Abaya vs Ebdane

FACTS:
On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public
Works and Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was
approved by DPWH Acting Secretary Florante Soriquez. This resolution
recommended the award to China Road & Bridge Corporation of the contract for the
implementation of civil works for Contract Package No. I (CP I), which consists of the
improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road, with the
lengt of 79.818 kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between the JBIC and the
Philippine Government pursuant to the exchange of Notes executed by and between
Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the
Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their respective
governments.

ISSUE:
Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine
Government is a kind of a treaty.

HELD:
The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes
dated December 27, 1999 between the Japanese Government and the Philippine
Government is an executive agreement.
An exchange of notes is a record of a routine agreement that has many
similarities with the private law contract. The agreement consists of the exchange of
two documents, each of the parties being in the possession of the one signed by the
representative of the other.
treaties, agreements, conventions, charters, protocols, declarations, memoranda
of understanding, modus vivendi and exchange of notes all are refer to international
instruments binding at international law.
Although these instruments differ from each other by title, they all have common
features and international law has applied basically the same rules to all these
instruments. These rules are the result of long practice among the States, which
have accepted them as binding norms in their mutual relations. Therefore, they are
regarded as international customary law.
That case was dismissed by the SCORP last Feb. 14 2007.

What the petitioners wanted was that Foreign funded projects also undergo the
procurement process.
The dismissal of the case somehow gave justification for the delay of the
implementing rules for foreign funded projects (IRR-B) of the procurement law If we
recall the decision of the Abaya vs Ebdane was used by the DOJ when the DOTC
Secretary was asking for an opinion from the former, during the ZTE controversy.as
ruled by the Supreme Court in Abaya v. Ebdane, an exchange of notes is considered
a form of an executive agreement, which becomes binding through executive action
without need of a vote by the
Senate and that (like treaties and conventions, it is an international instrument
binding at international law,
The second issue involves an examination of the coverage of Republic Act No. 9184,
otherwise known as the Government Procurement Reform Act. Section 4 of the
said Act provides that it shall
apply to: the Procurement of infrastructure Projects, Goods and Consulting
Services, regardless of source of funds, whether local or foreign, by all branches and
instrumentalities of government, its departments, offices and agencies, including
government-owned and/or -controlled corporations and local government units,
subject to the provisions of Commonwealth Act No. 138. Any treaty or international
or executive agreement affecting the subject matter of this Act to which the
Philippine government is a signatory shall be observed.
DBM vs Kolonwel
FACTS :
This is a petition for review, with a prayer for temporary restraining order to nullify
and set aside the Order dated Dec. 04, 2006 of the Manila RTC.
In the middle of 2005, DepEd requested the services of the DBM-PS to undertake
procurement project which is to be jointly funded by the World Bank (WB), thru the
Second Social Expenditure Management Program (SEMP2) of the RP-IBRD Loan
Agreement No. 7118-PH and the Asian Development Bank (ABD) thru SEDIP Loan
No. 1654-PHI. In October 2005, the DBM-PS called for a bidding for the supply of the
Makabayan textbooks and teachers manuals. Of the entities, foreign and local, only
eleven (11) bidders submitted, including private respondent Kolonwel.
Following the bid and the book content/body evaluation process, DBM committee
issued a resolution disqualifying, among others, Kolonwel for failure in cover stock
testing . Kolonwel was informed of this and subsequently filed with RTC Manila a
special civil action for certiorari with a prayer for TRO. In support of its TRO
application, Kolonwel alleged, among other things, that the supply-awardees were
rushing with the implementation of the void supply contracts to beat the closing-
date deadline. After summary hearing, the Manila RTC issued a 20-day TRO, and
later issued a decision wherein Resolution 001-2006-A of the DBM was annulled and
set aside. Hence this petition.
ISSUE :
Will the petition prosper?
RULING :
The petition is granted and the assailed decision of the Manila RTC is hereby
nullified and set aside.
Under the fundamental international principle of pacta sunt servanda, the RP, as
borrower bound itself to perform in good faith the duties and obligations under Loan
No. 7118-PH. Applying this postulate, the DBM IABAC, was legally obliged to comply
with, or accord primacy to the WB guidelines on the conduct and implementation of
the bidding/procurement process in question.
Foreign loan agreements with international financial institutions, such as Loan No.
7118-PH, partake of an executive or international agreement within the purview of
Sec. 4 of RA9184. Significantly, whatever was stipulated in the loan agreement,
shall primarily govern the procurement of goods necessary to implement the main
project.
Suplico vs NEDA
Facts:
On April 18, 2008, the OSG filed respondents reply, reiterating
their position that for a court to exercise its power of adjudication,
there must be an actual case or controversy one which involves a
conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial resolution; the case must not be moot or
academic or based on extra-legal or other similar considerations
not cognizable by a court of justice.

Contrary to petitioners contentions that these declarations made

by officials belonging to the executive branch on the Philippine
Governments decision not to continue with the ZTE-NBN Project
are self-serving, hence, inadmissible, the Court has no alternative
but to take judicial notice of this official act of the President
of the Philippines.

Section 1, Rule 129 of the Rules of Court provides:

SECTION 1. Judicial Notice, when mandatory. A court shall take

judicial notice, without introduction of evidence, of the existence
and territorial extent of states, their political history, forms
of government and symbols of nationality, the law of nations,
the admiralty and maritime courts of the world and their seals,
the political constitution and history of the Philippines,
the official acts of the legislative, executive and judicial
departments of the Philippines, the laws of nature, the measure
of time, and the geographical divisions.

It is further provided in the above-quoted rule that the court

shall take judicial notice of the foregoing facts without
introduction of evidence. Since we consider the act of
cancellation by President Macapagal-Arroyo of the proposed
ZTE-NBN Project during the meeting of October 2, 2007 with
the Chinese President in China as an official act of the
executive department, the Court must take judicial notice
of such official act without need of evidence.
Judicial power presupposes actual controversies, the
very antithesis of mootness. In the absence of actual
justiciable controversies or disputes, the Court generally
opts to refrain from deciding moot issues. Where there is
no more live subject of controversy, the Court ceases to
have a reason to render any ruling or make any pronouncement.

The rule is well-settled that for a court to exercise

its power of adjudication, there must be an actual case
or controversy one which involves a conflict of legal
rights, an assertion of opposite legal claims susceptible
of judicial resolution; the case must not be moot or
academic or based on extra-legal or other similar
considerations not cognizable by a court of justice.
Where the issue has become moot and academic, there
is no justiciable controversy, and an adjudication
thereon would be of no practical use or value as
courts do not sit to adjudicate mere academic
questions to satisfy scholarly interest, however
intellectually challenging.

Let it be clarified that the Senate investigation in aid of

legislation cannot be the basis of Our decision which requires
a judicial finding of facts.
China National Machinery v. Santamaria

Facts: On 14 September 2002, petitioner China National Machinery & Equipment

Corp. (Group) (CNMEG), represented by its chairperson, Ren Hongbin, entered into a
Memorandum of Understanding with the North Luzon Railways Corporation
(Northrail), represented by its president, Jose L. Cortes, Jr. for the conduct of a
feasibility study on a possible railway line from Manila to San Fernando, La Union
(the Northrail Project).

