture"? Will it
State Responsibility for Injury to Aliens require concurrence by the Senate?
Doctrine of State Responsibility Held: A final act, sometimes called protocol de
Conditions for Enforcement of Claim cloture, is an instrument which records the
1. nationality of the claim winding up of the proceedings of a diplomatic
2. exhaustion of local remedies conference and usually includes a reproduction of
3. waiver the texts of treaties, conventions,
4. unreasonable delay recommendations and other acts agreed upon and
5. improper behavior by the injured alien signed by the plenipotentiaries attending the
Methods of Pressing Claims conference. It is not the treaty itself. It is rather
Nature and Measure of Damages a summary of the proceedings of a protracted
conference which may have taken place over
¯°º°¯ several years. It will not require the concurrence
of the Senate. The documents contained therein a) When it limits itself; or

are deemed adopted without need for b) When it is limited by some other Notes:
ratification. (Tanada v. Angara, 272 SCRA 18, May international arrangements
2, 1997 [Panganiban]) respecting some matters.
Treaty as main instrument 2) Competence of particular organs

“The treaty is the main instrument with which the concluding the treaty
society of States is equipped for the purpose of Rule: The municipal law of the State
carrying out its multifarious transactions.” LORD concerned shall determine what organ
McNAIR may conclude a treaty. As a rule, it is
the Head of State who possesses the
Synonymous words treaty-making power to be concurred in
a) Convention by the legislative branch.
b) Pact
c) Protocol Exceptions:
d) Agreement a) When it is in estoppel
e) Arrangement b) When it has performed acts
f) Accord validating or curing the defects in
g) Final Act competence.
h) General Act c) When it has received benefits or has
i) Exchange of Notes exercised its rights under the subject
treaty without expressly reserving its
☀ The use of particular terminology has no legal non-liability or without interposing
significance in international law.  other valid reasons for receiving or
exercising it.
Matters usually dealt with by treaties:
a) lease of naval bases 3) Reality of Consent
b) the sale or cession of territory Rule: The plenipotentiaries of States or
c) the regulation of conduct of the State itself must possess the capacity
hostilities to consent which consent is given in a
d) the termination of war manner that is voluntary and free from
e) the formation of alliances fear, force, coercion, intimidation, or
f) the regulation of commercial corruption.
relations
g) the settling of claims Exceptions:
h) the establishment of international a) Ratification – waiving the right to
organizations withdraw from the treaty and
2 Kinds of Treaties declaring its consent thereon as
a) traites-lois – law making treaties valid.
b) traits-contrats – contract treaties b) Estoppel - exercising its rights and
respecting the obligations in the
1969 Convention on the Law of Treaties treaty notwithstanding knowledge of
Adopted by the Conference of the Law of Treaties facts that vitiate its consent and
(Vienna Convention). Entered into force on exercises them without protest.
January 27, 1960. c) Prescription – filing of protest after
the lapse of allowable period within
PARTIES which the same may be entertained.
Rule: Only States may enter into treaties or Thus, the State is deemed to have
international agreements. Agreements between ratified its consent.
State and individuals or entities other than States
DO NOT come within the category of treaties. Remedy: Where the consent of a party
has been given in error or induced
Exceptions: States may enter into treaties or through fraud on the part of the other
international agreements with: party, the treaty would be VOIDABLE.
a) International Organizations Thus, the erring State must as soon as
b) Belligerent States possible or within the time given in the
treaty, withdraw or correct its consent.
4 Essentials of Validity
1) Capacity of parties
Rule: Every State possesses capacity to Consent How Given
conclude treaties as an attribute of its a) through a signature
sovereignty. b) exchange of instruments
c) ratification
Exceptions: d) acceptance
e) approval or accession; or Usual Steps Taken

f) by other means so agreed. 1) Negotiation of parties Notes:
2) Signature of the agreed text
4) Legality of Object 3) Ratification or accession
Rule: Immorality, illegality or made by the treaty-making organs of States
impossibility of purpose or obligations concerned
makes a treaty null and void. e.g. a 4) Exchange or deposit of the
treaty by which a State agrees with instruments of ratification or accession.
another to appropriate a portion of the
high seas. At present, treaties are prepared and adopted by
means of international diplomatic conferences.
Exceptions: Also, a large number of multilateral conventions
a) If the immorality, illegality or have been adopted by international organizations
impossibility does not run counter to a such as the General Assemble of the UN.
universally recognized peremptory norm
of international law but only against a Principle of Alternat
remote and minor norm. According to this principle, the order of the
naming of the parties, and of the signatures of the
b) If it does not contravene or depart plenipotentiaries is varied so that each party is
from an absolute or imperative rule or named and its plenipotentiary signs first in the
prohibition of international law. e.g. jus coy of the instrument to be kept by it.
dispositivum.
★ However, with respect to treaties with many
PEREMPTORY NORM parties, the practice is usually to arrange the
A norm generally accepted by the international names alphabetically in English or in French.
community of States as a whole as a norm from
which no derogation is permitted and which can Significance of Signature
be modified only by a subsequent norm of general Rule: The act of signature has little legal
international law having the same character. e.g. significance except as a means of authenticating
jus cogens the text of the treaty. It is the act of ratification
that is required to make a treaty binding.
Q: Explain, using example, jus cogens in
international law. (1991 Bar) Exceptions:
A: Jus cogens is a peremptory norm of general a) the treaty provides that signature shall have
international law accepted and recognized by the such effect;
international community as a whole. e.g. the b) it is otherwise established that the
prohibition against the use of force in dealing negotiating States were agreed that
with States. signatures should have that effect; or
c) the intention of the State to give that effect
INCOMPATIBILITY v. INCONSISTENCY to the signature appears from the full powers
Inconsistency raises the problem of conflict of of its representative or was expressed during
obligations. Incompatibility, on the other hand, the negotiations.
raises the question of nullity. e.g. Art. 103 of the
UN Charter provides that in the event of conflict Ratification
between the obligations of the Members under the The act by which the provisions of a treaty are
UN Charter and their obligations under any formally confirmed and approved by a State. By
international agreement, their obligations under ratifying a treaty signed in its behalf, a State
the UN Charter shall prevail. expresses its willingness to be bound by the
provisions of such treaty.
Effect of Form on Validity
There is no rule that treaties should be in written ☀ State may ratify a treaty only when it is a
form. Oral treaties are NOT prohibited. However, signatory to it.
orally agreed treaties are a rarity.
☀ There is no moral duty on the part of the
Note: The Vienna Convention, however, defines a States to ratify a treaty notwithstanding that
“treaty” as “an international agreement its plenipotentiaries have signed the same.
concluded between States in written form and This step, however, should not be taken
governed by international law, whether embodied lightly.
in a singe instrument or in two or more related
instruments and whatever its particular ☀ A treaty may provide that it shall not be valid
designation (is).” even ratified but shall be valid only after the
exchange or deposit of ratification has
transpired.
PROCESS OF TREATY-MAKING
Q: What is ratification? Discuss its function in §21, A.VII, 1987 Phil. Constitution
the treaty-making process. No treaty or international agreement shall be Notes:
Held: Ratification is generally held to be an valid and effective unless concurred in by at least
executive act, undertaken by the head of state or 2/3 of ALL the Members of the Senate.
of the government, as the case may be, through
which the formal acceptance of the treaty is §20, A.VII, 1987 Phil. Constitution
proclaimed. A State may provide in its domestic The President may contract or guarantee foreign
legislation the process of ratification of a treaty. loans on behalf of the RP with the prior
The consent of the State to be bound by a treaty concurrence of the Monetary Board, and subject
is expressed by ratification when: (a) the treaty to such limitations as may be provided by law.
provides for such ratification, (b) it is otherwise The MB shall, within 30 days from the end of
established that the negotiating States agreed every quarter of the calendar year, submit to the
that ratification should be required, (c) the Congress a complete report of its decisions on
representative of the State has signed the treaty applications for loans to be contracted or
subject to ratification, or (d) the intention of the guaranteed by the Government or government-
State to sign the treaty subject to ratification owned and controlled corporations which would
appears from the full powers of its have the effect of increasing the foreign debt,
representative, or was expressed during the and containing other matters as may be provided
negotiation. (BAYAN [Bagong Alyansang by law.
Makabayan] v. Executive Secretary Ronaldo
Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc §4, A.XVIII, 1987 Phil. Constitution
[Buena]) All exiting treaties or international agreements
which have not been ratified shall not be renewed
Accession or Adherence or extended without the concurrence of at least
When a State, who has NOT SIGNED a treaty, 2/3 of ALL the Members of the Senate.
accedes to it.
§25, A.XVIII, 1987 Phil. Constitution
Binding Effects of a Treaty After the expiration in 1991 of the Agreement
As a rule, a treaty is binding only on the between the RP and the USA concerning the
contracting parties, including not only the original Military Bases, foreign military bases, troops, or
signatories but also other states, which, although facilities shall not be allowed in the Philippines
they may not have participated in the negotiation except under a treaty duly concurred in by the
of the agreement, have been allowed by its terms Senate and, when the Congress so requires,
to sign it later by a process known as accession. ratified by a majority of the votes cast by the
Non-parties are usually not bound under the people in a national referendum held for that
maxim of pacta tertiis nec noceat nec prosunt. purpose, and recognized as a treaty by the other
contracting State.
Q: Enumerate instances when a third State who
is non-signatory may be bound by a treaty. NOTE: This section prohibits, in the absence of a
A: treaty, the stationing of troops and facilities of
1. When a treaty is a mere formal foreign countries in the Philippines. However, it
expression of customary international law, DOES NOT INCLUDE the temporary presence in the
which, as such is enforceable on all civilized Philippines of foreign troops for the purpose of a
states because of their membership in the combined military exercise. Besides, the holding
family of nations. of combined military exercise is connected with
defense, which is a sovereign function.
2. Under Article 2 of its charter,
the UN shall ensure that non-member States Q: Discuss the binding effect of treaties and
act in accordance with the principles of the executive agreements in international law.
Charter so far as may be necessary for the Held: [I]n international law, there is no
maintenance of international peace and difference between treaties and executive
security. Under Article 103, obligations of agreements in their binding effect upon states
member-states shall prevail in case of concerned, as long as the functionaries have
conflict with any other international remained within their powers. International law
agreement including those concluded with continues to make no distinction between treaties
non-members. and executive agreements: they are equally
binding obligations upon nations. (BAYAN [Bagong
3. The treaty itself may expressly Alyansang Makabayan] v. Executive Secretary
extend its benefits to non-signatory states. Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000,
En Banc [Buena])
4. Parties to apparently unrelated
treaties may also be linked by the most- Q: Does the Philippines recognize the binding
favored nation clause. effect of executive agreements even without
the concurrence of the Senate or Congress?
Held: In our jurisdiction, we have recognized the b) Is the president bound to

binding effect of executive agreements even submit the agreement to the Senate for Notes:
without the concurrence of the Senate or ratification?
Congress. In Commissioner of Customs v. Eastern
Sea Trading (3 SCRA 351, 356-357 [1961]), we had A:
occasion to pronounce: a) The Senate plays a
role in the conduct of foreign affairs, because
“x x x the right of the Executive to enter into of the requirement in Section 21 Article VII of
binding agreements without the necessity of the Constitution that to be valid and
subsequent Congressional approval has been effective, a treaty or international agreement
confirmed by long usage. From the earliest days must be concurred in by at least 2/3 of all
of our history we have entered into executive members of the senate.
agreements covering such subjects as commercial b) No, the President
and consular relations, most-favored-nation is not bound to submit the agreement to the
rights, patent rights, trademark and copyright Senate for ratification. Under Section 20
protection, postal and navigation arrangements Article VII of the Constitution, only the prior
and the settlement of claims. The validity of concurrence of the Monetary Board is
these has never been seriously questioned by our required for the President to contract foreign
courts. " (BAYAN [Bagong Alyansang Makabayan] v. loans on behalf of the Republic of the
Executive Secretary Ronaldo Zamora, G.R. No. Philippines.
138570, Oct. 10, 2000, En Banc [Buena])
Q: In accordance with the opinion of the
Q: An Executive Agreement was executed Secretary of Justice, and believing that it would
between the Philippines and a neighboring be good for the country, the President enters
State. The Senate of the Philippines took it into an agreement with the Americans for an
upon itself to procure a certified true copy of extension for another five (5) years of their stay
the Executive Agreement and after deliberating at their military bases in the Philippines, in
on it, declared, by a unanimous vote, that the consideration of:
agreement was both unwise and against the a) A yearly rental of one billion US dollars,
best interest of the country. Is an Executive payable to Philippine government in
Agreement binding from the standpoints a) of advance;
Philippine law and b) of international law? b) An undertaking on the part of the
Explain. (2003 Bar) American government to implement
A: a) YES, from the standpoint of Philippine law, immediately the min-Marshall plan for the
the Executive Agreement is binding. According to country involving ten billion US dollars in
Commissioner of Customs v. Eastern Sea Trading, 3 aids and concessional loans, and
S 351 [1961], the President can enter into an c) An undertaking to help persuade
Executive Agreement WITHOUT the necessity of American banks to condone interests and
concurrence by the Senate. other charges on the country’s outstanding
loans.
b) YES, it is also binding from the standpoint of
international law. As held in Bayan V. Zamora, In return, the President agreed to allow
342 S 449 [2000], in international law executive American nuclear vessels to stay for short visits
agreements are equally binding as treaties uon at Subic, and in case of vital military need, to
the States who are parties to them. Additionally, store nuclear weapons at Subic and at Clark
under Article 2(1)(a) of the Vienna Convention on Field. A vital military need comes, under the
the Law of Treaties, whatever may be the agreement, when hostile military forces
designation of a written agreement between threaten the sea-lanes from the Persian Gulf to
States, whether it is indicated as a Treaty, the Pacific.
Convention or Executive Agreement is not legally
significant. Still it is considered a treaty and The Nuclear Free Philippines Coalition comes to
governed by the international law of treaties. you for advice on how they could legally
prevent the same agreement entered into by
Q: The President authorized the Secretary of the President with the US government from
Public Works and Highways to negotiate and sign going into effect. What would you advice them
a loan agreement with the German Government to do? Give your reasons. (Bar)
for the construction of a dam. The Senate, by a A: If the agreement is not in the form of treaty, it
resolution, asked that the agreement be is not likely to be submitted to the Senate for
submitted to it for ratification. The Secretary ratification as required in Article VII, Section 21.
of Public Works and Highways did not comply It may not, therefore, be opposed in that branch
with the request of the Senate. (1994 Bar) of the government. Nor a judicial review is
a) Under the Constitution, feasible at this stage because there is no
what is the role of the Senate in the justiciable controversy. While Article VIII, Section
conduct of foreign affairs? 1, paragraph 2 states that judicial power includes
the duty of courts of justice to “determine Q: Senate Bill No. 1234 was passed creating a
whether or not there has been a grave abuse of joint legislative-executive commission to give Notes:
discretion amounting to lack or excess of on behalf of the Senate, its advice, consent and
jurisdiction on the part of any branch or concurrence to treaties entered into by the
instrumentality of the government,” it is clear President. The bill contains the guidelines to
that this provision does not do away with the be followed by the commission in the discharge
political question doctrine. It was inserted in the of its functions. Is the bill constitutional? (1996
Constitution to prevent courts from making use of Bar)
the doctrine to avoid what otherwise are A: NO, the bill is not constitutional. The Senate
justiciable controversies, albeit involving the cannot delegate its power to concur to treaties
Executive Branch of the government during the ratified by the President.
martial law period. On the other hand, at this
stage, no justiciable controversy can be framed to Q: Can the House of Representatives take active
justify judicial review. I would therefore advice part in the conduct of foreign relations,
the Nuclear Free Philippines Coalition to resort to particularly in entering into treaties and
the media to launch a campaign against international agreements? (1996 Bar)
Agreement A: NO. As held in US v. Curtiss Wright Export
Corporation 299 US 304, it is the President alone
Subject Matter of Treaties who can act as representative of the nation in the
1) Political Issues conduct of foreign affairs. Although the Senate
2) Changes in National Policies has the power to concur in treaties, the President
3) Involve International Agreements of a alone can negotiate treaties and Congress is
Permanent Character powerless to intrude into this. However, if the
matter involves a treaty or an executive
Subject Matter of EAs agreement, the HR may pass a resolution
1) Have transitory effectivity expressing its views on the matter.
2) Adjustment of details carrying out well-
established national policies and traditions Reservations
3) Arrangements of temporary nature A unilateral statement, however phrased or
4) Implementation of treaties, statutes, well named, made by a State, when signing, ratifying,
established policies. accepting, approving, or acceding to a treaty,
whereby it purports to exclude or modify the legal
Q: How does a treaty differ from executive effect of certain provisions of the treaty in their
agreement? application to that State.
A: An executive agreement is not a treaty in so
far as its ratification may not be required under When Reservation cannot be made
the Constitution. However, the distinction is a) If the treaty itself provides that NO
purely municipal and has no international reservation shall be admissible, or
significance. From the standpoint of international b) the treaty allows only specified reservations
law, “treaties and executive agreement are alike which do not include the reservation in
in that both constitute equally binding obligations question, or
upon the nations.” (FB Sayre, 39 Columbia Law c) the reservation is incompatible with the
Review, p. 75, 1939) object and purpose of the treaty.
Form and Time of Reservation
An executive agreement is NOT a treaty. As such, Written statement or declaration recorded at the
concurrence by two-thirds vote (2/3) of all the time of signing or ratifying or acceding to the
members of the Senate is not necessary for it to treaty.
become binding and effective.
Objected Reservations
Q: Is VFA a treaty or a mere executive Parties to the treaty may object to the
agreement? reservations of a State entering the treaty. A 1951
A: In the case of Bayan vs. Zamora, VFA was Advisory Opinion of the ICJ held that a reserving
considered a treaty because the Senate concurred State may be a party to a treaty notwithstanding
in via 2/3 votes of all its members. But in the that one or more parties to the convention, but
point of view of the US Government, it is merely not all, objects to its reservations and such
an executive agreement. reservations are not contrary to the object and
purpose of said convention.
Q: What is the implication if only the senate of REGISTRATION & PUBLICATION
the Philippines concur but not the senate of Article 102, UN Charter
USA? 1. Every treaty and every international agreement
A: None, it is only a matter of policy and the same entered into by any Member of the UN after the
is governed by their respective Municipal Law. present Charter comes into force shall as soon as
possible be registered with the Secretariat and
published by it.
those of the most favored nation (Commissioner

2. No party to any such treaty or international of Internal Revenue v. S.C. Johnson and Son, Inc., Notes:
agreement which has not been registered in 309 SCRA 87, 107-108, June 25, 1999, 3rd Div.
accordance with the provisions of para.1 of this [Gonzaga-Reyes])
Article may invoke that treaty or agreement
before any organ of the UN. Q: Explain the meaning of the concept of “most
favored nation” treatment? (1997 Bar)
★ The treaty, however, remains valid although A: The most favored nation treatment is that
not registered and not published in the UN. granted by one country to another not less
favorable than that which has been or may be
Entry into Force granted to the most favored among other
Means the date of effectivity of a treaty as countries. It usually applies to commercial
provided in the stipulations of the parties. In the transactions such as international trade and
absence of such stipulation, it is deemed in force investments.
as soon as the consent of ALL the parties are
established. Q: What is the essence of the principle behind
the "most-favored-nation" clause as applied to
Q: Are Treaties Self-Executing? tax treaties?
A: Qualified answer. In international law, it self- Held: The essence of the principle is to allow the
executes from the time of its entry into force. taxpayer in one state to avail of more liberal
However, there is NO absolute rule that treaties provisions granted in another tax treaty to which
are self-executing within the sphere of municipal the country of residence of such taxpayer is also a
law. Some municipal laws require further steps party provided that the subject matter of taxation
such as publication and promulgation before it x x x is the same as that in the tax treaty under
can produce legal effect. which the taxpayer is liable.
★ Nevertheless, in the Philippines, treaties are In Commissioner of Internal Revenue v. S.C.

part of the law of the land. INCORPORATION Johnson and Son, Inc., 309 SCRA 87, June 25,
CLAUSE. 1999, the SC did not grant the claim filed by S.C.
Johnson and Son, Inc., a non-resident foreign
MOST-FAVORED-NATION CLAUSE corporation based in the USA, with the BIR for
Q: What is the “most-favored-nation” clause? refund of overpaid withholding tax on royalties
What is its purpose? pursuant to the most-favored-nation clause of the
A: 1. The most-favored-nation clause may be RP-US Tax Treaty in relation to the RP-West
defined, in general, as a pledge by a contracting Germany Tax Treaty. It held:
party to a treaty to grant to the other party
treatment not less favorable than that which has Given the purpose underlying tax treaties and the
been or may be granted to the “most favored” rationale for the most favored nation clause, the
among other countries. The clause has been concessional tax rate of 10 percent provided for in
commonly included in treaties of commercial the RP-Germany Tax Treaty should apply only if
nature. the taxes imposed upon royalties in the RP-US Tax
Treaty and in the RP-Germany Tax Treaty are paid
There are generally two types of most-favored- under similar circumstances. This would mean
nation clause, namely, conditional and that private respondent (S.C. Johnson and Son,
unconditional. According to the clause in its Inc.) must prove that the RP-US Tax Treaty grants
unconditional form, any advantage of whatever similar tax reliefs to residents of the United
kind which has been or may in future be granted States in respect of the taxes imposable upon
by either of the contracting parties to a third royalties earned from sources within the
State shall simultaneously and unconditionally be Philippines as those allowed to their German
extended to the other under the same or counterparts under the RP-Germany Tax Treaty.
equivalent conditions as those under which it has
been granted to the third State. (Salonga & Yap, The RP-US and the RP-West Germany Tax Treaties
Public International Law, 5th Edition, 1992, pp. do not contain similar provisions on tax crediting.
141-142) Article 24 of the RP-Germany Tax Treaty x x x
expressly allows crediting against German income
2. The purpose of a most favored nation clause is and corporation tax of 20% of the gross amount of
to grant to the contracting party treatment not royalties paid under the law of the Philippines.
less favorable than that which has been or may be On the other hand, Article 23 of the RP-US Tax
granted to the "most favored" among other Treaty, which is the counterpart provision with
countries. The most favored nation clause is respect to relief for double taxation, does not
intended to establish the principle of equality of provide for similar crediting of 20% of the gross
international treatment by providing that the amount of royalties paid. X x x
citizens or subjects of the contracting nations may
enjoy the privileges accorded by either party to
X x x The entitlement of the 10% rate by U.S. necessity to state this rule of reparation
firms despite the absence of matching credit in the treaty itself because they are Notes:
(20% for royalties) would derogate from the design indispensable complement of failure to
behind the most favored nation clause to grant comply to one’s obligations.
equality of international treatment since the tax
burden laid upon the income of the investor is not TAÑADA V. ANGARA (1997)
the same in the two countries. The similarity in
the circumstances of payment of taxes is a One of the oldest and most fundamental rules in
condition for the enjoyment of most favored international law is pacta sunt servanda -
nation treatment precisely to underscore the need international agreements must be performed in
for equality of treatment. good faith. "A treaty engagement is not a mere
moral obligation but creates a legally binding
2 Types obligation on the parties x x x. A state which has
a) Unconditional – any advantage of whatever kind contracted valid international obligations is bound
which has been or may in future be granted by to make in its legislations such modifications as
either of the contracting parties to a third State may be necessary to ensure the fulfillment of the
shall simultaneously and unconditionally be obligations undertaken."
extended to the other under the same or
equivalent conditions as those under which it has
been granted to the third State. SEC. OF JUSTICE V. LANTION (2000)
b) Conditional – advantages are specified and The rule of pacta sunt servanda, one of the oldest
limited not universal. and most fundamental maxims of international
law, requires the parties to a treaty to keep their
CIR V. JOHNSON & SON, INC. (1999) agreement therein in good faith. The observance
of our country's legal duties under a treaty is also
compelled by Section 2, Article II of the
The purpose of a most favored nation clause is to
grant to the contracting party treatment not less Constitution which provides that "[t]he Philippines
renounces war as an instrument of national policy,
favorable than that which has been or may be
granted to the "most favored" among other adopts the generally accepted principles of
international law as part of the law of the land,
countries. The most favored nation clause is
intended to establish the principle of equality of and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all
international treatment by providing that the
citizens or subjects of the contracting nations may nations." Under the doctrine of incorporation,
rules of international law form part of the law of
enjoy the privileges accorded by either party to
those of the most favored nation. the land and no further legislative action is
needed to make such rules applicable in the
domestic sphere (citing Salonga & Yap, Public
PACTA SUNT SERVANDA (PSS) International Law, 1992 ed., p. 12).
(AGREEMENT MUST BE KEPT)
Means that treaties must be performed in good
faith. One of the oldest and most fundamental CIR V. ROBERTSON (1986)
rules of international law.
"The obligation to fulfill in good faith a treaty
Q: Explain the “pacta sunt servanda” rule. engagement requires that the stipulations be
Held: One of the oldest and most fundamental observed in their spirit as well as according to
rules in international law is pacta sunt servanda – their letter and that what has been promised be
international agreements must be performed in performed without evasion, or subterfuge,
good faith. “A treaty engagement is not a mere honestly and to the best of the ability of the party
moral obligation but creates a legally binding which made the promise." (citing Kunz, The
obligation on the parties x x x. A state which has Meaning and Range of the Norm (Pacta Sunt
contracted valid international obligations is bound Servanda, 29 A.J.I.L. 180 (1945); cited in
to make in its legislations such modifications as Freidmann, Lisstzyn, Pugh, International Law
may be necessary to ensure the fulfillment of the (1969) 329). Somehow, the ruling becomes an
obligations undertaken.” (Tanada v. Angara, 272 anacoluthon and a persiflage.
SCRA 18, May 2, 1997 [Panganiban])
AGUSTIN V. EDU (1979)
Influences to ensure observance to PSS
a) national self-interest
b) a sense of duty t is not for this country to repudiate a
c) respect for promises solemnly given commitment to which it had pledged its word.
d) desire to avoid the obloquy attached The concept of pacta sunt servanda stands in the
to breach of contracts way of such an attitude, which is, moreover, at
▪ Breach involves the obligation to make war with the principle of international morality.
reparations. There is, however, no
REBUS SIC STANTIBUS (RSS) c) the change has radically transformed the
(THINGS REMAINING AS THEY ARE) extent of the obligations still to be performed Notes:
This doctrine involves the legal effect of change under the treaty.
in conditions underlying the purposes of a treaty.
Simply stated, the disappearance of the
foundation upon which it rests. When FC cannot be invoked
a) if the treaty establishes a boundary
Authors, jurists, and tribunals are varied in the b) if the FC is the result of the breach by the
application of this doctrine. A majority, however, party invoking it of an obligation owed to any
hold that “the obligation of a treaty terminates other party to the treaty.
when a change occurs in circumstances which
existed at the time of the conclusion of the treaty SANTOS V. NORTHWEST AIRLINES (1992)
and whose continuance formed, according to the
intention or will of the parties, a condition of the Obviously, rejection of the treaty, whether on the
continuing validity of the treaty.” The change ground of rebus sic stantibus or pursuant to
must be vital or fundamental. Also, under this Article 39, is NOT a function of the courts but of
doctrine, a treaty terminates if the performance the other branches of government. This is a
of obligations thereof will injure fundamental political act. The conclusion and renunciation of
rights or interests of any one of the parties. treaties is the prerogative of the political
departments and may not be usurped by the
Explain the "rebus sic stantibus" rule (i.e., judiciary. The courts are concerned only with the
things remaining as they are). Does it operate interpretation and application of laws and treaties
automatically to render a treaty inoperative? in force and not with their wisdom or efficacy.
Held: According to Jessup, the doctrine
constitutes an attempt to formulate a legal
principle which would justify non-performance of
a treaty obligation if the conditions with relation
to which the parties contracted have changed so PNCC V. CA (1997)
materially and so unexpectedly as to create a
situation in which the exaction of performance The principle of rebus sic stantibus neither fits in
would be unreasonable. The key element of this with the facts of the case. Under this theory, the
doctrine is the vital change in the condition of the parties stipulate in the light of certain prevailing
contracting parties that they could not have conditions, and once these conditions cease to
foreseen at the time the treaty was concluded. exist, the contract also ceases to exist. This
theory is said to be the basis of Article 1267 of the
The doctrine of rebus sic stantibus does not Civil Code, which provides:
operate automatically to render the treaty
inoperative. There is a necessity for a formal act
“ART. 1267. When the service has become so
of rejection, usually made by the head of state, difficult as to be manifestly beyond the
with a statement of the reasons why compliance
contemplation of the parties, the obligor may also
with the treaty is no longer required. (Santos III be released therefrom, in whole or in part.”
v. Northwest Orient Airlines, 210 SCRA 256, June
23, 1992)
This article, which enunciates the doctrine of
Limitations to RSS unforeseen events, is NOT, however, an absolute
a) It applies only to treaties of indefinite application of the principle of rebus sic stantibus,
duration; which would endanger the security of contractual
b) The vital change must have been unforeseen relations. The parties to the contract must be
or unforeseeable and should have not been presumed to have assumed the risks of
caused by the party invoking the doctrine. unfavorable developments. It is therefore only in
c) It must be invoked within reasonable time; absolutely exceptional changes of circumstances
and that equity demands assistance for the debtor
d) It cannot operate retroactively upon the
provisions of a treaty already executed prior EFFECT OF TERRITORIAL CHANGES
to the change in circumstances. (1978 CONVENTION ON SUCCESSION OF STATES IN
RESPECT TO TREATIES)
Rules Governing Termination of RSS
a) a fundamental change (FC) must have Dispositive Treaties
occurred with respect to circumstances These are treaties which deal with rights over
existing at the time of the conclusion of the territory and are deemed to run with the land and
treaty; are not affected by changes of sovereignty. e.g.
b) the existence of those circumstances treaties dealing with boundaries between States.
constituted the basis of the consent of the
parties to be bound by the treaty; and
▪ When an existing State acquires a territory, it TERMINATION OF TREATIES

