Public International Law

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 What is Public International Law?

International law consists of the body of rules &

procedures that are intended to govern relations
between nations or states.

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 Scope of Public International Law
Public International Law not only governs the relationships
between national governments, but also relationships
between intergovernmental organizations, and relationships
between national governments and intergovernmental
organizations, and to a certain extent individuals.

3
International law is a separate legal system in contrast
to law of the individual state which is referred to as
the internal/ domestic/ municipal law.

It regulates governments and intergovernmental

organizations across national boundaries.

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Subjects of International Law

1. States
2. International Organizations
3. Individuals

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States

International Community 6
States States

International Community 7
 States States

International
Organizations

International Community 8
 States States

International Individuals
Organizations

International Community
 Private International Law
Governs the choice of law when there are
conflicts in the municipal law of different
countries related to private transactions.

Private international law deals with topics such

as contracts, marriage and divorce, jurisdiction,
recognition of judgments, child adoption and
child abduction.

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 Foreign Law
Foreign law is essentially national law such as
constitutions, statutes, regulations, and court
decisions.

It does not have effect outside the national

boundaries, but it may regulate foreign
entities.

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 Sources of Public International Law
Article 38 of the Statute of the International Court of Justice lists four
sources of public law that the court will apply:

a. International conventions, whether general or particular,

establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as
law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 5 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.

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(1) International Agreements/Conventions.
(2) Customary International Law (general practice).
(3) General Principles of law (recognized by nations).
(4) Judicial Decisions of International & National
Courts (secondary sources)
(5) Writings of International Law Scholars (secondary
sources).

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 Basic Concepts/Principles

1. Obligations erga omnes

2. Jus cogens

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 Obligations erga omnes
(Latin: in relation to everyone)

- obligations owed by States towards the community of states as a whole.

- Dictum of Barcelona Traction Case (1970), ICJ declared four erga omnes obligations:

1. Outlawing acts of aggression;

2. Outlawing acts of genocide;
3. Protection from slavery;
4. Protection from racial discrimination;

5. Obligation to respect the principle of self-determination (Case concerning East

Timor; Advisory Opinion on the Legal Consequence of the Construction of a Wall in
the Occupied Palestine Territory)
6. Obligation against the use of torture (ICTY, Furundzija case)

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 Jus Cogens
(literally, compelling law)

- derived from the customary international law

- refers to norms that command peremptory authority, superseding conflicting treaties

and custom. Jus cogens norms are considered peremptory in the sense that they are
mandatory, do not admit derogation, and can be modified only by general international
norms of equivalent authority.

Examples:

1. Prohibition against crimes against humanity;

2. Prohibition against genocide;
3. Prohibition against human trafficking;
4. Prohibition against torture;
4. Maritime Piracy;

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 Hard Law from Soft Law

Hard law- refers to binding international legal norms or those which have coercive
character.

Examples of “hard law” are the provisions of the U.N. Charter, the Vienna Convention
on Diplomatic Relations, the Geneva Conventions of 1949 and other treaties in force.

Soft law - refers to norms that are non-binding in character but still have legal relevance.
Examples of “soft law” are resolutions of the U.N. General Assembly and draft articles
of the International Law Commission.

Soft law usually serves as a precursor of hard law. The Universal Declaration of Human
Rights is one such example. It was a “soft law” when it was adopted by resolution of the
U.N. General Assembly in 1948, but it has led to the development of “hard law” with
the adoption of two binding covenants on human rights, i.e., the International Covenant
on Civil and Political Rights andthe International Covenant on Economic, Social and
Cultural Rights.

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 Subjects of International Law
Government of Hong Kong Special Administrative Region
vs. Hon Felixberto T. Olalia, et al.

April 19, 2007 G.R. No. 153675

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The Republic of the Philippines and the then British Crown Colony of
Hong Kong signed an "Agreement for the Surrender of Accused and
Convicted Persons." It took effect on June 20, 1997. On July 1, 1997,
Hong Kong reverted back to the People’s Republic of China and became
the Hong Kong Special Administrative Region.

Muñoz was charged before the Hong Kong Court with the offense of
"accepting an advantage as agent" and with the offense of conspiracy to
defraud. Warrants of arrest were issued against him in Hong Kong.

Upon request by the Hong Kong Department of Justice, Munoz was

arrested by the National Bureau of Investigation (NBI) under a provisional
warrant of arrest applied for by the Philippine DOJ and issued by the RTC
of Manila.

Can Munoz post bail?

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Bail is not allowed pursuant to Government of United States of America
v. Hon. Guillermo G. Purganan.

However, this Court cannot ignore the following trends in international

law: (1) the growing importance of the individual person in public
international law who, in the 20th century, has gradually attained global
recognition; (2) the higher value now being given to human rights in the
international sphere; (3) the corresponding duty of countries to observe
these universal human rights in fulfilling their treaty obligations; and (4)
the duty of this Court to balance the rights of the individual under our
fundamental law, on one hand, and the law on extradition, on the other.

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The modern trend in public international law is the primacy placed on
the worth of the individual person and the sanctity of human rights.
Slowly, the recognition that the individual person may properly be a
subject of international law is now taking root.

The vulnerable doctrine that the subjects of international law are

limited only to states was dramatically eroded towards the second half
of the past century. For one, the Nuremberg and Tokyo trials after
World War II resulted in the unprecedented spectacle of individual
defendants for acts characterized as violations of the laws of war,
crimes against peace, and crimes against humanity. Recently, under the
Nuremberg principle, Serbian leaders have been persecuted for war
crimes and crimes against humanity committed in the former
Yugoslavia. These significant events show that the individual person is
now a valid subject of international law.

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On a more positive note, also after World War II, both international
organizations and states gave recognition and importance to human
rights. Thus, on December 10, 1948, the United Nations General
Assembly adopted the Universal Declaration of Human Rights in which
the right to life, liberty and all the other fundamental rights of every
person were proclaimed.

While not a treaty, the principles contained in the said Declaration are
now recognized as customarily binding upon the members of the
international community. Thus, in Mejoff v. Director of Prisons, this
Court, in granting bail to a prospective deportee, held that under the
Constitution, the principles set forth in that Declaration are part of the
law of the land. In 1966, the UN General Assembly also adopted the
International Covenant on Civil and Political Rights which the Philippines
signed and ratified. Fundamental among the rights enshrined therein are
the rights of every person to life, liberty, and due process.
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The Philippines, along with the other members of the family of nations,
committed to uphold the fundamental human rights as well as value the
worth and dignity of every person. This commitment is enshrined in
Section II, Article II of our Constitution which provides: "The State
values the dignity of every human person and guarantees full respect for
human rights."

The Philippines, therefore, has the responsibility of protecting and

promoting the right of every person to liberty and due process, ensuring
that those detained or arrested can participate in the proceedings before a
court, to enable it to decide without delay on the legality of the detention
and order their release if justified. In other words, the Philippine
authorities are under obligation to make available to every person under
detention such remedies which safeguard their fundamental right to
liberty. These remedies include the right to be admitted to bail.

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 Subjects of International Law

States

International
Individuals
Organizations

International Community 24
 What is a State?
- The state is the fundamental entity of international law.
1933 Montevideo Convention on the Rights and Duties of States

Art. 1. The state as a person of international law should possess

the following qualifications: (a) a permanent population; (b) a
defined territory; (c) government; and (d) capacity to enter into
relations with the other states.

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Legal Criteria for Statehood

1. Population of people
2. Territory
3. Government
4. Independence

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 Sovereign State
- Autonomous - internal self-governing - supreme –
independent of all alien dominion. Right to equality and
respect, the right to inviolability of territory and citizens and
other entitlements.

UN Charter Art. 2, paragraph 1. recognizes the sovereignty

of the state –

“The Organization and its Members, in pursuit of the

Purposes stated in Article 1, shall act in accordance with the
following Principles:
1. The Organization is based on the principle of the sovereign
equality of all its members.”

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Difference between a State and a Nation

State - political/geopolitical entity

Nation - cultural/ethnic entity

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Recognition of State

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 1933 Montevideo Convention
on the Rights and Duties of States

Declarative Theory of Statehood

Article 3. The political existence of the state is independent
of recognition by the other states.

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 Constitutive Theory of Statehood
Some have opposed the Declarative Theory, as they allow less-
recognized entities like the Republic of China or even entirely
non-recognized entities like the Principality of Sealand to claim
full status as states. According to the alternative , a state exists
only insofar as it is recognized by other states.

