A.

Nature of International Law

B. Sources of International Law

ICJ Statute Article 38

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it,
shall apply:

- international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;

- international custom, as evidence of a general practice accepted as law;

- the general principles of law recognized by civilized nations;

subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree
thereto.

Article 59
The decision of the Court has no binding force except between the parties and in respect of that particular case.

5 sources that can be identified in Article 38

a. Treaties
b. International Custom
c. General Principles of International Law
d. Judicial Decisions
e. Writing of publicists

a. Treaties

Legislative

SECTION 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior
concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty
days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decisions on applications for
loans to be contracted or guaranteed by the Government or government-owned and controlled corporations which would have the effect
of increasing the foreign debt, and containing other matters as may be provided by law.

SECTION 21. 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.

Judiciary

(2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme
Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the
constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations,
shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case
and voted thereon.
Transitory

SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State.

Vienna Convention
Article 2
Use of terms
1. For the purposes of the present Convention:
(a) “treaty” means 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;
(b) “ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so named whereby a State
establishes on the international plane its consent to be bound by a treaty;
(c) “full powers” means a document emanating from the competent authority of a State designating a person or persons to represent the
State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for
accomplishing any other act with respect to a treaty;
(d) “reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their
application to that State;
(e) “negotiating State” means a State which took part in the drawing up and adoption of the text of
the treaty;
(f) “contracting State” means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force;
(g) “party” means a State which has consented to be bound by the treaty and for which the treaty is in force;
(h) “third State” means a State not a party to the treaty;
(i) “international organization” means an intergovernmental organization.

2. The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or
to the meanings which may be given to them in the internal law of any State.

Article 26
“Pacta sunt servanda”
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 27
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to
article 46.

SECTION 2. APPLICATION OF TREATIES

Article 28
Non-retroactivity of treaties
Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or
fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.

Article 29
Territorial scope of treaties
Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire
territory.

Article 30
Application of successive treaties relating to the same subject matter
1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to
the same subject matter shall be determined in accordance with the following paragraphs.
2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the
provisions of that other treaty prevail.
3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in
operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.
4. When the parties to the later treaty do not include all the parties to the earlier one:
(a) as between States Parties to both treaties the same rule applies as in paragraph 3;
(b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties
governs their mutual rights and obligations.
5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under
article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of
which are incompatible with its obligations towards another State under another treaty.
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other
parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its
conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.

Article 33
Interpretation of treaties authenticated in two or more languages
1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty
provides or the parties agree that, in case of divergence, a particular text shall prevail.

2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text
only if the treaty so provides or the parties so agree.

3. The terms of the treaty are presumed to have the same meaning in each authentic text.

4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a
difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having
regard to the object and purpose of the treaty, shall be adopted.

SECTION 4. TREATIES AND THIRD STATES

Article 34
General rule regarding third States
A treaty does not create either obligations or rights for a third State without its consent.

Article 35
Treaties providing for obligations for third States
An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of
establishing the obligation and the third State expressly accepts that obligation in writing.

Article 36
Treaties providing for rights for third States
1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to
the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be
presumed so long as the contrary is not indicated, unless the treaty otherwise provides.
2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for
its exercise provided for in the treaty or established in conformity with the treaty.

Normative (law-making) Treaty Contracts

Lay down rules of general and universal application and intended Concluded to perform contractual rather than normative function
for future and continuing observance

Entered into two or only few states and deal with the matter
exclusively
 These treaties expire upon performance of the obligation

Characteristics

1. It becomes binding to the parties to it by virtue of consent.

a. No consent → void or voidable depending on what kind of action.
i. Example: threat on the use of force
ii. Fraud: voidable/ cured.
2. Written
a. Equally applies to unwritten but not governed by Vienna Convention

**********

PANGILINAN, FRANKLIN M. DRILON, PAOLO BENIGNO "BAM" AQUINO IV, LEILA M. DE LIMA, RISA HONTIVEROS, AND
ANTONIO "SONNY" F. TRILLANES IV, petitioners, vs. ALAN PETER S. CAYETANO, SALVADOR C. MEDIALDEA, TEODORO L.
LOCSIN, JR., AND SALVADOR S. PANELO, respondents.

FACTS:

On March 15, 2018, the Philippines announced its withdrawal from the International Criminal Court. On March 16, 2018, it formally
submitted its Notice of Withdrawal through a Note Verbale to the United Nations Secretary- General's Chef de Cabinet. The Secretary
General received this communication the following day, March 17, 2018.

Through these actions, the Philippines completed the requisite acts of withdrawal. This was all consistent and in compliance with what
the Rome Statute plainly requires. By this point, all that were needed to enable withdrawal have been consummated. Further, the
International Criminal Court acknowledged the Philippines' action soon after it had withdrawn. This foreclosed the existence of a state of
affairs correctible by this Court's finite jurisdiction. The Petitions were, therefore, moot when they were filed. The International Criminal
Court's subsequent consummate acceptance of the withdrawal all but confirmed the futility of this Court's insisting on a reversal of
completed actions.

In any case, despite the withdrawal, this Court finds no lesser protection of human rights within our system of laws. Neither do we agree
with petitioners' implied statements that without the treaty, the judiciary will not be able to fulfill its mandate to protect human rights.

Thus, the president can withdraw from a treaty as a matter of policy in keeping with our legal system, if a treaty is unconstitutional or
contrary to provisions of an existing prior statute. However, the president may not unilaterally withdraw from a treaty: (a) when the
Senate conditionally concurs, such that it requires concurrence also to withdraw; or (b) when the withdrawal itself will be contrary to a
statute, or to a legislative authority to negotiate and enter into a treaty, or an existing law which implements a treaty.

This Court resolves consolidated Petitions for Certiorari and Mandamus under Rule 65 of the 1997 Rules of Civil Procedure, seeking to:
(a) declare the Philippines' withdrawal from the Rome Statute as invalid or ineffective, since it was done without the concurrence of at
least two-thirds of all the Senate's members; and (b) compel the executive branch to notify the United Nations Secretary-General that it
is cancelling, revoking, and withdrawing the Instrument of Withdrawal. Petitioners maintain that the Instrument of Withdrawal is
inconsistent with the Constitution.