does not succeed to the predecessor State’s Most Common Causes: Notes:
treaties, but its own treaties becomes applicable a) Termination of the treaty or withdrawal of a
to the newly acquired territory. party in accordance with the terms of the
treaty;
New States Formed Through Decolonization b) In bipartite treaties, the extinction of one of
a) a new State is under NO obligation to succeed the parties terminates the treaty. Moreover,
to the old State as a party to a multilateral when the rights and obligations under the
treaty, but if it wants to do so, it has to treaty would not devolve upon the State that
notify the depository that it regards itself as may succeed to the extinct State.
a succeeding party to the treaty. c) Mutual agreement of ALL the parties;
b) a new State can be a party to an existing d) Denunciation of the treaty by one of the
treaty between the predecessor State and parties. RIGHT OF DENUNCIATION – the right
another State only if the other State and the to give notice of termination or withdrawal
new State both agree. Such, however, may which must be exercised if provided for in the
be implied from the conduct of both States. treaty itself or impliedly;
e) Supervening impossibility of performance;
New States Formed Through Secession or f) Conclusion of a subsequent inconsistent
Disintegration treaty between the same parties;
Succeeds AUTOMATICALLY to most of the g) Violation of the treaty;
predecessor’s treaties applicable to the territory h) Doctrine of RSS;
that has seceded or disintegrated. i) War between the parties – war does not
abrogate ipso facto all treaties between the
☀ “Clean Slate” Doctrine – Under this doctrine, belligerents.
seceding or disintegrating States DOES NOT j) Severance of diplomatic or consular
make succession to an existing treaty relations;
automatic. k) Emergence of a new peremptory norm
contrary to the existing treaty.
Interpretation of Treaties l) Voidance of the treaty because of defects in
A treaty shall be interpreted in good faith in its conclusion or incompatibility with
accordance with the ordinary meaning to be given international law or the UN Charter.
to the terms of the treaty in their context and in
the light of its object and purpose. There are, B. STATE RESPONSIBILITY FOR INJURY TO ALIENS
however, NO TECHNICAL RULES. Rule: NO State is under obligation to admit aliens.
This flows from sovereignty.
CANONS OF INTERPRETATION Exception: If there is a treaty stipulation
Generally regarded by publicists as applicable to imposing that duty.
treaties consist largely of the application of
principles of logic, equity and common sense to ★ State may subject admission of aliens to
the text for the purpose of discovering its certain legal conditions. e.g. quota system
meaning.
★ State may expel aliens within its territory.
TRAVAUX PREPARATOIRES Expulsion may be predicated on the ground
Preparatory works as a method of historical that the presence of the alien in the territory
interpretation of a treaty. These works are will menace the security of the State.
examined for the purpose of ascertaining the
intention of the parties. ★ This is subject to the “Non-Refoulement
Principle.”
★ The interpretation of one State, even
according to its municipal laws and given by Reconduction
its authorized organs within the State, is NOT It means the forcible conveying of aliens. As a
BINDING to the other party unless the latter State cannot refuse to receive such of its subjects
accepts it. as are expelled from abroad, the home State of
such aliens as are reconducted has the obligation
★ No interpretation is needed when the text is to receive them.
clear and unambiguous.
Position of Aliens After Reception
★ A treaty may be authoritatively interpreted: When aliens are received, they are subject to the
a) by interpretation given by the treaty municipal laws of the receiving State.
itself a) Transient -
b) by mutual agreement or b) Domiciled/Residents – domicile creates a
c) through international court sort of qualified or temporary allegiance.
arbitration Subjected to restrictions not usually
imposed against transient aliens.
This term has been restrictively construed as an

★ Limitations - aliens’ rights are not at par injury committed by a court of justice. There is Notes:
with citizens’ as regards political or civil denial of justice when there is:
rights. a) unwarranted delay,
obstruction or denial of access of
★ Bases of Grant of Rights courts;
a) Principle of Reciprocity b) gross deficiency in the
b) MFN treatment administration of judicial or
c) Nationality treatment – equality between remedial process;
nationals and aliens in certain matters. c) failure to provide those
d) 1948 UDHR and other treaties guarantees usually considered
indispensable to the proper
DOCTRINE OF STATE RESPONSIBILITY administration of justice; or
A State is under obligation to make reparation to d) a manifestly unjust
another State for the failure to fulfill its primary judgment.
obligation to afford, in accordance with
international law, the proper protection due to an Why is there no denial of justice unless
alien who is a national of the latter State. misconduct is extremely gross? – The reason is
that the independence of the courts is an
Rule: A State is responsible for the maintenance accepted canon of democratic government, and
of law and order within its territory. the law does not lightly hold a State responsible
Exception: If the injury is not directly for error committed by the courts.
attributable to the receiving State and when it
was proximately caused by the alien himself. Minimum International Standard (MIS)
NO PRECISE DEFINITION
★ When acts of violence occur therein, it may The treatment of an alien, in order to constitute
be said that the State is indirectly an international delinquency, should amount to an
responsible; on the other hand, the State outrage, to bad faith, to willful neglect of duty or
cannot be regarded as an absolute insurer of to an insufficiency of governmental action so far
the morality and behavior of all persons short of international standards that every
within its jurisdiction. reasonable and impartial man would readily
recognize its insufficiency. NEER’S CASE, US-
Q: Is the State liable for death and injury to MEXICAN CLAIMS COMMISSION
aliens?
A: NO, unless it participates directly or is remiss Expropriation of Foreign-Owned Property
or negligent in taking measures to prevent injury, Western countries maintain that MIS requires:
investigate the case, punish the guilty, or to a) expropriation must be for a public
enable the victim or his heirs to pursue civil purpose;
remedies. b) it must be accompanied by payment of
compensation for the full value of the
property that is prompt, adequate and
effective.
Function
To provide, in the general world interest, ★ Communist countries, however, maintain that
adequate protection for the stranger, to the end States may expropriate the means of
that travel, trade and intercourse may be production, distribution and exchange
facilitated. without paying compensation.
Essential Elements: ★ Developing countries, hoping to attract

1) an act or omission in violation of foreign investments, are inclined to accept
international law Western view.
2) which is imputable to the State
3) which results in injury to the claimant CONDITIONS FOR ENFORCEMENT OF CLAIMS
either directly or indirectly through 1) nationality claim
damage to a national. 2) exhaustion of local remedies
3) no waiver
Acts or Omissions Imputable to the State 4) no reasonable delay in filing the claim
It is necessary to distinguish acts of private 5) no improper behavior by injured alien
individuals and those of government officials and
organs. Nationality of claim
In asserting the claims of its nationals, by
Denial of Justice resorting to diplomatic actions on his behalf, the
State is in reality asserting its own right. It is the
bond of nationality between the state and the
individual which confers upon the State the right Israel from the anti-Semitic atmosphere in the
of diplomatic protection. region, refugees fleeing to Israel in avoidance of Notes:
the Darfur conflict were jailed in the interest of
Doctrine of Genuine Link national security. After some 200 were
The bond of nationality must be real and effective determined to not be a threat, usual repatriation
in order that a State may claim a person as its guidelines could not be followed in part due to
national for the purpose of affording him non-refoulement principles. Many of them were
diplomatic protection. NOTTEBOHN CASE 1955 released to Israeli collective farms called
ICJ * kibbutzim and moshavim to work until the
conflict subsides enough for their return. (Source:
Doctrine of Effective Nationality Wikipedia)
When a person who has more than one nationality
is within a third State, he shall be treated as if
had only one – either the nationality of the FRIVALDO v. COMELEC
country which he is habitually and principally a 174 SCRA 245, 23 June 1989
resident or the nationality of the country with
which in the circumstances he appears to be most
closely connected – without prejudice to the The Nottobohm Case is not relevant in the
petition before us because it dealt with a conflict
application of its (3rd State’s) law in matters of
personal status and of any convention in force. between the nationality laws of two states as
decided by a third State. No third State is
ART. 5, HAGUE CONVENTION OF 1903. *
involved in the case at bar, in fact, even the US is
not claiming Frivaldo as its national. The sole
☀ These two doctrines are used
interchangeably by authors and question presented to us is WON Frivaldo is a
citizen of the Philipines under our own laws,
commentators without any effort to
make a distinction between the two. It regardless of other nationality laws. We can
decide this question alone as sovereign of our own
may be treated alike.
territory, conformable the Sec. 1 of the Hague
Convention (1903) which provides: “it is for each
Q: What is the “doctrine of effective
nationality” (genuine link doctrine)? State to determine under its laws who are its
nationals.”
Held: This principle is expressed in Article 5 of
the Hague Convention of 1930 on the Conflict of
Nationality Laws as follows: 3 Modes of Acquiring Nationality
1) Birth
Art. 5. Within a third State a person having more a. jus sanguinis (by blood)
than one nationality shall be treated as if he had b. jus soli (by place)
only one. Without prejudice to the application of
its law in matters of personal status and of any 2) Naturalization
convention in force, a third State shall, of the a. naturalization proceedings
nationalities which any such person possesses, b. marriage
recognize exclusively in its territory either the c. legitimation
nationality of the country in which he is habitually d. option
and principally resident or the nationality of the e. acquisition of domicile
country with which in the circumstances he f. appointment as
appears to be in fact most closely connected. government official
(Frivaldo v. COMELEC, 174 SCRA 245, June 23,
1989) 3) Resumption or Repatriation – recovery of
the original nationality upon fulfillment
Non-Refoulement Principle of certain conditions.
Non-refoulement is a principle in international
law, specifically refugee law, that concerns the 5 Modes of Losing Nationality
protection of refugees from being returned to 1) Release
places where their lives or freedoms could be 2) Deprivation
threatened. Unlike political asylum, which applies 3) Expiration
to those who can prove a well-grounded fear of 4) Renunciation
persecution based on membership in a social 5) Substitution
group or class of persons, non-refoulement refers
to the generic repatriation of people, generally §1, AIV, 1987 Phil. Constitution
refugees into war zones and other disaster areas. The following are citizens of the Philippines:
1) Those who are citizens of the Philippines at
An example of the non-refoulement principle can the time of the adoption of the Constitution;
be found in the 2007 issue of Israel jailing 320 2) Those whose fathers or mothers are citizens
refugees from the Darfur conflict in Western of the Philippines;
Sudan. Due to laws erected for the protection of
3) Those who elect Philippine citizenship of the laws passed by the state or to the manner
pursuant to the provisions of the Constitution in which such laws are administered and Notes:
of 1935; enforced.
4) Those who are naturalized in accordance with
law. For example, a law imposing death penalty for a
petty theft would fall short of the international
Exhaustion of Local Remedies standard. So to would one calling for the arbitrary
Rule: The alien himself must have first exhausted punishment of accused persons without
the remedies provided by the municipal law, if compliance with the usual requisites of due
there be any. process.
Exceptions: Nature and Measure of Damages

a) When the injury is inflicted directly Reparation may consist of restitution:
by the State such as when its diplomats are a) in kind
attacked. b) specific performance
b) When there are no remedies to c) apology
exhaust; d) punishment of the guilty
c) The application for remedies would e) pecuniary compensation
result in no redress. f) or the combination of the above
No waiver Measure – estimate of the loss caused to the

The claim belongs to the State and not to the injured individual, or, if he has lost his life, on the
individual. Thus, waiver of individual does not loss caused by the death to his dependents.
preclude the State to pursue the claim.
Q: What is the principle of attribution? (1992
CALVO CLAUSE Bar)
Named after an Argentinean lawyer and A: The acts of private citizens or groups cannot
statesman who invented it stipulating that themselves constitute a violation by the
the alien agrees in advance not to seek Philippines if said acts cannot be legally
diplomatic intervention. attributed to the Philippines as a State.
☀ disregarded by international arbitral Q: In a raid conducted by rebels in a Cambodian

tribunals because the alien cannot waive town, an American businessman who has been a
a claim that does not belong to him but long-time resident of the place was caught by
to his government. the rebels and robbed of his cash and other
valuable personal belongings. Within minutes
two truckloads of government troops arrived
Q: Is the Calvo clause lawful? prompting the rebels to withdraw. Government
A: Insofar as it requires alien to exhaust the troopers immediately launched pursuit
remedies available in the local state, it may operations and killed several rebels. No cash or
be enforced as a lawful stipulation. However, other valuable property taken from the
it may not be interpreted to deprive the American businessman was recovered.
alien’s state of the right to protect or
vindicate his interests in case they are In an action for indemnity filed by the US
injured by local state. Government in behalf of the businessman for
injuries and losses in cash and property, the
No improper behavior by injured alien. Cambodian Government contended that under
He who comes to court for redress must come International Law it was not responsible for acts
with clean hands. of the rebels.
Methods of Pressing Claims 1. Is the contention of the Cambodian

1) Diplomatic Intervention Government correct? Explain.
2) International judicial settlement – The ICJ is 2. Suppose the rebellion is successful and a new
authorized to assume jurisdiction to determine government gained control of the entire State,
“the nature or extent of the reparation to be replacing the lawful Government that was
made for the breach of an international toppled, may the new government be held
obligation,” but only after the State-parties agree responsible for the injuries or losses suffered by
thereto. the American businessman? Explain. (1995 Bar)
A: 1. YES. Unless it clearly appears that the
What is the International standard of justice? Cambodian government has failed to use promptly
It is defined as the standard of the reasonable and with appropriate force its constituted
state and calls for compliance with the ordinary authority, it can not be held responsible for the
norms of official conduct observed in civilized acts of the rebels for the rebels are not their
jurisdictions. It may refer to the intrinsic validity agents and their acts were done without its
volition. In this case, the government troopers iv. the nature or extent of the reparation to
immediately pursued the rebels and killed several be made for the breach of an Notes:
of them. international obligation.
2. YES. Victorious rebel movements are
responsible for the illegal acts of their forces n Dispute v. Situation
the course of the rebellion. The acts of the rebels A dispute can properly be considered as a
are imputable to them when they assume as duly disagreement on a matter at issue between two
constituted authorities of the State. or more States which has reached a stage at
which the parties have formulated claims and
counterclaims sufficiently definite to be passed
Pacific Settlement of International Disputes upon by a court or other body set up for the
purpose of pacific settlement. A situation, by
Nature contrast, is a state of affairs which has not yet
International Dispute Defined assumed the nature of conflict between the
Optional Clause parties but which may, though not necessarily,
Types come to have that character.
1. Negotiation
2. Good Offices Optional Clause
3. Mediation [OPTIONAL JURISDICTION CLAUSE]
4. Enquiry The following are deemed legal disputes:
5. Conciliation 1. Interpretation of a treaty;
6. Arbitration 2. Any question of international law;
7. Judicial Settlement 3. The existence of any fact which, if
established, would constitute a breach of
¯°º°¯ an international obligation; and
4. The nature or extent of the reparation to
Nature be made for the breach of an
It is well established in international law that no international obligation.
State can, without its consent, be compelled to
submit its disputes with other States either to TYPES OF Pacific Settlement
mediation or arbitration, or to any other kind of I. Negotiation
pacific settlement (PS). (PCIJ on STATUS OF The legal and orderly administrative process by
EASTERN CARELIA.) which governments, in the exercise of their
unquestionable powers, conduct their relations
Dispute – is a disagreement on a point of law or with one another and discuss, adjust and settle
fact, a conflict of legal views or interests between their differences.
two persons. The mere denial of the existence of The chief and most common method of settling
a dispute does not prove its non-existence international disputes. By this method, the
because disputes are matters for objective parties seek a solution of their differences by
determination. direct exchange of views between themselves.
This is the very essence of diplomacy.
International Dispute – if the dispute arises
between two or more States. II. Good Offices
An attempt of a third party to bring together the
▪ The charging of one State and the denial of disputing States to effect a settlement of their
another of the dispute as charged, creates disputes. This is NOT to be regarded as an
an international dispute as “there has thus unfriendly act.
arisen a situation in which the two sides hold
clearly opposite views concerning the Tender of good office
questions of the performance or non- A tender of good office may be made by:
performance of their treaty obligations. a) Third State
Confronted with such a situation, the Court b) international organs such as the UN;
must conclude that international disputes or
have arisen.” ICJ Reports 1950 c) Individuals or eminent citizens of a
third State.
Legal Dispute – the following are deemed
constitutive of a legal dispute: III. Mediation
i. interpretation of a treaty; This is the action of a third party in bringing the
ii. any question of international law; parties to a dispute together and helping them in
iii. the existence of any fact which, if a more or less informal way to find a basis for the
established, would constitute a breach of settlement of their dispute.
an international obligation;
Mediation v. Good Offices
In good offices, once the parties have been ☀ compromis d’ arbitrage – the agreement
brought together, the third party tendering to arbitrate. It is the charter of the Notes:
good offices has no further functions to arbitral tribunal. Contains the following:
perform. In mediation, on the other hand, a) the questions to be settled;
the third party mediates and is the more b) the method of selecting arbitrators
active one, for he proposes solution, offers and their number;
his advice and in general attempts to c) venue;
conciliate differences. d) expenses;
e) the arbitral award;
IV. Enquiry f) rules of procedure; and
Enquiry is the establishment of the facts involved g) the law to be applied.
in a dispute and the clarification of the issues in
order that their elucidation might contribute to VII. Judicial Settlement
its settlement. This means settlement by a permanent
international court of justice, in accordance with
▪ Basis – it rests on the theory that certain judicial methods. Arbitration proceedings may be
disputes could be settled if the facts of the similar to the functions and process of judicial
case were established. settlement but the arbitral tribunal is NOT a
permanent body as compared to the body referred
▪ Object of Enquiry - to ascertain the facts to in this type of PS.
underlying a dispute and thereby prepare the
way for a negotiated adjustment or
settlement of the dispute. Forcible Measures Short of War
V. Conciliation Severance of Diplomatic Relations

This is the process of settling disputes by referring Retorsion
them to commissions or other international Reprisals
bodies, usually consisting of persons designated by Embargo
agreement between the parties to the conflict, Boycott
whose task is to elucidate the facts and make a Non-intercourse
report containing proposals, for a settlement, Pacific Blockade
which, however, have no binding character. Collective Measures under the Charter
OPPENHEIM
¯°º°¯
▪ Conciliation v. Enquiry – in enquiry, the
main object is to establish the facts. In I. Severance of Diplomatic Relations
conciliation, the main object is not only to Severance may take place:
elucidate the facts but to bring the parties to a) to mark severe
an agreement. disapproval of a State’s conduct;
b) to influence the
VI. Arbitration offending State to remedy the
This is a procedure for the settlement of disputes consequences of some unfriendly or
between States by a binding award on the basis of illegal act;
law and as the result of an undertaking voluntarily c) to serve notice on
accepted. the other State that the issue between
them has reached a point where normal
☀ Princ diplomatic intercourse is no longer
iple of Free Determination – this possible and that sterner measures might
principle applies to the competence of possibly follow.
the arbitral tribunal, the law to be
applied and the procedure to be Suspension of Relations– has been used to
followed. denote a less drastic step than complete
severance of diplomatic ties. It involves
☀ Choice of Arbitrators – the arbitrators withdrawal of diplomatic representation, but
should be either freely selected by the not the severance of consular relations.
parties or, at least, the parties should
have been given the opportunity of a free No breach in int’l. law – there exists no
choice of arbitrators. obligation to maintain diplomatic intercourse
with other States, thus, severance of an
☀ States are under no legal obligation to existing relation does not tantamount to
arbitrate their disputes. breach of international law.
II. Retorsion
Consists of an unfriendly, but not international which under

illegal act of one State against another in international law Notes:
retaliation for the latter’s unfriendly or constitutes an
inequitable conduct. It does not involve the use international
of force. delinquency.
States resorting to retorsion retaliate by acts of

the same or similar kind as those complained of. Forms of Reprisals
a) military occupation
It is resorted to by States usually in cases of unfair
treatment of their citizens abroad. b) display of force
c) naval bombardment
III. Reprisals d) seizure of ships at sea
e) seizure of properties of nationals of the
Any kind of forcible or coercive measures whereby
one State seeks to exercise a deterrent effect or delinquent State
f) freezing of assets of its citizens
to obtain redress or satisfaction, directly or
indirectly, for the consequences of the illegal acts g) embargo
h) boycott
of another State, which has refused to make
amends for such illegal conduct. i) pacific blockade
Criteria for Legitimacy Letters Of Marque or Special Reprisals

