WEEK 2

TREATY

Under the Vienna Convention on the Law on Treaties, 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.”

CASE DOCTRINES

In the case of Pimentel vs. Executive Secretary 1, the petitioner questioned the
ratification process of the Rome Statute creating the International Criminal Court
because there was no concurrence from the Senate. In deciding the case in favor of
respondent, the Court held that:

“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.”

The Court also made reference to the book of Justice Isagani Cruz in International
Law wherein the steps of treaty-making were laid down:

1. Negotiation may be undertaken directly by the head of state but he now

usually assigns this task to his authorized representatives. The negotiations
 may be brief or protracted, depending on the issues involved, and may even
“collapse” in case the parties are unable to come to an agreement on the
points under consideration.

2. If and when the negotiators finally decide on the terms of the treaty, the
same is opened for signature. The document is ordinarily signed in
accordance with the alternat, that is, each of the several negotiators is
allowed to sign first on the copy which he will bring home to his own state.

3. Ratification, which is the next step, is the formal act by which a state
confirms and accepts the provisions of a treaty concluded by its
representatives. The purpose of ratification is to enable the contracting
states to examine the treaty more closely and to give them an opportunity to
refuse to be bound by it should they find it inimical to their interests.

4. The last step in the treaty-making process is the exchange of the instruments
of ratification, which usually also signifies the effectivity of the treaty unless
a different date has been agreed upon by the parties. Where ratification is
dispensed with and no effectivity clause is embodied in the treaty, the
instrument is deemed effective upon its signature.

In the case of Bayan Muna vs. Romulo2, it was contended that executive
agreements executed by the President must also undergo concurrence by the
Senate. In ruling in favor of respondent, the Court, by citing a previous
jurisprudence, held that:
 “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.”

In the case of Pharmaceutical vs. Department of Health 3, it was alleged that

respondent’s revised implementing rules and regulation was inconsistent with the
provisions of the Milk Code. In its defense, respondent contended that the revised
rules implements also various international instruments. The Court made a
distinction between transformation and incorporation, to wit:

“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.”

Respondent contention is that its revised rules also contained provisions that were
adopted from the Resolutions of the World Health Assembly, the Court held that it
needed legislative action, to wit:
 “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.”

In the case of Province of North Cotabato vs. Government of the Republic of the
Philippines4, it was contended by petitioners that the Memorandum of Agreement
on Ancestral Domain was unconstitutional. In deciding the case in favor of
petitioner, the Court held that:

“The mere fact that in addition to the parties to the conflict, the peace
settlement is signed by representatives of states and international
organizations does not mean that the agreement is internationalized so as to
create obligations in international law.”

The Court also made a discussion regarding the right of self-determination by

citing a Canadian jurisprudence, to wit:

“126. The recognized sources of international law establish that the right to
self- determination of a people is normally fulfilled through internal self-
determination – a people’s pursuit of its political, economic, social and
cultural development within the framework of an existing state. A right to
external self- determination (which in this case potentially takes the form of
the assertion of a right to unilateral secession) arises in only the most
extreme of cases and, even then, under carefully defined circumstances.”

“External self-determination can be defined as in the following statement

from the Declaration on Friendly Relations, supra, as
 The establishment of a sovereign and independent State, the free association
or integration with an independent State or the emergence into any other
political status freely determined by a people constitute modes of
implementing the right of self- determination by that people.

“127. The international law principle of self-determination has evolved

within a framework of respect for the territorial integrity of existing states.
The various international documents that support the existence of a people’s
right to self- determination also contain parallel statements supportive of
the conclusion that the exercise of such a right must be sufficiently limited to
prevent threats to an existing state’s territorial integrity or the stability of
relations between sovereign states.”

