LegRes WEEK 11& 12 Rishi Notes
I. TreatiesA treaty is an agreement under international law entered into by actors
in international law, namely sovereign states and international organizations. A
treaty may also be known as an (international) agreement, protocol, covenant,
convention, pact, or exchange of letters, among other terms.
A. Sources of international law
o Binding force comes from the voluntary decision of sovereign states to obligate
themselves to a mode of behavior
Treaties and Custom
o If the treaty is intended to be declaratory of customary law, it may be seen as
evidence of customary law
o Adherence to treaties can be indicative also of adherence to practice as opinio
juris
o If treaty comes later than a particular custom, treaty should prevail
o If a later treaty is contrary to a customary rile that has the status of jus cogens,
custom will prevail
o The later custom, being the expression of a later will, should prevail
o A treaty is void if, at the time of its conclusion, it conflicts with a preemptory
norm of general international law
o Preemptary norm of general international law a norm accepted and recognized
by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of
general international law having the same character
General Principles of Law Recognized by Civilized Nations
o This has reference to principles of municipal law common to the legal systems of
the world
Judicial Decisions
o Decisions of the court have no binding force except between the parties and in
respect of that particular case
o Decisions do not constitute stare decisis
o Decisions of the ICJ are not only regarded as highly persuasive in international
circles but they have also contributed to the formulation of principles that have
become international law
Teachings of Highly Qualified Writers and Publicists
o Publicists institutions which write on international law
a) The International Commission
b) The Institut de Droit International
c) International Law Association
d) Restatement of Foreign Relations Law of the US
e) Annual publication of the Hague Academy of International Law
Equity
o When accepted, is an instrument whereby conventional or customary law may be
supplemented or modified in order to achieve justice
o Where 2 parties have assumed an identical or a reciprocal obligation, one party
which is engaged in a continuing non-performance of that obligation should not
be permitted to take advantage of a similar non-performance of that obligation by
the other parties
o The Courts recognition of equity as part of international law is in no way
restricted by the special power conferred upon it to decide a case ex aequo et
bono, if the parties agree thereto
o Kinds of Equity:
1. Intra legemwithin the law; the law is adapted to the facts of the case
2. Praeter legembeyond the law; used to fill the gaps within the law
3. Contra legemagainst the law; refusal to apply the law which is seen as
unjust
Other Supplementary Evidence
1. UN Resolutionsgenerally considered merely recommendatory but if they
are supported by all the states, they are an expression of opinio juris
communis
2. Soft LawNon-treaty Agreements; international agreements not concluded
as treaties and therefore not covered by the Vienna Convention on the Law
of Treaties
Administrative Rulesguide the practice of states in relation to
international organizations
PHIL. CONST. art. II, 2.Section 2. The Philippines renounces war as an
instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.
B. Treaties and executive agreementsAn executive agreement is an agreement
between the heads of government of two or more nations that has not been ratified by
the legislature as treaties are ratified. Executive agreements are considered politically
binding to distinguish them from treaties which are legally binding.
BAYAN MUNA V ROMULO, G.R. No. 159618, Feb. 1, 2011.
FACTS: In 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.
In 2003, via Exchange of Notes with the US government, the RP, represented by
then DFA Secretary Ople, finalized a non-surrender agreement which aimed to
protect certain persons of the RP and US from frivolous and harassment suits that
might be brought against them in international tribunals.
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:
Did respondents abuse their discretion amounting to lack or excess of jurisdiction in
concluding the RP-US Non Surrender Agreement in contravention of the Rome
Statute?
Is the agreement valid, binding and effective without the concurrence by at least 2/3
of all the members of the Senate?
HELD: The Agreement does not contravene or undermine, nor does it differ from,
the Rome Statute. Far from going against each other, one complements the other. As
a matter of fact, the principle of complementarity underpins the creation of the ICC.
According to Art. 1 of the Statute, the jurisdiction of the ICC is to be
complementary to national criminal jurisdictions [of the signatory states]. the Rome
Statute expressly recognizes the primary jurisdiction of states, like the RP, over
serious crimes committed within their respective borders, the complementary
jurisdiction of the ICC coming into play only when the signatory states are unwilling
or unable to prosecute.
Also, under international law, there is a considerable difference between a State-
Party and a signatory to a treaty. Under the Vienna
Convention on the Law of Treaties, a signatory state is only obliged to refrain from
acts which would defeat the object and purpose of a treaty. The Philippines is only a
signatory to the Rome Statute and not a State-Party for lack of ratification by the
Senate. Thus, it is only obliged to refrain from acts which would defeat the object
and purpose of the Rome Statute. Any argument obliging the Philippines to follow
any provision in the treaty would be premature. And even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when one of the States is
not a State-Party to the Rome Statute.
