Special Issues On International Law
PART I
1. AGUSTIN VS EDU 88 SCRA 195
Facts
This case is a petition assailing the validity or the
constitutionality of a Letter of Instruction No. 229, issued by
President Ferdinand E. Marcos, requiring all vehicle owners,
users or drivers to procure early warning devices to be installed
a distance away from such vehicle when it stalls or is disabled.
In compliance with such letter of instruction, the
Commissioner of the Land Transportation Office issued
Administrative Order No. 1 directing the compliance thereof.
This petition alleges that such letter of instruction and
subsequent administrative order are unlawful and
unconstitutional as it violates the provisions on due process,
equal protection of the law and undue delegation of police
power.
Issue
Whether or not the Letter of Instruction No. 229 and the
subsequent Administrative Order issued is unconstitutional
Ruling
The Supreme Court ruled for the dismissal of the petition. The
statutes in question are deemed not unconstitutional. These
were definitely in the exercise of police power as such was
established to promote public welfare and public safety. In fact,
the letter of instruction is based on the constitutional provision
of adopting to the generally accepted principles of international
law as part of the law of the land. The letter of instruction
mentions, as its premise and basis, the resolutions of the 1968
Vienna Convention on Road Signs and Signals and the
discussions on traffic safety by the United Nations - that such
letter was issued in consideration of a growing number of road
accidents due to stalled or parked vehicles on the streets and
highways.
2. REYES VS. BAGATSING
FACTS:
Petitioner sought a permit from the City of Manila to hold a
peaceful march and rally on October 26, 1983 from 2:00 to
5:00 in the afternoon, starting from the Luneta to the gates of
the United States Embassy. Once there, and in an open space
of public property, a short program would be held. The march
would be attended by the local and foreign participants of such
conference. That would be followed by the handing over of a
petition based on the resolution adopted at the closing session
of the Anti-Bases Coalition. There was likewise an assurance in
the petition that in the exercise of the constitutional rights to
free speech and assembly, all the necessary steps would be
taken by it "to ensure a peaceful march and rally. However the
request was denied. Reference was made to persistent
intelligence reports affirming the plans of subversive/criminal
elements to infiltrate or disrupt any assembly or congregations
where a large number of people is expected to attend.
Respondent suggested that a permit may be issued if it is to be
held at the Rizal Coliseum or any other enclosed area where
the safety of the participants themselves and the general public
may be ensured. An oral argument was heard and the
mandatory injunction was granted on the ground that there
was no showing of the existence of a clear and present danger
of a substantive evil that could justify the denial of a permit.
However Justice Aquino dissented that the rally is violative of
Ordinance No. 7295 of the City of Manila prohibiting the
holding of rallies within a radius of five hundred (500) feet from
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any foreign mission or chancery and for other purposes. Hence
the Court resolves. Thus, a petition for mandamus with writ of
preliminary injunction to review the decision of the City of
Mayor of Manila Ramon Bagatsing was filed for the reason that
Mayor Bagatsing denied the application for permit to hold a
rally from Luneta to the gates of the United States Embassy.
ISSUES:
1. Whether the contention of mayor Bagatsing as to
denying the application for permit to hold rally was in
accordance to the Veinna Convention? (Related to SIIL)
2. Whether or Not the freedom of expression and the right
to peaceably assemble violated. (Additional notes)
HELD:
1. No. The Constitution adopts the generally accepted
principle of International law as part of the law of the
land. Veinna Convention is a restatement of the generally
accepted principles of international law. It should be a
part of the law of the land. That being a case, if there
were clear and present danger of any intrusion or
damage or distribution of the peace of the mission or
impairment of its dignity, there would be a justification
for the denial of the permit insofar as the terminal point
would be the Embassy.
Petition is GRANTED. The court found that there was no clear
and present danger of a substantive evil to a legitimate public
interest that would justify the denial of the exercise of the
constitutional rights of free speech and peaceable assembly.
2. Yes. The invocation of the right to freedom of peaceable
assembly carries with it the implication that the right to
free speech has likewise been disregarded. It is settled
law that as to public places, especially so as to parks and
streets, there is freedom of access. Nor is their use
dependent on who is the applicant for the permit,
whether an individual or a group. There can be no legal
objection, absent the existence of a clear and present
danger of a substantive evil, on the choice of Luneta as
the place where the peace rally would start. Time
immemorial Luneta has been used for purposes of
assembly, communicating thoughts between citizens,
and discussing public questions. Such use of the public
places has from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens.
With regard to the ordinance, there was no showing that
there was violation and even if it could be shown that
such a condition is satisfied it does not follow that
respondent could legally act the way he did. The validity
of his denial of the permit sought could still be
challenged.
A summary of the application for permit for rally: The
applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the
time when it will take place. If it were a private place, only the
consent of the owner or the one entitled to its legal possession
is required. Such application should be filed well ahead in time
to enable the public official concerned to appraise whether
there may be valid objections to the grant of the permit or to its
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grant but at another public place. It is an indispensable
condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached.