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Recognition of Government

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Guaranty Trust Co. of New York v. United States, 304 U.S. 126 (1938)

- Which government is to be regarded as the recognized representative of

a foreign sovereign state is a political question, not judicial. It is to be
determined by the executive, whose decision will be conclusive on all
domestic courts.

There is no requirement under international law to recognize a foreign

government.

It is possible to recognize a state — its borders and people at least — yet

not recognize the governing authority. Like the United States did with
Vietnam and Burma.

A State can also recognize a government yet choose not to have diplomatic
relations with it. For example, U.S. recognizes Castro’s government in
Cuba, but it does maintain an embassy there.
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Act of State Doctrine
PCGG vs. SANDIGANBAYAN, ET AL,
G.R. No. 124772, August 14, 2007

34
 In connection with criminal proceedings initiated in the Philippines to
locate, sequester and seek restitution of alleged ill-gotten wealth amassed
by the Marcoses and other accused from the Philippine Government, the
Office of the Solicitor General (OSG) wrote the Federal Office for Police
Matters in Berne, Switzerland, requesting assistance for the latter office to:

(a) ascertain and provide the OSG with information as to where and in
which cantons the ill-gotten fortune of the Marcoses and other accused
are located, the names of the depositors and the banks and the amounts
involved; and (b) take necessary precautionary measures, such as
sequestration, to freeze the assets in order to preserve their existing value
and prevent any further transfer thereof.

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The Office of the District Attorney in Zurich, pursuant to the OSG’s
request, issued an Order directing the Swiss Banks in Zurich to freeze the
accounts of the accused in PCGG I.S. No. 1 and in the “List of Companies
and Foundations.” In compliance with said Order, Bankers Trust A.G.
(BTAG) of Zurich froze the accounts of Officeco Holdings, N.V.
(Officeco).

Officeco appealed the Order of the District Attorney to the Attorney

General of the Canton of Zurich who denied the same. Officeco further
appealed to the Swiss Federal Court which likewise dismissed the appeal.

Thereafter, Officeco made representations with the OSG and the PCGG
for them to officially advise the Swiss Federal Office for Police Matters to
unfreeze Officeco’s assets. The PCGG required Officeco to present
countervailing evidence to support its request.

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 Instead of complying with the PCGG requirement for it to submit
countervailing evidence, Officeco filed the complaint with the
Sandiganbayan. The complaint prayed for the PCGG and the OSG to
officially advise the Swiss government to exclude from the freeze or
sequestration order the account of Officeco with BTAG and to
unconditionally release the said account to Officeco.

The PCGG filed a motion to dismiss which was denied by the

Sandiganbayan. A motion for reconsideration was likewise denied.
Hence, the petition before the Supreme Court.

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 “The act of state doctrine is one of the methods by which States
prevent their national courts from deciding disputes which relate to the
internal affairs of another State, the other two being immunity and non-
justiciability. It is an avoidance technique that is directly related to a State’s
obligation to respect the independence and equality of other States by
not requiring them to submit to adjudication in a national court or to
settlement of their disputes without their consent. It requires the forum
court to exercise restraint in the adjudication of disputes relating to
legislative or other governmental acts which a foreign State has
performed within its territorial limits.”

38
 “It is PCGG’s contention that the Sandiganbayan “could not grant or
deny the prayers in [Officeco’s] complaint without first examining and
scrutinizing the freeze order of the Swiss officials in the light of the
evidence, which however is in the possession of said officials” and that it
would therefore “sit in judgment on the acts of the government of
another country.” We disagree.

The parameters of the use of the act of state doctrine were clarified in
Banco Nacional de Cuba v. Sabbatino. There, the U.S. Supreme Court
held that international law does not require the application of this
doctrine nor does it forbid the application of the rule even if it is claimed
that the act of state in question violated international law. Moreover, due
to the doctrine’s peculiar nation-to-nation character, in practice the usual
method for an individual to seek relief is to exhaust local remedies and
then repair to the executive authorities of his own state to persuade them
to champion his claim in diplomacy or before an international tribunal.”

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“Even assuming that international law requires the application of
the act of state doctrine, it bears stressing that the Sandiganbayan
will not examine and review the freeze orders of the concerned
Swiss officials in Civil Case No. 0164.

The Sandiganbayan will not require the Swiss officials to submit to

its adjudication nor will it settle a dispute involving said officials. In
fact, as prayed for in the complaint, the Sandiganbayan will only
review and examine the propriety of maintaining PCGG’s position
with respect to Officeco’s accounts with BTAG for the purpose of
further determining the propriety of issuing a writ against the
PCGG and the OSG.

Everything considered, the act of state doctrine finds no

application in this case and petitioners’ resort to it is utterly
mislaid.”
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Doctrine of Incorporation

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 1987 Philippine Constitution
! Section II, Article II of the 1987 Constitution provides:
“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.

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 Civil Code & Revised Penal Code

! Article 14 of the Civil Code provides: “[p]enal laws and those of public
security and safety shall be obligatory upon all who live and sojourn in
the Philippine territory, subject to the principles of public international
law and to treaty stipulations.

! The Revised Penal Code provides: “Except as provided in the treaties

and laws of preferential application, the provisions of this Code shall be
enforced not only within the Philippine Archipelago, including its
atmosphere, its interior waters and maritime zone but also outside of its
jurisdiction ….. (x x x x x)

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! Clarifying the term “generally-accepted principles of international law”
during the deliberations of the 1987 Constitutional Commission,
Commissioner Adolfo S. Azcuna points out that “(w)hen we talk of
generally-accepted principles of international law as part of the law of
the land, we mean that it is part of the statutory part of laws, not of the
Constitution.

! Thus, the phrase “as part of the law of the land” in the incorporation
clause refers to the levels of legal rules below the Constitution such as
legislative acts and judicial decisions. It is incorrect to so interpret this
phrase as including the Constitution itself because it would mean that
the “generally-accepted principles of international law” falls in parity
with the Constitution.

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Ang LADLAD LGBT Party vs. COMELEC
[G.R. No. 190582. April 8, 2010]

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 Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope

and promise, international human rights law, in particular, has grown
dynamically in its attempt to bring about a more just and humane
world order. For individuals and groups struggling with inadequate
structural and governmental support, international human rights norms
are particularly significant, and should be effectively enforced in
domestic legal systems so that such norms may become actual, rather
than ideal, standards of conduct.

Our Decision today is fully in accord with our international obligations

to protect and promote human rights. In particular, we explicitly
recognize the principle of non-discrimination as it relates to the right
to electoral participation, enunciated in the UDHR and the ICCPR.

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 The principle of non-discrimination is laid out in Article 26 of the
ICCPR, as follows:

“All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.”

In this context, the principle of non-discrimination requires that laws of

general application relating to elections be applied equally to all persons,
regardless of sexual orientation. Although sexual orientation is not
specifically enumerated as a status or ratio for discrimination in Article 26
of the ICCPR, the ICCPR Human Rights Committee has opined that the
reference to “sex” in Article 26 should be construed to include “sexual
orientation.”
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Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited
under various international agreements.

The UDHR provides:

Article 21.
(1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.

Likewise, the ICCPR states:

Article 25 Every citizen shall have the right and the opportunity,
without any of the distinctions mentioned in article 2 and without
unreasonable restrictions: (a) To take part in the conduct of public
affairs, directly or through freely chosen representatives;
48
We stress, however, that although this Court stands willing to assume
the responsibility of giving effect to the Philippines’ international law
obligations, the blanket invocation of international law is not the
panacea for all social ills.

We refer now to the petitioner’s invocation of the Yogyakarta

Principles (the Application of International Human Rights Law In
Relation to Sexual Orientation and Gender Identity), which petitioner
declares to reflect binding principles of international law. At this time,
we are not prepared to declare that these Yogyakarta Principles contain
norms that are obligatory on the Philippines. There are declarations
and obligations outlined in said Principles which are not reflective of
the current state of international law, and do not find basis in any of
the sources of international law enumerated under Article 38(1) of the
Statute of the International Court of Justice.

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Using even the most liberal of lenses, these Yogyakarta Principles,
consisting of a declaration formulated by various international law
professors, are – at best – de lege ferenda (a proposed principle that
can be applied to a given situation) – and do not constitute binding
obligations on the Philippines. Indeed, so much of contemporary
international law is characterized by the “soft law” nomenclature,
i.e., international law is full of principles that promote international
cooperation, harmony, and respect for human rights, most of which
amount to no more than well-meaning desires, without the support
of either State practice or opinio juris.

