CASE DIGEST D - F

Iran v. USA, 2003

Facts:
Iran submitted a claim to the International Court of Justice, referring to two attacks made by the United
States, in which three Iranian oil platforms were destroyed. Iran felt the United State’s actions breached
some provisions within their bilateral Treaty of Amity, Economic Relations, and Consular Rights, which
was signed in 1955, and they sought reparations for the attacks. Iran based the court’s jurisdiction to
hear the claim from Article XXI, paragraph II, of the 1955 treaty, which allowed the court to interpret the
treaty in the event of a conflict between parties. The United States then issued a counter-claim
regarding Iran’s actions in the Persian Gulf citing mining of the waters and other attacks on U.S. flagged
vessels, from which the US claimed self-defense as a justification for attacking the oil platforms of Iran.

Issue:
Whether the United States actions against the Iranian oil platforms qualify as self-defense in regards to
the international laws on the use of force

Held:
The court finds that the attacks made by the United States on Iranian oil platforms are not accounted for
as necessary to ensure safety for its security interests under Article XX, paragraph I (d), of the 1955
Treaty of Amity, Economic Relations, and Consular Rights. This decision was in consideration of
international law on the use of force. Also, the Court states that the US could only exercise such right of
self-defense only if it had been the victim of an armed attack by Iran and makes it clear that, if so, the
United States actions must have been necessary and proportional to the armed attack against it. After
carrying out a detailed examination of the evidence provided by Parties, the court finds that the US has
not succeeded in showing that these various conditions were satisfied in the present case.

Congo v. Uganda, 1986

Facts:
The Democratic Republic of the Congo (DRC) filed in the Registry of the Court Applications
instituting proceedings against Burundi, Uganda and Rwanda “for acts of armed aggression committed .
. . in flagrant breach of the United Nations Charter and of the Charter of the Organization of African
Unity”. In addition to the cessation of the alleged acts, the DRC sought reparation for acts of intentional
destruction and looting and the restitution of national property and resources appropriated for the
benefit of the respective respondent States. In its Applications instituting proceedings against Burundi
and Rwanda, the DRC referred, as bases for the Court’s jurisdiction, to Article 36, paragraph 1, of the
Statute, the New York Convention of 10 December 1984 against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, the Montreal Convention of 23 September 1971 for the
Suppression of Unlawful Acts against the Safety of Civil Aviation and, lastly, Article 38, paragraph 5, of
the Rules of Court. However, the Government of the DRC informed the Court on 15 January 2001 that it
intended to discontinue the proceedings instituted against Burundi and Rwanda, stating that it reserved
the right to invoke subsequently new grounds of jurisdiction of the Court.

Issue:
Whether or not there was a valid claim of self-defense.

Held:
No. The Court rejected Uganda’s claim of self-defense under Article 51 of the UN Charter. Uganda did
not claim that it used force against an anticipated attack. Thus the questions were whether there had
been an actual armed attack on Uganda, and if so, whether the DRC was the party responsible for it. But
Uganda never claimed it was under attack from the armed forces of the DRC, and the Court found no
satisfactory evidence that the government of the DRC was involved in the attacks by other forces that
did occur. The Court therefore rejected Uganda’s claim without reaching the question whether Uganda’s
use of force met the necessity and proportionality requirements of self-defense. The Court observed,
however, that the taking of airports and towns many hundreds of kilometers outside Uganda’s border
would not seem proportionate to the series of transborder attacks it claimed had given rise to the right
of self-defense, nor to be necessary to that end.

Nicaragua v. USA, Communique 86/8, 27 June 1986

FACTS: Nicaragua initiated proceedings against the United States of America before the International
Court of Justice. It alleged that the US supported a mercenary army called “Contras” in launching
attacks on the territory of Nicaragua to overthrow the “Sandinista” Government of Nicaragua.
Nicaragua alleged that the contras were paid for and directly controlled by the United States. It
also alleged that some attacks against Nicaragua were carried out, directly, by the United States military.
Attacks against Nicaragua included the mining and attacks of ports, oil installations, and a naval base.
Nicaragua alleged that aircrafts belonging to the US flew over Nicaraguan territory to gather
intelligence, supply to the contras in the field, and to intimidate the population.
The United States stated that it relied on an inherent right of collective self-defence guaranteed
in A. 51 of the UN Charter when it provided “upon request proportionate and appropriate assistance…”
to Costa Rica, Honduras, and El Salvador in response to Nicaragua’s acts of aggression against those
countries.

ISSUE
Whether the military and paramilitary activities carried out by the US is considered as a collective self-
defense?

HELD
No. Customary international law allows for exceptions to the prohibition on the use of force, which
includes the right to individual or collective self-defence. When a State claims that it used force in
collective self-defence, the Court would examine the following:
(1) Whether the circumstances required for the exercise of self-defense existed; and
(2) Whether the steps taken by the State, which was acting in self-defense, corresponds to the
requirements of international law.
Under international law, several requirements must be met for a State to exercise the right of individual
or collective self-defense:
(1) A State must have been the victim of an armed attack.
(2) That State must declare itself as a victim of an armed attack. The assessment on whether an armed
attack had taken place or not, is done by the State who was subjected to the attack. A third State cannot
exercise a right of collective self-defense based that third State’s own assessment.
(3) In the case of collective self-defense, the victim State must request for assistance. The Court held
that “there is no rule permitting the exercise of collective self-defenses in the absence of a request by
the State which regards itself as the victim of an armed attack”;
(4) A State that is attacked, does not, under customary international law, have the same obligation as
under Article 51 of the UN Charter to report to the Security Council that an armed attack happened –
but the Court held that “the absence of a report may be one of the factors indicating whether the State
in question was itself convinced that it was acting in self-defenses” (see paras 200, 232 -236).

The Court noted that (1) none of the countries who were allegedly subject to an armed attack by
Nicaragua declared themselves as victims of an armed attack; (2) they did not request assistance from
the United States to exercise its right of self-defenses; (3) the United States did not claim that when it
used force, it was acting under Article 51 of the UN Charter; and (4) the United States did not report that
it was acting in self-defense to the Security Council. The Court concluded that, based on the above, the
United States cannot justify its use of force as collective self-defenses.
In any event, the Court held that the criteria relating to necessity and proportionality, that is required to
be met when using force in self-defence – were also not fulfilled.

Underhill v. Hernandez, 168 US 250

FACTS:
In the early part of 1892, a revolution was initiated in Venezuela, against the administration thereof,
which the revolutionists claimed had ceased to be the legitimate government. Hernandez was in
command of a revolutionary army in Venezuela when an engagement took place with the government
forces which resulted in the defeat of the latter, and the occupation of Bolivar by the former. Underhill
was living in Bolivar, where he had constructed a waterworks system for the city under a contract with
the government and carried on a machinery repair business. He applied for a passport to leave the city,
which was refused by Hernandez with a view to coerce him to operate his waterworks and his repair
works for the benefit of the community and the revolutionary forces. Subsequently a passport was given
him. Underhill sued Hernandez for damages in the circuit court of the United States for the Eastern
district of New York. It ruled that plaintiff was not entitled to recover, and directed a verdict for
defendant, on the ground that 'because the acts of defendant were those of a military commander,
representing a de facto government in the prosecution of a war, he was not civilly responsible therefor.
Underhill appealed the case to the circuit court of appeals, and by that court affirmed, upon the ground
'that the acts of the defendant were the acts of the government of Venezuela, and as such are not
properly the subject of adjudication in the courts of another government.