***
The right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the
earliest days of our history, we have entered executive agreements covering such
subjects as commercial and consular relations, most favored-nation rights, patent
rights, trademark and copyright protection, postal and navigation arrangements and
the settlement of claims. The validity of these has never been seriously questioned by
our courts.
Executive agreements may be validly entered into without such concurrence. As the
President wields vast powers and influence, her conduct in the external affairs of the
nation is, as Bayan would put it, executive altogether. The right of the President to
enter into or ratify binding executive agreements has been confirmed by long
practice.
Incorporation generally accepted principles of international law are deemed part of
the law of the land
Transformation treaties must be concurred by Senate
Sources:
1. Philippine Treaty SeriesA Collection of the Texts of Treaties and Other
International Agreements to Which the Philippines Is a Party
2. Philippine Treaties IndexThis treaty database was developed by the Office of
Legal Affairs Department of Foreign Affairs (DFA-OLA) and the Library Services
of the Supreme Court of the Philippines. Please click the following for an overview
of Philippine Treaty Law and Practice.
II. Ordinances
An ordinance is a law passed by a municipal government. A municipality, such
as a city, town, village, or borough, is a political subdivision of a state within
which a municipal corporation has been established to provide local
government to a population in a defined area.
WHITE LIGHT CORP V CITY OF MANILA, G.R. No. 122846, Jan. 20,
2009 (validity)
Police Power Not Validly Exercised Infringement of Private Rights
On 3 Dec 1992, then Mayor Lim signed into law Ord 7774 entitled An Ordinance
prohibiting short time admission in hotels, motels, lodging houses, pension houses
and similar establishments in the City of Manila. White Light Corp is an operator of
mini hotels and motels who sought to have the Ordinance be nullified as the said
Ordinance infringes on the private rights of their patrons. The RTC ruled in favor of
WLC. It ruled that the Ordinance strikes at the personal liberty of the individual
guaranteed by the Constitution. The City maintains that the ordinance is valid as it is
a valid exercise of police power. Under the LGC, the City is empowered to regulate
the establishment, operation and maintenance of cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging houses and other similar
establishments, including tourist guides and transports. The CA ruled in favor of the
City.
ISSUE: Whether or not Ordinance 7774 is valid.
HELD: The SC ruled that the said ordinance is null and void as it indeed infringes
upon individual liberty. It also violates the due process clause which serves as a
guaranty for protection against arbitrary regulation or seizure. The said ordinance
invades private rights. Note that not all who goes into motels and hotels for wash up
rate are really there for obscene purposes only. Some are tourists who needed rest or
to wash up or to freshen up. Hence, the infidelity sought to be avoided by the said
ordinance is more or less subjected only to a limited group of people. The SC
reiterates that individual rights may be adversely affected only to the extent that may
fairly be required by the legitimate demands of public interest or public welfare.
Six tests for a valid ordinance:
(1) must not contravene the Constitution or any statute;
(2) must not be unfair or oppressive;
(3) must not be partial or discriminatory;
(4) must not prohibit but may regulate trade;
(5) must be general and consistent with public policy; and
(6) must not be unreasonable
III. Administrative issuances, rules, and regulations
ADMINISTRATIVE CODE, bk. IV, chap. 11 Chapter 11
WHO MAY ISSUE ORDERS, ISSUANCES? 1. President, 2. Secretaries, and 3.
heads of bureaus, offices or agencies. MAY IMPOSE PENALTIES WHEN THE
LAW PROVIDES FOR IT.
Circulars are applicable to the public. It must be published and sent to the UP Law
Center.
Issuances are applicable to offices outside of the government.
Orders are applicable internally to bureaus, departments etc. They dont apply to the
public so it is not necessary to be published.
ADMINISTRATIVE ISSUANCESSec. 50. General Classification of Issuances. -
The administrative issuances of Secretaries and heads of bureaus, offices or agencies
shall be in the form of circulars or orders
ADMINISTRATIVE CODE, bk. IV, chap. 6, 36SECTION 36. Authority to
Prescribe Forms and Issue Regulations. (1) The head of a bureau or office shall
prescribe forms and issue circulars or orders to secure the harmonious and
efficient administration of his bureau or office and to carry into full effect the laws
relating to matters within his jurisdiction. Penalties shall not be prescribed in any
circular or order for its violation, except as expressly allowed by law;
(2) Heads of bureaus or offices are authorized to issue orders regarding the
administration of their internal affairs for the guidance of or compliance by their
officers and employees;
(3) Regional directors are authorized to issue circulars of purely informational
or implementing nature and orders relating to the administration of the internal
affairs of regional offices and units within their supervision; and
(4) Issuances under paragraphs (2) and (3) hereof shall not require, for their
effectivity, approval by the Secretary or other authority.