Act of a State granting their subjects who
a) that the State against which
reprisals are taken must have been guilty could not obtain redress for injury suffered
abroad, authorizing them to perform acts of
of a breach of international law;
b) that prior to recourse to self-help against the offending State or its
nationals for the purpose of obtaining
reprisals an adequate attempt must have
been made, without success, to obtain satisfaction for the wrong sustained.
redress from the delinquents State for
the consequences of its illegal conduct;
IV. Embargo (Sequestration / Hostile Embargo)
and
c) That acts of reprisals must This is originally a form of reprisal consisting of
forcible detention of the vessels of the offending
not be excessive.
State or of its nationals which happened to be
lying in the ports of the injured or aggrieved
2 Kinds of Reprisals:
a) Reprisal as a form of self-help – is State. Later, the practice was extended to such
vessels also as were seized in the high seas, or
resorted to for the purpose of settling a
dispute or redressing a grievance without even within the territorial waters of the offending
State.
going to war, consequently no state of
war exists between the State resorting to
☀ Vessels sequestered are not considered
reprisals and the State against whom
such acts are directed. condemned or confiscated, but must be
returned when the delinquent State
b) Reprisal taken by belligerents in the makes the necessary reparation.
course of war – the purpose of the latter
kind of reprisals is to compel a Civic or Pacific Embargo
A form of embargo employed by a State to its
belligerent to observe or desist from
violating the laws of warfare; it own vessels within its national domain or of
resources which otherwise might find their
presupposes, therefore, the existence of
a state of war between the parties way into foreign territory.
concerned.
Reprisals Retorsion Collective Embargo
Embargo by a group of States directed against
Consists of acts Consists of an offending State. This may be:
which would retaliatory conduct a) collective embargo on import or export
ordinarily be which is legitimate of narcotic drugs
illegal. or is not in b) collective embargo by way of
violation of enforcement action under the UN Charter
international law.
V. Boycott
Generally Acts which give A comparatively modern form of reprisal which
resorted to by a rise to retorsion consists of a concerted suspension of trade and
State in though obnoxious business relations with the nationals of the
consequence of do not amount to offending State.
an act or an international
omission of delinquency. VI. Non-intercourse
another State
Consists of suspension of ALL commercial maintain or restore international peace and

intercourse with a State. A complete or partial security. Such action may include: Notes:
interruption of economic relations with the a) demonstrations
offending State as a form of enforcement b) blockade and
measure. c) other operations by air, sea, or land
forces of Members of the UN.
VII. Pacific Blockade
A naval operation carried out in time of peace
whereby a State prevents access to or exit from The Laws of War
particular ports or portions of the coast of
another State for the purpose of compelling the Definition of War
latter to yield to certain demands made upon it Legality of War
by the blockading State. Rules of Warfare
Sanctions of the Laws of War
☀ Third States do not acquire the status of Commencement and Termination of War
neutrals because there is no belligerency Effects of Outbreak of War
between the blockader and the State. Conduct of Warfare
Quarantine [See movie “Thirteen Days”] ¯°º°¯
The right to stop and search vessels of third
States suspected of carrying specified cargo War INGRID DETTER DE LUPIS
to the “quarantined” State has been asserted A sustained struggle by armed forces of a certain
by the blockading State. THE CUBAN intensity between groups of certain size,
QUARANTINE. consisting of individuals who are armed, who wear
distinctive insignia and who are subjected to
☀ Blockade may no longer be resorted to by military discipline under responsible command.
States Members as a measure of self-
help. It may only be used collectively by Legality of War under UN
or on behalf of the UN as an enforcement The use of armed force is allowed under the UN
action under Article 41 of the UN Charter. Charter only in case of individual or collective
self-defense, or in pursuance of a decision or
recommendation of the SC to take forcible action
against an aggressor.
VIII. Collective Measures under the Charter
A system of peace enforcement under the UN As Self-Defense – the use of force in self-defense
Charter. It envisages the employment, if is permitted only while the SC has not taken the
necessary, of compulsive measures to maintain or necessary measures to maintain or restore
restore peace. These measures may or may not international peace and security.
involve the use of armed forces.
★ The laws of war are not applicable to war
The enforcement provisions of the Charter are alone in its technical sense, but to all
brought into play only in the event that the SC armed conflicts.
determines, under Article 39, that there exists a
“threat to peace, a breach of the peace, or an act Nature of Enforcement Action under UN
of aggression.” UN Forces must behave in a manner consistent
with the purposes and ideals of the Organization
Article 41, UN Charter and must obey the rules of war which represent a
The SC may decide what measures not involving general international attempt to humanize armed
the use of armed forces are to be employed to conflict.
give effect to its decisions, and it may call upon
the Members of the UN to apply such measures. Temperamenta of Warfare
These may include complete or partial Grotius advocated moderation in the conduct of
interruption of: hostilities for reasons of humanity, religion and
a) economic relations and of rail, sea, air, farsighted policy.
postal, telegraphic, radio, and other
means of communication; and Rules of War Obsolete
b) severance to the diplomatic relations. The radical change in the character of war, both
in scope and method, has rendered many of the
traditional rules of warfare obsolete, or at any
Article 42, UN Charter rate frightfully inadequate.
Should the SC consider that measures provided for
in Article 41 would be inadequate or have proved Sanctions of the laws of war
to be inadequate, it may take such action by air,
sea, or land forces as may be necessary to
Observance of the rules of warfare by belligerents

is secured through several means recognized by Q: By what agreements may hostilities be Notes:
international law: suspended between the belligerents?
1) reprisals A: Hostilities may be superceded by a suspension
2) punishment of war crimes committed by of arms, an armistice, a cease-fire, a truce, or a
enemy soldiers and other enemy subjects capitulation.
3) protest lodged with the neutral powers
4) compensation Suspension of Arms
It is the temporary cessation of hostilities by
☀ The taking of hostages, formerly agreement of the local commanders for such
considered a legitimate means of purposes as the gathering of the wounded and the
enforcing observance of the laws of burial of the dead.
war, is no longer permitted at
present time. ARMISTICE
It is the suspension of all hostilities within a
International Humanitarian Law (IHL) certain area (local) or in the entire region of the
These are the laws of armed conflict. It used to war (general) agreed upon by the belligerent
be called the laws of war. governments, usually for the purpose of arranging
It regulates the conduct of actual conflict (jus terms of peace.
in bello) as distinguished from laws providing for
the instances of the lawful resort to force (jus ad CEASEFIRE
bellum). It is the unconditioned stoppage of hostilities by
It is a functional and utilitarian body of laws, order of an international body like the Security
not just humanitarian. Council for the purpose of employing peaceful
It is part of International Criminal Law and means of settling the conflict.
deals with breaches of international rules on the
laws of armed conflict entailing the personal TRUCE
liability of the individuals concerned, as opposed Sometimes use interchangeably with armistice,
to the responsibility of the State which is covered but is now understood to refer to a ceasefire with
by Public International Law proper. (IHL: A Field conditions attached.
Guide to the Basics, The 2007 Metrobank Lecture
on International Law, 22 Nov. 2007 by Associate CAPITULATION
Justice Adolfo S. Azcuna) It is the surrender of military troops, forts or
districts in accordance with the rules of military
honor.
COMMENCEMENT
☀ It was customary to notify an intended war by TERMINATION
letters of defiance, herald, or preliminary a) by simple cessation of hostilities, without
warning by declaration or ultimatum. the conclusion of a formal treaty of
peace – since no formal treaty of peace is
☀ 1907 2nd Hague Conference – The contracting concluded, the problems concerning
States recognized that hostilities between ownership of property which have
them ought not to commence without changed hands during the course of the
previous and unequivocal warning which war are generally settled by the
might take the form of either: application of the rule of uti possidetis.
a) a declaration of war giving reasons;
b) an ultimatum with a conditional b) by a treaty of peace – this is the usual
declaration of war. method of terminating war. It may be a
negotiated peace treaty. Or a peace
animo belligerendi treaty thru a dictated treaty.
From the point of view of international law,
war commences upon the commission of an c) by unilateral declaration – if the war
act of force by one party done in animo results in the complete defeat or
belligerendi. War unconditional surrender of a belligerent
the formal end of the war depends on
Anglo-American Rule the decision of the victor.
Bound by a statement by the executive as to
when a state of war is commenced. uti possidetis
Each belligerent is regarded as legally
Q: What are some kinds of non-hostile entitled to such property as are actually in its
intercourse between the belligerents? possession at the time hostilities ceased.
A: Among the kinds of non-hostile intercourse are
flags of truce, cartels, passports, safe-conduct, status quo ante bellum
safeguards and license to trade.
Each of the belligerents is entitled to the 1. Rupture of diplomatic

territory and property which it HAD relations and termination of consular Notes:
possession of at the commencement of the activities
war. 2. On enemy persons
Dictated Treaty 3. On enemy properties
This happens where the decisive victory of 4. On trading and intercourse
one of the belligerents leads it to impose its 5. On contracts
will on the other. Imposed by the victor. 6. On treaties
End of War NAVARRO VS. BARREDO Rupture of diplomatic relations / termination of

Termination of war when used in private consular activities
contracts refers to the formal proclamation The respective diplomatic envoys are allowed to
of peace by the US and not the cessation of leave for their home countries. War also brings
hostilities between RP and Japan during the about the cessation of consular activity. The
WWII. official residence of the envoy, the archives of the
mission, and consular archives are usually left
Q: What is the meaning or concept of uti under the protection of another foreign envoy or
possidetis? (1977 Bar) consul of another State.
A: The problem concerning ownership of property
which have changed hands during the course of On enemy persons
the war are generally settled by the application of International law leaves each belligerent free,
the rule of uti possidetis, by which each within wide limits, to designate the persons whom
belligerent is regarded as legally entitled to such it will treat as having enemy character.
property as are actually in its possession at the
time hostilities ceased. Determination of enemy character
a) territorial test – enemy character
Postliminium (See movie: “The Gladiator”) depends on the residence or domicile of
A term borrowed from Roman Law concept which the person concerned
meant that persons or properties captured or
seized and taken beyond (post) the boundary b) nationality test – this is the preferred
(limen) could be enslaved or appropriated, but continental practice. The subjects of the
upon return they recovered their former status. belligerent are deemed enemy persons
regardless of where they are.
Modern Practice
To denote the doctrine that territory, c) activities test – whether national or not,
individuals and property, after having come resident or not. Thus, subjects of a
under the authority of the enemy, revert to neutral State may be treated as enemies
the authority of the original sovereign ipso because of certain activities where they
facto upon retaking possession. participate.
Legitimate Acts of Military Occupant d) territorial or commercial domicile test –

Postliminium has no effects upon the acts of a in matters pertaining to economic
military occupant during the occupation warfare.
which under international law it is competent
to perform e.g. collection of ordinary taxes. e) controlling interest test – this is the test
However, appropriation of property is not as to corporations in addition to the
allowed to be performed by the military place of incorporation test. A
occupant, hence, the ownership of the corporation is regarded as enemy person
property reverts back after the military if it:
occupancy without payment of compensation. 1) is incorporated in an enemy
teriroty; or
Q: When is the principle of postliminium 2) is controlled by individuals
applied? (1979 Bar) bearing enemy character.
A: Where the territory of one belligerent state is
occupied by the enemy during war, the legitimate Rules for interment of enemy aliens
government is ousted from authority. When the (1) to provide for the
belligerent occupation ceases to be effective, the internees’ safety and welfare;
authority of the legitimate government is (2) to furnish adequate
automatically restored, together with all its laws, food and clothing
by virtue of the jus postliminium. (3) to provide family
accommodations with due privacy and
EFFECTS OF WAR OUTBREAK facilities;
(4) to provide facilities ☀ Treaties dealing with political matters,

for religious, intellectual and physical such as treaties of alliance, and with Notes:
activities; commercial relations are deemed
(5) to permit the use of abrogated by the outbreak of war
their personal properties and financial between the parties thereto.
resources;
(6) to permit a degree of CONDUCT OF WARFARE
communication with the outside world; (See movie: “The Patriot”)
(7) the refrain from 3 Basic Principles of IHL:
excessive or inhuman penal and 1. Military necessity
disciplinary measures; 2. Humanity
(8) to make transfers 3. Chivalry
only in a humane manner;
(9) to record and duly Doctrine of Military Necessity
certify deaths, and to inquire into deaths A belligerent is justified in resorting to all
other than from natural causes; measures which are indispensable to bring
(10) to release internees about the complete submission of the enemy,
when the reasons for internment cease or as soon as possible, by means of regulated
when hostilities terminate. 1949 violence not forbidden by conventional or
GENEVA CONVENTION customary rules of war and with the least
possible loss of lives, time and money.
Locus standi during occupation
The practice of states are varied. Some Principle of Humanity
consider the enemy persons ex lege during [THE ETHICS OF WARFARE]
the whole duration of the hostilities. Some Forbid the use of weapons which cause
allowed them to sue and be sued subject to indiscriminate destruction or injury or inflict
so many exceptions. In the Philippines, when unnecessary pain or suffering.
an enemy subject is unable to sue during war,
a right of action which has accrued to him Principle of Chivalry
before the war is deemed suspended for the This principle requires the belligerents to give
duration of the war. Further, war suspends proper warning before launching a
the operation of the statute of limitations. bombardment or prohibit the use of perfidy in
the conduct of hostilities. This principle does
On enemy property not prohibit espionage.
In general, goods belonging to enemy persons are
considered enemy property.
 public – confiscated Q: Who constitute combatants?
 private – sequestered only and A: They are the following:
subject to return or reimbursement 1) Regular Forces (RF)– the army, navy, and
air force. Non-combatant members of the
On trading and intercourse armed forces include: chaplains, army
The practice of belligerents in modern wars of services and medical personnel.
forbidding by legislation all intercourse with alien
enemies, except as such as are permitted under 2) Irregular Forces (IF) – also known as
license. The main object of such laws was to franc-tireurs consist of militia and voluntary
prohibit transactions which would benefit the corps. They are treated as lawful combatants
enemy or enemy persons. provided that:
On contracts a) they are commanded by a person

International law leaves each belligerent free to responsible for his subordinates;
regulate this matter by his own domestic law. In b) they wear a fixed distinctive sign
general, it may be stated that States treat as void recognizable for his subordinates;
contracts which may give aid to the enemy or add c) they carry arms openly; and
to his resources, or necessitate intercourse or d) they conduct their operations in
communication with enemy persons. accordance with the laws and
customs of war.
On treaties
Modern view is that war does NOT ipso facto Guerilla warfare – considered as IF.
terminate all treaties between belligerents. Hostilities conducted by armed bodies of men
☀ Treaties may contain provisions to the who do not form part of an organized army.
effect that it will remain in force
notwithstanding the existence of war. 3) Non-privileged Combatants (NPC) –
individuals who take up arms or commit
hostile acts against the enemy without
belonging to the armed forces or forming part 1) Neutralized areas or zones – these are zones
of the irregular forces. If captured, they are in the theater of operations established by Notes:
not entitled to the status of prisoners of war. special agreement between the belligerents
for treatment of the wounded and civilians.
Mercenaries – considered as NPC EX: Aland Islands, the Spitzbergen, the
Those who, having been recruited in another Magellan Straits, the Suez Canal and Panama
country, from military forces for “personal Canal.
gain,” are not covered by protection.
2) Open towns – also known as “non defended
Spies – A soldier employing false pretenses or locality.” A place free of combatants.
acts through clandestine means to gather
information from the enemy. A soldier not 3) Cultural property and places of worship
wearing uniform during hostilities runs the
risk of being treated as a spy and not entitled 4) Civil defense – includes personnel, buildings
to prisoner of war status. When caught, they and assets, clearly indicated by a blue
are not to be regarded as prisoners of war. triangle on an orange background distinctive
Military Scouts are not spies. sign.
4) Levee en masse 5) Dangerous installations – dams, dikes, or

Takes place when the population nuclear electric plants.
spontaneously rises in mass to resist the
invader. They enjoy privileges due to 6) Civilians and persons hors de combat –
armed forces. persons hors de combat are those who are
either wounded or, for other reasons, have
NOTE: Only RF, IF and Levee may be treated as permanently joined the civilian population.
prisoners of war under Protocol I of 1977. See
this reviewer’s section on POW. 7) Parachutists – those who bail out from
aircrafts in distress. Must only be treated as
Restrictions on weapons POW.
Prohibited weapons:
1) explosive bullets 8) Hospitals, hospital ships and medical units –
2) use of dum-dum bullets a clear marking or a Red Cross to show their
3) employment of projectiles status.
whose only object is diffusion of asphyxiating,
poisonous, or other gases, and all analogous 9) Food supplies and crops
liquids, materials or devices
4) the use of bacteriological FORBIDDEN METHODS
methods of warfare. No Quarter – such orders implying that no
5) The laying of “contact” mines survivors are to be left after an attack.
6) Explosives from balloons
Starvation
3 Protocols on Restrictions
Protocol I on Fragmentation Weapons Reprisals – are not reprisals as a form of self-
Protocol II on Treacherous Weapons help, instead, belligerent reprisals are of
Protocol III on Incendiary Weapons a completely different type. These are
acts of vengeance by a belligerent
Other Questionable weapons directed against groups of civilians or
1) Fuel explosive weapons that kill by air POWs in retaliation of or response to an
shock waves attack by other civilians against the
2) Flame blast munitions that combine fuel belligerent.
air explosive effect with radiation in
chemical fireball munitions; Perfidy on treachery – this includes:
3) Laser weapons which cause burns and a) Improper use of white flag
blindness b) Feigning surrender or pretending to
4) Infrasound devices that cause damage to have been wounded or to have a
the central nervous system. civilian status
c) Using the uniform of the enemy
LIMITATION ON TARGETS OF ATTACK d) Claiming neutral status
Only military targets are subject to attack by the e) Falsely flying the Red Cross flag
armed forces of a belligerent as a basic rule of f) Making hospitals, churches and the
warfare. Likewise, certain places and objectives like as shield from attack.
are not subject to attack, such as: g) Area bombing
PRISONERS OF WAR (POW) who do not form part of an organized army, is

The following persons captured must be treated recognized. Guerillas are entitled to be treated Notes:
as POW: as prisoners of war provided they fulfill the
1) members of the armed forces, as well as following conditions:
members of militias or volunteer corps 1) They are commanded by a person
forming part of such armed forces; responsible for his subordinates;
2) members of other militias or volunteer 2) They have a fixed distinctive emblem
groups, including those of organized recognizable at a distance;
resistance movements, subject to compliance 3) They carry arms openly; and
with certain conditions; 4) They conduct their operations in
3) members of regular armed forces professing accordance with the laws and custom of
allegiance to a government or an authority war. (1982 Bar)
not recognized by the capturing State;
4) various categories of persons accompanying
an army unit, such as civilian members of When POW should be returned
military aircraft crew, war correspondents, Upon cessation of war or hostilities. However,
etc., provided they are authorized to be with POWs facing criminal trial may be detained until
the army or unit; the termination of the proceedings or
5) members of the crew of merchant vessels and punishment.
civilian aircraft who do not benefit by more
favorable treatment under any other When is a Territory Deemed Under
provisions of internal law; Military Occupation?
6) members of the population of non-occupied Territory is deemed to be occupied when it is
territory who take up arms as a levee en placed as a matter of fact under the authority of
masse against an invading army. the hostile army.
Q: What are the core crimes in IHL? TAN SE CHIANG v. DIRECTOR OF POSTS
A: The core crimes in IHL are genocide, crimes
against humanity, war crimes and aggression. Belligerent occupation becomes an accomplished
These core crimes are specified in the Statues fact the moment the government of the invaded
of the ICC (or the Rome Statute for an ICC) which territory is rendered incapable of publicly
describes them as the most serious crimes of exercising its authority and the invader is in a
concern to the international community as a position to substitute and has substituted his own
whole. These crimes are within the jurisdiction of authority for that of the legitimate government of
the ICC. the occupied territory.
NOTE: Although the Philippines has signed but not
yet ratified the Rome Statute establishing the ICC, NOTE: Belligerent occupation is different from
Military occupation.
the ICC Statute’s and definitions of the core
crimes are authoritative statements for us since
Rights & Duties of a Belligerent Occupant
they are practically lifted from customary
international law sources and from the Geneva to continue orderly government
to exercise control over the occupied
Conventions of 1949 and other treaties to which
we are parties. (IHL: A Field Guide to the Basics, territory and its inhabitants.
The 2007 Metrobank Lecture on International
Law, 22 Nov. 2007 by Associate Justice Adolfo S. NOTE: The belligerent occupant cannot compel
the inhabitants to swear allegiance to him.
Azcuna)
1949 Geneva Convention III CO KIM CHAN V. VALDEZ TAN KEH

The rules of POW applies to prisoners of war who 75 Phil 371
are captured in a properly declared war or any
other kind of “armed conflict,” even if any of the His rights over the occupied territory are merely
combatant powers do not recognize the existence that of administration; hence he cannot, while
of a state of war and even though these conflicts the war continues, annex the territory or set it up
are “not of an international character.” as an independent State.
Q: Is guerilla warfare recognized under Q: Can the belligerent occupant impose and
International Law and may a captured guerilla collect taxes or contributions?
demand treatment afforded a prisoner of war A: YES. Under the Hague Regulations, the
under the 1949 Geneva Convention? Explain. occupant is empowered to collect taxes, dues and
A: Yes. Under Article 4 of the 1949 Geneva tolls, as far as possible in accordance with “the
Convention on Prisoners of War, guerilla warfare, rules of assessment and incidence in force,” and
which consists in hostilities conducted in territory he is bound to defray the “expenses of
occupied by the enemy by armed bodies of men administration” out of the proceeds.
A: Whether simple or composite, a state is said

Contributions – are money impositions on the to be neutralized where its independence and Notes:
inhabitants over and above such taxes. integrity are guaranteed by an international
convention on the condition that such state
Conditions on levying taxes: obligates itself never to take up arms against any
1) they must be for the needs of the army or other state, except for self-defense, or enter into
local administration; such international obligations as would indirectly
2) they can be imposed by written order of the involve it in war. A state seeks neutralization
Commander-in-Chief only, in contradistinction where it is weak and does not wish to take an
to requisitions which may be demanded by active part in international politics. The power
the Commander in a locality; that guarantees its neutralization may be
3) a receipt must be given to each contributor; motivated either by balance of power
4) the levy must be made as far as possible, in considerations or by desire to make the state a
accordance with the rules in existence and buffer between the territories of the great
the assessment in force for taxes. powers.
Neutrality Rights and Duties of Neutrals & Belligerents

The nature of their rights are correlative, that is,
Neutrality Defined a right of a neutral gives rise to a corresponding
Neutrality v. Neutralization duty on the part of the belligerents, and a right of
Rights and Duties of Neutrals and Belligerents a belligerent corresponds to a duty of the neutral.
Passage of Belligerent Warships
Prohibition of Warlike Activities in Neutral 1) duty of abstention (negative) – should
Territory not give assistance, direct or indirect, to
Neutral Asylum to Land and Naval Forces of either belligerent in their war efforts.
Belligerent
Right of Angary 2) duty of prevention (positive) – places
Blockade the neutral State under obligation to
Contraband prevent its territory from becoming a
Unneutral Service base for hostile operations by one
Right of Visitation belligerent against the other.
Neutrality 3) duty of acquiescence (passive) –

An attitude of impartiality adopted by third requires a neutral to submit to acts of
States towards belligerents and recognized by the belligerents with respect to the
belligerents, such attitude creating rights and commerce of its nationals if such acts are
duties between the impartial States and the warranted under the law of nations.
belligerents.
PASSAGE OF BELLIGERENT WARSHIPS
Neutrality vs. Neutralization (1988 Bar) A neutral State may allow passage of belligerent
Neutrality Neutralization warships through the maritime belt forming part
of its territorial waters. What is prohibited is the
Obtains only during A condition that passage upon its national rivers or canals. The
war applies in peace exception, however, are the canals which have
and war become international waterways (such as the Suez
Canal and the Panama Canal).
A status created A status created
under international by means of a
PROHIBITION OF WARLIKE ACTIVITIES IN
law, by means of a treaty
NEUTRAL TERRITORY
stand on the part
The Hague Convention No. XIII provides that
of a state not to
“belligerents are forbidden to use neutral ports
side with any of
and waters as base of naval operations against
the parties at war
their adversaries.” Thus, a neutral must prevent
Brought about by a Cannot be belligerent warships from cruising within its
unilateral effected by maritime belt for the purpose of capturing enemy
declaration by unilateral act vessels as soon as they leave it.
neutral state only but must be
recognized by In the event that a neutral port or roadstead is
other states. used for repairs, the neutral state may allow it as
long as such repairs are absolutely necessary to
render them seaworthy, not repairs which would
Q: Switzerland and Austria are outstanding add in any way to their fighting force. Also,
examples of neutralized states. What are the belligerent warships cannot take shelter in a
characteristics of neutralized states? (1988 Bar) neutral port for any undue length of time in order
to evade capture. The maximum length of stay An operation of war carried out by belligerent
permissible is 24 hours, unless the neutral state seacraft or other means, for the purpose of Notes:
has prescribed otherwise in their municipal laws preventing ingress and egress of vessels or aircraft
or unless the nature of repairs to be done or the of all nations to and from the enemy coast or any
stress of weather would require a longer time. part thereof.
Neutral ports may not become places of asylum or

permanent rendezvous for belligerent prizes. The CONTRABAND
rule is that a prize may not be brought into a A term used to designate those goods which are
neutral port, except under certain circumstances. susceptible of use in war and declared to be
contraband by a belligerent, and which are found
by that belligerent on its way to assist the war
NEUTRAL ASYLUM TO LAND AND NAVAL FORCES operations or war effort of the enemy. STONE
OF BELLIGERENT
POW’s who escape into neutral territory or are Requisites:
brought into neutral territory by enemy troops a) susceptible of use in war
who themselves take refuge there shall become b) destined for the use of a belligerent in its
free ipso facto, and the neutral State shall leave war effort.
such prisoners at liberty, but if it allows them to
remain in its territory, it may assign them a place Kinds of Contrabands
of residence so as to prevent them from rejoining a) absolute – goods which by their very
their forces. nature are intended to be used in war.
b) conditional – goods which by their nature
As regards fugitive soldiers, the neutral State is are not destined exclusively for use in
not obliged to grant them asylum, although it is war, but which are nevertheless of great
not forbidden to do so. value to a belligerent in the prosecution
of the war. e.g. foodstuff, clothing, fuel,
Belligerent aircraft and their personnel, if they horses, etc.
are compelled to land in neutral territory, must
be interned. Hostile destination
In case of absolute contraband it is necessary only
In case a belligerent men-of-war refuses to leave to prove that the goods had as their destination
neutral port in which it is not entitled to remain, any point within enemy or enemy-controlled
the neutral State concerned has the right to take territory. In the case of conditional contraband, it
such measures as it deems necessary to render is required that the goods be destined to the
the ship incapable of putting to sea for the authorities or armed forces of the enemy. In
duration of the war. When the belligerent ship is both, the destination as of moment of seizure is
detained by a neutral State, the officers and crew critical.
are likewise interned, either in the ship itself or
in another vessel or on land, and may be Doctrine of continuous voyage
subjected to such restrictions as may be Goods which are destined to a neutral port cannot
necessary. be regarded as contraband of war.
RIGHT OF ANGARY
A right of a belligerent to requisition and use, Consequences of contraband carriage
subject to certain conditions, or even to destroy Neutral States are not under obligation to prevent
in case of necessity, neutral property found in its their subjects from carrying contraband to
territory, in enemy territory or in the high seas. belligerents. However, Neutral States have the
duty to acquiesce in the suppression by
3 Conditions belligerents of trade in contraband.
a. there must be an urgent need for the
property in connection with the offensive Doctrine of Infection
or defensive war; Under the British and American practice, the
b. the property is within the territory or penalty for carriage of contraband would be
jurisdiction of the belligerent; confiscation of the contraband cargo. Innocent
c. compensation must be paid to the owner. cargo belonging to the same owner would also be
subject to confiscation. Innocent cargo belonging
NOTE: A neutral subject within the territory of a to another owner would be released, but without
belligerent is not entitled to indemnity from compensation for delay and detention in the Prize
either side against the loss of property occasioned Court.
by legitimate acts of war.
Doctrine of Ultimate Consumption
BLOCKADE Goods intended for civilian use which may
ultimately find their way to and be consumed by
the belligerent forces are also liable to seizure on

the way. Notes:
Doctrine of Ultimate Destination
The liability of contraband to capture is
determined not by their ostensible but by their
real destination. Even if the vessel stops at an
intermediate neutral port, it will still be
considered as one continuous voyage provided it
can be shown that its cargo will ultimately be ACKNOWLEDGMENTS / ATTRIBUTIONS
delivered to a hostile destination.
THIS IS A PRODUCT OF LIBERTAS ET IUSTICIA
UNNEUTRAL SERVICE COMPILED BY ITS ACADEMICS COMMITTEE 2007-
Denotes carriage by neutral vessels of certain 2008. ALTHOUGH THIS IS MAINLY OUTLINED FOR
persons and dispatches for the enemy and also the PUBLIC INTERNATIONAL LAW CLASS UNDER ATTY.
taking of direct part in the hostilities and doing a EDWIN REY SANDOVAL, THIS MATERIAL MAY ALSO
number of other acts for the enemy. A neutral BE OF GOOD USE UNDER OTHER PROFESSORS
vessel engaged in unneutral service may be HANDLING THE SAME SUBJECT AS WELL AS THOSE
captured by a belligerent and treated, in general, TAKING REVIEW SUBJECT ON POLITICAL AND
in the same way as neutral vessels captured for PUBLIC INTERNATIONAL LAW.
carriage of contraband.
THERE ARE DIFFERENT DISCUSSIONS WHICH WERE
RIGHT OF VISITATION CULLED FROM AUTHORS ASIDE FROM ATTY.
The right of belligerents (exercised only by men- SANDOVAL’S LECTURES AND CASES SUCH AS
of-war and military aircraft of belligerents) to SALONGA & YAP AND CRUZ.
visit and, if it be needed, to search neutral
merchantmen for the purpose of ascertaining WE ENCOURAGE THE FREE CIRCULATION OF THIS
whether they really belong to the merchant MATERIAL AMONGST THE RANKS OF STUDENTS,
marine of neutral States, and if this is found to be BARRISTERS, PROFESSORS, LAWYERS, LEGAL
the case, whether they are attempting to break ENTHUSIASTS AND THE LIKE.
blockade, carrying contraband or rendering
unneutral service. Only private or merchant WE SALUTE ATTY. SANDOVAL FOR HIS NEVER
vessels may be subjected to visit and search. FADING BRILLIANCE IN THE FIELD OF POLITICAL
LAW, AND TO WHOM WE OFFER THIS MATERIAL
CAPTURE WITH HUMILITY AND PRIDE.
Takes place if the cargo, or the vessel, or both,
are liable to confiscation, or if grave suspicion THIS IS PURELY FOR ACADEMIC PURPOSES AND IS
requires further search which can only be STRICTLY NOT FOR SALE.
undertaken in a port.
TRIAL BEFORE A PRIZE COURT