Petitioners’ claim:

On May 16, 2018, Senators Francis Pangilinan, Franklin Drilon, Paolo Benigno Aquino, Leila De Lima, Risa Hontiveros, and Antonio
Trillanes IV filed a Petition for Certiorari and Mandamus, assailing the executive's unilateral act of withdrawing from the Rome Statute for
being unconstitutional. This Petition was docketed as G.R. No. 238875.

Later, Senator Pangilinan would manifest in the oral arguments incidents relating to Senate Resolution No. 289, a "Resolution
Expressing the Sense of the Senate that Termination of, or Withdrawal from, Treaties and International Agreements Concurred in by the
Senate shall be Valid and Effective Only Upon Concurrence by the Senate." The Resolution was noted to have not been calendared for
agenda in the Senate.

Meanwhile, on June 13, 2018, the Philippine Coalition for the Establishment of the International Criminal Court, and its members, Loretta
Ann P. Rosales, Dr. Aurora Corazon A. Parong, Evelyn Balais-Serrano, among others, also filed a Petition for Certiorari and Mandamus,
docketed as G.R. No. 239483.

On July 6, 2018, the Office of the Solicitor General filed its Consolidated Comment to the Petitions.

On August 14, 2018, the Integrated Bar of the Philippines filed its own Petition, and an Omnibus Ex-Parte Motion for Consolidation and
for Inclusion in the Oral Arguments. This Petition was docketed as G.R. No. 240954.

Oral arguments were conducted on August 28, 2018, September 4, 2018, and October 9, 2018. At the termination of oral arguments, this
Court required the parties to file their respective memoranda within 30 days.

In his March 18, 2019 press release, the Assembly of State Parties' President Mr. O-Gon Kwon "reiterated his regret regarding the
withdrawal of the Philippines, effective as of 17 March 2019, from the Rome Statute[.]" He expressed hope that the country rejoins the
treaty in the future.

Respondents’ claim:

Respondents, through the Office of the Solicitor General, counter that the petitioners in G.R. No. 238875 do not have locus standi as
they do not represent "the official stand of the Senate as a body." Neither do the petitioners in G.R. No. 239483 have standing to
question "the wisdom of the President's sovereign power to withdraw from the Rome Statute, absent any proof of actual or immediate
danger of sustaining a direct injury as a result of said withdrawal."

Respondents claim that a Rule 65 petition is improper because the acts of the President complained of were not in the exercise of
judicial or quasi- judicial powers. Moreover, mandamus cannot lie against a discretionary act of a president, much less an act which is
not enjoined as a duty, such as the ratification of a treaty.

They posit that the Petitions do not present a justiciable controversy because the withdrawal from a treaty is a political question, being a
policy determination delegated to the "wisdom of the executive." Specifically, the President is the "sole organ of the nation in its external
relations, and its sole representative with foreign nations." Respondents assert that the Constitution does not expressly require Senate
concurrence in withdrawing from a treaty.

Respondents maintain that the withdrawal was valid for having complied with the Rome Statute, which requires only a written notification
of withdrawal.

Respondents also allege that the decision to withdraw from the Rome Statute "was an act to protect national sovereignty from
interference and to preserve the judiciary's independence," which was necessary given Prosecutor Bensouda's preliminary examination.
This allegedly violates the complementarity principle under the Rome Statute.

Lastly, respondents aver that the rights being protected under the Rome Statute are adequately safeguarded by domestic laws. The
withdrawal's only effect, they say, is that the "Philippines will no longer be under the jurisdiction of the International Criminal Court."

ISSUE:

Whether the executive can unilaterally withdraw from a treaty

RULING:

NO. The Court adopted the following guidelines as the modality for evaluating cases concerning the president's withdrawal from
international agreements:

First, the president enjoys some leeway in withdrawing from agreements which he or she determines to be contrary to the Constitution or
statutes. The president should not be bound to abide by a treaty previously entered into, should it be established that such treaty runs
afoul of the Constitution and our statutes.

Accordingly, during negotiations, the president can insist on terms that are consistent with the Constitution and statutes, or refuse to
pursue negotiations if those negotiations' direction is such that the treaty will turn out to be repugnant to the Constitution and our
statutes. Moreover, the president should not be bound to abide by a treaty previously entered into, should it be established that such
treaty runs afoul of the Constitution and our statutes.

Second, the president cannot unilaterally withdraw from agreements which were entered into pursuant to congressional imprimatur. A
statute subsequently passed to implement a prior treaty signifies legislative approbation of prior executive action. When such a statute is
adopted, the president cannot withdraw from the treaty being implemented unless the statute itself is repealed. Consistent with the mirror
principle, any withdrawal from an international agreement must reflect how it was entered into. As the agreement was entered pursuant
to congressional imprimatur, withdrawal from it must likewise be authorized by a law.

Here, Congress passed Republic Act No. 9851 well ahead of the Senate's concurrence to the Rome Statute. Republic Act No. 9851 is
broader than the Rome Statute itself.

 hird, the President cannot unilaterally withdraw from international agreements where the Senate concurred and expressly declared that
T
any withdrawal must also be made with its concurrence. The Senate may concur with a treaty or international agreement expressly
indicating a condition that withdrawal from it must likewise be with its concurrence. As effecting treaties is a shared function between the
executive and the legislative branches, the Senate's power to concur with treaties necessarily includes the power to impose conditions
for its concurrence. In sum, at no point and under no circumstances does the president enjoy unbridled authority to withdraw from
treaties or international agreements. Any such withdrawal must be anchored on a determination that they run afoul of the Constitution or
a statute. Any such determination must have clear and definite basis; any wanton, arbitrary, whimsical, or capricious withdrawal is
correctible by judicial review. Moreover, specific circumstances attending Congress's injunction on the executive to proceed in treaty
negotiation, or the Senate's specification of the need for its concurrence to be obtained in a withdrawal, binds the president and may
prevent him or her from proceeding with withdrawal.

However, the unfolding of events, including the CC's acknowledgment of withdrawal rendered the petitions moot, removing any potential
relief from this Supreme Court's sphere. The Philippines withdrawal from the Rome Statute has been properly received and
acknowledged by the United Nations Secretary-General and has taken effect. Having been consummated, these actions bind the
Philippines. No longer is there an unsettled incident demanding resolution.