***
CIVIL CODE, art. 7Article 7. Laws are repealed only by subsequent ones, and
their violation or non-observance shall not be excused by disuse, or custom or
practice to the contrary.
When the courts declared a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when
they are not contrary to the laws or the Constitution. (5a)
TANADA V TUVERA, G.R. No. L-63915, December 29, 1986. TAADA VS.
TUVERA
146 SCRA 446 (December 29, 1986) FACTS:
This is a motion for reconsideration of the decision promulgated on April 24, 1985.
Respondent argued that while publication was necessary as a rule, it was not so when
it was otherwise as when the decrees themselves declared that they were to
become effective immediately upon their approval.
ISSUES:
Whether or not a distinction be made between laws of general applicability and laws
which are not as to their publication;Whether or not a publication shall be made in
publications of general circulation.
HELD:The clause unless it is otherwise provided refers to the date of effectivity
and not to the requirement of publication itself, which cannot in any event be
omitted. This clause does not mean that the legislature may make the law effective
immediately upon approval, or in any other date, without its previous publication.
Laws should refer to all laws and not only to those of general application, for
strictly speaking, all laws relate to the people in general albeit there are some that do
not apply to them directly. A law without any bearing on the public would be invalid
as an intrusion of privacy or as class legislation or as an ultra vires act of the
legislature. To be valid, the law must invariably affect the public interest eve if it
might be directly applicable only to one individual, or some of the people only, and
not to the public as a whole.
All statutes, including those of local application and private laws, shall be published
as a condition for their effectivity, which shall begin 15 days after publication unless
a different effectivity date is fixed by the legislature.
Publication must be in full or it is no publication at all, since its purpose is to inform
the public of the content of the law.
Article 2 of the Civil Code provides that publication of laws must be made in the
Official Gazette, and not elsewhere, as a requirement for
their effectivity. The Supreme Court is not called upon to rule upon the wisdom of a
law or to repeal or modify it if it finds it impractical.
The publication must be made forthwith, or at least as soon as possible.
J. Cruz:
Laws must come out in the open in the clear light of the sun instead of skulking in
the shadows with their dark, deep secrets. Mysterious pronouncements and rumored
rules cannot be recognized as binding unless their existence and contents are
confirmed by a valid publication intended to make full disclosure and give proper
notice to the people. The furtive law is like a scabbarded saber that cannot faint,
parry or cut unless the naked blade is drawn.
IV.
COMMISSIONER OF CUSTOMS V HYPERFEEDS MIX, G.R. No. 179579,
Feb. 1, 2012.
FACTS:
November 7 2003, petitioner Commissioner of Customs issued CMO 27-
2003 (Customs Memorandum Order). Under the memorandum, for tariff purposes,
wheat is classified according to: 1. Importer or consignee, 2. Country of origin, and
3. Port of discharge. Depending on these factors wheat would be classified as either
as food grade or food feed. The corresponding tariff for food grade wheat was 3%,
for food feed grade 7%. A month after the issuance of CMO 27-200 respondent filed
a petition for declaratory for Relief with the Regional Trial Court of Las Pias City.
Respondent contended that CMO 27-2003 was issued without following
the mandate of the Revised Administrative Code on public participation, prior notice,
and publication or registration with University of the Philippines Law Canter.
Respondent also alleged that the regulation summarily adjudged it to be a feed grade
supplier without the benefit of prior assessment and examination, despite having
imported food grade wheat, it would be subjected to the 7% tariff upon the arrival of
the shipment, forcing to pay 133%. Respondent also claimed that the equal
protection clause of the Constitution was violated and asserted that the retroactive
application of the regulation was confiscatory in nature.
Petitioners filed a Motion to Dismiss. They alleged that: 1. The RTC did not
have jurisdiction over the subject matter of the case, 2. an action for declaratory
relief (Rule 63, Sec.1 who may file petition) was improper, 3. CMO 27-2003 was
internal administrative rule not legislative in nature, and 4. The claims of respondent
were speculative and premature, because the Bureau of Customs had yet to examine
respondents products.
RTC held that a petition for declaratory relief was proper remedy, and that
respondent was the proper party to file it.
ISSUE:
Whether or not the CMO 27-2003 of the petitioner met the requirements for
the Revised Administrative Code? Whether or not the content of the CMO 27-2003
met the requirement of the equal protection clause of the Constitution?