On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the
Department of Finance of the Philippines (DOF) entered into a Memorandum of
Understanding (Aug 30 MOU), wherein China agreed to extend Preferential Buyers
Credit to the Philippine government to finance the Northrail Project. 3 The Chinese
government designated EXIM Bank as the lender, while the Philippine government
named the DOF as the borrower. Under the Aug 30 MOU, EXIM Bank agreed to
extend an amount not exceeding USD 400,000,000 in favor of the DOF, payable in
20 years, with a 5-year grace period, and at the rate of 3% per annum.

On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui

(Amb. Wang), wrote a letter to DOF Secretary Jose Isidro Camacho (Sec. Camacho)
informing him of CNMEGs designation as the Prime Contractor for the Northrail
Project.
On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for
the construction of Section I, Phase I of the North Luzon Railway System from
Caloocan to Malolos on a turnkey basis (the Contract Agreement). 7 The contract
price for the Northrail Project was pegged at USD 421,050,000.
On 26 February 2004, the Philippine government and EXIM Bank entered into a
counterpart financial agreement Buyer Credit Loan Agreement No. BLA 04055 (the
Loan Agreement). In the Loan Agreement, EXIM Bank agreed to extend Preferential
Buyers Credit in the amount of USD 400,000,000 in favor of the Philippine
government in order to finance the construction of Phase I of the Northrail Project.

On 13 February 2006, respondents filed a Complaint for Annulment of Contract and

Injunction with Urgent Motion for Summary Hearing to Determine the Existence of
Facts and Circumstances Justifying the Issuance of Writs of Preliminary Prohibitory
and Mandatory Injunction and/or TRO against CNMEG, the Office of the Executive
Secretary, the DOF, the Department of Budget and Management, the National
Economic Development Authority and Northrail. The case was filed before the
Regional Trial Court, National Capital Judicial Region, Makati City, Branch 145 (RTC
Br. 145). In the Complaint, respondents alleged that the Contract Agreement and
the Loan Agreement were void for being contrary to (a) the Constitution; (b)
Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government
Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the
Government Auditing Code; and (d) Executive Order No. 292, otherwise known as
the Administrative Code.
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEGs Motion to
Dismiss and setting the case for summary hearing to determine whether the
injunctive reliefs prayed for should be issued. CNMEG then filed a Motion for
Reconsideration, which was denied by the trial court in an Order dated 10 March
2008. Thus, CNMEG filed before the CA a Petition for Certiorari with Prayer for the
Issuance of TRO and/or Writ of Preliminary Injunction dated 4 April 2008.

the appellate court dismissed the Petition for Certiorari. Subsequently, CNMEG filed
a Motion for Reconsideration, which was denied by the CA in a Resolution dated 5
December 2008.
Petitioners Argument: Petitioner claims that the EXIM Bank extended financial
assistance to Northrail because the bank was mandated by the Chinese
government, and not because of any motivation to do business in the Philippines, it
is clear from the foregoing provisions that the Northrail Project was a purely
commercial transaction.

Respondents Argument: respondents alleged that the Contract Agreement and

the Loan Agreement were void for being contrary to (a) the Constitution; (b)
Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government
Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the
Government Auditing Code; and (d) Executive Order No. 292, otherwise known as
the Administrative Code.

Issues: Whether or not petitioner CNMEG is an agent of the sovereign Peoples

Republic of China.
Whether or not the Northrail contracts are products of an executive agreement
between two sovereign states.

Ruling: The instant Petition is DENIED. Petitioner China National Machinery &
Equipment Corp. (Group) is not entitled to immunity from suit, and the Contract
Agreement is not an executive agreement. CNMEGs prayer for the issuance of a
TRO and/or Writ of Preliminary Injunction is DENIED for being moot and academic.
The Court explained the doctrine of sovereign immunity in Holy See v. Rosario, to
wit:
There are two conflicting concepts of sovereign immunity, each widely held and
firmly established. According to the classical or absolute theory, a sovereign
cannot, without its consent, be made a respondent in the courts of
another sovereign. According to the newer or 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. (Emphasis supplied; citations omitted.)
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).

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

Admittedly, the Loan Agreement was entered into between EXIM Bank and the
Philippine government, while the Contract Agreement was between Northrail and
CNMEG. Although the Contract Agreement is silent on the classification of the legal
nature of the transaction, the foregoing provisions of the Loan Agreement, which is
an inextricable part of the entire undertaking, nonetheless reveal the intention of
the parties to the Northrail Project to classify the whole venture as commercial or
proprietary in character.

Thus, piecing together the content and tenor of the Contract Agreement, the
Memorandum of Understanding dated 14 September 2002, Amb. Wangs letter
dated 1 October 2003, and the Loan Agreement would reveal the desire of CNMEG
to construct the Luzon Railways in pursuit of a purely commercial activity performed
in the ordinary course of its business.
Commissioner of Customs vs Eastern Sea Trading
Facts:
Eastern Sea Trading (EST) was a shipping company which imports from Japan onion
and garlic into the Philippines. In 1956, the Commissioner of Customs ordered the
seizure and forfeiture of the import goods because EST was not able to comply with
Central Bank Circulars 44 and 45. The said circulars were pursuant to Executive
Order 328. On the other hand, EO 328 was the implementing law of the Trades and
Financial Agreements, an executive agreement, entered into between the
Philippines and Japan. The said executive agreement states, among others, that all
import transactions between Japan and the Philippines should be invoiced in dollar.
In this case, the said items imported by EST from Japan were not invoiced in dollar.
EST questioned the validity of the said EO averring that the executive agreement
that the EO was implementing was never concurred upon by the Senate. The issue
was elevated to the Court of Tax Appeals and the latter ruled in favor of EST. The
Commissioner appealed.
ISSUE: Whether or not the Executive Agreement is subject to the concurrence
by the Senate.
HELD: No, Executive Agreements are not like treaties which are subject to the
concurrence of at least 2/3 of the members of the Senate. Agreements concluded by
the President which fall short of treaties are commonly referred to as executive
agreements and are no less common in our scheme of government than are the
more formal instruments treaties and conventions. They sometimes take the form
of exchanges of notes and at other times that of more formal documents
denominated agreements or protocols.
The point where ordinary correspondence between this and other governments
ends and agreements whether denominated executive agreements or exchanges
of notes or otherwise begin, may sometimes be difficult of ready ascertainment.
It would be useless to undertake to discuss here the large variety of executive
agreements as such, concluded from time to time. Hundreds of executive
agreements, other than those entered into under the trade- agreements act, have
been negotiated with foreign governments. . . . It would seem to be sufficient, in
order to show that the trade agreements under the act of 1934 are not anomalous
in character, that they are not treaties, and that they have abundant precedent in
our history, to refer to certain classes of agreements heretofore entered into by the
Executive without the approval of the Senate.
They cover such subjects as the inspection of vessels, navigation dues, income tax
on shipping profits, the admission of civil aircraft, customs matters, and commercial
relations generally, international claims, postal matters, the registration of trade-
marks and copyrights, etc. Some of them were concluded not by specific
congressional authorization but in conformity with policies declared in acts of
Congress with respect to the general subject matter, such as tariff acts; while still
others, particularly those with respect to the settlement of claims against foreign
governments, were concluded independently of any legislation.