ISSUE:
WON defendant is civilly liable to plaintiff for damages for the detention caused by reason of the refusal
to grant the passport; for the alleged confinement of Underhill to his own house; and for certain alleged
assaults and affronts by the soldiers of Hernandez' army.

HELD:
No, defendant is not liable. Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one country will not sit in judgment on the acts of the government of
another, done within its own territory. Redress of grievances by reason of such acts must be obtained
through the means open to be availed of by sovereign powers as between themselves.
The immunity of individuals from suits brought in foreign tribunals for acts done within their own states,
in the exercise of governmental authority, whether as civil officers or as military commanders, must
necessarily extend to the agents of governments ruling by paramount force as matter of fact. Where a
civil war prevails (that is, where the people of a country are divided into two hostile parties, who take up
arms and oppose one another by military force) foreign nations do not assume to judge of the merits of
the quarrel. If the party seeking to dislodge the existing government succeeds, and the independence of
the government it has set up is recognized, then the acts of such government, from the commencement
of its existence, are regarded as those of an independent nation The archives of the state department
show that civil war was flagrant in Venezuela from the spring of 1892, that the revolution was
successful, and that the revolutionary government was recognized by the United States as the
government of the country; it being, to use the language of the secretary of state in a communication to
our minister to Venezuela, 'accepted by the people, in the possession of the power of the nation, and
fully established. Cases respecting arrests by military authority in the absence of the prevalence of war,
or the validity of contracts between individuals entered into in aid of insurrection, or the right or
revolutionary bodies to vex the commerce of the world on its common highway without incurring the
penalties denounced on piracy, and the like, do not involve the questions presented here. The decree of
the circuit court is affirmed.

Warrant of Arrest for Muammar Gaddafi, ICC-01/11-13, 27 June 2011

FACTS:
On February 26, 2011, U.N. Security Council Resolution ‘1970’ referred the situation in Libya to the ICC.
This action provides the ICC with jurisdiction over war crimes, crimes against humanity, and genocide
occurring in Libya since that date, even though Libya is not a state party to the Rome Statute, in
accordance with article 13(b) of the Rome Statute. (The Court may exercise its jurisdiction with respect
to a crime referred to in article 5 in accordance with the provisions of this Statute if: A situation in which
one or more of such crimes appears to have been committed is referred to the Prosecutor by the
Security Council acting under Chapter VII of the Charter of the United Nations)
On March 3, 2011, the formal investigation into the situation in Libya was opened by the ICC Prosecutor.
On 16 May 2011, the prosecutor requested the issuance of a warrant of arrest for Muammar
Mohammed Abu Minyar Gaddafi ("Muammar Gaddafi" or "Gaddafi"), for his alleged criminal
responsibility for the commission of murder and persecution of civilians as crimes against humanity
from 15 February 2011 onwards throughout Libya in, inter alia, Tripoli, Benghazi, and Misrata, through
the Libyan State apparatus and Security Forces, in violation of article 7(l)(a) and (h) of the Statute and as
principal to these crimes in accordance with article 25(3)(a) of the Statute;
on the basis of the Materials provided by the Prosecutor, the Chamber believes that the case against
Muammar Gaddafi falls within the jurisdiction of the Court and that there is no ostensible cause or self-
evident factor which impels it to exercise its discretion under article 19(1) of the Statute to determine at
this stage the admissibility of the case against Muammar Gaddafi, without prejudice to any challenge to
the admissibility of the case in accordance with article 19(2) of the Statute
On 27 June 2011, following an application by the prosecutor, Pre Trail Chamber I issued warrants of
arrest for Libyan leader Muammar Gaddafi; his son Saif Al-Islam Gaddafi, Libyan government
spokesman; and Abdullah Al-Senussi, Director of Military Intelligence, for alleged crimes against
humanity committed in Libya from 15 February until at least 28 February 2011.
On 22 November 2011, PTC I decided to terminate the case against Muammar Gaddafi following his
death.
ISSUE: Whether or not the Doctrine of State Immunity be applied where the Head of State has been
arrested or detained pursuant to a case before an international tribunal.
Ruling: No.
The State’s Immunity extends to the Head of State, Mighell vs. Sultan of Johore where the Sultan, who
was certified by the British Minister of the Crown as having the status of a head of State, was held to be
immune from the Jurisdiction of English Courts.
The Schooner Exchange vs. McFaddon, where the US Supreme Court discussed in depth the Doctrine of
State Immunity in a case involving a French Warship.
Limitations: Although Heads of State cannot be arrested or detained in a foreign territory, the Doctrine
of State immunity will not apply where the Head of State has been arrested or detained pursuant to a
case before an international tribunal.
Thus, Heads of State on trial before an international tribunal on charges of genocide, war crimes, and
other similar offenses are generally not afforded immunity from arrest or detention.
Therefore, where a warrant of arrest for Muammar Gaddafi, while he was still the Head of State of Libya
and was alleged to commit crimes against humanity is not afforded immunity from arrest or detention.
United States v. Ruiz, G.R. No. L-35645, May 22. 1985
FACTS. The USA had a naval base in Subic, Zambales which was one of those provided in the Military
Bases Agreement between the Philippines and the United States. In May 1972, the US invited the
submission of bids for two projects of repairing an offender system and typhoon damages.

Eligio de Guzman & Co., Inc submitted bids and later received from the US two telegrams requesting it
to confirm its price proposals and for the name of its bonding company, to which the company
complied. However, the company received a letter signed by Wilham Collins, one of the petitioners,
stating that the company did not qualify to receive an award for the projects because of its previous
unsatisfactory performance rating on a repair contract and that the projects had been awarded to third
parties.

In civil case No. 779-M, the company sued the USA and the petitioners ordering them to allow the
company to perform the work on the projects and in the event that specific performance was no longer
possible, to order the defendants to pay damages. They also asked for the issuance of a writ of
preliminary injunction to restrain the defendants from entering into contracts with third parties for work
on the projects.

The defendants entered their special appearance for purpose only of questioning the jurisdiction of this
court over the subject matter of the complaint and the persons of defendants, the subject matter of the
complaint being acts and omissions of the individual defendants as agents of defendant USA, a foreign
sovereign which has not given her consent to this suit or any other suit for the causes of action asserted
in the complaint.

ISSUE. Whether the doctrine of State Immunity applies in the instant case.