In the Danube Dam Case5, the ICJ was called upon by the Hungarian and
Slovakian Government to decide as to the validity of the former’s withdrawal from
its treaty with the latter to construct the Gabćikovo-Nagymaros System of Locks
on the span of the Danube River. In rejecting Hungary’s argument regarding the
presence of state of necessity, the Court held that,

“It must have been occasioned by an “essential interest” of the State which
is the author of the act conflicting with one of its international obligations;
that interest must have been threatened by n “grave and imminent peril";
the act being challenged must have been the "only means" of safeguarding
that interest; that act must not have "seriously impaired an essential
interest" of the State towards which the obligation existed; and the State
which is the author of that act must not have "contributed to the occurrence
 of the state of necessity". Those conditions reflect customary international
law.”

In this case, the Court observes that, even if a state of necessity is found to exist, it
is not a ground for the termination of a treaty. It may only be invoked to exonerate
from its responsibility a State which has failed to implement a treaty.

In the case of Fuji vs. California6, it was contended by petitioner that aliens enjoy
the same protection as citizens even without a treaty by their respective countries
giving him the right to own a property under the UN Charter. In upholding the
validity of the prohibition, the California Supreme Court held that the UN Charter
was not self-executing, to wit:

“In determining whether a treaty is self-executing courts look to the intent

of the signatory parties as manifested by the language of the instrument,
and, if the instrument is uncertain, recourse may be had to the
circumstances surrounding its execution.”

CUSTOMARY INTERNATIONAL LAW

As citied in the Restatement (Third) of Foreign Relations Law of the United

States, custom or customary international law means “a general and consistent
practice of states followed by them from a sense of legal obligation.”

BASIC ELEMENTS OF A CUSTOM

There are two basic elements of customary international law.

First is the material factor, which pertains to the actual behavior of a state. This
can be traced to the duration or how long the custom has been practiced regardless
of its duration. It must also be uniformity and consistency in practicing the custom,
which must substantial.

Second is the subjective factor, which pertains to why the state behave in such a
way. The question that needs to be answered is do states behave the way day do
because they consider it as an obligation or as a matter of courtesy? If so, what are
the acceptable evidence of such practice? The burden of proving its existence falls
on the state claiming it.

CASE DOCTRINES

In the case of Mejof vs. Director of Prisons7, a petition for habeas corpus was filed
by an alien after being detained for several months since the Government was not
able to send him back to his country of origin. In granting the decision, the Court
held that:

“The protection against deprivation of liberty without due process of law

and except for crimes committed against the laws of the land is not limited
to Philippine citizens but extends to all residents, except enemy aliens,
regardless of nationality.”

In the case of Republic vs. Sandiganbayan8, it was contended by petitioner that

when the search and seizure was conducted, the bill of rights under the 1973
Constitution was not enforced. Since private respondent cannot invoke the
protection against unreasonable searches and seizures, the evidences gathered from
private respondent is admissible. In dismissing the petition, the Court held that:

“The revolutionary government, after installing itself as the de jure

government, assumed responsibility for the State’s good faith compliance
with the Covenant to which the Philippines is a signatory. Article 2(1) of the
Covenant requires each signatory State "to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant." Under Article 17(1) of the Covenant,
the revolutionary government had the duty to insure that "no one shall be
subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence."”

“The Declaration, to which the Philippines is also a signatory, provides in

its Article 17(2) that "no one shall be arbitrarily deprived of his property."
Although the signatories to the Declaration did not intend it as a legally
binding document, being only a declaration, the Court has interpreted the
Declaration as part of the generally accepted principles of international law
and binding on the State. Thus, the revolutionary government was also
obligated under international law to observe the rights of individuals under
the Declaration.”