Bayan vs Zamora
Facts:
The United States panel met with the Philippine panel to discussed, among others,
the possible elements of the Visiting Forces Agreement (VFA). This resulted to a
series of conferences and negotiations which culminated on January 12 and 13,
1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively
signed by Secretary Siazon and United States Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the
senate approved it by (2/3) votes.
Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is
applicable and not Section 21, Article VII.
Following the argument of the petitioner, under they provision cited, the foreign
military bases, troops, or facilities may be allowed in the Philippines unless the
following conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority of the votes cast
in a national referendum held for that purpose if so required by congress, and
c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is applicable so
that, what is requires for such treaty to be valid and effective is the concurrence in
by at least two-thirds of all the members of the senate.

ISSUE: Is the VFA governed by the provisions of Section 21, Art VII or of Section 25,
Article XVIII of the Constitution?
HELD:
Section 25, Article XVIII, which specifically deals with treaties involving foreign
military bases, troops or facilities should apply in the instant case. To a certain
extent and in a limited sense, however, the provisions of section 21, Article VII will
find applicability with regard to the issue and for the sole purpose of determining
the number of votes required to obtain the valid concurrence of the senate.
The Constitution, makes no distinction between transient and permanent. We
find nothing in section 25, Article XVIII that requires foreign troops or facilities to be
stationed or placed permanently in the Philippines.
It is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding
as a treaty.

Lim vs Executive Secretary

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: W/N the petition and the petition-in-intervention should prosper.

HELD: NO. Petition and the petition-in-intervention are hereby DISMISSED without
prejudice to the filing of a new petition sufficient in form and substance in the
proper Regional Trial Court - Supreme Court is not a trier of facts

Doctrine of Importance to the Public

Considering however the importance to the public of the case at bar, and in keeping
with the Court's duty, under the 1987 Constitution, to determine whether or not the
other branches of the government have kept themselves within the limits of the
Constitution and the laws that they have not abused the discretion given to them,
the Court has brushed aside technicalities of procedure and has taken cognizance of
this petition.

Although courts generally avoid having to decide a constitutional question based on

the doctrine of separation of powers, which enjoins upon the department of the
government a becoming respect for each other's act, this Court nevertheless
resolves to take cognizance of the instant petition.
Interpretation of Treaty
The VFA permits United States personnel to engage, on an impermanent basis, in
"activities," the exact meaning of which was left undefined. The expression is
ambiguous, permitting a wide scope of undertakings subject only to the approval of
the Philippine government. The sole encumbrance placed on its definition is
couched in the negative, in that United States personnel must "abstain from any
activity inconsistent with the spirit of this agreement, and in particular, from any
political activity." All other activities, in other words, are fair game.
To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3
and Article 32 contains provisos governing interpretations of international
agreements. It is clear from the foregoing that the cardinal rule of interpretation
must involve an examination of the text, which is presumed to verbalize the parties'
intentions. The Convention likewise dictates what may be used as aids to deduce
the meaning of terms, which it refers to as the context of the treaty, as well as other
elements may be taken into account alongside the aforesaid context. According to
Professor Briggs, writer on the Convention, the distinction between the general rule
of interpretation and the supplementary means of interpretation is intended rather
to ensure that the supplementary means do not constitute an alternative,
autonomous method of interpretation divorced from the general rule.
The meaning of the word activities" was deliberately made that way to give both
parties a certain leeway in negotiation. Thus, the VFA gives legitimacy to the current
Balikatan exercises. 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 indeed authorized.
The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that
US exercise participants may not engage in combat "except in self-defense." ." The
indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is
actually a war principally conducted by the United States government, and that the
provision on self-defense serves only as camouflage to conceal the true nature of
the exercise. A clear pronouncement on this matter thereby becomes crucial. In our
considered opinion, neither the MDT nor the VFA allow foreign troops to engage in
an offensive war on Philippine territory. Under the salutary proscription stated in
Article 2 of the Charter of the United Nations.
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.
The foregoing premises leave us no doubt that US forces are prohibited / from
engaging in an offensive war on Philippine territory.
Pimentel vs Executive Secretary
Facts:
This is a petition of Senator Aquilino Pimentel and the other parties to ask the
Supreme Court to require the Executive Department to transmit the Rome Statute
which established the International Criminal Court for the Senates concurrence in
accordance with Sec 21, Art VII of the 1987 Constitution.
It is the theory of the petitioners that ratification of a treaty, under both domestic
law and international law, is a function of the Senate. Hence, it is the duty of the
executive department to transmit the signed copy of the Rome Statute to the
Senate to allow it to exercise its discretion with respect to ratification of treaties.
Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the
Rome Statute under treaty law and customary international law. Petitioners invoke
the Vienna Convention on the Law of Treaties enjoining the states to refrain from
acts which would defeat the object and purpose of a treaty when they have signed
the treaty prior to ratification unless they have made their intention clear not to
become parties to the treaty.[5]
The Office of the Solicitor General, commenting for the respondents, questioned the
standing of the petitioners to file the instant suit. It also contended that the petition
at bar violates the rule on hierarchy of courts. On the substantive issue raised by
petitioners, respondents argue that the executive department has no duty to
transmit the Rome Statute to the Senate for concurrence.

Issue:
Whether or not the executive department has a ministerial duty to transmit the
Rome Statute (or any treaty) to the Senate for concurrence.
Ruling:
The petition was dismissed. The Supreme Court ruled that the the President, being
the head of state, is regarded as the sole organ and authority in external relations
and is the countrys sole representative with foreign nations. As the chief architect
of foreign policy, the President acts as the countrys mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with
foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the business of
foreign relations. In the realm of treaty-making, the President has the sole authority
to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into
treaties, the Constitution provides a limitation to his power by requiring the
concurrence of 2/3 of all the members of the Senate for the validity of the treaty
entered into by him. Section 21, Article VII of the 1987 Constitution provides that
no treaty or international agreement shall be valid and effective unless concurred
in by at least two-thirds of all the Members of the Senate.
Justice Isagani Cruz, in his book on International Law, describes the treaty-making
process in this wise:
The usual steps in the treaty-making process are: negotiation, signature,
ratification, and exchange of the instruments of ratification. The treaty may then be
submitted for registration and publication under the U.N. Charter, although this step
is not essential to the validity of the agreement as between the parties.
Negotiation may be undertaken directly by the head of state but he now usually
assigns this task to his authorized representatives. These representatives are
provided with credentials known as full powers, which they exhibit to the other
negotiators at the start of the formal discussions. It is standard practice for one of
the parties to submit a draft of the proposed treaty which, together with the
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.
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.
Ratification, which is the next step, is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its representatives. The purpose of
ratification is to enable the contracting states to examine the treaty more closely
and to give them an opportunity to refuse to be bound by it should they find it
inimical to their interests. It is for this reason that most treaties are made subject to
the scrutiny and consent of a department of the government other than that which
negotiated them.
The last step in the treaty-making process is the exchange of the instruments of
ratification, which usually also signifies the effectivity of the treaty unless a different
date has been agreed upon by the parties. Where ratification is dispensed with and
no effectivity clause is embodied in the treaty, the instrument is deemed effective
upon its signature.
Petitioners arguments equate the signing of the treaty by the Philippine
representative with ratification. It should be underscored that the signing of the
treaty and the ratification are two separate and distinct steps in the treaty-making
process. As earlier discussed, the signature is primarily intended as a means of
authenticating the instrument and as a symbol of the good faith of the parties. It is
usually performed by the states authorized representative in the diplomatic
mission. Ratification, on the other hand, is the formal act by which a state confirms
and accepts the provisions of a treaty concluded by its representative.
It should be emphasized that under our Constitution, the power to ratify is vested in
the President, subject to the concurrence of the Senate. The role of the Senate,
however, is limited only to giving or withholding its consent, or concurrence, to the
ratification. Hence, it is within the authority of the President to refuse to submit a
treaty to the Senate or, having secured its consent for its ratification, refuse to ratify
it. Although the refusal of a state to ratify a treaty which has been signed in its
behalf is a serious step that should not be taken lightly, such decision is within the
competence of the President alone, which cannot be encroached by this Court via a
writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties.