ADDITIONAL NOTES:

As a guide for future cases, this Court recognized that, as the primary architect of foreign policy, the President enjoys a degree of leeway
to withdraw from treaties which are bona fide deemed contrary to the Constitution or our laws, and to withdraw in keeping with the
national policy adopted pursuant to the Constitution.

The President's discretion to withdraw is qualified by the extent of legislative involvement in the manner by which a treaty was entered
into or came into effect. The President cannot unilaterally withdraw from treaties that were entered into pursuant to the legislative intent
manifested in prior laws, or subsequently affirmed by succeeding laws. Treaties, where Senate concurrence for accession is expressly
premised on the same concurrence for withdrawal likewise, cannot be the subject of unilateral withdrawal. The imposition of Senate
concurrence as a condition may be made piecemeal, through individual Senate resolutions pertaining to specific treaties, or through
encompassing legislative action, such as a law, a joint resolution by Congress, or a comprehensive Senate resolution.

NICOLAS V. ROMULO
G.R. No. 175888; Feb. 11, 2009

AZCUNA, J:
FACTS:
Respondent Daniel Smith, a member of US Marine Corps, was found guilty with the crime of rape against Petitioner, Suzette Nicolas, a
22-year-old unmarried woman. Pursuant to Article 5, par. 10 of the Visiting Forces Agreement (VFA) between Philippines and the US,
the US was granted custody of Smith, upon their request and he shall serve his sentence in the facilities to be agreed upon by the PH
and US. Pending on the said agreement, he was temporarily committed to the Makati City Jail until further orders.

On Dec. 2006, Smith was taken out of jail by PH Law enforcement agents, acting under the orders of the DILG and was brought to a
facility for detention under control of US Govt., as provided under new agreements between PH and US, referred to as: Romulo-Kenney
Agreement, which states that...in accordance with the Visiting Forces Agreement signed between the 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. Furthermore, DILG will have
access to Smith’s place of detention to ensure the US is in compliance with the terms of the VFA. Petitioners contend that the Philippines
should have custody of defendant L/CPL Smith because, first of all, the VFA is void and unconstitutional. Hence, this petition.

ISSUE:
Whether the VFA between Philippines and U.S. should be void and unconstitutional.

RULING:
NO, the VFA between the Philippines and United States is valid and constitutional. As held in the case of Bayan v. Zamora, the VFA was
duly concurred by the Philippine Senate and has been recognized as a treaty by the United States government. It is, therefore, a binding
international agreement or treaty recognized by both contracting parties and substantially complies with the requirements of Art. XVIII,
Sec. 25 of our Philippine Constitution.

The said provision 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.

Lim v. Exec. Secretary, G.R. No,151445, Apr. 11, 2002

FACTS:
A petition for certiorari and prohibition as well as a petition-in-intervention, praying that respondents be restrained from proceeding with
the so-called "Balikatan 02-1".

Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed forces of the United States of America
started arriving in Mindanao to take partin "Balikatan 02-1” in January 2002. The Balikatan 02-1 exercises involve the simulation of joint
military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United
States in 1951. The exercise is rooted from the international anti-terrorism campaign declared by President George W. Bush in reaction
to the 3 commercial aircrafts hijacking that smashed into twin towers of the World Trade Center in New York City and the Pentagon
building in Washington, D.C. allegedly by the al-Qaeda headed by the Osama bin Laden that occurred on 911 incident. Arthur D. Lim and
Paulino P. Ersando as citizens, lawyers and taxpayers filed a petition for certiorari and prohibition attacking the constitutionality of the
joint exercise. Partylists Sanlakas and Partido Ng Manggagawa as residents of Zamboanga and Sulu directly affected by the operations
filed a petition-in-intervention.

The Solicitor General commented the prematurity of the action as it is based only on a fear of future violation of the Terms of Reference
and impropriety of availing of certiorari to ascertain a question of fact specifically interpretation of the VFA whether it is covers "Balikatan
02-1” and no question of constitutionality is involved. Moreover, there is lack of locus standi since it does not involve tax spending and
there is no proof of direct personal injury.

ISSUE:
Whether or not Balikatan 02-1 in accordance with the VFA is valid

RULING:
Yes. The holding of “Balikatan 02-1” must be studied in the framework of the treaty antecedents to which the Philippines bound itself.
The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the “core” of the defense relationship
between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of our
armed forces through joint training with its American counterparts; the “Balikatan” is the largest such training exercise
directly supporting the MDT’s objectives. It is this treaty to which the V FA adverts and the obligations there under which it seeks to
reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in USPhilippine defense
relations, that is, until it was replaced by the Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of
eleven to three, this Court upheld the validity of the VFA. The VFA provides the “regulatory mechanism” by which “United States military
and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government.” It
contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims,
importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is the VFA
which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal
cooperation between American and Philippine military forces in the event of an attack by a common foe.

The first question that should be addressed is whether “Balikatan 02-1” is covered by the Visiting Forces Agreement. To resolve this, it is
necessary to refer to the V FA itself: Not much help can be had therefrom, unfortunately, since the terminology employed is itself the
source of the problem. The VFA permits United States personnel to engage, on an impermanent basis, in “activities,” the exact meaning
of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the
Philippine government. The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must
“abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity.” All other activities, in
other words, are fair game. We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which contains
provisos governing interpretations of international agreements, state:

SECTION 3.
INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus of the treaty in their context
and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other
parties as an instrument related to the party .

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32
Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its
conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd unreasonable.

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to
verbalize the parties’ intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it
refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. As explained
by a writer on the Convention , The Commission’s proposals (which were adopted virtually without change by the conference and are
now reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty must be presumed to be
the authentic expression of the intentions of the parties; the Commission accordingly came down firmly in favour of the view that ‘the
starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties’.

This is not to say that the travaux preparatoires of a treaty , or the circumstances of its conclusion, are relegated to a subordinate, and
wholly ineffective, role. As Professor Briggs points out, no rigid temporal prohibition on resort to travaux preparatoires of a treaty was
intended by the use of the phrase ‘supplementary means of interpretation’ in what is now Article 32 of the Vienna Convention. The
distinction between the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that the
supplementary means do not constitute an alternative, autonomous method of interpretation divorced from the general rule.
The Terms of Reference rightly fall within the context of the VFA.

