1. PROVINCE OF NORTH COTOBATO VS.

GRP PEACE PANEL

GR No. 183591, October 14, 2008

FACTS: When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended
and the government sought a resumption of the peace talks. The MILF, according to a leading MILF member, initially
responded with deep reservation, but when President Arroyo asked the Government of Malaysia through Prime Minister
Mahathir Mohammad to help convince the MILF to return to the negotiating table, the MILF convened its Central Committee
to seriously discuss the matter and, eventually, decided to meet with the GRP. The parties met in Kuala Lumpur on March
24, 2001, with the talks being facilitated by the Malaysian government, the parties signing on the same date the Agreement
on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter
suspended all its military actions. Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001,
the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic
principles and agenda on the following aspects of the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect. With regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed that the
same be discussed further by the Parties in their next meeting. A second round of peace talks was held in Cyberjaya,
Malaysia on August 5-7, 2001 which ended with the signing of the Implementing Guidelines on the Security Aspect of the
Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was followed by the Implementing Guidelines
on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed on May 7,
2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between government forces and the MILF
from 2002 to 2003. Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by
Al Haj Murad, who was then the chief peace negotiator of the MILF. Murads position as chief peace negotiator was taken
over by Mohagher Iqbal. In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually
leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last August 5, 2008.
Before the Court is what is perhaps the most contentious consensus ever embodied in an instrument the MOA-AD which
is assailed principally by the present petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain and the Presidential Adviser on the
Peace Process (PAPP) Hermogenes Esperon, Jr. On July 23, 2008, the Province of North Cotabato[and Vice-Governor
Emmanuel Piol filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of
Writ of Preliminary Injunction and Temporary Restraining Order. Invoking the right to information on matters of public
concern, petitioners seek to compel respondents to disclose and furnish them the complete and official copies of the MOA-
AD including its attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the
MOA-AD and the holding of a public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional. This initial petition was followed by several other petitions by other parties. The Court ordered the
consolidation of the petitions.
ISSUE: Whether there is a violation of the peoples right to information on matters of public concern (1987 Constitution,
Article III, Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution,
Article II, Sec. 28) including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991?
HELD: YES. The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law. As early as 1948, in Subido v. Ozaeta, the Court has recognized the statutory right to examine and inspect
public records, a right which was eventually accorded constitutional status. The right of access to public documents, as
enshrined in both the 1973 Constitution and the 1987 Constitution, has been recognized as a self-executory constitutional
right. In the 1976 case of Baldoza v. Hon. Judge Dimaano,the Court ruled that access to public records is predicated on the
right of the people to acquire information on matters of public concern since, undoubtedly, in a democracy, the pubic has a
legitimate interest in matters of social and political significance. The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by
the public of the nations problems, nor a meaningful democratic decision-making if they are denied access to information of
general interest. Information is needed to enable the members of society to cope with the exigencies of the times. As has
been aptly observed: Maintaining the flow of such information depends on protection for both its acquisition and its
dissemination since, if either process is interrupted, the flow inevitably ceases. In the same way that free discussion enables
members of society to cope with the exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better perspective of the vital issues confronting the nation, so that they may be
able to criticize and participate in the affairs of the government in a responsible, reasonable and effective manner. It is b y
ensuring an unfettered and uninhibited exchange of ideas among a well-informed San Beda College of Law Based on ATTY.
ADONIS V. GABRIEL lectures 26 Alliance for Alternative Action THE ADONIS CASES 2011 public that a government
remains responsive to the changes desired by the people. The MOA-AD is a matter of public concern That the subject of the
information sought in the present cases is a matter of public concern faces no serious challenge. In fact, respondents admit
that the MOA-AD is indeed of public concern. In previous cases, the Court found that the regularity of real estate transactions
entered in the Register of Deeds, the need for adequate notice to the public of the various laws, the civil service eligibility of a
public employee, the proper management of GSIS funds allegedly used to grant loans to public officials, the recovery of the
Marcoses alleged ill-gotten wealth,[120] and the identity of party-list nominees, among others, are matters of public concern.
Undoubtedly, the MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects the lives of the public at large. Matters of public concern covered by the
right to information include steps and negotiations leading to the consummation of the contract. In not distinguishing as to the
executory nature or commercial character of agreements, the Court has categorically ruled that the right to information
contemplates inclusion of negotiations leading to the consummation of the transaction. Certainly, a consummated contract
is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise the right if no
contract is consummated, and if one is consummated, it may be too late for the public to expose its defects. Requiring a
consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of public
concern, a situation which the framers of the Constitution could not have intended. Such a requirement will prevent the
citizenry from participating in the public discussion of any proposed contract, effectively truncating a basic right enshrined in
the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its avowed
policy of full disclosure of all its transactions involving public interest. Intended as a splendid symmetry to the right to
information under the Bill of Rights is the policy of public disclosure under Section 28, Article II of the Constitution. The policy
of full public disclosure enunciated in above-quoted Section 28 complements the right of access to information on matters of
public concern found in the Bill of Rights. The right to information guarantees the right of the people to demand information,
while Section 28 recognizes the duty of officialdom to give information even if nobody demands. The policy of public
disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely open democracy, with the
peoples right to know as the centerpiece. It is a mandate of the State to be accountable by following such policy. These
provisions are vital to the exercise of the freedom of expression and essential to hold public officials at all times accountable
to the people. Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so
disclose.

2. Commisioner of Custom v. Eastern Sea Trading

Topic: Executive Agreements

NATURE OF THE CASE

This is a petition for review of a decision of the Court of Tax Appeals, whicheversaid a decision of the Commissioner of
Customs

FACTS
Several onion and garlic shipments imported by respondent consignee from Hongkong and Japan were seized and
subjected to forfeiture proceedings for alleged violations of Section 1363 of the Revised Administrative Code. Allegedly,
none of the shipments had the certificate required by Central Bank Circulars 44 and 45 (requiring a Central Bank license and
a certificate authorizing the importation or release of the subject good) for their release. The Collector of Customs of Manila
rendered judgment declaring the forfeiture of the goods in favor of the Government. Upon appeal, the Commissioner of
Customs upheld the Collectors decision. Respondent filed a petition for review with the Court of Tax Appeals. The
CTA reversed the Commissioners decision. Hence, this present petition.

ISSUES
1. Whether the seizure and forfeiture of the goods imported from Japan can be justified under EO 328 (which implements an
executive agreement extending the effectivity of the Trades and Financial Agreements of the Philippines with Japan)
---YES.
2. Whether the executive agreement sought to be implemented by EO 328 is legal and valid, considering that the
Senate has not concurred in the making of said executive agreement
---NO.

RULING
Treaties are different from executive agreements. While treaties are formal documents which require ratification by
the Senate, executive agreements become binding through executive action without the need of a vote by the Senate or
Congress. Further, international agreements involving political issues or changes of national policy and those involving
international arrangements of a permanent character usually take the form of treaties; on the other hand, international
agreements embodying
adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a
more or less temporary nature usually take the form of executive agreements. The right of the Executive to enter into binding
agreements
without the necessity of subsequent Congressional approval has been
confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such
subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned
by our courts. Francis Saye, former US High Commissioner to the Philippines, further states that xxx 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 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 trademarks and copyrights, etcetera. 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 of the settlement of claims against
foreign governments, were concluded independently of any legislation The Parity Rights Agreement, which was provided
for in the Ordinance Appended to the Constitution was the subject of an executive agreement, made without the concurrence
of 2/3 of the Senate of the US. Hence, the validity of the executive agreement in question in this case is patent. The authority
to issue import licenses was not vested exclusively upon the Import Control Commission or Administration. EO 328 provided
for export or import licenses "from the Central Bank of the Philippines or the Import Control Administration" or Commission.
Indeed, the latter was created only to perform the task of implementing certain objectives of the Monetary Board and the
Central Bank,
which otherwise had to be undertaken by these two (2) agencies. Upon the abolition of said Commission, the duty to provide
means and ways for the accomplishment of said objectives had merely to be discharged directly by the Monetary Board and
the Central Bank, even if theafore mentioned Executive Order had been silent thereon. The decision of the CTA is reversed

3. BAYAN (Bagong AlyansangMakabayan), a JUNK VFA MOVEMENT v EXECUTIVE SECRETARY RONALDO ZAMORA
G.R. No. 138570
October 10, 2000

FACTS:
The Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951, To further strengthen their
defense and security relationship. Under the treaty, the parties agreed to respond to any external armed attack on their
territory, armed forces, public vessels, and aircraft.

On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security
which, in effect, would have extended the presence of US military bases in the Philippines.

On July 18, 1997 RP and US exchanged notes and discussed, among other things, 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.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA. On
October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted to the
Senate of the Philippines,the Instrument of Ratification, the letter of the President and the VFA, for concurrence pursuant to
Section 21, Article VII of the 1987 Constitution.

Petitions for certiorari and prohibition, petitioners as legislators, non-governmental organizations, citizens and taxpayers
assail the constitutionality of the VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement.

Petitioner contends, 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.
ISSUES AND RULING:

Issue 1: Do the Petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the
constitutionality of the VFA?

NO. Petitioners Bayan Muna, etc. have no standing. A party bringing a suit challenging the Constitutionality of a law must
show not only that the law is invalid, but that he has sustained or is in immediate danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite way. Petitioners have failed to show that
they are in any danger of direct injury as a result of the VFA.

As taxpayers, they have failed to establish that the VFA involves the exercise by Congress of its taxing or spending powers.
A taxpayer's suit refers to a case where the act complained of directly involves the illegal disbursement of public funds
derived from taxation. Before he can invoke the power of judicial review, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of
the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all
members of the public. Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence
of any allegation by petitioners that public funds are being misspent or illegally expended, petitioners, as taxpayers, have no
legal standing to assail the legality of the VFA.

Similarly, the petitioner-legislators (Tanada, Arroyo, etc.) do not possess the requisite locus standi to sue. In the absence of a
clear showing of any direct injury to their person or to the institution to which they belong, they cannot sue. The Integrated
Bar of the Philippines (IBP) is also stripped of standing in these cases. The IBP lacks the legal capacity to bring this suit in
the absence of a board resolution from its Board of Governors authorizing its National President to commence the present
action.

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised, the Court may
brush aside the procedural barrier and takes cognizance of the petitions.

Issue 2: Is the VFA governed by section 21, Art. VII, or section 25, Art. XVIII of the Constitution?

Section 25, Art XVIII, not section 21, Art. VII, applies, as the VFA involves the presence of foreign military troops in the
Philippines.

The Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements.

Section 21, Article VII reads: [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.

Section 25, Article XVIII, provides:[a]fter the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in
the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting State.