Akbayan vs Aquino
Facts: The signing of the Japan-Philippines Economic Partnership Agreement (JPEPA)
at the sidelines of the Asia-Europe Summit in Helsinki in September 2006 was hailed
by both Japanese Prime Minister Junichiro Koizumi and Philippine President Gloria
Macapagal Arroyo as a milestone in the continuing cooperation and collaboration,
setting a new chapter of strategic partnership for mutual opportunity and growth
(for both countries).
JPEPA which has been referred to as a mega treaty is a comprehensive plan for
opening up of markets in goods and services as well as removing barriers and
restrictions on investments. It is a deal that encompasses even our commitments to
the WTO.
The complexity of JPEPA became all the more evident at the Senate hearing
conducted by the Committee on Trade and Commerce last November 2006. The
committee, chaired by Senator Mar Roxas, heard differing views and perspectives
on JPEPA. On one hand the committee heard Governments rosy projections on the
economic benefits of JPEPA and on the other hand the views of environmental and
trade activists who raised there very serious concerns about the country being
turned into Japans toxic waste basket. The discussion in the Senate showed that
JPEPA is not just an issue concerning trade and economic relations with Japan but
one that touches on broader national development concerns.

Issues:

1. Do the therein petitioners have standing to bring this action for mandamus in
their capacity as citizens of the Republic, as taxpayers, and as members of the
Congress

2. Can this Honorable Court exercise primary jurisdiction of this case and take
cognizance of the instant petition.

3. Are the documents and information being requested in relation to the JPEPA
exempted from the general rules on transparency and full public disclosure such
that the Philippine government is justified in denying access thereto.

Rulings:

The Supreme Court en banc promulgated last July 16, 2008 its ruling on the case of
Akbayan Citizens Action Party et al vs. Thomas G. Aquino et al (G.R. No. 170516).
The Highest Tribunal dismissed the Petition for mandamus and prohibition, which
sought to compel respondents Department of Trade Industry (DTI) Undersecretary
Thomas Aquino et al to furnish petitioners the full text of the Japan-Philippines
Economic Partnership Agreement (JPEPA) and the lists of the Philippine and Japanese
offers submitted during the negotiation process and all pertinent attachments and
annexes thereto.

In its Decision, the Court noted that the full text of the JPEPA has been made
accessible to the public since 11 September 2006, and thus the demand to be
furnished with copy of the said document has become moot and academic.
Notwithstanding this, however, the Court lengthily discussed the substatives issues,
insofar as they impinge on petitioners' demand for access to the Philippine and
Japanese offers in the course of the negotiations.

The Court held: 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
Japenese 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.

It also reasoned out that opening for public scrutiny the Philippine offers in treaty
negotiations would discourage future Philippine representatives from frankly
expressing their views during negotiations. The Highest Tribunal recognized that
treaty negotiations normally involve a process of quid pro quo, where negotiators
would willingly grant concessions in an area of lesser importance in order to obtain
more favorable terms in an area of greater national interest.