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International School Alliance of Educators
vs. Hon. Leonardo A. Quisumbing
[G.R. No. 128845. June 1, 2000]

51
! That public policy abhors inequality and discrimination is
beyond contention. Our Constitution and laws reflect the policy
against these evils. The Constitution in the Article on Social
Justice and Human Rights exhorts Congress to "give highest
priority to the enactment of measures that protect and enhance
the right of all people to human dignity, reduce social,
economic, and political inequalities." The very broad Article 19
of the Civil Code requires every person, "in the exercise of his
rights and in the performance of his duties, [to] act with justice,
give everyone his due, and observe honesty and good faith.

52
! International law, which springs from general principles of law,
likewise proscribes discrimination. General principles of law
include principles of equity, i.e., the general principles of fairness
and justice, based on the test of what is reasonable. The
Universal Declaration of Human Rights, the International
Covenant on Economic, Social, and Cultural Rights, the
International Convention on the Elimination of All Forms of
Racial Discrimination, the Convention against Discrimination in
Education, the Convention (No. 111) Concerning Discrimination
in Respect of Employment and Occupation - all embody the
general principle against discrimination, the very antithesis of
fairness and justice. The Philippines, through its Constitution, has
incorporated this principle as part of its national laws.

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The fact that international law has been made part of the
law of the land does not by any means imply the primacy of
international law over national law in the municipal sphere.

Under the doctrine of incorporation as applied in most

countries, rules of International Law are given a standing
equal, not superior, to national legislative enactments.

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Doctrine of State Immunity from Suit

55
German Agency for Technical Cooperation, et al.
vs. Court of Appeals
[G.R. No. 152318. April 16, 2009

56
On 7 September 1971, the governments of the Federal Republic of Germany
and the Republic of the Philippines ratified an Agreement concerning Technical
Co-operation (Agreement) in Bonn, capital of what was then West Germany.
The Agreement affirmed the countries’ “common interest in promoting the
technical and economic development of their States, and recogni[zed] the
benefits to be derived by both States from closer technical co-operation,” and
allowed for the conclusion of “arrangements concerning individual projects of
technical co-operation.

In furtherance of the 1971 Agreement, on 10 December 1999, the Philippine

government and the German government, agreed to an Arrangement. This
Arrangement affirmed the common commitment of both governments to
promote jointly a project called, Social Health Insurance—Networking and
Empowerment (SHINE), which was designed to “enable Philippine families–
especially poor ones–to maintain their health and secure health care of
sustainable quality.”

57
In the arrangement, both governments likewise named their respective
implementing organizations for SHINE. The Philippines designated the
Department of Health (DOH) and the Philippine Health Insurance
Corporation (Philhealth) with the implementation of SHINE. For their part,
the German government “charge[d] the Deustche Gesellschaft für Technische
Zusammenarbeit (GTZ) GmbH, Eschborn, with the implementation of its
contributions.

Several persons were then engaged by GTZ as contract employees to work for
SHINE on various dates between December of 1998 to September of 1999.
The employment contracts all specified Dr. Rainer Tollkotter, identified as an
adviser of GTZ, as the “employer.” At the same time, all the contracts
commonly provided that “[i]t is mutually agreed and understood that [Dr.
Tollkotter, as employer] is a seconded GTZ expert who is hiring the Employee
on behalf of GTZ and for a Philippine-German bilateral project named ‘Social
Health Insurance—Networking and Empowerment (SHINE)’ which will end at
a given time.

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Thereafter. Anne Nicolay (Nicolay) assumed the post of SHINE Project
Manager. Disagreements arose between Nicolay and the Filipino contractual
employees on the direction of the project. The dispute culminated in a letter
signed by the employees, addressed to Nicolay, and copies furnished officials of
the DOH, Philheath, and the director of the Manila office of GTZ.

The letter ended with these words:

“The issues that we [the private respondents] have stated here are very crucial to
us in working for the project. We could no longer find any reason to stay with the
project unless ALL of these issues be addressed immediately and appropriately.”

The letter was construed by Nicolay to be a letter of resignation and she wrote
the employees that she was accepting the same.

The employees then sued for illegal dismissal.

59
GTZ, through counsel, filed a Motion to Dismiss, on the ground that the Labor
Arbiter had no jurisdiction over the case, as its acts were undertaken in the
discharge of the governmental functions and sovereign acts of the Government
of the Federal Republic of Germany.

This was opposed by private respondents with the arguments that GTZ had
failed to secure a certification that it was immune from suit from the
Department of Foreign Affairs, and that it was GTZ and not the German
government which had implemented the SHINE Project and entered into the
contracts of employment.

Labor Arbiter denied the motion and proceeded to rule on the dispute in favor
of the private respondents. GTZ brings the matter to the Court of Appeals
which rules against it. Case is brought up to the Supreme Court.

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 Argument of GTZ

- The SHINE project was implemented pursuant to the bilateral agreements between the
Philippine and German governments. GTZ was tasked, under the 1991 agreement, with the
implementation of the contributions of the German government. The activities performed
by GTZ pertaining to the SHINE project are governmental in nature, related as they are to
the promotion of health insurance in the Philippines. The fact that GTZ entered into
employment contracts with the private respondents did not disqualify it from invoking
immunity from suit, as held in cases such as Holy See v. Rosario, Jr., which set forth what
remains valid doctrine:

“Certainly, the mere entering into a contract by a foreign state with a private party cannot be
the ultimate test. Such an act can only be the start of the inquiry. The logical question is
whether the foreign state is engaged in the activity in the regular course of business. If the
foreign state is not engaged regularly in a business or trade, the particular act or transaction
must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an
incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or
profit.”

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While GTZ was not performing proprietary functions notwithstanding its entry
into the particular employment contracts. Yet there is an equally fundamental
premise which GTZ failed to address, namely: Is GTZ, by conception, able to
enjoy the Federal Republics immunity from suit?

The principle of state immunity from suit, whether a local state or a foreign
state, is reflected in Section 9, Article XVI of the Constitution, which states
that the State may not be sued without its consent. Who or what consists of the
State? For one, the doctrine is available to foreign States insofar as they are
sought to be sued in the courts of the local State, necessary as it is to avoid
unduly vexing the peace of nations.

If the instant suit had been brought directly against the Federal Republic of
Germany, there would be no doubt that it is a suit brought against a State, and
the only necessary inquiry is whether said State had consented to be sued.
However, the present suit was brought against GTZ. It is necessary for us to
understand what precisely are the parameters of the legal personality of GTZ.

62
 Ruling

While GTZ may be an implementing agency of the German

Government, such does not automatically invest it with the ability to
invoke State immunity from suit. The distinction lies in whether the
agency is incorporated or unincorporated.

GTZ did not supply any evidence defining its legal nature beyond that
of the bare descriptive “implementing agency.” Inherently, an agent acts
in behalf of a principal, and the GTZ can be said to act in behalf of the
German state. But that is as far as “implementing agency” could take us.
The term by itself does not supply whether GTZ is incorporated or
unincorporated, whether it is owned by the German state or by private
interests, whether it has juridical personality independent of the German
government or none at all.

63
State immunity from suit may be waived by general or special law. The
special law can take the form of the original charter of the incorporated
government agency.

Jurisprudence is replete with examples of incorporated government agencies

which were ruled not entitled to invoke immunity from suit, owing to
provisions in their charters manifesting their consent to be sued. These
include the National Irrigation Administration, the former Central Bank, and
the National Power Corporation.

64
When a state or international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the Foreign Office of
the state where it is sued to convey to the court that said defendant is
entitled to immunity.

In the United States, the procedure followed is the process of

"suggestion," where the foreign state or the international organization
sued in an American court requests the Secretary of State to make a
determination as to whether it is entitled to immunity. If the Secretary of
State finds that the defendant is immune from suit, he, in turn, asks the
Attorney General to submit to the court a "suggestion" that the defendant
is entitled to immunity. In England, a similar procedure is followed, only
the Foreign Office issues a certification to that effect instead of
submitting a "suggestion".

65
In the Philippines, the practice is for the foreign government or the
international organization to first secure an executive endorsement of its claim
of sovereign or diplomatic immunity. But how the Philippine Foreign Office
conveys its endorsement to the courts varies.

In International Catholic Migration Commission v. Calleja, 190 SCRA 130

(1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary
of Labor and Employment, informing the latter that the respondent-employer
could not be sued because it enjoyed diplomatic immunity.

In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of

Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57
SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to
request the Solicitor General to make, in behalf of the Commander of the
United States Naval Base at Olongapo City, Zambales, a "suggestion" to
respondent Judge. The Solicitor General embodied the "suggestion" in a
Manifestation and Memorandum as amicus curiae.