Notice is given to applicants for the denial.
3. PHARMACEUTICAL AND HEALTH CARE
FACTS:
On 1986, Pres Aquino promulgated EO51(milk code) which law
seeks to give effect to Article 11 of the International Code of
Marketing of Breastmilk Substitutes (ICMBS), a code adopted
by the World Health Assembly to protect, promote and support
breastfeeding. 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 2006 the DOH issued RIRR (Revised Implementing Rules
and Regulations of Executive Order No. 51, Otherwise
Known as The "Milk Code," Relevant International
Agreements, Penalizing Violations Thereof, and for Other
Purposes)
Petitioner, (manufacturers of breastmilk substitutes), filed the
present Petition for Certiorari and Prohibition with Prayer for
the Issuance of a Temporary Restraining Order (TRO) or Writ of
Preliminary Injunction.
Petitioner alleged that DOH acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and in violation of the provisions
of the Constitution in promulgating the RIRR.
ISSUE:
W/N it violates the Constitution? YES
W/N DOH may implement RIRR? NO
NOTE: WHA has the power to enforce its convention or
agreements to its Member when accepted by it in
accordance with its constitutional processes(sec 19 & 22)
On the other hand, under Article 23, recommendations of
the WHA do not come into force for members, in the same
way that conventions or agreements
HELD:
1. 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
Article VII, Section 21 of the Constitution provides that "[n]o
treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the members
of the Senate." Thus, treaties or conventional international law
must go through a process prescribed by the Constitution for it
to be transformed into municipal law that can be applied to
domestic conflicts
Article II Section 2 of the Constitution provides that “The
Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of
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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.”
DOH failed to established that WHA resolution was Customary
international law(generally accepted principles). Thus,
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.
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
(opinio juris). Respondents have not presented any evidence to
prove that the WHA Resolutions, although signed by most of
the member states, were in fact enforced or practiced by at
least a majority of the member states; neither have
respondents proven that any compliance by member states
with said WHA Resolutions was obligatory in nature
2. Nowhere in A.O. No. 2005-0014 is it declared that as
part of such health policy, the advertisement or promotion
of breastmilk substitutes should be absolutely prohibited.
The national policy of protection, promotion and support of
breastfeeding cannot automatically be equated with a total ban
on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not
contain a total ban on the advertising and promotion of
breastmilk substitutes, but instead, specifically creates an IAC
which will regulate said advertising and promotion, it follows
that a total ban policy could be implemented only pursuant to
a law amending the Milk Code passed by the constitutionally
authorized branch of government, the legislature.
Thus, only the provisions of the Milk Code, but not those
of subsequent WHA Resolutions, can be validly
implemented by the DOH through the subject RIRR
4 Razon, Jr. v. Tagitis, G.R. No. 182498, Dec. 3, 2009, 606
SCRA 598.
FACTS:
The established facts show that Engr. Tagitis, a consultant for
the World Bank and the Senior Honorary Counselor for the
Islamic Development Bank (IDB) Scholarship Programme, was
last seen in Jolo, Sulu. Together with Arsimin Kunnong
(Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in
the early morning of October 31, 2007 from a seminar in
Zamboanga City. They immediately checked-in at ASY Pension
House. Tagitis asked Kunnong to buy him a boat ticket for his
return trip the following day to Zamboanga. When Kunnong
returned from this errand, Tagitis was no longer around. The
receptionist related that Tagitis went out to buy food at around
12:30 in the afternoon and even left his room key with the
desk. Kunnong looked for Tagitis and even sent a text message
to the latter’s Manila-based secretary who did not know of
Tagitis’ whereabouts and activities either; she advised
Kunnong to simply wait
On November 4, 2007, Kunnong and Muhammad Abdulnazeir
N. Matli, a UP professor of Muslim studies and Tagitis’ fellow
student counselor at the IDB, reported Tagitis’ disappearance
to the Jolo Police Station. On November 7, 2007, Kunnong
executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis’ disappearance.
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More than a month later (on December 28, 2007), Mary Jean
Tagitis filed a Petition for the Writ of Amparo (petition) with the
CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.The
petition was directed against Lt. Gen. Alexander Yano,
Commanding General, Philippine Army; Gen. Avelino I. Razon,
Chief, Philippine National Police (PNP); Gen. Edgardo M.
Doromal, Chief, Criminal Investigation and Detention Group
(CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime
and Emergency Response; Gen. Joel Goltiao, Regional Director,
ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task
Force Comet (petitioners)
Mary Jean said in her statement that she approached some of
her co-employees with the Land Bank in Digos branch, Digos
City, Davao del Sur who likewise sought help from some of
their friends in the military who could help them find/locate
the whereabouts of her husband. All of her efforts did not
produce any positive results except the information from
persons in the military who do not want to be identified that
Engr. Tagitis is in the hands of the uniformed men. According
to reliable information she received, subject Engr. Tagitis is in
the custody of police intelligence operatives, specifically with
the CIDG, PNP Zamboanga City, being held against his will in
an earnest attempt of the police to involve and connect Engr.