In the same Decision, the Court took time to address the dissent of Chief Justice
Reynato S. Puno. It said: We are aware that behind the dissent of the Chief Justice
lies a genuine zeal to protect our people's right to information against any abuse of
executive privilege. It is a zeal that We fully share. The Court, however, in its
endeavour to guard against the abuse of executive privilege, should be careful not
to veer towards the opposite extreme, to the point that it would strike down as
invalid even a legitimate exercise thereof.
Salonga vs Smith
Facts:
On the 1st of November 2005, Daniel Smith committed the crime of rape against
Nicole. He was convicted of the said crime and was ordered by the court to suffer
imprisonment. Smith was a US serviceman convicted of a crime against our penal
laws and the crime was committed within the countrys jurisdiction. But pursuant to
the VFA, a treaty between the US and Philippines, the US embassy was granted
custody over Smith. Nicole, together with the other petitioners appealed before the
SC assailing the validity of the VFA. Their contention is that the VFA was not ratified
by the US senate in the same way our senate ratified the VFA.
ISSUE: Is the VFA void and unconstitutional & whether or not it is self-executing.
HELD: The VFA is a self-executing Agreement because the parties intend its
provisions to be enforceable, precisely because the VFA is intended to carry out
obligations and undertakings under the RP-US Mutual Defense Treaty. As a matter of
fact, the VFA has been implemented and executed, with the US faithfully complying
with its obligation to produce Smith before the court during the trial.
The VFA is covered by implementing legislation inasmuch as it is the very purpose
and intent of the US Congress that executive agreements registered under this Act
within 60 days from their ratification be immediately implemented. The SC noted
that the VFA is not like other treaties that need implementing legislation such as the
Vienna Convention. As regards the implementation of the RP-US Mutual Defense
Treaty, military aid or assistance has been given under it and this can only be done
through implementing legislation. The VFA itself is another form of implementation
of its provisions.
Vinuya vs Executive Secretary
FACTS:
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an
application for the issuance of a writ of preliminary mandatory injunction against
the Office of the Executive Secretary, the Secretary of the DFA, the Secretary of the
DOJ, and the OSG.
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit
organization registered with the SEC, established for the purpose of providing aid to
the victims of rape by Japanese military forces in the Philippines during the Second
World War.
Petitioners claim that since 1998, they have approached the Executive Department
through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the
Japanese officials and military officers who ordered the establishment of the
comfort women stations in the Philippines. But officials of the Executive
Department declined to assist the petitioners, and took the position that the
individual claims of the comfort women for compensation had already been fully
satisfied by Japans compliance with the Peace Treaty between the Philippines and
Japan.
Hence, this petition where petitioners pray for this court to (a) declare that
respondents committed grave abuse of discretion amounting to lack or excess of
discretion in refusing to espouse their claims for the crimes against humanity and
war crimes committed against them; and (b) compel the respondents to espouse
their claims for official apology and other forms of reparations against Japan before
the International Court of Justice (ICJ) and other international tribunals.
Respondents maintain that all claims of the Philippines and its nationals relative to
the war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral
Reparations Agreement of 1956.
On January 15, 1997, the Asian Womens Fund and the Philippine government
signed a Memorandum of Understanding for medical and welfare support programs
for former comfort women. Over the next five years, these were implemented by
the Department of Social Welfare and Development.
ISSUE:
WON the Executive Department committed grave abuse of discretion in not
espousing petitioners claims for official apology and other forms of reparations
against Japan.
RULING:
Petition lacks merit. From a Domestic Law Perspective, the Executive Department
has the exclusive prerogative to determine whether to espouse petitioners claims
against Japan.
Political questions refer to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of
the government. It is concerned with issues dependent upon the wisdom, not
legality of a particular measure.
One type of case of political questions involves questions of foreign relations. It is
well-established that the conduct of the foreign relations of our government is
committed by the Constitution to the executive and legislativethe political
departments of the government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial inquiry or decision. are
delicate, complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare they
advance or imperil.
But not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive
agreements. However, the question whether the Philippine government should
espouse claims of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our Constitution not
to the courts but to the political branches. In this case, the Executive Department
has already decided that it is to the best interest of the country to waive all claims
of its nationals for reparations against Japan in the Treaty of Peace of 1951. The
wisdom of such decision is not for the courts to question.
The President, not Congress, has the better opportunity of knowing the conditions
which prevail in foreign countries, and especially is this true in time of war. He has
his confidential sources of information. He has his agents in the form of diplomatic,
consular and other officials.
The Executive Department has determined that taking up petitioners cause would
be inimical to our countrys foreign policy interests, and could disrupt our relations
with Japan, thereby creating serious implications for stability in this region. For the
to overturn the Executive Departments determination would mean an assessment
of the foreign policy judgments by a coordinate political branch to which authority
to make that judgment has been constitutionally committed.
From a municipal law perspective, certiorari will not lie. As a general principle,
where such an extraordinary length of time has lapsed between the treatys
conclusion and our consideration the Executive must be given ample discretion to
assess the foreign policy considerations of espousing a claim against Japan, from
the standpoint of both the interests of the petitioners and those of the Republic, and
decide on that basis if apologies are sufficient, and whether further steps are
appropriate or necessary.
In the international sphere, traditionally, the only means available for individuals to
bring a claim within the international legal system has been when the individual is
able to persuade a government to bring a claim on the individuals behalf. By taking
up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own
right to ensure, in the person of its subjects, respect for the rules of international
law.
Within the limits prescribed by international law, a State may exercise diplomatic
protection by whatever means and to whatever extent it thinks fit, for it is its own
right that the State is asserting. Should the natural or legal person on whose behalf
it is acting consider that their rights are not adequately protected, they have no
remedy in international law. All they can do is resort to national law, if means are
available, with a view to furthering their cause or obtaining redress. All these
questions remain within the province of municipal law and do not affect the position
internationally.
Even the invocation of jus cogens norms and erga omnes obligations will not alter
this analysis. Petitioners have not shown that the crimes committed by the Japanese
army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or
that the duty to prosecute perpetrators of international crimes is an erga omnes
obligation or has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been
used as a legal term describing obligations owed by States towards the community
of states as a whole. Essential distinction should be drawn between the obligations
of a State towards the international community as a whole, and those arising vis--
vis another State in the field of diplomatic protection. By their very nature, the
former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they are
obligations erga omnes.
The term jus cogens (literally, compelling 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
Bayan Muna vs Executive Secretary
Facts:
Petitioner Bayan Muna is a duly registered party-list group established to represent
the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the
Secretary of Foreign Affairs during the period material to this case. Respondent
Alberto Romulo was impleaded in his capacity as then Executive Secretary.
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute establishing
the International Criminal Court (ICC) with the power to exercise its jurisdiction
over persons for the most serious crimes of international concern x x x and shall be
complementary to the national criminal jurisdictions. The serious crimes adverted
to cover those considered grave under international law, such as genocide, crimes
against humanity, war crimes, and crimes of aggression.
On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed
the Rome Statute which, by its terms, is subject to ratification, acceptance or
approval by the signatory states. As of the filing of the instant petition, only 92 out
of the 139 signatory countries appear to have completed the ratification, approval
and concurrence process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No.
0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-
surrender bilateral agreement (Agreement, hereinafter) between the USA and the
RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03,
hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and
accepted the US proposals embodied under the US Embassy Note adverted to and
put in effect the Agreement with the US government. In esse, the Agreement aims
to protect what it refers to and defines as persons of the RP and US from frivolous
and harassment suits that might be brought against them in international
tribunals.8 It is reflective of the increasing pace of the strategic security and
defense partnership between the two countries. As of May 2, 2003, similar bilateral
agreements have been effected by and between the US and 33 other countries.
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, persons are current or former Government