66
This decision should not be seen as deviation from the more common
methodology employed in ascertaining whether a party enjoys State immunity
from suit, one which focuses on the particular functions exercised by the party
and determines whether these are proprietary or sovereign in nature. The
nature of the acts performed by the entity invoking immunity remains the most
important barometer for testing whether the privilege of State immunity from
suit should apply.

At the same time, our Constitution stipulates that a State immunity from suit is
conditional on its withholding of consent; hence, the laws and circumstances
pertaining to the creation and legal personality of an instrumentality or agency
invoking immunity remain relevant. Consent to be sued, as exhibited in this
decision, is often conferred by the very same statute or general law creating the
instrumentality or agency.

67
China National Machinery & Equipment Corp.
vs.
Hon. Cesar D. Santamaria, et. al
[G.R. No. 185572. February 7, 2002

68
The Export Import Bank of China and the Department of Finance of
the Philippines entered into a Memorandum of Understanding, wherein
China agreed to extend Preferential Buyers Credit to the Philippine
government to finance the Northrail Project.

The Chinese government designated EXIM Bank as the lender, while the
Philippine government named the DOF as the borrower.

China National Machinery & Equipment Corp. (CNMEG) was then

designated by China as the Prime Contractor for the project. After the
construction agreement was signed, several persons, including Prof.
Harry Roque, filed with the Regional Trial Court of Makati a complaint
for annulment of contract and injunction. CNMEG filed a motion to
dismiss on the grounds that it was an agent of the Chinese government,
making it immune from suit, and (b) the subject matter, as the Northrail
Project was a product of an executive agreement. The motion was denied
causing CNMEG to seek redress from the Supreme Court.

69
 Two Theories on State Immunity

Classical or Absolute Theory - a sovereign cannot, without its consent, be

made a respondent in the courts of another sovereign.

Restrictive Theory - the immunity of the sovereign is recognized only with

regard to public acts or acts jure imperii of a state, but not with regard to
private acts or acts jure gestionis.

- The restrictive theory came about because of the entry of sovereign states
into purely commercial activities remotely connected with the discharge of
governmental functions. This is particularly true with respect to the
Communist states which took control of nationalized business activities
and international trading.

70
The Philippines adheres to the Restrictive Theory.

- the existence of a contract does not, per se, mean that sovereign states
may, at all times, be sued in local courts. The complexity of relationships
between sovereign states, brought about by their increasing commercial
activities, mothered a more restrictive application of the doctrine.

xxx xxx xxx

As it stands now, the application of the doctrine of immunity from suit

has been restricted to sovereign or governmental activities (jure
imperii). The mantle of state immunity cannot be extended
to commercial, private and proprietary acts (jure gestionis).

71
Since the Philippines adheres to the restrictive theory, it is crucial to
ascertain the legal nature of the act involved whether the entity claiming
immunity performs governmental, as opposed to proprietary, functions.

As held in United States of America v. Ruiz:

The restrictive application of State immunity is proper only when the

proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent to be
sued only when it enters into business contracts. It does not apply where
the contract relates to the exercise of its sovereign functions.

72
Following the principles in the. GTZ case, it is readily apparent that
CNMEG cannot claim immunity from suit, even if it contends that it
performs governmental functions.

Its designation as the Primary Contractor does not automatically grant it

immunity, just as the term implementing agency has no precise definition
for purposes of ascertaining whether GTZ was immune from suit.

Although CNMEG claims to be a government-owned corporation, it

failed to adduce evidence that it has not consented to be sued under
Chinese law. Thus, following this Courts ruling in GTZ, in the absence of
evidence to the contrary, CNMEG is to be presumed to be a government-
owned and -controlled corporation without an original charter. As a result,
it has the capacity to sue and be sued under Section 36 of the Corporation
Code.

73
Republic of Indonesia vs. James Vinzon
[G.R. No. 154705. June 26, 2003]

74
Republic of Indonesia into a Maintenance Agreement in August 1995 with James
Vinzon, sole proprietor of Vinzon Trade and Services.

The Maintenance Agreement stated that Vinzon shall, for a consideration, maintain
specified equipment at the Embassy Main Building, Embassy Annex Building and
the Wisma Duta, the official residence of petitioner Ambassador Soeratmin. The
equipment covered by the Maintenance Agreement are air conditioning units,
generator sets, electrical facilities, water heaters, and water motor pumps.

It is likewise stated therein that the agreement shall be effective for a period of
four years and will renew itself automatically unless cancelled by either party by
giving thirty days prior written notice from the date of expiry.

Thereafter, when Minister Counsellor Kasim assumed the position of Chief of

Administration in March 2000, he allegedly found respondent’s work and services
unsatisfactory and not in compliance with the standards set in the Maintenance
Agreement. Hence, the Indonesian Embassy terminated the agreement.

75
Vinzon filed a complaint against Republic of Indonesia who then filed a Motion
to Dismiss, alleging that the it, as a foreign sovereign State, has sovereign
immunity from suit and cannot be sued as a party-defendant in the Philippines.

The said motion further alleged that Ambassador Soeratmin and Minister
Counsellor Kasim are diplomatic agents as defined under the Vienna
Convention on Diplomatic Relations and therefore enjoy diplomatic immunity.
In turn, respondent filed on March 20, 2001, an Opposition to the said motion
alleging that the Republic of Indonesia has expressly waived its immunity from
suit. He based this claim upon the following provision in the Maintenance
Agreement:

“Any legal action arising out of this Maintenance Agreement shall be settled
according to the laws of the Philippines and by the proper court of Makati City,
Philippines.”

76
 Ruling

International law is founded largely upon the principles of reciprocity,

comity, independence, and equality of States which were adopted as part
of the law of our land under Article II, Section 2 of the 1987
Constitution.

The rule that a State may not be sued without its consent is a necessary
consequence of the principles of independence and equality of States. As
enunciated in Sanders v. Veridiano II, the practical justification for the
doctrine of sovereign immunity is that there can be no legal right against
the authority that makes the law on which the right depends. In the case
of foreign States, the rule is derived from the principle of the sovereign
equality of States, as expressed in the maxim par in parem non habet
imperium. All states are sovereign equals and cannot assert jurisdiction
over one another. A contrary attitude would “unduly vex the peace of
nations.”
77
 Sovereign Immunity Principles

1. Domestic application

-there can be no legal right against the authority that makes the law on
which the right depends.

2. In the case of foreign States

- the rule is derived from the principle of the sovereign equality of States, as
expressed in the maxim par in parem non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another.

78
The rules of International Law, however, are neither unyielding nor
impervious to change. The increasing need of sovereign States to enter
into purely commercial activities remotely connected with the discharge
of their governmental functions brought about a new concept of
sovereign immunity. This concept, the restrictive theory, holds that the
immunity of the sovereign is recognized only with regard to public acts
or acts jure imperii, but not with regard to private acts or acts jure
gestionis.

In United States v. Ruiz, for instance, we held that the conduct of

public bidding for the repair of a wharf at a United States Naval
Station is an act jure imperii. On the other hand, we considered as an
act jure gestionis the hiring of a cook in the recreation center catering
to American servicemen and the general public at the John Hay Air
Station in Baguio City, as well as the bidding for the operation of
barber shops in Clark Air Base in Angeles City.
79
Apropos the present case, the mere entering into a contract by a foreign
State with a private party cannot be construed as the ultimate test of
whether or not it is an act jure imperii or jure gestionis. Such act is only
the start of the inquiry. Is the foreign State engaged in the regular
conduct of a business? If the foreign State is not engaged regularly in a
business or commercial activity, and in this case it has not been shown
to be so engaged, the particular act or transaction must then be tested
by its nature. If the act is in pursuit of a sovereign activity, or an
incident thereof, then it is an act jure imperii.

80
“Hence, the existence alone of a paragraph in a contract stating that any
legal action arising out of the agreement shall be settled according to
the laws of the Philippines and by a specified court of the Philippines is
not necessarily a waiver of sovereign immunity from suit. The aforesaid
provision contains language not necessarily inconsistent with sovereign
immunity. On the other hand, such provision may also be meant to
apply where the sovereign party elects to sue in the local courts, or
otherwise waives its immunity by any subsequent act.