Section 21, Article VII deals with treaties or international agreements in general, in which case, the concurrence of at least
two-thirds (2/3) of all the Members of the Senate is required to make the treaty valid and binding to the Philippines. This
provision lays down the general rule on treaties. All treaties, regardless of subject matter, coverage, or particular designation
or appellation, requires the concurrence of the Senate to be valid and effective. In contrast, Section 25, Article XVIII is a
special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the
Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the
constitutional requirements and to consider the agreement binding on the Philippines. Sec 25 further requires that foreign
military bases, troops, or facilities may be allowed in the Philippines only by virtue of a treaty 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
recognized as such by the other contracting state.

On the whole, the VFA is an agreement which defines the treatment of US troops visiting the Philippines. It provides for the
guidelines to govern such visits of military personnel, and further defines the rights of the US and RP government in the
matter of criminal jurisdiction, movement of vessel and aircraft, import and export of equipment, materials and supplies.
Undoubtedly, 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, however, the provisions of Section 21, Article VII will find
applicability with regard to determining the number of votes required to obtain the valid concurrence of the Senate.

It is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is
no permanent placing of structure for the establishment of a military base. 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. When no distinction is made by law; the Court should not distinguish. We
do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely
foreign troops and facilities, are involved in the VFA. The proscription covers foreign military bases, troops, or facilities.
Stated differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being
established. The clause does not refer to foreign military bases, troops, or facilities collectively but treats them as separate
and independent subjects, such that three different situations are contemplated a military treaty the subject of which could
be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities any of the three standing alone places it under the
coverage of Section 25, Article XVIII.

Issue 3: Was Sec 25 Art XVIII's requisites satisfied to make the VFA effective?

YES

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are
sufficiently met:
(a) it must be under a treaty;
(b) the treaty must be duly concurred in by the Senate and, when so required by Congress, ratified by a majority of the votes
cast by the people in a national referendum; and
(c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the
Senate through Resolution No. 18 is in accordance with the Constitution, as there were at least 16 Senators that concurred.

As to condition (c), the Court held that the phrase recognized as a treaty means that the other contracting party accepts or
acknowledges the agreement as a treaty. To require the US to submit the VFA to the US Senate for concurrence pursuant to
its Constitution, is to accord strict meaning to the phrase. Well-entrenched is the principle that the words used in the
Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the
significance thus attached to them prevails. Its language should be understood in the sense they have in common use.

The records reveal that the US Government, through Ambassador Hubbard, has stated that the US has fully committed to
living up to the terms of the VFA. For as long as the US accepts or acknowledges the VFA as a treaty, and binds itself further
to comply with its treaty obligations, there is indeed compliance with the mandate of the Constitution.

Worth stressing too, is that the ratification by the President of the VFA, and the concurrence of the Senate, should be taken
as a clear and unequivocal expression of our nation's consent to be bound by said treaty, with the concomitant duty to uphold
the obligations and responsibilities embodied thereunder. Ratification is generally held to be an executive act, undertaken by
the head of the state, through which the formal acceptance of the treaty is proclaimed. A State may provide in its domestic
legislation the process of ratification of a treaty. In our jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or
concurrence, to the ratification.

With the ratification of the VFA it now becomes obligatory and incumbent on our part, under principles of international law
(pactasuntservanda), to be bound by the terms of the agreement. Thus, no less than Section 2, Article II declares that the
Philippines 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.

4. Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.

G. R. No. 167919
February 14, 2007

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 FloranteSoriquez. 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.

5. Sec. of Justice v. Lantion

Facts:

On January 13, 1977 P.D. 1069 was issued prescribing the Procedure of the Extradition of Persons who have committed
Crimes in a Foreign Country. The Decree is founded on The Doctrine of Incorporation under the Constitution Art II, Sec 2 of
the 1987 Philippine Constitution.

On November 13, 1994 Justice Secretary Franklin Drilon signed in Manila the Extradition Treaty Between the Government of
the Philippines and the Government of U.S.A. It was ratified by the Senate.

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs of U. S. a request for the
extradition of Mark Jimenez to the United States who are charged in the U.S. with the violation of the following: conspiracy,
attempt to evade tax, false statement or entry, election contributions in the name of another.

Pending evaluation of the extradition documents, Mark Jimenez, through a counsel, on July 1, 1999, requested copies of the
official extradition request from the U.S. Government as well as all documents and papers submitted therewith, and that he
be given ample time to comment on the request after he shall received copies of the requested papers.

Mark Jimenez insisted the constitutional rights particularly the following:

1. the right to be furnished the request and supporting papers;

2. the right to be heard which consists in having a reasonable period of time to oppose the request, and to present evidence
is support of the opposition;

The Depart of Justice Denied the request.

On Aug 6, 1999 Mark Jimenez filed with the R.T.C against the Secretary of Justice, Secretary of Foreign Affairs and the
Director of the NBI for Mandamus (to compel them to furnish to Mark Jimenez the extradition documents.), Certiorari (to set
aside the Sec. of Justice letter dated July 13, 1999), Prohibition (to restrain the Sec of Justice from considering the
extradition request).

On August 10, 1999 the Judge ordered:

The Secretary of Justice et al ordered to maintain the status quo by refraining from committing the acts complained of.

Thus this petition, arguing that Honorable Lantion (Presiding Judge of RTC Manila)acted without or in excess of jurisdiction
or with grave abuse of discretion amounting to lack or abuse discretion amounting to lack or excess of jurisdiction in issuing
the TRO:

1. by ordering the Secretary of Justice to refrain from committing the acts complained of (i.e to desist from refusing Mark
Jimenez access to the official extradition request and documents.)

2. Secretary of Justice was unqualifiedly prevented from performing legal duties under the extradition treaty and the
Philippine Extradition Law.

Issue:

Would Mark Jimenez entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of
the legal duties of the Philippine Government under the RP-US Extradition Treaty?

Held:
Petition Dismissed.

Petitioner (Secretary of Justice) is ordered to furnish Mark Jimenez copies of the extradition request and its supporting
papers, and to grant him (Mark Jimenez) a reasonable period within which to file his comment with supporting evidence.

Under the Doctrine of Incorporation, rules of international law form part of the law of the land and no further legislative action
is needed to make such rules applicable in the domestic sphere.

The doctrine of incorporation is applied whenever municipal tribunals are confronted with situations in which there appears
to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state.

Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law
was enacted with proper regard for the generally accepted principles of international law in observance of the incorporation
clause in the above cited constitutional provision.

In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law
and a municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts, for the reason that
such courts are organs of municipal law and are accordingly bound by it in all circumstances.

The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of
international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most
countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative
enactments. Accordingly, the principle lex posterior derogate priori takes effect a treaty may repeal a statute and a statute
may repeal a treaty. In states where the Constitution is the highest law of the land, such as the Republic of the Philippines,
both statutes and treaties may be invalidated if they are in conflict with the constitution

6. INCHONG VS. HERNANDEZ

101 PHIL. 1155

FACTS: Petitioner filed a suit to invalidate the Retail Trade Nationalization Law, on the premise that it violated several
treaties which under the rule of pactasuntservanda, a generally accepted principle of international law, should be observed
by the Court in good faith.
ISSUE: Whether or not the Retail Trade Nationalization Law is unconstitutional for it is in conflict with treaties which are
generally accepted principles of international law.
HELD: The Supreme Court said it saw no conflict. The reason given by the Court was that the Retail Trade National Law was
passed in the exercise of the police power which cannot be bargained away through the medium of a treaty or a contract.
The law in question was enacted to remedy a real actual threat and danger to national economy posed by alien dominance
and control of the retail business and free citizens and country from such dominance and control; that the enactment clearly
falls within the scope of the police power of the State, thru which and by which it protects its own personality and insures its
security and future. Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real
actual threat and danger to national economy posed by alien dominance and control of the retail business and free citizens
and country from such dominance and control; that the enactment clearly falls within the scope of the police power of the
state, through which and by which it protects its own personality and insures its security and future; that the law does not
violate the equal protection clause of the Constitution because sufficient grounds exist for the distinction between alien and
citizen in the exercise of occupation regulated, nor the due process of the law clause; because the law is prospective in
operation and recognizes the privilege of aliens already engaged in the occupation and reasonably protects their privilege;
that the wisdom and efficacy of the law to carry out its objectives appear to us to be plainly evident - as a matter of fact it
seems not only appropriate but actually necessary - and that in any case such matter falls within the prerogative of the
legislature, with whose power and discretion the judicial department of the Government may not interfere; that the provisions
of the law are clearly embraced in the title, and this suffers from no duplicity and has not misled the legislature of the
segment of the population affected; and that it cannot be said to be void for supposed conflict with treaty obligations because
no treaty has actually been entered into on the subject and the police power may not be curtailed or surrendered by any
treaty or any other conventional agreement.

7.
Lim v. Executive Secretary

Lessons Applicable: Locus Standi, International Law v. Muncipal Law, Certiorari, Incorporation Clause, Treaties

Laws Applicable: Constitution

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.
PartylistsSanlakas 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
pactasuntservanda. 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.

8. PIMENTEL v. 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.

9. CONSTANTINO v. CUISA

Facts:

During the Aquino regime, her administration came up w/ a scheme to reduce the countrys external debt. The solution

resorted to was to incur foreign debts. Three restructuring programs were sought to initiate the program for foreign debts

they are basically buyback programs & bond-conversion programs). Constantino as a taxpayer and in behalf of his minor

children who are Filipino citizens, together w/ FFDC averred that the buyback and bond-conversion schemes are onerous

and they do not constitute the loan contract or guarantee contemplated in Sec. 20, Art. 7 of the Constitution. And

assuming that the President has such power unlike other powers which may be validly delegated by the President, the power

to incur foreign debts is expressly reserved by the Constitution in the person of the President. They argue that the gravity by

which the exercise of the power will affect the Filipino nation requires that the President alone must exercise this power. They

argue that the requirement of prior concurrence of an entity specifically named by the Constitutionthe Monetary Board

reinforces the submission that not respondents but the President alone and personally can validly bind the country. Hence,

they would like Cuisia et al to stop acting pursuant to the scheme.

ISSUE: Whether or not the president can validly delegate her debt power to the respondents.

HELD: There is no question that the president has borrowing powers and that the president may contract or guarantee

foreign loans in behalf of this country w/ prior concurrence of the Monetary Board. It makes no distinction whatsoever and the

fact that a debt or a loan may be onerous is irrelevant. On the other hand, the president can delegate this power to her direct

subordinates. The evident exigency of having the Secretary of Finance implement the decision of the President to execute

the debt-relief contracts is made manifest by the fact that the process of establishing and executing a strategy for managing

the governments debt is deep within the realm of the expertise of the Department of Finance, primed as it is to raise the

required amount of funding, achieve its risk and cost objectives, and meet any other sovereign debt management goals. If

the President were to personally exercise every aspect of the foreign borrowing power, he/she would have to pause from

running the country long enough to focus on a welter of time-consuming detailed activitiesthe propriety of
incurring/guaranteeing loans, studying and choosing among the many methods that may be taken toward this end, meeting

countless times with creditor representatives to negotiate, obtaining the concurrence of the Monetary Board, explaining and

defending the negotiated deal to the public, and more often than not, flying to the agreed place of execution to sign the

documents. This sort of constitutional interpretation would negate the very existence of cabinet positions and the respective

expertise which the holders thereof are accorded and would unduly hamper the Presidents effectivity in running the

government. The act of the respondents are not unconstitutional.