PIMENTEL v. EXECUTIVE SECRETARY GR 158088

Facts: The Rome Statute establishing the International Criminal Court, and giving it jurisdiction over genocide, crimes against humanity,
war crimes, and the crime of aggression, was opened for signature on 17 July, 1998. The Philippines signed the same on 28 December
2000. Petitioners are suing as concerned human rights advocates and as taxpayers Petitioners theorize that the ratification of a treaty is
a function of the Senate, and are thus compelling the President to transmit thereto the Rome Statute for ratification through a petition for
mandamus.

Issue: Whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate a copy of
the Rome Statute even without the signature of the President

Ruling: Petition is denied. The President as head of state 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.
Negotiation may be undertaken directly by the head of state, or his authorized representative. Opening for signature is intended as a
means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties. Ratification is the formal act by
which a state confirms and accepts the provisions of a treaty concluded by its representatives. Exchange of the instruments of ratification
usually signifies the effectivity of the treaty. Treaty is signed by Philippine representative. DFA to prepare ratification papers. President
will ratify. DFA shall transmit to Senate for concurrence. DFA for execution and compliance

PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA (retired) and PMA '59 FOUNDATION, INC., rep. by its President,
COMMODORE CARLOS L. AGUSTIN (retired) , petitioners, vs. HON. SECRETARY HERMOGENES E. EBDANE, JR., in his
capacity as Secretary of the DEPARTMENT OF PUBLIC WORKS and HIGHWAYS, HON. SECRETARY EMILIA T. BONCODIN, in
her capacity as Secretary of the DEPARTMENT OF BUDGET and MANAGEMENT, HON. SECRETARY CESAR V. PURISIMA, in
his capacity as Secretary of the DEPARTMENT OF FINANCE, HON. TREASURER NORMA L. LASALA, in her capacity as
Treasurer of the Bureau of Treasury, and CHINA ROAD and BRIDGE CORPORATION, respondents.

FACTS:

● Based on the Exchange of Notes on December 27, 1999, the Japanese government, through Mr. Yoshihisa Ara, the
Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines, and the Philippine government,
through Domingo Siazon, the Secretary of Foreign Affairs, reached an understanding on Japanese loans to be extended to the
Philippines which are for the promotion of the country’s economic stabilization and development efforts.
● The Exchange of Notes consisted of two documents: (1) A letter from Japanese Government signed by Ambassador Ara
confirming the understanding reached between the two governments; and (2) Records of Discussion where the salient terms of
the loans were reiterated. Both Ara and Siazon signed the Records.
● The Exchange of Notes provided that the loans to be extended consisted of Loan I and II.
● In accordance with the agreement reached by the Japan and Philippine governments, the Philippines obtained and was granted
by Japan Bank for International Cooperation (JBIC) a loan as provided in Loan Agreement PH-P204.
● The proceeds of the Loan Agreement were to be used to finance the Asterial Road Links Development Project, of which the
Catanduanes Circumferential Road was a part of. The road was divided into four contract packages. (CP I, II, III and IV)
● Subsequently, the DPWH, as the government agency tasked to implement the project, caused the publication of the "Invitation
to Prequalify and to Bid" for the implementation of the CP I project.
● A total of 23 foreign and local contractors responded to the invitation by submitting their accomplished prequalification
documents. Eight contractors were evaluated or considered eligible to bid as concurred by the JBIC. One of them, however,
withdrew; thus, only seven contractors submitted their bid proposals.
● The result of the bidding revealed the three lowest bidders and their respective bids.
● China Road and Bridge Corporation
● Cavite Ideal International Construction Development Corporation
● Italian Thai Development Public Company, Limited
● Mr. Hedifume Ezawa, Project Manager of the Catanduanes Circumferential Road Improvement Project (CCRIP), recommended
the award of the contract to private respondent China Road & Bridge Corporation.
 ● A Contract of Agreement was entered into by and between the DPWH and private respondent China Road & Bridge
Corporation for the implementation of the CP I project.
● Petitioner Plaridel Abaya claims he filed the petition as a taxpayer, former lawmaker, and a Filipino citizen. Petitioner Plaridel
Garcia likewise claims that he filed the suit as a taxpayer, former military officer and a Filipino citizen. Petitioner PMA ’59,
represented by its President Carlos Agustin, claims that its members are all taxpayers and alumni of PMA. Besides the public
respondents mentioned, private respondent China Road & Bridge Corporation is a duly organized corporation engaged in the
business of construction.
● Petitioners assert that:
o The award of the contract to private respondent China Road & Bridge Corporation violates RA 9184, or the
Government Procurement Reform Act, particularly Section 31
▪ Under RA 9184, all bids or awards should not exceed the ceilings or upper limits; otherwise, the contract is
deemed void and inexistent. Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of
discretion because it recommended the award of the contract to private respondent China Road & Bridge
Corporation whose bid was more than P200 million overpriced based on the ABC.
o The petitioners insist that Loan Agreement No. PH- P204 between the JBIC and the Philippine Government is neither
a treaty, an international nor an executive agreement that would bar the application of RA 9184. They point out that to
be considered a treaty, an international or an executive agreement, the parties must be two sovereigns or States
whereas in the case of Loan Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a
banking agency of Japan, which has a separate juridical personality from the Japanese Government.
o Disbursement of public funds to implement a patently void and illegal contract is itself illegal and must be enjoined.
● Respondents, through the Office of the Solicitor General:
o Petitioners have no locus stand
o Maintain that the imposition of ceilings or upper limits on bid prices in RA 9184 does not apply because the CP I
project and the entire Catanduanes Circumferential Road Improvement Project, financed by Loan Agreement No.
PH-P204 executed between the Philippine Government and the JBIC, is governed by the latter’s Procurement
Guidelines which precludes the imposition of ceilings on bid prices.
o The public respondents characterize foreign loan agreements, including Loan Agreement No. PH- P204, as executive
agreements and, as such, should be observed pursuant to the fundamental principle in international law of pacta sunt
servanda.
▪ The Constitution, the public respondents emphasize, recognizes the enforceability of executive agreements in
the same way that it recognizes generally accepted principles of international law as forming part of the law of
the land. This recognition allegedly buttresses the binding effect of executive agreements to which the
Philippine Government is a signatory. It is pointed out by the public respondents that executive agreements
are essentially contracts governing the rights and obligations of the parties. A contract, being the law between
the parties, must be faithfully adhered to by them. Guided by the fundamental rule of pacta sunt servanda, the
Philippine Government bound itself to perform in good faith its duties and obligations under Loan Agreement
No. PH-P204.
● Deny that there was illegal disbursement of public funds by the DBM.