81
There is no dispute that the establishment of a diplomatic mission is an
act jure imperii. A sovereign State does not merely establish a
diplomatic mission and leave it at that; the establishment of a
diplomatic mission encompasses its maintenance and upkeep. Hence,
the State may enter into contracts with private entities to maintain the
premises, furnishings and equipment of the embassy and the living
quarters of its agents and officials. It is therefore clear that petitioner
Republic of Indonesia was acting in pursuit of a sovereign activity
when it entered into a contract with respondent for the upkeep or
maintenance of the air conditioning units, generator sets, electrical
facilities, water heaters, and water motor pumps of the Indonesian
Embassy and the official residence of the Indonesian ambassador.

82
Immunity of Diplomatic Agents

83
On the issue of whether or not Ambassador Soeratmin and Minister
Counsellor Kasim may be sued herein in their private capacities,
Article 31 of the Vienna Convention on Diplomatic Relations
provides …

84
 Article 31, Vienna Convention on Diplomatic Relations

1. A diplomatic agent shall enjoy immunity from the criminal jurisidiction of the
receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction, except in the case of:

(a) a real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of
the mission;

(b) an action relating to succession in which the diplomatic agent is involved as

executor, administrator, heir or legatee as a private person and not on behalf of the
sending State;

(c) an action relating to any professional or commercial activity exercised by the

diplomatic agent in the receiving State outside his official functions.

85
The act of Ambassador Soeratmin and Minister Counsellor Kasim in
terminating the Maintenance Agreement is not covered by the
exceptions provided in the abovementioned provision.

86
 Doctrine of State Immunity from Suit
and
Immunity of Diplomatic Agents

Khosrow Minucher vs. Court of Appeals

[G.R. No. 142396. February 11, 2003]

87
Khosrow Minucher, an Iranian national and a Labor Attaché for the
Iranian Embassies in Tokyo, Japan and Manila came to the country to
study in 1974 and continued to stay as head of the Iranian National
Resistance Movement.

In May 1986, Minucher was charged with an Information for violation

of Republic Act No. 6425, Dangerous Drugs Act of 1972. The
criminal charge followed a “buy-bust operation” conducted by the
Philippine police narcotic agents in his house where a quantity of
heroin was said to have been seized. The narcotic agents were
accompanied by Arthur Scalzo who became one of the principal
witnesses for the prosecution.

88
In August 1988, Minucher filed Civil Case before the Regional Trial
Court (RTC) for damages on the ‘trumped-up’ charges of drug
trafficking made by Arthur Scalzo.

Scalzo seeks the dismissal of the case on grounds of diplomatic

immunity.

ISSUE:

Whether or not private respondent Arthur Scalzo can be sued?

89
“The Vienna Convention on Diplomatic Relations lists the classes of
heads of diplomatic missions to include:
(a) ambassadors or nuncios accredited to the heads of state,
(b) envoys, ministers or internuncios accredited to the heads of states;
and
(c) charges d' affairs accredited to the ministers of foreign affairs.

Comprising the "staff of the (diplomatic) mission" are the diplomatic

staff, the administrative staff and the technical and service staff. Only
the heads of missions, as well as members of the diplomatic staff,
excluding the members of the administrative, technical and service
staff of the mission, are accorded diplomatic rank.”

90
“Even while the Vienna Convention on Diplomatic Relations provides
for immunity to the members of diplomatic missions, it does so,
nevertheless, with an understanding that the same be restrictively
applied.

Only "diplomatic agents," under the terms of the Convention, are

vested with blanket diplomatic immunity from civil and criminal suits.
The Convention defines "diplomatic agents" as the heads of missions
or members of the diplomatic staff, thus impliedly withholding the
same privileges from all others.”

91
The main yardstick in ascertaining whether a person is a diplomat
entitled to immunity is the determination of whether or not he
performs duties of diplomatic nature. Being an Attache, Scalzo’s main
function is to observe, analyze and interpret trends and developments
in their respective fields in the host country and submit reports to their
own ministries or departments in the home government.

He is not generally regarded as a member of the diplomatic mission.

92
However, vesting a person with diplomatic immunity is a
prerogative of the executive branch. In such matters, the hands of
the courts are virtually tied.

93
Under the related doctrine of State Immunity from Suit, the precept that a
State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law.

Suing a representative of a state is believed to be, in effect, suing the state

itself.

If the acts giving rise to a suit are those of a foreign government done by its
foreign agent, although not necessarily a diplomatic personage, but acting in
his official capacity, the complaint could be barred by the immunity of the
foreign sovereign from suit without its consent.

94
The proscription is not accorded for the benefit of an individual but for
the State, in whose service he is, under the maxim – par in parem, non
habet imperium – that all states are sovereign equals and cannot assert
jurisdiction over one another. The implication is that if the judgment
against an official would require the state itself to perform an affirmative
act to satisfy the award, such as the appropriation of the amount needed
to pay the damages decreed against him, the suit must be regarded as
being against the state itself, although it has not been formally impleaded.

95
A foreign agent, operating within a territory, can be cloaked with
immunity from suit but only as long as it can be established that he is
acting within the directives of the sending state. The consent of the
host state is an indispensable requirement of basic courtesy between
the two sovereigns.”

96
 Concept of Territoriality

Article 22 of the Vienna Convention on Diplomatic Relations provides

that the premises of a diplomatic mission shall be inviolable, and may
not be entered by the police or by any other agent of the receiving
State, except with the consent of the Ambassador or the head of the
mission, it does not alter the fact, however, that such premises are still
part of Philippine territory.

The concept of “exterritoriality,” under which diplomatic premises are

deemed to be part of the sovereign territory of the sending State, has
not been adopted in the Vienna Convention. Hence, a crime
committed on or within such premises by a private person enjoys no
diplomatic immunity falls within the jurisdiction of Philippine courts.

97
 Command Responsibility
Lourdes D. Rubrico vs. Gloria Macapagal-Arroyo
G.R. No. 183871 February 18, 2010

98
On April 3, 2007, armed men belonging to the 301st Air
Intelligence and Security Squadron (AISS, for short) based in
Fernando Air Base in Lipa City abducted Lourdes D. Rubrico
(Lourdes), then attending a Lenten pabasa in Bagong Bayan,
Dasmariñas, Cavite, and detained at the air base without
charges. Following a week of relentless interrogation -
conducted alternately by hooded individuals - and what
amounts to verbal abuse and mental harassment, Lourdes,
chair of the Ugnayan ng Maralita para sa Gawa Adhikan, was
released at Dasmariñas, Cavite, her hometown, but only after
being made to sign a statement that she would be a military
asset.

99
After Lourdes’ release, the harassment, coming in the form of
being tailed on at least two occasions at different places, i.e.,
Dasmariñas, Cavite and Baclaran in Pasay City, by motorcycle-
riding men in bonnets, continued;

During the time Lourdes was missing, P/Sr. Insp. Arsenio

Gomez (P/Insp. Gomez), then sub-station commander of
Bagong Bayan, Dasmariñas, Cavite, kept sending text messages to
Lourdes’ daughter, Mary Joy R. Carbonel, bringing her to beaches
and asking her questions about Karapatan, an alliance of human
rights organizations. He, however, failed to make an investigation
even after Lourdes’ disappearance had been made known to him;

100
A week after Lourdes’ release, another daughter, Jean R.
Apruebo, was constrained to leave their house because of the
presence of men watching them;

Lourdes filed with the Office of the Ombudsman a criminal

complaint for kidnapping and arbitrary detention and
administrative complaint for gross abuse of authority and grave
misconduct against Capt. Angelo Cuaresma, Ruben Alfaro,
Jimmy Santana and a certain Jonathan, and Maj. Sy/Reyes but
nothing happened; and the threats and harassment incidents were
reported to the Dasmariñas municipal and Cavite provincial
police stations, but nothing eventful resulted from their respective
investigations.

101
Karapatan conducted an investigation on the incidents. The
investigation indicated that men belonging to the Armed
Forces of the Philippines led the abduction of Lourdes; that
unknown to the abductors, Lourdes was able to pilfer a
“mission order” which was addressed to CA Ruben Alfaro and
signed by Capt. Cuaresma of the PAF.

The petitioners then went before the Court of Appeals praying that
a writ of amparo be issued, ordering the individual respondents to
desist from performing any threatening act against the security of
the petitioners and for the Office of the Ombudsman (OMB) to
immediately file an information for kidnapping qualified with the
aggravating circumstance of gender of the offended party.

102
Before the CA, respondents President Gloria Macapagal-Arroyo,
Gen. Hermogenes Esperon, then Armed Forces of the Philippines
(AFP) Chief of Staff, et al. filed, through the Office of the Solicitor
General (OSG), a joint return on the writ specifically denying the
material inculpatory averments against them.

