1. BAYAN v.

Zamora
FACTS: On March 14, 1947, the Philippines (RP) and the United States of America (US) forged
a Military Bases Agreement which formalized the use of installations in the Philippine
territory by United States military personnel. The RP-US Military Bases Agreement expired
in 1991 without having been renewed. Notwithstanding, the defense and security relationship
between the Philippines and the US continued pursuant to a Mutual Defense Treaty entered into
on August 30, 1951.
In 1997, negotiations began between the RP and US for a Visiting Forces Agreement (VFA),
which provides for the mechanism for regulating the circumstances and conditions under
which US Armed Forces and defense personnel may be present in the Philippines.
President Ramos approved the VFA, which was respectively signed by Foreign Affairs
Secretary Siazon and US Ambassador Thomas Hubbard on February 10, 1998. Subsequently,
President Estrada ratified the VFA and officially transmitted to the Senate of the Philippines the
Instrument of Ratification for concurrence pursuant to Section 21, Article VII of the 1987
Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign Relations and
Committee on National Defense and Security for joint hearing. Thereafter, Senate Resolution
No. 443 was approved by the Senate by a two-thirds (2/3) vote of its members. It became re-
numbered as Senate Resolution No. 18. The VFA officially entered into force after an Exchange
of Notes between Foreign Affairs Secretary Siazon and US Ambassador Hubbard.
Petitioners assail the constitutionality of the VFA on the ground that Section 25, Article XVIII is
applicable considering that the VFA has for its subject the presence of foreign military troops in
the Philippines. Respondents, on the contrary, maintain that Section 21, Article VII should
apply inasmuch as the VFA is not a basing arrangement but an agreement which involves
merely the temporary visits of United States personnel engaged in joint military exercises. It is
also argued that the President acted with grave abuse of discretion when it ratified the VFA, a
treaty, as the power to ratify the same is lodged with the Senate and not the Chief Executive.
ISSUES:
1. Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII
of the Constitution, with regard to the exercise of the Senate of its constitutional power to concur
with the VFA?
2. Whether the power to ratify treaties, like the VFA, is lodged with the Senate.
RULING:
1. Section 25, Article XVIII and Section 21, Article VII of the Constitution are both applicable on
a treaty, like the VFA, which involves the presence of foreign military troops in the country.
Section 21, Article VII deals with treatise or international agreements in general, in which case,
the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make
the subject treaty, or international agreement, valid and binding on the part of the Philippines. In
contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the
concurrence of the Senate is only one of the requisites to render compliance with the
constitutional requirements and to consider the agreement binding on the Philippines.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country,
unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the
treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a
majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty
by the other contracting state. All of the requisites are met.
The "concurrence requirement" under Section 25, Article XVIII must be construed in relation to
the provisions of Section 21, Article VII which requires that concurrence of a treaty, or
international agreement, be made by a two -thirds vote of all the members of the Senate. The
Senate is composed of 24 senators. The two-thirds requirement means that no less than 16
votes is necessary to ratify the VFA.
As to the third requisite, the phrase "recognized as a treaty" means that the other contracting
party accepts or acknowledges the agreement as a treaty. The words used in the Constitution
are to be given their ordinary meaning except where technical terms are employed, in which
case the significance thus attached to them prevails. Also, it is inconsequential whether the
United States treats the VFA only as an executive agreement because, under international law,
they are equally binding obligations upon nations. To be sure, as long as the VFA possesses
the elements of an agreement under international law, the said agreement is to be taken equally
as a treaty.
2. Ratification is generally held to be an executive act, undertaken by the head of the state or of
the government, as the case may be, through which the formal acceptance of the treaty is
proclaimed. The power to ratify is vested in the President and not, as commonly believed, in
the legislature. The role of the Senate is limited only to giving or withholding its consent,
or concurrence, to the ratification. In the Philippine jurisdiction, we have recognized the
binding effect of executive agreements even without the concurrence of the Senate or
Congress.
Other notes:
Section 25, Article XVIII does not require foreign troops or facilities to be stationed or placed
permanently in the Philippines since the Constitution makes no distinction between "transient'
and "permanent". When no distinction is made by law, the Court should not distinguish.
Section 25, Article XVIII does not refer to "foreign military bases, troops, or facilities" collectively
but treats them as separate and independent subjects. The provision contemplates three
different situations - a military treaty the subject of which could be either (a) foreign bases, (b)
foreign troops, or (c) foreign facilities - any of the three standing alone places it under the
coverage of Section 25, Article XVIII.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international
instrument concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments, and whatever its
particular designation.” For as long as the United States of America accepts or acknowledges
the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there
is indeed marked compliance with the mandate of the Constitution.
Article 13 of the Declaration of Rights and Duties of States adopted by the International Law
Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations
arising from treaties and other sources of international law, and it may not invoke provisions in
its constitution or its laws as an excuse for failure to perform this duty." Article 26 of the
convention which provides that "Every treaty in force is binding upon the parties to it and must
be performed by them in good faith." This is known as the principle of pacta sunt servanda.
2. Suzette Nicolas v Romulo et al.
FACTS: Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States
Armed Forces. He was charged with the crime of rape committed against a Filipina, petitioner
herein, sometime on November 1, 2005. Pursuant to the Visiting Forces Agreement (VFA)
between the Republic of the Philippines and the United States, entered into on February 10,
1998, the United States, at its request, was granted custody of defendant Smith pending the
proceedings.
United States Government faithfully complied with its undertaking to bring defendant Smith to
the trial court every time his presence was required. RTC of Makati, rendered its Decision,
finding defendant Smith guilty of the crime of rape. As a result, the Makati court ordered Smith
detained at the Makati jail until further orders.
Smith was taken out of the Makati jail by a contingent of Philippine law enforcement agents,
purportedly acting under orders of the Department of the Interior and Local Government, and
brought to a facility for detention under the control of the United States government, provided for
under new agreements between the Philippines and the United States, referred to as the
Romulo-Kenney Agreement in accordance with the Visiting Forces Agreement signed between
our two nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to
U.S. military custody at the U.S. Embassy in Manila.
He will be guarded round the clock by U.S. military personnel. The Philippine police and jail
authorities, under the direct supervision of the Philippine Department of Interior and Local
Government (DILG) will have access to the place of detention to ensure the United States is in
compliance with the terms of the VFA.
Petitioners contend that the Philippines should have custody of defendant L/CPL Smith
because, first of all, the VFA is void and unconstitutional.
Clark and Subic and the other places in the Philippines covered by the RP-US Military Bases
Agreement of 1947 were not Philippine territory, as they were excluded from the cession and
retained by the US. Accordingly, the Philippines had no jurisdiction over these bases except to
the extent allowed by the United States.
RP-US Military Bases Agreement was never advised for ratification by the United States
Senate, a disparity in treatment, because the Philippines regarded it as a treaty and had it
concurred in by our Senate.
Subsequently, the United States agreed to turn over these bases to the Philippines; and with the
expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these bases
were finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in question was adopted in the 1987
Constitution.
ISSUE: WoN the presence of US Armed Forces in Philippine territory pursuant to the VFA is
allowed "under a treaty duly concurred in by the Senate and recognized as a treaty by the other
contracting State."
Petitioners contend that these undertakings violate another provision of the Constitution,
namely, that providing for the exclusive power of this Court to adopt rules of procedure for
all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of
custody of an accused to a foreign power is to provide for a different rule of procedure for
that accused, which also violates the equal protection clause of the Constitution (Art. III,
Sec. 1.).
RULING: This Court finds that it is allowed, for two reasons.
First, as held in Bayan v. Zamora, the VFA was duly concurred in by the Philippine Senate and
has been recognized as a treaty by the United States as attested and certified by the duly
authorized representative of the United States government.
The fact that the VFA was not submitted for advice and consent of the United States Senate
does not detract from its status as a binding international agreement or treaty recognized by the
said State. For this is a matter of internal United States law.
The second reason has to do with the relation between the VFA and the RP-US Mutual Defense
Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the
concurrence of both the Philippine Senate and the United States Senate.
Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to
resist an armed attack fall squarely under the provisions of the RP-US Mutual Defense Treaty.
The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises,
is simply an implementing agreement to the main RP-US Military Defense Treaty.
The Preamble of the VFA states
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not
necessary to submit the VFA to the US Senate for advice and consent, but merely to the US
Congress under the Case-Zablocki Act within 60 days of its ratification. It is for this reason that
the US has certified that it recognizes the VFA as a binding international agreement, i.e., a
treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our
Constitution.
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that
the presence of the US Armed Forces through the VFA is a presence "allowed under" the RP-
US Mutual Defense Treaty.
The VFA provides that in cases of offenses committed by the members of the US Armed
Forces in the Philippines, the following rules apply:
“The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so request,
from the commission of the offense until completion of all judicial proceedings.”
SC finds no violation of the Constitution.
As to the power of this Court to adopt rules of procedure
The rule in international law is that foreign armed forces allowed to enter one’s territory is
immune from local jurisdiction, except to the extent agreed upon. As a result, the situation
involved is not one in which the power of this Court to adopt rules of procedure is curtailed or
violated, but rather one in which, as is normally encountered around the world, the laws
(including rules of procedure) of one State do not extend or apply – except to the extent agreed
upon – to subjects of another State due to the recognition of extraterritorial immunity given to
such bodies as visiting foreign armed forces.
Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or
some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed forces contingents of a
foreign State allowed to enter another State's territory. On the contrary, the Constitution states
that the Philippines adopts the generally accepted principles of international law as part of the
law of the land.
However, applying the provision of VFA, the Court finds that there is a different treatment
when it comes to detention as against custody. The moment the accused has to be
detained, e.g., after conviction, the rule that governs is the following provision of the VFA:
“The confinement or detention by Philippine authorities of United States personnel shall
be carried out in facilities agreed on by appropriate Philippines and United States authorities.
United States personnel serving sentences in the Philippines shall have the right to visits and
material assistance.”
It is clear that the parties to the VFA recognized the difference between custody during the
trial and detention after conviction, because they provided for a specific arrangement to
cover detention. Not only that the detention shall be carried out in facilities agreed on by
authorities of both parties, but also that the detention shall be "by Philippine authorities."
Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006, which are
agreements on the detention of the accused in the United States Embassy, are not in accord
with the VFA itself because such detention is not "by Philippine authorities."
Next, the Court addresses the recent decision of the United States Supreme Court in Medellin
v. Texas, which held that treaties entered into by the United States are not automatically part of
their domestic law unless these treaties are self-executing or there is an implementing
legislation to make them enforceable.
First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself,
because the parties intend its provisions to be enforceable, precisely because the Agreement is
intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty.
Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act,
USC Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that
executive agreements registered under this Act within 60 days from their ratification be
immediately implemented.
VFA differs from the Vienna Convention on Consular Relations and the Avena decision of the
International Court of Justice (ICJ), subject matter of the Medellin decision. The Convention and
the ICJ decision are not self-executing and are not registrable under the Case-Zablocki Act, and
thus lack legislative implementing authority.
Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate.
Disposition: The petitions are PARTLY GRANTED. VFA between RP and US is
CONSTITUTIONAL. But the Romulo-Kenney Agreements are DECLARED not in accordance
with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith
negotiate with the United States representatives for the appropriate agreement on detention
facilities under Philippine authorities.
Principles:
The rule in international law is that a foreign armed forces allowed to enter one's territory is
immune from local jurisdiction, except to the extent agreed upon. The Status of Forces
Agreements involving foreign military units around the world vary in terms and conditions,
according to the situation of the parties involved, and reflect their bargaining power. But the
principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the
sending State only to the extent agreed upon by the parties.
As a result, the situation involved is not one in which the power of this Court to adopt rules of
procedure is curtailed or violated, but rather one in which, as is normally encountered around
the world, the laws (including rules of procedure) of one State do not extend or apply except to
the extent agreed upon - to subjects of another State due to the recognition of extraterritorial
immunity given to such bodies as visiting foreign armed forces.
It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25,
to require the other contracting State to convert their system to achieve alignment and parity
with ours. It was simply required that the treaty be recognized as a treaty by the other
contracting State.
As held by the US Supreme Court in Weinberger v. Rossi, an executive agreement is a "treaty"
within the meaning of that word in international law and constitutes enforceable domestic law
vis-à-vis the United States. Thus, the US Supreme Court in Weinberger enforced the provisions
of the executive agreement granting preferential employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the American system:
Art. II, Sec. 2 treaties - These are advised and consented to by the US Senate in accordance
with Art. II, Sec. 2 of the US Constitution.
Executive-Congressional Agreements: These are joint agreements of the President and
Congress and need not be submitted to the Senate.
Sole Executive Agreements. - These are agreements entered into by the President. They are to
be submitted to Congress within sixty (60) days of ratification under the provisions of the Case-
Zablocki Act, after which they are recognized by the Congress and may be implemented.
 3. Lim v Exec Secretary
DOCTRINE: With the Vienna Convention on the Law of Treaties as guide for interpretation, the
term “activities” allowed under the Visiting Forces Agreement was intentionally made vague so
as to give both parties a certain leeway in negotiation. In this manner, visiting US forces may
sojourn in Philippine territory for purposes other than military. Thus, Balikatan 02-1, a "mutual
antiterrorism advising, assisting and training exercise," falls under the umbrella of sanctioned or
allowable activities in the context of the agreement.
FACTS: Pursuant to the Mutual Defense Treaty, troops from the United States and the
Philippine military take part in a simulation of joint military maneuvers called the “Balikatan”
exercises. Its aim is to enhance the strategic and technological capabilities of the Philippine
armed forces through joint training with its American counterparts. The "Balikatan" is the largest
such training exercise directly supporting the MDT's objectives.
The expiration of the US-Philippine Bases Agreement in 1992 and the decision not to renew
it created a vacuum in US Philippine defense relations until it was replaced by the Visiting
Forces Agreement (VFA) in 1999. The VFA provides the regulatory mechanism “by which
United States military and civilian personnel may visit temporarily in the Philippines in
connection with activities approved by the Philippine Government
Beginning 2002, personnel from the US military started arriving in Mindanao to take part, in
conjunction with the Philippine military, in the so-called “Balikatan 02-1." Under its Terms of
Reference, Balikatan 02- 1 is a mutual counter-terrorism advising, assisting and training
exercise relative to Philippine efforts against the Abu Sayyaf Group, a group identified by
the United States as a terrorist group forming part of a "terrorist underground" linked to the
alQaeda network.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for
certiorari and prohibition, attacking the constitutionality of the joint exercise. They were
joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-list
organizations, who filed a petition-in-intervention.
Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS
and PARTIDO, on the other hand, aver that certain members of their organization are residents
of Zamboanga and Sulu, and hence will be directly affected by the operations being conducted
in Mindanao.
ISSUES:
1. Whether or not Balikatan 02-1 is covered by the Visiting Forces Agreement.
2. Assuming that Balikatan 02-1 is permitted under the terms of the Visiting Forces Agreement,
whether or not American troops actually engage in combat in Philippine territory.
RULING:
1. YES. In determining whether Balikatan 02-1 is covered by the VFA, reference must be
made to the VFA itself. However, not much help can be had therefrom since the
terminology employed is itself the source of the problem. The VFA permits United States
personnel to engage, on an impermanent basis, in "activities," the exact meaning of
which was left undefined. The expression is ambiguous, permitting a wide scope of
undertakings subject only to the approval of the Philippine government.
 That being the case, the Vienna Convention on the Law of Treaties which contains provisos
governing interpretations of international agreements may be resorted to in order to aid the
interpretation of the term “activities.” Under the Convention, the cardinal rule of
interpretation must involve an examination of the text, which is presumed to verbalize
the parties' intentions. The Convention likewise dictates what may be used as aids to
deduce the meaning of terms, which it refers to as the context of the treaty, as well as other
elements, may be taken into account alongside the aforesaid context.
With the Convention as a guide, it appears that the ambiguity of the term “activities”
was deliberately made so as to give both parties a certain leeway in negotiation. In
this manner, visiting US forces may sojourn in Philippine territory for purposes other than
military, such as training on new techniques of patrol and surveillance to protect the nation's
marine resources, sea search-and-rescue operations to assist vessels in distress, disaster
relief operations, civic action projects such as the building of school houses, medical and
humanitarian missions, and the like.
Thus, Balikatan 02-1 falls within the context of the VFA. Balikatan 02-1, a "mutual anti-
terrorism advising, assisting and training exercise," falls under the umbrella of sanctioned or
allowable activities in the context of the agreement. Both the history and intent of the Mutual
Defense Treaty and the VFA support the conclusion that combat-related activities — as
opposed to combat itself — such as the one subject of this case, are indeed authorized.
2. NO. The Terms of Reference of Balikatan 02-1 provides that US exercise participants
may not engage in combat except in self-defense. Further, the MDT and the VFA, as
in all other treaties and international agreements to which the Philippines is a party, must
be read in the context of the 1987 Constitution. The present Constitution contains key
provisions useful in determining the extent to which foreign military troops are allowed in
Philippine territory. Under the Constitution, it has been declared as a principles and state
policies the renunciation of war as an instrument of national policy (Sec. 2, Art. II); the
pursuance of independent foreign policy (Sec. 7, Art. II); and the adoption and
pursuance of a policy of freedom from nuclear weapons in the country.
From the perspective of public international law, a treaty is favored over municipal law pursuant
to the principle of pacta sunt servanda, a principle that holds that every treaty in force is
binding upon the parties to it and must be performed by them in good faith. However, our
Constitution espouses the opposing view. Under Sec. 5, Art. VIII of the Constitution, the
Supreme Court has the power to review revise, reverse, modify, or affirm final judgments and
order of lower courts in all cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question. Thus, the provisions of a treaty are always subject to
qualification or amendment by a subsequent law, or that it is subject to the police power
of the State.
Disposition: The foregoing premises leave us no doubt that US forces are prohibited from
engaging in an offensive war on Philippine territory.
Provisions/doctrines: Both the Mutual Defense Treaty and the Visiting Forces Agreement, as
in all other treaties and international agreements to which the Philippines is a party, must be
read in the context of the 1987 Constitution.
The present Constitution contains key provisions useful in determining the extent to which
foreign military troops are allowed in Philippine territory. Thus, in the Declaration of Principles
and State Policies, it is provided that:
 SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
Even more pointedly, the Transitory Provisions state:
Sec. 25.  After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign military bases,
troops or facilities shall not be allowed in the Philippines except under a treaty... duly concurred
in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by
the people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting state.
The aforequoted provisions betray a marked antipathy towards foreign military presence in the
country, or of foreign influence in general. Hence, foreign troops are allowed entry into the
Philippines only by way of direct exception
From the perspective of public international law, a treaty is favored over municipal law pursuant
to the principle of pacta sunt servanda.
Our Constitution espouses the opposing view
The Supreme Court shall have the following powers:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
In Ichong v. Hernandez, we ruled that the provisions of a treaty are always subject to
qualification or amendment by a subsequent law, or that it is subject to the police power of the
State
The foregoing premises leave us no doubt that US forces are prohibited from engaging in an
offensive war on Philippine territory.