The captured vessel and cargo, must be brought
before a Prize Court for trial.
END
2007 BAR. The City Mayor issues an Executive Order

declaring that the city promotes responsible parenthood
and upholds natural family planning. He prohibits all
hospitals operated by the city from prescribing the use
of artificial methods of contraception, including
condoms, pills, intrauterine devices and surgical
sterilization. As a result, poor women in his city lost
their access to affordable family planning programs.
Private clinics! however, continue to render family
planning counsel and devices to paying clients.
a. Is the Executive Order in any way
constitutionally infirm? Explain.
b. Is the Philippines in breach of any obligation
under international law? Explain.
c. May the Commission on Human Rights order

the Mayor to stop the implementation of the
Executive Order? Explain. Notes:
COMPARATIVE TABLE OF PROHIBITED ACTS
PROHIBITED CONSEQUENCES ON THE CONSEQUENCES ON THE

ACTS OF A
VESSEL CARGO
NEUTRAL STATE
1. If owned by the owner of the vessel

- confiscated/condemned
2. If owned by a different owner

Breach of Confiscated or brought to - shall be confiscated IF:
Blockade a prize court
a) it consists of contrabands; or
b) the owner knew that the goods
shipped is going to a blockaded point
and is going to be blockaded.
General Rule: Shall be Contraband cargo: confiscated.

confiscated and seized.
Innocent cargo:
1. If owned by the owner of the vessel, it
Exception: When the shall be confiscated (Doctrine of
cargo consists of both Infection).
Carriage of contrabands and innocent
2. If owned by a different person, it shall
Contraband goods, it (vessel) may
only be confiscated if the not be confiscated but it shall be
released without compensation due to
contraband cargo is more
than ½ of the total cargo the delay of release and detention in
the Prize Court.
by value, weight, volume
and freight.
Performance of Same as in Carriage of Same as in Carriage of Contrabands

Unneutral Contrabands
Service
2007 BAR. Lawrence is a Filipino computer expert based in Manila who invented a virus that destroys all the files
stored in a computer. Assume that in May 2005, this virus spread all over the world and caused $50 million in damage
to property in the United States, and that in June 2005, he was criminally charged before United States courts under
their anti-hacker law. Assume that in July 2005, the Philippines adopted its own anti-hacker law, to strengthen
existing sanctions already provided against damage to property. The United States has requested the Philippines to
extradite him to US courts under the RP-US Extradition Treaty.
a. Is the Philippines under an obligation to extradite Lawrence? State the applicable rule and its rationale.
b. Assume that the extradition request was made after the Philippines adopted its anti-hacker legislation. Will
that change your answer?
2007 BAR. In 1993, historians confirmed that during World War II, "comfort women" were forced into serving the
Japanese military. These women were either abducted or lured by false promises of jobs as cooks or waitresses, and
eventually forced against their will to have sex with Japanese soldiers on a daily basis during the course of the war,
and often suffered from severe beatings and venereal diseases. The Japanese government contends that the "comfort
stations" were run as "onsite military brothels" (or prostitution houses) by private operators, and not by the Japanese
military. There were many Filipina "comfort women."
a. Name at least one basic principle or norm of international humanitarian law that was violated by the
Japanese military in the treatment of the "comfort women."
b. The surviving Filipina "comfort women" demand that the Japanese government apologize and pay them
compensation. However, under the 1951 San Francisco Peace Agreement -the legal instrument that ended
the state of war between Japan and the Allied Forces -all the injured states, including the Philippines,
received war reparations and, in return, waived all claims against Japan arising from the war. Is that a
valid defense?
c. The surviving Filipina "comfort women" sue the Japanese government for damages before Philippine courts.
Will that case prosper?
Today is Saturday, February 07, 2015
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 152154 July 15, 2003
REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
HONORABLE SANDIGANBAYAN (SPECIAL FIRST DIVISION), FERDINAND E. MARCOS (REPRESENTED BY HIS
ESTATE/HEIRS: IMELDA R. MARCOS, MARIA IMELDA [IMEE] MARCOS-MANOTOC, FERDINAND R. MARCOS, JR
IRENE MARCOS-ARANETA) AND IMELDA ROMUALDEZ MARCOS, respondents.
CORONA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court seeking to (1) set aside the Resolution dated January
issued by the Special First Division of the Sandiganbayan in Civil Case No. 0141 entitled Republic of the Philippines vs.
Ferdinand E. Marcos, et. al., and (2) reinstate its earlier decision dated September 19, 2000 which forfeited in favor of pe
Republic of the Philippines (Republic) the amount held in escrow in the Philippine National Bank (PNB) in the aggregate
of US$658,175,373.60 as of January 31, 2002.
BACKGROUND OF THE CASE
On December 17, 1991, petitioner Republic, through the Presidential Commission on Good Government (PCGG), repres
by the Office of the Solicitor General (OSG), filed a petition for forfeiture before the Sandiganbayan, docketed as Civil Ca
0141 entitled Republic of the Philippines vs. Ferdinand E. Marcos, represented by his Estate/Heirs and Imelda R. Marco
pursuant to RA 13791 in relation to Executive Order Nos. 1,2 2,3 144 and 14-A.5
In said case, petitioner sought the declaration of the aggregate amount of US$356 million (now estimated to be more tha
US$658 million inclusive of interest) deposited in escrow in the PNB, as ill-gotten wealth. The funds were previously held
following five account groups, using various foreign foundations in certain Swiss banks:
(1) Azio-Verso-Vibur Foundation accounts;
(2) Xandy-Wintrop: Charis-Scolari-Valamo-Spinus- Avertina Foundation accounts;
(3) Trinidad-Rayby-Palmy Foundation accounts;
(4) Rosalys-Aguamina Foundation accounts and
(5) Maler Foundation accounts.
In addition, the petition sought the forfeiture of US$25 million and US$5 million in treasury notes which exceeded the Ma
couple's salaries, other lawful income as well as income from legitimately acquired property. The treasury notes are froze
Central Bank of the Philippines, now Bangko Sentral ng Pilipinas, by virtue of the freeze order issued by the PCGG.
On October 18, 1993, respondents Imelda R. Marcos, Maria Imelda M. Manotoc, Irene M. Araneta and Ferdinand R. Ma
filed their answer.
Before the case was set for pre-trial, a General Agreement and the Supplemental Agreements 6 dated December 28, 199
executed by the Marcos children and then PCGG Chairman Magtanggol Gunigundo for a global settlement of the assets
Marcos family. Subsequently, respondent Marcos children filed a motion dated December 7, 1995 for the approval of said
agreements and for the enforcement thereof.
The General Agreement/Supplemental Agreements sought to identify, collate, cause the inventory of and distribute all as
presumed to be owned by the Marcos family under the conditions contained therein. The aforementioned General Agree
specified in one of its premises or "whereas clauses" the fact that petitioner "obtained a judgment from the Swiss Federa
Tribunal on December 21, 1990, that the Three Hundred Fifty-six Million U.S. dollars (US$356 million) belongs in principl
Republic of the Philippines provided certain conditionalities are met x x x." The said decision of the Swiss Federal Supre
affirmed the decision of Zurich District Attorney Peter Consandey, granting petitioner's request for legal assistance. 7 Con
declared the various deposits in the name of the enumerated foundations to be of illegal provenance and ordered that th
frozen to await the final verdict in favor of the parties entitled to restitution.
Hearings were conducted by the Sandiganbayan on the motion to approve the General/Supplemental Agreements. Resp
Ferdinand, Jr. was presented as witness for the purpose of establishing the partial implementation of said agreements.
On October 18, 1996, petitioner filed a motion for summary judgment and/or judgment on the pleadings. Respondent Mr
Marcos filed her opposition thereto which was later adopted by respondents Mrs. Manotoc, Mrs. Araneta and Ferdinand,
In its resolution dated November 20, 1997, the Sandiganbayan denied petitioner's motion for summary judgment and/or
on the pleadings on the ground that the motion to approve the compromise agreement "(took) precedence over the motio
summary judgment."
Respondent Mrs. Marcos filed a manifestation on May 26, 1998 claiming she was not a party to the motion for approval o
Compromise Agreement and that she owned 90% of the funds with the remaining 10% belonging to the Marcos estate.
Meanwhile, on August 10, 1995, petitioner filed with the District Attorney in Zurich, Switzerland, an additional request for
immediate transfer of the deposits to an escrow account in the PNB. The request was granted. On appeal by the Marcos
Swiss Federal Supreme Court, in a decision dated December 10, 1997, upheld the ruling of the District Attorney of Zurich
granting the request for the transfer of the funds. In 1998, the funds were remitted to the Philippines in escrow. Subseque
respondent Marcos children moved that the funds be placed in custodia legis because the deposit in escrow in the PNB
allegedly in danger of dissipation by petitioner. The Sandiganbayan, in its resolution dated September 8, 1998, granted t
motion.
After the pre-trial and the issuance of the pre-trial order and supplemental pre-trial order dated October 28, 1999 and Jan
2000, respectively, the case was set for trial. After several resettings, petitioner, on March 10, 2000, filed another motion
summary judgment pertaining to the forfeiture of the US$356 million, based on the following grounds:
THE ESSENTIAL FACTS WHICH WARRANT THE FORFEITURE OF THE FUNDS SUBJECT OF THE
PETITION UNDER R.A. NO. 1379 ARE ADMITTED BY RESPONDENTS IN THEIR PLEADINGS AND O
SUBMISSIONS MADE IN THE COURSE OF THE PROCEEDING.
II
RESPONDENTS' ADMISSION MADE DURING THE PRE-TRIAL THAT THEY DO NOT HAVE ANY INTE
OR OWNERSHIP OVER THE FUNDS SUBJECT OF THE ACTION FOR FORFEITURE TENDERS NO
GENUINE ISSUE OR CONTROVERSY AS TO ANY MATERIAL FACT IN THE PRESENT ACTION, THU
WARRANTING THE RENDITION OF SUMMARY JUDGMENT.8
Petitioner contended that, after the pre-trial conference, certain facts were established, warranting a summary judgment
funds sought to be forfeited.
Respondent Mrs. Marcos filed her opposition to the petitioner's motion for summary judgment, which opposition was late
adopted by her co-respondents Mrs. Manotoc, Mrs. Araneta and Ferdinand, Jr.
On March 24, 2000, a hearing on the motion for summary judgment was conducted.
In a decision9 dated September 19, 2000, the Sandiganbayan granted petitioner's motion for summary judgment:
CONCLUSION
There is no issue of fact which calls for the presentation of evidence.
The Motion for Summary Judgment is hereby granted.
The Swiss deposits which were transmitted to and now held in escrow at the PNB are deemed unlawfully
acquired as ill-gotten wealth.
DISPOSITION
WHEREFORE, judgment is hereby rendered in favor of the Republic of the Philippines and against the
respondents, declaring the Swiss deposits which were transferred to and now deposited in escrow at the
Philippine National Bank in the total aggregate value equivalent to US$627,608,544.95 as of August 31, 2
together with the increments thereof forfeited in favor of the State. 10
Respondent Mrs. Marcos filed a motion for reconsideration dated September 26, 2000. Likewise, Mrs. Manotoc and Ferd
Jr. filed their own motion for reconsideration dated October 5, 2000. Mrs. Araneta filed a manifestation dated October 4,
adopting the motion for reconsideration of Mrs. Marcos, Mrs. Manotoc and Ferdinand, Jr.
Subsequently, petitioner filed its opposition thereto.
In a resolution11 dated January 31, 2002, the Sandiganbayan reversed its September 19, 2000 decision, thus denying pe
motion for summary judgment:
CONCLUSION
In sum, the evidence offered for summary judgment of the case did not prove that the money in the Swiss
belonged to the Marcos spouses because no legal proof exists in the record as to the ownership by the M
of the funds in escrow from the Swiss Banks.
The basis for the forfeiture in favor of the government cannot be deemed to have been established and o
judgment thereon, perforce, must also have been without basis.
WHEREFORE, the decision of this Court dated September 19, 2000 is reconsidered and set aside, and t
is now being set for further proceedings.12
Hence, the instant petition. In filing the same, petitioner argues that the Sandiganbayan, in reversing its September 19, 2
decision, committed grave abuse of discretion amounting to lack or excess of jurisdiction considering that --
PETITIONER WAS ABLE TO PROVE ITS CASE IN ACCORDANCE WITH THE REQUISITES OF SECT
AND 3 OF R.A. NO. 1379:
A. PRIVATE RESPONDENTS CATEGORICALLY ADMITTED NOT ONLY THE PERSONAL

CIRCUMSTANCES OF FERDINAND E. MARCOS AND IMELDA R. MARCOS AS PUBLIC OFFIC
BUT ALSO THE EXTENT OF THEIR SALARIES AS SUCH PUBLIC OFFICIALS, WHO UNDER T
CONSTITUTION, WERE PROHIBITED FROM ENGAGING IN THE MANAGEMENT OF FOUND
B. PRIVATE RESPONDENTS ALSO ADMITTED THE EXISTENCE OF THE SWISS DEPOSITS

THEIR OWNERSHIP THEREOF:
1. ADMISSIONS IN PRIVATE RESPONDENTS' ANSWER;
2. ADMISSION IN THE GENERAL / SUPPLEMENTAL AGREEMENTS THEY SIGNED AN

SOUGHT TO IMPLEMENT;
3. ADMISSION IN A MANIFESTATION OF PRIVATE RESPONDENT IMELDA R. MARCO

IN THE MOTION TO PLACE THE RES IN CUSTODIA LEGIS; AND
4. ADMISSION IN THE UNDERTAKING TO PAY THE HUMAN RIGHTS VICTIMS.
C. PETITIONER HAS PROVED THE EXTENT OF THE LEGITIMATE INCOME OF FERDINAND

MARCOS AND IMELDA R. MARCOS AS PUBLIC OFFICIALS.
D. PETITIONER HAS ESTABLISHED A PRIMA FACIE PRESUMPTION OF UNLAWFULLY ACQU

WEALTH.
II
SUMMARY JUDGMENT IS PROPER SINCE PRIVATE RESPONDENTS HAVE NOT RAISED ANY GEN
ISSUE OF FACT CONSIDERING THAT:
A. PRIVATE RESPONDENTS' DEFENSE THAT SWISS DEPOSITS WERE LAWFULLY ACQUIR

DOES NOT ONLY FAIL TO TENDER AN ISSUE BUT IS CLEARLY A SHAM; AND
B. IN SUBSEQUENTLY DISCLAIMING OWNERSHIP OF THE SWISS DEPOSITS, PRIVATE

RESPONDENTS ABANDONED THEIR SHAM DEFENSE OF LEGITIMATE ACQUISITION, AND
FURTHER JUSTIFIED THE RENDITION OF A SUMMARY JUDGMENT.
III
THE FOREIGN FOUNDATIONS NEED NOT BE IMPLEADED.
IV
THE HONORABLE PRESIDING JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION IN REVERS

HIMSELF ON THE GROUND THAT ORIGINAL COPIES OF THE AUTHENTICATED SWISS DECISIONS
THEIR "AUTHENTICATED TRANSLATIONS" HAVE NOT BEEN SUBMITTED TO THE COURT, WHEN E
THE SANDIGANBAYAN HAS QUOTED EXTENSIVELY A PORTION OF THE TRANSLATION OF ONE O
THESE SWISS DECISIONS IN HIS "PONENCIA" DATED JULY 29, 1999 WHEN IT DENIED THE MOTIO
RELEASE ONE HUNDRED FIFTY MILLION US DOLLARS ($150,000,000.00) TO THE HUMAN RIGHTS
VICTIMS.
V
PRIVATE RESPONDENTS ARE DEEMED TO HAVE WAIVED THEIR OBJECTION TO THE AUTHENTIC
THE SWISS FEDERAL SUPREME COURT DECISIONS.13
Petitioner, in the main, asserts that nowhere in the respondents' motions for reconsideration and supplemental motion fo
reconsideration were the authenticity, accuracy and admissibility of the Swiss decisions ever challenged. Otherwise state
incorrect for the Sandiganbayan to use the issue of lack of authenticated translations of the decisions of the Swiss Feder
Supreme Court as the basis for reversing itself because respondents themselves never raised this issue in their motions
reconsideration and supplemental motion for reconsideration. Furthermore, this particular issue relating to the translation
Swiss court decisions could not be resurrected anymore because said decisions had been previously utilized by the
Sandiganbayan itself in resolving a "decisive issue" before it.
Petitioner faults the Sandiganbayan for questioning the non-production of the authenticated translations of the Swiss Fed
Supreme Court decisions as this was a marginal and technical matter that did not diminish by any measure the conclusiv
and strength of what had been proven and admitted before the Sandiganbayan, that is, that the funds deposited by the M
constituted ill-gotten wealth and thus belonged to the Filipino people.
In compliance with the order of this Court, Mrs. Marcos filed her comment to the petition on May 22, 2002. After several m
for extension which were all granted, the comment of Mrs. Manotoc and Ferdinand, Jr. and the separate comment of Mrs
Araneta were filed on May 27, 2002.
Mrs. Marcos asserts that the petition should be denied on the following grounds:
A.
PETITIONER HAS A PLAIN, SPEEDY, AND ADEQUATE REMEDY AT THE SANDIGANBAYAN.
B.
THE SANDIGANBAYAN DID NOT ABUSE ITS DISCRETION IN SETTING THE CASE FOR FURTHER
PROCEEDINGS.14
Mrs. Marcos contends that petitioner has a plain, speedy and adequate remedy in the ordinary course of law in view of th
resolution of the Sandiganbayan dated January 31, 2000 directing petitioner to submit the authenticated translations of th
decisions. Instead of availing of said remedy, petitioner now elevates the matter to this Court. According to Mrs. Marcos,
petition for certiorari which does not comply with the requirements of the rules may be dismissed. Since petitioner has a
speedy and adequate remedy, that is, to proceed to trial and submit authenticated translations of the Swiss decisions, its
before this Court must be dismissed. Corollarily, the Sandiganbayan's ruling to set the case for further proceedings cann
should not be considered a capricious and whimsical exercise of judgment.
Likewise, Mrs. Manotoc and Ferdinand, Jr., in their comment, prayed for the dismissal of the petition on the grounds that
(A)
BY THE TIME PETITIONER FILED ITS MOTION FOR SUMMARY JUDGMENT ON 10 MARCH 2000, IT
ALREADY BARRED FROM DOING SO.
(1) The Motion for Summary Judgment was based on private respondents' Answer and other documents
long been in the records of the case. Thus, by the time the Motion was filed on 10 March 2000, estoppel
laches had already set in against petitioner.
(2) By its positive acts and express admissions prior to filing the Motion for Summary Judgment on 10 Ma
1990, petitioner had legally bound itself to go to trial on the basis of existing issues. Thus, it clearly waive
whatever right it had to move for summary judgment.
(B)
EVEN ASSUMING THAT PETITIONER WAS NOT LEGALLY BARRED FROM FILING THE MOTION FO
SUMMARY JUDGMENT, THE SANDIGANBAYAN IS CORRECT IN RULING THAT PETITIONER HAS N
ESTABLISHED A PRIMA FACIE CASE FOR THE FORFEITURE OF THE SWISS FUNDS.
(1) Republic Act No. 1379, the applicable law, is a penal statute. As such, its provisions, particularly the e
elements stated in section 3 thereof, are mandatory in nature. These should be strictly construed against
petitioner and liberally in favor of private respondents.
(2) Petitioner has failed to establish the third and fourth essential elements in Section 3 of R.A. 1379 with
to the identification, ownership, and approximate amount of the property which the Marcos couple alleged
"acquired during their incumbency".
(a) Petitioner has failed to prove that the Marcos couple "acquired" or own the Swiss funds.
(b) Even assuming, for the sake of argument, that the fact of acquisition has been proven, petition
categorically admitted that it has no evidence showing how much of the Swiss funds was acquire
the incumbency" of the Marcos couple from 31 December 1965 to 25 February 1986.
(3) In contravention of the essential element stated in Section 3 (e) of R.A. 1379, petitioner has fa
establish the other proper earnings and income from legitimately acquired property of the Marcos
over and above their government salaries.
(4) Since petitioner failed to prove the three essential elements provided in paragraphs (c) 15 (d),16 and (e)1
Section 3, R.A. 1379, the inescapable conclusion is that the prima facie presumption of unlawful acquisiti
Swiss funds has not yet attached. There can, therefore, be no premature forfeiture of the funds.
(C)
IT WAS ONLY BY ARBITRARILY ISOLATING AND THEN TAKING CERTAIN STATEMENTS MADE BY P
RESPONDENTS OUT OF CONTEXT THAT PETITIONER WAS ABLE TO TREAT THESE AS "JUDICIAL
ADMISSIONS" SUFFICIENT TO ESTABLISH A PRIMA FACIE AND THEREAFTER A CONCLUSIVE CAS
JUSTIFY THE FORFEITURE OF THE SWISS FUNDS.
(1) Under Section 27, Rule 130 of the Rules of Court, the General and Supplemental Agreements, as we
other written and testimonial statements submitted in relation thereto, are expressly barred from being ad
in evidence against private respondents.
(2) Had petitioner bothered to weigh the alleged admissions together with the other statements on record
would be a demonstrable showing that no such "judicial admissions" were made by private respondents.
(D)
SINCE PETITIONER HAS NOT (YET) PROVEN ALL THE ESSENTIAL ELEMENTS TO ESTABLISH A P
FACIE CASE FOR FORFEITURE, AND PRIVATE RESPONDENTS HAVE NOT MADE ANY JUDICIAL
ADMISSION THAT WOULD HAVE FREED IT FROM ITS BURDEN OF PROOF, THE SANDIGANBAYAN
NOT COMMIT GRAVE ABUSE OF DISCRETION IN DENYING THE MOTION FOR SUMMARY JUDGME
CERTIORARI, THEREFORE, DOES NOT LIE, ESPECIALLY AS THIS COURT IS NOT A TRIER OF FAC
For her part, Mrs. Araneta, in her comment to the petition, claims that obviously petitioner is unable to comply with a very
requirement of respondent Sandiganbayan. The instant petition is allegedly an attempt to elevate to this Court matters, is
and incidents which should be properly threshed out at the Sandiganbayan. To respondent Mrs. Araneta, all other matter
that pertaining to the authentication of the translated Swiss Court decisions, are irrelevant and impertinent as far as this C
concerned. Respondent Mrs. Araneta manifests that she is as eager as respondent Sandiganbayan or any interested pe
have the Swiss Court decisions officially translated in our known language. She says the authenticated official English ve
the Swiss Court decisions should be presented. This should stop all speculations on what indeed is contained therein. Th
respondent Mrs. Araneta prays that the petition be denied for lack of merit and for raising matters which, in elaborated fa
are impertinent and improper before this Court.
PROPRIETY OF PETITIONER'S ACTION FOR CERTIORARI
But before this Court discusses the more relevant issues, the question regarding the propriety of petitioner Republic's ac
certiorari under Rule 6519 of the 1997 Rules of Civil Procedure assailing the Sandiganbayan Resolution dated January 21
should be threshed out.
At the outset, we would like to stress that we are treating this case as an exception to the general rule governing petition
certiorari. Normally, decisions of the Sandiganbayan are brought before this Court under Rule 45, not Rule 65. 20 But whe
case is undeniably ingrained with immense public interest, public policy and deep historical repercussions, certiorari is al
notwithstanding the existence and availability of the remedy of appeal. 21
One of the foremost concerns of the Aquino Government in February 1986 was the recovery of the unexplained or ill-got
wealth reputedly amassed by former President and Mrs. Ferdinand E. Marcos, their relatives, friends and business asso
Thus, the very first Executive Order (EO) issued by then President Corazon Aquino upon her assumption to office after th
of the Marcoses was EO No. 1, issued on February 28, 1986. It created the Presidential Commission on Good Governm
(PCGG) and charged it with the task of assisting the President in the "recovery of all ill-gotten wealth accumulated by for
President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in th
Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled
them during his administration, directly or through nominees, by taking undue advantage of their public office and/or usin
powers, authority, influence, connections or relationship." The urgency of this undertaking was tersely described by this C
Republic vs. Lobregat22:
surely x x x an enterprise "of great pith and moment"; it was attended by "great expectations"; it was initia
only out of considerations of simple justice but also out of sheer necessity - the national coffers were emp
nearly so.
In all the alleged ill-gotten wealth cases filed by the PCGG, this Court has seen fit to set aside technicaliti
formalities that merely serve to delay or impede judicious resolution. This Court prefers to have such cas
resolved on the merits at the Sandiganbayan. But substantial justice to the Filipino people and to all parti
concerned, not mere legalisms or perfection of form, should now be relentlessly and firmly pursued. Almo
decades have passed since the government initiated its search for and reversion of such ill-gotten wealth
definitive resolution of such cases on the merits is thus long overdue. If there is proof of illegal acquisition
accumulation, misappropriation, fraud or illicit conduct, let it be brought out now. Let the ownership of the
and other assets be finally determined and resolved with dispatch, free from all the delaying technicalities
annoying procedural sidetracks.23
We thus take cognizance of this case and settle with finality all the issues therein.
ISSUES BEFORE THIS COURT
The crucial issues which this Court must resolve are: (1) whether or not respondents raised any genuine issue of fact wh
would either justify or negate summary judgment; and (2) whether or not petitioner Republic was able to prove its case fo
forfeiture in accordance with Sections 2 and 3 of RA 1379.
(1) THE PROPRIETY OF SUMMARY JUDGMENT
We hold that respondent Marcoses failed to raise any genuine issue of fact in their pleadings. Thus, on motion of petition
Republic, summary judgment should take place as a matter of right.
In the early case of Auman vs. Estenzo 24, summary judgment was described as a judgment which a court may render be
but after both parties have pleaded. It is ordered by the court upon application by one party, supported by affidavits, depo
or other documents, with notice upon the adverse party who may in turn file an opposition supported also by affidavits,
depositions or other documents. This is after the court summarily hears both parties with their respective proofs and find
there is no genuine issue between them. Summary judgment is sanctioned in this jurisdiction by Section 1, Rule 35 of the
Rules of Civil Procedure:
SECTION 1. Summary judgment for claimant.- A party seeking to recover upon a claim, counterclaim, or
claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been serv
move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all o
part thereof.25
Summary judgment is proper when there is clearly no genuine issue as to any material fact in the action. 26 The theory of
summary judgment is that, although an answer may on its face appear to tender issues requiring trial, if it is demonstrate
affidavits, depositions or admissions that those issues are not genuine but sham or fictitious, the Court is justified in disp
with the trial and rendering summary judgment for petitioner Republic.
The Solicitor General made a very thorough presentation of its case for forfeiture:
xxx
4. Respondent Ferdinand E. Marcos (now deceased and represented by his Estate/Heirs) was a public o
several decades continuously and without interruption as Congressman, Senator, Senate President and
President of the Republic of the Philippines from December 31, 1965 up to his ouster by direct action of t
people of EDSA on February 22-25, 1986.
5. Respondent Imelda Romualdez Marcos (Imelda, for short) the former First Lady who ruled with FM du
14-year martial law regime, occupied the position of Minister of Human Settlements from June 1976 up to
peaceful revolution in February 22-25, 1986. She likewise served once as a member of the Interim Batas
Pambansa during the early years of martial law from 1978 to 1984 and as Metro Manila Governor in conc
capacity as Minister of Human Settlements. x x x
xxx xxx xxx
11. At the outset, however, it must be pointed out that based on the Official Report of the Minister of Budg
total salaries of former President Marcos as President form 1966 to 1976 was P60,000 a year and from 1
1985, P100,000 a year; while that of the former First Lady, Imelda R. Marcos, as Minister of Human Settl
from June 1976 to February 22-25, 1986 was P75,000 a year xxx.
ANALYSIS OF RESPONDENTS LEGITIMATE INCOME
xxx
12. Based on available documents, the ITRs of the Marcoses for the years 1965-1975 were filed under T
Identification No. 1365-055-1. For the years 1976 until 1984, the returns were filed under Tax Identificatio
6221-J 1117-A-9.
13. The data contained in the ITRs and Balance Sheet filed by the "Marcoses are summarized and attach
the reports in the following schedules:
Schedule A:
Schedule of Income (Annex "T" hereof);
Schedule B:
Schedule of Income Tax Paid (Annex "T-1" hereof);
Schedule C:
Schedule of Net Disposable Income (Annex "T-2" hereof);
Schedule D:
Schedule of Networth Analysis (Annex "T-3" hereof).
14. As summarized in Schedule A (Annex "T" hereof), the Marcoses reported P16,408,442.00 or
US$2,414,484.91 in total income over a period of 20 years from 1965 to 1984. The sources of income are
follows:
Official Salaries - P 2,627,581.00 - 16.01%