The revolutionary government was obligated under the International Covenant on

Civil and Political Rights and the Universal Declaration Human Rights, such
guarantee extends to private respondent. Since some of the items seized was not
included in the search warrant, there was an unlawful search and seizure.
Therefore, the evidences would not be admissible in court.
In the case of Hong Kong vs. Olalia9, it was contended that the right of bail may
also be made available in extradition cases, despite being sui generis, which is
neither a civil or criminal action. The Court held that:

“The time-honored principle of pacta sunt servanda demands that the

Philippines honor its obligations under the Extradition Treaty it entered into
with the Hong Kong Special Administrative Region. Failure to comply with
these obligations is a setback in our foreign relations and defeats the
purpose of extradition. However, it does not necessarily mean that in
keeping with its treaty obligations, the Philippines should diminish a
potential extraditee’s rights to life, liberty, and due process. More so, where
these rights are guaranteed, not only by our Constitution, but also by
international conventions, to which the Philippines is a party. We should
not, therefore, deprive an extraditee of his right to apply for bail, provided
that a certain standard for the grant is satisfactorily met.”

In the Paquete Habana Case11, two fishing vessels were seized, along with its
crew and cargo, and were considered as prizes of war by the district court. After
rendering a decision, the two fishing vessels were sold off in a public auction. In
reversing the decision of the district court, the United States Court, citing words of
Justice Strong, held that:

“Undoubtedly no single nation can change the law of the sea. The law is of
universal obligation and no statute of one or two nations can create
obligations for the world. Like all the laws of nations, it rests upon the
common consent of civilized communities. It is of force, not because it was
 prescribed by any superior power, but because it has been generally
accepted as a rule of conduct. Whatever may have been its origin, whether
in the usages of navigation, or in the ordinances of maritime states, or n
both, it has become the law of the sea only by the concurrent sanction of
those nations who may be said to constitute the commercial world. Many of
the usages which prevail, and which have the force of law, doubtless
originated in the positive prescriptions of some single state, which were at
first of limited effect, but which, when generally accepted, became of
universal obligation.”

“This is not giving to the statutes of any nation extraterritorial effect. It is

not treating them as general maritime laws; but it is recognition of the
historical fact that by common consent of mankind these rules have been
acquiesced in as of general obligation. Of that fact, we think, we may take
judicial notice. Foreign municipal laws must indeed be proved as facts, but
it is not so with the law of nations.”

In the North Sea Case12, it was contended by Denmark and the Netherlands that
the equidistance principle must be regarded as a rule of customary international
law. In rejecting this argument, the ICJ did not considered the Geneva Convention
on the Continental Shelf as an emerging rule of customary international law
because any State has the right to make a reservation upon signing, ratifying or
acceding to the Convention. The ICJ held that:

“Furthermore, while a very widespread and representative participation in

a convention might show that a conventional rule had become a general
rule of international law, in the present case the number of ratifications and
 accessions so far was hardly sufficient. As regards the time element,
although the passage of only a short period of time was not necessarily a
bar to the formation of a new rule of customary international law on the
basis of what was originally a purely conventional rule, it was indispensable
that State practice during that period, including that of States whose
interests were specially affected, should have been both extensive and
virtually uniform in the sense of the provision invoked and should have
occurred in such a way as to show a general recognition that a rule of law
was involved.”

In the Nicaragua Case13, it was alleged that the United States was intervening in
the affairs of Nicaragua. The latter cited several military operations conducted by
US special agents in providing intelligence, training and resources to the contras to
overthrow the socialist government. Nicaragua also cited the mining of its port, the
conduct of aerial reconnaissance by the USAF in its territory, as well as attempts to
block economic and humanitarian aid to Nicaragua. The ICJ made a discussion
regarding the prohibition on the use of force and the right to self-defense, to wit:

“The general rule prohibiting force established in customary law allows for
certain exceptions. The exception of the right of individual or collective self-
defense is also, in the view of States. established in customary law as is
apparent for example from the terms of Article 51 of the UN Charter, which
refers to an "inherent right", and from the declaration in resolution 2625.
The Parties, who consider the existence of this right to be established as a
matter of customary international law, agree in holding that whether the
response to an attack is lawful depends on the observance of the criteria of
the necessity and the proportionality of the measures taken in self- defense.”
In resolving that issue, the ICJ does not believe that the concept of "armed attack"
includes assistance to rebels in the form of the provision of weapons or logistical
or other support. Furthermore. the ICJ finds that in customary international law,
whether of a general kind or that particular to the inter-American legal system,
there is no rule permitting the exercise of collective self-defense in the absence of a
request by the State which is a victim of the alleged attack, this being additional to
the requirement that the State in question should have declared itself to have been
attacked.14