Tagitis with the different terrorist groups particularly the
Jemaah Islamiyah or JI.
She then filed her complaint with the PNP Police Station in the
ARMM in Cotobato and in Jolo, seeking their help to find her
husband, but was told of an intriguing tale by the police that
her husband was not missing but was with another woman
having good time somewhere, which is a clear indication of the
refusal of the PNP to help and provide police assistance in
locating her missing husband.
She has exhausted all administrative avenues and remedies
but to no avail, and under the circumstances, she has no other
plain, speedy and adequate remedy to protect and get the
release of her husband, Engr. Morced Tagitis, from the illegal
clutches of his captors, their intelligence operatives and the
like which are in total violation of the subject’s human and
constitutional rights, except the issuance of a WRIT OF
AMPARO.
On the same day the petition was filed, the CA immediately
issued the Writ of Amparo, set the case for hearing on January
7, 2008, and directed the petitioners to file their verified return
within seventy-two (72) hours from service of the writ.
Hence, this petition for reviwew by certiorari filed by the
present petitioners.
ISSUE:
Whether or not the privilege of the Writ of Amparo should be
extended to Engr. Morced Tagitis.
RULING:
The disappearance of Engr. Morced Tagitis is classified as an
enforced disappearance, thus the privilege of the Writ of
Amparo applies.
Under the UN Declaration enforced disappearance as "the
arrest, detention, abduction or any other form of deprivation of
liberty by agents of the State or by persons or groups of
persons acting with the authorization, support or acquiescence
of the State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a
person outside the protection of the law." Under this definition,
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the elements that constitute enforced disappearance are
essentially fourfold:
(a) arrest, detention, abduction or any form of deprivation of
liberty;
(b) carried out by agents of the State or persons or groups of
persons acting with the authorization, support or acquiescence
of the State;
(c) followed by a refusal to acknowledge the detention, or a
concealment of the fate of the disappeared person;
(d) placement of the disappeared person outside the protection
of the law.
There was no direct evidence indicating how the victim actually
disappeared. The direct evidence at hand only shows that
Tagitis went out of the ASY Pension House after depositing his
room key with the hotel desk and was never seen nor heard of
again. The undisputed conclusion, however, from all concerned
– the petitioner, Tagitis’ colleagues and even the police
authorities – is that Tagistis disappeared under mysterious
circumstances and was never seen again.
A petition for the Writ of Amparo shall be signed and verified
and shall allege, among others (in terms of the portions the
petitioners cite):
(c) The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or
omission of the respondent, and how such threat or violation is
committed with the attendant circumstances detailed in
supporting affidavits;
(d) The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct of
the investigation, together with any report;(e) The actions and
recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the
person responsible for the threat, act or omission.
The framers of the Amparo Rule never intended Section 5(c) to
be complete in every detail in stating the threatened or actual
violation of a victim’s rights. As in any other initiatory pleading,
the pleader must of course state the ultimate facts constituting
the cause of action, omitting the evidentiary details.76 In an
Amparo petition, however, this requirement must be read in
light of the nature and purpose of the proceeding, which
addresses a situation of uncertainty; the petitioner may not be
able to describe with certainty how the victim exactly
disappeared, or who actually acted to kidnap, abduct or arrest
him or her, or where the victim is detained, because these
information may purposely be hidden or covered up by those
who caused the disappearance. In this type of situation, to
require the level of specificity, detail and precision that the
petitioners apparently want to read into the Amparo Rule is to
make this Rule a token gesture of judicial concern for
violations of the constitutional rights to life, liberty and
security.
To read the Rules of Court requirement on pleadings while
addressing the unique Amparo situation, the test in reading
the petition should be to determine whether it contains the
details available to the petitioner under the circumstances,
while presenting a cause of action showing a violation of the
victim’s rights to life, liberty and security through State or
private party action. The petition should likewise be read in its
totality, rather than in terms of its isolated component parts, to
determine if the required elements – namely, of the
disappearance, the State or private action, and the actual or
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threatened violations of the rights to life, liberty or security – persons in occupied territories "endangering German security";
are present. they were transported secretly to Germany where they
disappeared without a trace. In order to maximize the desired
The properly pleaded ultimate facts within the pleader’s
intimidating effect, the policy prohibited government officials
knowledge about Tagitis’ disappearance, the participation by
from providing information about the fate of these targeted
agents of the State in this disappearance, the failure of the
persons.