RULING:
No, they did not. The petitioners violated respondents right to due process
(PROPER PROCEDURE) in the issuance of CMO 27-2003 when they failed to
observe the requirements under the Administrative Code which are:
Sec 3. Filing. (1) Every agency shall file with the University of the Philippines Law
Center three (3) certified copies of every rule adopted by it. Rules in force on the
date of effectively of this Code which are not filed within three (3) months from that
date shall not thereafter be the bases of any sanction against any party of persons.
Sec 9. Public Participation. - (1) If not otherwise required by law, an
agency shall, as far as practicable, publish or circulate notices of proposed
rules and afford interested parties the opportunity to submit their views
prior to the adoption of any rule. (2) In the fixing of rates, no rule or final
order shall be valid unless the proposed rates shall have been published in a
newspaper of general circulation at least 2 weeks before the first hearing
thereon.(3) In case of opposition, the rules on contested cases shall be
observed.
No. CMO 27-2003 did not meet these requirements. For a classification to be
reasonable, it must be shown that 1. it rests on substantial distinctions; 2. it is
germane to the purpose of the law; 3. it is not limited to existing conditions only; and
4. it applies equally to all members of the same class. Petitioners violated
respondents right to equal protection of laws when they provided for unreasonable
classification in the application of the regulation. Petitioner Commissioner of
Customs went beyond his powers of delegated authority when the regulation limited
the powers of the customs officer to examine and assess imported articles.
Presidential issuances ADMINISTRATIVE CODE, bk. III, chaps. 1 & 2.
***
[A] legislative rule is in the nature of subordinate legislation, designed to
implement a primary legislation by providing the details thereof. xxx
In addition such rule must be published. On the other hand, interpretative rules are
designed to provide guidelines to the law which the administrative agency is in
charge of enforcing.
Accordingly, in considering a legislative rule, a court is free to make three
inquiries: (i) whether the rule is within the delegated authority of the
administrative agency; (ii) whether it is reasonable; and (iii) whether it was
issued pursuant to proper procedure. But the court is not free to substitute its
judgment as to the desirability or wisdom of the rule for the legislative body, by
its delegation of administrative judgment, has committed those questions to
administrative judgments and not to judicial judgments. In the case of an
interpretative rule, the inquiry is not into the validity but into the correctness
or propriety of the rule. As a matter of power a court, when confronted with an
interpretative rule, is free to (i) give the force of law to the rule; (ii) go to the
opposite extreme and substitute its judgment; or (iii) give some intermediate degree
of authoritative weight to the interpretative rule. (Emphasis supplied)
Are legislative rules applicable to the public? Yes. Must be published.
How about interpretative rules? Only to an internal office. May not be published.
***
BOOK IIIOFFICE OF THE PRESIDENT
Title IPOWERS OF THE PRESIDENT
Chapter 1 POWER OF CONTROL
Sec. 1. Power of Control - The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed.
Chapter 2 ORDINANCE POWER
Sec. 2. Executive Orders. - Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or
statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. - Acts of the President which relate to particular
aspect of governmental operations in pursuance of his duties as administrative
head shall be promulgated in administrative orders.
Sec. 4. Proclamations. - Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation
of a specific law or regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.
EXAMPLE: DECLARES A HOLIDAY
Sec. 5. Memorandum Orders. - Acts of the President on matters of administrative
detail or of subordinate or temporary interest which only concern a particular
officer or office of the Government shall be embodied in memorandum orders
Sec. 6. Memorandum Circulars. - Acts of the President on matters relating to
internal administration, which the President desires to bring to the attention of all
or some of the departments, agencies, bureaus or offices of the Government, for
information or compliance, shall be embodied in memorandum circulars
Sec. 7. General or Special Orders. - Acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be
issued as general or special orders
EXAMPLE: ORDERS MILITARY TO GO TO MARAWI
V. Lack of applicable law CIVIL CODE, art. 9Article 9. No judge or
court shall decline to render judgment by reason of the silence, obscurity or
insufficiency of the laws. (6)
SILVERIO V REPUBLIC, G.R. No. 174689, Oct. 19, 2007
Petitioner: Rommel Jacinto Dantes Silverio
*Substantive right, no law, cannot invoke Art. 9
FACTS:
On November 26, 2002, Silverio field a petition for the change of his first name
Rommel Jacinto to Mely and his sex from male to female in his birth certificate due to their difficulty in finding a new
in the RTC of Manila, Branch 8, for reason of his sex reassignment. He alleged that
he is a male transsexual, he is anatomically male but thinks and acts like a female.
The Regional Trial Court ruled in favor of him, explaining that it is consonance with
the principle of justice and equality.