4. Pimentel vs. Executive Secretary

FACTS: The petitioners filed a petition for mandamus to compel the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome
Statute of the International Criminal Court to the Senate of the Philippines for its concurrence
pursuant to Sec. 21, Art VII of the 1987 Constitution.
The Rome Statute established the Int’l Criminal Court which will have jurisdiction over the most
serious crimes as genocide, crimes against humanity, war crimes and crimes of aggression as
defined by the Statute. The Philippines signed through the Chargie du Affairs in UN. The
provisions of the Statute however require that it be subject to ratification, acceptance or
approval of the signatory state. 
Petitioners contend that ratification of a treaty, under both domestic and international
law, is a function of the Senate, hence it is the duty of the Executive Department to transmit
the signed copy to the senate to allow it to exercise its discretion. 
The OSG commenting for the respondent, questioned the standing of the petitioners to file the
instant suit, that the petition at bar violates the rule on hierarchy of courts and the substantive
issue raise by the petitioner is that the executive department has no duty to transmit the
Rome Statute to the Senate for concurrence.
ISSUE: whether the Executive Secretary and the Department of Foreign Affairs have
a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of
the Philippine Mission to the United Nations even without the signature of the President?
HELD: The SC ruled in the negative.
**SUBSTANTIVE ISSUES**
President has the sole authority to negotiate and enter into treaties.
In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country’s sole representative with foreign
nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece
with respect to international affairs. Hence, the President is vested with the authority to deal with
foreign states and governments, extend or withhold recognition, maintain diplomatic relations,
enter into treaties, and otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with other states.
Role of the Senate in treaty-making
While the President has the sole authority to negotiate and enter into treaties, the Constitution
provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that “no treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the Senate.” The 1935 and the
1973 Constitution also required the concurrence by the legislature to the treaties entered into by
the executive. The participation of the legislative branch in the treaty-making process was
deemed essential to provide a check on the executive in the field of foreign relations.
Mandamus cannot lie to compel the executive branch of the government to transmit the
signed text of a treaty to the Senate
Under our Constitution, the power to ratify is vested in the President, subject to the concurrence
of the Senate. The role of the Senate, however, is limited only to giving or withholding its
consent, or concurrence, to the ratification. Hence, it is within the authority of the President
to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse
to ratify it.
Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious
step that should not be taken lightly, such decision is within the competence of the President
alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no
jurisdiction over actions seeking to enjoin the President in the performance of his official
duties. The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as
it is beyond its jurisdiction to compel the executive branch of the government to transmit the
signed text of Rome Statute to the Senate. 
Steps in treaty-making
Petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the power to
ratify treaties belongs to the Senate. The SC disagreed.
The usual steps in the treaty-making process are: negotiation, signature, ratification, and
exchange of the instruments of ratification. The treaty may then be submitted for registration
and publication under the U.N. Charter, although this step is not essential to the validity of the
agreement as between the parties.
1. Negotiation may be undertaken directly by the head of state but he now usually
assigns this task to his authorized representatives. It is standard practice for one of
the parties to submit a draft of the proposed treaty which, together with the counter-
proposals, becomes the basis of the subsequent negotiations. The negotiations may
be brief or protracted, depending on the issues involved, and may even “collapse” in
case the parties are unable to come to an agreement on the points under
consideration.
2. If and when the negotiators finally decide on the terms of the treaty, the same is
opened for signature. This step is primarily intended as a means of authenticating
the instrument and for the purpose of symbolizing the good faith of the parties; but,
significantly, it does not indicate the final consent of the state in cases where
ratification of the treaty is required. The document is ordinarily signed in accordance
with the alternat, that is, each of the several negotiators is allowed to sign first on the
copy which he will bring home to his own state.
3. Ratification, which is the next step, is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its representatives. The purpose of
ratification is to enable the contracting states to examine the treaty more closely and
to give them an opportunity to refuse to be bound by it should they find it inimical to
their interests. It is for this reason that most treaties are made subject to the scrutiny
and consent of a department of the government other than that which negotiated
them.
4. The last step in the treaty-making process is the exchange of the instruments of
ratification, which usually also signifies the effectivity of the treaty unless a different
date has been agreed upon by the parties. Where ratification is dispensed with and
no effectivity clause is embodied in the treaty, the instrument is deemed effective
upon its signature.
Petitioners’ arguments equate the signing of the treaty by the Philippine representative with
ratification. The signing of the treaty and the ratification are two separate and distinct steps in
the treaty-making process. The signature is primarily intended as a means of authenticating the
instrument and as a symbol of the good faith of the parties. It is usually performed by the state’s
authorized representative in the diplomatic mission. Ratification, on the other hand, is the
formal act by which a state confirms and accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive act, undertaken by the head of the state or
of the government.
Thus, EO No. 459 provides the guidelines in the negotiation of international agreements and its
ratification. It mandates that after the treaty has been signed by the Philippine representative,
the same shall be transmitted to the DFA. The DFA shall then prepare the ratification papers
and forward the signed copy of the treaty to the President for ratification. After the President has
ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for
concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs
shall comply with the provisions of the treaty to render it effective.
Ratification is the step that binds the state to the treaty (Power to ratify is vested in the
President)
Petitioners’ submission that the Philippines is bound under treaty law and international law to
ratify the treaty which it has signed is without basis. The signature does not signify the final
consent of the state to the treaty. It is the ratification that binds the state to the provisions
thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the
states be subject to ratification, acceptance or approval of the signatory states. Ratification is
the act by which the provisions of a treaty are formally confirmed and approved by a State. The
purpose of ratification is to enable the contracting states to examine the treaty more closely and
to give them an opportunity to refuse to be bound by it should they find it inimical to their
interests. It is for this reason that most treaties are made subject to the scrutiny and consent of
a department of the government other than that which negotiated them.
Ratification is not a ministerial act
After the treaty is signed by the state’s representative, the President, being accountable to the
people, is burdened with the responsibility and the duty to carefully study the contents of the
treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the
President has the discretion even after the signing of the treaty by the Philippine representative
whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not
contemplate to defeat or even restrain this power of the head of states. If that were so, the
requirement of ratification of treaties would be pointless and futile. It has been held that a state
has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries.
There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be
based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other
state would be justified in taking offense.
IN VIEW WHEREOF, the petition is DISMISSED.
NOTE: Just in case tanungin. Procedural Issue.
As to the legal standing of petitioners
SC held that to be given due course, a petition for mandamus must have been instituted by a
party aggrieved by the alleged inaction of any tribunal, corporation, board or person which
unlawfully excludes said party from the enjoyment of a legal right. The petitioner in every case
must therefore be an aggrieved party in the sense that he possesses a clear legal right to be
enforced and a direct interest in the duty or act to be performed.
Among the petitioners, only Senator Pimentel has the legal standing to file the instant suit. The
other petitioners are advocates and defenders of human rights, and as citizens of the country.
They have not shown, that they have sustained or will sustain a direct injury from the non-
transmittal of the signed text of the Rome Statute to the Senate. 
As regards Senator Pimentel, it has been held that “to the extent the powers of Congress are
impaired, so is the power of each member thereof, since his office confers a right to participate
in the exercise of the powers of that institution.” Thus, legislators have the standing to maintain
inviolate the prerogatives, powers and privileges vested by the Constitution in their office and
are allowed to sue to question the validity of any official action which they claim infringes their
prerogatives as legislators. The petition at bar invokes the power of the Senate to grant or
withhold its concurrence to a treaty entered into by the executive branch, in this case, the Rome
Statute. The petition seeks to order the executive branch to transmit the copy of the treaty to the
Senate to allow it to exercise such authority. Senator Pimentel, as member of the institution,
certainly has the legal standing to assert such authority of the Senate.
5. Abaya v. Ebdane

FACTS: Based on the Exchange of Notes dated December 27, 1999, the Government of Japan
and the Government of the Philippines, through their respective representatives, have reached
an understanding concerning Japanese loans to be extended to the Philippines which were
aimed at promoting our country’s economic stabilization and development efforts.

In accordance with the agreement reached by the Government of Japan and the Philippine
Government, as expressed in the Exchange of Notes between the representatives of the two
governments, the Philippines obtained from and was granted a loan by the JBIC. JBIC agreed
to lend the Philippine Government an amount not exceeding FIFTEEN BILLION THREE
HUNDRED EIGHTY-FOUR MILLION Japanese Yen (Y 15,384,000,000) as principal for the
implementation of the Arterial Road Links Development Project (Phase IV) on the terms and
conditions set forth in the Loan Agreement and in accordance with the relevant laws and
regulations of Japan.

The DPWH, as the government agency tasked to implement the project, caused the publication
of the “Invitation to Prequalify and to Bid” for the implementation of the CP I project (San Andres
(Codon)-Virac-Jct. Bato- Viga Road) in the Manila Times and Manila Standard. From a total of
23 foreign and local contractors who submitted their accomplished prequalification documents,
only 8 contractors were evaluated or considered eligible to bid. One of them withdrew, thus, only
7 submitted their bid proposals. Prior to the opening of the bid proposals, it was announced that
the Approved Budget for the Contract was in the amount of Php 787, 710, 563.67.

After the evaluation of the bids, contract was awarded to China Road & Bridge Corporation,
being the lowest complying bidder in the corrected bid amount of Php 952, 564, 821.71. The
BAC of the DPWH issued the assailed Resolution No. PJHL-A-04-012 recommending the award
in favor of private respondent China Road & Bridge Corporation of the contract for the
implementation of civil works for CP I. On September 29, 2004, a Contract of Agreement was
entered into by and between the DPWH and China Road & Bridge Corporation for the
implementation of the CP I project.

The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012, which
recommended the award to private respondent China Road & Bridge Corporation of the contract
for the implementation of the civil works of CP I. They also seek to annul the contract of
agreement subsequently entered into by and between the DPWH and private respondent China
Road & Bridge Corporation pursuant to the said resolution.
The petitioners anchor the instant petition on the contention that the award of the contract to
private respondent China Road & Bridge Corporation violates RA 9184 (Government
Procurement Reform Act), particularly Section 31 thereof which reads:
SEC. 31. Ceiling for Bid Prices. – The Approved Budget Contract shall be the upper limit or
ceiling for the Bid prices. Bid prices that exceed this ceiling shall be disqualified outright from
further participating in the bidding. There shall be no lower limit to the amount of the award.

The petitioners insist that Loan Agreement No. PH-P204 between the JBIC and the Philippine
Government is neither a treaty, an international nor an executive agreement that would bar the
application of RA 9184. They point out that to be considered a treaty, an international or an
executive agreement, the parties must be two sovereigns or States whereas in the case of Loan
Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a banking
agency of Japan, which has a separate juridical personality from the Japanese Government.

The public respondents characterize foreign loan agreements, including Loan Agreement No.
PH-P204, as executive agreements and, as such, should be observed pursuant to the
fundamental principle in international law of pacta sunt servanda. They cite Section 20 of Article
VII of the Constitution as giving the President the authority to contract foreign loans.

ISSUE: Whether the Loan Agreement No. PH-204 between the JBIC and the Philippine
Government does not fall under any of the three agreements provided in E.O. 459 (international
agreement, treaty, executive agreement)

RULING: The Court holds that Loan Agreement No. PH-P204 taken in conjunction with the
Exchange of Notes dated December 27, 1999 between the Japanese Government and the
Philippine Government is an executive agreement.

The Exchange of Notes expressed that the two governments have reached an understanding
concerning Japanese loans to be extended to the Philippines and that these loans were aimed
at promoting our country’s economic stabilization and development efforts. Loan Agreement No.
PH-P204 was subsequently executed and it declared that it was so entered by the parties "[i]n
the light of the contents of the Exchange of Notes between the Government of Japan and the
Government of the Republic of the Philippines dated December 27, 1999, concerning Japanese
loans to be extended with a view to promoting the economic stabilization and development
efforts of the Republic of the Philippines." Under the circumstances, the JBIC may well be
considered an adjunct of the Japanese Government. Further, Loan Agreement No. PH-P204 is
indubitably an integral part of the Exchange of Notes. It forms part of the Exchange of Notes
such that it cannot be properly taken independent thereof.

An "exchange of notes" is a record of a routine agreement that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other. Under the
usual procedure, the accepting State repeats the text of the offering State to record its assent.
Significantly, an exchange of notes is considered a form of an executive agreement, which
becomes binding through executive action without the need of a vote by the Senate or
Congress.

Under the fundamental principle of international law of pacta sunt servanda, which is, in fact,
embodied in Section 4 of RA 9184 as it provides that "[a]ny treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippine government is a
signatory shall be observed," the DPWH, as the executing agency of the projects financed by
Loan Agreement No. PH-P204, rightfully awarded the contract for the implementation of civil
works for the CP I project to private respondent China Road & Bridge Corporation.