State to release Tagitis or to provide sufficient information
about his whereabouts, as well as the actual violation of his In the Philippines, enforced disappearances generally fall
right to liberty. Thus, the petition cannot be faulted for any within the first two categories, and 855 cases were recorded
failure in its statement of a cause of action. during the period of martial law from 1972 until 1986. Of this
number, 595 remained missing, 132 surfaced alive and 127
If a defect can at all be attributed to the petition, this defect is
were found dead. During former President Corazon C. Aquino’s
its lack of supporting affidavit, as required by Section 5(c) of
term, 820 people were reported to have disappeared and of
the Amparo Rule. Owing to the summary nature of the
these, 612 cases were documented. Of this number, 407
proceedings for the writ and to facilitate the resolution of the
remain missing, 108 surfaced alive and 97 were found dead.
petition, the Amparo Rule incorporated the requirement for
The number of enforced disappearances dropped during former
supporting affidavits, with the annotation that these can be
President Fidel V. Ramos’ term when only 87 cases were
used as the affiant’s direct testimony. This requirement,
reported, while the three-year term of former President Joseph
however, should not be read as an absolute one that
E. Estrada yielded 58 reported cases. KARAPATAN, a local non-
necessarily leads to the dismissal of the petition if not strictly
governmental organization, reports that as of March 31, 2008,
followed. Where, as in this case, the petitioner has
the records show that there were a total of 193 victims of
substantially complied with the requirement by submitting a
enforced disappearance under incumbent President Gloria M.
verified petition sufficiently detailing the facts relied upon, the
Arroyo’s administration. The Commission on Human Rights’
strict need for the sworn statement that an affidavit represents
records show a total of 636 verified cases of enforced
is essentially fulfilled. We note that the failure to attach the
disappearances from 1985 to 1993. Of this number, 406
required affidavits was fully cured when the respondent and
remained missing, 92 surfaced alive, 62 were found dead, and
her witness (Mrs. Talbin) personally testified in the CA
76 still have undetermined status.Currently, the United
hearings held on January 7 and 17 and February 18, 2008 to
Nations Working Group on Enforced or Involuntary
swear to and flesh out the allegations of the petition. Thus,
Disappearance reports 619 outstanding cases of enforced or
even on this point, the petition cannot be faulted.
involuntary disappearances covering the period December 1,
The phenomenon of enforced disappearance arising from State 2007 to November 30, 2008.
action first attracted notice in Adolf Hitler’s Nact und Nebel
Under Philippine Law
Erlass or Night and Fog Decree of December 7, 1941. The Third
Reich’s Night and Fog Program, a State policy, was directed at
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The Amparo Rule expressly provides that the "writ shall cover
extralegal killings and enforced disappearances or threats
thereof."We note that although the writ specifically covers
"enforced disappearances," this concept is neither defined nor
penalized in this jurisdiction. The records of the Supreme
Court Committee on the Revision of Rules (Committee) reveal
that the drafters of the Amparo Rule initially considered
providing an elemental definition of the concept of enforced
disappearance:
Justice Puno stated that, “as the law now stands, extra-judicial
killings and enforced disappearances in this jurisdiction are
not crimes penalized separately from the component criminal
acts undertaken to carry out these killings and enforced
disappearances and are now penalized under the Revised Penal
Code and special laws.”
Although the Court’s power is strictly procedural and as such
does not diminish, increase or modify substantive rights, the
legal protection that the Court can provide can be very
meaningful through the procedures it sets in addressing
extrajudicial killings and enforced disappearances. The Court,
through its procedural rules, can set the procedural standards
and thereby directly compel the public authorities to act on
actual or threatened violations of constitutional rights. To state
the obvious, judicial intervention can make a difference – even
if only procedurally – in a situation when the very same
investigating public authorities may have had a hand in the
threatened or actual violations of constitutional rights.
The burden for the public authorities to discharge in these
situations, under the Rule on the Writ of Amparo, is twofold.
The first is to ensure that all efforts at disclosure and
investigation are undertaken under pain of indirect contempt
from this Court when governmental efforts are less than what
the individual situations require. The second is to address the
disappearance, so that the life of the victim is preserved and
his or her liberty and security restored. In these senses, our
orders and directives relative to the writ are continuing efforts
that are not truly terminated until the extrajudicial killing or
enforced disappearance is fully addressed by the complete
determination of the fate and the whereabouts of the victim, by
the production of the disappeared person and the restoration
of his or her liberty and security, and, in the proper case, by
the commencement of criminal action against the guilty
parties.
During the International Convention for the Protection of All
Persons from Enforced Disappearance (in Paris, France on
February 6, 2007, "enforced disappearance" is considered to
be the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or
groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge
the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a
person outside the protection of the law.
5.USAFFE Veterans Association, Inc. vs Treasurer of the
Philippines
FACTS:
In October 1954, the USAFFE Veterans Associations Inc.