RULING. Yes. The traditional rule of State Immunity exempts a State from being sued in the courts of
another State without its consent or waiver. It is necessary, however, to distinguish sovereign and
governmental acts or “Jure Imperii” from private, commercial and proprietary acts or “Jure Gestionis”
because State Immunity now extends only to acts “Jure Imperii”.

The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an individual and can thus be deemed
to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply
where the contract relates to the exercise of its sovereign functions. In this case, the projects are an
integral part of the naval base which is devoted to the defense of both the United States and the
Philippines, indisputably a function of the government of the highest order; they are not utilized for nor
dedicated to commercial or business purposes.
Republic of the Philippines v. Marcos, 806 F.2d. 344 US Court
of Appeals
Facts:
This case arose out of the current Philippine Government's efforts to recover assets that Ferdinand
Marcos had allegedly embezzled from the Philippine Government during his tenure as President. Shortly
after taking power, the new Philippine Government established the Presidential Commission for Good
Government, which was directed to retrieve all property found to have been embezzled by Marcos.
Pursuant to this directive, appellee sought to enjoin the sale or transfer of five New York properties
allegedly purchased for Marcos with funds stolen from the Philippine Government. After the initiation of
this suit, the Philippine Government declared a provisional freeze on Marcos's assets and requested that
foreign governments honor the freeze to preserve the new Government's ability to recover embezzled
property. The district court granted appellee's request for an injunction and appointed a receiver to
administer the properties pending resolution of the case
Appellants, individuals, and corporations holding title to certain New York property allegedly beneficially
owned by the former President of the Philippines, sought review of a preliminary injunction prohibiting
the sale or transfer of said property pending final determination of its ownership.
Issues:
Whether there is federal jurisdiction?
Whether there are, as the appellants argue, defenses making the claims not justiciable?

Resolution:
The Supreme Court has declared that a question concerning the effect of an act of state "must be
treated exclusively as an aspect of federal law." It is deemed that ruling to be applicable here even
though, as we conclude below, this is not a case in which the courts of the forum are bound to respect
the act of the foreign state.
Also, there is federal jurisdiction because the claim raises, as a necessary element, the question whether
to honor the request of a foreign government is itself a federal question to be decided with uniformity
as a matter of federal law, and not separately in each state. The Republic of the Philippines has
presented enough evidence of illegality to warrant a preliminary injunction based on a claim for
imposition of a constructive trust or an equitable lien as “constructive trust is the formula through which
the conscience of equity finds expression. When property has been acquired in such circumstances that
the holder of the legal title may not in good conscience retain the beneficial interest, equity converts
him into a trustee."
As to appellants' contention that the act of state doctrine precluded judicial review, the court found that
the appellants had failed to discharge their burden of proving the requisite acts of state at this stage of
the litigation. The court observed that appellants did not distinguish between Marcos's acts as head of
state, which may be protected from judicial scrutiny even if illegal under Philippine law, and his purely
private acts. Recognizing that the burden was on the appellants to present evidence demonstrating that
such acts were in fact public, the court indicated that the district court should closely scrutinize any
additional evidence submitted on the public nature of Marcos's acts.
In dicta, however, the court suggested at least two reasons why the act of state doctrine might be
inapplicable even to Marcos's public acts. First, given the separation-of-powers rationale for the act of
state doctrine, the fact that Marcos's acts were those of a government no longer in power greatly
diminished "the danger of interference with the Executive's conduct of foreign policy." The court
acknowledged that the Second Circuit had previously applied the doctrine to the acts of former
governments, but questioned the continued vitality of those cases in light of the Supreme Court's
statement in Banco Nacional de Cuba v. Sabbatino, that "[t]he balance of relevant considerations may
also be shifted if the government which perpetrated the challenged act of state is no longer in existence,
as in the Bernstein case, for the political interest of this country may, as a result, be measurably
altered."
Second, the court noted that to the extent the act of state doctrine reflects respect for foreign states, its
application may well be less justified when a foreign state asks U.S. courts to scrutinize its actions.
Turning to appellants' claim that the newly formed Philippine Government was attempting to confiscate
Marcos's property in violation of U.S. law, the court stated that no confiscation had yet taken place and
that the plaintiff sought recovery of property illegally taken, not confiscation of property legally owned.
Furthermore, according to the court, the claim that future proceedings in the Philippines to recover
property would not satisfy due process was not ripe since no confiscatory decrees had been issued and
the court had "every reason to believe . . . that any Philippine decree will comport with due process of
law as the courts of the United States would envisage it."
Finally, the court concluded that appellants had no standing to assert sovereign immunity as a defense
to this action. Even if appellants had standing, the court questioned the appropriateness of applying the
doctrine to a former head of state's private acts. The court reasoned, "The rationale underlying
sovereign immunity-avoiding embarrassment to our government and showing respect for a foreign
state-may well be absent when the individual is no longer head of state and the current government is
suing him."
The decision of the court of appeals may shift the focus of this dispute back to the Philippines, where
the Philippine Government is attempting to compile evidence to demonstrate the allegations of
Marcos's unlawful takings. However, since the district court may be required to adjudicate whether
Marcos is the owner of the New York properties in question, the proceedings before the district court
will continue to be a central focus of efforts to recover allegedly embezzled funds. Whether any
subsequent confiscatory action of the Philippine Government will be recognized in the United States is
an open question.

Qatar v. Bahrain, ICJ Rep. 1994 (112)

Facts:
A dispute concerning sovereignty over certain islands and shoals, including the delimitation of a
maritime boundary were issues upon which Qatar and Bahrain sought to resolve for 20 years. During
this period of time, letters were exchanged and acknowledged by both parties' heads of state. A
Tripartite Committee “for the purpose of approaching the International Court of Justice…..” was formed
by representatives of Qatar, Bahrain and Saudi Arabia. Though the committee met several times, it
failed to produce an agreement on the specific terms for submitting the dispute to the Court. Eventually,
the meetings culminated in “Minutes”, which reaffirmed the process and stipulated that the parties
“may” submit the dispute to the I.C.J. after giving the Saudi King six months to resolve the dispute. The
Court’s jurisdiction was disputed by Bahrain when Qatar filed a claim in the I.C.J.
Issue:
Whether the minutes of meeting between Qatar and Bahrain constitutes an
international agreement.