Other notes: It is stated that "treaties, agreements, conventions, charters, protocols,

declarations, memoranda of understanding, modus vivendi and exchange of notes" all refer to
"international instruments binding at international law."

Agreements concluded by the President which fall short of treaties are commonly referred to as
executive agreements and are no less common in our scheme of government than are the more
formal instruments – treaties and conventions. They sometimes take the form of exchange of
notes and at other times that of more formal documents denominated "agreements" or
"protocols".

6. Pharmaceutical and Health Care Association of the Philippines vs. DOH Secretary

FACTS: Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking
to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and
Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant
International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR).
Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional
and go beyond the law it is supposed to implement.

Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries
of the Department of Health (DOH). For purposes of herein petition, the DOH is deemed
impleaded as a co-respondent since respondents issued the questioned RIRR in their capacity
as officials of said executive agency.

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28,
1986 by virtue of the legislative powers granted to the president under the Freedom
Constitution. One of the preambular clauses of the Milk Code states that the law seeks to give
effect to Article 11[2] of the International Code of Marketing of Breastmilk Substitutes (ICMBS),
a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA
adopted several Resolutions to the effect that breastfeeding should be supported, promoted and
protected, hence, it should be ensured that nutrition and health claims are not permitted for
breastmilk substitutes.

In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article
24 of said instrument provides that State Parties should take appropriate measures to diminish
infant and child mortality, and ensure that all segments of society, specially parents and
children, are informed of the advantages of breastfeeding.

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7,
2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of
breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.

ISSUE: The main issue raised in the petition is whether respondents officers of the DOH acted
without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR.
RULING:

International Instruments as part of the law of the land

Petitioner assails the RIRR for going beyond the provisions of the Milk Code, The defense of the
DOH is that the RIRR implements not only the Milk Code but also various international
instruments regarding infant and young child nutrition. It is argued that since these international
instruments are deemed part of the law of the land, therefore the DOH may implement them
through the RIRR.

The international instruments (Conventions) invoked by the DOH only provide in general terms
that steps must be taken by State Parties to diminish infant and child mortality and inform
society of the advantages of breastfeeding. Said instruments do not contain specific provisions
regarding the use or marketing of breastmilk substitutes. The international instruments that do
have specific provisions regarding breastmilk substitutes are the ICMBS and various WHA
Resolutions.

Under the 1987 Constitution, international law can become part of the sphere of domestic law
either by transformation or incorporation.

(a) The transformation method requires that an international law be transformed into a

domestic law through a constitutional mechanism such as local legislation.

(b) The incorporation method applies when, by mere constitutional declaration,

international law is deemed to have the force of domestic law.

Doctrine of Transformation

Treaties become part of the law of the land through transformation pursuant to Article VII,
Section 21 of the 1987 Constitution which provides that "[n]o treaty or international agreement
shall be valid and effective unless concurred in by at least two-thirds of all the members of the
Senate." Thus, treaties or conventional international law must go through a process prescribed
by the Constitution for it to be transformed into municipal law that can be applied to domestic
conflicts.

The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at
least two-thirds of all members of the Senate as required under Section 21, Article VII of the
1987 Constitution.

However, the ICMBS had been transformed into domestic law through local legislation, the Milk
Code. The Milk Code substantially adopted the provisions of the ICMBS. Consequently, it is the
Milk Code that has the force and effect of law in this jurisdiction and not the ICMBS per se.

Notably, the Milk Code did not adopt the provision in the ICMBS absolutely prohibiting
advertising or other forms of promotion to the general public of products within the scope of the
ICMBS. Instead, the Milk Code expressly provides that advertising or other marketing materials
may be allowed if such materials are duly authorized and approved by the Inter-Agency
Committee (IAC).

B. Doctrine of Incorporation
The incorporation method is embodied in Section 2, Article II of the 1987 Constitution which
states that, “The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land  and adheres to
the policy of peace, equality, justice, freedom, cooperation and amity with all nations.

Generally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land  even if they do not derive from treaty
obligations. In other words, customary international law is deemed incorporated into our
domestic system.

The classical formulation in international law sees those customary rules accepted as

binding result from the combination of two elements: (1) the established,widespread, and
consistent practice on the part of States; and (2) a psychological element known as
the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory by the existence of a rule
of law requiring it.

Generally accepted principles of international law refers to norms of general or customary

international law which are binding on all states, i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity, a person's right to life, liberty and due
process, and pacta sunt servanda, among others.

Fr. Joaquin G. Bernas states that: Custom or customary international law means "a general

and consistent practice of states followed by them from a sense of legal obligation [opinio
juris]." This statement contains the two basic elements of custom: the material factor, that is,
how states behave, and the psychological or subjective factor, that is, why they behave the way
they do.

Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land.

For an international rule to be considered as customary law, it must be established that such
rule is being followed by states because they consider it obligatory to comply with such rules
(opinio juris).

The WHA Resolution are merely recommendatory and legally non-binding. Thus, unlike what

has been done with the ICMBS whereby the legislature enacted most of the provisions into law
which is the Milk Code, the WHA Resolutions have not been adopted as a domestic law.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into

domestic law. The provisions of the WHA Resolutions cannot be considered as customary
international law which are deemed part of the law of the land that can be implemented
by executive agencies without the need of a law enacted by the legislature.

Soft Law vs. Hard Law

It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms,

principles and practices that influence state behavior.

International lawyers typically distinguish between:

 (a)"hard law", which are binding rules of international law (ex. Treaties and conventions,
customary international law)

(b) "soft law" does not fall into any of the categories of international law set forth in
Article 38, Chapter III of the 1946 Statute of the International Court of Justice. It is,
however, an expression of non-binding norms, principles, and practices that influence
state behavior. Duties created under soft law are neither binding nor enforceable, but
they exert great political influence. (ex. UN Declaration of Human Rights, the Codex
Alimentarius, the IHR Resolution on SARS)

Implementing Rules cannot go beyond the law

The Milk Code does not contain a total ban on the advertising and promotion of breastmilk
substitutes, but instead, specifically creates an IAC which will regulate said advertising and
promotion. It follows that a total ban policy could be implemented only pursuant to a
law amending the Milk Code passed by the legislature.

Only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be
validly implemented by the DOH through the subject RIRR.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of

Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for
being ultra vires. The Department of Health and respondents are PROHIBITED from
implementing said provisions.
 
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of
the provisions of Administrative Order No. 2006-0012 is concerned.

NB: PROCEDURAL

Legal Standing of Assocation

The modern view is that an association has standing to complain of injuries to its
members. This view fuses the legal identity of an association with that of its members. An
association has standing to file suit for its workers despite its lack of direct interest if its
members are affected by the action. An organization has standing to assert the concerns of its
constituents. Xxx The association is the appropriate party to assert the rights of its members,
because it and its members are in every practical sense identical. The [association] is but the
medium through which its individual members seek to make more effective the expression of
their voices and the redress of their grievances. (citing Executive Secretary v. Court of Appeals)

An association has the legal personality to represent its members because the results of the
case will affect their vital interests. (citing Purok Bagong Silang Association, Inc. v. Yuipco)

Petitioner, which is mandated by its Amended Articles of Incorporation to represent the

pharmaceutical and health care industry to which its members belong, and whose legal identity
is deemed fused with its members, should be considered as a real party-in-interest which
stands to be benefited or injured by any judgment in the present action.

7. BAYAN MUNA v. ALBERTO ROMULO

FACTS: Petitioner Bayan Muna is a duly registered party-list group established to represent the
marginalized sectors of society.

Having a key determinative bearing on this case is the Rome Statute establishing the
International Criminal Court (ICC) with "the power to exercise its jurisdiction over persons for the
most serious crimes of international concern and shall be complementary to the national
criminal jurisdictions." The serious crimes adverted to cover those considered grave under
international law, such as genocide, crimes against humanity, war crimes, and crimes of...
aggression.

On December 28, 2000, the RP, through Charge d'Affaires Enrique A. Manalo, signed the
Rome Statute which, by its terms, is "subject to ratification, acceptance or approval" by the
signatory states. As of the filing of the instant petition, only 92 out of the 139 signatory countries
appear to have completed the ratification, approval and concurrence process.  The Philippines
is not among the 92.

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to
the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral
agreement... between the USA and the RP. The RP, represented by then DFA Secretary Ople,
agreed with and accepted the US proposals embodied under the US Embassy Note.

In esse, the Agreement aims to protect what it refers to and defines as "persons" of the RP and
US from frivolous and harassment suits that might be brought against them in international
tribunals.

The Agreement pertinently provides as follows:

Persons of one Party present in the territory of the other shall not, absent the express consent
of the first Party, (a) be surrendered or transferred by any means to any international tribunal for
any purpose, unless such tribunal has been established by the UN Security Council, or

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

Ambassador Ricciardone stated that the exchange of diplomatic notes constituted a legally
binding agreement under international... law; and that, under US law, the said agreement did
not require the advice and consent of the US Senate.

Thus, the instant petition imputing grave abuse of discretion to respondents in concluding and
ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared
as without force and effect.

They challenge the following:

a) form of the Agreement in which they state that an exchange of note is not a valid
medium for concluding the agreement.

b) That the Agreement should be in a form of treaty, thus, Senate concurrence is

required, which is absence in this case
 c) that the agreement prevents the Philippines with complying with its obligations under
the Rome Statute which requires States to surrender persons who committed
international crimes.

ISSUE: Whether the Agreement should be in the form of a treaty

RULING: NO.

An exchange of notes is a valid medium for concluding an agreement, the Philippines adopts
the doctrine of incorporation and is embodied in Section 2, Article II of the Constitution, and
states that the Philippines adopts the generally accepted principles of international law and
international jurisprudence as part of the law of the land and adheres to the policy of peace,
cooperation, and amity with all nations. An exchange of notes falls "into the category of... inter-
governmental agreements," which is an internationally accepted form of international
agreement.

In another perspective, the terms "exchange of notes" and "executive agreements" have been
used interchangeably, exchange of notes being considered a form of executive agreement that
becomes binding through executive action. Thus, E/N BFO-028-03- (exchange note) is a
recognized mode of concluding a legally binding international written... contract among nations.

The Court ruled that Senate Concurrence is not necessary in this case.

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international
agreement concluded between states in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever its...
particular designation”. International agreements on the other hand may be in the form of (1)
treaties that require legislative concurrence after executive ratification; or (2) executive
agreements that are similar to treaties, except that they do not require legislative... concurrence
and are usually less formal and deal with a narrower range of subject matters than treaties”

Under international law, there is no difference between treaties and executive agreements in
terms of their binding effects on the contracting states concerned, as long as the negotiating
functionaries have remained within their powers.