ISSUES:

1. WoN petitioners have standing to file the instant Petition. – YES

2. WoN the Contract Agreement executed by and between the Republic of the Philippines, through DPWH, and the China Road &
Bridge Corporation, for the implementation of civil works for CP I under JBIC Loan Agreement is void ab initio.– NO

RULING: Wherefore premises considered, the petition is hereby DISMISSED.

RATIO:

● Locus standi is "a right of appearance in a court of justice on a given question." More particularly, it is a party’s personal and
substantial interest in a case such that he has sustained or will sustain direct injury as a result of the governmental act being
challenged.
● Locus standi, however, is merely a matter of procedure and it has been recognized that in some cases, suits are not brought by
parties who have been personally injured by the operation of a law or any other government act but by concerned citizens,
taxpayers or voters who actually sue in the public interest. Consequently, the Court, in a catena of cases, has invariably
adopted a liberal stance on locus standi, including those cases involving taxpayers.
● The prevailing doctrine in taxpayer’s suits is to allow taxpayers to question contracts entered into by the national government or
government- owned or controlled corporations allegedly in contravention of law. Significantly, a taxpayer need not be a party to
the contract to challenge its validity.
● EO 40, not RA 9184, is applicable to the procurement process undertaken for the CP I project. RA 9184 cannot be given
retroactive application.
● EO 40 expressly recognizes as an exception to its scope and application those government commitments with respect to
bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from
bilateral and other similar foreign sources.
● Consequently, in accordance with these applicable laws, the procurement of goods and services for the CP I project is
governed by the corresponding loan agreement entered into by the government and the JBIC, i.e., Loan Agreement No.
PH-P204.
 ● The said loan agreement stipulated that the procurement of goods and services for the Arterial Road Links Development
Project (Phase IV), of which CP I is component, is to be governed by the JBIC Procurement Guidelines.
● Section 5.09. Award of Contract. The contract is to be awarded to the bidder whose bid has been determined to be the lowest
evaluated bid and who meets the appropriate standards of capability and financial resources. A bidder shall not be required as
a condition of award to undertake responsibilities or work not stipulated in the specifications or to modify the bid.
● Since these terms and conditions are made part of Loan Agreement No. PH- P204, the government is obliged to observe and
enforce the same in the procurement of goods and services for the CP I project. Private respondent China Road & Bridge
Corporation’s bid was the lowest evaluated bid, albeit 28.95% higher than the ABC. In accordance with the JBIC Procurement
Guidelines, therefore, it was correctly awarded the contract for the CP I project.
● The petitioners, in order to place the procurement process undertaken for the CP I project within the ambit of RA 9184, assert
that Loan Agreement No. PH-P204 is neither a treaty, an international agreement nor an executive agreement.
● They cite Executive Order No. 459 dated November 25, 1997 where the three agreements are defined in this wise:
o International agreement – shall refer to a contract or understanding, regardless of nomenclature, entered into between
the Philippines and another government in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments.
o Treaties – international agreements entered into by the Philippines which require legislative concurrence after
executive ratification. This term may include compacts like conventions, declarations, covenants and acts.
o Executive agreements – similar to treaties except that they do not require legislative concurrence.
● The petitioners mainly argue that Loan Agreement No. PH- P204 does not fall under any of the three categories because to be
any of the three, an agreement had to be one where the parties are the Philippines as a State and another State. The JBIC, the
petitioners maintain, is a Japanese banking agency, which presumably has a separate juridical personality from the
Japanese Government.
● The petitioners’ arguments fail to persuade. The Court holds that Loan Agreement No. PH-P204 taken in conjunction with the
Exchange of Notes dated December 27, 1999 between the Japanese Government and the Philippine Government is an
executive agreement.
● Loan Agreement No. PH-P204 was executed by and between the JBIC and the Philippine Government pursuant to the
Exchange of Notes. Under the circumstances, the JBIC may well be considered an adjunct of the Japanese Government.
● Further, Loan Agreement No. PH-P204 is indubitably an integral part of the Exchange of Notes. It forms part of the Exchange of
Notes such that it cannot be properly taken independent thereof.
● Definition of an "exchange of notes" under international law:
o An "exchange of notes" is a record of a routine agreement that has many similarities with the private law contract. The
agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed
by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State
to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to
avoid the process of legislative approval.
● It is stated that "treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus
vivendi and exchange of notes" all refer to "international instruments binding at international law." It is further explained that
although these instruments differ from each other by title, they all have common features and international law has applied
basically the same rules to all these instruments.
● These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual
relations. Therefore, they are regarded as international customary law. Since there was a general desire to codify these
customary rules, two international conventions were negotiated.
● The 1969 Vienna Convention on the Law of Treaties contains rules for treaties concluded between States. The 1986 Vienna
Convention on the Law of Treaties between States and International Organizations which has still not entered into force, added
rules for treaties with international organizations as parties.
● Significantly, an exchange of notes is considered a form of an executive agreement, which becomes binding through
executive action without the need of a vote by the Senate or Congress. Agreements concluded by the President which fall
short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than
are the more formal instruments – treaties and conventions.
● Under the fundamental principle of international law of pacta sunt servanda, the DPWH, as the executing agency of the projects
financed by Loan Agreement No. PH-P204, rightfully awarded the contract for the implementation of civil works for the CP I
project to private respondent China Road & Bridge Corporation.

Pharmaceutical and Health Care Ass'n v. DOH, GR 173034, Oct. 9, 2007

CASE: Petition for certiorari under Rule 65 of the Rules of Court seeking to nullify AO No. 2006-0012, 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).

DOCTRINE: Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional
mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is
deemed to have the force of domestic law.
Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the 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.