Exception

There are certain acts which, by their very nature, cannot be validated by subsequent approval or ratification by the

President. There are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be

exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any

other person. Such, for instance, in his power to suspend the writ of habeas corpus and proclaim martial law and the

exercise by him of the benign prerogative of pardon (mercy).

There are certain presidential powers which arise out of exceptional circumstances, and if exercised, would involve the

suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by

co-equal branches of government. The declaration of martial law, the suspension of the writ of habeas corpus, and the

exercise of the pardoning power notwithstanding the judicial determination of guilt of the accused, all fall within this special

class that demands the exclusive exercise by the President of the constitutionally vested power. The list is by no means

exclusive, but there must be a showing that the executive power in question is of similar gravitas and exceptional import.

Tomoyuki Yamashita v. Wilhelm Styer

G.R. No. L-129 December 19, 1945

Facts:

Tomoyuki Yamashita was an erstwhile commanding general of the 14th army group of the Japanese Imperial Army in the
Philippines. He was charged before an American Military Commission with the most monstrous crimes ever committed
against the American and Filipino peoples.

Filed before the Court were petition for habeas corpus and prohibition against Lt. Gen. Wilhelm D. Styer, Commanding
General of the United States Army Forces, Western Pacific.

It was alleged that General Yamashita, after his surrender, became a prisoner of war of the US but was later removed from
such status and placed in confinement as an accused charged for war crimes before an American Military Commission
constituted by respondent Lieutenant General Styer.

Petitioner wanted to be reinstated to his former status as prisoner of war, and that the Military Commission be prohibited from
further trying him.

Issues:
(1) That the Military Commission was not duly constituted, and, therefore, it is without jurisdiction;

(2) That the Philippines cannot be considered as an occupied territory, and the Military Commission cannot exercise
jurisdiction therein;

(3) That Spain, the "protecting power" of Japan, has not been given notice of the implementing trial against petitioner,
contrary to the provisions of the Geneva Convention of July 27, 1892, and therefore, the Military Commission has no
jurisdiction to try the petitioner;

(4) That there is against the petitioner no charge of an offense against the laws of war; and

(5) That the rules of procedure and evidence under which the Military Commission purports to be acting denied the petitioner
a fair trial.

Held:

The Court deemed that petition for habeas corpus is untenable.

The relative difference as to the degree of confinement in such cases is a matter of military measure, disciplinary in
character, beyond the jurisdiction of civil courts.

Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The military Commission is not made party
respondent in this case, and although it may be acting, as alleged, without jurisdiction, no order may be issued in these case
proceedings requiring it to refrain from trying the petitioner.

Constitutionality of the Military Commission

The Commission has been validly constituted by Lieutenant General Styer duly issued by General Douglas MacArthur,
Commander in Chief, United States Army Force Pacific, in accordance in authority vested in him and with radio
communication from the Joint Chiefs of Staff.

Under paragraph 356 of the Rules of the Land Welfare a Military Commission for the trial and punishment of the war
criminals must be designated by the belligerent. And the belligerent's representative in the present case is none other than
the Commander in Chief of the United States Army in the Pacific.

The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner and over the offenses
with which he is charged. It has jurisdiction over the person of the petitioner by reason of his having fallen into the hands of
the United States Army Forces. Under paragraph 347 of the Rules of the Land Warfare, "the commanders ordering the
commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent
into whose hands they may fall."

As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of the United States said:

From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of
nations which prescribes, for the conduct of war, the status rights and duties and of enemy nations as well as of enemy
individuals. By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally
do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases.
Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and
punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military
commissions to try persons and offenses which, according to the rules and precepts of the law of nations, and more
particularly the law of war, are cognizable by such tribunals. (Ex parteQuirin, 317 U.S. 1, 27-28; 63 Sup. Ct., 2.)

Philippine jurisdiction to the case

Petitioner is charged before the Military Commission sitting at Manila with having permitted members of his command "to
commit brutal atrocities and other high crimes against the people of the United States and of its allies and dependencies,
particularly the Philippines," crimes and atrocities which in the bills of particulars, are described as massacre and
extermination of thousand and thousands of unarmed noncombatant civilians by cruel and brutal means, including
bayoneting of children and raping of young girls, as well as devastation and destruction of public, or private, and religious
property for no other motive than pillage and hatred. These are offenses against the laws of the war as described in
paragraph 347 of the Rules of Land Warfare.
It is maintained, however, that, according to the Regulations Governing the Trial of War Criminals in the Pacific. "the Military
Commission . . . shall have jurisdiction over all of Japan and other areas occupied by the armed forces commanded by the
Commander in Chief, United States Army Forces, Pacific" (emphasis supplied), and the Philippines is not an occupied
territory. The American Forces have occupied the Philippines for the purpose of liberating the Filipino people from the
shackles of Japanese tyranny, and the creation of a Military Commission for the trial and punishment of Japanese war
criminals is an incident of such war of liberation.

Third Issue Spain as protecting power of Japan

It is maintained that Spain, the "protecting power" of Japan, has not been given notice before trial was begun against
petitioner, contrary to the provisions of the Geneva Convention of July 27, 1929. But there is nothing in that Convention
showing that notice is a prerequisite to the jurisdiction of Military Commissions appointed by victorious belligerent. Upon the
other hand, the unconditional surrender of Japan and her acceptance of the terms of the Potsdam Ultimatum are a clear
waiver of such a notice. It may be stated, furthermore, that Spain has severed her diplomatic relation of Japan because of
atrocities committed by the Japanese troops against Spaniards in the Philippines. Apparently, therefore, Spain has ceased to
be the protecting power of Japan.

Dismissal of the petition

And, lastly, it is alleged that the rules of procedure and evidence being followed by the Military Commission in the admission
of allegedly immaterial or hearsay evidence, cannot divest the commission of its jurisdiction and cannot be reviewed in a
petition for the habeas corpus. (25 Am. Jur., 218; Collins vs. McDonald, 258 U. S. 416; 66 Law. ed., 692; 42 Sup. Ct., 326).

For all foregoing, petition is hereby dismissed without costs.

10.
PHARMACEUTICAL v. Duque III

FACTS : Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of
Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-respondent since respondents issued
the questioned RIRR in their capacity as officials of said executive agency.1Executive Order No. 51 (Milk Code) was issued
by President Corazon Aquino on October 28, 1986 by virtue of the legislative powers granted to the president under the
Freedom Constitution. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Article 112
of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly
(WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be
supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for
breastmilk substitutes.In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of
said instrument provides that State Parties should take appropriate measures to diminish infant and child mortality, and
ensure that all segments of society, specially parents and children, are informed of the advantages of breastfeeding. On May
15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.

Issue:
1. W/N the pertinent intl agreements entered into by the Phil are part of the law of the land and may be implemented by DOH
through the RIRR. If yes, W/N the RIRR is in accord with intl agreements

2. Whether Administrative Order or the Revised Implementing Rules and Regulations (RIRR) issued by the Department of
Health (DOH) is not constitutional;

Ruling:

1. Yes for ICBMS. Under 1987 Consti, intl law can become domestic law by transformation (thru constitutional mechanism
such as local legislation) or incorporation (mere constitutional declaration i.e treaties) The ICBMS and WHA resolutions were
not treaties as they have not been concurred by 2/3 of all members of the Senate as required under Sec, 21, Art 8. However,
the ICBMS had been transformed into domestic law through a local legislation such as the Milk Code. The Milk Code is
almost a verbatim reproduction of ICBMS.
 2. YESunder Article 23, recommendations of the WHA do not come into force for members,in the same way that conventions
or agreements under Article 19 and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to Members with respect to any matter within
the competence of the Organization
for an international rule to be considered as customary law, it must be established that such rule is being followed by states
because they consider it obligatory to comply with such rules

Under the 1987 Constitution, international law can become part of the sphere of domestic law either

By transformation or incorporation. The transformation method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere
constitutional declaration, international law is deemed to have the force of domestic law.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions
of the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies
without the need of a law enacted by the legislature

11. Bayan Muna v. Romulo and Ople

Facts
Then US Ambassador Francis Ricciardone sent US Embassy Note 0470 to the DFA proposing the terms of the Non-
surrender Bilateral Agreement between the Philippines and the US. Via Exchange of Notes BFO-028-03, the Philippines,
through Sec. Ople, agreed and accepted the US proposals embodied under the US Embassy Note and put in effect the Non-
surrender Agreement with the US government. The Non-surrender Agreement aims to protect what it refers to and defines as
persons of the Philippines and the US from frivolous and harassment suits that might be brought against them in international
tribunals. It provides that the persons of one party present in the territory of the other shall not, absent the express consent of
the first party be surrendered or transferred by any means to any international tribunal for any purpose or 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. When the US/Philippines extradites,
surrenders, or otherwise transfers a person of the Philippines/US to a third country, the US/Philippines 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/Philippines. Petitioners
argue that the Exchange of Notes BFO-028-03 cannot be a valid medium for concluding an agreement, that it cannot partake
the nature of a treaty without being ratified by the Senate, that the Non-surrender Agreement does not fall under any subject-
categories enumerated in a previous case, and that the Non-surrender Agreement infringes the effectivity of the Rome
Statute
insofar as it unduly restricts the ICCs jurisdiction.

Issues
1) Can the Non-surrender Agreement be validly concluded through exchanges of notes?
2) Is the Non-surrender Agreement a violation of the obligation of the Philippines under the Rome Statute?

Held
The Petition is denied for lack of merit.

Ratio
1)
An exchange of notes falls into the category of inter-governmental agreements which is an internationally accepted form of
international agreement. It as a record of routine agreement that has many similarities with the private law contract. The
agreement consists of 2 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. The terms exchanges of notes and executive agreements have been used interchangeably, the former being a
form of executive agreement that becomes binding through executive action. The categorization of subject matters that may
be covered by international agreements mentioned in Eastern Sea Trading case is not cast in stone. There are no hard and
fast rules on the propriety of entering, on a given subject, into a treaty or executive agreement as an instrument of
international relations. The primary consideration in thechoice of the form of agreement is the parties intent and desire to
craft an international
agreement in the form they so wish to further their respective interests. There is no difference between treaties and executive
agreements in terms of their binding effects on the contracting parties, as long as the negotiating functionaries have
remained within their powers. The right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage, the validity of which has never been seriously
questioned by the Court. The President as head of state and government is the sole organ and authority in the external
affairs of the country. The Constitution vests in the President the power to enter into international agreements, subject to the
required concurrence votes of the Senate. But 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 executive altogether. The
President by ratifying through her deputies the Non-surrender agreement, did nothing more than discharge a constitutional
duty and exercise a prerogative that pertains to the Office.