officials, employees (including contractors), or military personnel or nationals of one
Party.
2. Persons of one Party present in the territory of the other shall not, absent the
express consent of the first Party,
(a) be surrendered or transferred by any means to any international tribunal for any
purpose, unless such tribunal has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or third country,
or expelled to a third country, for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been established by the UN Security
Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of the
Philippines to a third country, the [US] will not agree to the surrender or transfer of
that person by the third country to any international tribunal, unless such tribunal
has been established by the UN Security Council, absent the express consent of the
Government of the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the
[USA] to a third country, the [GRP] will not agree to the surrender or transfer of that
person by the third country to any international tribunal, unless such tribunal has
been established by the UN Security Council, absent the express consent of the
Government of the [US].
5. This Agreement shall remain in force until one year after the date on which one
party notifies the other of its intent to terminate the Agreement. The provisions of
this Agreement shall continue to apply with respect to any act occurring, or any
allegation arising, before the effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on the status of
the non-surrender agreement, Ambassador Ricciardone replied in his letter of
October 28, 2003 that the exchange of diplomatic notes constituted a legally
binding agreement under international law; and that, under US law, the said
agreement did not require the advice and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion to respondents in
concluding and ratifying the Agreement and prays that it be struck down as
unconstitutional, or at least declared as without force and effect.
Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for
contracting obligations that are either immoral or otherwise at variance with
universally recognized principles of international law.
Ruling: The petition is bereft of merit.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its threshold
posture being that E/N BFO-028-03 cannot be a valid medium for concluding the
Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized
international doctrines, practices, and jargonsis untenable. One of these is the
doctrine of incorporation, as expressed in Section 2, Article II of the Constitution,
wherein 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. The United Nations Treaty Collections
(Treaty Reference Guide) defines the term as follows:
An exchange of notes is a record of a routine agreement, that has many
similarities with the private law contract. The agreement consists of the exchange of
two documents, each of the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting State repeats
the text of the offering State to record its assent. The signatories of the letters may
be government Ministers, diplomats or departmental heads. The technique of
exchange of notes is frequently resorted to, either because of its speedy procedure,
or, sometimes, to avoid the process of legislative approval.
In another perspective, the terms exchange of notes and executive agreements
have been used interchangeably, exchange of notes being considered a form of
executive agreement that becomes binding through executive action. On the other
hand, executive agreements concluded by the President sometimes take the form
of exchange of notes and at other times that of more formal documents
denominated agreements or protocols. As former US High Commissioner to the
Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade
Agreement Acts:
The point where ordinary correspondence between this and other governments
ends and agreements whether denominated executive agreements or exchange of
notes or otherwise begin, may sometimes be difficult of ready ascertainment. x x
x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as
the Non-Surrender Agreement itself, or as an integral instrument of acceptance
thereof or as consent to be boundis a recognized mode of concluding a legally
binding international written contract among nations.
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing
immoral obligations and/or being at variance with allegedly universally recognized
principles of international law. The immoral aspect proceeds from the fact that the
Agreement, as petitioner would put it, leaves criminals immune from responsibility
for unimaginable atrocities that deeply shock the conscience of humanity; x x x it
precludes our country from delivering an American criminal to the [ICC] x x x.63
The above argument is a kind of recycling of petitioners earlier position, which, as
already discussed, contends that the RP, by entering into the Agreement, virtually
abdicated its sovereignty and in the process undermined its treaty obligations under
the Rome Statute, contrary to international law principles.
The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, is an assertion by the
Philippines of its desire to try and punish crimes under its national law. x x x The
agreement is a recognition of the primacy and competence of the countrys
judiciary to try offenses under its national criminal laws and dispense justice fairly
and judiciously.
Petitioner, we believe, labors under the erroneous impression that the Agreement
would allow Filipinos and Americans committing high crimes of international concern
to escape criminal trial and punishment. This is manifestly incorrect. Persons who
may have committed acts penalized under the Rome Statute can be prosecuted and
punished in the Philippines or in the US; or with the consent of the RP or the US,
before the ICC, assuming, for the nonce, that all the formalities necessary to bind
both countries to the Rome Statute have been met. For perspective, what the
Agreement contextually prohibits is the surrender by either party of individuals to
international tribunals, like the ICC, without the consent of the other party, which
may desire to prosecute the crime under its existing laws. With the view we take of
things, there is nothing immoral or violative of international law concepts in the act
of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender
agreement over an offense considered criminal by both Philippine laws and the
Rome Statute
Nicaragua vs US
Facts of the Case:
In July 1979, the Government of President Somoza was replaced by a government
installed by Frente Sandinista de Liberacion Nacional (FSLN). Supporters of the
former Somoza Government and former members of the National Guard opposed
the new government. The US initially supportive of the new government changed
its attitude when, according to the United States, it found that Nicaragua was
providing logistical support and weapons to guerrillas in El Salvador. In April 1981
the United States stopped its aid to Nicaragua and in September 1981, according to
Nicaragua, the United States decided to plan and undertake activities directed
against Nicaragua.
The armed activities against the new Government was carried out mainly by
(1) Fuerza Democratica Nicaragense (FDN), which operated along the border with
Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated
along the border with Costa Rica. Initial US support to these groups fighting against
the Nicaraguan Government (called contras) was covert. Later, the United
States officially acknowledged its support (for example: In 1983 budgetary
legislation enacted by the United States Congress made specific provision for funds
to be used by United States intelligence agencies for supporting directly or
indirectly military or paramilitary operations in Nicaragua).
Nicaragua also alleged that the United States is effectively in control of the contras,
the United States devised their strategy and directed their tactics, and that
the contras were paid for and directly controlled by the United States. Nicaragua
also alleged that some attacks against Nicaragua were carried out, directly, by the
United States military with the aim to overthrow the Government of Nicaragua.
Attacks against Nicaragua included the mining of Nicaraguan ports, and other
attacks on ports, oil installations, and a naval base. Nicaragua alleged that aircrafts
belonging to the United States flew over Nicaraguan territory to gather intelligence,
supply to the contras in the field, and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to
accept the ICJs jurisdiction to decide the case. The United States at the
jurisdictional phase of the hearing, however, stated that it relied on an inherent
right of collective self-defence guaranteed in A. 51 of the UN Charter when it
provided upon request proportionate and appropriate assistance to Costa Rica,
Honduras, and El Salvador in response to Nicaraguas acts of aggression against
those countries (paras 126, 128).
Questions before the Court:
1. Did the United States violate its customary international law obligation not to
intervene in the affairs of another State, when it trained, armed, equipped,
and financed the contra forces or when it encouraged, supported, and aided
the military and paramilitary activities against Nicaragua?
 2. Did the United States violate its customary international law obligation not to
use force against another State, when it directly attacked Nicaragua in 1983
and 1984 and when its activities in point (1) above resulted in the use of
force?
3. Can the military and paramilitary activities that the United States undertook
in and against Nicaragua be justified as collective self-defence?
4. Did the United States breach its customary international law obligation not to
violate the sovereignty of another State, when it directed or authorized its
aircrafts to fly over the territory of Nicaragua and because of acts referred to
in (2) above?
5. Did the United States breach its customary international law obligations not
to violate the sovereignty of another State, not to intervene in its affairs, not
to use force against another State and not to interrupt peaceful maritime
commerce, when it laid mines in the internal waters and in the territorial sea
of Nicaragua?
The Courts Decision:
The United States violated customary international law in relation to (1), (2), (4) and
(5) above. On (3), the Court found that the United States could not rely on collective
self-defence to justify its use of force against Nicaragua.
Relevant Findings of the Court:
1. The Court held that the United States violated its customary
international law obligation not to use force against another State when
its activities with the contras resulted in the threat or use of force (see
paras 191-201).
The Court held that:
The prohibition on the use of force is found both in Article 2(4) of the Charter
of the United Nations (UN Charter) and in customary international law.
In a controversial finding the Court sub-classified the use of force as:

(1) most grave forms of the use of force (i.e. those that constitute an armed
attack); and
(2) other less grave forms of the use of force (i.e. organizing, instigating, assisting,
or participating in acts of civil strife and terrorist acts in another State when the
acts referred to involve a threat or use of force, but not amounting to an armed
attack). (Para 191),
The United States violated the customary international law prohibition on the
use of force when it laid mines in Nicaraguan ports. It also violated this
prohibition when it attacked Nicaraguan ports, oil installations, and a naval
base (see below). The United States could only justify its action on the basis
 of collective self-defence, if certain criteria were met (these criteria are
discussed below).
The United States violated the customary international law prohibition on the
use of force when it assisted the contras by organizing or encouraging the
organization of irregular forces and armed bands for incursion into the
territory of another state and participated in acts of civil strifein another
State and when these acts involved the threat or use of force.
The supply of funds to the contras did not violate the prohibition on the use of
force. On the contrary, Nicaragua had previously argued before the Court that
the United States determined the timing of offensives against
Nicaragua when it provided funds to the contras. The Court held that it
does not follow that each provision of funds by the United States was made
to set in motion a particular offensive, and that that offensive was planned by
the United States. The Court held further that the arming and training of the
contras and the supply of funds, in itself, only amounted to acts of
intervention in the internal affairs of Nicaragua and did not violate the
prohibition on the use of force (para 227) (again, this aspect will be discussed
in detail below).
2. The Court held that the United States violated its customary
international law obligation not to use force against another State when it
directly attacked Nicaragua in 1983 and 1984 (see paras 187 201).
Note: A controversial but interesting aspect of the Courts judgement was its
definition of an armed attack. The Court held that an armed attack included:
(1) action by regular armed forces across an international border; and
(2) the sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of (sic) armed force against another State of such
gravity as to amount to (inter alia) an actual armed attack conducted by regular
forces, or its (the States) substantial involvement therein.
Note also that that he second point somewhat resembles Article 3(g) of the UNGA
Resolution 3314 (XXIX) on the Definition of Aggression .
The Court further held that:
Mere frontier incidents will not considered as armed attacks, unless, because
of its scale and effects, it would have been classified as an armed attack had
it been carried out by regular forces.
Assistance to rebels by providing weapons or logistical support did not
constitute an armed attack. Instead, it can be regarded as a threat or use of
force or an intervention in the internal or external affairs of other States (see
paras 195, 230).
Under Article 51 of the UN Charter and under CIL self-defence is only
available against a use of force that amounts to an armed attack (para 211).
3. The Court held that the United States could not justify its military and
paramilitary activities on the basis of collective self-defence.
Note that Article 51 of the UN Charter sets out the treaty based requirements on the
exercise of the right of self-defense. It states:
Nothing in the present Charter shall impair the inherent
right of individual or collectiveself-defence if an armed attack occurs against
a Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security. Measures taken
by Members in the exercise of this right of self-defence shall be immediately
reported to the Security Council.
The Court held that:
Customary international law allows for exceptions to the prohibition on the
use of force, which includes the right to individual or collective self-
defence (see here for a difference between individual and collective self
defense). The United States, at an earlier stage of the proceedings, had
also agreed that the UN Charter acknowledges the existence of this
customary international law right when it talks of the inherent right under
Article 51 of the Charter (para.193).
When a State claims that it used force in collective self-defence, the Court
would examine the following:
(1) Whether the circumstances required for the exercise of self-defence existed; and
(2) Whether the steps taken by the State, which was acting in self-defence,
corresponds to the requirements of international law.
Under international law, several requirements must be met for a State to
exercise the right of individual or collective self-defence:
(1) A State must have been the victim of an armed attack;
(2) That State must declare itself as a victim of an armed attack. The assessment
on whether an armed attack had taken place or not, is done by the State who was
subjected to the attack. A third State cannot exercise a right of collective self-
defence based that third States own assessment;
(3) In the case of collective self-defence, the victim State must request for
assistance. The Court held that there is no rule permitting the exercise of collective
self-defence in the absence of a request by the State which regards itself as the
victim of an armed attack;
(4) A State that is attacked, does not, under customary international law, have the
same obligation as under Article 51 of the UN Charter to report to the Security
Council that an armed attack happened but the Court held that the absence of a
report may be one of the factors indicating whether the State in question was itself
convinced that it was acting in self-defence (see paras 200, 232 -236).
Whatever influence the Charter may have had on customary international law in
these matters, it is clear that in customary international law it is not a condition
of the lawfulness of the use of force in self-defence that a procedure so closely
dependent on the content of a treaty commitment and of the institutions
established by it, should have been followed. On the other hand, if self-defence is
advanced as a justification for measures which would otherwise be in breach both of
the principle of customary international law and of that contained in the Charter, it
is to be expected that the conditions of the Charter should be respected. Thus for
the purpose of enquiry into the customary law position, the absence of a report may
be one of the factors indicating whether the State in question was itself convinced
that it was acting in self-defence (See paras 200, 232 -236).
The Court, then, looked extensively into the conduct of Nicaragua, El
Salvador, Costa Rica, and Honduras to determine if (1) an armed attack
was undertaken by Nicaragua against the three countries, which in turn
would (2) necessitate those countries to act in self-defence against Nicaragua
(paras 230 236). The Court noted that (1) none of the countries who were
allegedly subject to an armed attack by Nicaragua declared themselves as
victims of an armed attack; (2) they did not request assistance from the
United States to exercise its right of self-defence; (3) the United States did
not claim that when it used force, it was acting under Article 51 of the UN
Charter; and (4) the United States did not report that it was acting in self-
defense to the Security Council. The Court concluded that, based on the
above, the United States cannot justify its use of force as collective self-
defence.
In any event, the Court held that the criteria relating to necessity and
proportionality, that is required to be met when using force in self-defence
were also not fulfilled (para 237).
4. The Court held that the United States breached its CIL obligation not to
intervene in the affairs of another State, when it trained, armed, equipped
and financed the contra forces or encouraged, supported and aided the
military and paramilitary activities against Nicaragua.
The Court held that:
The principle of non-intervention requires that every State has a right to
conduct its affairs without outside interference. In other words, the principle
forbids States or groups of States to intervene directly or indirectly in
internal or external affairs of other States. This is a corollary of the principle
of sovereign equality of States. The Court held that:
A prohibited intervention must accordingly be one bearing on matters in which
each State is permitted, by the principle of State sovereignty to decide freely. One
of these is the choice of a political, economic, social and cultural system, and the
formulation of foreign policy. Intervention is wrongful when it uses methods of
coercion in regard to such choices, which must remain free ones. The element of
coercion, which defines, and indeed forms the very essence of, prohibited
intervention, is particularly obvious in the case of an intervention which uses force,
either in the direct form of military action, or in the indirect form of support for
subversive or terrorist armed activities within another State (para 205).
Nicaragua stated that the activities of the United States were aimed to
overthrow the government of Nicaragua, to substantially damage the
economy and to weaken the political system with the aim to coerce the
Government of Nicaragua to accept various political demands of the United
States. The Court concluded that:
first, that the United States intended, by its support of the contras, to coerce the
Government of Nicaragua in respect of matters in which each State is permitted, by
the principle of State sovereignty, to decide freely (see paragraph 205 above) ; and
secondly that the intention of the contras themselves was to overthrow the present
Government of Nicaragua The Court considers that in international law, if one
State, with a view to the coercion of another State, supports and assists armed
bands in that State whose purpose is to overthrow the government of that State,
that amounts to an intervention by the one State in the internal affairs of the other,
whether or not the political objective of the State giving such support and
assistance is equally far reaching.
The financial support, training, supply of weapons, intelligence and logistic
support given by the United States to the contras violated the principle of
non-interference. (N)o such general right of intervention, in support of an
opposition within another State, exists in contemporary international law,
even if such a request for assistance is made by an opposition group of that
State (see para 246 for more).
However, in a controversial finding, the Court held that the United States did
not devise the strategy, direct the tactics of the contras or exercise control on
them in manner so as to make their acts committed in violation of
international law imputable to the United States (see in this
respect Determining US responsibility for contra operations under
international law 81 AMJIL 86). The Court concluded that a number of
military and paramilitary operations of the contras were decided and
planned, if not actually by United States advisers, then at least in close
collaboration with them, and on the basis of the intelligence and logistic
support which the United States was able to offer, particularly the supply
aircraft provided to the contras by the United States but not all contra
operations reflected strategy and tactics wholly devised by the United States.
the various forms of assistance provided to the contras by the United States
have been crucial to the pursuit of their activities, but is insufficient to demonstrate
their complete dependence on United States aid. On the other hand, it indicates
that in the initial years of United States assistance the contra force was so
dependent. However, whether the United States Government at any stage devised
the strategy and directed the tactics of the contras depends on the extent to which
the United States made use of the potential for control inherent in that dependence.
The Court already indicated that it has insufficient evidence to reach a finding on
this point. It is a fortiori unable to determine that the contra force may be equated
for legal purposes with the forces of the United StatesThe Court has taken the
view (paragraph 110 above) that United States participation, even if preponderant
or decisive, in the financing, organizing, training, supplying and equipping of the
contras, the selection of its military or paramilitary targets, and the planning of the
whole of its operation, is still insufficient in itself, on the basis of the evidence in the
possession of the Court, for the purpose of attributing to the United States the acts
committed by the contras in the course of their military or paramilitary operations in
Nicaragua. All the forms of United States participation mentioned above, and even
the general control by the respondent State over a force with a high degree of
dependency on it, would not in themselves mean, without further evidence, that the
United States directed or enforced the perpetration of the acts contrary to human
rights and humanitarian law alleged by the applicant State. Such acts could well be
committed by members of the contras without the control of the United States. For
this conduct to give rise to legal responsibility of the United States, it would in
principle have to be proved that that State had effective control of the military or
paramilitary.
Interesting, however, the Court also held that providing humanitarian aid
to persons or forces in another country, whatever their political affiliations or
objectives, cannot be regarded as unlawful intervention, or as in any other
way contrary to international law (para 242).
In the event one State intervenes in the affairs of another State, the victim
State has a right to intervene in a manner that is short of an armed attack
(210).
While an armed attack would give rise to an entitlement to collective self-defence,
a use of force of a lesser degree of gravity cannot as the Court has already
observed (paragraph 211 above) produce any entitlement to take collective
countermeasures involving the use of force. The acts of which Nicaragua is accused,
even assuming them to have been established and imputable to that State, could
only have justified proportionate counter-measures on the part of the State which
had been the victim of these acts, namely El Salvador, Honduras or Costa Rica.
They could not justify counter-measures taken by a third State, the United States,
and particularly could not justify intervention involving the use of force.
5. The United States violated its customary international law obligation
not to violate the sovereignty of another State, when it directed or
authorized its aircrafts to fly over Nicaraguan territory and when it laid
mines in the internal waters of Nicaragua and its territorial sea.
The Court examined evidence and found that in early 1984 mines were laid
in or close to ports of the territorial sea or internal waters of Nicaragua by
persons in the pay or acting ion the instructions of the United States and
acting under its supervision with its logistical support. The United States did
not issue any warning on the location or existence of mines and this resulted
in injuries and increases in maritime insurance rates.
 The Court found that the United States also carried out high-altitude
reconnaissance flights over Nicaraguan territory and certain low-altitude
flights, complained of as causing sonic booms. It held that a States
sovereignty extends to its internal waters, its territorial sea, and the airspace
above its territory. The United States violated customary international law
when it laid mines in the territorial sea and internal waters of Nicaragua and
when it carried out unauthorised overflights over Nicaraguan airspace by
aircrafts that belong to or was under the control of the United States..