Legal Practice - 11,109,836.00 - 67.71%
Farm Income - 149,700.00 - .91%
Others - 2,521,325.00 - 15.37%
Total P16,408,442.00 - 100.00%
15. FM's official salary pertains to his compensation as Senate President in 1965 in the amount of P15,93
and P1,420,000.00 as President of the Philippines during the period 1966 until 1984. On the other hand,
reported salaries and allowances only for the years 1979 to 1984 in the amount of P1,191,646.00. The re
indicate that the reported income came from her salary from the Ministry of Human Settlements and allow
from Food Terminal, Inc., National Home Mortgage Finance Corporation, National Food Authority Counci
Rail Transit Authority and Home Development Mutual Fund.
16. Of the P11,109,836.00 in reported income from legal practice, the amount of P10,649,836.00 or 96%
represents "receivables from prior years" during the period 1967 up to 1984.
17. In the guise of reporting income using the cash method under Section 38 of the National Internal Rev
Code, FM made it appear that he had an extremely profitable legal practice before he became a Presiden
being barred by law from practicing his law profession during his entire presidency) and that, incredibly, h
still receiving payments almost 20 years after. The only problem is that in his Balance Sheet attached to h
ITR immediately preceeding his ascendancy to the presidency he did not show any Receivables from clie
much less the P10,65-M that he decided to later recognize as income. There are no documents showing
withholding tax certificates. Likewise, there is nothing on record that will show any known Marcos client a
no known law office. As previously stated, his networth was a mere P120,000.00 in December, 1965. The
income tax returns of FM and Imelda cannot, therefore, conceal the skeletons of their kleptocracy.
18. FM reported a total of P2,521,325.00 as Other Income for the years 1972 up to 1976 which he referre
his return as "Miscellaneous Items" and "Various Corporations." There is no indication of any payor of the
dividends or earnings.
19. Spouses Ferdinand and Imelda did not declare any income from any deposits and placements which
subject to a 5% withholding tax. The Bureau of Internal Revenue attested that after a diligent search of pe
records on file with the Records Division, they did not find any records involving the tax transactions of sp
Ferdinand and Imelda in Revenue Region No. 1, Baguio City, Revenue Region No.4A, Manila, Revenue
No. 4B1, Quezon City and Revenue No. 8, Tacloban, Leyte. Likewise, the Office of the Revenue Collecto
Batac. Further, BIR attested that no records were found on any filing of capital gains tax return involving s
FM and Imelda covering the years 1960 to 1965.
20. In Schedule B, the taxable reported income over the twenty-year period was P14,463,595.00 which
represents 88% of the gross income. The Marcoses paid income taxes totaling P8,233,296.00 or
US$1,220,667.59. The business expenses in the amount of P861,748.00 represent expenses incurred fo
subscription, postage, stationeries and contributions while the other deductions in the amount of P567,09
represents interest charges, medicare fees, taxes and licenses. The total deductions in the amount of
P1,994,845.00 represents 12% of the total gross income.
21. In Schedule C, the net cumulative disposable income amounts to P6,756,301.00 or US$980,709.77.
the amount that represents that portion of the Marcoses income that is free for consumption, savings and
investments. The amount is arrived at by adding back to the net income after tax the personal and additio
exemptions for the years 1965-1984, as well as the tax-exempt salary of the President for the years 1966
1972.
22. Finally, the networth analysis in Schedule D, represents the total accumulated networth of spouses,
Ferdinand and Imelda. Respondent's Balance Sheet attached to their 1965 ITR, covering the year immed
preceding their ascendancy to the presidency, indicates an ending networth of P120,000.00 which FM de
as Library and Miscellaneous assets. In computing for the networth, the income approach was utilized. U
approach, the beginning capital is increased or decreased, as the case may be, depending upon the inco
earned or loss incurred. Computations establish the total networth of spouses Ferdinand and Imelda, for
years 1965 until 1984 in the total amount of US$957,487.75, assuming the income from legal practice is
valid x x x.
G. THE SECRET MARCOS DEPOSITS IN SWISS BANKS
23. The following presentation very clearly and overwhelmingly show in detail how both respondents
clandestinely stashed away the country's wealth to Switzerland and hid the same under layers upon laye
foundations and other corporate entities to prevent its detection. Through their dummies/nominees, fronts
agents who formed those foundations or corporate entities, they opened and maintained numerous bank
accounts. But due to the difficulty if not the impossibility of detecting and documenting all those secret ac
as well as the enormity of the deposits therein hidden, the following presentation is confined to five identi
accounts groups, with balances amounting to about $356-M with a reservation for the filing of a suppleme
separate forfeiture complaint should the need arise.
H. THE AZIO-VERSO-VIBUR FOUNDATION ACCOUNTS
24. On June 11, 1971, Ferdinand Marcos issued a written order to Dr. Theo Bertheau, legal counsel of
Schweizeresche Kreditanstalt or SKA, also known as Swiss Credit Bank, for him to establish the AZIO
Foundation. On the same date, Marcos executed a power of attorney in favor of Roberto S. Benedicto
empowering him to transact business in behalf of the said foundation. Pursuant to the said Marcos mand
AZIO Foundation was formed on June 21, 1971 in Vaduz. Walter Fessler and Ernst Scheller, also of SKA
Service, and Dr. Helmuth Merling from Schaan were designated as members of the Board of Trustees of
foundation. Ferdinand Marcos was named first beneficiary and the Marcos Foundation, Inc. was second
beneficiary. On November 12, 1971, FM again issued another written order naming Austrahil PTY Ltd. In
Australia, as the foundation's first and sole beneficiary. This was recorded on December 14, 1971.
25. In an undated instrument, Marcos changed the first and sole beneficiary to CHARIS FOUNDATION. T
change was recorded on December 4, 1972.
26. On August 29, 1978, the AZIO FOUNDATION was renamed to VERSO FOUNDATION. The Board of
remained the same. On March 11, 1981, Marcos issued a written directive to liquidated VERSO FOUNDA
and to transfer all its assets to account of FIDES TRUST COMPANY at Bank Hofman in Zurich under the
"Reference OSER." The Board of Trustees decided to dissolve the foundation on June 25, 1981.
27. In an apparent maneuver to bury further the secret deposits beneath the thick layers of corporate ent
effected the establishment of VIBUR FOUNDATION on May 13, 1981 in Vaduz. Atty. Ivo Beck and Limag
Management, a wholly-owned subsidiary of Fides Trust, were designated as members of the Board of Tr
The account was officially opened with SKA on September 10, 1981. The beneficial owner was not made
to the bank since Fides Trust Company acted as fiduciary. However, comparison of the listing of the secu
the safe deposit register of the VERSO FOUNDATION as of February 27, 1981 with that of VIBUR FOUN
as of December 31, 1981 readily reveals that exactly the same securities were listed.
28. Under the foregoing circumstances, it is certain that the VIBUR FOUNDATION is the beneficial succe
VERSO FOUNDATION.
29. On March 18, 1986, the Marcos-designated Board of Trustees decided to liquidate VIBUR FOUNDAT
notice of such liquidation was sent to the Office of the Public Register on March 21, 1986. However, the b
accounts and respective balances of the said VIBUR FOUNDATION remained with SKA. Apparently, the
liquidation was an attempt by the Marcoses to transfer the foundation's funds to another account or bank
was prevented by the timely freeze order issued by the Swiss authorities. One of the latest documents ob
by the PCGG from the Swiss authorities is a declaration signed by Dr. Ivo Beck (the trustee) stating that t
beneficial owner of VIBUR FOUNDATION is Ferdinand E. Marcos. Another document signed by G. Rabe
shows that VIBUR FOUNDATION is owned by the "Marcos Familie"
30. As of December 31, 1989, the balance of the bank accounts of VIBUR FOUNDATION with SKA, Zuric
the General Account No. 469857 totaled $3,597,544.00
I. XANDY-WINTROP: CHARIS-SCOLARI-
VALAMO-SPINUS-AVERTINA FOUNDATION ACCOUNTS
31. This is the most intricate and complicated account group. As the Flow Chart hereof shows, two (2) gro
under the foundation organized by Marcos dummies/nominees for FM's benefit, eventually joined togethe
became one (1) account group under the AVERTINA FOUNDATION for the benefit of both FM and Imeld
the biggest group from where the $50-M investment fund of the Marcoses was drawn when they bought t
Central Bank's dollar-denominated treasury notes with high-yielding interests.
32. On March 20, 1968, after his second year in the presidency, Marcos opened bank accounts with SKA
an alias or pseudonym WILLIAM SAUNDERS, apparently to hide his true identity. The next day, March 2
his First Lady, Mrs. Imelda Marcos also opened her own bank accounts with the same bank using an Am
sounding alias, JANE RYAN. Found among the voluminous documents in Malacañang shortly after they
Hawaii in haste that fateful night of February 25, 1986, were accomplished forms for "Declaration/Specim
Signatures" submitted by the Marcos couple. Under the caption "signature(s)" Ferdinand and Imelda sign
real names as well as their respective aliases underneath. These accounts were actively operated and
maintained by the Marcoses for about two (2) years until their closure sometime in February, 1970 and th
balances transferred to XANDY FOUNDATION.
33. The XANDY FOUNDATION was established on March 3, 1970 in Vaduz. C.W. Fessler, C. Souviron a
Scheller were named as members of the Board of Trustees.
34. FM and Imelda issued the written mandate to establish the foundation to Markus Geel of SKA on Mar
1970. In the handwritten Regulations signed by the Marcos couple as well as in the type-written Regulatio
signed by Markus Geel both dated February 13, 1970, the Marcos spouses were named the first benefici
the surviving spouse as the second beneficiary and the Marcos children – Imee, Ferdinand, Jr. (Bongbon
Irene – as equal third beneficiaries.
35. The XANDY FOUNDATION was renamed WINTROP FOUNDATION on August 29, 1978. The Board
Trustees remained the same at the outset. However, on March 27, 1980, Souviron was replaced by Dr. P
Ritter. On March 10. 1981, Ferdinand and Imelda Marcos issued a written order to the Board of Wintrop t
liquidate the foundation and transfer all its assets to Bank Hofmann in Zurich in favor of FIDES TRUST
COMPANY. Later, WINTROP FOUNDATION was dissolved.
36. The AVERTINA FOUNDATION was established on May 13, 1981 in Vaduz with Atty. Ivo Beck and Lim
Management, a wholly-owned subsidiary of FIDES TRUST CO., as members of the Board of Trustees. T
account categories, namely: CAR and NES, were opened on September 10, 1981. The beneficial owner
AVERTINA was not made known to the bank since the FIDES TRUST CO. acted as fiduciary. However, t
securities listed in the safe deposit register of WINTROP FOUNDATION Category R as of December 31,
were the same as those listed in the register of AVERTINA FOUNDATION Category CAR as of Decembe
1981. Likewise, the securities listed in the safe deposit register of WINTROP FOUNDATION Category S
December 31, 1980 were the same as those listed in the register of Avertina Category NES as of Decem
1981.Under the circumstances, it is certain that the beneficial successor of WINTROP FOUNDATION is
AVERTINA FOUNDATION. The balance of Category CAR as of December 31, 1989 amounted to
US$231,366,894.00 while that of Category NES as of 12-31-83 was US$8,647,190.00. Latest documents
received from Swiss authorities included a declaration signed by IVO Beck stating that the beneficial own
AVERTINA FOUNDATION are FM and Imelda. Another document signed by G. Raber of SKA indicates th
Avertina Foundation is owned by the "Marcos Families."
37. The other groups of foundations that eventually joined AVERTINA were also established by FM throug
dummies, which started with the CHARIS FOUNDATION.
38. The CHARIS FOUNDATION was established in VADUZ on December 27, 1971. Walter Fessler and E
Scheller of SKA and Dr. Peter Ritter were named as directors. Dr. Theo Bertheau, SKA legal counsel, act
founding director in behalf of FM by virtue of the mandate and agreement dated November 12, 1971. FM
was named the first beneficiary and Xandy Foundation as second beneficiary in accordance with the han
instructions of FM on November 12, 1971 and the Regulations. FM gave a power of attorney to Roberto S
Benedicto on February 15, 1972 to act in his behalf with regard to Charis Foundation.
39. On December 13, 1974, Charis Foundation was renamed Scolari Foundation but the directors remain
same. On March 11, 1981 FM ordered in writing that the Valamo Foundation be liquidated and all its asse
transferred to Bank Hofmann, AG in favor of Fides Trust Company under the account "Reference OMAL"
Board of Directors decided on the immediate dissolution of Valamo Foundation on June 25, 1981.
40 The SPINUS FOUNDATION was established on May 13, 1981 in Vaduz with Atty. Ivo Beck and Limag
Management, a wholly-owned subsidiary of Fides Trust Co., as members of the Foundation's Board of D
The account was officially opened with SKA on September 10, 1981. The beneficial owner of the foundat
not made known to the bank since Fides Trust Co. acted as fiduciary. However, the list of securities in the
deposit register of Valamo Foundation as of December 31, 1980 are practically the same with those listed
safe deposit register of Spinus Foundation as of December 31, 1981. Under the circumstances, it is certa
the Spinus Foundation is the beneficial successor of the Valamo Foundation.
41. On September 6, 1982, there was a written instruction from Spinus Foundation to SKA to close its Sw
Franc account and transfer the balance to Avertina Foundation. In July/August, 1982, several transfers fr
foundation's German marks and US dollar accounts were made to Avertina Category CAR totaling DM 29
and $58-M, respectively. Moreover, a comparison of the list of securities of the Spinus Foundation as of F
3, 1982 with the safe deposit slips of the Avertina Foundation Category CAR as of August 19, 1982 show
the securities of Spinus were transferred to Avertina.
J. TRINIDAD-RAYBY-PALMY FOUNDATION ACCOUNTS
42. The Trinidad Foundation was organized on August 26, 1970 in Vaduz with C.W. Fessler and E. Schel
SKA and Dr. Otto Tondury as the foundation's directors. Imelda issued a written mandate to establish the
foundation to Markus Geel on August 26, 1970. The regulations as well as the agreement, both dated Au
1970 were likewise signed by Imelda. Imelda was named the first beneficiary and her children Imelda (Im
Ferdinand, Jr. (Bongbong) and, Irene were named as equal second beneficiaries.
43. Rayby Foundation was established on June 22, 1973 in Vaduz with Fessler, Scheller and Ritter as me
of the board of directors. Imelda issued a written mandate to Dr. Theo Bertheau to establish the foundatio
note that the foundation's capitalization as well as the cost of establishing it be debited against the accou
Trinidad Foundation. Imelda was named the first and only beneficiary of Rayby foundation. According to w
information from SKA dated November 28, 1988, Imelda apparently had the intention in 1973 to transfer
the assets of Trinidad Foundation to another foundation, thus the establishment of Rayby Foundation. Ho
transfer of assets never took place. On March 10, 1981, Imelda issued a written order to transfer all the a
Rayby Foundation to Trinidad Foundation and to subsequently liquidate Rayby. On the same date, she is
written order to the board of Trinidad to dissolve the foundation and transfer all its assets to Bank Hofman
favor of Fides Trust Co. Under the account "Reference Dido," Rayby was dissolved on April 6, 1981 and
was liquidated on August 3, 1981.
44. The PALMY FOUNDATION was established on May 13, 1981 in Vaduz with Dr. Ivo Beck and Limag
Management, a wholly-owned subsidiary of Fides Trust Co, as members of the Foundation's Board of Dir
The account was officially opened with the SKA on September 10, 1981. The beneficial owner was not m
known to the bank since Fides Trust Co. acted as fiduciary. However, when one compares the listing of s
in the safe deposit register of Trinidad Foundation as of December 31,1980 with that of the Palmy Found
of December 31, 1980, one can clearly see that practically the same securities were listed. Under the
circumstances, it is certain that the Palmy Foundation is the beneficial successor of the Trinidad Foundat
45. As of December 31, 1989, the ending balance of the bank accounts of Palmy Foundation under Gene
Account No. 391528 is $17,214,432.00.
46. Latest documents received from Swiss Authorities included a declaration signed by Dr. Ivo Beck statin
the beneficial owner of Palmy Foundation is Imelda. Another document signed by Raber shows that the s
Palmy Foundation is owned by "Marcos Familie".
K. ROSALYS-AGUAMINA FOUNDATION ACCOUNTS
47. Rosalys Foundation was established in 1971 with FM as the beneficiary. Its Articles of Incorporation w
executed on September 24, 1971 and its By-Laws on October 3, 1971. This foundation maintained sever
accounts with Swiss Bank Corporation (SBC) under the general account 51960 where most of the bribe m
from Japanese suppliers were hidden.
48. On December 19, 1985, Rosalys Foundation was liquidated and all its assets were transferred to Agu
Corporation's (Panama) Account No. 53300 with SBC. The ownership by Aguamina Corporation of Accou
53300 is evidenced by an opening account documents from the bank. J. Christinaz and R.L. Rossier, Firs
President and Senior Vice President, respectively, of SBC, Geneva issued a declaration dated Septembe
1991 stating that the by-laws dated October 3, 1971 governing Rosalys Foundation was the same by-law
to Aguamina Corporation Account No. 53300. They further confirmed that no change of beneficial owner
involved while transferring the assets of Rosalys to Aguamina. Hence, FM remains the beneficiary of Agu
Corporation Account No. 53300.
As of August 30, 1991, the ending balance of Account No. 53300 amounted to $80,566,483.00.
L. MALER FOUNDATION ACCOUNTS
49. Maler was first created as an establishment. A statement of its rules and regulations was found amon
Malacañang documents. It stated, among others, that 50% of the Company's assets will be for sole and f
disposal of FM and Imelda during their lifetime, which the remaining 50% will be divided in equal parts am
their children. Another Malacañang document dated October 19,1968 and signed by Ferdinand and Imeld
pertains to the appointment of Dr. Andre Barbey and Jean Louis Sunier as attorneys of the company and
administrator and manager of all assets held by the company. The Marcos couple, also mentioned in the
document that they bought the Maler Establishment from SBC, Geneva. On the same date, FM and Imel
issued a letter addressed to Maler Establishment, stating that all instructions to be transmitted with regard
Maler will be signed with the word "JOHN LEWIS". This word will have the same value as the couple's ow
personal signature. The letter was signed by FM and Imelda in their signatures and as John Lewis.
50. Maler Establishment opened and maintained bank accounts with SBC, Geneva. The opening bank
documents were signed by Dr. Barbey and Mr. Sunnier as authorized signatories.
51. On November 17, 1981, it became necessary to transform Maler Establishment into a foundation. Lik
the attorneys were changed to Michael Amaudruz, et. al. However, administration of the assets was left t
The articles of incorporation of Maler Foundation registered on November 17, 1981 appear to be the sam
articles applied to Maler Establishment. On February 28, 1984, Maler Foundation cancelled the power of
for the management of its assets in favor of SBC and transferred such power to Sustrust Investment Co.,
52. As of June 6, 1991, the ending balance of Maler Foundation's Account Nos. 254,508 BT and 98,929 N
amount SF 9,083,567 and SG 16,195,258, respectively, for a total of SF 25,278,825.00. GM only until De
31, 1980. This account was opened by Maler when it was still an establishment which was subsequently
transformed into a foundation.
53. All the five (5) group accounts in the over-all flow chart have a total balance of about Three Hundred F
Million Dollars ($356,000,000.00) as shown by Annex "R-5" hereto attached as integral part hereof.
xxx x x x.27
Respondents Imelda R. Marcos, Maria Imelda M. Manotoc, Irene M. Araneta and Ferdinand Marcos, Jr., in their answer,
the following:
xxx xxx xxx
4. Respondents ADMIT paragraphs 3 and 4 of the Petition.
5. Respondents specifically deny paragraph 5 of the Petition in so far as it states that summons and othe
processes may be served on Respondent Imelda R. Marcos at the stated address the truth of the matter
that Respondent Imelda R. Marcos may be served with summons and other processes at No. 10-B Bel A
Condominium 5022 P. Burgos Street, Makati, Metro Manila, and ADMIT the rest.
xxx xxx xxx
10. Respondents ADMIT paragraph 11 of the Petition.
11. Respondents specifically DENY paragraph 12 of the Petition for lack of knowledge sufficient to form a
as to the truth of the allegation since Respondents were not privy to the transactions and that they canno
remember exactly the truth as to the matters alleged.
12. Respondents specifically DENY paragraph 13 of the Petition for lack of knowledge or information suff
form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the con
the alleged ITRs and Balance Sheet.
the alleged ITRs.
the alleged ITRs.
the alleged ITRs.
16. Respondents specifically DENY paragraph 17 of the Petition insofar as it attributes willful duplicity on
of the late President Marcos, for being false, the same being pure conclusions based on pure assumption
allegations of fact; and specifically DENY the rest for lack of knowledge or information sufficient to form a
to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alle
ITRs or the attachments thereto.
the alleged ITRs.
the alleged ITRs and that they are not privy to the activities of the BIR.
the alleged ITRs.
the alleged ITRs.
the alleged ITRs.
22. Respondents specifically DENY paragraph 23 insofar as it alleges that Respondents clandestinely sta
the country's wealth in Switzerland and hid the same under layers and layers of foundation and corporate
for being false, the truth being that Respondents aforesaid properties were lawfully acquired.
23. Respondents specifically DENY paragraphs 24, 25, 26, 27, 28, 29 and 30 of the Petition for lack of kn
or information sufficient to form a belief as to the truth of the allegation since Respondents were not privy
transactions regarding the alleged Azio-Verso-Vibur Foundation accounts, except that as to Respondent
R. Marcos she specifically remembers that the funds involved were lawfully acquired.
24. Respondents specifically DENY paragraphs 31, 32, 33, 34, 35, 36,37, 38, 39, 40, and 41 of the Petitio
lack of knowledge or information sufficient to form a belief as to the truth of the allegations since Respond
not privy to the transactions and as to such transaction they were privy to they cannot remember with exa
the same having occurred a long time ago, except that as to Respondent Imelda R. Marcos she specifica
remembers that the funds involved were lawfully acquired.
25. Respondents specifically DENY paragraphs 42, 43, 44, 45, and 46, of the Petition for lack of knowled
information sufficient to form a belief as to the truth of the allegations since Respondents were not privy t
transactions and as to such transaction they were privy to they cannot remember with exactitude the sam
occurred a long time ago, except that as to Respondent Imelda R. Marcos she specifically remembers th
funds involved were lawfully acquired.
26. Respondents specifically DENY paragraphs 49, 50, 51 and 52, of the Petition for lack of knowledge o
information sufficient to form a belief as to the truth of the allegations since Respondents were not privy t
occurred a long time ago, except that as to Respondent Imelda R. Marcos she specifically remembers th
Upon careful perusal of the foregoing, the Court finds that respondent Mrs. Marcos and the Marcos children indubitably f
tender genuine issues in their answer to the petition for forfeiture. A genuine issue is an issue of fact which calls for the
presentation of evidence as distinguished from an issue which is fictitious and contrived, set up in bad faith or patently la
substance so as not to constitute a genuine issue for trial. Respondents' defenses of "lack of knowledge for lack of privity
"(inability to) recall because it happened a long time ago" or, on the part of Mrs. Marcos, that "the funds were lawfully acq
are fully insufficient to tender genuine issues. Respondent Marcoses' defenses were a sham and evidently calibrated to
compound and confuse the issues.
The following pleadings filed by respondent Marcoses are replete with indications of a spurious defense:
(a) Respondents' Answer dated October 18, 1993;
(b) Pre-trial Brief dated October 4, 1999 of Mrs. Marcos, Supplemental Pre-trial Brief dated October 19, 1
Ferdinand, Jr. and Mrs. Imee Marcos-Manotoc adopting the pre-trial brief of Mrs. Marcos, and Manifestat
dated October 19, 1999 of Irene Marcos-Araneta adopting the pre-trial briefs of her co- respondents;
(c) Opposition to Motion for Summary Judgment dated March 21, 2000, filed by Mrs. Marcos which the o
respondents (Marcos children) adopted;
(d) Demurrer to Evidence dated May 2, 2000 filed by Mrs. Marcos and adopted by the Marcos children;
(e) Motion for Reconsideration dated September 26, 2000 filed by Mrs. Marcos; Motion for Reconsiderati
October 5, 2000 jointly filed by Mrs. Manotoc and Ferdinand, Jr., and Supplemental Motion for Reconside
dated October 9, 2000 likewise jointly filed by Mrs. Manotoc and Ferdinand, Jr.;
(f) Memorandum dated December 12, 2000 of Mrs. Marcos and Memorandum dated December 17, 2000
Marcos children;
(g) Manifestation dated May 26, 1998; and
(h) General/Supplemental Agreement dated December 23, 1993.
An examination of the foregoing pleadings is in order.
• Respondents' Answer dated October 18, 1993.
In their answer, respondents failed to specifically deny each and every allegation contained in the petition for forfeiture in
manner required by the rules. All they gave were stock answers like "they have no sufficient knowledge" or "they could n
because it happened a long time ago," and, as to Mrs. Marcos, "the funds were lawfully acquired," without stating the ba
such assertions.
Section 10, Rule 8 of the 1997 Rules of Civil Procedure, provides:
A defendant must specify each material allegation of fact the truth of which he does not admit and, whene
practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where
defendant desires to deny only a part of an averment, he shall specify so much of it as is true and materia
shall deny the remainder. Where a defendant is without knowledge or information sufficient to form a beli
the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of
denial.28
The purpose of requiring respondents to make a specific denial is to make them disclose facts which will disprove the all
of petitioner at the trial, together with the matters they rely upon in support of such denial. Our jurisdiction adheres to this
avoid and prevent unnecessary expenses and waste of time by compelling both parties to lay their cards on the table, th
reducing the controversy to its true terms. As explained in Alonso vs. Villamor,29
A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art
movement and position, entraps and destroys the other. It is rather a contest in which each contending p
and fairly lays before the court the facts in issue and then, brushing aside as wholly trivial and indecisive
imperfections of form and technicalities of procedure, asks that justice be done upon the merits. Lawsuits
duels, are not to be won by a rapier's thrust.
On the part of Mrs. Marcos, she claimed that the funds were lawfully acquired. However, she failed to particularly state th
ultimate facts surrounding the lawful manner or mode of acquisition of the subject funds. Simply put, she merely stated in
answer with the other respondents that the funds were "lawfully acquired" without detailing how exactly these funds were
supposedly acquired legally by them. Even in this case before us, her assertion that the funds were lawfully acquired rem
bare and unaccompanied by any factual support which can prove, by the presentation of evidence at a hearing, that inde
funds were acquired legitimately by the Marcos family.
Respondents' denials in their answer at the Sandiganbayan were based on their alleged lack of knowledge or information
sufficient to form a belief as to the truth of the allegations of the petition.
It is true that one of the modes of specific denial under the rules is a denial through a statement that the defendant is with
knowledge or information sufficient to form a belief as to the truth of the material averment in the complaint. The question
however, is whether the kind of denial in respondents' answer qualifies as the specific denial called for by the rules. We d
think so. In Morales vs. Court of Appeals,30 this Court ruled that if an allegation directly and specifically charges a party w
having done, performed or committed a particular act which the latter did not in fact do, perform or commit, a categorical
express denial must be made.
Here, despite the serious and specific allegations against them, the Marcoses responded by simply saying that they had
knowledge or information sufficient to form a belief as to the truth of such allegations. Such a general, self-serving claim
ignorance of the facts alleged in the petition for forfeiture was insufficient to raise an issue. Respondent Marcoses should
positively stated how it was that they were supposedly ignorant of the facts alleged. 31
To elucidate, the allegation of petitioner Republic in paragraph 23 of the petition for forfeiture stated:
23. The following presentation very clearly and overwhelmingly show in detail how both respondents
clandestinely stashed away the country's wealth to Switzerland and hid the same under layers upon laye
foundations and other corporate entities to prevent its detection. Through their dummies/nominees, fronts
agents who formed those foundations or corporate entities, they opened and maintained numerous bank
accounts. But due to the difficulty if not the impossibility of detecting and documenting all those secret ac
as well as the enormity of the deposits therein hidden, the following presentation is confined to five identi
accounts groups, with balances amounting to about $356-M with a reservation for the filing of a suppleme
separate forfeiture complaint should the need arise. 32
Respondents' lame denial of the aforesaid allegation was:
22. Respondents specifically DENY paragraph 23 insofar as it alleges that Respondents clandestinely sta
the country's wealth in Switzerland and hid the same under layers and layers of foundations and corpora
entities for being false, the truth being that Respondents' aforesaid properties were lawfully acquired. 33
Evidently, this particular denial had the earmark of what is called in the law on pleadings as a negative pregnant, that is,
pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was in
an admission of the averments it was directed at.34 Stated otherwise, a negative pregnant is a form of negative expressio
carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant
admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language a
words of the allegation as so qualified or modified are literally denied, has been held that the qualifying circumstances al
denied while the fact itself is admitted.35
In the instant case, the material allegations in paragraph 23 of the said petition were not specifically denied by responden
paragraph 22 of their answer. The denial contained in paragraph 22 of the answer was focused on the averment in parag
of the petition for forfeiture that "Respondents clandestinely stashed the country's wealth in Switzerland and hid the sam
layers and layers of foundations and corporate entities." Paragraph 22 of the respondents' answer was thus a denial pre
with admissions of the following substantial facts:
(1) the Swiss bank deposits existed and
(2) that the estimated sum thereof was US$356 million as of December, 1990.
Therefore, the allegations in the petition for forfeiture on the existence of the Swiss bank deposits in the sum of about US
million, not having been specifically denied by respondents in their answer, were deemed admitted by them pursuant to S
11, Rule 8 of the 1997 Revised Rules on Civil Procedure:
Material averment in the complaint, xxx shall be deemed admitted when not specifically denied. xxx. 36
By the same token, the following unsupported denials of respondents in their answer were pregnant with admissions of t
substantial facts alleged in the Republic's petition for forfeiture:
23. Respondents specifically DENY paragraphs 24, 25, 26, 27, 28, 29 and 30 of the Petition for lack of kn
or information sufficient to form a belief as to the truth of the allegation since respondents were not privy
transactions regarding the alleged Azio-Verso-Vibur Foundation accounts, except that, as to respondent I
R. Marcos, she specifically remembers that the funds involved were lawfully acquired.
24. Respondents specifically DENY paragraphs 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 of the Petition fo
knowledge or information sufficient to form a belief as to the truth of the allegations since respondents we
privy to the transactions and as to such transactions they were privy to, they cannot remember with exac
same having occurred a long time ago, except as to respondent Imelda R. Marcos, she specifically reme
that the funds involved were lawfully acquired.
25. Respondents specifically DENY paragraphs 42, 43, 45, and 46 of the petition for lack of knowledge o
information sufficient to from a belief as to the truth of the allegations since respondents were not privy to
transactions and as to such transaction they were privy to, they cannot remember with exactitude, the sa
having occurred a long time ago, except that as to respondent Imelda R. Marcos, she specifically remem
the funds involved were lawfully acquired.
26. Respondents specifically DENY paragraphs 49, 50, 51 and 52 of the petition for lack of knowledge an
information sufficient to form a belief as to the truth of the allegations since respondents were not privy to
occurred a long time ago, except that as to respondent Imelda R. Marcos, she specifically remembers tha
The matters referred to in paragraphs 23 to 26 of the respondents' answer pertained to the creation of five groups of acc
well as their respective ending balances and attached documents alleged in paragraphs 24 to 52 of the Republic's petitio
forfeiture. Respondent Imelda R. Marcos never specifically denied the existence of the Swiss funds. Her claim that "the f
involved were lawfully acquired" was an acknowledgment on her part of the existence of said deposits. This only reinforc
earlier admission of the allegation in paragraph 23 of the petition for forfeiture regarding the existence of the US$356 mil
Swiss bank deposits.
The allegations in paragraphs 4737 and 4838 of the petition for forfeiture referring to the creation and amount of the deposi
Rosalys-Aguamina Foundation as well as the averment in paragraph 52-a 39 of the said petition with respect to the sum o
Swiss bank deposits estimated to be US$356 million were again not specifically denied by respondents in their answer. T
respondents did not at all respond to the issues raised in these paragraphs and the existence, nature and amount of the
funds were therefore deemed admitted by them. As held in Galofa vs. Nee Bon Sing,40 if a defendant's denial is a negativ
pregnant, it is equivalent to an admission.
Moreover, respondents' denial of the allegations in the petition for forfeiture "for lack of knowledge or information sufficien
a belief as to the truth of the allegations since respondents were not privy to the transactions" was just a pretense. Mrs. M
privity to the transactions was in fact evident from her signatures on some of the vital documents 41 attached to the petitio
forfeiture which Mrs. Marcos failed to specifically deny as required by the rules. 42
It is worthy to note that the pertinent documents attached to the petition for forfeiture were even signed personally by res
Mrs. Marcos and her late husband, Ferdinand E. Marcos, indicating that said documents were within their knowledge. As
correctly pointed out by Sandiganbayan Justice Francisco Villaruz, Jr. in his dissenting opinion:
The pattern of: 1) creating foundations, 2) use of pseudonyms and dummies, 3) approving regulations of
Foundations for the distribution of capital and income of the Foundations to the First and Second benefic
are no other than FM and his family), 4) opening of bank accounts for the Foundations, 5) changing the n
the Foundations, 6) transferring funds and assets of the Foundations to other Foundations or Fides Trust
liquidation of the Foundations as substantiated by the Annexes U to U-168, Petition [for forfeiture] strongl
indicate that FM and/or Imelda were the real owners of the assets deposited in the Swiss banks, using th
Foundations as dummies.43
How could respondents therefore claim lack of sufficient knowledge or information regarding the existence of the Swiss b
deposits and the creation of five groups of accounts when Mrs. Marcos and her late husband personally masterminded a
participated in the formation and control of said foundations? This is a fact respondent Marcoses were never able to exp
Not only that. Respondents' answer also technically admitted the genuineness and due execution of the Income Tax Ret
(ITRs) and the balance sheets of the late Ferdinand E. Marcos and Imelda R. Marcos attached to the petition for forfeitur
well as the veracity of the contents thereof.
The answer again premised its denials of said ITRs and balance sheets on the ground of lack of knowledge or informatio
sufficient to form a belief as to the truth of the contents thereof. Petitioner correctly points out that respondents' denial wa
really grounded on lack of knowledge or information sufficient to form a belief but was based on lack of recollection. By r
their own records, respondent Marcoses could have easily determined the genuineness and due execution of the ITRs a
balance sheets. They also had the means and opportunity of verifying the same from the records of the BIR and the Offic
President. They did not.
When matters regarding which respondents claim to have no knowledge or information sufficient to form a belief are plai
necessarily within their knowledge, their alleged ignorance or lack of information will not be considered a specific denial.
unexplained denial of information within the control of the pleader, or is readily accessible to him, is evasive and is insuff
constitute an effective denial.45
The form of denial adopted by respondents must be availed of with sincerity and in good faith, and certainly not for the p
of confusing the adverse party as to what allegations of the petition are really being challenged; nor should it be made fo
purpose of delay.46 In the instant case, the Marcoses did not only present unsubstantiated assertions but in truth attempt
mislead and deceive this Court by presenting an obviously contrived defense.
Simply put, a profession of ignorance about a fact which is patently and necessarily within the pleader's knowledge or me
knowing is as ineffective as no denial at all.47 Respondents' ineffective denial thus failed to properly tender an issue and t
averments contained in the petition for forfeiture were deemed judicially admitted by them.
As held in J.P. Juan & Sons, Inc. vs. Lianga Industries, Inc.:
Its "specific denial" of the material allegation of the petition without setting forth the substance of the matt
relied upon to support its general denial, when such matters were plainly within its knowledge and it could
logically pretend ignorance as to the same, therefore, failed to properly tender on issue. 48
Thus, the general denial of the Marcos children of the allegations in the petition for forfeiture "for lack of knowledge or inf
sufficient to form a belief as to the truth of the allegations since they were not privy to the transactions" cannot rightfully b
accepted as a defense because they are the legal heirs and successors-in-interest of Ferdinand E. Marcos and are there
bound by the acts of their father vis-a-vis the Swiss funds.
• PRE-TRIAL BRIEF DATED OCTOBER 18, 1993
The pre-trial brief of Mrs. Marcos was adopted by the three Marcos children. In said brief, Mrs. Marcos stressed that the
involved were lawfully acquired. But, as in their answer, they failed to state and substantiate how these funds were acqui
lawfully. They failed to present and attach even a single document that would show and prove the truth of their allegation
Section 6, Rule 18 of the 1997 Rules of Civil Procedure provides:
The parties shall file with the court and serve on the adverse party, x x x their respective pre-trial briefs which shall conta
among others:
xxx
(d) the documents or exhibits to be presented, stating the purpose thereof;
xxx
(f) the number and names of the witnesses, and the substance of their respective testimonies. 49
It is unquestionably within the court's power to require the parties to submit their pre-trial briefs and to state the number o
witnesses intended to be called to the stand, and a brief summary of the evidence each of them is expected to give as w
disclose the number of documents to be submitted with a description of the nature of each. The tenor and character of th
testimony of the witnesses and of the documents to be deduced at the trial thus made known, in addition to the particula
of fact and law, it becomes apparent if genuine issues are being put forward necessitating the holding of a trial. Likewise
parties are obliged not only to make a formal identification and specification of the issues and their proofs, and to put the
matters in writing and submit them to the court within the specified period for the prompt disposition of the action. 50
The pre-trial brief of Mrs. Marcos, as subsequently adopted by respondent Marcos children, merely stated:
xxx
WITNESSES
4.1 Respondent Imelda will present herself as a witness and reserves the right to present additional witne
may be necessary in the course of the trial.
xxx
DOCUMENTARY EVIDENCE
5.1 Respondent Imelda reserves the right to present and introduce in evidence documents as may be ne
in the course of the trial.
Mrs. Marcos did not enumerate and describe the documents constituting her evidence. Neither the names of witnesses n
nature of their testimony was stated. What alone appeared certain was the testimony of Mrs. Marcos only who in fact had
previously claimed ignorance and lack of knowledge. And even then, the substance of her testimony, as required by the
was not made known either. Such cunning tactics of respondents are totally unacceptable to this Court. We hold that, sin
genuine issue was raised, the case became ripe for summary judgment.
• OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