2)
The Non-surrender agreement does not undermine the Rome Statute. The jurisdiction of the ICC is to be complementary to
national criminal jurisdiction of signatory states. Itis the duty of every State to exercise its criminal jurisdiction over those
responsible for international crimes. The primary jurisdiction over the so-called international crimes rests, at the first instance,
with the State where the crime was committed; secondarily with the ICC in appropriate situations. The Non-surrender
agreement does not violate
the Philippines duty required by the imperatives of good faith to refrain from
performing any act tending to impair the Rome Statute. The Philippines has not abdicated its sovereignty by bargaining away
the jurisdiction of the ICC to prosecute US national who commit serious crimes of international concerns in the Philippines.
The Non-surrender agreement is an affirmance of the Philippines
national criminal jurisdiction. The Philippines may decide to try persons of the US under our national criminal jurisdiction. Or
the country may opt not to exercise its criminal jurisdiction and defer to the ICC. As to persons of the US whom the
Philippines refuses to prosecute, the country would in effect accord discretion to the US to exercise with merits national
criminal jurisdiction or consent to the referral of the matter to the ICC for trial. By their nature, international agreements
actually have a limiting effect on the otherwise encompassing nature of sovereignty. By their voluntary act, nations may
decide to surrender or waive some aspects of their state power. In this partial surrender, greater benefits are derived from a
pact or reciprocal undertaking. Evidently, there is as yet, no overwhelming consensus, let alone prevalent practice, among
the different countries in the world that the prosecution of internationally recognized crimes should be handled by a particular
international criminal court.

12.
THE PAQUETE HABANA, 175 U.S. 677 (1900)
Facts:
These are two appeals from decrees of the district court of the United States for the southern district of Florida condemning
two fishing vessels and their cargoes as prize of war.

Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba. It
sailed under the Spanish flag and was owned by a Spanish subject of Cuban birth, living in the city of Havana. It was
commanded by a subject of Spain, also residing in Havana. Her master and crew had no interest in the vessel, but were
entitled to share her catch.

Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were caught, and kept and sold
alive. Until stopped by the blockading squadron she had no knowledge of the existence of the war or of any blockade. She
had no arms or ammunition on board, and made on attempt to run the blockade after she knew of its existence, nor any
resistance at the time of the capture.

The Paquete Habana (1st vessel) was a sloop and had a crew of three Cubans, including the master, who had a fishing
license from the Spanish government, and no other commission or license. She left Havana and was captured by the United
States gunboat Castine.

The Lola (2nd vessel) was a schooner and had a crew of six Cubans, including the master, and no commission or license.
She was stopped by the United States steamship Cincinnati, and was warned not to go into Havana, but was told that she
would be allowed to land at Bahia Honda. She then set for Bahia Honda, but on the next morning, when near that port, was
captured by the United States steamship Dolphin.
Both the fishing vessels were brought by their captors into Key West. A libel for the condemnation of each vessel and her
cargo as prize of war was filed. Each vessel was sold by auction (the Paquete Habana for the sum of $490 and the Lola for
the sum of $800). There was no other evidence in the record of the value of either vessel or of her cargo.

Issue:
Whether or not the fishing smacks were subject to capture during the war with Spain.

Held:

No. By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international
law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt,
with their cargoes and crews, from capture as prize of war. (The case then discussed instances throughout history where
fishing vessels were captured.)

It will be convenient to refer to some leading French treatises on international law as determined by the general consent of
civilized nations.

'Enemy ships,' say Pistoye and Duverdy, in their Treatise on Maritime Prizes, published in 1855, 'are good prize. Not all,
however; for it results from the unanimous accord of the maritime powers that an exception should be made in favor of coast
fishermen. Such fishermen are respected by the enemy so long as they devote themselves exclusively to fishing.'
De Cussy, in his work on the Phases and Leading Cases of the Maritime Law of Nations, affirms in the clearest language the
exemption from capture of fishing boats, saying, that 'in time of war the freedom of fishing is respected by belligerents; fishing
boats are considered as neutral; in law, as in principle, they are not subject either to capture or to confiscation.

Ortolan, in the fourth edition of his ReglesInternationales et Diplomatie de la Mer, after stating the general rule that the
vessels and cargoes of subjects of the enemy are lawful prize, says: 'Nevertheless, custom admits an exception in favor of
boats engaged in the coast fishery; these boats, as well as their crews, are free from capture and exempt from all hostilities.
The coast-fishing industry is, in truth, wholly pacific, and of much less importance in regard to the national wealth that it may
produce than maritime commerce or the great fisheries. Peaceful and wholly inoffensive, those who carry it on, may be called
the harvesters of the territorial seas, since they confine themselves to gathering in the products thereof; they are for the most
part poor families who seek in this calling hardly more than the means of gaining their livelihood.' Again, after observing that
there are very few solemn public treaties which make mention of the immunity of fishing boats in time of war, he says: 'From
another point of view the custom which sanctions this immunity is not so general that it can be considered as making an
absolute international rule; but it has been so often put in practice, and, besides, it accords so well with the rule in use in
wars on land, in regard to peasants and husbandmen, to whom coast fishermen may be likened, that it will doubtless
continue to be followed in maritime wars to come. (A lot of opinions of other writers were also included which will not be
mentioned in this digest)

This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present
day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act,
it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men,
and of the mutual convenience of belligerent states, that coast fishing vessels, with their implements and supplies, cargoes
and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from
capture as prize of war.

The exemption, of course, does not apply to coast fishermen or their vessels if employed for a warlike purpose, or in such a
way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private
interests must give way.

Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales or seals or cod or other
fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce.

This rule of international law is one which prize courts administering the law of nations are bound to take judicial notice of,
and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter.

By the practice of all civilized nations, vessels employed only for the purposes of discovery or science are considered as
exempt from the contingencies of war, and therefore not subject to capture. It has been usual for the government sending out
such an expedition to give notice to other powers; but it is not essential.

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

In the case, each vessel was of a moderate size, such as is not unusual in coast fishing smacks, and was regularly engaged
in fishing on the coast of Cuba. The crew of each were few in number, had no interest in the vessel, and received, in return
for their toil and enterprise, two thirds of her catch, the other third going to her owner by way of compensation for her use.
Each vessel went out from Havana to her fishing ground, and was captured when returning along the coast of Cuba. The
cargo of each consisted of fresh fish, caught by her crew from the sea, and kept alive on board. Although one of the vessels
extended her fishing trip, we cannot doubt that each was engaged in the coast fishery, and not in a commercial adventure,
within the rule of international law.

The case was adjudged that the capture was unlawful and without probable cause ordered that the proceeds of the sale of
the vessel, together with the proceeds of any sale of her cargo, be restored to the claimant, with damages and costs.

13. Laude v. Jabale

14. Nicholas v. Secretarry Romulo

578 SCRA 438 Political Law Constitutional Law Ratification of a Treaty Validity of the Visiting Forces Agreement
**This case is consolidated with Salonga vs Daniel Smith & BAYAN vs Gloria Arroyo
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.

15.

Saguisag vs Executive Secretary

Case Digest: GR 212426 Jan 12, 2016
Facts:
Petitioners, as citizens, taxpayers and former legislators, questioned before the SC the constitutionality of EDCA (Enhanced
Defense Cooperation Agreement), an agreement entered into by the executive department with the US and ratified on June
6, 2014. Under the EDCA, the PH shall provide the US forces the access and use of portions of PH territory, which are
called Agreed Locations. Aside from the right to access and to use the Agreed Locations, the US may undertake the
following types of activities within the Agreed Locations: security cooperation exercises; joint and combined training activities;
humanitarian and disaster relief activities; and such other activities that as may be agreed upon by the parties.

Mainly, petitioners posit that the use of executive agreement as medium of agreement with US violated the constitutional
requirement of Art XVIII, Sec 25 since the EDCA involves foreign military bases, troops and facilities whose entry into the
country should be covered by a treaty concurred in by the Senate. The Senate, through Senate Resolution 105, also
expressed its position that EDCA needs congressional ratification.

Issue 1: W/N the petitions as citizens suit satisfy the requirements of legal standing in assailing the constitutionality of
EDCA
No. In assailing the constitutionality of a governmental act, petitioners suing as citizens may dodge the requirement of
having to establish a direct and personal interest if they show that the act affects a public right. But here, aside from general
statements that the petitions involve the protection of a public right, and that their constitutional rights as citizens would be
violated, the petitioners failed to make any specific assertion of a particular public right that would be violated by the
enforcement of EDCA. For their failure to do so, the present petitions cannot be considered by the Court as citizens suits
that would justify a disregard of the aforementioned requirements.

Issue 2: W/N the petitioners have legal standing as taxpayers

No. Petitioners cannot sue as taxpayers because EDCA is neither meant to be a tax measure, nor is it directed at the
disbursement of public funds.

A taxpayers suit concerns a case in which the official act complained of directly involves the illegal disbursement of public
funds derived from taxation. Here, those challenging the act must specifically show that they have sufficient interest in
preventing the illegal expenditure of public money, and that they will sustain a direct injury as a result of the enforcement of
the assailed act. Applying that principle to this case, they must establish that EDCA involves the exercise by Congress of its
taxing or spending powers. A reading of the EDCA, however, would show that there has been neither an appropriation nor
an authorization of disbursement.

Issue 3: W/N the petitions qualify as legislators suit

No. The power to concur in a treaty or an international agreement is an institutional prerogative granted by the Constitution
to the Senate. In a legislators suit, the injured party would be the Senate as an institution or any of its incumbent members,
as it is the Senates constitutional function that is allegedly being violated. Here, none of the petitioners, who are former
senators, have the legal standing to maintain the suit.

Issue 4: W/N the SC may exercise its Power of Judicial Review over the case
Yes. Although petitioners lack legal standing, they raise matters of transcendental importance which justify setting aside the
rule on procedural technicalities. The challenge raised here is rooted in the very Constitution itself, particularly Art XVIII, Sec
25 thereof, which provides for a stricter mechanism required before any foreign military bases, troops or facilities may be
allowed in the country. Such is of paramount public interest that the Court is behooved to determine whether there was
grave abuse of discretion on the part of the Executive Department.

Brion Dissent
Yes, but on a different line of reasoning. The petitioners satisfied the requirement of legal standing in asserting that a public
right has been violated through the commission of an act with grave abuse of discretion. The court may exercise its power of
judicial review over the act of the Executive Department in not submitting the EDCA agreement for Senate
concurrence not because of thetranscendental importance of the issue, but because the petitioners satisfy the requirements
in invoking the courts expanded jurisdiction. Read more
Issue 5: W/N the non-submission of the EDCA agreement for concurrence by the Senate violates the Constitution
No. The EDCA need not be submitted to the Senate for concurrence because it is in the form of a mere executive
agreement, not a treaty. Under the Constitution, the President is empowered to enter into executive agreements on foreign
military bases, troops or facilities if (1) such agreement is not the instrument that allows the entry of such and (2) if it merely
aims to implement an existing law or treaty.

