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, following the end of the trial, rendered its Decision, finding defendant Smith
guilt
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.
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.
whether or not the presence of US Armed Forces in Philippine territory pursuant to the VFA
is allowed "under a treaty duly concurred in by the Senate xxx and recognized as a treaty by
the other... contracting State."
Issues:
whether or not the presence of US Armed Forces in Philippine territory pursuant to the VFA
is allowed "under a treaty duly concurred in by the Senate xxx 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, for two reasons.
First, as held in Bayan v. Zamora,[5] 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.
this Court finds no violation of the Constitution.
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.
Applying, however, the provisions 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 ( 552 US ___ No. 06-984, March 25, 2008), 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.
inally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate
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,[13] 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.

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.[1]

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

4. 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.

5. 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.

6. 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.

A. Doctrine of Transformation

7. 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.

8. 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.

9. 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.

10. 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

11. 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.

12. 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.
13. 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.

14. 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.

15. 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.

16. 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.

17. 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).

18. 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.

19. 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

20. It is propounded that WHA Resolutions may constitute "soft law" or non-binding

norms, principles and practices that influence state behavior.

21. 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

22. 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.

23. 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

1. 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)

2. 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)

3. 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.

10. SEI FUJI v STATE OF CALIFORNIA

OVERVIEW: The alien resident, an alien Japanese who was ineligible to citizenship under the
naturalization laws, challenged a judgment that certain real property purchased by ham had escheated
to the State. He contended that the Alien Land Law had been invalidated by the U.N. Charter and that it
violated the Fourteenth Amendment. The court reversed the lower court's judgment. The court held
first that the U.N. Charter did not provide relief for the alien resident because it was not a self-executing
treaty so as to supersede inconsistent state legislation as provided in U.S. Const. art VI. However, the
court determined that the Alien Land Law violated the Due Process and Equal Protection Clauses of the
Fourteenth Amendment. The court held that the statutory classification of aliens on the basis of
eligibility to citizenship was suspect because it in fact it classified on the basis of race or nationality.
Applying a "most rigid scrutiny" standard of review, the court found that the legislation was not
reasonably related to any legitimate governmental interest. OUTCOME: The court reversed the
judgment declaring that the property escheated to the State.

14. AUSTRALIA v FRANCE

OVERVIEW

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.

18.