DATED MARCH 21, 2000
The opposition filed by Mrs. Marcos to the motion for summary judgment dated March 21, 2000 of petitioner Republic wa
adopted by the Marcos children as their own opposition to the said motion. However, it was again not accompanied by a
depositions or admissions as required by Section 3, Rule 35 of the 1997 Rules on Civil Procedure:
x x x The adverse party may serve opposing affidavits, depositions, or admissions at least three (3) days
hearing. After hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affida
depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine
to any material fact and that the moving party is entitled to a judgment as a matter of law.51
The absence of opposing affidavits, depositions and admissions to contradict the sworn declarations in the Republic's m
only demonstrated that the averments of such opposition were not genuine and therefore unworthy of belief.
• Demurrer to Evidence dated May 2, 2000; 52

Motions for Reconsideration;53 and Memoranda
of Mrs. Marcos and the Marcos children54
All these pleadings again contained no allegations of facts showing their lawful acquisition of the funds. Once more, resp
merely made general denials without alleging facts which would have been admissible in evidence at the hearing, thereb
to raise genuine issues of fact.
Mrs. Marcos insists in her memorandum dated October 21, 2002 that, during the pre-trial, her counsel stated that his clie
just a beneficiary of the funds, contrary to petitioner Republic's allegation that Mrs. Marcos disclaimed ownership of or in
the funds.
This is yet another indication that respondents presented a fictitious defense because, during the pre-trial, Mrs. Marcos a
Marcos children denied ownership of or interest in the Swiss funds:
PJ Garchitorena:
Make of record that as far as Imelda Marcos is concerned through the statement of Atty. Armando
Marcelo that the US$360 million more or less subject matter of the instant lawsuit as allegedly ob
from the various Swiss Foundations do not belong to the estate of Marcos or to Imelda Marcos he
That's your statement of facts?
Atty. MARCELO:
Yes, Your Honor.
PJ Garchitorena:
That's it. Okay. Counsel for Manotoc and Manotoc, Jr. What is your point here? Does the estate o
own anything of the $360 million subject of this case.
Atty. TECSON:
We joined the Manifestation of Counsel.
PJ Garchitorena:
You do not own anything?
Atty. TECSON:
Yes, Your Honor.
PJ Garchitorena:
Counsel for Irene Araneta?
Atty. SISON:
I join the position taken by my other compañeros here, Your Honor.
xxx
Atty. SISON:
Irene Araneta as heir do (sic) not own any of the amount, Your Honor.55
We are convinced that the strategy of respondent Marcoses was to confuse petitioner Republic as to what facts they wou
or what issues they intended to pose for the court's resolution. There is no doubt in our mind that they were leading petiti
Republic, and now this Court, to perplexity, if not trying to drag this forfeiture case to eternity.
• Manifestation dated May 26, 1998 filed by MRS.

Marcos; General/Supplemental Compromise
Agreement dated December 28, 1993
These pleadings of respondent Marcoses presented nothing but feigned defenses. In their earlier pleadings, respondent
either that they had no knowledge of the existence of the Swiss deposits or that they could no longer remember anything
happened a long time ago. As to Mrs. Marcos, she remembered that it was lawfully acquired.
In her Manifestation dated May 26, 1998, Mrs. Marcos stated that:
COMES NOW undersigned counsel for respondent Imelda R. Marcos, and before this Honorable Court, m
respectfully manifests:
That respondent Imelda R, Marcos owns 90% of the subject matter of the above-entitled case, being the
beneficiary of the dollar deposits in the name of the various foundations alleged in the case;
That in fact only 10% of the subject matter in the above-entitled case belongs to the estate of the late Pre
Ferdinand E. Marcos.
In the Compromise/Supplemental Agreements, respondent Marcoses sought to implement the agreed distribution of the
assets, including the Swiss deposits. This was, to us, an unequivocal admission of ownership by the Marcoses of the sai
deposits.
But, as already pointed out, during the pre-trial conference, respondent Marcoses denied knowledge as well as ownersh
Swiss funds.
Anyway we look at it, respondent Marcoses have put forth no real defense. The "facts" pleaded by respondents, while os
raising important questions or issues of fact, in reality comprised mere verbiage that was evidently wanting in substance
constituted no genuine issues for trial.
We therefore rule that, under the circumstances, summary judgment is proper.
In fact, it is the law itself which determines when summary judgment is called for. Under the rules, summary judgment is
appropriate when there are no genuine issues of fact requiring the presentation of evidence in a full-blown trial. Even if o
face the pleadings appear to raise issue, if the affidavits, depositions and admissions show that such issues are not genu
then summary judgment as prescribed by the rules must ensue as a matter of law.56
In sum, mere denials, if unaccompanied by any fact which will be admissible in evidence at a hearing, are not sufficient t
genuine issues of fact and will not defeat a motion for summary judgment. 57 A summary judgment is one granted upon m
a party for an expeditious settlement of the case, it appearing from the pleadings, depositions, admissions and affidavits
there are no important questions or issues of fact posed and, therefore, the movant is entitled to a judgment as a matter
motion for summary judgment is premised on the assumption that the issues presented need not be tried either because
are patently devoid of substance or that there is no genuine issue as to any pertinent fact. It is a method sanctioned by th
of Court for the prompt disposition of a civil action where there exists no serious controversy.58 Summary judgment is a
procedural device for the prompt disposition of actions in which the pleadings raise only a legal issue, not a genuine issu
any material fact. The theory of summary judgment is that, although an answer may on its face appear to tender issues r
trial, if it is established by affidavits, depositions or admissions that those issues are not genuine but fictitious, the Court i
justified in dispensing with the trial and rendering summary judgment for petitioner.59
In the various annexes to the petition for forfeiture, petitioner Republic attached sworn statements of witnesses who had
knowledge of the Marcoses' participation in the illegal acquisition of funds deposited in the Swiss accounts under the nam
five groups or foundations. These sworn statements substantiated the ill-gotten nature of the Swiss bank deposits. In the
answer and other subsequent pleadings, however, the Marcoses merely made general denials of the allegations against
without stating facts admissible in evidence at the hearing, thereby failing to raise any genuine issues of fact.
Under these circumstances, a trial would have served no purpose at all and would have been totally unnecessary, thus ju
a summary judgment on the petition for forfeiture. There were no opposing affidavits to contradict the sworn declarations
witnesses of petitioner Republic, leading to the inescapable conclusion that the matters raised in the Marcoses' answer w
false.
Time and again, this Court has encountered cases like this which are either only half-heartedly defended or, if the sembla
defense is interposed at all, it is only to delay disposition and gain time. It is certainly not in the interest of justice to allow
respondent Marcoses to avail of the appellate remedies accorded by the Rules of Court to litigants in good faith, to the p
of the Republic and ultimately of the Filipino people. From the beginning, a candid demonstration of respondents' good fa
should have been made to the court below. Without the deceptive reasoning and argumentation, this protracted litigation
have ended a long time ago.
Since 1991, when the petition for forfeiture was first filed, up to the present, all respondents have offered are foxy respon
"lack of sufficient knowledge or lack of privity" or "they cannot recall because it happened a long time ago" or, as to Mrs.
"the funds were lawfully acquired." But, whenever it suits them, they also claim ownership of 90% of the funds and allege
only 10% belongs to the Marcos estate. It has been an incredible charade from beginning to end.
In the hope of convincing this Court to rule otherwise, respondents Maria Imelda Marcos-Manotoc and Ferdinand R. Mar
contend that "by its positive acts and express admissions prior to filing the motion for summary judgment on March 10, 2
petitioner Republic had bound itself to go to trial on the basis of existing issues. Thus, it had legally waived whatever righ
to move for summary judgment."60
We do not think so. The alleged positive acts and express admissions of the petitioner did not preclude it from filing a mo
summary judgment.
Rule 35 of the 1997 Rules of Civil Procedure provides:
Rule 35
Summary Judgment
Section 1. Summary judgment for claimant. - A party seeking to recover upon a claim, counterclaim, or cr
claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been s
move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all o
part thereof.
Section 2. Summary judgment for defending party. - A party against whom a claim, counterclaim, or cross
asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions o
admissions for a summary judgment in his favor as to all or any part thereof. (Emphasis ours) 61
Under the rule, the plaintiff can move for summary judgment "at any time after the pleading in answer thereto (i.e., in ans
the claim, counterclaim or cross-claim) has been served." No fixed reglementary period is provided by the Rules. How el
one construe the phrase "any time after the answer has been served?"
This issue is actually one of first impression. No local jurisprudence or authoritative work has touched upon this matter. T
being so, an examination of foreign laws and jurisprudence, particularly those of the United States where many of our law
rules were copied, is in order.
Rule 56 of the Federal Rules of Civil Procedure provides that a party seeking to recover upon a claim, counterclaim or cr
claim may move for summary judgment at any time after the expiration of 20 days from the commencement of the action
service of a motion for summary judgment by the adverse party, and that a party against whom a claim, counterclaim or
claim is asserted may move for summary judgment at any time.
However, some rules, particularly Rule 113 of the Rules of Civil Practice of New York, specifically provide that a motion fo
summary judgment may not be made until issues have been joined, that is, only after an answer has been served. 62 Und
rule, after issues have been joined, the motion for summary judgment may be made at any stage of the litigation.63 No fix
prescriptive period is provided.
Like Rule 113 of the Rules of Civil Practice of New York, our rules also provide that a motion for summary judgment may
made until issues have been joined, meaning, the plaintiff has to wait for the answer before he can move for summary
judgment.64 And like the New York rules, ours do not provide for a fixed reglementary period within which to move for sum
judgment.
This being so, the New York Supreme Court's interpretation of Rule 113 of the Rules of Civil Practice can be applied by a
to the interpretation of Section 1, Rule 35, of our 1997 Rules of Civil Procedure.
Under the New York rule, after the issues have been joined, the motion for summary judgment may be made at any stag
litigation. And what exactly does the phrase "at any stage of the litigation" mean? In Ecker vs. Muzysh, 65 the New York Su
Court ruled:
"PER CURIAM.
Plaintiff introduced her evidence and the defendants rested on the case made by the plaintiff. The case w
submitted. Owing to the serious illness of the trial justice, a decision was not rendered within sixty days a
final adjournment of the term at which the case was tried. With the approval of the trial justice, the plaintif
for a new trial under Section 442 of the Civil Practice Act. The plaintiff also moved for summary judgment
Rule 113 of the Rules of Civil Practice. The motion was opposed mainly on the ground that, by proce
to trial, the plaintiff had waived her right to summary judgment and that the answer and the opposin
affidavits raised triable issues. The amount due and unpaid under the contract is not in dispute. The Spec
granted both motions and the defendants have appealed.
The Special Term properly held that the answer and the opposing affidavits raised no triable issue. Rule
the Rules of Civil Practice and the Civil Practice Act prescribe no limitation as to the time when a
for summary judgment must be made. The object of Rule 113 is to empower the court to summari
determine whether or not a bona fide issue exists between the parties, and there is no limitation o
power of the court to make such a determination at any stage of the litigation." (emphasis ours)
On the basis of the aforequoted disquisition, "any stage of the litigation" means that "even if the plaintiff has proceeded to
this does not preclude him from thereafter moving for summary judgment." 66
In the case at bar, petitioner moved for summary judgment after pre-trial and before its scheduled date for presentation o
evidence. Respondent Marcoses argue that, by agreeing to proceed to trial during the pre-trial conference, petitioner "wa
right to summary judgment.
This argument must fail in the light of the New York Supreme Court ruling which we apply by analogy to this case. In Eck
defendant opposed the motion for summary judgment on a ground similar to that raised by the Marcoses, that is, "that pl
had waived her right to summary judgment" by her act of proceeding to trial. If, as correctly ruled by the New York court,
was allowed to move for summary judgment even after trial and submission of the case for resolution, more so should w
it in the present case where petitioner moved for summary judgment before trial.
Therefore, the phrase "anytime after the pleading in answer thereto has been served" in Section 1, Rule 35 of our Rules
Procedure means "at any stage of the litigation." Whenever it becomes evident at any stage of the litigation that no triabl
exists, or that the defenses raised by the defendant(s) are sham or frivolous, plaintiff may move for summary judgment. A
contrary interpretation would go against the very objective of the Rule on Summary Judgment which is to "weed out sham
or defenses thereby avoiding the expense and loss of time involved in a trial." 68
In cases with political undertones like the one at bar, adverse parties will often do almost anything to delay the proceedin
hope that a future administration sympathetic to them might be able to influence the outcome of the case in their favor. T
rank injustice we cannot tolerate.
The law looks with disfavor on long, protracted and expensive litigation and encourages the speedy and prompt dispositi
cases. That is why the law and the rules provide for a number of devices to ensure the speedy disposition of cases. Sum
judgment is one of them.
Faithful therefore to the spirit of the law on summary judgment which seeks to avoid unnecessary expense and loss of tim
trial, we hereby rule that petitioner Republic could validly move for summary judgment any time after the respondents' an
was filed or, for that matter, at any subsequent stage of the litigation. The fact that petitioner agreed to proceed to trial did
any way prevent it from moving for summary judgment, as indeed no genuine issue of fact was ever validly raised by res
Marcoses.
This interpretation conforms with the guiding principle enshrined in Section 6, Rule 1 of the 1997 Rules of Civil Procedur
the "[r]ules should be liberally construed in order to promote their objective of securing a just, speedy and inexpensive di
of every action and proceeding."69
Respondents further allege that the motion for summary judgment was based on respondents' answer and other docume
had long been in the records of the case. Thus, by the time the motion was filed on March 10, 2000, estoppel by laches h
already set in against petitioner.
We disagree. Estoppel by laches is the failure or neglect for an unreasonable or unexplained length of time to do that wh
exercising due diligence, could or should have been done earlier, warranting a presumption that the person has abandon
right or declined to assert it.70 In effect, therefore, the principle of laches is one of estoppel because "it prevents people w
slept on their rights from prejudicing the rights of third parties who have placed reliance on the inaction of the original par
their successors-in-interest". 71
A careful examination of the records, however, reveals that petitioner was in fact never remiss in pursuing its case agains
respondent Marcoses through every remedy available to it, including the motion for summary judgment.
Petitioner Republic initially filed its motion for summary judgment on October 18, 1996. The motion was denied because
pending compromise agreement between the Marcoses and petitioner. But during the pre-trial conference, the Marcoses
ownership of the Swiss funds, prompting petitioner to file another motion for summary judgment now under consideration
Court. It was the subsequent events that transpired after the answer was filed, therefore, which prevented petitioner from
the questioned motion. It was definitely not because of neglect or inaction that petitioner filed the (second) motion for sum
judgment years after respondents' answer to the petition for forfeiture.
In invoking the doctrine of estoppel by laches, respondents must show not only unjustified inaction but also that some un
injury to them might result unless the action is barred. 72
This, respondents failed to bear out. In fact, during the pre-trial conference, the Marcoses disclaimed ownership of the S
deposits. Not being the owners, as they claimed, respondents did not have any vested right or interest which could be ad
affected by petitioner's alleged inaction.
But even assuming for the sake of argument that laches had already set in, the doctrine of estoppel or laches does not a
when the government sues as a sovereign or asserts governmental rights. 73 Nor can estoppel validate an act that contrav
law or public policy.74
As a final point, it must be emphasized that laches is not a mere question of time but is principally a question of the inequ
unfairness of permitting a right or claim to be enforced or asserted. 75 Equity demands that petitioner Republic should not
barred from pursuing the people's case against the Marcoses.
(2) The Propriety of Forfeiture
The matter of summary judgment having been thus settled, the issue of whether or not petitioner Republic was able to pr
case for forfeiture in accordance with the requisites of Sections 2 and 3 of RA 1379 now takes center stage.
The law raises the prima facie presumption that a property is unlawfully acquired, hence subject to forfeiture, if its amoun
value is manifestly disproportionate to the official salary and other lawful income of the public officer who owns it. Hence,
Sections 2 and 6 of RA 137976 provide:
xxx xxx
Section 2. Filing of petition. – Whenever any public officer or employee has acquired during his incumben
amount or property which is manifestly out of proportion to his salary as such public officer or employee a
other lawful income and the income from legitimately acquired property, said property shall be presumed
facie to have been unlawfully acquired.
xxx xxx
Sec. 6. Judgment – If the respondent is unable to show to the satisfaction of the court that he has lawfully
acquired the property in question, then the court shall declare such property in question, forfeited in favor
State, and by virtue of such judgment the property aforesaid shall become the property of the State. Prov
That no judgment shall be rendered within six months before any general election or within three months
any special election. The Court may, in addition, refer this case to the corresponding Executive Departme
administrative or criminal action, or both.
From the above-quoted provisions of the law, the following facts must be established in order that forfeiture or seizure of
Swiss deposits may be effected:
(1) ownership by the public officer of money or property acquired during his incumbency, whether it be in
name or otherwise, and
(2) the extent to which the amount of that money or property exceeds, i. e., is grossly disproportionate to,
legitimate income of the public officer.
That spouses Ferdinand and Imelda Marcos were public officials during the time material to the instant case was never i
dispute. Paragraph 4 of respondent Marcoses' answer categorically admitted the allegations in paragraph 4 of the petitio
forfeiture as to the personal circumstances of Ferdinand E. Marcos as a public official who served without interruption as
Congressman, Senator, Senate President and President of the Republic of the Philippines from December 1, 1965 to Fe
25, 1986.77 Likewise, respondents admitted in their answer the contents of paragraph 5 of the petition as to the personal
circumstances of Imelda R. Marcos who once served as a member of the Interim Batasang Pambansa from 1978 to 198
Metro Manila Governor, concurrently Minister of Human Settlements, from June 1976 to February 1986. 78
Respondent Mrs. Marcos also admitted in paragraph 10 of her answer the allegations of paragraph 11 of the petition for
which referred to the accumulated salaries of respondents Ferdinand E. Marcos and Imelda R. Marcos. 79 The combined
accumulated salaries of the Marcos couple were reflected in the Certification dated May 27, 1986 issued by then Ministe
Budget and Management Alberto Romulo.80 The Certification showed that, from 1966 to 1985, Ferdinand E. Marcos and
R. Marcos had accumulated salaries in the amount of P1,570,000 and P718,750, respectively, or a total of P2,288,750:
Ferdinand E. Marcos, as President
1966-1976 at P60,000/year P660,000