The CA subsequently dismissed the petition with respect to

respondent President Gloria Macapagal-Arroyo, Gen. Hermogenes
Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar B. Roquero, P/
Sr. Insp. Arsenio C. Gomez (ret.) and the Office of the
Ombudsman but directed the heads of the Armed Forces of the
Philippines and the Philippine National Police to ensure that the
investigations already commenced are diligently pursued to bring the
perpetrators to justice.

103
The dismissal of the petition with respect to Gen. Hermogenes
Esperon, P/Dir. Gen. Avelino Razon is raised as an issue before the
Supreme Court.

While in a qualified sense tenable, the dismissal by the CA of the

case as against Gen. Esperon and P/Dir. Gen. Razon is incorrect if
viewed against the backdrop of the stated rationale underpinning
the assailed decision vis-à-vis the two generals, i.e., command
responsibility. The Court assumes the latter stance owing to the fact
that command responsibility, as a concept defined, developed, and
applied under international law, has little, if at all, bearing in amparo
proceedings.

104
The evolution of the command responsibility doctrine finds its
context in the development of laws of war and armed combats.
According to Fr. Bernas, “command responsibility,” in its simplest
terms, means the “responsibility of commanders for crimes
committed by subordinate members of the armed forces or other
persons subject to their control in international wars or domestic
conflict.” In this sense, command responsibility is properly a form
of criminal complicity. The Hague Conventions of 1907 adopted
the doctrine of command responsibility, foreshadowing the present-
day precept of holding a superior accountable for the atrocities
committed by his subordinates should he be remiss in his duty of
control over them. As then formulated, command responsibility is
“an omission mode of individual criminal liability,” whereby the
superior is made responsible for crimes committed by his
subordinates for failing to prevent or punish the perpetrators (as
opposed to crimes he ordered).

105
The doctrine has recently been codified in the Rome Statute of the
International Criminal Court (ICC) to which the Philippines is
signatory. Sec. 28 of the Statute imposes individual responsibility
on military commanders for crimes committed by forces under their
control. The country is, however, not yet formally bound by the
terms and provisions embodied in this treaty-statute, since the
Senate has yet to extend concurrence in its ratification.

While there are several pending bills on command responsibility,

there is still no Philippine law that provides for criminal liability
under that doctrine.

NOTE: REPUBLIC ACT NO. 9851 (December 11, 2009)

A N AC T D E F I N I N G A N D P E N A L I Z I N G C R I M E S AG A I N S T
INTERNATIONAL HUMANITARIAN LAW, GENOCIDE AND OTHER
CRIMES AGAINST HUMANITY, ORGANIZING JURISDICTION,
DESIGNATING SPECIAL COURTS, AND FOR RELATED PURPOSES

106
It may plausibly be contended that command responsibility, as
legal basis to hold military/police commanders liable for
extra-legal killings, enforced disappearances, or threats, may be
made applicable to this jurisdiction on the theory that the
command responsibility doctrine now constitutes a principle
of international law or customary international law in
accordance with the incorporation clause of the Constitution.

Still, it would be inappropriate to apply to these proceedings

the doctrine of command responsibility, as the CA seemed to
have done, as a form of criminal complicity through
omission, for individual respondents’ criminal liability, if there
be any, is beyond the reach of amparo.

107
In other words, the Court does not rule in such proceedings
on any issue of criminal culpability, even if incidentally a
crime or an infraction of an administrative rule may have been
committed. As the Court stressed in Secretary of National
Defense v. Manalo (Manalo), the writ of amparo was
conceived to provide expeditious and effective procedural
relief against violations or threats of violation of the basic
rights to life, liberty, and security of persons; the
corresponding amparo suit, however, “is not an action to
determine criminal guilt requiring proof beyond reasonable
doubt x x x or administrative liability requiring substantial
evidence that will require full and exhaustive proceedings.”

108
If command responsibility were to be invoked and applied to
these proceedings, it should, at most, be only to determine the
author who, at the first instance, is accountable for, and has
the duty to address, the disappearance and harassments
complained of, so as to enable the Court to devise remedial
measures that may be appropriate under the premises to
protect rights covered by the writ of amparo. As intimated
earlier, however, the determination should not be pursued to
fix criminal liability on respondents preparatory to criminal
prosecution, or as a prelude to administrative disciplinary
proceedings under existing administrative issuances, if there
be any.

109
 REPUBLIC ACT NO. 9851

Section 9. Irrelevance of Official Capacity. - This Act shall apply equally to all
persons without any distinction based on official capacity. In particular, official
capacity as a head of state or government, a member of a government or parliament,
an elected representative or a government official shall in no case exempt a person
from criminal responsibility under this Act, nor shall it, in and of itself, constitute a
ground for reduction of sentence. However:

(a) Immunities or special procedural rules that may be attached to the official
capacity of a person under Philippine law other than the established constitutional
immunity from suit of the Philippine President during his/her tenure, shall not bar
the court from exercising jurisdiction over such a person; and

(b) Immunities that may be attached to the official capacity of a person under
international law may limit the application of this Act, but only within the bounds
established under international law.

110
Section 10. Responsibility of Superiors. - In addition to other grounds of
criminal responsibility for crimes defined and penalized under this Act, a
superior shall be criminally responsible as a principal for such crimes
committed by subordinates under his/her effective command and
control, or effective authority and control as the case may be, as a result
of his/her failure to properly exercise control over such subordinates,
where:

(a) That superior either knew or, owing to the circumstances at the time,
should have known that the subordinates were committing or about to
commit such crimes;

(b) That superior failed to take all necessary and reasonable measures
within his/her power to prevent or repress their commission or to submit
the matter to the competent authorities for investigation and prosecution.

111
TREATIES

112
 BAYAN vs. Executive Secretary Ronaldo Zamora
G.R. No. 138570, Oct. 10, 2000

A treaty, as defined by the Vienna Convention of the Law of

Treaties, is
“an international instrument concluded between States in written
form and governed by international law, whether embodied in a
single instrument or in two or more related instruments, and
whatever its particular designation.” There are many other terms
used for a treaty or international agreement, some of which are:
act, protocol, agreement, compromis d’ arbitrage, concordat,
convention, declaration, exchange of notes, pact, statute, charter
and modus vivendi.

113
Primacy of Municipal Law and Statutes over Treaties

Arthur D. Lim, et al. vs Executive Secretary

[G.R. No. 151445. April 11, 2002]

114
“From the perspective of public international law, a treaty is favored over
municipal law pursuant to the principle of pacta sunt servanda. Hence, “[e]very
treaty in force is binding upon the parties to it and must be performed by them
in good faith.” Further, a party to a treaty is not allowed to “invoke the
provisions of its internal law as justification for its failure to perform a treaty.”

Our Constitution espouses the opposing view. Witness our jurisdiction as stated
in section 5 of Article VIII:

The Supreme Court shall have the following powers:

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final judgments and order of lower courts in:

(A) All cases in which the constitutionality or validity of any treaty, international
or executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.”

115
“In Ichong v. Hernandez, we ruled that the provisions of a treaty are
always subject to qualification or amendment by a subsequent law, or
that it is subject to the police power of the State. In Gonzales v.
Hechanova,

xxx As regards the question whether an international agreement may

be invalidated by our courts, suffice it to say that the Constitution of
the Philippines has clearly settled it in the affirmative, by providing, in
Section 2 of Article VIII thereof, that the Supreme Court may not be
deprived “of its jurisdiction to review, revise, reverse, modify, or
affirm on appeal, certiorari, or writ of error as the law or the rules of
court may provide, final judgments and decrees of inferior courts in
—(1) All cases in which the constitutionality or validity of any treaty,
law, ordinance, or executive order or regulation is in question.”

In other words, our Constitution authorizes the nullification of a

treaty, not only when it conflicts with the fundamental law, but, also,
when it runs counter to an act of Congress.”
116
Pimentel vs. Office of the Executive Secretary
[G.R. No. 158088 July 6, 2005]

117
This is a petition for mandamus to compel the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the signed
copy of the Rome Statute of the International Criminal Court to the
Senate of the Philippines for its concurrence in accordance with Section
21, Article VII of the 1987 Constitution.

118
! In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the
country’s sole representative with foreign nations. Hence, the President is
vested with the authority to deal with foreign states and governments, extend
or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-
making, the President has the sole authority to negotiate with other states.

! Nonetheless, while the President has the sole authority to negotiate and enter
into treaties, the Constitution provides a limitation to his power by requiring
the concurrence of 2/3 of all the members of the Senate for the validity of
the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that “no treaty or international agreement shall be valid
and effective unless concurred in by at least two-thirds of all the Members of
the Senate.”