FACTS:
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino by virtue of the legislative powers granted to the president
under the Freedom Constitution seeking to give effect to the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code
adopted by the World Health Assembly (WHA).

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 which stated that State Parties should take
appropriate measures to diminish infant and child mortality. It also mentioned the advantages of breastfeeding. In 2006, the DOH issued
herein assailed RIRR.

Petitioner asserted that the RIRR go beyond the provisions of the Milk Code, thereby amending and expanding the coverage of said law.
Respondent, however, contended that international instruments are deemed part of the law of the land and therefore the DOH may
implement them through the RIRR.

ISSUES: (1) Whether the petitioner is a real-party in interest; (2) Whether the AO or the RIRR issued by the DOH is unconstitutional.
RULING: (1) Yes. The Court ruled that an association has the legal personality to represent its members because the results of the case
will affect their vital interests.
(2) The Court upheld the validity of the RIRR except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance
with the objective, purpose and intent of the Milk Code, constituting reasonable regulation of an industry which affects public health and
welfare and, as such, the rest of the RIRR do not constitute illegal restraint of trade nor are they violative of the due process clause of
the Constitution.
Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation.
The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism
such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have
the force of domestic law.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the WHA
Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a
law enacted by the legislature.

Notes:
Validity of the ICMBS
As to the validity of the ICMBS, the Court noted that the UN Convention on the Rights of the Child CRC does not contain specific
provisions regarding the use or marketing of breastmilk substitutes. Instead, the relevant provisions are contained in the ICMBS and
various WHA Resolutions. The ICMBS had been transformed into domestic law through local legislation, the Milk Code, and
consequently it is the Milk Code that has the force and effect of law in the Philippines, and not the ICMBS per se. However, the Milk
Code did not adopt the provision in the ICMBS absolutely prohibiting advertising of breastmilk substitutes, but instead created the
Inter-Agency Committee to regulate such advertising. By contrast, the subsequent WHA Resolutions specifically prohibiting
advertisements and promotions of breastmilk substitutes have not been adopted as domestic law. Moreover, such Resolutions do not
form part of customary international law. Instead, they may constitute “soft law” or non-binding norms, principles and practices that
influence state behavior (such as the Universal Declaration of Human Rights).
SECTION 2 of the 1987 Constitution 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”.

"General principles of law" is one of the primary sources of international law because they have the "character of jus rationale" and are
"valid through all kinds of human societies."

Custom or customary international law means "a general and consistent practice of states followed by them from a sense of legal
obligation [opinio juris]." (Restatement) 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.

Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an international rule. Clearly, customary
international law is deemed incorporated into our domestic system.

BAYAN MUNA v. ALBERTO ROMULO.

G.R. No. 159618; February 1, 2011.
FACTS:

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. Respondent Blas
F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this case. Respondent Alberto Romulo was
impleaded in his capacity as then Executive Secretary.
Rome Statute of the International Criminal Court Having a key determinative bearing on this case is the Rome Statute establishing the
International Criminal Court (ICC) with “the power to exercise its jurisdiction over persons for the most serious crimes of international
concern x x x and shall be complementary to the national criminal jurisdictions.” The serious crimes adverted to cover those considered
grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression.

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

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of Foreign Affairs (DFA)
proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP.

Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by then DFA
Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the
Agreement with the US government. In esse, the Agreement aims to protect what it refers to and defines as “persons” of the RP and US
from frivolous and harassment suits that might be brought against them in international tribunals.8 It is reflective of the increasing pace of
the strategic security and defense partnership between the two countries. As of May 2, 2003, similar bilateral agreements have
been effected by and between the US and 33 other countries.

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, “persons” are current or former Government officials, employees (including contractors), or military
personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party,
(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal has been established
by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of
surrender to or transfer to any international tribunal, unless such tribunal has been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US] will not agree to
the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the [GRP] will not agree to the
surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent to terminate the
Agreement. The provisions of this Agreement shall continue to apply with respect to any act occurring, or any allegation arising, before
the effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non- surrender agreement, Ambassador
Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a legally binding agreement under
international law; and that, under US law, the said agreement did not require the advice and consent of the US
Senate.

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and prays that
it be struck down as unconstitutional, or at least declared as without force and effect.

ISSUE:
[1] Did respondents abuse their discretion amounting to lack or excess of jurisdiction in concluding the RP-US Non Surrender Agreement
in contravention of the Rome Statute?
[2] Is the agreement valid, binding and effective without the concurrence by at least ⅔ of all the members of the Senate?

HELD:
The Agreement does not contravene or undermine, nor does it differ from, the Rome Statute. Far from going against each other, one
complements the other. As a matter of fact, the principle of complementarity underpins the creation of the ICC. According to Art. 1 of the
Statute, the jurisdiction of the ICC is to “be complementary to national criminal jurisdictions [of the signatory states].” the Rome Statute
expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling or unable to prosecute.

Also, under international law, there is a considerable difference between a State-Party and a signatory to a treaty. Under the Vienna
Convention on the Law of Treaties, a signatory state is only obliged to refrain from acts which would defeat the object and purpose of a
treaty. The Philippines is only a signatory to the Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only
obliged to refrain from acts which would defeat the object and purpose of the Rome Statute. Any argument obliging the Philippines to
follow any provision in the treaty would be premature. And even assuming that the Philippines is a State-Party, the Rome Statute still
recognizes the primacy of international agreements entered into between States, even when one of the States is not a State-Party to the
Rome Statute.

The right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been
confirmed by long usage. From the earliest days of our history, we have entered executive agreements covering such subjects as
commercial and consular relations, most favored-nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts. Executive
agreements may be validly entered into without such concurrence. As the President wields vast powers and influence, her conduct in the
external affairs of the nation is, as Bayan would put it, “executive altogether.” The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.

DISMISSED.