EDCA is in the form of an executive agreement since it merely involves adjustments in detail in the implementation of the
MTD and the VFA. These are existing treaties between the Philippines and the U.S. that have already been concurred in by
the Philippine Senate and have thereby met the requirements of the Constitution under Art XVIII, Sec 25. Because of the
status of these prior agreements, EDCA need not be transmitted to the Senate.

De Castro Dissent
No. The EDCA is entirely a new treaty, separate and distinct from the VFA and the MDT. Whether the stay of the foreign
troops in the country is permanent or temporary is immaterial because the Constitution does not distinguish. The EDCA
clearly involves the entry of foreign military bases, troops or facilities in the country. Hence, the absence of Senate
concurrence to the agreement makes it an invalid treaty

16.
Vinuya v. Romulo
GR 162230 April 28, 2010

FACTS
This is an original Petition for Certiorari with an application for the issuance of a writ of preliminary mandatory injunction against
the Office of the Executive Secretary, the Secretary of DFA and the OSG.

Petitioners are all members of the MALAYA LOLAS, an organization 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. However, officials of the Executive Department declined to assist them 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.

ISSUES
WON respondents can be compelled to espouse their claims for official apology and other forms of reparations against
Japan before the International Court of Justice and other international tribunals. Or the Executive Department committed
grave abuse of discretion in not espousing petitioners claims for official apology and other forms of reparations against
Japan.

HELD

NO. The authority for foreign relations matter is vested by the constitution to the political branches of the government and not
to the courts. Petitioners cannot assail the said determination by the Executive Department via the instant petition for certiorari.

It is well established that the conduct of foreign relations of our government is committed by the Constitution to the executive
and legislative - the political - departments of the government, and propriety of what may be done in the exercise of
this political power is not subject to judicial inquiry or decision

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.

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 ergaomnes 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 ergaomnes obligation or has attained the status of jus
cogens.

The term ergaomnes (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 ergaomnes.

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

WHEREFORE, the Petition is hereby DISMISSED.

17.

TANADA VS ANGARA
G.R. No. 118295 May 2, 1997

Justiciable Question; Theory of Auto-Limitation; Declaration of Principles and State Policies

Facts:
This is a case petition by Sen. WigbertoTanada, together with other lawmakers, taxpayers, and various NGOs to nullify the
Philippine ratification of the World Trade Organization (WTO) Agreement.
Petitioners believe that this will be detrimental to the growth of our National Economy and against to the Filipino First policy.
The WTO opens access to foreign markets, especially its major trading partners, through the reduction of tariffs on its
exports, particularly agricultural and industrial products. Thus, provides new opportunities for the service sector cost and
uncertainty associated with exporting and more investment in the country. These are the predicted benefits as reflected in
the agreement and as viewed by the signatory Senators, a free market espoused by WTO.
Petitioners also contends that it is in conflict with the provisions of our constitution, since the said Agreement is an assault on
the sovereign powers of the Philippines because it meant that Congress could not pass legislation that would be good for
national interest and general welfare if such legislation would not conform to the WTO Agreement.
Issues:

1. Whether or not the petition present a justiciable controversy.

2. Whether or not the provisions of the Agreement Establishing the World Trade Organization and the Agreements and
Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that agreement cited by petitioners
directly contravene or undermine the letter, spirit and intent of Section 19, Article II and Sections 10 and 12, Article XII of the
1987 Constitution.
3. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of legislative power by
Congress.
4. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this Honorable Court in
promulgating the rules of evidence.
5. Whether or not the concurrence of the Senate in the ratification by the President of the Philippines of the Agreement
establishing the World Trade Organization implied rejection of the treaty embodied in the Final Act.

Discussions:

1987 Constitution states that Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
Although the Constitution mandates to develop a self-reliant and independent national economy controlled by Filipinos, does
not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither economic seclusion
nor mendicancy in the international community. The WTO itself has some built-in advantages to protect weak and
developing economies, which comprise the vast majority of its members. Unlike in the UN where major states have
permanent seats and veto powers in the Security Council, in the WTO, decisions are made on the basis of sovereign
equality, with each members vote equal in weight to that of any other. Hence, poor countries can protect their common
interests more effectively through the WTO than through one-on-one negotiations with developed countries. Within the WTO,
developing countries can form powerful blocs to push their economic agenda more decisively than outside the Organization.
Which is not merely a matter of practical alliances but a negotiating strategy rooted in law. Thus, the basic principles
underlying the WTO Agreement recognize the need of developing countries like the Philippines to share in the growth in
international trade commensurate with the needs of their economic development.
In its Declaration of Principles and State Policies, the Constitution 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. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which
are considered to be automatically part of our own laws. A state which has contracted valid international obligations is bound
to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.
Paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) may intrudes on the power of the Supreme Court to promulgate rules concerning
pleading, practice and procedures. With regard to Infringement of a design patent, WTO members shall be free to determine
the appropriate method of implementing the provisions of TRIPS within their own internal systems and processes.
The alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by the adoption of the
generally accepted principles of international law as part of the law of the land and the adherence of the Constitution to the
policy of cooperation and amity with all nations. The Senate, after deliberation and voting, voluntarily and overwhelmingly
gave its consent to the WTO Agreement thereby making it a part of the law of the land is a legitimate exercise of its
sovereign duty and power.

Rulings:

1. In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt
raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. As explained by former
Chief Justice Roberto Concepcion, the judiciary is the final arbiter on the question of whether or not a branch of government
or any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this
nature.
2. While the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it
recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits
protection of Filipino enterprises only against foreign competition and trade practices that are unfair. In other words, the
Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services in the
development of the Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair.
3. By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may
surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or
pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they
also commonly agree to limit the exercise of their otherwise absolute rights. As shown by the foregoing treaties Philippines
has entered, a portion of sovereignty may be waived without violating the Constitution, based on the rationale that the
Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the
policy of cooperation and amity with all nations.
4. The provision in Article 34 of WTO agreement does not contain an unreasonable burden, consistent as it is with due process
and the concept of adversarial dispute settlement inherent in our judicial system.
5. The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from its signatories,
namely, concurrence of the Senate in the WTO Agreement. Moreover, the Senate was well-aware of what it was concurring
in as shown by the members deliberation on August 25, 1994. After reading the letter of President Ramos dated August 11,
1994, the senators of the Republic minutely dissected what the Senate was concurring in.

18.
PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO, SR. MARIANI DIMARANAN, SFIC, and JOEL
C. LAMANGAN vs. HON. SANTIAGO JAVIER RANADA, in his capacity as Presiding Judge of Branch 137, Regional Trial
Court, Makati City, and the ESTATE OF FERDINAND E. MARCOS
G.R. No. 139325 | 2005-04-12 / TINGA, J.:

1991 Class suit under US Federal Rules of Civil Procedure was filed with the US District Court, District of Hawaii, by 10
Filipino Martial law human rights victims against the Estate of former Philippine President Ferdinand E. Marcos (Marcos
Estate).
Alien Tort Act - basis for the US District Court's jurisdiction over the complaint, as it involved a suit by aliens for tortuous
violations of international law.
1995 - Final Judgment awarding the plaintiff ($1,964,005,859.90 / US$2.25 Billion) affirmed by the US Court of Appeals.
Section 50, Rule 39 of the Rules of Court since judgment was affirmed the decision had become final and executory,
petitioners filed Complaint with (Makati RTC) for the enforcement of the Final Judgment.
The Marcos Estate cited Supreme Court Circular No. 7 on proper computation and payment of docket fees - petitioners had
only paid (P410.00) as docket and filing fees, notwithstanding the fact that they sought to enforce a monetary amount of
damages.
Petitioners claimed that an action for the enforcement of a foreign judgment is not capable of pecuniary estimation; hence, a
filing fee of (P410.00) was proper, pursuant to Section 7(c) of Rule 141.9.
Judge Ranada dismissed and order proper filing P472 Million.

Judge Ranadas contention on dismissal:

1. Subject matter of the complaint was indeed capable of pecuniary estimation under Section 7(a), Rule 141 as basis for the
computation of the filing fee.
2. The matter is a money claim against estates which are not based on judgment.

Petitioners contention:
1. Their action is incapable of pecuniary estimation as the subject matter of the suit is the enforcement of a foreign judgment,
and not an action for the collection of a sum of money or recovery of damages.
2. Requirement of exorbitant filing fees negate and render inutile inexpensive disposition of every action.
3. Filing fee indisputably unfair, inequitable, and unjust violates Section 11, Article III of the Bill of Rights - "Free access to the
courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

ISSUE:

1. Whether the action filed with the lower court is a "money claim against an estate based on judgment."

YES. Petitioners' complaint may have been lodged against an estate, but it is clearly based on a judgment, the Final
Judgment of the US District Court. The provision does not make any distinction between a local judgment and a foreign
judgment, and where the law does not distinguish, we shall not distinguish.

Section 7 (b) in its entirety reveals several instances wherein the filing fee is computed on the basis of the amount of the
relief sought, or on the value of the property in litigation. The rules evidently have no application to petitioners' complaint.

Provision provides that in real actions, the assessed value or estimated value of the property shall be alleged by the claimant
and shall be the basis in computing the fees. Provision does not apply in the case at bar - A real action is one where the
plaintiff seeks the recovery of real property or an action affecting title to or recovery of possession of real property.

Neither the complaint nor the award of damages adjudicated by the US District Court involves any real property of the
Marcos Estate.

2. What provision, if any, then should apply in determining the filing fees for an action to enforce a foreign judgment?

a. The rules of comity, utility and convenience of nations - established a usage among civilized states by which final judgments
of foreign courts of competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions that
may vary in different countries. (Hilton v. Guyot / Ingenholl v. Walter E. Olsen & Co)
b. The conditions required by the Philippines for recognition and enforcement of a foreign judgment - Section 48, Rule 39 of the
Rules of Civil Procedure:

SEC. 48. Effect of foreign judgments. The effect of a judgment of a tribunal of a foreign country, having jurisdiction to
pronounce the judgment is as follows:

(a) In case of a judgment upon a specific thing (in rem), the judgment is conclusive upon the title to the thing;

(b) In case of a judgment against a person (in personam), the judgment is presumptive evidence of a right as between the
parties and their successors in interest by a subsequent title;

In either case, the judgment or final order is susceptible to impeachment in our local courts by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact - it is essential that there should be an
opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to properly determine its efficacy.

The rules are silent on initiatory procedure to enforce a foreign judgment in the Philippines BUT it is necessary for a civil
complaint to be filed in order to enforce a foreign judgment, even if such judgment has conclusive effect, if only for the
purpose of allowing the losing party an opportunity to challenge the foreign judgment, and in order for the court to properly
determine its efficacy.