The Republic, through the OSG, filed a petition for certiorari in the Court of Appeals
alleging that there is no law allowing change of name by reason of sex alteration.
Petitioner filed a reconsideration but was denied. Hence, this petition.
ISSUE:
WON change in name and sex in birth certificate are allowed by reason of sex
reassignment.
HELD:
No. A change of name is a privilege and not a right. It may be allowed in cases
where the name is ridiculous, tainted with dishonor, or difficult to pronounce or
write; a nickname is habitually used; or if the change will avoid confusion. The
petitioners basis of the change of his name is that he intends his first name
compatible with the sex he thought he transformed himself into thru surgery. The
Court says that his true name does not prejudice him at all, and no law allows the
change of entry in the birth certificate as to sex on the ground of sex reassignment.
The Court denied the petition.
REYES V LIM, G.R. No. 134241, Aug. 11, 2003.A Digest of David Reyes vs.
Jose Lim, G.R. No. 134241, August 11, 2003
*Procedural, equity, Art. 9
Facts: Petitioner David Reyes filed a complaint for annulment of contract and
damages against respondents. The complaint alleged that Reyes as seller and Lim as
buyer entered into a contract to sell a parcel of land located along F.B. Harrison
Street, Pasay City with a monthly rental of P35,000.
The complaint claimed that Reyes had informed Harrison Lumber to vacate the
Property before the end of January 1995. Reyes also informed Keng and Harrison
Lumber that if they failed to vacate by 8 March 1995, he would hold them liable for
the penalty of P400,000 a month as provided in the Contract to Sell. It was also
alleged that Lim connived with Harrison Lumber not to vacate the Property until the
P400,000 monthly penalty would have accumulated and equaled the unpaid purchase
price of P18,000,000.
Keng and Harrison Lumber denied that they connived with Lim to defraud Reyes,
and that Reyes approved their request for an extension of time to vacate the Property
location for their business. Harrison Lumber claimed that it had already started
transferring some of its merchandise to its new business location in Malabon.
Lim filed his Answer stating that he was ready and willing to pay the balance of the
purchase price. Lim requested a meeting with Reyes through the latters daughter on
the signing of the Deed of Absolute Sale and the payment of the balance but Reyes
kept postponing their meeting. Reyes offered to return the P10 million down
payment to Lim because Reyes was having problems in removing the lessee from the
Property. Lim rejected Reyes offer and proceeded to verify the status of Reyes title
to the Property. Lim learned that Reyes had already sold the Property to Line One
Foods Corporation Lim denied conniving with Keng and Harrison Lumber to
defraud Reyes.Reyes filed a Motion for Leave to File Amended Complaint due to
supervening facts. These included the filing by Lim of a complaint for estafa against
Reyes as well as an action for specific performance and nullification of sale and title
plus damages before another trial court. The trial court granted the motion.
In his Amended Answer Lim prayed for the cancellation of the Contract to Sell and
for the issuance of a writ of preliminary attachment against Reyes. The trial court
denied the prayer for a writ of preliminary attachment.
Lim requested in open court that Reyes be ordered to deposit the P10 million down
payment with the cashier of the Regional Trial Court of Paraaque. The trial court
granted this motion.
Reyes filed a Motion to Set Aside the Order on the ground the Order practically
granted the reliefs Lim prayed for in his Amended Answer. The trial court denied
Reyes motion.
The trial court denied Reyes Motion for Reconsideration. In the same order, the trial
court directed Reyes to deposit the P10 million down payment with the Clerk of
Court.
Reyes filed a Petition for Certiorari with the Court of Appeals and prayed that the
orders of the trial court be set aside for having been issued with grave abuse of
discretion amounting to lack of jurisdiction. But the Court of Appeals dismissed the
petition for lack of merit.
Hence, this petition for review.
Issue: Whether on not the equity jurisdiction is an applicable law on the matter?

Held: The instant case, the Supreme Court held that if this was a case where there is
hiatus in the law and in the Rules of Court. If this case was left alone, the hiatus will
result in unjust enrichment to Reyes at the expense of Lim. Here the court excercised
equity jurisdiction. The purpose of the exercise of equity jurisdiction in this case is to
prevent unjust enrichment and to ensure restitution so that substantial justice may be
attained in cases where the prescribed or customary forms of ordinary law are
inadequate.

The Supreme Court also state that rescission is possible only when the person
demanding rescission can return whatever he may be obliged to restore. A court of
equity will not rescind a contract unless there is restitution, that is, the parties are
restored to the status quo ante.

In this case, it was just, equitable and proper for the trial court to order the deposit of
the P10 million down payment. The decision of the Court of Appeals was affirmed.