Reservations to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion, I.C.J.
Reports, 1951)

Fisheries Jurisdiction Case (Jurisdiction, United Kingdom v. Iceland, I.C.J. Reports, 1974)
Facts: Iceland sought to extend its exclusive fisheries jurisdiction from 12 to 50 miles around its shores. The United Kingdom challenged
this extension of jurisdiction. However, Iceland and the United Kingdom reached an agreement in 1961 stating that the United Kingdom
would only recognize the 12-mile fishery zone in exchange for Iceland’s agreement to submit all disputes over fisheries jurisdiction to the
ICJ. However, Iceland and the United Kingdom reached an agreement in 1961 stating that the United Kingdom would only recognize the
12-mile fishery zone in exchange for Iceland’s agreement to submit all disputes over fisheries jurisdiction to the ICJ. Iceland argued that
the standard, default limit for exclusive fisheries jurisdiction for states was typically now twelve miles. This was not the case when
Iceland first signed its agreement with the UK, however, and the agreement to a twelve-mile limit then constituted a compromise for
Iceland. Due to changing trends in international law, Iceland argued that its previous agreement to the twelve-mile compromise in
exchange for ICJ jurisdiction was now void for lack of consideration on the UK’s part. The law Iceland passed to enact such a regulation
dealt with the Scientific Conservation of the Continental shelf

Issue(s): (1) WON Iceland has the right to extend its fishery zone from 12 miles to 50 miles; (2) WON the agreement between Iceland
and UK play within the court's decision

Ruling: (1) The court found that Iceland's extension of its fishery zone from 12 to 50 miles is not permissible and “opposable” to the UK.
Two concepts that arose from the second conference of the law of the Seas was that a fishery zone, “between the territorial sea and the
high seas, within the coastal State could claim exclusive fisheries jurisdiction.”. This area has been accepted to be 12 miles from its
baseline. In international law, if a general practice is accepted by states and is practiced, then this concept is law. Both concepts of
“fishery zone” and “preferential right” are crystallized into customary law. However, preferential rights are implemented by agreement
between states concerned, and it is wholly inconsistent with the idea of excluding fishing activities of all other states. Iceland's
preferential rights may vary immediately depending on the circumstances, but they must be reconciled with the interests of the UK – and
this is to be done by negotiation;

(2) The agreement between Iceland and UK does play a key factor in the court's decision. A signed agreement/ treaty between two
nations is binding agreement that must be upheld between nations. This agreement also proves and shows that Iceland accepted the
12-mile fishery zone jurisdiction and was content with it. Thus the United Kingdom has two factors that play favorably in the courts eyes.
The facts of the case line up with the International Law and An agreement was made between two nations that is consistent with what
International Law would allow.

Danube Dam Case (Hungary v. Slovakia, 37 ILM, 1998)

Gabčíkovo-Nagymaros Project (Hungary/Slovakia)

Facts:

● In 1977, Hungary and Czechoslovakia entered into a treaty stipulating the construction of a series of dams, including that in
Gabcikovo and Nagymaros, as well as a “provisional solution (Variant C)”. Said solution involves the damming up of the
Danube at river kilometre 1,851.7 on Czechoslovak territory and the resulting consequences for the water and navigation
course. The treaty came into force in 1978 and works began on the same year.
● In 1989, the Republic of Hungary abandoned the construction of the dam due to public pressure and dwindling economy.
● In 1991, the Republic of Slovakia, who inherited Czechoslovakia’s part in the treaty, decided to unilaterally go ahead with
Variant C.
● In 1992, Hungary notified Slovakia of their intention to terminate the Treaty.
● In 1993, the two Parties brought the case before the International Court of Justice for resolution.

Arguments:

In abandoning the construction of the dams, Hungary interposes the defenses of:

a. Impossibility of the performance of the Treaty (based on Art. 61, VCLT);

 b. Occurrence of a fundamental change of circumstances (Art. 62); and
c. Material breach of the Treaty by Czechoslovakia (Art. 60).

Issue: What is the effect of Hungary’s notification of termination of the 1977 Treaty?

Ruling: The notification of termination has no legal effect. In ruling, the ICJ looked at Article 56(1) of the Vienna Convention on the Law
of Treaties which reads:

1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject
to denunciation or withdrawal unless:

(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.

The Court ruled that based on the 1977 Treaty, the parties did not intend to admit the possibility of withdrawal nor was the right of
withdrawal implied from the nature of the treaty. If a treaty is silent on its own termination, it can only be terminated on the limited
grounds enumerated in the VCLT.

Accordingly, the Court answered each of Hungary’s claims as follows:

a. Impossibility of the performance of the Treaty

The alleged object of the treaty is economic joint investment of the parties. The Court rejected this claim as the Treaty itself
provides for adaption or adjustments. Further, the impossibility of performing the treaty is due to Hungary’s own unwillingness to
perform its part of the obligation, which is expressly prohibited under Art. 61(2).
b. Occurrence of a fundamental change of circumstances
Hungary mentioned the following circumstances, which, to their mind, constituted fundamental change: fall of Socialism in the
country and the diminishing economic value of the project.
The Court ruled that the changes in the political climate and economic instability were not closely tied to the object and purpose
of the treaty, and as such did not constitute the essential basis of the consent of the parties. Nor did the mentioned
circumstances radically transform the extent of obligations still to be performed under the treaty.
c. Material breach of the Treaty by Czechoslovakia
Hungary argued that the unilateral decision of Czechoslovakia to implement Variant C constituted as breach. At the time that
Hungary transmitted its notification to terminate the Treaty to the ICJ, Czechoslovakia did not violate any international law or the
Treaty to constitute as breach.

The Court also ruled that Hungary’s termination was premature, as it wanted to effect termination of said Treaty after 5 days from the
date of receipt of transmittal to the ICJ, in clear contradiction of Art. 65.

Hence, Hungary cannot terminate the 1977 Treaty.

Fujii v. California
FACTS:
Fujii, who had immigrated to the United States from Japan as a young man in 1903, was a visible figure in Los Angeles's Little Tokyo,
most notably as editor of the crusading daily newspaper Kashu Mainichi . With assistance from J. Marion Wright, his one time law school
classmate, and the American Civil Liberties Union (although not the JACL, which he had long opposed) Fujii purchased a lot in the Boyle
Heights district and filed suit to clear title so that he could build a home there. While this hardly constituted agricultural land, California's
Attorney General Fred Howser stepped into the case and argued that under the Alien Land Act Fujii could not purchase any property.