(Usaffe), prayed in its complaint before the Manila court of first
instance that the Romulo-Snyder Agreement (1950) whereby
the Philippine Government undertook to return to the United
States Government in ten annual installments, a total of about
35-million dollars advanced by the United States to, but
unexpanded by, the National Defense Forces of the Philippines
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be annulled, that payments thereunder be declared illegal and
that defendants as officers of the Philippine Republic be
restrained from disbursing any funds in the National Treasury
in pursuance of said Agreement. Said Usaffe Veterans further
asked that the moneys available, instead of being remitted to
the United States, should be turned over to the Finance Service
of the Armed Forces of the Philippines for the payment of all
pending claims of the veterans represented by plaintiff. The
complaint rested on plaintiff's three propositions: first, that the
funds to be "returned" under the Agreement were funds
appropriated by the American Congress for the Philippine
army, actually delivered to the Philippine Government and
actually owned by said Government; second, that U.S.
Secretary Snyder of the Treasury, had no authority to retake
such funds from the P.I. Government; and third, that
Philippine foreign Secretary Carlos P. Romulo had no authority
to return or promise to return the aforesaid sums of money
through the so-called Romulo-Snyder Agreement.
ISSUES
Basic issue: Validity of the Romulo-Snyder Agreement – Court
can’t pass judgment
1. WON there is obligation to repay - YES
2. WON the officers who promised to repay had authority to
bind this Govt – YES
Held:
1. Note that the $269M appropriated in Public Law 353
expressly said that the money is to be handed to the RP Govt
either in advance of or in reimbursement thereof. In any
system of accounting, advances of funds for expenditures
contemplate disbursements to be reported, & credited if
approved, against such advances, the unexpended sums to be
returned later. Congressional law itself required accounting “in
the manner prescribed by US Pres - & said Pres in EO 9011,
outlined the procedure whereby advanced funds shall be
accounted for. It also requires as a condition sine qua non that
all expenditures shall first be approved by the USAFFE
Commanding Gen. These ideas of “funds advanced” to meet
expenditures of the Phil Army as may be approved by the
USAFFE Comm-Gen, in connection w/ the accounting
requirement, evidently contradict appellant’s thesis that the
moneys represented straight payments to RP Govt for its
armed services, & passed into the absolute control of such
Govt. Instead of returning such amount into one lump sum,
our Exec Department arranged for its repayment in 10 annual
installments. Prima facie such arrangement should raise no
valid objection, given the obligation to return.
2. There is no doubt Pres Quirino approved the negotiations.
And he had the power to contract budgetary loans under RA
213, amending RA 16. The most important argument, however,
rests on the lack of ratification of the Agreement by RP Senate
to make it binding on the Govt.
• The ff explanation of the defendant was considered
persuasive by the Court…
The agreement is not a ‘treaty’ as that term is used in CONSTI.
However, a treaty is not the only form that an international
agreement may assume. For the grant of treaty making power
to the Executive & the Senate does not exhaust the power of
the government over international relations.
Executive agreements may be entered into with other states &
are effective even without concurrence of Senate.
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-In int’l law, there is no difference between treaties & executive
agreements in their binding effect upon states concerned as
long as the negotiating functionaries have remained w/n their
powers.
-The distinction between executive agreements & treaties is
purely a constitutional one & has not int’l legal significance.
-Altman v. US: An int’l compact negotiated between the reps of
2 sovereign nations & made in the name or behalf of the
contracting parties & dealing with important commercial
relations between the 2 countries, is a treaty both
internationally although as an executive agreement it is not
technically a treaty requiring the advice & consent of the
Senate
-2 classes of Executive Agreements: 1) agreements made purely
as executive acts affecting external relations & independent of
or without legislative authorization, which may be termed as
presidential agreements; 2) agreements entered into in
pursuance of acts of Cong, which have been designated as
Congressional-Executive Agreements
-The Romulo-Snyder Agreement may fall under any of these 2
classes for on Sept 18, 1946, RP Congress authorized the RP
Pres to obtain such loans or incur such indebtedness with the
US.
-Even granting there is no legal authorization, the Agreement
was legally & validly entered into to conform to the 2nd
category, namely, as agreements entered into purely as
executive acts without leg authorization’, which usually
includes money agreements.
-The Agreement was not submitted to the US Senate either.
But the Phil Senate’s Resolution No. 15 practically admits the
validity & binding force of such Agreement.
Further, the acts of Congress appropriating funds for the
yearly installments necessary to comply w/ such Agreement
constitute a ratification thereof, WHICH PLACES THE
QUESTION OF VALIDITY OUT OF THE COURT’S REACH, NO
CONSTITUTIONAL PRINCIPLE HAVING BEEN INVOKED TO
RESTRICT CONGRESS’ PLENARY POWER TO APPROPRIATE
FUNDS – LOAN OR NO LOAN.
6. COMMISSIONER OF CUSTOMS VS. Eastern Sea Trading
Facts:
Eastern Sea Trading (EST) was a shipping company which
imports from Japan onion and garlic into the Philippines. In
1956, the Commissioner of Customs ordered the seizure and
forfeiture of the import goods because EST was not able to
comply with Central Bank Circulars 44 and 45. The said
circulars were pursuant to Executive Order 328. On the other
hand, EO 328 was the implementing law of the Trades and
Financial agreements, an executive agreement, entered into
between the Philippines and Japan. The said executive
agreement states, among others, that all import transactions
between Japan and the Philippines should be invoiced in
dollar. In this case, the said items imported by EST from Japan
were not invoiced in dollar. EST questioned the validity of the
said EO averring that the executive agreement that the EO was
implementing was never concurred upon by the Senate. The
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issue was elevated to the Court of Tax Appeals and the latter
ruled in favor of EST. The Commissioner appealed.