1977-1984 at P100,000/year 800,000
1985 at P110,000/year 110,000
P1,570,00
Imelda R. Marcos, as Minister
June 1976-1985 at P75,000/year P718,000
In addition to their accumulated salaries from 1966 to 1985 are the Marcos couple's combined salaries from January to F
1986 in the amount of P30,833.33. Hence, their total accumulated salaries amounted to P2,319,583.33. Converted to U.
dollars on the basis of the corresponding peso-dollar exchange rates prevailing during the applicable period when said s
were received, the total amount had an equivalent value of $304,372.43.
The dollar equivalent was arrived at by using the official annual rates of exchange of the Philippine peso and the US doll
1965 to 1985 as well as the official monthly rates of exchange in January and February 1986 issued by the Center for St
Information of the Bangko Sentral ng Pilipinas.
Prescinding from the aforesaid admissions, Section 4, Rule 129 of the Rules of Court provides that:
Section 4. – Judicial admissions – An admission, verbal or written, made by a party in the course of the
proceedings in the same case does not require proof. The admission may be contradicted only by showin
was made through palpable mistake or that no such admission was made. 81
It is settled that judicial admissions may be made: (a) in the pleadings filed by the parties; (b) in the course of the trial eith
verbal or written manifestations or stipulations; or (c) in other stages of judicial proceedings, as in the pre-trial of the case
facts pleaded in the petition and answer, as in the case at bar, are deemed admissions of petitioner and respondents,
respectively, who are not permitted to contradict them or subsequently take a position contrary to or inconsistent with suc
admissions.83
The sum of $304,372.43 should be held as the only known lawful income of respondents since they did not file any State
Assets and Liabilities (SAL), as required by law, from which their net worth could be determined. Besides, under the 193
Constitution, Ferdinand E. Marcos as President could not receive "any other emolument from the Government or any of
subdivisions and instrumentalities".84 Likewise, under the 1973 Constitution, Ferdinand E. Marcos as President could "no
during his tenure any other emolument from the Government or any other source." 85 In fact, his management of business
the administration of foundations to accumulate funds, was expressly prohibited under the 1973 Constitution:
Article VII, Sec. 4(2) – The President and the Vice-President shall not, during their tenure, hold any other
except when otherwise provided in this Constitution, nor may they practice any profession, participate dir
indirectly in the management of any business, or be financially interested directly or indirectly in any cont
or in any franchise or special privilege granted by the Government or any other subdivision, agency, or
instrumentality thereof, including any government owned or controlled corporation.
Article VII, Sec. 11 – No Member of the National Assembly shall appear as counsel before any court infer
court with appellate jurisdiction, x x x. Neither shall he, directly or indirectly, be interested financially in an
contract with, or in any franchise or special privilege granted by the Government, or any subdivision, age
instrumentality thereof including any government owned or controlled corporation during his term of office
shall not intervene in any matter before any office of the government for his pecuniary benefit.
Article IX, Sec. 7 – The Prime Minister and Members of the Cabinet shall be subject to the provision of Se
11, Article VIII hereof and may not appear as counsel before any court or administrative body, or manage
business, or practice any profession, and shall also be subject to such other disqualification as may be p
by law.
Their only known lawful income of $304,372.43 can therefore legally and fairly serve as basis for determining the existen
prima facie case of forfeiture of the Swiss funds.
Respondents argue that petitioner was not able to establish a prima facie case for the forfeiture of the Swiss funds since
to prove the essential elements under Section 3, paragraphs (c), (d) and (e) of RA 1379. As the Act is a penal statute, its
provisions are mandatory and should thus be construed strictly against the petitioner and liberally in favor of respondent
Marcoses.
We hold that it was not for petitioner to establish the Marcoses' other lawful income or income from legitimately acquired
for the presumption to apply because, as between petitioner and respondents, the latter were in a better position to know
were such other sources of lawful income. And if indeed there was such other lawful income, respondents should have
specifically stated the same in their answer. Insofar as petitioner Republic was concerned, it was enough to specify the k
lawful income of respondents.
Section 9 of the PCGG Rules and Regulations provides that, in determining prima facie evidence of ill-gotten wealth, the
the accumulated assets, properties and other material possessions of those covered by Executive Order Nos. 1 and 2 m
out of proportion to the known lawful income of such persons. The respondent Marcos couple did not file any Statement
and Liabilities (SAL) from which their net worth could be determined. Their failure to file their SAL was in itself a violation
and to allow them to successfully assail the Republic for not presenting their SAL would reward them for their violation of
Further, contrary to the claim of respondents, the admissions made by them in their various pleadings and documents we
It is of record that respondents judicially admitted that the money deposited with the Swiss banks belonged to them.
We agree with petitioner that respondent Marcoses made judicial admissions of their ownership of the subject Swiss ban
deposits in their answer, the General/Supplemental Agreements, Mrs. Marcos' Manifestation and Constancia dated May
and the Undertaking dated February 10, 1999. We take note of the fact that the Associate Justices of the Sandiganbayan
unanimous in holding that respondents had made judicial admissions of their ownership of the Swiss funds.
In their answer, aside from admitting the existence of the subject funds, respondents likewise admitted ownership thereo
Paragraph 22 of respondents' answer stated:
22. Respondents specifically DENY PARAGRAPH 23 insofar as it alleges that respondents clandestinely
the country's wealth in Switzerland and hid the same under layers and layers of foundations and corpora
entities for being false, the truth being that respondents' aforesaid properties were lawfully acquired.
(emphasis supplied)
By qualifying their acquisition of the Swiss bank deposits as lawful, respondents unwittingly admitted their ownership the
Respondent Mrs. Marcos also admitted ownership of the Swiss bank deposits by failing to deny under oath the genuinen
due execution of certain actionable documents bearing her signature attached to the petition. As discussed earlier, Sectio
Rule 886 of the 1997 Rules of Civil Procedure provides that material averments in the complaint shall be deemed admitte
not specifically denied.
The General87 and Supplemental88 Agreements executed by petitioner and respondents on December 28, 1993 further bo
the claim of petitioner Republic that its case for forfeiture was proven in accordance with the requisites of Sections 2 and
1379. The whereas clause in the General Agreement declared that:
WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal on December 2
that the $356 million belongs in principle to the Republic of the Philippines provided certain conditionalitie
met, but even after 7 years, the FIRST PARTY has not been able to procure a final judgment of convictio
the PRIVATE PARTY.
While the Supplemental Agreement warranted, inter alia, that:
In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY shall be entitled to t
equivalent of 25% of the amount that may be eventually withdrawn from said $356 million Swiss deposits
The stipulations set forth in the General and Supplemental Agreements undeniably indicated the manifest intent of respo
to enter into a compromise with petitioner. Corollarily, respondents' willingness to agree to an amicable settlement with th
Republic only affirmed their ownership of the Swiss deposits for the simple reason that no person would acquiesce to an
concession over such huge dollar deposits if he did not in fact own them.
Respondents make much capital of the pronouncement by this Court that the General and Supplemental Agreements we
and void.89 They insist that nothing in those agreements could thus be admitted in evidence against them because they s
the same ground as an accepted offer which, under Section 27, Rule 130 90 of the 1997 Rules of Civil Procedure, provide
civil cases, an offer of compromise is not an admission of any liability and is not admissible in evidence against the offero
We find no merit in this contention. The declaration of nullity of said agreements was premised on the following constituti
statutory infirmities: (1) the grant of criminal immunity to the Marcos heirs was against the law; (2) the PCGG's commitme
exempt from all forms of taxes the properties to be retained by the Marcos heirs was against the Constitution; and (3) the
government's undertaking to cause the dismissal of all cases filed against the Marcoses pending before the Sandiganba
other courts encroached on the powers of the judiciary. The reasons relied upon by the Court never in the least bit even
on the veracity and truthfulness of respondents' admission with respect to their ownership of the Swiss funds. Besides, h
made certain admissions in those agreements, respondents cannot now deny that they voluntarily admitted owning the s
Swiss funds, notwithstanding the fact that the agreements themselves were later declared null and void.
The following observation of Sandiganbayan Justice Catalino Castañeda, Jr. in the decision dated September 19, 2000 c
have been better said:
x x x The declaration of nullity of the two agreements rendered the same without legal effects but it did no
from the admissions of the respondents contained therein. Otherwise stated, the admissions made in sai
agreements, as quoted above, remain binding on the respondents. 91
A written statement is nonetheless competent as an admission even if it is contained in a document which is not itself eff
the purpose for which it is made, either by reason of illegality, or incompetency of a party thereto, or by reason of not bei
signed, executed or delivered. Accordingly, contracts have been held as competent evidence of admissions, although the
be unenforceable.92
The testimony of respondent Ferdinand Marcos, Jr. during the hearing on the motion for the approval of the Compromise
Agreement on April 29, 1998 also lent credence to the allegations of petitioner Republic that respondents admitted owne
the Swiss bank accounts. We quote the salient portions of Ferdinand Jr.'s formal declarations in open court:
ATTY. FERNANDO:
Mr. Marcos, did you ever have any meetings with PCGG Chairman Magtanggol C. Gunigundo?
F. MARCOS, JR.:
Yes. I have had very many meetings in fact with Chairman.
ATTY. FERNANDO:
Would you recall when the first meeting occurred?
PJ GARCHITORENA:
In connection with what?
ATTY. FERNANDO:
In connection with the ongoing talks to compromise the various cases initiated by PCGG against
family?
F. MARCOS, JR.:
The nature of our meetings was solely concerned with negotiations towards achieving some kind
agreement between the Philippine government and the Marcos family. The discussions that led u
compromise agreement were initiated by our then counsel Atty. Simeon Mesina x x x. 93
xxx xxx xxx
ATTY. FERNANDO:
What was your reaction when Atty. Mesina informed you of this possibility?
F. MARCOS, JR.:
My reaction to all of these approaches is that I am always open, we are always open, we are very
always in search of resolution to the problem of the family and any approach that has been made
have entertained. And so my reaction was the same as what I have always … why not? Maybe th
one that will finally put an end to this problem.94
xxx xxx xxx
ATTY. FERNANDO:
Basically, what were the true amounts of the assets in the bank?
PJ GARCHITORENA:
So, we are talking about liquid assets here? Just Cash?
F. MARCOS, JR.:
Well, basically, any assets. Anything that was under the Marcos name in any of the banks in Swit
which may necessarily be not cash.95
xxx xxx xxx
PJ GARCHITORENA:
x x x What did you do in other words, after being apprised of this contract in connection herewith?
F. MARCOS, JR.:
I assumed that we are beginning to implement the agreement because this was forwarded throug
Philippine government lawyers through our lawyers and then, subsequently, to me. I was a little s
because we hadn't really discussed the details of the transfer of the funds, what the bank accoun
the mechanism would be. But nevertheless, I was happy to see that as far as the PCGG is conce
that the agreement was perfected and that we were beginning to implement it and that was a sou
satisfaction to me because I thought that finally it will be the end. 96
Ferdinand Jr.'s pronouncements, taken in context and in their entirety, were a confirmation of respondents' recognition of
ownership of the Swiss bank deposits. Admissions of a party in his testimony are receivable against him. If a party, as a
deliberately concedes a fact, such concession has the force of a judicial admission. 97 It is apparent from Ferdinand Jr.'s t
that the Marcos family agreed to negotiate with the Philippine government in the hope of finally putting an end to the prob
besetting the Marcos family regarding the Swiss accounts. This was doubtlessly an acknowledgment of ownership on the
The rule is that the testimony on the witness stand partakes of the nature of a formal judicial admission when a party tes
clearly and unequivocally to a fact which is peculiarly within his own knowledge. 98
In her Manifestation99 dated May 26, 1998, respondent Imelda Marcos furthermore revealed the following:
That respondent Imelda R. Marcos owns 90% of the subject matter of the above-entitled case, being the
beneficiary of the dollar deposits in the name of the various foundations alleged in the case;
That in fact only 10% of the subject matter in the above-entitled case belongs to the estate of the late Pre
Ferdinand E. Marcos;
xxx xxx xxx
Respondents' ownership of the Swiss bank accounts as borne out by Mrs. Marcos' manifestation is as bright as sunlight.
claim that she is merely a beneficiary of the Swiss deposits is belied by her own signatures on the appended copies of th
documents substantiating her ownership of the funds in the name of the foundations. As already mentioned, she failed to
specifically deny under oath the authenticity of such documents, especially those involving "William Saunders" and "Jane
which actually referred to Ferdinand Marcos and Imelda Marcos, respectively. That failure of Imelda Marcos to specifical
the existence, much less the genuineness and due execution, of the instruments bearing her signature, was tantamount
judicial admission of the genuineness and due execution of said instruments, in accordance with Section 8, Rule 8 100 of t
Rules of Civil Procedure.
Likewise, in her Constancia101 dated May 6, 1999, Imelda Marcos prayed for the approval of the Compromise Agreement
subsequent release and transfer of the $150 million to the rightful owner. She further made the following manifestations:
xxx xxx xxx
2. The Republic's cause of action over the full amount is its forfeiture in favor of the government if found t
gotten. On the other hand, the Marcoses defend that it is a legitimate asset. Therefore, both parties have
inchoate right of ownership over the account. If it turns out that the account is of lawful origin, the Republ
yield to the Marcoses. Conversely, the Marcoses must yield to the Republic. (underscoring supplied)
xxx xxx xxx
3. Consistent with the foregoing, and the Marcoses having committed themselves to helping the less fortu
the interest of peace, reconciliation and unity, defendant MADAM IMELDA ROMUALDEZ MARCOS, in fir
abidance thereby, hereby affirms her agreement with the Republic for the release and transfer of the US
150 million for proper disposition, without prejudice to the final outcome of the litigation respecting the ow
of the remainder.
Again, the above statements were indicative of Imelda's admission of the Marcoses' ownership of the Swiss deposits as
"the Marcoses defend that it (Swiss deposits) is a legitimate (Marcos) asset."
On the other hand, respondents Maria Imelda Marcos-Manotoc, Ferdinand Marcos, Jr. and Maria Irene Marcos-Araneta
motion102 on May 4, 1998 asking the Sandiganbayan to place the res (Swiss deposits) in custodia legis:
7. Indeed, the prevailing situation is fraught with danger! Unless the aforesaid Swiss deposits are placed
custodia legis or within the Court's protective mantle, its dissipation or misappropriation by the petitioner
a distinct possibility.
Such display of deep, personal interest can only come from someone who believes that he has a marked and intimate rig
the considerable dollar deposits. Truly, by filing said motion, the Marcos children revealed their ownership of the said dep
Lastly, the Undertaking103 entered into by the PCGG, the PNB and the Marcos foundations on February 10, 1999, confirm
Marcoses' ownership of the Swiss bank deposits. The subject Undertaking brought to light their readiness to pay the hum
rights victims out of the funds held in escrow in the PNB. It stated:
WHEREAS, the Republic of the Philippines sympathizes with the plight of the human rights victims-plaint
aforementioned litigation through the Second Party, desires to assist in the satisfaction of the judgment a
said human rights victims-plaintiffs, by releasing, assigning and or waiving US$150 million of the funds he
escrow under the Escrow Agreements dated August 14, 1995, although the Republic is not obligated to d
under final judgments of the Swiss courts dated December 10 and 19, 1997, and January 8, 1998;
WHEREAS, the Third Party is likewise willing to release, assign and/or waive all its rights and interests o
US$150 million to the aforementioned human rights victims-plaintiffs.
All told, the foregoing disquisition negates the claim of respondents that "petitioner failed to prove that they acquired or o
Swiss funds" and that "it was only by arbitrarily isolating and taking certain statements made by private respondents out
context that petitioner was able to treat these as judicial admissions." The Court is fully aware of the relevance, materiali
implications of every pleading and document submitted in this case. This Court carefully scrutinized the proofs presented
parties. We analyzed, assessed and weighed them to ascertain if each piece of evidence rightfully qualified as an admis
Owing to the far-reaching historical and political implications of this case, we considered and examined, individually and
the evidence of the parties, even if it might have bordered on factual adjudication which, by authority of the rules and
jurisprudence, is not usually done by this Court. There is no doubt in our mind that respondent Marcoses admitted owner
the Swiss bank deposits.
We have always adhered to the familiar doctrine that an admission made in the pleadings cannot be controverted by the
making such admission and becomes conclusive on him, and that all proofs submitted by him contrary thereto or inconsi
therewith should be ignored, whether an objection is interposed by the adverse party or not. 104 This doctrine is embodied
Section 4, Rule 129 of the Rules of Court:
SEC. 4. Judicial admissions. ─ An admission, verbal or written, made by a party in the course of the proc
in the same case, does not require proof. The admission may be contradicted only by showing that it was
through palpable mistake or that no such admission was made. 105
In the absence of a compelling reason to the contrary, respondents' judicial admission of ownership of the Swiss deposit
definitely binding on them.
The individual and separate admissions of each respondent bind all of them pursuant to Sections 29 and 31, Rule 130 o
Rules of Court:
SEC. 29. Admission by co-partner or agent. ─ The act or declaration of a partner or agent of the party wit
scope of his authority and during the existence of the partnership or agency, may be given in evidence ag
such party after the partnership or agency is shown by evidence other than such act or declaration. The s
rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with th
party.106
SEC. 31. Admission by privies. ─ Where one derives title to property from another, the act, declaration, o
omission of the latter, while holding the title, in relation to the property, is evidence against the former.107
The declarations of a person are admissible against a party whenever a "privity of estate" exists between the declarant a
party, the term "privity of estate" generally denoting a succession in rights. 108 Consequently, an admission of one in privity
party to the record is competent. 109 Without doubt, privity exists among the respondents in this case. And where several c
parties to the record are jointly interested in the subject matter of the controversy, the admission of one is competent aga
all.110
Respondents insist that the Sandiganbayan is correct in ruling that petitioner Republic has failed to establish a prima fac
for the forfeiture of the Swiss deposits.
We disagree. The sudden turn-around of the Sandiganbayan was really strange, to say the least, as its findings and conc
were not borne out by the voluminous records of this case.
Section 2 of RA 1379 explicitly states that "whenever any public officer or employee has acquired during his incumbency
amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other
income and the income from legitimately acquired property, said property shall be presumed prima facie to have been un
acquired. x x x"
The elements which must concur for this prima facie presumption to apply are:
(1) the offender is a public officer or employee;
(2) he must have acquired a considerable amount of money or property during his incumbency; and
(3) said amount is manifestly out of proportion to his salary as such public officer or employee and to his
lawful income and the income from legitimately acquired property.
It is undisputed that spouses Ferdinand and Imelda Marcos were former public officers. Hence, the first element is clearl
The second element deals with the amount of money or property acquired by the public officer during his incumbency. Th
Marcos couple indubitably acquired and owned properties during their term of office. In fact, the five groups of Swiss acc
were admittedly owned by them. There is proof of the existence and ownership of these assets and properties and it suff
comply with the second element.
The third requirement is met if it can be shown that such assets, money or property is manifestly out of proportion to the
officer's salary and his other lawful income. It is the proof of this third element that is crucial in determining whether a prim
presumption has been established in this case.
Petitioner Republic presented not only a schedule indicating the lawful income of the Marcos spouses during their incum
but also evidence that they had huge deposits beyond such lawful income in Swiss banks under the names of five differe
foundations. We believe petitioner was able to establish the prima facie presumption that the assets and properties acqu
the Marcoses were manifestly and patently disproportionate to their aggregate salaries as public officials. Otherwise stat
petitioner presented enough evidence to convince us that the Marcoses had dollar deposits amounting to US $356 millio
representing the balance of the Swiss accounts of the five foundations, an amount way, way beyond their aggregate legi
income of only US$304,372.43 during their incumbency as government officials.
Considering, therefore, that the total amount of the Swiss deposits was considerably out of proportion to the known lawfu
of the Marcoses, the presumption that said dollar deposits were unlawfully acquired was duly established. It was sufficien
petition for forfeiture to state the approximate amount of money and property acquired by the respondents, and their tota
government salaries. Section 9 of the PCGG Rules and Regulations states:
Prima Facie Evidence. – Any accumulation of assets, properties, and other material possessions of those
persons covered by Executive Orders No. 1 and No. 2, whose value is out of proportion to their known la
income is prima facie deemed ill-gotten wealth.
Indeed, the burden of proof was on the respondents to dispute this presumption and show by clear and convincing evide
the Swiss deposits were lawfully acquired and that they had other legitimate sources of income. A presumption is prima f
proof of the fact presumed and, unless the fact thus prima facie established by legal presumption is disproved, it must st
proved.111
Respondent Mrs. Marcos argues that the foreign foundations should have been impleaded as they were indispensable p
without whom no complete determination of the issues could be made. She asserts that the failure of petitioner Republic
implead the foundations rendered the judgment void as the joinder of indispensable parties was a sine qua non exercise
judicial power. Furthermore, the non-inclusion of the foreign foundations violated the conditions prescribed by the Swiss
government regarding the deposit of the funds in escrow, deprived them of their day in court and denied them their rights
the Swiss constitution and international law.112
The Court finds that petitioner Republic did not err in not impleading the foreign foundations. Section 7, Rule 3 of the 199
of Civil Procedure,113 taken from Rule 19b of the American Federal Rules of Civil Procedure, provides for the compulsory
of indispensable parties. Generally, an indispensable party must be impleaded for the complete determination of the suit
However, failure to join an indispensable party does not divest the court of jurisdiction since the rule regarding indispensa
parties is founded on equitable considerations and is not jurisdictional. Thus, the court is not divested of its power to rend
decision even in the absence of indispensable parties, though such judgment is not binding on the non-joined party. 114
An indispensable party115 has been defined as one:
[who] must have a direct interest in the litigation; and if this interest is such that it cannot be separated fro
of the parties to the suit, if the court cannot render justice between the parties in his absence, if the decre
have an injurious effect upon his interest, or if the final determination of the controversy in his absence w
inconsistent with equity and good conscience.
There are two essential tests of an indispensable party: (1) can relief be afforded the plaintiff without the presence of the
party? and (2) can the case be decided on its merits without prejudicing the rights of the other party? 116 There is, howeve
fixed formula for determining who is an indispensable party; this can only be determined in the context and by the facts o
particular suit or litigation.
In the present case, there was an admission by respondent Imelda Marcos in her May 26, 1998 Manifestation before the
Sandiganbayan that she was the sole beneficiary of 90% of the subject matter in controversy with the remaining 10% be
to the estate of Ferdinand Marcos.117 Viewed against this admission, the foreign foundations were not indispensable parti
non-participation in the proceedings did not prevent the court from deciding the case on its merits and according full relie
petitioner Republic. The judgment ordering the return of the $356 million was neither inimical to the foundations' interests
inconsistent with equity and good conscience. The admission of respondent Imelda Marcos only confirmed what was alre
generally known: that the foundations were established precisely to hide the money stolen by the Marcos spouses from p
Republic. It negated whatever illusion there was, if any, that the foreign foundations owned even a nominal part of the as
question.
The rulings of the Swiss court that the foundations, as formal owners, must be given an opportunity to participate in the
proceedings hinged on the assumption that they owned a nominal share of the assets. 118 But this was already refuted by
than Mrs. Marcos herself. Thus, she cannot now argue that the ruling of the Sandiganbayan violated the conditions set b
Swiss court. The directive given by the Swiss court for the foundations to participate in the proceedings was for the purpo
protecting whatever nominal interest they might have had in the assets as formal owners. But inasmuch as their ownersh
subsequently repudiated by Imelda Marcos, they could no longer be considered as indispensable parties and their partic
the proceedings became unnecessary.
In Republic vs. Sandiganbayan,119 this Court ruled that impleading the firms which are the res of the action was unnecess
"And as to corporations organized with ill-gotten wealth, but are not themselves guilty of misappropriation
or other illicit conduct – in other words, the companies themselves are not the object or thing involved in
action, the res thereof – there is no need to implead them either. Indeed, their impleading is not proper on
strength alone of their having been formed with ill-gotten funds, absent any other particular wrongdoing o
part…
Such showing of having been formed with, or having received ill-gotten funds, however strong or convinc
does not, without more, warrant identifying the corporations in question with the person who formed or m
of them to give the color or appearance of lawful, innocent acquisition to illegally amassed wealth – at the
not so as place on the Government the onus of impleading the former with the latter in actions to recover
wealth. Distinguished in terms of juridical personality and legal culpability from their erring members or
stockholders, said corporations are not themselves guilty of the sins of the latter, of the embezzlement,
asportation, etc., that gave rise to the Government's cause of action for recovery; their creation or organiz
was merely the result of their members' (or stockholders') manipulations and maneuvers to conceal the il
origins of the assets or monies invested therein. In this light, they are simply the res in the actions for the
of illegally acquired wealth, and there is, in principle, no cause of action against them and no ground to im
them as defendants in said actions."
Just like the corporations in the aforementioned case, the foreign foundations here were set up to conceal the illegally ac
funds of the Marcos spouses. Thus, they were simply the res in the action for recovery of ill-gotten wealth and did not ha
impleaded for lack of cause of action or ground to implead them.
Assuming arguendo, however, that the foundations were indispensable parties, the failure of petitioner to implead them w
curable error, as held in the previously cited case of Republic vs. Sandiganbayan:120
"Even in those cases where it might reasonably be argued that the failure of the Government to implead
sequestered corporations as defendants is indeed a procedural abberation, as where said firms were alle
used, and actively cooperated with the defendants, as instruments or conduits for conversion of public fu
property or illicit or fraudulent obtention of favored government contracts, etc., slight reflection would nev
lead to the conclusion that the defect is not fatal, but one correctible under applicable adjective rules – e.
Section 10, Rule 5 of the Rules of Court [specifying the remedy of amendment during trial to authorize or
conform to the evidence]; Section 1, Rule 20 [governing amendments before trial], in relation to the rule
respecting omission of so-called necessary or indispensable parties, set out in Section 11, Rule 3 of the R
Court. It is relevant in this context to advert to the old familiar doctrines that the omission to implead such
"is a mere technical defect which can be cured at any stage of the proceedings even after judgment"; and
particularly in the case of indispensable parties, since their presence and participation is essential to the
of the action, for without them no judgment may be rendered, amendments of the complaint in order to im
them should be freely allowed, even on appeal, in fact even after rendition of judgment by this Court, whe
appears that the complaint otherwise indicates their identity and character as such indispensable parties.
Although there are decided cases wherein the non-joinder of indispensable parties in fact led to the dismissal of the suit
annulment of judgment, such cases do not jibe with the matter at hand. The better view is that non-joinder is not a groun
dismiss the suit or annul the judgment. The rule on joinder of indispensable parties is founded on equity. And the spirit of
is reflected in Section 11, Rule 3122 of the 1997 Rules of Civil Procedure. It prohibits the dismissal of a suit on the ground
joinder or misjoinder of parties and allows the amendment of the complaint at any stage of the proceedings, through mot
order of the court on its own initiative. 123
Likewise, jurisprudence on the Federal Rules of Procedure, from which our Section 7, Rule 3 124 on indispensable parties
copied, allows the joinder of indispensable parties even after judgment has been entered if such is needed to afford the m
party full relief.125 Mere delay in filing the joinder motion does not necessarily result in the waiver of the right as long as th
is excusable.126 Thus, respondent Mrs. Marcos cannot correctly argue that the judgment rendered by the Sandiganbayan
void due to the non-joinder of the foreign foundations. The court had jurisdiction to render judgment which, even in the ab
of indispensable parties, was binding on all the parties before it though not on the absent party.127 If she really felt that sh
not be granted full relief due to the absence of the foreign foundations, she should have moved for their inclusion, which
allowable at any stage of the proceedings. She never did. Instead she assailed the judgment rendered.
In the face of undeniable circumstances and the avalanche of documentary evidence against them, respondent Marcose
to justify the lawful nature of their acquisition of the said assets. Hence, the Swiss deposits should be considered ill-gotte
and forfeited in favor of the State in accordance with Section 6 of RA 1379:
SEC. 6. Judgment.─ If the respondent is unable to show to the satisfaction of the court that he has lawful
acquired the property in question, then the court shall declare such property forfeited in favor of the State
virtue of such judgment the property aforesaid shall become property of the State x x x.
THE FAILURE TO PRESENT AUTHENTICATED TRANSLATIONS OF THE SWISS DECISIONS
Finally, petitioner Republic contends that the Honorable Sandiganbayan Presiding Justice Francis Garchitorena committ
abuse of discretion in reversing himself on the ground that the original copies of the authenticated Swiss decisions and th
authenticated translations were not submitted to the court a quo. Earlier PJ Garchitorena had quoted extensively from th
unofficial translation of one of these Swiss decisions in his ponencia dated July 29, 1999 when he denied the motion to r
US$150 Million to the human rights victims.
While we are in reality perplexed by such an incomprehensible change of heart, there might nevertheless not be any rea
belabor the issue. The presentation of the authenticated translations of the original copies of the Swiss decision was not
rigueur for the public respondent to make findings of fact and reach its conclusions. In short, the Sandiganbayan's decisi
not dependent on the determination of the Swiss courts. For that matter, neither is this Court's.
The release of the Swiss funds held in escrow in the PNB is dependent solely on the decision of this jurisdiction that said
belong to the petitioner Republic. What is important is our own assessment of the sufficiency of the evidence to rule in fa
either petitioner Republic or respondent Marcoses. In this instance, despite the absence of the authenticated translations
Swiss decisions, the evidence on hand tilts convincingly in favor of petitioner Republic.
WHEREFORE, the petition is hereby GRANTED. The assailed Resolution of the Sandiganbayan dated January 31, 2002
ASIDE. The Swiss deposits which were transferred to and are now deposited in escrow at the Philippine National Bank i
estimated aggregate amount of US$658,175,373.60 as of January 31, 2002, plus interest, are hereby forfeited in favor o
petitioner Republic of the Philippines.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Panganiban, Ynares-Santiago, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, and T
concur.
Puno, and Vitug, JJ., in the result
Quisumbing, Sandoval-Gutierrez, J., on official leave.
Carpio, J., no part.
Footnotes
1
An Act Declaring Forfeiture In Favor of the State Any Property To Have Been Unlawfully Acquired By An
Officer or Employee and Providing For the Procedure Therefor.
2
E.O. No. 1 - promulgated on February 28, 1986, only two (2) days after the Marcoses fled the country, c
the PCGG which was primarily tasked to assist the President in the recovery of vast government resourc
allegedly amassed by former President Marcos, his immediate family, relatives, and close associates, bo
and abroad.
3
E.O. No. 2 – issued twelve (12) days later, warning all persons and entities who had knowledge of poss
ill-gotten assets and properties under pain of penalties prescribed by law, prohibiting them from concealin
transferring or dissipating them or from otherwise frustrating or obstructing the recovery efforts of the gov
4
E.O. No. 14 – Series of 1986, as amended by E.O. No. 14-A.
5
Also series of 1986, vested Sandiganbayan the exclusive and original jurisdiction over cases, whether c
criminal, to be filed by the PCGG with the assistance of the Office of the Solicitor General. The law also d
that the civil actions for the recovery of unlawfully acquired property under Republic Act No. 1379 or for
restitution, reparation of damages, or indemnification for consequential and other damages or any other c
action under the Civil Code or other existing laws filed with the Sandiganbayan against Ferdinand Marcos
may proceed independently of any criminal proceedings and may be proved by preponderance of eviden
6
Declared null and void by this Court on December 9, 1998 in the case of "Francisco I. Chavez vs. PCGG
Magtanggol Gunigundo", docketed as G.R. No. 130716.
7
In April 1986, pursuant to E.O. No. 2, the Republic of the Philippines through the PCGG filed a request f
mutual assistance with the Swiss Federal Police Department, under the procedures of the International M
Assistance in Criminal Proceedings (IMAC) to freeze the bank deposits of the Marcoses located in Switze
IMAC is a domestic statute of Switzerland which generally affords relief to the kind of request from foreign
governments or entities as authorized under E.O. No. 2.
The various Swiss local authorities concerned granted the request of petitioner Republic, and ordered the
deposits to be "blocked" until the competent Philippine court could decide on the matter.
8
Volume III, Rollo, p. 2195.
9
Penned by Justice Catalino R. Castañeda, Jr. and concurred in by Presiding Justice Francis E. Garchito
and Associate Justice Gregory S. Ong.
10
Volume III, Rollo, p. 2218.
11
Penned by Presiding Justice Francis E. Garchitorena with the separate concurring opinions of Associat
Nicodemo T. Ferrer and Associate Justice Gregory S. Ong. Associate Justices Catalino R. Castañeda, Jr
Francisco H. Villaruz, Jr. both wrote their respective dissenting opinions.
12
Volume I, Rollo, pp. 145-146.
13
Volume I, Rollo, pp. 60-62.
14
Volume IV, Rollo, p. 2605.
15
Sec. 3 – the petition shall contain the following information
xxx
(c) The approximate amount of property he has acquired during his incumbency in his past and present o
and employments.
16
(d) A description of said property, or such thereof as has been identified by the Solicitor General.
17
(e) The total amount of his government salary and other proper earnings and incomes from legitimately
acquired property xxx.
18
Volume IV, Rollo, pp. 2651-2654.
19
Same as Section 1, Rule 65 of the old Rules of Court.
20
Filoteo, Jr. vs. Sandiganbayan, 263 SCRA 222 [1996].
21
Central Bank vs. Cloribel, 44 S 307, 314 [1972].
22
240 SCRA 376 [1995].
23
Republic vs. Sandiganbayan, 269 SCRA 316 [1997].
24
69 SCRA 524 [1976].
25
Substantially the same as Section 1, Rule 34 of the old Rules of Court.
26
Agcanas vs. Nagum, L-20707, 143 Phil 177 [1970].
27
Rollo, Vol. I, pp. 22-37.
28
29
16 Phil., 315, 321-322 [1910].
30
197 SCRA 391 [1991].
31
Philippine Advertising vs. Revilla, 52 SCRA 246 [1973].
32
Petition, Annex C, Volume I, Rollo, p. 236.
33
Answer, Annex D, Volume II, Rollo, p. 1064.
34
61A Am. Jur., 172-173.
35
Blume vs. MacGregor, 148 P. 2d. 656 [see p.428, Moran, Comments on the Rules of Court, 1995 ed.].
36
37
Supra.
38
Supra.
39
"All the five (5) group accounts in the over-all flow chart have a total balance of about Three Hundred F
Million Dollars ($356,000,000.00) as shown by Annex 'R-5' hereto attached as integral part hereof."
40
22 SCRA 48 [1968]
41
XANDY-WINTROP-AVERTINA FOUNDATION: (a) Contract for opening of deposit dated March 21, 196
Handwritten instruction; (c) Letter dated March 3, 1970; (d) Handwritten regulation of Xandy dated Febru
1970; (e) Letter of instruction dated March 10, 1981; (f) Letter of Instructions dated March 10, 1991.
TRINIDAD-RAYBY-PALMY FOUNDATION: (a) Management agreement dated August 28, 1990; (b) Lette
instruction dated August 26, 1970 to Markers Geel of Furich; (c) Approval of Statutes and By-laws of Trin
Foundation dated August 26, 1990; (d) Regulations of the Trinidad Foundation dated August 28, 1970; (e
Regulations of the Trinidad Foundation prepared by Markers Geel dated August 28, 1970; (f) Letter of Ins
to the Board of Rayby Foundation dated March 10, 1981; (g) Letter of Instructions to the Board of Trinida
Foundation dated March 10, 1981.
MALER ESTABLISHMENT FOUNDATION: (a) Rules and Regulations of Maler dated October 15, 1968;
of Authorization dated October 19, 1968 to Barbey d Suncir; (c) Letter of Instruction to Muler to Swiss Ba
October 19, 1968.
42
"Where an action or defense is founded upon a written instrument, copied in or attached to the corresp
pleading xxx, the genuineness and due execution of the instrument shall be deemed admitted unless the
party under oath, specifically denies them, and sets forth what he claims to be the facts xxx."
43
Annex A-F, Volume I, Rollo, pp. 193-194.
44
Ice Plant Equipment vs. Martocello, D.C.P., 1941, 43 F. Supp. 281.
45
Phil. Advertising Counselors, Inc. vs. Revilla, L- 31869, Aug. 8, 1973.
46
Warner Barnes & Co., Ltd. vs. Reyes, et. al., 55 O.G. 3109-3111.
47
Philippine Bank of Communications vs. Court of Appeals, 195 SCRA 567 [1991].
48
28 SCRA 807, 812 [1969].
49
Rule 20 of the old Rules of Court was amended but the change(s) had no adverse effects on the rights
private respondents.
50
Development Bank of the Phils. vs. CA, G.R. No. L-49410, 169 SCRA 409 [1989].
51
52
adopted by the Marcos children.
dated September 26, 2000 as filed by Mrs. Marcos; dated October 5, 2000 as jointly filed by Mrs. Mano
53
Ferdinand, Jr.; supplemental motion for reconsideration dated October 9, 2000 jointly filed by Mrs. Manot
Ferdinand, Jr.;
54
dated December 12, 2000 and December 17, 2000 as filed by the Marcos children.
55
TSN, pp. 47-48, October 28, 1999.
56
Evadel Realty and Development Corp. vs. Spouses Antera and Virgilio Soriano, April 20, 2001.
57
Plantadosi vs. Loew's, Inc., 7 Fed. Rules Service, 786, June 2, 1943.
58
Rabaca vs. Velez, 341 SCRA 543 [2000].
59
Carcon Development Corp. vs. Court of Appeals, 180 SCRA 348 [1989].
60
Rollo, pp. 2659-70.
61
Substantially the same as Sections 1 and 2, Rule 34 of the old Rules of Court.
62
Rule 113. Summary Judgment. - When an answer is served in an action to recover a debt or a liquidate
demand arising,
1. on a contract, express or implied, sealed or not sealed; or
2. on a judgment for a stated sum;
the answer may be struck out and judgment entered thereon on motion, and the affidavit of the plaintiff or
other person having knowledge of the facts, verifying the cause of action and stating the amount claimed
belief that there is no defense to the action; unless the defendant by affidavit or other proof, shall show su
as may be deemed, by the judge hearing the motion, sufficient to entitle him to defend. (emphasis ours)
63
73 Am Jur 2d 733, §12; 49 C.J.S. 412, § 224.
64
Moran, Comments on the Rules of Court, Vol. II. (1996), pp. 183-184.
65
19 NYS2d 250 [1940].
66
73 Am Jur 2d 733, §12; 49 C.J.S. 412, § 224.
67
Supra.
68
Gregorio Estrada vs. Hon. Fracisco Consolacion, et. al., 71 SCRA 523 [1976].
69
70
Madeja vs. Patcho, 123 SCRA 540 [1983].
71
Mejia de Lucas vs. Gamponia, 100 Phil. 277 [1956].
72
Diaz vs. Gorricho, 103 Phil. 261 [1958].
73
Collado vs. Court of Appeals, G.R. No.107764, October 4, 2002; Section 15, Article XI of the 1987 Con
74
Go Tian An vs. Republic of the Philippines, 124 Phil. 472 [1966].
75
Tijam vs. Sibonghanoy, 23 SCRA 29 [1968].
"An Act Declaring Forfeiture in Favor of the State any Property Found to Have Been Unlawfully Acquire
76
Public Officer or Employee and Providing for the Proceedings Therefor", approved on June 18, 1955.
77
Petition, Annex D, Volume II, p. 1081.
78
Ibid.
79
Id., p. 1062.
80
Exhibit "S."
81
82
Regalado, Remedial Law Compendium, Vol. II, 1997 ed., p. 650.
83
Moran, Comments on the Rules of Court, Volume V, 1980 ed., p. 64.
84
Section 9, Article VII.
85
Section 4(1), Article VII.
86
87
Annex F-1, Volume II, Rollo, pp. 1095-1098.
88
Annex F-2, Volume II, Rollo, pp.1099-1100.
89
Chavez vs. PCGG, 299 SCRA 744, [1998].
90
91
Annex HH, Volume III, Rollo, p. 2205.
92
31A C.J.S., Par. 284, p.721.
93
Annex I, Volume II, Rollo, pp. 1177-1178.
94
Ibid, p. 1181.
95
Ibid, p. 1188.
96
Ibid, p. 1201.
97
29A Am. Jur., Par. 770, p. 137.
98
31A C.J.S., Par. 311, p.795.
99
Annex M, Volume II, Rollo, pp.1260-1261.
100
101
Annex S, Volume II, Rollo, pp.1506-1507.
102
Annex L, Volume II, Rollo, p. 1256.
103
Annex P-1, Volume II, Rollo, p. 1289.
104
Santiago vs. de los Santos, 61 SCRA 146 [1974].
105
106
107
108
29 Am Jur 2d Par. 824, p. 211.
109
31A C.J.S., Par. 322, p. 817.
110
Ibid, p. 814.
111
Miriam Defensor Santiago, Rules of Court Annotated, 1999 ed., p. 857.
112
Rollo, pp. 2255-2265.
Sec. 7. Compulsory joinder of indispensable parties.—Parties in interest without whom no final determ
113
can be had of an action shall be joined either as plaintiffs or defendants. The same as Section 7, Rule 3 o
Rules of Court.
114
59 Am. Jur. 2d Parties §97 (2000).
115
Supra note 3 § 13 (2000).
116
Supra note 3 citing Picket vs. Paine, 230 Ga 786, 199 SE2d 223.
117
Rollo, p. 1260. Manifestation:
"Comes now undersigned counsel for the respondent Imelda R. Marcos, and before this Honorable Cour
respectfully manifests:
That respondent Imelda R. Marcos owns 90% of the subject-matter of the above-entitled case, being the
beneficiary of the dollar deposits in the name of the various Foundations alleged in the case;
That in fact only 10% of the subject-matter in the above-entitled case belongs to the Estate of the late Pre
Ferdinand E. Marcos;"
118
Rollo, p. 2464, quoted from the December 18, 2000 memorandum of respondent Mrs. Marcos:
"On the other hand, the opponent to the appeal, formally the owner of the assets to be seized and restitu
not been involved in the collecting procedure pending in the Philippines. Even though such opponent is n
but a legal construction to hide the true ownership to the assets of the Marcos family, they nevertheless a
entitled to a hearing as far as the proceedings are concerned with accounts which are nominally theirs. T
guarantees of the Republic of the Philippines therefore must include the process rights not only of the de
but also of the formal owners of the assets to be delivered."
119
240 SCRA 376, 469 [1995].
120
Supra.
121
Id at 470-471.
122
123
Sec. 11. Misjoinder and non-joinder of parties. – Neither misjoinder nor non-joinder of parties is ground
dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or o
own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined part
be severed and proceeded with separately.
124
Same as Section 7, Rule 3 of the old Rules of Court.
125
Supra note 3 § 265 (2000)
Id citing Gentry vs. Smith (CA5 Fla) 487 F2d 571, 18 FR Serv 2d 221, later app (CA5 Fla) 538 F2d 109
126
reh (CA5 Fla) 544 F2d 900, holding that a failure to request the joinder of a defendant was excused wher
moving party's former counsel, who had resisted the joinder, abruptly withdrew his appearance and subs
counsel moved promptly to join the corporation.
127
Supra note 3.
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2008 LEI Notes in