On the issue of the agreement must be in the form of a treaty, petitioner cite RA 9851, otherwise
known as the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and
Other Crimes Against Humanity."

Sec. 17 of RA 9851, particularly the second... paragraph thereof, provides:

Section 17.  Jurisdiction. -  In the interest of justice, the relevant Philippine authorities may
dispense with the investigation or prosecution of a crime punishable under this Act if another
court or international tribunal is already conducting the investigation or undertaking the
prosecution... of such crime.  Instead, the authorities may surrender or extradite suspected or
accused persons in the Philippines to the appropriate international court, if any, or to another
State pursuant to the applicable extradition laws and treaties.
Petitioners contend that the agreement, in the form of the Note, amends a municipal law, which
in case it does, is not allowed. Petitioners submit that in order to amend municipal laws,
agreements must be in the form of a treaty, and thus must be concurred by the Senate.

8. Fisheries Jurisdiction (United Kingdom v. Iceland)

DOCTRINE: In order that a change of circumstances may give rise to the premise calling for the
termination of a treaty, it is necessary that it has resulted in a radical transformation of the
extent of the obligations still to be performed.
FACTS: The claim of Iceland to a 12-mile fisheries limit was recognized by the United Kingdom
in 1961 in return for Iceland’s agreement that any dispute concerning Icelandic fisheries
jurisdiction beyond the 12-mile limit be referred to the International Court of Justice. In 1972, the
United Kingdom instituted proceedings against Iceland concerning the proposal of Iceland to
extend its exclusive fisheries jurisdiction from a distance of 12 to a distance of 50 nautical miles.
The United Kingdom contended that Iceland should refrain from implementing, with respect to
their vessels, the 1972 Icelandic regulations regarding the extension of the zone of its exclusive
fishing rights, and that the annual catch of those vessels in the disputed area should be limited
to certain maxima. On the other hand, Iceland claimed that the 1961 agreement was not
applicable on the ground that there has been a change of circumstances that have transformed
radically the extent of the obligations that were imposed under the agreement.
ISSUE: Whether or not it is necessary that a change of circumstances has resulted in a radical
transformation of the extent of the obligations still to be performed in order to be a ground for
invoking the termination of a treaty.
RULING: Yes, in order that a change of circumstances may give rise to the premise calling for
the termination of a treaty, it is necessary that it has resulted in a radical transformation of the
extent of the obligations still to be performed. The change of circumstances alleged by Iceland
cannot be said to have transformed radically the extent of the jurisdictional obligation that was
imposed in the 1961 Exchange of Notes.
Furthermore, the Court held that the 1972 Icelandic Regulations constituted a unilateral
extension of the exclusive fishing rights of Iceland to 50 nautical miles. Iceland could not
unilaterally exclude the United Kingdom from areas between the fishery limits agreed to in the
1961 Exchange of Notes. Both Iceland and the United Kingdom had to undertake negotiations
in good faith to find an equitable solution to their differences regarding their fishery rights.
Hungary v. Slovakia
DOCTRINE:
Watercourse states shall participate in the use, development and protection of an international
watercourse in an equitable and reasonable manner. Such participation includes both the right
to utilize the watercourse and duty to cooperate in the protection and development.
FACTS:1977 Treaty and Project
Hungary and Czechoslovakia entered into a treaty concerning the construction and operation of
the Gabčíkovo–Nagymaros System of Locks (1977 Treaty). This treaty provided for the
construction and operation of a system of Locks by the parties as a “joint investment”. It was
essentially aimed at the production of hydroelectricity, the improvement of navigation on
relevant portions of the Danube River (Danube), and the protection of the surrounding areas
from flooding. The parties likewise undertook to ensure that the quality of water in the Danube
would not be impaired by the project, and that the protection of nature would be observed in the
construction and operation of the Project.
The Project has taken the form of an integrated joint project, wherein the two parties are on
equal footing, as exemplified by the provision in the 1977 Treaty that provides that the
construction, financing, and management of the works would be shouldered by the parties in an
equal measure. Hungary would have control over the sluices at Dunakiliti and the works at
Nagymaros, whereas Czechoslovakia would have control over the works in Gabčíkovo, both of
which are within its respective territories. Its single and indivisible nature was likewise realized in
the Joint Contractual Plan, which complemented the treaty.
The schedule of the works was likewise fixed upon by the parties in their Agreement. The
Project started in 1978; then, on Hungary’s initiative, the parties agreed to (1) slow down the
work, then (2) to postpone putting into operation the power plants, and then, (3) on 6 February
1989, to accelerate the Project.
Suspension of Project
The government of Hungary received intense criticism due to the Project. Due to this criticism,
the Hungarian Government decided to suspend the works at Nagymaros, pending the
completion of the studies it procured in relation to the environmental impact of the project. Later
on, the government likewise suspended the works at Dunakiliti. Lastly, on 27 October 1989,
Hungary decided to abandon the works at Nagymaros altogether, and maintain the status quo
at Dunakiliti.
Variant C
While negotiations were taking place between Hungary and Czechoslovakia, the latter started
investigating alternative solutions. One of the solutions was known as “Variant C”, which
entailed a unilateral diversion of the Danube by Czechoslovakia on its territory and, on its final
stage, a construction at Cunovo of an overflow dam and a levee linking the dam to the south
bank of the bypass canal. The Slovak government decided to begin in September 1991 the
construction to put the Gabčíkovo project into operation by the provisional solution, and work on
Variant C began in November 1991.
Alleged Termination of the Treaty
Discussions between the two parties continued but to no avail. On 19 May 1992, the Hungarian
Government transmitted to the Czechoslovak Government a Note Verbale terminating the 1977
Treaty, effective 25 May 1992. On 15 October 1992, Czechoslovakia began to work to enable
the Danube to be closed and proceeded to the damming of the river.
The Slovak Republic, and Other Matters that Transpired
On 1 January 1993, The Slovak Republic became an independent State. Likewise, the
International Court of Justice observed that not only the 1977 Treaty, but also the “related
instruments” are covered by the Preamble of the Special Agreement.
ISSUES:
1. Whether or not Hungary was entitled to suspend and subsequently abandon the Nagymaros
and Gabčíkovo Projects
2. Whether or not Czechoslovakia was entitled to proceed to the “provisional solution (Variant
C) and to put it on operation.
RULING:
1. NO, it was not entitled to suspend the Projects. Hungary’s argument is that, in
suspending and subsequently abandoning the works, it did not suspend the application
of the 1977 Treaty itself or reject the aforesaid treaty. The ICJ did not accept such
argument and held that the conduct of Hungary can only be interpreted as an expression
of its unwillingness to comply with at least some of the provisions of the 1977 Treaty and
the subsequent Protocols, thereby rendering impossible the accomplishment of the
system of works, which the Treaty expressly described as “single and indivisible”.
Regarding the State of Necessity invoked by Hungary: State of necessity is a ground
recognized by customary international law (CIL) for precluding the wrongfulness of an act not in
conformity with an international obligation. However, it can only be accepted on an exceptional
basis. In particular, the following requisites must be met:
1. It must have been occasioned by an “essential interest” of the State;
2. The interest must have been threatened by a “grave an imminent peril”;
3. The act must have been the only means of safeguarding that interest;
4. The act must not have seriously impaired an essential interest of the State towards
which the obligation existed;
5. The State that is the author of the act must not have contributed to the occurrence of
the state of necessity.
In this case, the perils invoked by Hungary (i.e., the criticism the Hungarian Government
received regarding the project) were not sufficiently established in 1989, nor were they
imminent. Likewise, Hungary had the means of responding to these alleged perils other than the
suspension and abandonment of works.
Furthermore, negotiations were on the way which might have led to possible solutions, without
need of abandoning the project. Finally, even if there had been a state of necessity, Hungary
would not have been permitted to rely upon the same in order to justify its failure to comply with
its treaty obligations, as it had helped, by act or omission, to help bring it about. Therefore,
Hungary was not entitled to suspend and subsequently abandon the treaty.
2. NO. While Czechoslovakia was entitled to proceed with Variant C, with certain
conditions, it was NOT entitled to put it into operation. Czechoslovakia maintained that,
in proceeding to Variant C, it did not commit an internationally wrongful act, and asserted
that Hungary’s actions in suspending and abandoning the works made it impossible for it
to carry out its obligations in the treaty, which was to carry out the works initially
contemplated. Therefore, Czechoslovakia posits that it was entitled to proceed with a
solution which was as close to the original Project a possible, and invoked the “principle
of approximate application” to justify its actions.
The ICJ reiterated that the basic characteristic and objective of the 1977 Treaty was for the
construction of the Project as a joint investment constituting a single and indivisible operational
system of works. Therefore, all this could not be carried out by unilateral actions. Therefore,
Variant C differed from the characteristics envisioned by the 1977 Treaty. The ICJ ruled that
Czechoslovakia, in putting Variant C into operation, was not applying the 1977 Treaty but in fact
violated express provisions of the treaty and, therefore, committed an internationally wrongful
act. A wrongful act or offense is preceded by preparatory actions that should not be confused
with the wrongful act itself. The conduct prior to the commission of the wrongful act does not
qualify as a wrongful act. Therefore, the ICJ found that while Czechoslovakia was entitled to
proceed to Variant C insofar as it then confined itself to undertaking works which did not
predetermine the final decision, it was not entitled to put that Variant into operation in October
1992.
Re-establishment of the Joint Regime will also reflect in an optimal way the concept of common
utilization of shared water resources for the achievement of several objectives mentioned in the
Treaty, in accordance to the Convention on the Law of Non Navigational Uses of International
Watercourses:
“Watercourse states shall participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner. Such participation
includes both the right to utilize the watercourse and duty to cooperate in the protection
and development.”
Thus far the Court has indicated what in its view should be effect of its findings that the Treaty is
still in force. Now, the Court will turn to the legal consequences of the internationally wrongful
acts committed by the parties.