ISSUE:
Whether or not the Executive Agreement is subject to the
concurrence by the Senate.
HELD:
No, Executive Agreements are not like treaties which are
subject to the concurrence of at least 2/3 of the members of
the Senate. Agreements concluded by the President which fall
short of treaties are commonly referred to as executive
agreements and are no less common in our scheme of
government than are the more formal instruments — treaties
and conventions. They sometimes take the form of exchanges
of notes and at other times that of more formal documents
denominated ‘agreements’ or ‘protocols’. The point where
ordinary correspondence between this and other governments
ends and agreements — whether denominated executive
agreements or exchanges of notes or otherwise — begin, may
sometimes be difficult of ready ascertainment. It would be
useless to undertake to discuss here the large variety of
executive agreements as such, concluded from time to time.
Hundreds of executive agreements, other than those entered
into under the trade- agreements act, have been negotiated
with foreign governments. . . . It would seem to be sufficient, in
order to show that the trade agreements under the act of 1934
are not anomalous in character, that they are not treaties, and
that they have abundant precedent in our history, to refer to
certain classes of agreements heretofore entered into by the
Executive without the approval of the Senate. They cover such
subjects as the inspection of vessels, navigation dues, income
tax on shipping profits, the admission of civil aircraft, customs
matters, and commercial relations generally, international
claims, postal matters, the registration of trade-marks and
copyrights, etc. Some of them were concluded not by specific
congressional authorization but in conformity with policies
declared in acts of Congress with respect to the general subject
matter, such as tariff acts; while still others, particularly those
with respect to the settlement of claims against foreign
governments, were concluded independently of any legislation.
7. CIR v. Gotamco, G.R. No. L-31092, Feb. 27, 1987, 148
SCRA 36
FACTS:
The World Health Organization (WHO for short) enjoys
privileges and immunities which are defined more specifically
in the Host Agreement entered into between the Republic of the
Philippines and the said Organization on July 22,1951. Section
11 of that Agreement provides, inter alia, that "the
Organization, its assets, income and other properties shall be:
(a) exempt from all direct and indirect taxes. It is understood,
however, that the Organization will not claim exemption from
taxes which are, in fact, no more than charges for public utility
services;…”
When the WHO decided to construct a building to house its
own offices, it entered into a further agreement with the
Government of the Republic of the Philippines on November
26, 1957. This agreement contained the following provision
(Article III, paragraph 2):
"The Organization may import into the country materials and
fixtures required for the construction free from all duties and
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taxes and agrees not to utilize any portion of the international
reserves of the Government."
The construction contract was awarded to respondent John
Gotamco & Sons, Inc. (Gotamco for short) on February 10,
1958 for the stipulated price of P370,000.00, but when the
building was completed the price reached a total of
P452,544.00.
Sometime in May 1958, the WHO received an opinion from the
Commissioner of the Bureau of Internal Revenue stating that
"as the 3% contractor's tax is an indirect tax on the assets and
income of the Organization, the gross receipts derived by
contractors from their contracts with the WHO for the
construction of its new building, are exempt from tax in
accordance with . . . the Host Agreement." Subsequently,
however, on June 3, 1958, the Commissioner of Internal
Revenue reversed his opinion and stated that "as the 3%
contractor's tax is not a direct nor an indirect tax on the WHO,
but a tax that is primarily due from the contractor, the same is
not covered by. . . the Host Agreement.''
On January 2,1960, the WHO issued a certification stating,
inter alia:
"When the request for bids for the construction of the World
Health Organization office building was called for, contractors
were informed that there would be no taxes or fees levied upon
them for their work in connection with the construction of the
building as this will be considered an indirect tax to the
Organization caused by the increase of the contractor's bid in
order to cover these taxes. This was upheld by the Bureau of
Internal Revenue and it can be stated that the contractors
submitted their bids in good faith with the exemption in mind.
The undersigned, therefore, certifies that the bid of John
Gotamco & Sons, made under the condition stated above,
should be exempted from any taxes in connection with the
construction of the World Health Organization office building."
ISSUES:
1. WON Host Agreement is Null and Void?
2. WON the assessed 3% contractor’s tax from the
respondent is not an “indirect tax”?
