G.R. No.

151445 April 11, 2002

Lim v. Executive Secretary

Doctrine: International Law v. Muncipal Law, Certiorari, Incorporation Clause, Treaties

FACTS: Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed forces
of the United States of America started arriving in Mindanao to take partin "Balikatan 02-1 on January 2002.
The Balikatan 02-1 exercises involves the simulation of joint military maneuvers pursuant to the Mutual
Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United States in 1951.
The exercise is rooted from the international anti-terrorism campaign declared by President George W. Bush in
reaction to the 3 commercial aircrafts hijacking that smashed into twin towers of the World Trade Center in
New York City and the Pentagon building in Washington, D.C. allegedly by the al-Qaeda headed by the Osama
bin Laden that occurred on September 11, 2001. Arthur D. Lim and Paulino P. Ersando as citizens, lawyers
and taxpayers filed a petition for certiorari and prohibition attacking the constitutionality of the joint exercise.
Partylists Sanlakas and Partido Ng Manggagawa as residents of Zamboanga and Sulu directly affected by the
operations filed a petition-in-intervention.

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

ISSUE: WON the petition and the petition-in-intervention should prosper

HELD: NO. Petition is dismissed. The VFA itself permits US personnel to engage on an impermanent basis, in
activities, the exact meaning of which is left undefined. The sole encumbrance placed on its definition is
couched in the negative, in that the US personnel must abstain from any activity inconsistent with the spirit of
this agreement, and in particular, from any political activity.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume
that Balikatan 02-1 a mutual anti terrorism advising assisting and training exercise falls under the umbrella
of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual
Defense Treaty and the VFA support the conclusion that combat-related activities as opposed to combat itself
such as the one subject of the instant petition, are Indeedauthorized.

Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international
agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution especially
Sec. 2, 7 and 8 of Article 2: Declaration of Principles and State Policies in this case. The Constitution also
regulates the foreign relations powers of the Chief Executive when it 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." Even more pointedly Sec. 25 on Transitory Provisions which shows antipathy towards foreign
military presence in the country, or of foreign influence in general. Hence, foreign troops are allowed entry
into the Philippines only by way of direct exception.

International Law vs. Fundamental Law and Municipal Laws

Conflict arises then between the fundamental law and our obligations arising from international agreements.

Philip Morris, Inc. v. Court of Appeals: Withal, 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 legislation.

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 as stated in section 5 of Article VIII: The Supreme Court shall
have the following powers: xxx

(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.

Ichong v. Hernandez: 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

Gonzales v. Hechanova: 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.

Texaco Overseas Petroleum et al. v. Libya

(1977)

DOCTRINE: Whenever reference is been made to general principles of law in the international
arbitration context, it is always held to be a sufficient criterion for the internationalization of a contract.

FACTS: On September 1, 1973 and February 11, 1974, Libya (defendant) issued decrees nationalizing all of
the rights, interests, and property of the Texaco Overseas Petroleum Company (TOPCO) and California Asiatic
Oil Company (CAOC) in Libya that had been granted to them jointly by the Libyan government under 14
deeds of concession. TOPCO and CAOC requested arbitration and appointed an arbitrator. However, Libya
refused to submit to arbitration and did not appoint an arbitrator. The 14 deeds of concession provided by
Libya to the two companies permitted the President of the International Court of Justice (ICJ) to appoint a sole
arbitrator to hear and determine the disputes. The Libyan government opposed this practice and argued that the
disputes were not subject to arbitration because they involved sovereign acts by Libya. The President of the
ICJ rejected these arguments and appointed Professor Rene-Jean Dupuy as the sole arbitrator. The Libyan
government refused to participate in the subsequent arbitration proceedings. On January 19, 1977, Professor
Dupuy issued an award on the merits in favor of TOPCO and CAOC. He held that the deeds of concession
were binding on all parties, that the Libyan government breached its obligations under the deeds of concession,
and that the Libyan government was legally bound to perform the deeds of concession according to their terms.
The deeds of concession contained a provision stating that the concession would be governed by principles of
Libyan law common to principles of international law, and that in the absence of such common principles, then
they would be governed by and in accordance with the general principles of law, including those which have
been applied by international tribunals. The arbitrator concluded that the nature of the deeds of concession
agreement made it an internationalized contract. He then considered the effect and consequences of an
internationalized contract on the rights of the parties.

ISSUE: Whenever reference is being made to general principles of law in the International arbitration context,
can this be held to be a sufficient criterion for the internationalization of a contract?

HELD: Yes. Whenever reference is been made to general principles of law in the international arbitration
context, it is always held to be a sufficient criterion for the internationalization of a contract. The lack of
adequate law in the state considered and the need to protect the private contracting party against unilateral and
abrupt modifications of law in the contracting state is a justification to the recourse to general principles.
Though international law involves subjects of a diversified nature, legal international capacity is not solely
attributable to a state. A private contracting party, unlike a state, has only a limited capacity and is limited to
invoke only those rights that he derives from his contract.

Applying Libyan law or international law in the arbitration proceedings was a conflict encountered by in this
case. Though the contract itself deferred to Libyan law, the court noted that Libyan law does not preclude the
application of international law, but that the two must be combined in order to verify that Libyan law complies
with international law. Even though the right of a state to nationalize is recognized by international law, this
right in itself is not a sufficient justification not to regard its contractual obligations.