Held:
Yes. An international agreement creating rights and obligations can be constituted by the signatories to
the minutes of meetings and letters exchanged. Though Bahrain argued that the Minutes were only a
record of negotiation and could not serve as a basis for the I.C.J.’s jurisdiction, both parties agreed that
the letters constituted an international agreement with binding force.
International agreements do not take a single form under the Vienna Convention on the Law of Treaties,
and the Court has enforced this rule in the past. In this case, the Minutes not only contain the record of
the meetings between the parties, it also contained the reaffirmation of obligations previously agreed to
and agreement to allow the King of Saudi Arabia to try to find a solution to the dispute during a six-
month period, and indicated the possibility of the involvement of the I.C.J. The Minutes stipulated
commitments to which the parties agreed, thereby creating rights and obligations in international law.
This is the basis therefore of the existence of international agreement.
On the part of Bahrain's Foreign Minister, he argued that no agreement existed because he never
intended to enter an agreement that failed on the grounds that he signed documents creating rights and
obligations for his country. Also, Qatar’s delay in applying to the United Nations Secretariat does not
indicate that Qatar never considered the Minutes to be an international agreement as Bahrain argued.
However, the registration and non-registration with the Secretariat does not have any effect on the
validity of the agreement.
The court held that international agreements may take a number of forms and be given a diversity of
names. Contrary to the contentions of Bahrain, the Minutes are not a simple record of a meeting, similar
to those drawn up within the framework of the Tripartite Committee; they do not merely give an
account of discussions and summarize points of agreement and disagreement. They enumerate the
commitments to which the Parties have consented. They thus create rights and obligations in
international law for the Parties. They constitute an international agreement.

Synopsis of Rule of Law:

An international agreement creating rights and obligations can be constituted by the signatories to the
minutes of meetings and letters exchanged.

There is no doubt that language plays a vital role in influencing a court’s decision as to whether an
agreement has been entered into and in this case, the language was the main focus of the I.C.J and it
was the contents of the Minutes that persuaded the I.C.J. to reject the Bahrain foreign minister’s claim
that he did not intend to enter into an agreement. Where this is compared to general U.S. contract law,
where a claim by one of the parties that no contract existed because there was no meeting of the minds
might be the ground upon which a U.S. court would consider whether a contract did exist with more
care and thought than the I.C.J. gave the foreign minister of Bahrain’s claims.

BAYAN v. Zamora, G.R. No. 138570, October 10, 2000

Facts:
The United States of America and the Philippines discussed the 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 Fidel V. Ramos approved the
VFA, which was respectively signed by public respondent Secretary Siazon and United States
Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, the new president, Joseph E. Estrada, through the country’s Secretary of Foreign
Affairs, ratified the VFA. It was then officially transmitted to the Senate for concurrence, pursuant to
Section 21, Article VII of the 1987 Constitution. The Senate thereafter gave its concurrence to the VFA by
a two-thirds (2/3) vote of its members.
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between the
Philippines Foreign Affairs Secretary and the United States Ambassador.
Petitioners question the validity of the VFA on the ground that Section 25, Article XVIII of the
Constitution and not Section 21, Article VII which applies on treaties that involve presence of foreign
military troops in the country. 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 is the same is lodged with the Senate and not
with the chief executive. For respondents, only Section 21, Article VII of the Constitution applies as the
VFA is a mere transient agreement and is just about troops, not bases.

Issue:
Whether Section 25, Article XVIII of the Constitution and not Section 21, Article VII is the applicable
provision on treaties that involve the presence of foreign military troops in the country.

Ruling:
Yes. 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.
The Constitution contains two provisions requiring the concurrence of the Senate on treaties or
international agreements.
Section 21, Article VII reads: “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.”
Section 25, Article XVIII, provides: “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.”
Section 21, Article VII deals with treaties or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the treaty
valid and binding to the Philippines. This provision lays down the general rule on treaties. All treaties,
regardless of subject matter, coverage, or designation or appellation, requires the concurrence of the
Senate to be valid and effective. In contrast, Section 25, Article XVIII is a special provision that applies to
treaties which involve the presence of foreign military bases, troops, or facilities in the Philippines.
Under this provision, the concurrence of the Senate is only one of the requisites to render compliance
with the constitutional requirements and to consider the agreement binding on the Philippines. Sec 25
further requires that “foreign military bases, troops, or facilities” may be allowed in the Philippines only
by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so, required by Congress, and recognized as such by the other
contracting state.
Overall, the VFA is an agreement which defines the treatment of US troops visiting the Philippines. It
provides guidelines to govern such visits of military personnel, and further defines the rights of the US
and RP government in the matter of criminal jurisdiction, movement of vessel and aircraft, import and
export of equipment, materials, and supplies. Undoubtedly, Section 25, Article XVIII, which specifically
deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case.
To a certain extent, however, the provisions of Section 21, Article VII will find applicability about
determining the number of votes required to obtain the valid concurrence of the Senate.

It is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements because
there is no permanent placing of structure for the establishment of a military base. The Constitution
makes no distinction between “transient” and “permanent”. We find nothing in Section 25, Article XVIII
that requires foreign troops or facilities to be stationed or placed permanently in the Philippines. When
no distinction is made by law; the Court should not distinguish. We do not subscribe to the argument
that Section 25, Article XVIII is not controlling since no foreign military bases, but merely foreign troops
and facilities, are involved in the VFA. The proscription covers “foreign military bases, troops, or
facilities.” Stated differently, this prohibition is not limited to the entry of troops and facilities without
any foreign bases being established. The clause does not refer to “foreign military bases, troops, or
facilities” collectively but treats them as separate and independent subjects, such that three different
situations are contemplated — a military treaty the subject of which could be either (a) foreign bases,
(b) foreign troops, or (c) foreign facilities — any of the three standing alone places it under the coverage
of Section 25, Article XVIII.

Nicolas v. Romulo, G.R. No. 175888, February 11, 2009

FACTS:
Lance Corporal (L/CPL) Daniel Smith, a member of the US Armed Forces was found charged with the
crime of rape against a Filipina, herein petitioner, sometime on November 1, 2005. The RTC of Makati
rendered a decision finding defendant Smith guilty.
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the US
entered into, the US, at its request, was granted custody of Smith pending his trial.
Upon his conviction, the RTC ordered Smith to be detained at the Makati jail.
On December 29, however, defendant Smith was taken out of the Makati jail by a contingent of
Philippine law enforcement agents, purportedly acting under orders of the DILG and brought to a facility
for detention under the control of the US government under the new agreements between the
Philippines and the US, referred to as the Romulo-Kenney Agreement.
On December 19 and 22, 2006, after Smith’s conviction, an agreement relative to the detention of Smith
was entered into between then Foreign Affairs Secretary Alberto Romulo and former United States
Ambassador Kristie Kenney – which was known as Romulo-Kenney Agreement – that allows L/Cpl. Smith
to be returned to US military custody at the US Embassy in Manila and be detained in the Rowe
(JUSMAG) Building, US Embassy Compound. Thus, by virtue of the Romulo-Kenney Agreement, Smith
was taken out of the Makati jail and brought to a facility for detention under the control of the United
States government.
The Romulo-Kenney Agreement’s validity was questioned by several petitioners contending that the
Philippines should have custody of Smith on the premise that the VFA is not valid and binding.

ISSUES:
1) Whether or not the visiting forces agreement is valid and binding considering that it was not
ratified by the senate of the united states.
2) Whether or not the Romulo-Kenney agreement is valid.