US vs IRAN
Facts:
In November 4, 1974, student militants of the group Muslim Student Followers of
the Imam's Line barged into the US Embassy in Tehran and held US diplomats and
consulars hostage for 444 days. The cause of the Iranian students action against
the US was believed to be the latters grant of medical asylum to Shah Mohammad
Reza Pahlavi and its refusal to turn the Shah over for trial.

The US sought recourse before the international court, asking that the hostages be
freed and that reparations be given to the US by the Iranian government for the
latters failure to carry its international legal obligations. US averred that Iran was
responsible due to its initial inaction to the crisis and its subsequent statement of
support to the seizure.

Issue:
Whether or not Iran was liable to the United States for the seizure of the US
embassy and the hostage-taking of the US nationals by the Iranian militants.

Ruling:
Iran was under obligation to make reparations for the injury caused to the United
States.

Irans failure to take appropriate steps to protect the US embassy and Consulates
was a violation of its obligations under the 1961 Vienna Convention on Diplomatic
Relations, the 1963 Vienna Convention on Consular Relations, and 1955 Treaty of
Amity, Economic Relations and Consular Rights between Iran and the United States.
Iran had the international legal responsibility to keep the embassy inviolable. Iran
was fully aware of its obligations but it did nothing to prevent the take over and the
captivity of the US nationals.

Although the take-over of the embassy was not held to have been an act of the
state, the consequent detention of the US nationals was attributed to Iran because
of its approval and support to said detention, such act was a violation of the
provisions in the aforenamed conventions and treaty. Once organs of the Iranian
State had thus given approval to the acts complained of and decided to perpetuate
them as a means of pressure on the United States, those acts were transformed into
acts of the Iranian State: the militants became agents of that State, which itself
became internationally responsible for their acts.

For its breaches, the Islamic Republic of Iran had incurred responsibility towards the
United States of America. Iran is obliged to make reparations and to endeavor for
the release of the hostages.
Yugoslavia vs US
On 29 April 1999, the (former) Federal Republic of Yugoslavia (FRY) instituted
proceedings before the International Court of Justice (ICJ) against the United States
of America for violation of the obligation not to use force, resulting from the
bombing of Yugoslav territory by the United States and other Member States of
NATO. Concurrent to this Application, the FRY submitted a request for the indication
of provisional measures, calling on the ICJ to order the United States to cease
immediately its acts of use of force and to refrain from any further threat or act of
force against the FRY.

In filing the Application, the FRY relied on Article IX of the Convention on the
Prevention and Punishment of Genocide, 1948 and Article 38(5) of the Rules of the
Court. These articles state, respectively, that disputes between contracting parties
relating to the interpretation, application or fulfilment of the Convention shall be
submitted to the ICJ, and that applications filed against States which have not
accepted the Courts jurisdiction cannot proceed unless and until that State accepts
the Courts jurisdiction for the purposes of the case.

In delivering its decision on 2 June 1999 the ICJ first sought to emphasize its deep
concern over the human tragedy in Kosovo, and declared its profound concern
with the use of force in the Yugoslav territories, which it deemed to raise very
serious issues of international law. Nevertheless, the ICJ reiterated the fundamental
principle of its Statute that it cannot settle a dispute between states in the absence
of the consent of those states to its jurisdiction. Furthermore, it reminded the
parties that it was unable to indicate provisional measures without first establishing
prima facie jurisdiction in a case.

On the issue of prima facie jurisdiction, the ICJ ruled that whilst it was indisputable
that both the United States and the Federal Republic of Yugoslavia are parties to the
Genocide Convention, a reservation made to Article IX by the United States
declaring that its specific consent is needed before any dispute is submitted to
the ICJ, meant that Article IX could not constitute a basis for jurisdiction. Regarding
Article 38(5), the Court said that in the absence of consent by the United States it
lacked even prima facie jurisdiction. As a result, in rejecting the FRYs request for
provisional measures by twelve votes to three, the Court concluded that it
manifestly lacked jurisdiction to entertain Yugoslavias Application.
The Caroline Case