Sei Fujii v. California

Republic v. Sandiganbayan
12. Asylum (Colombia v. Peru)
DOCTRINE: The burden of proof on the existence of an alleged customary law rests with the
party making the allegation. The Party which relies on a custom of this kind must prove that this
custom is established in such a manner that it has become binding on the other Party… (that) it
is in accordance with a (1) constant and uniform usage (2) practiced by the States in question,
and that this usage is (3) the expression of a right appertaining to the State granting asylum
(Colombia) and (4) a duty incumbent on the territorial State (in this case, Peru). This follows
from Article 38 of the Statute of the Court, which refers to international custom “as evidence of a
general practice accepted as law”
FACTS: On October 3rd. 1948, a military rebellion broke out in Peru; it was suppressed the
same day. On the following day, a decree was published charging a political party, the American
People's Revolutionary Party, with having prepared and directed the rebellion. The head of the
Party, Victor Raul Haya de la Torre, was denounced as being responsible. With other members
of the party, he was prosecuted on a charge of military rebellion. As he was still at liberty on
November 16th. summonses were published ordering him to appear before the Examining
Magistrate. On January 3rd. 1949, he was granted asylum in the Colombian Embassy in Lima.
Meanwhile, on October 27th, 1948, a Military Junta had assumed power in Peru and had
published a decree providing for Courts-martial for summary judgment in cases of rebellion,
sedition and rioting; but this decree war; not applied to the legal proceedings against Haya de la
Torre and others, and it has been declared before the Court that this Decree was not applicable
to the said proceedings. Furthermore, during the period from October 4th to the beginning of
February, 1949, Peru was in a state of siege. On January 4th, 1949, the Colombian
Ambassador in Lima informed the Peruvian Government of the asylum granted to Haya de la
Torre; at the same time he asked that a safe-conduct be issued to enable the refugee to leave
the country. On January 14th, he further stated that the refugee had been qualified as a political
refugee. The Peruvian Government disputed this qualification and refused to grant a safe-
conduct.
Peru had asked the Court to declare that asylum had been granted to Haya de la Torre in
violation of the Havana Convention, first, because Haya de la Torre was accused, not of a
political offence but of a common crime and, secondly, because the urgency which was required
under the Havana Convention in order to justify asylum was absent in that case. Colombia
maintained before the Court that, according to the Convention in force, the Havana Convention
of 1928 on Asylum, she was entitled to qualify the nature of the offence for the purposes of the
asylum.
ISSUE: Whether or not the Colombian government can grant asylum.
RULING: No. The Colombian Government has finally invoked “American international law in
general” [to justify its grant of asylum]. In addition to the rules arising from agreements, it has
relied on an alleged regional or local custom peculiar to Latin-American States. The Party which
relies on a custom of this kind must prove that this custom is established in such a manner that
it has become binding on the other Party, that it is in accordance with a constant and uniform
usage practised by the States in question, and that this usage is the expression of a right
appertaining to the State granting asylum and a duty incumbent on the territorial State. This
follows from Article 38 of the Statute of the Court, which refers to international custom “as
evidence of a general practice accepted as law.”
The Colombian Government has referred to a large number of particular cases in which
diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule
of unilateral and definitive qualification was invoked or that it was, apart from conventional
stipulations, exercised by the States granting asylum as a right appertaining to them and
respected by the territorial States as a duty incumbent on them and not merely for reasons of
political expediency. The facts brought to the knowledge of the Court disclose so much
uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic
asylum and in the official views expressed on various occasions, there has been so much
inconsistency in the rapid succession of conventions on asylum, ratified by some States and
rejected by others, and the practice has been so much influenced by considerations of political
expediency in the various cases, that it is not possible to discern in all this any constant and
uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and
definitive qualification of the offence. The Court cannot therefore find that the Colombian
Government has proved the existence of such a custom. The Montevideo Convention of 1933,
which accepts the right of unilateral qualification, and on which Colombia relied to justify its
unilateral qualification, was not ratified by Peru. The Convention, per say, was not binding on
Peru and considering the low numbers of ratifications the provisions of the latter Convention
cannot be said to reflect customary international law.
The Court noted that the only charge against the refugee was that of military rebellion, which not
a common crime was. Consequently, the Court rejected the counterclaim of Peru on that point,
declaring it to be ill founded. Three months had elapsed Between the military rebellion and the
grant of asylum. There was no question of protecting Haya de la Torre for humanitarian
considerations against the violent and uncontrolled action of irresponsible elements of the
population; the danger which confronted Haya de la Torre was that of having to face legal
proceedings. The Havana Convention was not intended to protect a citizen who had plotted
against the institutions of his country from regular legal proceedings. It was not sufficient to be
accused of a political offence in order to be entitled to receive asylum; asylum could only
intervene against the action of justice in cases where arbitrary action was substituted for the rule
of I law. It had not been proved that the situation in Peru at the time implied the subordination of
justice to the executive or the abolition of judicial guarantees.
Besides, the Havana Convention was unable to establish a legal system which would guarantee
to persons accused of political offences the privilege of evading their national jurisdiction. Such
a conception would come into conflict with one of the oldest traditions of Latin America, that of
nonintervention. For if the Havana Convention had wished to ensure general protection to all
persons prosecuted for political crimes in the course of revolutionary events, for the sole reason
that it should be presumed that such events interfere with the administration of justice, this
would lead to foreign interference of a particularly offensive nature in the domestic affairs of
States. Asylum may be granted on “humanitarian grounds to protect political prisoners against
the violent and disorderly action of irresponsible sections of the population.” Torre was not in
such a situation at the time when he sought refuge in the Colombian Embassy at Lima.
North Sea Continental Shelf Case
DOCTRINE: For a customary rule to emerge the court held that it needed: (1) very widespread
and representative participation in the convention, including States whose interests were
specially affected (i.e. generality); and (2) virtually uniform practice (i.e. consistent and uniform
usage) undertaken in a manner that demonstrates (3) a general recognition of the rule of law or
legal obligation (i.e. opinio juris).
FACTS: Two Special Agreements had asked the court to declare the principles and rules of
international law applicable to the delimitation of the North Sea Continental Shelf. The
immediate coast is subject to partial boundaries created by an agreement between the Federal
Republic (Germany) and the Netherlands on 1964 and another agreement between federal
Republic and Denmark on 1965. The court was not asked to set the boundaries, instead the
parties wish to effect such delimitation by agreement in pursuance to the court’s decision.
Denmark and Netherlands wished this prolongation to take place based on the equidistance
principle wherein an equidistance line left to each of the parties concerned all those portions of
the continental shelf that were nearer to a point on its own coast than they were to any point on
the coast of the other Party. They further contend that the whole matter was governed by a
mandatory rule of law of the “equidistance special circumstance” rule.
Article 6 of the Geneva Convention on the Continental Shelf states that unless the parties have
agreed on a method for delimitation or unless special circumstances exist, the equidistance
method would apply. Denmark and Netherlands contend that the coastal configuration of
Germany does not constitute a special circumstance Germany, on the other hand, argue that
applying the equidistance principle would curtail their claim their proper share of the continental
shelf area because of their concave coastlines.
They believe that the continental shelf area should be divided on the basis of its proportionality
to the length of its North Sea Coastline. Germany has signed but not ratified the Geneva
Convention, while Netherlands and Denmark are parties to the Convention. The latter two
States argue that while Germany is not a party to the Convention (not having ratified it), she is
still bound by Article 6 of the Convention because:
(1) by conduct, by public statements and proclamations, and in other ways, Germany
has unilaterally assumed the obligations of the Convention; or has manifested its
acceptance of the conventional regime; or has recognized it as being generally
applicable to the delimitation of continental shelf areas
(2) Germany had held itself out as so assuming, accepting or recognizing, in such a
manner as to cause other States, and in particular Denmark and the Netherlands, to rely
on the attitude thus taken up” (the latter is called the principle of estoppel).
ISSUE: Whether or not Germany is under a legal obligation to accept the equidistance-special
circumstances principle, contained in Article 6 of the Geneva Convention, either as a customary
international law rule or on the basis of the Geneva Convention.
RULING: No. The court held that Germany had not acted in any way to incur obligations
contained in Article 6 of the Geneva Convention. The equidistance – special circumstances rule
was not binding on Germany by way of treaty. The Court rejected the first argument. It stated
that only a ‘very definite very consistent course of conduct on the part of a State’ would allow
the court to presume that a State had somehow become bound by a treaty (by a means other
than in a formal manner: i.e. ratification) when the State was ‘at all times fully able and entitled
to’ accept the treaty commitments in a formal manner. The Court held that Germany had not
unilaterally assumed obligations under the Convention.