Section 48 - actionable issues generally restricted to a review of jurisdiction of the foreign court, the service of personal
notice, collusion, fraud, or mistake of fact or law, in consonance with policy of preclusion - a strong and pervasive policy in all
legal systems to limit repetitive litigation on claims and issues. To promote what Lord Coke in the Ferrer's Case of
1599 stated to be the goal of all law: "rest and quietness."

3. Whether the enforcement of a foreign judgment is incapable of pecuniary estimation.

YES. For in all practical intents and purposes, the matter at hand is capable of pecuniary estimation, down to the last cent.
While the subject matter of the action is undoubtedly the enforcement of a foreign judgment - the effect of a providential
award would be the adjudication of a sum of money.

Whether the subject matter of an action is capable of pecuniary estimation:

 Respondent - Singsong v. Isabela Sawmill and Raymundo v. Court of Appeals:

a. whether an action is one the subject matter of which is not capable of pecuniary estimation: nature of the principal action or
remedy sought, if it is primarily for the recovery of a sum of money - the claim is considered capable of pecuniary estimation,
and whether jurisdiction is in the municipal courts or in the courts of first instance would depend on the amount of the claim.
b. If basic issue is something other than the right to recover a sum of money / where the money claim is purely incidental to, or
a consequence of, the principal relief sought - subject of the litigation may not be estimated in terms of money, and are
cognizable exclusively by RTC.

Petitioners - Lapitan v. Scandia, actions the Court has recognized as being incapable of pecuniary estimation:

a. Where the basic issue is something other than the right to recover a sum of money, where the money claim is purely
incidental to, or a consequence of, the principal relief sought, like in suits to have the defendant perform his part of the
contract (specific performance) and in actions for support, or for annulment of judgment or to foreclose a mortgage, this
Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and
are cognizable exclusively by RTC.
b. An action for enforcement of a foreign judgment belongs to the same class.

Petitioners: if an action for enforcement of foreign judgment may be capable of pecuniary estimation - first level court such as
the Municipal Trial Court would have jurisdiction to enforce a foreign judgment. But under the statute defining the jurisdiction
of first level courts, Sec. 33, B.P. 129, such courts are not vested with jurisdiction over actions for the enforcement of foreign
judgments.

Court: Section 19(6), B.P. 129 reveals that the instant complaint for enforcement of a foreign judgment, even if capable of
pecuniary estimation - would fall under the jurisdiction of the Regional Trial Courts, provided that no other court or office is
vested jurisdiction over such complaint.
For this case and other similarly situated instances, we find that it is covered by Section 7(b)(3), involving as it does, "other
actions not involving property."

a. Payment of docket fees by the petitioners on the premise that it was an action incapable of pecuniary estimation corresponds
to the same amount required for "other actions not involving property." which filing fee of minimal amount is required - They
paid the correct amount of filing fees.

There is no obligatory rule derived from treaties or conventions that requires the Philippines to recognize foreign judgments,
or allow a procedure for the enforcement thereof - however, generally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations.

While the definite conceptual parameters of the recognition and enforcement of foreign judgments have not been
authoritatively established - the Court can assert with certainty such are generally accepted principles of international law by
which Section 48, Rule 39 derive their efficacy and not merely from the procedural rule.

Aside from the widespread practice, it is indubitable that the procedure for recognition and enforcement is embodied in the
rules of law, whether statutory or jurisprudential, adopted in various foreign jurisdictions - In the Philippines, Section 48, Rule
39 of the Rules of Court.

Section 11, Article III of the Constitution - is among the guarantees ensured by the Bill of Rights, it certainly gives rise to a
demandable right, however, now is not the occasion to elaborate on the parameters of this constitutional right.

Section 48, Rule 39 - the Final Judgment is not conclusive yet, but presumptive evidence of a right of the petitioners against
the Marcos Estate. Moreover, the Marcos Estate is not precluded to present evidence, if any, of want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact.

Petition is GRANTED: The assailed orders by Judge dismissing complaint are NULLIFIED and SET ASIDE, and a new order
REINSTATING Civil Case No. 97-1052 is hereby issued.

19.

REPUBLIC OF THE PHILIPPINES v. SANDIGANBAYAN et al . 402 SCRA 84(2003)

The PCGG cannot vote sequestered shares to elect the ETPI Board of Directors or to amend the Articles of Incorporation for
the purpose of increasing the authorized capital stock unless there is a prima facie evidence showing that said shares are ill-
gotten and there is an imminent danger of dissipation.

Two sets of board and officers of Eastern Telecommunications, Philippines, Inc. (ETPI) were elected, one by the Presidential
Commission on Good Government (PCGG) and the other by the registered ETPI stockholders.Victor Africa, a stockholder of
ETPI filed a petition for Certiorari before the Sandiganbayan alleging that the PCGG had been illegally exercising the rights
of stockholders of ETPI, in the election of the members of the board of directors. The Sandiganbayan ruled that only
the registered owners, their duly authorized representatives or their proxies may vote their corresponding shares. The PCGG
filed a petition for certiorari, mandamus and prohibition before the Court which was granted. The Court referred the PCGGs
petition to hold the special stockholders meeting to the Sandiganbayan for reception of evidence and resolution. The
Sandiganbayan granted the PCGG authority to cause the holding of a special stockholders meeting of ETPI and held that
there was an urgent necessity to increase ETPIs authorized capital stock; there existed a prima facie factual foundation for
the issuance of the writ of sequestration covering the Class A shares of stock; and the PCGG was entitled to vote the
sequestered shares of stock. The PCGG-controlled ETPI board of directors held a meeting and the increase in ETPIs
authorized capital stock from P250 Million to P2.6 Billion was unanimously approved. Africa filed a motion to nullify the
stockholders meeting, contending that only the Court, and not the Sandiganbayan, has the power to authorize the PCGG to
call a stockholders meeting and vote the sequestered shares. The Sandiganbayan denied the motions for reconsideration of
prompting Africa to file before the Court a second petition, challenging the Sandiganbayan Resolutions authorizing the
holding of a stockholders meeting and the one denying the motion for reconsideration.

ISSUES:

1. Whether or not the Sandiganbayan gravely abused its discretion in ordering the holding of a stockholders meeting to elect
the ETPI board of directors without first setting in place, through the amendment of the articles of incorporation and the by-
laws of ETPI 2. Whether the PCGG can vote the sequestered ETPI Class A shares in the stockholders meeting for the
election of the board of directors.

HELD:

First Issue :
On the PCGGs imputation of grave abuse of discretion upon the Sandiganbayan for ordering the holding of a stockholders
meeting to elect the ETPI board of directors without first setting in place, through the amendment of the articles of
incorporation and the by-laws of ETPI, the safeguards prescribed in Cojuangco, Jr. v. Roxas. The Court laid down those
safeguards because of the obvious need to reconcile the rights of the stockholder whose shares have been sequestered and
the duty of the conservator to preserve what could be ill-gotten wealth. There is nothing in the Cojuangco case that would
suggest that the above measures should be incorporated in the articles and by-laws before a stockholders meeting for the
election of the board of directors is held. The PCGG nonetheless insists that those measures should be written in the articles
and by-laws before such meeting, otherwise, the {Marcos] cronies will elect themselves or their representatives, control the
corporation, and for an appreciable period of time, have every opportunity to disburse funds, destroy or alter
corporate records, and dissipate assets. That could be a possibility, but the peculiar circumstances of the case require that
the election of the board of directors first be held before the articles of incorporation are amended. Section 16 of the
Corporation Code requires the majority vote of the board of directors to amend the articles of incorporation. At the time Africa
filed his motion for the holding of the annual stockholders meeting, there were two sets of ETPI directors, one controlled by
the PCGG and the other by the registeredstockholders. Which of them is the legitimate board of directors? Which of them
may rightfully vote to amend the articles of incorporation and integrate the safeguards laid down in Cojuangco? It is essential,
therefore, to cure the aberration of two boards of directors sitting in a single corporation before the articles of incorporation
are amended to set in place the Cojuangco safeguards. The danger of the so-called Marcos cronies taking control of the
corporation and dissipating its assets is, of course, a legitimate concern of the PCGG, charged as it is with the duties of a
conservator. Nevertheless, such danger may be averted by the substantially contemporaneous amendment of the articles
after the election of the board.

Second Issue :
The principle laid down in Baseco vs. PCGG was further enhanced in the subsequent cases of Cojuangco v. Calpo and
Presidential Commission on Good Government v. Cojuangco, Jr., where the Court developed a two-tiered test in
determining whether the PCGG may vote sequestered shares. The issue of whether PCGG may vote the sequestered
shares in SMC necessitates a determination of at least two factual matters: a.) whether there is prima facie evidence
showing that the said shares are ill-gotten and thus belong to the state; and b.) whether there is an immediate danger of
dissipation thus necessitating their continued sequestration and voting by the PCGG while the main issue pends with the
Sandiganbayan. The two-tiered test, however, does not apply in cases involving funds of public character. In such cases,
the government is granted the authority to vote said shares, namely: (1) Where government shares are taken over by private
persons or entities who/which registered them in their own names, and (2) Where the capitalization or shares that were
acquired with public funds somehow landed in private hands. In short, when sequestered shares registered in the names of
private individuals or entities are alleged to have been acquired with ill-gotten wealth, then the two-tiered test is applied.
However, when the sequestered shares in the name of private individuals or entities are shown, prima facie, to have been (1)
originally government shares, or (2) purchased with public funds or those affected with public interest, then the two-tiered test
does not apply. The rule in the jurisdiction is, therefore, clear. The PCGG cannot perform acts of strict ownership of
sequestered property. It is a mere conservator. It may not vote the shares in a corporation and elect members of the board of
directors. The only conceivable exception is in a case of a takeover of a business belonging to the government or
whose capitalization comes from public funds, but which landed in private hands as in BASECO. In short, the
Sandiganbayan held that the public character exception does not apply, in which case it should have proceeded to apply the
two-tiered test. This it failed to do. The questions thus remain if there is prima facie evidence showing that the subject shares
are ill- gotten and if there is imminent danger of dissipation. The Court is not, however, a trier of facts, hence, it is not in a
position to rule on the correctness of the PCGGs contention. Consequently, the issue must be remanded to the
Sandiganbayan for resolution.

20.
Nicaragua v. United States of America International Court of Justice, Lune 27, 1988

FACTS
The United States of America using armed force against Nicaragua, intervenes in Nicaraguas internal affairs, in violation of
Nicaraguas sovereignty, territorial integrity and political independence and of the most fundamental and universally
accepted principles of International Law.

The United States created an army, many of whom served the former dictator Anastasio Somoza Debayle, trained them,
paid them, supplied them with arms, ammunition, food and medical supplies, and directed their attacks against human and
economic targets inside Nicaragua. Thus, Nicaragua grievously suffered and allowed the Court for a declaration that the
United States activities are unlawful, an order to United States to create and desist, and compensation. They also claimed
that as a consequence of their violations, Nicaraguans were killed and injured, and now destruction of property from place.