HELD:
No. The Court find no merit in this contention. While treaties
are required to be ratified by the Senate under the
Constitution, less formal types of international agreements
may be entered into by the Chief Executive and become
binding without the concurrence of the legislative body. The
Host Agreement comes within the latter category; it is a valid
and binding international agreement even without the
concurrence of the Philippine Senate. The privileges and
immunities granted to the WHO under the Host Agreement
have been recognized by this Court as legally binding on
Philippine authorities

No. In context, direct taxes are those that are demanded from
the very person who, it is intended or desired, should pay
them; while indirect taxes are those that are demanded in the
first instance from one person in the expectation and intention
that he can shift the burden to someone else. (Pollock vs.
Farmers, L & T Co., 1957 US 429,15 S. Ct. 673, 39 Law. Ed.
759.) The contractor's tax is of course payable by the
contractor but in the last analysis it is the owner of the
building that shoulders the burden of the tax because the
same is shifted by the contractor to the owner as a matter of
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self-preservation. Thus, it is an indirect tax. And it is an
indirect tax on the WHO because, although it is payable by the
petitioner, the latter can shift its burden on the WHO. In the
last analysis it is the WHO that will pay the tax indirectly
through the contractor and it certainly cannot be said that
'this tax has no bearing upon the World Health Organization.
Petition is dismissed, CTA decision is affirmed.
8. Bayan v. Zamora G.R. No. 138570 October 10, 2000
FACTS
The Republic of the Philippines and the United States of
America entered into an agreement called the Visiting Forces
Agreement (VFA). The agreement was treated as a treaty by the
Philippine government and was ratified by then-President
Joseph Estrada with the concurrence of 2/3 of the total
membership of the Philippine Senate.
The VFA defines the treatment of U.S. troops and personnel
visiting the Philippines. It provides for the guidelines to govern
such visits, and further defines the rights of the U.S. and the
Philippine governments in the matter of criminal jurisdiction,
movement of vessel and aircraft, importation and exportation
of equipment, materials and supplies.
Petitioners argued, inter alia, that the VFA violates §25, Article
XVIII of the 1987 Constitution, which provides that “foreign
military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the
Senate . . . and recognized as a treaty by the other contracting
State.”
ISSUE
Whether or Not the VFA is unconstitutional?
RULING
[The Court DISMISSED the consolidated petitions, held that
the petitioners did not commit grave abuse of discretion, and
sustained the constitutionality of the VFA.]
NO, the VFA is not unconstitutional.
Section 25, Article XVIII disallows foreign military bases,
troops, or facilities in the country, unless the following
conditions are sufficiently met, viz: (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 provisions
of the Constitution . . . the provision in [in §25, Article XVIII]
requiring ratification by a majority of the votes cast in a
national referendum being unnecessary since Congress has
not required it.
xxx xxx xxx
This Court is of the firm view that the phrase “recognized as a
treaty” means that the other contracting party accepts or
acknowledges the agreement as a treaty. To require the other
contracting state, the United States of America in this case, to
submit the VFA to the United States Senate for concurrence
pursuant to its Constitution, is to accord strict meaning to the
phrase.
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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.
Moreover, it is inconsequential whether the United States
treats the VFA only as an executive agreement because, under
international law, an executive agreement is as binding as a
treaty. To be sure, as long as the VFA possesses the elements
of an agreement under international law, the said agreement is
to be taken equally as a treaty.
xxx xxx xxx
The records reveal that the United States Government, through
Ambassador Thomas C. Hubbard, has stated that the United
States government has fully committed to living up to the
terms of the VFA. For as long as the United States of America
accepts or acknowledges the VFA as a treaty, and binds itself
further to comply with its obligations under the treaty, there is
indeed marked compliance with the mandate of the
Constitution.
9.Plaridel M. Abaya vs. Hon. Secretary Hermogenes E.
Ebdane, Jr.
FACTS:
On May 7, 2004 Bids and Awards Committee (BAC) of the
Department of Public Works and Highways (DPWH) issued a
Resolution No. PJHL-A-04-012. It was approved by DPWH
Acting Secretary Florante Soriquez. This resolution
recommended the award to China Road & Bridge Corporation
of the contract for the implementation of civil works for
Contract Package No. I (CP I), which consists of the
improvement/rehabilitation of the San Andres-Virac-Jct. Bago-
Viga road, with the lengt of 79.818 kilometers, in the island
province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and
between the JBIC and the Philippine Government pursuant to
the exchange of Notes executed by and between Mr. Yoshihisa
Ara, Ambassador Extraordinary and Plenipotentiary of Japan
to the Philippines, and then Foreign Affairs Secretary Siazon,
in behalf of their respective governments.
ISSUE:
Whether or not the Loan Agreement No. PH-204 between the
JBIC and the Philippine Government is a kind of a treaty.
HELD:
The Loan Agreement No. PH-204 taken in conjunction with the
Exchange of Notes dated December 27, 1999 between the
Japanese Government and the Philippine Government is an
executive agreement.
An “exchange of notes” is a record of a routine agreement that
has many similarities with the private law contract. The
agreement consists of the exchange of two documents, each of
the parties being in the possession of the one signed by the
representative of the other.
…treaties, agreements, conventions, charters, protocols,
declarations, memoranda of understanding, modus vivendi and
exchange of notes all are refer to international instruments
binding at international law.