119
 The participation of the legislative branch in the treaty-making
process was deemed essential to provide a check on the executive in
the field of foreign relations. By requiring the concurrence of the
legislature in the treaties entered into by the President, the Constitution
ensures a healthy system of checks and balance necessary in the
nation’s pursuit of political maturity and growth.

120
 Treaty-making process
! NEGOTIATION may be undertaken directly by the head of
state but he now usually assigns this task to his authorized
representatives. These representatives are provided with
credentials known as full powers, which they exhibit to the
other negotiators at the start of the formal discussions. It is
standard practice for one of the parties to submit a draft of
the proposed treaty which, together with the counter-
proposals, becomes the basis of the subsequent negotiations.
The negotiations may be brief or protracted, depending on
the issues involved, and may even “collapse” in case the
parties are unable to come to an agreement on the points
under consideration.

121
! If and when the negotiators finally decide on the terms of the
treaty, the same is opened for SIGNATURE. This step is
primarily intended as a means of authenticating the instrument
and for the purpose of symbolizing the good faith of the parties;
but, significantly, it does not indicate the final consent of the state
in cases where ratification of the treaty is required. The
document is ordinarily signed in accordance with the alternat, that
is, each of the several negotiators is allowed to sign first on the
copy which he will bring home to his own state.

122
! RATIFICATION, which is the next step, is the formal act by
which a state confirms and accepts the provisions of a treaty
concluded by its representatives. The purpose of ratification is to
enable the contracting states to examine the treaty more closely
and to give them an opportunity to refuse to be bound by it
should they find it inimical to their interests. It is for this reason
that most treaties are made subject to the scrutiny and consent of
a department of the government other than that which
negotiated them.

123
! 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

124
Petitioners’ arguments equate the signing of the treaty by the Philippine
representative with ratification. It should be underscored that the
signing of the treaty and the ratification are two separate and distinct
steps in the treaty-making process. As earlier discussed, the signature is
primarily intended as a means of authenticating the instrument and as a
symbol of the good faith of the parties. It is usually performed by the
state’s authorized representative in the diplomatic mission.

Ratification, on the other hand, is the formal act by which a state

confirms and accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive act, undertaken by
the head of the state or of the government.

125
Petitioners’ submission that the Philippines is bound under treaty law
and international law to ratify the treaty which it has signed is without
basis. The signature does not signify the final consent of the state to
the treaty.

It is the ratification that binds the state to the provisions thereof. In

fact, the Rome Statute itself requires that the signature of the
representatives of the states be subject to ratification, acceptance or
approval of the signatory states. Ratification is the act by which the
provisions of a treaty are formally confirmed and approved by a State.
By ratifying a treaty signed in its behalf, a state expresses its willingness
to be bound by the provisions of such treaty. After the treaty is signed
by the state’s representative, the President, being accountable to the
people, is burdened with the responsibility and the duty to carefully
study the contents of the treaty and ensure that they are not inimical to
the interest of the state and its people.
126
President has the discretion even after the signing of the treaty by the
Philippine representative whether or not to ratify the Rome Statute.
The Vienna Convention on the Law of Treaties does not contemplate
to defeat or even restrain this power of the head of states. If that
were so, the requirement of ratification of treaties would be pointless
and futile.

It has been held that a state has no legal or even moral duty to ratify a
treaty which has been signed by its plenipotentiaries. There is no legal
obligation to ratify a treaty, but it goes without saying that the refusal
must be based on substantial grounds and not on superficial or
whimsical reasons. Otherwise, the other state would be justified in
taking offense.

127
Are treaties required to be published in the Official Gazette before it can
come into effect?

Publication in the Official Gazette is not among the usual requirements for a
treaty to be in force, according to jurisprudence and to Philippine guidelines
on how treaties are negotiated and ratified.

- Publication requirement is not present among the steps in the treaty-

making process cited in Pimentel vs Office of Executive Secretary;

- Executive Order 459 (Guidelines in the Negotiation of International

Agreements and its Ratification) does to list publication in the Official
Gazette as a requirement before a treaty can come into effect. It states that
upon concurrence of the Senate the Foreign Affairs Department shall
comply with the provision of the treaty in effecting its entry into force.

128
 Doctrine of Transformation

PHAP v. Health Secretary Duque:

“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. Under this
doctrine, treaty law is transformed into domestic law via the
concurrence of at least two-thirds of all members of the Senate in an
appropriate resolution, as is practiced by the Upper House for
purposes of treaties.”

129
BAYAN MUNA VS. ROMULO
G.R. No. 159618, February 1, 2011

130
! The Rome Statute established 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.

131
! On December 28, 2000, the RP signed the Rome Statute which,
by its terms, is “subject to ratification, acceptance or approval”
by the signatory states.

132
 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-028-03[7] 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.

133
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.

Bayan Muna imputes grave abuse of discretion on the part of the

Secretary of Foreign Affairs in concluding and ratifying the
Agreement and prays that it be struck down as unconstitutional, or
at least declared as without force and effect.

134
Whether or not E/N BFO-028-03 is a valid medium for
concluding the Agreement.

According to Court: The contention of Bayan Muna is untenable.

Under the doctrine of incorporation, as expressed in Section 2, Article
II of the Constitution, the Philippines adopts the generally accepted
principles of international law and international jurisprudence as part
of the law of the land and adheres to the policy of peace,
cooperation, and amity with all nations. An exchange of notes falls
“into the category of inter-governmental agreements,”which is an
internationally accepted form of international agreement.

135
The United Nations Treaty Collections (Treaty Reference Guide)
defines the term “exchange of notes” as 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.

136
 Whether or not Senate concurrence is required.

Article 2 of the Vienna Convention on the Law of Treaties defines a

treaty as:

“an international agreement concluded between states in written form

and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its
particular designation.”

International agreements may be in the form of (1) treaties that require

legislative concurrence after executive ratification; or (2) executive
agreements that are similar to treaties, except that they do not require
legislative concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.
137
Under international law, there is no difference between treaties and
executive agreements in terms of their binding effects on the
contracting states concerned, as long as the negotiating functionaries
have remained within their powers.

A treaty has greater “dignity” than an executive agreement, because its

constitutional efficacy is beyond doubt, a treaty having behind it the
authority of the President, the Senate, and the people; a ratified treaty,
unlike an executive agreement, takes precedence over any prior
statutory enactment.

138
There are no hard and fast rules on the propriety of entering, on a given
subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the
form of agreement is the parties’ intent and desire to craft an
international agreement in the form they so wish to further their
respective interests. Verily, the matter of form takes a back seat when it
comes to effectiveness and binding effect of the enforcement of a treaty
or an executive agreement, as the parties in either international agreement
each labor under the pacta sunt servanda principle.”

139
Save for the situation and matters contemplated in Sec. 25, Art. XVIII
of the Constitution – when a treaty is required, the Constitution does
not classify any subject, like that involving political issues, to be in the
form of, and ratified as, a treaty. What the Constitution merely
prescribes is that treaties need the concurrence of the Senate by a vote
defined therein to complete the ratification process.

Sec. 25, Art. XVIII - After the expiration in 1991 of the [RP-US
Military Bases Agreement] 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 Congress so requires, ratified x x
x in a national referendum held for that purpose, and recognized as a
treaty by the contracting state.

140
 Whether or not the Agreement contravenes the Rome Statute

Art. 90 would show that the Agreement is not incompatible with the Rome
Statute. Specifically, Art. 90(4) provides that

“[i]f the requesting State is a State not Party to this Statute the requested State, if
it is not under an international obligation to extradite the person to the requesting
State, shall give priority to the request for surrender from the Court. x x x”

In applying the provision, certain undisputed facts should be pointed out: first,
the US is neither a State-Party nor a signatory to the Rome Statute; and second,
there is an international agreement between the US and the Philippines regarding
extradition or surrender of persons, i.e., the Agreement. Clearly, 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.

141
Intellectual Property Association of the Philippines
vs. Ochoa, et al.

[G.R. No. 204605, July 9, 2016]

142
This is an action to declare as unconstitutional the ratification by
President Benigno S. Aquino III’s of the Protocol Relating to the
Madrid Agreement Concerning the International Registration of
Marks (Madrid Protocol).

The DFA, by virtue of Section 9, Executive Order No. 459, is

initially given the power to determine whether an agreement is to be
treated as a treaty or as an executive agreement. The Madrid Protocol
was determined by the Secretary of Foreign Affairs to be in the
nature of an executive agreement which does not require Senate
concurrence.