United States, in defense, claimed that its military and paramilitary activities against Nicaragua are for the purpose of
collective self - defense. It alleged that its actions were in response to an armed attack by Nicaragua against other
Central American States. Later the collective self - defense was dropped and publicly acknowledged that the purpose of the
United States activities against Nicaragua was the removal of the present Nicaraguan Government.

ISSUE
Whether or not United States can be held liable for the damage and destruction caused by its military and paramilitary
activities against Nicaragua.

RULING
Article 2(4) of the United Nations Charter prohibits the year of armed force as an instrument of foreign policy. The evidence
before the Court established overwhelmingly that the United States had violated this norm worth respect to Nicaragua
without legal justification.

First, the United States had used force against Nicaragua within the meaning of Article 2(4): (a) through the activities of its
own military and intelligence personnel, (b) by its actions is recruiting, organizing, training, supplying, directing, and
controlling a mercenary army making continuous and systematic depredations into the territory of Nicaragua with the object
of overthrowing the Government, and ( c) by adopting and ratifying the actions of the mercenary forces. Second, this use of
force was against the territorial integrity and political independence of Nicaragua, within the meaning of Article 2(4). Third,
there is no justification in law for these actions in contravention of Article 2(4).

For these reasons ,the United States was ordered to make reparations for the injury caused by such violations.
21.
UK. V. Finland (Fisheries Jurisdiction Case)

Citation. I.C.J., 1973 I.C.J. 3

Brief Fact Summary. Because some circumstances changed, Iceland (D) claimed that a fishing treaty it had with the United
Kingdom (P) was no longer applicable.

Synopsis of Rule of Law. In order that a change of circumstances may give rise to the premise calling for the termination of a
treaty, it is necessary that it has resulted in a radical transformation of the extent of the obligations still to be performed.

Facts. Icelands (D) claim to a 12-mile fisheries limit was recognized by the United Kingdom (P) in 1961 in return for Icelands
(D) agreement that any dispute concerning Icelandic fisheries jurisdiction beyond the 12-mile limit be referred to the
International Court of Justice. An application was filed before the I.C.J. when Iceland (D) proposed to extend its exclusive
fisheries jurisdiction from 12 to 50 miles around its shores in 1972. By postulating that changes in circumstances since the
12-mile limit was now generally recognized was the ground upon which Iceland (D) stood to argue that the agreement was
no longer valid. Iceland (D) also asserted that there would be a failure of consideration for the 1961 agreement.

Issue. In order that a change of circumstances may give rise to a ground for invoking the termination of a treaty, is it
necessary that it has resulted in a radical transformation of the extent of the obligation still to be performed?

Held. Yes. In order that a change of circumstances may give rise to the premise calling for the termination of a treaty, it is
necessary that it has resulted in a radical transformation of the extent of the obligations still to be performed.
The change of circumstances alleged by Iceland (D) cannot be said to have transformed radically the extent of the
jurisdictional obligation that was imposed in the 1961 Exchange of Notes.

Discussion. Recourse to the I.C.J. in the event of a dispute was the original agreement between the parties. The economy of
Iceland (D) is dependent on fishing. The merit of Iceland (D) argument was not reached by the Court in this case, however,
but rather dealt with the jurisdictional issues.

22.

Hungary v. Slovakia (Danube Dam Case)

Citation. 1997 I.C.J. 7, reprinted in 37 I.L.M. 162 (1998)

Brief Fact Summary. Hungary (P) claimed that Czechoslovakia (D) violated the provisions of a treaty when it appropriated the
waters of the Danube River to construct a dam.

Synopsis of Rule of Law. Watercourse states shall participate in the use, development and protection of an international
watercourse in an equitable and reasonable manner.

Facts. In 1977, Hungary (P) and Czechoslovakia (D) signed a Treaty for the construction of dams and other projects along
the Danube River that bordered both nations. Czechoslovakia (D) began work on damming the river in its territory when
Hungary (P) stopped working on the project and negotiation could not resolve the matter which led Hungary (P) to terminate
the Treaty. Hungary (P) based its action on the fact that the damming of the river had been agreed to only on the ground of a
joint operation and sharing of benefits associated with the project, to which Czechoslovakia (D) had unlawfully unilaterally
assumed control of a shared resource.

Issue. Shall watercourse states participate in the use, development and protection of an international watercourse in an
equitable and reasonable manner?

Held. Yes. Watercourse states shall participate in the use, development and protection of an international watercourse in an
equitable and reasonable manner. Hungary (P) was deprived of its rights to an equitable and reasonable share of the natural
resources of the Danube by Czechoslovakia (D) and also failed to respect the proportionality that is required by international
law. Cooperative administration must be reestablished by the parties of what remains of the project.

Discussion. The Courts decision was that the joint regime must be restored. In order to achieve most of the Treatys
objectives, common utilization of shared water resources was necessary. Hence, the defendant was not authorized to
proceed without the plaintiffs consent.

23.

Name of the Case: Asylum Case (Colombia/Peru); Year of the decision: 1950; and Court: ICJ.

Overview:

Colombia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was Colombia entitled to make
a unilateral and definitive qualification of the offence (as a political offence) in a manner binding on Peru and was Peru was
under a legal obligation to provide safe passage for the Peruvian to leave Peru?

Facts of the Case:

Peru issued an arrest warrant against Victor Raul Haya de la Torre in respect of the crime of military rebellion which took
place on October 3, 1949, in Peru. 3 months after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The
Colombian Ambassador confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana
Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the Ambassador also
stated Colombia had qualified Torre as a political refugee in accordance with Article 2 Montevideo Convention on Political
Asylum of 1933 (note the term refugee is not the same as the Refugee Convention of 1951). Peru refused to accept the
unilateral qualification and refused to grant safe passage.

Questions before the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum
under treaty law and international law?

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter called the Havana Convention)
when it granted asylum and is the continued maintenance of asylum a violation of the treaty?

The Courts Decision:

Relevant Findings of the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum
under treaty law and international law?

1. The court stated that in the normal course of granting diplomatic asylum a diplomatic representative has the competence
to make a provisional qualification of the offence (for example, as a political offence) and the territorial State has the right to
give consent to this qualification. In the Torres case, Colombia has asserted, as the State granting asylum, that it is
competent to qualify the nature of the offence in a unilateral and definitive manner that is binding on Peru. The court had to
decide if such a decision was binding on Peru either because of treaty law (in particular the Havana Convention of 1928 and
the Montevideo Convention of 1933), other principles of international law or by way of regional or local custom.

2. The court held that there was no expressed or implied right of unilateral and definitive qualification of the State that grants
asylum under the Havana Convention or relevant principles of international law (p. 12, 13). The Montevideo Convention of
1933, which accepts the right of unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was
not ratified by Peru. The Convention, per say, was not binding on Peru and considering the low numbers of ratifications the
provisions of the latter Convention cannot be said to reflect customary international law (p. 15).
3. Colombia also argued that regional or local customs support the qualification. The court held that the burden of proof on
the existence of an alleged customary law rests with the party making the allegation:

The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has
become binding on the other Party (that) it is in accordance with a (1) constant and uniform usage (2) practiced by the
States in question, and that this usage is (3) the expression of a right appertaining to the State granting asylum (Colombia)
and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute of the Court,
which refers to international custom as evidence of a general practice accepted as law(text in brackets added).

4. The court held that Colombia did not establish the existence of a regional custom because it failed to prove consistent and
uniform usage of the alleged custom by relevant States. The fluctuations and contradictions in State practice did not allow for
the uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State
practice). The court also reiterated that the fact that a particular State practice was followed because of political expediency
and not because of a belief that the said practice is binding on the State by way of a legal obligation (opinio juris) is
detrimental to the formation of a customary law (see North Sea Continental Shelf Cases and Lotus Case for more on opinio
juris):

[T]he Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in fact
granted and respected. But it has not shown that the alleged rule of unilateral and definitive qualification was invoked or
that it was, apart from conventional stipulations, exercised by the States granting asylum as a right appertaining to them an d
respected by the territorial States as a duty incumbent on them and not merely for reasons of political expediency. The facts
brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy
in the exercise of diplomatic asylum and in the official views expressed on various occasions, there has been so much
inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the
practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to
discern in all this any constant and uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and
definitive qualification of the offence.

5. The court held that even if Colombia could prove that such a regional custom existed, it would not be binding on Peru,
because Peru far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the
Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence
[as political in nature] in matters of diplomatic asylum. (See in this regard, the lesson on persistent objectors. Similarly in
the North Sea Continental Shelf Cases the court held in any event the . . . rule would appear to be inapplicable as against
Norway in as much as she had always opposed any attempt to apply it to the Norwegian coast.)

6. The court concluded that Colombia, as the State granting asylum, is not competent to qualify the offence by a unilateral
and definitive decision, binding on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?

7. The court held that there was no legal obligation on Peru to grant safe passage either because of the Havana Convention
or customary law. In the case of the Havana Convention, a plain reading of Article 2 results in an obligation on the territorial
state (Peru) to grant safe passage only after it requests the asylum granting State (Colombia) to send the person granted
asylum outside its national territory (Peru). In this case the Peruvian government had not asked that Torre leave Peru. On the
contrary, it contested the legality of asylum granted to him and refused to grant safe conduct.

8. The court looked at the possibility of a customary law emerging from State practice where diplomatic agents have
requested and been granted safe passage for asylum seekers, before the territorial State could request for his departure.
Once more, the court held that these practices were a result of a need for expediency and other practice considerations over
an existence of a belief that the act amounts to a legal obligation (see paragraph 4 above).

There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately requests a safe
conduct without awaiting a request from the territorial state for the departure of the refugeebut this practice does not and
cannot mean that the State, to whom such a request for safe-conduct has been addressed, is legally bound to accede to it.

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and is the continued
maintenance of asylum a violation of the treaty?

9. Article 1 of the Havana Convention states that It is not permissible for States to grant asylum to persons accused or
condemned for common crimes (such persons) shall be surrendered upon request of the local government.
 10. In other words, the person-seeking asylum must not be accused of a common crime (for example, murder would
constitute a common crime, while a political offence would not).The accusations that are relevant are those made before the
granting of asylum. Torres accusation related to a military rebellion, which the court concluded was not a common crime and
as such the granting of asylum complied with Article 1 of the Convention.

11. Article 2 (2) of the Havana Convention states that Asylum granted to political offenders in legations, warships, military
camps or military aircraft, shall be respected to the extent in which allowed, as a right or through humanitarian toleration, by
the usages, the conventions or the laws of the country in which granted and in accordance with the following
provisions: First: Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the
person who has sought asylum to ensure in some other way his safety.