RULING:
1. Yes.
Art. XVIII, Sec. 25 states:
Sec. 25. After the expiration in 1991 of the Agreement between 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 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. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both
the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting
from such presence.
The VFA being a valid and binding agreement, the parties are required as a matter of international law
to abide by its terms and provisions.
2. No.
Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it
comes to detention as against custody. “Art. V, Sec. 10. The confinement or detention by Philippine
authorities of United States personnel shall be carried out in facilities agreed on by appropriate
Philippines and US 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.” Respondents should therefore comply with the VFA
and negotiate with representatives of the United States towards an agreement on detention facilities
under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.

China National Machinery v. Santamaria, G.R. No. 185572,

February 7, 2012
FACTS: China National Machinery & Equipment Corp. (Group) (CNMEG) entered into a Memorandum of
Understanding with the North Luzon Railways Corporation (Northrail) for the conduct of a feasibility
study on a possible railway line from Manila to San Fernando, La Union (the Northrail Project).
The Export Import Bank of China (EXIM Bank) and the Department of Finance of the Philippines (DOF)
entered into a Memorandum of Understanding (Aug 30 MOU), wherein China agreed to extend
Preferential Buyer’s Credit to the Philippine government to finance the Northrail Project. The Chinese
government designated EXIM Bank as the lender, while the Philippine government named the DOF as
the borrower. Under the Aug 30 MOU, EXIM Bank agreed to extend an amount not exceeding USD
400,000,000 in favor of the DOF, payable in 20 years, with a 5-year grace period, and at the rate of 3%
per annum.
The Chinese Ambassador to the Philippines, Wang Chungui wrote a letter to DOF Secretary Jose Isidro
Camacho informing him of CNMEG’s designation as the Prime Contractor for the Northrail Project.
Northrail and CNMEG executed a Contract Agreement for the construction of Section I, Phase I of the
North Luzon Railway System from Caloocan to Malolos on a turnkey basis (the Contract Agreement). The
contract price for the Northrail Project was pegged at USD 421,050,000.
The Philippine government and EXIM Bank entered into a counterpart financial agreement – Buyer
Credit Loan Agreement No. BLA 04055 (the Loan Agreement). In the Loan Agreement, EXIM Bank agreed
to extend Preferential Buyer’s Credit in the amount of USD 400,000,000 in favor of the Philippine
government in order to finance the construction of Phase I of the Northrail Project.
ISSUE: Whether the Northrail contracts are products of an executive agreement between two sovereign
states, such that it cannot be questioned by or before a local court.
RULING: NO. Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a
treaty as follows: An international agreement concluded between States in written form and governed
by international law, whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation.
In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a treaty, except that
the former (a) does not require legislative concurrence; (b) is usually less formal; and (c) deals with a
narrower range of subject matters.
Despite these differences, to be considered an executive agreement, the following three requisites
provided under the Vienna Convention must nevertheless concur: (a) the agreement must be between
states; (b) it must be written; and (c) it must governed by international law. The first and the third
requisites do not obtain in the case at bar.
CNMEG is neither a government nor a government agency. - The Contract Agreement was not
concluded between the Philippines and China, but between Northrail and CNMEG. By the terms of the
Contract Agreement, Northrail is a government-owned or -controlled corporation, while CNMEG is a
corporation duly organized and created under the laws of the People’s Republic of China. Thus, both
Northrail and CNMEG entered into the Contract Agreement as entities with personalities distinct and
separate from the Philippine and Chinese governments, respectively.
Neither can it be said that CNMEG acted as agent of the Chinese government. As previously discussed,
the fact that Amb. Wang, in his letter, described CNMEG as a "state corporation" and declared its
designation as the Primary Contractor in the Northrail Project did not mean it was to perform sovereign
functions on behalf of China. That label was only descriptive of its nature as a state-owned corporation,
and did not preclude it from engaging in purely commercial or proprietary ventures.
The Contract Agreement is to be governed by Philippine law. - Article 2 of the Conditions of Contract,
which under Article 1.1 of the Contract Agreement is an integral part of the latter, states:The contract
shall in all respects be read and construed in accordance with the laws of the Philippines; The contract
shall be written in English language. All correspondence and other documents pertaining to the Contract
which are exchanged by the parties shall be written in English language.
Since the Contract Agreement explicitly provides that Philippine law shall be applicable, the parties have
effectively conceded that their rights and obligations thereunder are not governed by international law.
It is therefore clear from the foregoing reasons that the Contract Agreement does not partake of the
nature of an executive agreement. It is merely an ordinary commercial contract that can be questioned
before the local courts.

Land Bank of the Philippines v. Atlanta Industries, G.R. No.

193796, July 2, 2014
Facts
On October 3, 2006, Land Bank of the Philippines (Land Bank) and the International Bank for
Reconstruction and Development (IBRD) entered into Loan Agreement No. 4833-PH for the
implementation. of the IBRD's "Support for Strategic Local Development and Investment Project"
(S2LDIP). The loan facility in the amount of JP¥11,710,000,000.00 was fully guaranteed by the
Government of the Philippines and conditioned upon the participation of at least two (2) local
government units by way of a Subsidiary Loan Agreement (SLA) with Land Bank.
Land Bank entered into an SLA with the City Government of Iligan to finance the development
and expansion of the city's water supply system, which had two (2) components, namely: (a) the
procurement of civil works; and ( b) the procurement of goods for the supply and delivery of various
sizes of PE 100 HDPE pipes and fittings. The SLA expressly provided that the goods, works, and services
to be financed out of the proceeds of the loan with Land Bank were to be "procured in accordance with
the provisions of Section I of the 'Guidelines: Procurement under IBRD Loans and IDA Credits' x x x, and
with the provisions of [the] Schedule 4."9 Accordingly, the City Government of Iligan, through its Bids
and Awards Committee (BAC), conducted a public bidding for the supply and delivery of various sizes of
PE 100 HDPE pipes and fittings using the IBRD Procurement Guidelines.
Atlanta Industries, Inc. (Atlanta) participated in the said bidding and came up with the second to
the lowest bid; however, the BAC informed Atlanta that the bidding was declared a failure upon the
recommendation of Land "Bank due to the IBRD 's non-concurrence with the Bid Evaluation Report. The
BAC informed Atlanta of its disqualification from the bidding because it lacked several documentary
requirements.
During the rebidding, Atlanta called the BAC's attention to its use of Bidding Documents which,
as it purported, not only failed to conform with the Third Edition of the Philippine Bidding Documents
for the Procurement of Goods (PBDs) prescribed by the Government Procurement Policy Board (GPPB)
but also contained numerous provisions that were not in accordance with RA 9184 and its Implementing
Rules and Regulations (IRR). During the pre-bid conference, the BAC declared that the project was not
covered by RA 9184 or by any of the GPPB 's issuances.
Apprehensive of the BAC's use of bidding documents that appeared to be in contravention of RA
9184 and its IRR, Atlanta filed a Petition for Prohibition and Mandamus with an urgent prayer for the
issuance of a temporary restraining order (TRO) and/or writ of preliminary injunction to enjoin the re-
bidding of the project against the City Government of Iligan, the BAC, and Land Bank before the Manila
RTC.
In a Decision, the Manila RTC declared the subject bidding null and void on the ground that it
was done contrary to the rules and procedure prescribed in RA 9184 and its IRR. Consequently, it
enjoined the City Government of Iligan and. its BAC from entering and/or implementing the contract for
the supply of water pipes with Moldex Products, Inc.