The Court also took notice of the fact that even if Germany ratified the treaty, it had the option of
entering into a reservation on Article 6 following which that particular article would no longer be
applicable to Germany (i.e. even if one were to assume that Germany had intended to become
a party to the Convention, it does not presuppose that it would have also undertaken those
obligations contained in Article 6).
The court held that the existence of a situation of estoppel would have allowed Article 6 to
become binding on Germany – but held that Germany’s action did not support an argument for
estoppel. The court also held that the mere fact that Germany may not have specifically
objected to the equidistance principle as contained in Article 6 is not sufficient to state that the
principle is now binding upon it.
The equidistance special circumstance rule contained in Article 6 of the Geneva Convention had
not attained a customary international law status at the time of the entry into force of the
Geneva Convention or thereafter. Therefore, it was not automatically binding to the parties.
For a customary rule to emerge the court held that it needed: (1) very widespread and
representative participation in the convention, including States whose interests were specially
affected (i.e. generality); and (2) virtually uniform practice (i.e. consistent and uniform usage)
undertaken in a manner that demonstrates (3) a general recognition of the rule of law or legal
obligation (i.e. opinio juris).
In the North Sea Continental Shelf cases the court held that the passage of a considerable
period of time was unnecessary (i.e. duration) for the formation of a customary law. The first
criteria was not met since the number of ratifications and accessions to the convention (39
States) were not adequately representative (including of coastal States – i.e. those States
whose rights are affected) or widespread.
The Court examined 15 cases where States used the equidistance method, after the
Convention came into force wherein it was founded by the court that even if there were some
State practice in favour of the equidistance principle the court could not deduct the necessary
opinio juris from this State practice. The North Sea Continental Shelf Cases confirmed that both
State practice (the objective element) and opinio juris (the subjective element) are essential pre-
requisites for the formation of a customary law rule. This is consistent with Article 38 (1) (b) of
the Statute of the ICJ.
The court finally concluded that in light of the Truman proclamation that no other single method
of delimitation was in all circumstances obligatory and that delimitation was to be effected by
agreement in accordance with equitable principles and taking into account all relevant
circumstances, in such way as to leave as much as possible to all those parts of the continental
shelf that constituted a natural prolongation of its land territory, without encroachment on the
natural prolongation of the land of the territory of the other.
New Zealand v. France
Judgment of 20 December 1974
DOCTRINE: Declaration made through unilateral acts may have the effect of creating legal
obligations.
FACTS: A series of nuclear tests was completed by France in the South Pacific. On 9 May
1973, Australia and New Zealand each instituted proceedings against France concerning tests
of nuclear weapons. France stated that it considered the Court manifestly to lack jurisdiction and
refrained from appearing at the public hearings or filing any pleadings. By two Orders of 22 June
1973, the Court, at the request of Australia and New Zealand, indicated provisional measures to
the effect, inter alia, that pending judgment France should avoid nuclear tests causing
radioactive fall-out on Australian or New Zealand territory. Before the case could be completed,
France announced it had completed the test and did not plan any further test. So France moved
for the dismissal of the application. By two Judgments delivered on 20 December 1974, the
Court found that the Applications of Australia and New Zealand no longer had any object and
that it was therefore not called upon to give any decision thereon. In so doing the Court based
itself on the conclusion that the objective of Australia and New Zealand had been achieved
inasmuch as France, in various public statements, had announced its intention of carrying out
no further atmospheric nuclear tests on the completion of the 1974 series.
ISSUE: May declaration made through unilateral act has effect of creating legal obligations?
RULING: Yes. Declaration made through unilateral acts may have the effect of creating legal
obligations. In this case, the statement made by the President of France must be held to
constitute an engagement of the State in regard to the circumstances and intention with which
they were made. Therefore, these statements made by the France (D) are relevant and legally
binding. Application was dismissed.
 Australia vs. France
Judgment of 20 December 1974
DOCTRINE:
It is well-recognized that declarations made by way of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal obligations. Nothing in the nature of a quid pro
quo, nor any subsequent acceptance, nor even any reaction from other States is required for
such declaration to take effect. Neither is the question of form decisive. The intention of being
bound is to be ascertained from an interpretation of the act. The binding character of the
undertaking results from the terms of the act and is based on good faith interested States are
entitled to require that the obligation be respected. Once the court has found that a State has
entered into a commitment concerning its future conduct, it is not the Court’s function to
contemplate that it will not comply with it.
FACTS: On 9 May 1973, Australia and New Zealand each instituted proceedings against
France concerning tests of nuclear weapons which France proposed to carry out in the
atmosphere in the South Pacific region. France stated that it considered the Court manifestly to
lack jurisdiction and refrained from appearing at the public hearings or filing any pleadings. By
two Orders of 22 June 1973, the Court, at the request of Australia and New Zealand, indicated
provisional measures to the effect, inter alia , that pending judgment France should avoid
nuclear tests causing radioactive fall-out on Australian or New Zealand territory. By two
Judgments delivered on 20 December 1974, the Court found that the Applications of Australia
and New Zealand no longer had any object and that it was therefore not called upon to give any
decision thereon. In so doing the Court based itself on the conclusion that the objective of
Australia and New Zealand had been achieved inasmuch as France, in various public
statements, had announced its intention of carrying out no further atmospheric nuclear tests on
the completion of the 1974 series.
The two disputes stemmed from France’s nuclear testing in the South Pacific, which entailed the
release of radioactive matter into the atmosphere. New Zealand instituted proceedings against
France before the ICJ, arguing that it was affected by radioactive fallout from the atmospheric
tests and that this constituted a violation of its rights under international law. It contended that
the ICJ had jurisdiction based on the General Act on the Pacific Settlement of International
Disputes (1928) and Articles 36 and 37 of the Statute of the Court. Likewise, Australia filed a
case against France on the basis that the tests caused fallout of measurable quantities of
radioactive matter on Australian territory. It asked the ICJ to order that the French republic
should not carry out any further tests. In its defense, France insisted that the ICJ had no
jurisdiction over the cases (France did not even appoint an agent to represent it in the said
cases) and requested the removal of the cases from the ICJ’s list. France also contended that
the radioactive matters from the tests were too insignificant.
ISSUE: May declaration made through unilateral act has effect of creating legal obligations?
RULING: Yes. Declaration made through unilateral acts may have the effect of creating legal
obligations. In this case, the statement made by the President of France must be held to
constitute an engagement of the State in regard to the circumstances and intention with which
they were made. Therefore, these statement made by the France (D) are relevant and legally
binding. Application was dismissed. The unilateral statements made by French authorities were
first relayed to the government of Australia. There was no need for the statements to be directed
to any particular state for it to have legal effect. The general nature and characteristics of the
statements alone were relevant for evaluation of their legal implications.
In its judgment in the case concerning Nuclear Tests (Australia v. France), the Court, by 9 votes
to it, has found that the claim of Australia no longer had any object and that the Court was
therefore not called upon to give a decision thereon. In the reasoning of its Judgment, the Court
adduces inter alia the following considerations: Even before turning to questions of jurisdiction
and admissibility, the Court has first to consider the essentially preliminary question as to
whether a dispute exists and to analyse the claim submitted to it; the proceedings instituted
before the Court on 9 May 11973 concerned1 the atmospheric nuclear tests conducted by
France in the South Pacific; the original and ultimate objective of Australia is to obtain a
termination of those tests; France, by various public statements made in 1974, has announced
its intention, following the completion of the 1974 series of atmospheric tests, to cease the
conduct of such tests; the Cow finds that the objective of Australia has in effect been
accomplished. Inasmuch as France has undertaken the obligation to hold no further nuclear
tests in the atmosphere in, the South Pacific; the dispute having thus disappeared, the claim no
longer has any object and there is nothing on which to give judgment.
Upon the delivery of the Judgment, the Order of 22 June 1973 indicating interim measures of
protection ceases to be operative and the measures in question lapse. For the purposes of the
Judgment the Court was composed as follows: President Lachs; Judges Forster, Gros,
Bengzon, Petdn, Onyeama, Dillard, Ignacio-Pinto, de Castro, Morozov, Jimbnez de Mchaga, Sir
Humphrey Waldock, Nagendra Singh and Ruda; Judge ad hc Sir Garfield Barwick. The:
President appended a declaration to the Judgment, and Judges Bengzon, Onyeama, Dillard,
Jimbnez de Arkhaga and Sir Humphrey Waldock a joint declaration of the nine Members of the
Court who voted for the decision, Judges Forster, Gros, Petrdn arid Ignacio-Pinto appended
separate opinions. Of the six judges who voted against the decision, Judges Onyema, Dillard,
Jimbnez de Adchaga and Sir Humphrey Waldock have appended a joint dissenting opinion, and
Judges de Castro and Sir Garfield Barwick dissenting opinions. These opinions make known
and substantiate the positions adopted by the judges in question.
16. Temple of Preah Vihear (Cambodia v. Thailand)
DOCTRINE:
A treaty is an accepted source of international law. Treaties determine the rights and duties of
states just as individual rights are determined by contracts. Their binding force comes from the
voluntary decision of sovereign states to obligate themselves to a mode of behavior.
FACTS: The Temple of Preah Vihear is a significant and ancient temple situated at the border
of Thailand and Cambodia. Historically, it belonged to Thailand since that area was within their
previous territorial sovereignty. However, in 1904, when Cambodia was under the rule of the
French, they have come into an agreement with Thailand to divide the border according to the
watershed placed in that area. Thusly, a French- Siamese (now known as Thailand)
commission drew a detailed map of the said border where thought by mistake but obviously
marked the Preah Vihear in the Cambodian territory.
After receiving the map, Thailand never objected to the stipulations. After several years, the
prince of Thailand visited the said temple and he saw that the French Flag over the temple but
did not raise any objection.
From the time UNESCO declared Preah Vihear temple a world heritage site, Thailand began to
demand the temple as falling within their territory and even put military personnel on the temple.
Thus, leading Cambodia to file a case against them for breaching into their territory, presenting
the French-Siamese commission’s map as proof of their right over the temple.
Thailand then asserted multiple views according that the map has no binding character. In
addition, they claim to have never accepted the map, or even if they did, it was on a mistaken
belief that the frontier indicated the watershed line.
ISSUE: Whether or not Cambodia had sovereignty over the territory
RULING: Yes. The Court ruled in favor of Cambodia. The commission which marked the map
up until its finality involved both Thailand and France (under which Cambodia is a colony)
adopting the same stipulations without any objections. Whatever mistake that Thailand claims
they have made has no bearing, since the map has been deemed through a joint commission to