Public International Law

“Nam omnia praeclara tam difficilia quam rara sunt”

★ State legally bound to observe its treaty

3 GRAND DIVISIONS Q: What are these generally accepted

Pacta Sunt Servanda SOURCES

2. Law-Making Treaty [Traite-Loi] –

★ Source of “General International Law” cumulative effect of uniform decisions of the

IV. Judicial decisions The primary sources may be considered as formal

servanda, a customary or general norm which c. Consequences of Recognition of

Subject Defined Q: When does an entity acquire international

In 1929, Italy and the Holy See entered into the

jurisdiction, consisting of its terrestrial, fluvial, ★ the agency or instrumentality through

[Lawyers League for a Better Philippines v.

Political - Civil Laws:

occupied territory were still bound by their

RIGHTS OF SOVEREIGNTY AND INDEPENDENCE 2. 1990 Iraqi Annexation of Kuwait

Nicaragua v. United States Declaratory School

RECOGNITION OF GOVERNMENT Estrada Doctrine

Facto Constitution which vests this power in any

 Thus, Act of State Doctrine now applies Developments in a Rebel Movement

★ EX.: Captured rebels are prosecuted for

(1) Administer; and

CHARACTERISTICS OF TERRITORY ☀ Q: What if the discovering state

A: Possession must be claimed on ☀ No rule as to length of time required

Conquest is Different from “Military or  In peacetime, freedom of navigation

Internal Waters MARITIME AND FLUVIAL DOMAIN

2. Straight Baseline Method

Distinguish briefly but clearly between the

space, infinity, the lowest altitude of an artificial

2. Theoretical limit of air flights is 90 km above

Q: What is outer space? Who or which can THE UNITED NATIONS

Membership 4. In the judgment of the Organization, be

¯°º°¯ How is Admission conducted?

What are the principles of the UN? The Principal Organs

Proposals for Amendments to the UN Charter GA Voting Rules

We rule in the negative. other negotiators at the start of the formal

by its representative. It is generally held to be an It should be emphasized that under our

Q: What is the meaning or concept of C. Protective Principle

ACT OF STATE DOCTRINE Functions of Diplomatic Missions

f) Subject to its laws and

h) A diplomatic agent shall be The official staff is made up of the administrative

If the said rank and file employees belong to the

damage suit, by mere presentation of Diplomatic

forge extradition treaties to arrest the dramatic another state

plan of John to assassinate President Harry was

5 POSTULATES OF EXTRADITION Extradition is merely a measure of international

extradition proceedings are summary in nature. the certainty of guilt of an accused. In

1) The ultimate purpose of extradition 6) Potential extraditees are entitled to the

3) By nature then, extradition proceedings are 8) We realize that extradition is essentially an

upon an accused is a factor to consider in

RP, being a signatory to the 1996 UN General Asylum and Refugees

Q: Sandoval’s Open Question No. 1 Statelessness

agree to accord the stateless persons within their

of the Senate. The documents contained therein a) When it limits itself; or

Treaty as main instrument 2) Competence of particular organs

e) approval or accession; or Usual Steps Taken

Held: In our jurisdiction, we have recognized the b) Is the president bound to

those of the most favored nation (Commissioner

★ Nevertheless, in the Philippines, treaties are In Commissioner of Internal Revenue v. S.C.

▪ When an existing State acquires a territory, it TERMINATION OF TREATIES

This term has been restrictively construed as an

Essential Elements: ★ Developing countries, hoping to attract