Dissatisfied, Land Bank elevated the matter directly to the Supreme Court.

Issue
Whether the SLA between the Land Bank and the City Government of Iligan is an executive
agreement similar to Loan Agreement No. 4833-PH such that the procurement of water pipes by the
BAC of the City Government of Iligan should be deemed exempt from the application of RA 9184.

Ruling
The petition was granted and the RTC decision set aside. The SC ruled that the SLA is exempted
from the provisions of RA 9184 being an executive agreement. The SC expounded that while mandating
adherence to the general policy of the government that contracts, for the procurement of civil works or
supply of goods and equipment, shall be undertaken only after competitive public bidding, RA 9184
recognizes the country's commitment to abide by its obligations under any treaty or international or
executive agreement. This can be found in Section 4 of the IRR.
Section 4. Scope and Application of the IRR
4.1 This IRR shall apply to all procurement of any branch, agency, department, bureau, office or
instrumentality of the GOP, including government-owned and/or -controlled corporations (GOCCs),
government financial institutions (GFis), state universities and colleges (SUCs) and local government
units (LGUs).
4.2 Any Treaty or International or Executive Agreement to which the GOP is a signatory affecting the
subject matter of the Act and this IRR shall be observed. In case of conflict between the terms of the
Treaty or International or Executive Agreement and this IRR, the former shall prevail.
4.3 Unless the Treaty or International or Executive Agreement expressly provides use of foreign
government/foreign or international financing institution procurement procedures and guidelines, this
IRR shall apply to Foreign-funded Procurement for goods, infrastructure projects, and consulting
services by the GOP.
Considering that Loan Agreement No. 4833-PH expressly provides that the procurement of the goods to
be financed from the loan proceeds shall be in accordance with the IBRD Guidelines and the provisions
of Section 4, and that the accessory SLA contract merely follows its principal 's terms and conditions, the
procedure for competitive public bidding prescribed under RA 9184 therefore finds no application to the
procurement of goods for the Iligan City Water Supply System Development and Expansion Project.
Under the fundamental international law principle of pacta sunt servanda, which is in fact embodied in
the afore-quoted Section 4 of R.A. No. 9184, the RP, as borrower, bound itself to perform in good faith
its duties and obligation under Loan No. 7118-PH. Applying this postulate in the concrete to this case,
the IABAC was legally obliged to comply with, or accord, primacy to, the WB Guidelines on the conduct
and implementation of the bidding/procurement process in question.
Saguisag v. Executive Secretary, G.R. No. 212426, January
12, 2016
FACTS:
EDCA authorizes the U.S. military forces to have access to and conduct activities within certain "Agreed
Locations" in the country. It was not transmitted to the Senate on the executive's understanding that to
do so was no longer necessary. Accordingly, in June 2014, the Department of Foreign Affairs (DFA) and
the U.S. Embassy exchanged diplomatic notes confirming the completion of all necessary internal
requirements for the agreement to enter into force in the two countries.
The petitions before this Court question the constitutionality of the Enhanced Defense Cooperation
Agreement (EDCA) between the Republic of the Philippines and the United States of America (U.S.).
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of
jurisdiction when they entered EDCA with the U.S., claiming that the instrument violated multiple
constitutional provisions.

ISSUES:
Whether EDCA is a treaty, executive agreement, or international agreement?
HELD:
EDCA is an executive agreement. The President had the choice to enter into EDCA by way of an
executive agreement or a treaty. No court can tell the President to desist from choosing an executive
agreement over a treaty to embody an international agreement, unless the case falls squarely within
Article VIII, Section 25.
1. Treaties, international agreements, and executive agreements are all constitutional manifestations of
the conduct of foreign affairs with their distinct legal characteristics.
a. Treaties are formal contracts between the Philippines and other States-parties, which are in the
nature of international agreements, and also of municipal laws in the sense of their binding nature.
b. International agreements are similar instruments, the provisions of which may require the ratification
of a designated number of parties thereto. These agreements involving political issues or changes in
national policy, as well as those involving international agreements of a permanent character, usually
take the form of treaties. They may also include commercial agreements, which are executive
agreements essentially, but which proceed from previous authorization by Congress, thus dispensing
with the requirement of concurrence by the Senate.
c. Executive agreements are generally intended to implement a treaty already enforced or to determine
the details of the implementation thereof that do not affect the sovereignty of the State.
2. Treaties and international agreements that cannot be mere executive agreements must, by
constitutional decree, be concurred in by at least two-thirds of the Senate.
3. However, an agreement - the subject of which is the entry of foreign military troops, bases, or
facilities - is particularly restricted. The requirements are that it be in the form of a treaty concurred in
by the Senate; that when Congress so requires, it be ratified by a majority of the votes cast by the
people in a national referendum held for that purpose; and that it be recognized as a treaty by the other
contracting State.
4. Thus, executive agreements can continue to exist as a species of international agreements.
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International Agreements
and its Ratification, thus, correctly reflected the inherent powers of the President when it stated that
the DFA "shall determine whether an agreement is an executive agreement or a treaty."

Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an
international agreement should be in the form of a treaty or an executive agreement, save in cases in
which the Constitution or a statute requires otherwise. Rather, in view of the vast constitutional powers
and prerogatives granted to the President in the field of foreign affairs, the task of the Court is to
determine whether the international agreement is consistent with the applicable limitations.
First, executive agreements must remain traceable to an express or implied authorization under the
Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of
executive agreements under serious question for the main function of the Executive is to enforce the
Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of
these rules. In turn, executive agreements cannot create new international obligations that are not
expressly allowed or reasonably implied in the law they purport to implement.
Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are
products of the acts of the Executive and the Senate unlike executive agreements, which are solely
executive actions. Because of legislative participation through the Senate, a treaty is regarded as being
on the same level as a statute. If there is an irreconcilable conflict, a later law or treaty takes precedence
over one that is prior. An executive agreement is treated differently. Executive agreements that are
inconsistent with either a law or a treaty are considered ineffective. Both types of international
agreement are nevertheless subject to the supremacy of the Constitution.
Mere fears, however, cannot curtail the exercise by the President of the Philippines of his Constitutional
prerogatives in respect of foreign affairs. They cannot cripple him when he deems that additional
security measures are made necessary by the times. As it is, EDCA is not constitutionally infirm. As an
executive agreement, it remains consistent with existing laws and treaties that it purports to implement.

Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA

Facts: A petition for mandamus was filed to compel the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International
Criminal Court to the Senate of the Philippines for its concurrence in accordance with Section 21, Article
VII of the 1987 Constitution. The Statute was opened for signature by all states in Rome on July 17, 1998
and had remained open for signature until December 31, 2000 at the United Nations Headquarters in
New York. The Philippines signed the Statute on December 28, 2000 through Enrique A. Manalo of the
Philippine Mission to the United Nations. Its provisions, however, require that it be subject to
ratification, acceptance or approval of the signatory states. Petitioners filed the instant petition to
compel the respondents the Office of the Executive Secretary and the Department of Foreign Affairs to
transmit the signed text of the treaty to the Senate of the Philippines for ratification.
Issue: Whether or not the Executive may be compelled to transmit the copy of the treaty signed to the
Senate for its concurrence under the constitution?
Ruling: No. In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country’s sole representative with foreign nations. As
the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the
sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of
the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that no treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
The participation of the legislative branch in the treatymaking process was deemed essential to provide
a check on the executive in the field of foreign relations. By requiring the concurrence of the legislature
in the treaties entered into by the President, the Constitution ensures a healthy system of checks and
balance necessary in the nations pursuit of political maturity and growth.
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.
Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his
authorized representatives. These representatives are provided with credentials known as full powers,
which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice
for one of the parties to submit a draft of the proposed treaty which, together with the
counterproposals, becomes the basis of the subsequent negotiations.
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.
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.
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.
It should be underscored that the signing of the treaty and the ratification are two separate and distinct
steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means
of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed
by the states 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, Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997
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 Department of Foreign Affairs. The Department of Foreign Affairs 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. Section 7 of Executive Order No. 459
reads:
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. The
domestic requirements for the entry into force of a treaty or an executive agreement, or any
amendment thereto, shall be as follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing
for the preparation of the ratification papers. The transmittal shall include the highlights of the
agreements and the benefits which will accrue to the Philippines arising from them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall
transmit the agreements to the President of the Philippines for his ratification. The original signed
instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate
action.
B. Treaties.
i. All treaties, regardless of their designation, shall comply with the requirements provided in
subparagraphs 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of
Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the
ratification by the President. A certified true copy of the treaties, in such numbers as may be required by
the Senate, together with a certified true copy of the ratification instrument, shall accompany the
submission of the treaties to the Senate.
ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with
the provision of the treaties in effecting their entry into force.
It should be emphasized that under our Constitution, the power to ratify is vested in the President,
subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a
serious step that should not be taken lightly, such decision is within the competence of the President
alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction
over actions seeking to enjoin the President in the performance of his official duties. The Court,
therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the government to transmit the signed text of Rome
Statute to the Senate.
622 (2005)

Tanada v. Angara, 272 SCRA 18 (1997)

FACTS

Petitioners sought to nullify the Senate's concurrence in the ratification of the World Trade Organization
(WTO) Agreement.
These are the main questions raised in this petition for certiorari, prohibition and mandamus under Rule
65 of the Rules of Court praying (1) for the nullification, on constitutional grounds, of the concurrence of
the Philippine Senate in the ratification by the President of the Philippines of the Agreement Establishing
the World Trade Organization (WTO Agreement, for brevity) and (2) for the prohibition of its
implementation and enforcement through the release and utilization of public funds, the assignment of
public officials and employees, as well as the use of government properties and resources by
respondent-heads of various executive offices concerned therewith. This concurrence is embodied in
Senate Resolution No. 97, dated December 14, 1994.
On August 13, 1994, the members of the Philippine Senate received another letter from the President of
the Philippines likewise dated August 11, 1994, which stated among others that "the Uruguay Round
Final Act, the Agreement Establishing the World Trade Organization, the Ministerial Declarations and
Decisions, and the Understanding on Commitments in Financial Services are hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article VII of the Constitution."
On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption
of P.S. 1083, a resolution entitled "Concurring in the Ratification of the Agreement Establishing the
World Trade Organization."
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved, as it is
hereby resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade Organization."

ISSUES:
Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or
excess of jurisdiction when they voted for concurrence in the ratification of the constitutionally-infirm
Agreement Establishing the World Trade Organization?

HELD:
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of
discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility and must be so patent and so gross as to amount to an evasion of a positive duty or to
a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Failure on the part
of the petitioner to show grave abuse of discretion will result in the dismissal of the petition.
Using the foregoing well-accepted definition of grave abuse of discretion and the presumption of
regularity in the Senate's processes, this Court cannot find any cogent reason to impute grave abuse of
discretion to the Senate's exercise of its power of concurrence in the WTO Agreement granted it by Sec.
21 of Article VII of the Constitution.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the
WTO Agreement thereby making it "a part of the law of the land" is a legitimate exercise of its sovereign
duty and power. We find no "patent and gross" arbitrariness or despotism "by reason of passion or
personal hostility" in such exercise. It is not impossible to surmise that this Court, or at least some of its
members, may even agree with petitioners that it is more advantageous to the national interest to strike
down Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to
the Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of our own
judicial power and duty. Ineludibly, what the Senate did was a valid exercise of its authority.
Vinuya v. Romulo, 619 SCRA 533 (2010) and 732 SCRA
595-622 (2014)
FACTS: Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization
established for the purpose of providing aid to the victims of rape by Japanese military forces in the
Philippines during the Second World War.Petitioners narrate that during the Second World War, the
Japanese army attacked villages and systematically raped the women as part of the destruction of the
village. Their communities were bombed, houses were looted and burned, and civilians were publicly
tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the women and held them in
houses or cells, where they were repeatedly raped, beaten, and abused by Japanese soldiers. As a result
of the actions of their Japanese tormentors, the petitioners have spent their lives in misery, having
endured physical injuries, pain and disability, and mental and emotional suffering. Petitioners claim that
since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese officials and military officers who ordered the
establishment of the comfort women stations in the Philippines. However, officials of the Executive
Department declined to assist the petitioners, and took the position that the individual claims of the
comfort women for compensation had already been fully satisfied by Japans compliance with the Peace
Treaty between the Philippines and Japan.

ISSUE: Did respondents commit grave abuse of discretion amounting to lack or excess of discretion in
refusing to espouse their claims for the crimes against humanity and war crimes committed against
them?

HELD: Political questions refer "to those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or regarding which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." Certain types of cases often have
been found to present political questions. One such category involves questions of foreign relations. It is
well-established that "the conduct of the foreign relations of our government is committed by the
Constitution to the executive and legislative--'the political'--departments of the government, and the
propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or
decision."

Not all cases implicating foreign relations present political questions, and courts certainly possess the
authority to construe or invalidate treaties and executive agreements. However, the question whether
the Philippine government should espouse claims of its nationals against a foreign government is a
foreign relations matter, the authority for which is demonstrably committed by our Constitution not to
the courts but to the political branches. In this case, the Executive Department has already decided that
it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in
the Treaty of Peace of 1951.The wisdom of such decision is not for the courts to question. Neither could
petitioners herein assail the said determination by the Executive Department via the instant petition for
certiorari.
The Executive Department has determined that taking up petitioners’ cause would be inimical to our
country's foreign policy interests, and could disrupt our relations with Japan, thereby creating serious
implications for stability in this region. For the Court to overturn the Executive Departments
determination would mean an assessment of the foreign policy judgments by a coordinate political
branch to which authority to make that judgment has been constitutionally committed. DISMISSED.