The ICJ also discussed the principle of non-intervention, where it was contended
that the United States was interfering in the internal affairs of Nicaragua, it held
that:

“As to the content of the principle in customary law, the Court defines the
constitutive elements which appear relevant in the case, a prohibited
intervention must be one bearing on matters in which each State is
permitted, by the principle of State sovereignty, to decide freely (for example
the choice of a political, economic, social and cultural system, and
formulation of foreign policy). Intervention is wrongful when it uses, in
regard to such choices, methods of coercion, particularly force, either in the
direct form of military action or in the indirect form of support for
subversive activities in another State.”

In resolving the issue on whether or not the United States violated the sovereignty
of Nicaragua, the ICJ held that:
 “The assistance to the contras, the direct attacks on Nicaraguan ports, oil
installations, etc., the mining operations in Nicaraguan ports, and the acts
of intervention involving the use of force referred to in the Judgment, which
are already a breach of the principle of non-use of force, are also an
infringement of the principle of respect for territorial sovereignty. This
principle is also directly infringed by the unauthorized overflight of
Nicaraguan territory. These acts cannot be justified by the activities in El
Salvador attributed to Nicaragua; assuming that such activities did in fact
occur, they do not bring into effect any right belonging to the US. The Court
also concludes that, in the context of the present proceedings, the laying of
mines in or near Nicaraguan ports constitutes an infringement, to
Nicaragua's detriment, of the freedom of communications and of maritime
commerce.”

In his dissenting opinion in the South-West Africa Cases14, Judge Tanaka opined
that:

“Briefly, the method of the generation of customary international law is in

the stage of transformation from being an individualistic process to being a
collectivistic process. This phenomenon can be said to be the adaptation of
the traditional creative process of international law to the reality of the
growth of the organized international community. It can be characterized,
considered from the sociological viewpoint, as a transition from traditional
custom-making to international legislation by treaty.”
 REFERENCE

1. Joaquin G. Bernas, Public International Law (2009 Ed.)

CASE LIST

1. Pimentel v. Executive Secretary, (G.R. No. 158088, July 6, 2005)

2. Bayan Muna v. Romulo, (G.R. No. 159618, Feb. 1, 2011)
3. Pharmaceutical v. DOH, (G.R. No. 173034, Oct. 9, 2007)
4. Province of North Cotabato v. Government Peace Panel, (G.R. No. 183591, Oct. 14,
2008)
5. Danube Dam Case (Hungary v. Slovakia, 37 ILM, 1998)
 Link: https://www.icj-cij.org/files/case-related/92/7377.pdf
6. Sei Fujii v. California (242 P. 2d 617; 19 ILR 312, 1952)
7. Mejoff v. Director of Prisons, (G.R. No. L-4254, Sept. 26, 1951)
8. Republic v. Sandiganbayan, (G.R. No. 104768, July 21, 2003)
9. Hong Kong Special Administrative Region v. Olalia, (G.R. No. 153675, April 19, 2007)
10. The Paquete Habana, (175 U.S. 677, 1900)
11. The Asylum Case (Colombia v. Peru, 17 I.L.R. 28; I.C.J. Reports, 1950)
 Link: https://www.icj-cij.org/files/case-related/7/1851.pdf
12. North Sea Continental Shelf Cases, (1969 I.C.J. 3.)
 Link: https://www.icj-cij.org/files/case-related/52/5563.pdf
13. Military & Paramilitary Activities (Nicaragua v. U.S., I.C.J. Reports, 1986)
 Link: https://www.icj-cij.org/files/case-related/70/6505.pdf
14. Dissenting Opinion of Judge Tanaka (I.C.J. Reports, 1966)
 Link: https://www.icj-cij.org/files/case-related/47/047-19660718-JUD-01-06
EN.pdf