The Fujii case was argued before Judge Wilbur C. Curtis in the Los Angeles Superior Court, who in March 1949 issued a ruling
upholding the state law. Fujii and Wright then appealed to the state supreme court, which remanded the case to the appellate level. Fujii
and Wright argued that the Alien Land Act represented race-based discrimination, which was forbidden both under the 14th
Amendment's Equal Protection clause and the United Nations Charter. Fujii's case was strengthened by the Oregon Supreme Court,
which struck down that state's alien land law in Kenji Namba v. McCourt (1949), and by a favorable Superior Court ruling in Masaoka v.
California , which addressed the right of citizens to make gifts of property to alien parents. Nevertheless, most observers expected the
California court to uphold the law, since the U.S. Supreme Court had not specifically overturned its original 1920s rulings establishing the
law's constitutionality, and because the court had previously validated it in Oyama .
In a surprise ruling, in April 1950 a three-judge panel of the California's District Court of Appeal unanimously overturned Curtis's lower
court ruling. In his opinion, Judge Emmet J. Wilson found that the alien land law was unconstitutional because it contravened Chapter I,
Section I of the United Nations Charter, which stated that one purpose of the United Nations was "promoting and encouraging respect for
human rights and for fundamental freedoms for all, without distinction as to race, sex, language, or religion." Since the United States had
ratified the Charter in 1945, it took the form of an international treaty whose provisions took precedence over domestic laws. The law
likewise contravened the UN's Universal Declaration of Human Rights, to which the US was a signatory.

ISSUE:
 Whether the provisions in the treaty were self-executing?

RULING:
No, In order for a treaty provision to be operative without the aid of implementing legislation and to have the force and effect of a statute,
it must appear that the framers of the treaty intended to prescribe a rule that, standing alone, would be enforceable in the courts.

It is clear that the provisions of the preamble and of article 1 of the Charter which are claimed to be in conflict with the alien land law are
not self-executing. They state general purposes and objectives of the United Nations Organization and do not purport to impose legal
obligations on the individual member nations or to create rights in private persons. It is equally clear that none of the other provisions
relied on by the plaintiff is self-executing. Article 55 declares that the United Nations "shall promote ... universal respect for, and
observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion," and in article 56,
the member nations "pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the
purposes set forth in Article 55." Although the member nations have obligated themselves to cooperate with the international
organization in promoting respect for, and observance of, human rights, it is plain that it was contemplated that future legislative action
by the several nations would be required to accomplish the declared objectives, and there is nothing to indicate that these provisions
were intended to become rules of law for the courts of this country upon the ratification of the charter.
The language used in articles 55 and 56 is not the type customarily employed in treaties which have been held to be self-executing and
to create rights and duties in individuals.
It is significant to note that when the framers of the charter intended to make certain provisions effective without the aid of implementing
legislation they employed language which is clear and definite and manifests that intention.
The provisions in the charter pledging cooperation in promoting observance of fundamental freedoms lack the mandatory quality and
definiteness which would indicate an intent to create justiciable rights in private persons immediately upon ratification. Instead, they are
framed as a promise of future action by the member nations.
The humane and enlightened objectives of the United Nations Charter are, of course, entitled to respectful consideration by the courts
and legislatures of every member nation, since that document expresses the universal desire of thinking men for peace and for equality
of rights and opportunities. The charter represents a moral commitment of foremost importance, and we must not permit the spirit of our
pledge to be compromised or disparaged in either our domestic or foreign affairs. We are satisfied, however, that the charter provisions
relied on by plaintiff were not [*725] intended to supersede existing domestic legislation, and we cannot hold that they operate to
invalidate the Alien Land Law.

NOTES:
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 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.

International Custom

Customary international law results from a general and consistent practice of states that they follow from a sense of legal
obligation.

● Has a binding effect even it has not been codified as a treaty

● Consent is not material.

*geographical custom- specific states only

*instant custom- no duration required but must have extensive state practice.

Objective Element: uniform and constant state practice

● Repetition of a certain behavior on the part of the States for a certain period of time which manifests a certain attitude without
ambiguity to a particular manner. Substantial uniformity is allowed.

● No particular duration is required. Complete uniformity is not required.

Psychological Element: subjective conviction of a State that it is legally bound to behave in a certain way in a given situation

Opinio juris sive necessitatis

 ● That they are under a legal obligation to obey it. → distinguish CIL and mere usage followed out of courtesy or habit.
● “Belief”
● Example: Prior to Vienna states are already observing immunity of diplomats

*Persistent Objector Rule: once a customary rule comes to existence it will apply to all states except to the objectors.

1. Raised during the formative stage of the rule

2. Express
3. Maintained consistently
4. Burden of proof is on the objecting state

Q: WON a state can become a persistent objector in the jus cogens rule? Special status of the rule, persistent objector does not apply

Q: new states that did not participate in the formation of the rule? They have to accept customary rules which existed prior to them
becoming a state.

*treaties and ICL

→ treaties may give rise to rules of customary law

Conflict→ try to reconcile → if cannot be reconciled; lex specialis; determined contextually

Conditions:
1. Provision should be of a fundamentally norm-creating character
2. Participation must include those states whose interests would be specifically affected by the provision in question
3. Within the period of time the adoption of the convention, state practice including that of states whose interests are specifically
affected, must have been both extensive and virtually uniform.

How can a treaty reflect custom? (3 ways)

1. Declarative of custom (codification)
2. Rule of custom in statu nascendi (emerging)
3. Serve a general rule of customary rule in the future

Conflict between rule of a treaty and rule of customary law?

● No strict hierarchy

Lex specialis

● Special rule prevails over general rule

● Lex specialis applies → jus dispositivum (rules and principles of international law from which the parties may derogate)

When GL shall prevail over SL:

1. Supremacy of general law may be inferred from its form or its nature or from intent of the parties.
2. When the application of the lex specialis might frustrate the purpose of general law
3. When the rights of a 3rd party acquired under general law may be negatively affected by the application of lex specialis
4. When the balance of rights and obligations established by general law would be negatively affected by the application of lex
specialis.

*no derogeration: peremptory norm

EX: existing jus cogens norm (valid); new jus cogens norm (inconsistent) → status of the treaty; void.

Lex superior

Lex posterori

General Principles
*gap filler provisions used by the ICJ → only used when no treaty or ICL applicable

Inferred from the domestic system of each country.

Judicial Decisions