Arigo v. Swift, 735 SCRA 102 (2014)

FACTS:
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December
2012, the US Embassy in the Philippines requested diplomatic clearance for the said vessel “to enter and
exit the territorial waters of the Philippines and to arrive at the port of Subic Bay for the purpose of
routine ship replenishment, maintenance, and crew liberty.” On January 6, 2013, the ship left Sasebo,
Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar,
Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the
northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No
one was injured in the incident, and there have been no reports of leaking fuel or oil.
Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS
Guardian cause and continue to cause environmental damage of such magnitude as to affect the
provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga
del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional rights to a balanced and
healthful ecology.
ISSUE:
Whether or not US respondents may be held liable for damages caused by USS Guardian.
YES.
The US respondents were sued in their official capacity as commanding officers of the US Navy
who had control and supervision over the USS Guardian and its crew. The alleged act or omission
resulting in the unfortunate grounding of the USS Guardian on the TRNP was committed while they
were performing official military duties. Considering that the satisfaction of a judgment against said
officials will require remedial actions and appropriation of funds by the US government, the suit is
deemed to be one against the US itself. The principle of State immunity therefore bars the exercise of
jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the
conduct of the US in this case, when its warship entered a restricted area in violation of R.A. No. 10067
and caused damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the
United Nations Convention on the Law of the Sea (UNCLOS). He explained that while historically,
warships enjoy sovereign immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS
creates an exception to this rule in cases where they fail to comply with the rules and regulations of the
coastal State regarding passage through the latter’s internal waters and the territorial sea.
 In the case of warships, as pointed out by Justice Carpio, they continue to enjoy sovereign
immunity subject to the following exceptions:
Article 30: Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State concerning passage
through the territorial sea and disregards any request for compliance therewith which is made to it, the
coastal State may require it to leave the territorial sea immediately.
Article 31: Responsibility of the flag State for damage caused by a warship or other government ship
operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the coastal State resulting
from the non-compliance by a warship or other government ship operated for non-commercial purposes
with the laws and regulations of the coastal State concerning passage through the territorial sea or with
the provisions of this Convention or other rules of international law.
Article 32: Immunities of warships and other government ships operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this
Convention affects the immunities of warships and other government ships operated for non-
commercial purposes. A foreign warship’s unauthorized entry into our internal waters with resulting
damage to marine resources is one situation in which the above provisions may apply.
But what if the offending warship is a non-party to the UNCLOS, as in this case, the US?
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of long-
standing policy the US considers itself bound by customary international rules on the “traditional uses of
the oceans” as codified in UNCLOS.
Moreover, Justice Carpio emphasizes that “the US refusal to join the UNCLOS was centered on its
disagreement with UNCLOS” regime of deep seabed mining (Part XI) which considers the oceans and
deep seabed commonly owned by mankind,” pointing out that such “has nothing to do with its the US’
acceptance of customary international rules on navigation.”
The Court also fully concurred with Justice Carpio’s view that non-membership in the UNCLOS does not
mean that the US will disregard the rights of the Philippines as a Coastal State over its internal waters
and territorial sea. We thus expect the US to bear “international responsibility” under Art. 31 in
connection with the USS Guardian grounding which adversely affected the Tubbataha reefs. Indeed, it is
difficult to imagine that our long-time ally and trading partner, which has been actively supporting the
country’s efforts to preserve our vital marine resources, would shirk from its obligation to compensate
the damage caused by its warship while transiting our internal waters. Much less can we comprehend a
Government exercising leadership in international affairs, unwilling to comply with the UNCLOS directive
for all nations to cooperate in the global task to protect and preserve the marine environment as
provided in Article 197 of UNCLOS
Liang v. People, 323 SCRA 692 (2000) and 355 SCRA 125
(2001) (See Justice Puno's Concurrence)
Facts of the Case:
A Chinese national Jeffrey Liang (Huefeng), who was employed as an Economist by the Asian
Development Bank (ADB) uttered defamatory words to Joyce V. Cabal, a member of the clerical staff of
ADB. On April 13, 1994, the Metropolitan Trial Court of Mandaluyong City, acting pursuant to an advice
from the Department of Foreign Affairs that petitioner enjoyed immunity from legal processes,
dismissed the criminal Informations against him. On a petition for certiorari and mandamus filed by the
People, the Regional Trial Court of Pasig City, Branch 160, annulled and set aside the order of the
Metropolitan Trial Court dismissing the criminal cases.

Petitioner, thus, brought a petition for review with the Supreme Court.

Issue: Whether or not the statements allegedly made by petitioner were uttered while in the
performance of his official functions.

Held:
No. The provisions of Section 45 (a) of the Agreement Between the Asian Development Bank and the
Government of the Republic of the Philippines Regarding the Headquarters of the Asian Development
Bank only gives immunity to the officers and staff from legal process with respect to acts performed by
them in their official capacity. Slander or oral defamation cannot be considered as falling within the
purview of the immunity granted to ADB officers and personnel.

Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA

622, 6 July 2005
Facts: A petition for mandamus was filed to compel the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International
Criminal Court to the Senate of the Philippines for its concurrence in accordance with Section 21, Article
VII of the 1987 Constitution. The Statute was opened for signature by all states in Rome on July 17, 1998
and had remained open for signature until December 31, 2000 at the United Nations Headquarters in
New York. The Philippines signed the Statute on December 28, 2000 through Enrique A. Manalo of the
Philippine Mission to the United Nations. Its provisions, however, require that it be subject to
ratification, acceptance or approval of the signatory states. Petitioners filed the instant petition to
compel the respondents the Office of the Executive Secretary and the Department of Foreign Affairs to
transmit the signed text of the treaty to the Senate of the Philippines for ratification.
Issue: Whether or not the Executive may be compelled to transmit the copy of the treaty signed to the
Senate for its concurrence under the constitution?
Ruling: No. In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country’s sole representative with foreign nations. As
the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the
sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of
the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that no treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
The participation of the legislative branch in the treatymaking process was deemed essential to provide
a check on the executive in the field of foreign relations. By requiring the concurrence of the legislature
in the treaties entered into by the President, the Constitution ensures a healthy system of checks and
balance necessary in the nations pursuit of political maturity and growth.
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.
Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his
authorized representatives. These representatives are provided with credentials known as full powers,
which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice
for one of the parties to submit a draft of the proposed treaty which, together with the
counterproposals, becomes the basis of the subsequent negotiations.
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.
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.
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.
It should be underscored that the signing of the treaty and the ratification are two separate and distinct
steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means
of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed
by the states 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, Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997
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 Department of Foreign Affairs. The Department of Foreign Affairs 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.