12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the presence of an imminent or
persistence of a danger for the person of the refugee. The court held that the facts of the case, including the 3 months that
passed between the rebellion and the time when asylum was sought, did not establish the urgency criteria in this case (pp.
20 -23). The court held:

In principle, it is inconceivable that the Havana Convention could have intended the term urgent cases to include the
danger of regular prosecution to which the citizens of any country lay themselves open by attacking the institutions of that
country In principle, asylum cannot be opposed to the operation of justice.

13. In other words, Torre was accused of a crime but he could not be tried in a court because Colombia granted him asylum.
The court held that protection from the operation of regular legal proceedings was not justified under diplomatic asylum.

14. The court held:

In the case of diplomatic asylum the refugee is within the territory of the State. A decision to grant diplomatic asylum
involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State
and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from
territorial sovereignty cannot be recognised unless its legal basis is established in each particular case.

15. As a result, exceptions to this rule are strictly regulated under international law.

An exception to this rule (asylum should not be granted to those facing regular prosecutions) can occur only if, in the guise of
justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were
corrupted by measures clearly prompted by political aims. Asylum protects the political offender against any measures of a
manifestly extra-legal character which a Government might take or attempt to take against its political opponents On the
other hand, the safety which arises out of asylum cannot be construed as a protection against the regular application of the
laws and against the jurisdiction of legally constituted tribunals. Protection thus understood would authorize the diplomatic
agent to obstruct the application of the laws of the country whereas it is his duty to respect them Such a conception,
moreover, would come into conflict with one of the most firmly established traditions of Latin-America, namely, non-
intervention [for example, by Colombia into the internal affairs of another State like Peru].

16. Asylum may be granted on humanitarian grounds to protect political prisoners against the violent and disorderly action of
irresponsible sections of the population. (for example during a mob attack where the territorial State is unable to protect the
offender). Torre was not in such a situation at the time when he sought refuge in the Colombian Embassy at Lima.

17. The court concluded that the grant of asylum and reasons for its prolongation were not in conformity with Article 2(2) of
the Havana Convention (p. 25).

The grant of asylum is not an instantaneous act which terminates with the admission, at a given moment of a refugee to an
embassy or a legation. Any grant of asylum results in, and in consequence, logically implies, a state of protection, the asylum
is granted as long as the continued presence of the refugee in the embassy prolongs this protection.

NB: The court also discussed the difference between extradition and granting of asylum you can read more on this in pp.
12 13 of the judgment. The discussions on the admissibility of the counter claim of Peru are set out in pp. 18 19.

Additional reading (on diplomatic asylum/ also called extra territorial asylum):

Extraterritorial asylum under international law, pp. 115 129.

F. Morgenstern, Extra-Territorial Asylum, 25 BYIL (1948)
 F. Morgenstern, Diplomatic Asylum, 67 The Law Quarterly Review (1951)

24.
North Sea Continental Shelf Case (West Germany vs. Denmark and West Germany vs. Netherland, ICJ Feb. 20 1969)

Facts:
The two Special Agreements had asked the Court to declare the principles and rules of international law applicable to the
delimitation as between the Parties of the areas of the North Sea continental shelf appertaining to each of them beyond the
partial boundaries in the immediate vicinity of the coast already determined between the Federal Republic and the
Netherlands by an agreement of 1 December 1964 and between the Federal Republic and Denmark by an agreement of 9
June 1965.

The Federal Republic of Germany and Denmark and the Netherlands, respectively, had, however, been unable to
agree on the prolongation of the partial boundaries mainly because Denmark and the Netherlands had wished this
prolongation to be effected on the basis of the equidistance principle. A boundary based on the equidistance principle, i.e.,
an "equidistance line", left to each of the Parties concerned all those portions of the continental shelf that were nearer to a
point on its own coast than they were to any point on the coast of the other Party.

Denmark and Netherlands contended that the whole matter was governed by a mandatory rule of law which,
reflecting the language of Article 6 of the Geneva Convention on the Continental Shelf of 29 April 1958, was designated by
them as the "equidistance-special circumstances" rule.That rule was to the effect that in the absence of agreement by the
parties to employ another method, all continental shelf boundaries had to be drawn by means of an equidistance line unless
"special circumstances" were recognized to exist.

1958 Geneva Convention on the Continental Shelf was binding for all the Parties in the case. Under the formal
provisions of the Convention, it was in force for any individual State that had signed it within the time-limit provided, only if
that State had also subsequently ratified it. Denmark and the Netherlands had both signed and ratified the Convention and
were parties to it, but the Federal Republic, although one of the signatories of the Convention, had never ratified it, and was
consequently not a party.

Issue:
Whether the non-ratification of Germany in Geneva Convention on Continental Shelf will not bound him
Whether the principle of equidistance is considered as a customary international law.

Held:

On the first issue, the Federal Republic of Germany, which had not ratified the Convention, was not legally bound by
the provisions of Article 6.Denmark and Netherland contended that the regime of Article 6 of the Convention had become
binding on the Federal Republic, because, by conduct, by public statements and proclamations, and in other ways, the
Republic had assumed the obligations of the Convention.It was clear that only a very definite, very consistent course of
conduct on the part of a State in the situation of the Federal Republic could justify upholding those contentions, thus absence
of those Germany will not be bound.

On the second issue, the equidistance principle was not a rule of customary international law. While a very
widespread and representative participation in a convention might show that a conventional rule had become a general rule
of international law, in the present case the number of ratifications and accessions so far was hardly sufficient.As regards the
time element, although the passage of only a short period of time was not necessarily a bar to the formation of a new rule of
customary international law on the basis of what was originally a purely conventional rule, it was indispensable that State
practice during that period, including that of States whose interests were specially affected, should have been both extensive
and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general
recognition that a rule of law was involved. Some 15 cases had been cited in which the States concerned had agreed to draw
or had drawn the boundaries concerned according to the principle of equidistance, but there was no evidence that they had
so acted because they had felt legally compelled to draw them in that way by reason of a rule of customary law. The cases
cited were inconclusive and insufficient evidence of a settled practice.

25.
Nuclear Test Case Australia v. France, New Zealand v. France

Citation. I.C.J. 1974 I.C.J. 253, 457.

Brief Fact Summary. Australia and New Zealand (P) requested France (D) to put an halt to atmospheric nuclear test in the
South Pacific.

Synopsis of Rule of Law. Declaration made through unilateral acts may have the effect of creating legal obligations.

Facts. A series of nuclear tests was completed by France (D) in the South Pacific. This action made Australia and New
Zealand (P) to apply to the I.C.J. demanding that France (D) cease testing immediately. Before the case could be completed,
France (D) announced it had completed the test and did not plan any further test. So France (D) moved for the dismissal of
the application.

Issue. May declaration made through unilateral act has effect of creating legal obligations?

Held. Yes. Declaration made through unilateral acts may have the effect of creating legal obligations. In this case, the
statement made by the President of France must be held to constitute an engagement of the State in regard to the
circumstances and intention with which they were made. Therefore, these statements made by the France (D) are relevant
and legally binding. Application was dismissed.

Discussion. The unilateral statements made by French authorities were first relayed to the government of Australia. There
was no need for the statements to be directed to any particular state for it to have legal effect. The general nature and
characteristics of the statements alone were relevant for evaluation of their legal implications.

26. Dissenting opinion of Judge Tanaka in South Africa Case see PDF

Barcelona Traction, Light and Power Company Ltd, (Belgium v. Spain)

Citation. I.C.J. 1970 I.C.J. 3.

Brief Fact Summary. Belgium (P) claimed Spain (D) should be held accountable for the injury to a Canadian corporation
operating in Spain.

Synopsis of Rule of Law. A state assumes an obligation concerning the treatment of foreign investments based on general
international law, once the state admits foreign investments or foreign nationals into its territory.

Facts. On behalf of Belgian nationals (P) who had invested in a Canadian corporation, Belgium (P) sued Spain (D) on the
premise that Spain (D) was responsible for acts in violation of international law that had caused injury to the Canadian
corporation and its Belgian shareholders (P).

Issue. Does a state assumes an obligation concerning the treatment of foreign investments based on general international
law, once the state admits foreign investments or foreign nationals into its territory?

Held. Yes. A state assumes an obligation concerning the treatment of foreign investments based on general international
law, once the state admits foreign investments or foreign nationals into its territory. It is highly imperative to draw a distinction
between those obligations of a state toward the international community as a whole and those arising from the field of
diplomatic protection. It is only the party to whom an international obligation is due can bring a claim if a breach of an
obligation that is the subject of diplomatic protection occurs.
Discussion. The basic right of all human persons was mentioned by the Court to be protected against slavery and racial
discrimination as deriving from basic general international law. Such rights may derive from international instruments of a
universal or quasi-universal character. Such obligations are obligations ergaomnes, that is, all states have a legal interest in
their protection.

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States)
Citation. I.C.J. 1984 I.C.J. 39

Brief Fact Summary. Nicaragua (P) brought a suit against the United States (D) on the ground that the United States (D) was
responsible for illegal military and paramilitary activities in and against Nicaragua. The jurisdiction of the International Court
of Justice to entertain the case as well as the admissibility of Nicaraguas (P) application to the I.C.J. was challenged by the
United States (D).

Synopsis of Rule of Law. Nicaragua (P) brought a suit against the United States (D) on the ground that the United States (D)
was responsible for illegal military and paramilitary activities in and against Nicaragua. The jurisdiction of the International
Court of Justice to entertain the case as well as the admissibility of Nicaraguas (P) application to the I.C.J. was challenged
by the United States (D).

Facts. The United States (D) challenged the jurisdiction of the I.C.J when it was held responsible for illegal military and
paramilitary activities in and against Nicaragua (P) in the suit the plaintiff brought against the defendant in 1984. Though a
declaration accepting the mandatory jurisdiction of the Court was deposited by the United States (D) in a 1946, it tried to
justify the declaration in a 1984 notification by referring to the 1946 declaration and stating in part that the declaration shall
not apply to disputes with any Central American State.
Apart from maintaining the ground that the I.C.J lacked jurisdiction, the States (D) also argued that Nicaragua (P) failed to
deposit a similar declaration to the Court. On the other hand, Nicaragua (P) based its argument on its reliance on the 1946
declaration made by the United states (D) due to the fact that it was a state accepting the same obligation as the United
States (D) when it filed charges in the I.C.J. against the United States (D).
Also, the plaintiff intent to submit to the compulsory jurisdiction of the I.C.J. was pointed out by the valid declaration it made
in 1929 with the I.C.Js predecessor, which was the Permanent Court of International Justice, even though Nicaragua had
failed to deposit it with that court. The admissibility of Nicaraguas (P) application to the I.C.J. was also challenged by the
United States (D).

Issue. (1) Is the jurisdiction to entertain a dispute between two states, if they both accept the Courts jurisdiction, within the
jurisdiction of the International Court of Justice?
(2) Where no grounds exist to exclude the application of a state, is the application of such a state to the International Court of
Justice admissible?