be binding between the parties: especially since it detailed the markings of the territorial
boundaries between the two states. This can be considered as a treaty, and Thailand, having
free consent and approved the bilateral agreement on territorial divisions, would have the
binding force and effect between them and Cambodia.
In simpler words, the ICJ found that Thailand had indeed accepted the map freely and with
consent; and that Thailand was under an obligation to withdraw any military or police force
placed and stationed therein, restoring to Cambodia any objects removed from the ruins since
their unlawful occupation.
Chorzow Factor Case (Germany vs. Poland)
Judgment of 13 September 1928
DOCTRINE:
It is a well-known principle of the international law, and even a general conception of law, that
any breach of an engagement involves an obligation to make reparation to the party who
suffered injury. It is also a principle of the International Law that the reparation of a wrong may
consist in an indemnity corresponding to the damage which the nationals of the injured State
have suffered as a result of the act which is contrary to International Law.
FACTS: In 1915, the German Reich (Germany) entered into a contract with Bayerische
Stickstoffwerke for, among others, the construction of a factory manufacturing nitrate in
Chorzów, Upper Silesia. Four years later, another company, Oberschlesische Stickstoffwerke
was formed which would own the land and improvements of said factory while on the other
hand, Bayerische would continue handling the management and operations. Oberschlesische
was duly entered in the land register as owner of the property constituting the nitrate factory. In
1922, the Polish Court later held the registration of Oberschlesische as owner of the factory null
and void, and restored the right of ownership under the name of Polish Treasury because the
Government of Germany owned all of Oberschlesische’s shares, what happened was merely a
transformation of an ordinary State enterprise into a State enterprise with a share capital, and
this was covered by the category of “property and possessions belonging to the Empire”
acquired by Poland under Art. 256 of the Treaty of Versailles. M. Ignacy Moscicki was delegated
by the Polish government with full powers to take over of the factory.
Oberschlesische and Bayerische brought separate actions to recover possession of the factory
before the German-Polish Mixed Arbitral Tribunal at Paris, but they later withdrew their actions.
Obersclensische then brought an action for the recovery of the movable property, but this led to
no decision on the merits. Germany initiated direct negotiations with Poland. Germany saw the
impracticability of restoring the factory, and opted to demand reparations. However, negotiations
were unsuccessful because, among others, Poland believed that some of its claims against
Germany should be considered in offsetting the indemnity to be awarded to the latter. Germany
submitted a suit to the PCIJ demanding reparation from the Polish Government, claiming that
the acts of Poland was contrary to Art. 6 of the Geneva Convention. Poland denied the PCIJ’s
jurisdiction and submitted that the Court should declare that it had no jurisdiction. However, this
was overruled.
Germany argued that Poland should pay the two companies their respective compensation due
for having took possession of the working capital of the factory. However, this is not an ordinary
action for damages but a dispute between governments; the German Government has not
brought this suit as representative of the individuals who have suffered injury, but it may
estimate the damage for which it claims reparation on its own behalf, according to the measure
provided by the losses suffered by the companies whose case it has taken up. Finally, Poland
should not be allowed to demand a set-off of claims.
On the other hand, Poland contended that Germany is modifying the subject of the dispute; the
German claim assumed another aspect if it was no longer a question of compensating the
companies, but of compensating the State for the injury suffered by it. Poland admits the
existence of injury to Bayerische, but denies the existence of any injurty to Oberschlesische
since its ownership, as they claimed, was null and void and consequently submits that
Germany's claim should be dismissed.
ISSUES:
1. Whether or not there exists an obligation to make reparation
2. Whether or not there exists damage which must serve as a basis for the calculation of the
indemnity.
3. Whether or not Germany altered the subject of the dispute by claiming on its own behalf
RULING:
1. YES. The Court ruled that it is a well-known principle of the international law, and even a
general conception of law, that any breach of an engagement involves an obligation to make
reparation to the party who suffered injury. The Court has stated that reparation is the
indispensable complement of a failure to apply a convention, it is not necessary or essential for
this to be stated in the convention itself. This obligation to make reparation has been recognized
as an element of positive International Law. As to the Poland’s breach of an international
engagement, res judicata applies. The nonconformity of Poland's attitude in respect of the two
Companies with Art. 6 and the following articles of the Geneva Convention is established by No.
2 of the operative provisions of Judgment No. 7.
2. YES. The PCIJ passed ruled upon the validity of the transactions through which ownership
passed to the Oberschlesische, and it concluded that they were genuine and bona fide. Also,
Poland’s reliance on the provisions of the Treaty of Versailles is not well-founded. The essential
principle contained in the actual notion of an illegal act – a principle which seems to be
established by international practice and in particular by the decisions of arbitral tribunals – is
that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-
establish the situation which would have existed if that act had not been committed. Restitution
in kind, or, if this is not possible, payment of a sum corresponding to the value which a
restitution in kind would bear; the award, if need be, of damages for loss sustained which would
not be covered by restitution in kind or payment in place of it – such are the principles which
should serve to determine the amount of compensation due for an act contrary to International
Law.
3. NO. It is a principle of the International Law that the reparation of a wrong may consist in an
indemnity corresponding to the damage which the nationals of the injured State have suffered
as a result of the act which is contrary to International Law. This is even the most usual form of
reparation; it is the form selected by Germany in this case and the admissibility of it has not
been disputed. The rules of law governing the reparation are the rules of International Law in
force between the two States concerned, not the law governing relations between the State and
the individual. However, rights or interests of an individual are always in a different plane to
rights belonging to a State. The damage suffered by an individual is never identical in kind with
that which will be suffered by a State; it can only afford a convenient scale for the calculation of
the reparation due to the State. Under the international law, a State is not prohibited from
granting to another the right to have recourse to international arbitral tribunals in order to obtain
the direct award to nationals of the latter State of compensation for damage suffered by them as
a result of infractions of IL by the first State. Germany has been consistent in its submissions;
the indemnities were always payable to the German Government. The request to pay to the
account of the 2 companies with the Deutsche Bank at Berlin relates only to the locus solutionis.
Case Concerning the Barcelona Traction, Light and Power Company, LTD
Judgment of 7 February 1970
DOCTRINE: A state assumes an obligation concerning the treatment of foreign investments
based on general international law, once the state admits foreign investments or foreign
nationals into its territory.
FACTS: The Barcelona Traction, Light and Power Company, Ltd., was incorporated in 1911 in
Toronto (Canada), where it has its head office. For the purpose of creating and developing an
electric power production and distribution system in Catalonia (Spain) it formed a number of
subsidiary companies, of which some had their registered offices in Canada and the others in
Spain. In 1936 the subsidiary companies supplied the major part of Catalonia's electricity
requirements. According to the Belgian Government, some years after the First World War
Barcelona Traction's share capital came to be very largely held by Belgian nationals, but the
Spanish Government contends that the Belgian nationality of the shareholders is not proven.
Barcelona Traction issued several series d bonds, principally in sterling. The sterling bonds
were serviced out of transfers to Barcelona Traction effected by the subsidiary companies
operating in Spain. In 1936 the servicing of the Barcelona bonds was suspended on account of
the Spanish civil war. After that war the Spanish exchange control authorities refused to
authorize the transfer of the foreign currency necessary for the resumption of the servicing of
the sterling bonds. Subsequently, when the Belgian Government complained of this, the
Spanish Government stated that the transfers could not be authorized unless it, were shown
that the foreign currency was to be used to repay debts arising from the genuine importation of
foreign capital into Spain, and that this had not been established.
In 1948 three Spanish holders of recently acquired Barcelona Traction sterling bonds petitioned
that court of Reus (Province of Tarragona) for a declaration adjudging the company bankrupt,
on account of failure to pay the interest on the bonds. On 12 February 1948 a judgment was
given declaring the company bankrupt and ordering the seizure of the assets of Barcelona
Traction and of two of its subsidiary companies. Pursuant to this judgment the principal
management personnel of the companies were dismissed and Spanish directors appointed.
Shortly afterwards, these measures were extended to the other subsidiary companies. New
schemes of the subsidiary companies were created, which were sold by public auction in 1952
to a newly-formed company, Fuerzas Electricas de Catalunia, S.A. (FECSA), which thereupon
acquired complete control of the undertaking in Spain.
Proceedings were brought without success in the Spanish courts by various companies or
persons. According to the Spanish Government, 2,736 orders were made in the case and l494
judgments given by lower and 37 by higher courts before it was submitted to the International
Court of Justice. The Court found that in 1948 Barcelona Traction, which had not received a
judicial notice of the bankruptcy proceedings, and was not represented before the Reus court,
took no proceedings in the Spanish courts and thus did not enter a plea of opposition against
the bankruptcy judgment within the time-limit of eight days from the date of publication of the
judgment laid down in Spanish legislation. The Belgian Government contends, however, that the
notification and publication did not comply with the relevant legal requirements and that the
eight-day time-limit never began to run.
ISSUE: Whether or not a state assumes an obligation concerning the treatment of foreign
investments based on general international law, once the state admits foreign investments or
foreign nationals into its territory.
RULING: Yes. A state assumes an obligation concerning the treatment of foreign investments
based on general international law, once the state admits foreign investments or foreign
nationals into its territory. The Court observed that when a State admitted into its territory
foreign investments or foreign nationals it was bound to extend to them the protection of the law
and assumed obligations concerning the treatment to be afforded them. But such obligations
were not absolute.
International law had to refer to those rules generally accepted by municipal legal systems. An
injury to the shareholder’s interests resulting from an injury to the rights of the company was
insufficient to found a claim. Where it was a question of an unlawful act committed against a
company representing foreign capital, the general rule of international law authorized the
national State of the company alone to exercise diplomatic protection for the purpose of seeking
redress. No rule of international law expressly conferred such right on the shareholder’s national
State.
The Court took cognizance of the great amount of documentary and other evidence submitted
by the Parties and fully appreciated the importance of the legal problems raised by the
allegation which was at the root of the Belgian claim and which concerned denials of justice
allegedly committed by organs of the Spanish State. However, the possession by the Belgian
Government of a right of protection was a prerequisite for the examination of such problems.
Since no jus standi before the Court had been established, it was not for the Court to pronounce
upon any other aspect of the case.
Eventually, the Court decided against the claim of the Belgian government.