The principal issue in this case is whether or not the ratification by

the President of the Madrid Protocol requires the concurrence of
the Senate.

143
Executive Order No. 459, Series of 1997, notes the following definitions,
to wit:

Sec. 2. Definition o f Terms.

a. 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 intemational law,
whether embodied in a single instrument or in two or more related
instruments.

b. 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.

c. Executive Agreements - similar to treaties except that they do not

require legislative concurrence.

144
Commissioner of Customs v. Eastern Sea Trading" is instructive; to wit:

x x x The concurrence of said House of Congress is required by our fundamental law in the
making of "treaties" (Constitution of the Philippines, Article VII, Section 10[7]), which are,
however, distinct and different from "executive agreements," which may be validly entered into
without such concurrence.

"Treaties are formal documents which require ratification with the approval o f two thirds o f the
Senate. Executive agreements become binding through executive action without the need of a vote
by the Senate or by Congress.
xxxx

"x x x 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 into 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.
xxxx
Agreements with respect to the registration of trade- marks have been concluded by the Executive
with various countries under the Act of Congress of March 3, 1881 (21 Stat. 502). x x x
xxx
145
AKBAYAN, et al. vs. Aquino et al.
[G.R. No. 170516, July 16, 2008]

146
 Petitioners – non-government organizations, Congresspersons, citizens
and taxpayers – seek via the a petition for mandamus and prohibition to
obtain from respondents the full text of the Japan-Philippines Economic
Partnership Agreement (JPEPA) including the Philippine and Japanese
offers submitted during the negotiation process and all pertinent
attachments and annexes thereto.

While the final text of the JPEPA has been made accessible to the public
since September 11, 2006, respondents do not dispute that, at the time the
petition was filed up to the filing of petitioners’ Reply – when the JPEPA
was still being negotiated – the initial drafts thereof were kept from public
view.

147
 Privileged Character of Diplomatic Negotiations

The privileged character of diplomatic negotiations has been

recognized in this jurisdiction. In discussing valid limitations on the
right to information, the Court in Chavez v. PCGG held that
“information on inter-government exchanges prior to the conclusion
of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest.” Even earlier, the same
privilege was upheld in People’s Movement for Press Freedom (PMPF)
v. Manglapus wherein the Court discussed the reasons for the privilege
in more precise terms.

148
 Secrecy of negotiations with foreign countries is not violative of the
constitutional provisions of freedom of speech or of the press nor of
the freedom of access to information.

The nature of diplomacy requires centralization of authority and

expedition of decision which are inherent in executive action. Another
essential characteristic of diplomacy is its confidential nature.

149
Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text
of the JPEPA may not be kept perpetually confidential – since there should be “ample
opportunity for discussion before [a treaty] is approved” – the offers exchanged by the
parties during the negotiations continue to be privileged even after the JPEPA is
published.

It is reasonable to conclude that the Japanese representatives submitted their offers with
the understanding that “historic confidentiality” would govern the same. Disclosing
these offers could impair the ability of the Philippines to deal not only with Japan but
with other foreign governments in future negotiations.

A ruling that Philippine offers in treaty negotiations should now be open to public
scrutiny would discourage future Philippine representatives from frankly expressing their
views during negotiations. While, on first impression, it appears wise to deter Philippine
representatives from entering into compromises, it bears noting that treaty negotiations,
or any negotiation for that matter, normally involve a process of quid pro quo, and
oftentimes negotiators have to be willing to grant concessions in an area of lesser
importance in order to obtain more favorable terms in an area of greater national
interest.

150
 Concept of Association
Province of North Cotabato vs. Government of the
Republic of the Philippines Peace Panel on Ancestral
Domain (GRP)

G. R. No. 183591 October 14, 2008

151
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and
the MILF, through the Chairpersons of their respective peace negotiating panels,
were scheduled to sign a Memorandum of Agreement on the Ancestral Domain
(MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in
Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National
Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among
others, of what Salamat perceived to be the manipulation of the MNLF away from
an Islamic basis towards Marxist-Maoist orientations.

The signing of the MOA-AD between the GRP and the MILF did not to
materialize, however, for upon motion of petitioners, the Court issued a Temporary
Restraining Order enjoining the GRP from signing the MOA-AD same.

152
Do the contents of the MOA-AD violate the Constitution
and the laws?

153
In general, the objections against the MOA-AD center on the extent of
the powers conceded therein to the BJE. Petitioners assert that the powers
granted to the BJE exceed those granted to any local government under
present laws, and even go beyond those of the present ARMM. Before
assessing some of the specific powers that would have been vested in the
BJE, however, it would be useful to turn first to a general idea that serves
as a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD
explicitly alludes to this concept, indicating that the Parties actually framed
its provisions with it in mind.

154
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned
provision, however, that the MOA-AD most clearly uses it to describe the envisioned
relationship between the BJE and the Central Government.

“4. The relationship between the Central Government and the Bangsamoro juridical
entity shall be associative characterized by shared authority and responsibility with a
structure of governance based on executive, legislative, judicial and administrative
institutions with defined powers and functions in the comprehensive compact. A
period of transition shall be established in a comprehensive peace compact specifying
the relationship between the Central Government and the BJE.”

The nature of the "associative" relationship may have been intended to be defined
more precisely in the still to be forged Comprehensive Compact. Nonetheless, given
that there is a concept of "association" in international law, and the MOA-AD - by its
inclusion of international law instruments in its TOR- placed itself in an international
legal context, that concept of association may be brought to bear in understanding the
use of the term "associative" in the MOA-AD.

155
Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable links. In the
basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations represent a middle ground between
integration and independence. x x x150 (Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia
(FSM), formerly part of the U. S.-administered Trust Territory of the Pacific Islands, are associated states
of the U. S. pursuant to a Compact of Free Association. The currency in these countries is the U. S.
dollar, indicating their very close ties with the U. S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as states was confirmed by the UN Security
Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM generally have the
capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such
as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The U.
S. government, when conducting its foreign affairs, is obligated to consult with the governments of the
Marshall Islands or the FSM on matters which it (U. S. government) regards as relating to or affecting
either government.

156
In the event of attacks or threats against the Marshall Islands or the FSM, the U. S.
government has the authority and obligation to defend them as if they were part of U. S.
territory. The U. S. government, moreover, has the option of establishing and using military
areas and facilities within these associated states and has the right to bar the military
personnel of any third country from having access to these territories for military purposes.

It bears noting that in U. S. constitutional and international practice, free association is

understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nation's national constitution,
and each party may terminate the association consistent with the right of independence. It
has been said that, with the admission of the U. S.-associated states to the UN in 1990, the
UN recognized that the American model of free association is actually based on an
underlying status of independence.

In international practice, the "associated state" arrangement has usually been used as a
transitional device of former colonies on their way to full independence. Examples of states
that have passed through the status of associated states as a transitional phase are Antigua, St.
Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become
independent states.

157
Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJE's capacity to
enter into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJE's participation in meetings and events in the
ASEAN and the specialized UN agencies, and the continuing responsibility of the Central
Government over external defense. Moreover, the BJE's right to participate in Philippine
official missions bearing on negotiation of border agreements, environmental protection,
and sharing of revenues pertaining to the bodies of water adjacent to or between the
islands forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U. S. government on any foreign
affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest
in the BJE the status of an associated state or, at any rate, a status closely approximating it.

The concept of association is not recognized under the present Constitution.

158
No province, city, or municipality, not even the ARMM, is recognized under our laws
as having an "associative" relationship with the national government. Indeed, the
concept implies powers that go beyond anything ever granted by the Constitution to
any local or regional government. It also implies the recognition of the associated
entity as a state. The Constitution, however, does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for independence.

Even the mere concept animating many of the MOA-AD's provisions, therefore,
already requires for its validity the amendment of constitutional provisions,
specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the

Philippines are the provinces, cities, municipalities, and barangays. There shall be
autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.

159
SECTION 15. There shall be created autonomous regions in Muslim Mindanao
and in the Cordilleras consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant characteristics
within the framework of this Constitution and the national sovereignty as well
as territorial integrity of the Republic of the Philippines.

The BJE is a far more powerful entity than the autonomous region recognized
in the Constitution

It is not merely an expanded version of the ARMM, the status of its

relationship with the national government being fundamentally different from
that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria
of a state laid down in the Montevideo Convention, namely, a permanent
population, a defined territory, a government, and a capacity to enter into
relations with other states.

160
Godspeed!

161