20. South West Africa (Ethiopia v. South Africa)

DOCTRINE: Members of a dissolve international organization can be deemed, though no
longer members, to retain rights, which, as members, they individually possessed when the
organization was in being.
FACTS: The South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), which
relate to the continued existence of the Mandate for South West Africa and the duties and
performance of South Africa. As Mandatory: thereunder, were instituted by Applications of the
Governments of Ethiopia and Liberia filed in the Registry on 4 November 1960. By an Order of
20 May 1961, the Court joined the proceedings in the two cases. The Government of South
Africa raised preliminary objections to the Count's proceeding to hear the merits of the case, but
these when: dismissed by the Court on 21 December 1962, the Court finding that it had
jurisdiction to adjudicate upon the merits the dispute.
The Applicants, acting in the capacity of States which were members of the former League of
Nations, put forward various allegations of contraventions of the League of Nations Mandate for
South West Africa by the Republic of South Africa.
It was alleged that South West Africa violated the mandates that was previously given by the
League of Nations. Such mandates include: (1.) to furnish annual reports on its administration to
the Council of the League of Nations which was transformed into an obligation to Report to the
General Assembly of the United Nations (2.) to promote the utmost the material and moral well-
being and the social progress of the inhabitants of the territory. (3.) prohibition of "military mining
of the natives" and the establishment of military or naval bases or the erection of fortifications in
the territory. (4.) the provision on the mandate can only be modified with the consent of the
Council of the League of Nations.
ISSUE: Whether or not Ethiopia and Liberia have legal right or interest
RULING: No. Article 2 of the Covenant provided that the “action of the League under this
Covenant shall be affected through the instrumentality of an assembly and of a council, with a
permanent secretariat”. Individual member States could not themselves act differently relative to
League matters unless it was otherwise specially so provided by some article of the covenant.
Furthermore, individual member States of the League had no right of direct intervention relative
to the mandatories.
It had been attempted to derive a legal right or interest in the conduct of the Mandate from the
simple existence, or principle of the “sacred trust” hence all civilized nations had an interest in
seeing that it was carried out. But in order that this interest might take on a specifically legal
character the sacred trust itself must be given juridical expression and be clothed in legal form.
Moreover, the court could not read the unilateral declarations, or statements of intention, made
by various mandatories on the occasion of the dissolution of the League, expressing their
willingness to continue to be guided by the mandates in their administration of the territories
concerned, as conferring on the members of the League individually any new legal rights or
interests of a kind they did not previously possess.
The court concluded that there was no entity entitled to claim the due performance of the
Mandate, a correct legal reading of a given situation showed certain alleged rights to be non-
existent, the consequences of this must be accepted. To postulate the existence of such rights
in order to avert those consequences would be to engage in an essentially legislative task, in
the service of political ends.
The Court also dealt with the argument of “necessity. The gist of this was the Mandate could
have been flouted at will. Hence each Member of the League should be deemed to have legal
right or interest in that matter and be able to take direct action relative to it. In this context, the
existence of substantive rights for individual members of the League in the conduct of mandates
exercisable independently of the Council would have been out of place. The whole "necessity"
argument appeared to be based on considerations of an extra-legal character, the product of a
process of after-knowledge. It was events subsequent to the period of the League, not anything
inherent in the mandates system as it was originally conceived, that gave rise to the alleged
"necessity”, which, if it existed, lay in the political field and did not constitute necessity in the
eyes of the law.