Although these instruments differ from each other by title, they
all have common features and international law has applied
basically the same rules to all these instruments. These rules
are the result of long practice among the States, which have
accepted them as binding norms in their mutual relations.
Therefore, they are regarded as international customary law.
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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.
10.BAYAN MUNA, as represented by REP. SATUR OCAMPO,
ET AL., Petitioners, v. ALBERTO ROMULO, in his capacity
as Executive Secretary, et al., Respondents.
G.R. No. 159618
February 1, 2011
FACTS:
Having a key determinative bearing on this case is the
Rome Statute establishing the International Criminal Court
(ICC) with the power to exercise its jurisdiction over persons for
the most serious crimes of international concern and shall be
complementary to the national criminal jurisdictions. The
serious crimes adverted to cover those considered grave under
international law, such as genocide, crimes against humanity,
war crimes, and crimes of aggression.
The RP, through Charge affairs Enrique A. Manalo,
signed the Rome Statute which is subject to ratification,
acceptance or approval by the signatory states. As of the filing
of the instant petition, only 92 out of the 139 signatory
countries appear to have completed the ratification. The
Philippines is not among the 92.
On May 9, 2003, then Ambassador Francis J.
Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the
non-surrender bilateral agreement (Agreement, hereinafter)
between the USA and the RP. Via Exchange of Notes No. BFO-
028-03 dated May 13, 2003 (E/N BFO-028-03, hereinafter),
the RP, represented by then DFA Secretary Ople, agreed with
and accepted the US proposals.
In esse, the Agreement aims to protect what it refers to and
defines as persons of the RP and US from frivolous and
harassment suits that might be brought against them in
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international tribunals. It is reflective of the increasing pace of
the strategic security and defense partnership between the two
countries.
Ambassador Ricciardone said in a letter that the
exchange of diplomatic notes constituted a legally binding
agreement under international law; and that, under US law,
the said agreement did not require the advice and consent of
the US Senate.
Petitioner however imputes grave abuse of discretion to
respondents in concluding and ratifying the Agreement and
prays that it be struck down as unconstitutional, or at least
declared as without force and effect. For their part,
respondents question petitioners standing to maintain a suit
and counter that the Agreement, being in the nature of an
executive agreement, does not require Senate concurrence for
its efficacy. And for reasons detailed in their comment,
respondents assert the constitutionality of the Agreement.
ISSUES: Whether or not the Agreement was contracted
validly
Ruling: Yes. Petition is dismissed.
Petitioners initial challenge against the Agreement relates to
form, its threshold posture being that of an Exchange of Notes
cannot be a valid medium for concluding the Agreement.
The Court ruled that an exchange of notes falls into the
category of inter-governmental agreements, which is an
internationally accepted form of international agreement. The
United Nations Treaty Collections (Treaty Reference Guide)
defines the term as follows:
An exchange of notes is a record of a routine agreement, that
has many similarities with the private law contract. The
agreement consists of the exchange of two documents, each of
the parties being in the possession of the one signed by the
representative of the other…
In another perspective, the terms exchange of notes and
executive agreements have been used interchangeably,
exchange of notes being considered a form of executive
agreement that becomes binding through executive action. On
the other hand, executive agreements concluded by the
President sometimes take the form of exchange of notes and at
other times that of more formal documents denominated
agreements or protocols.
Senate Concurrence Not Required; treaties
Article 2 of the Vienna Convention on the Law of
Treaties defines a treaty as an international agreement
concluded between states in written form and governed by
international law, whether embodied in a single
instrument or in two or more related instruments and
whatever its particular designation. International
agreements may be in the form of (1) treaties that require
legislative concurrence after executive ratification; or (2)
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executive agreements that are similar to treaties, except
that they do not require legislative concurrence and are
usually less formal and deal with a narrower range of
subject matters than treaties.
Authorities are, however, agreed that one is distinct
from another for accepted reasons apart from the
concurrence-requirement aspect. As has been observed by US
constitutional scholars, a treaty has greater dignity than an
executive agreement, because its constitutional efficacy is
beyond doubt, a treaty having behind it the authority of the
President, the Senate, and the people; a ratified treaty, unlike
an executive agreement, takes precedence over any prior
statutory enactment.
Petitioner parlays the notion that the Agreement is of
dubious validity, partaking as it does of the nature of a treaty;
hence, it must be duly concurred in by the Senate. Petitioner
submits that the subject of the Agreement does not fall
under any of the subject-categories that are enumerated in
the Eastern Sea Trading case, and that may be covered by an
executive agreement, such as commercial/consular relations,
most-favored nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and
settlement of claims.
There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an executive
agreement as an instrument of international relations. The
primary consideration in the choice of the form of
agreement is the parties intent and desire to craft an
international agreement in the form they so wish to
further their respective interests. Verily, the matter of form
takes a back seat when it comes to effectiveness and binding
effect of the enforcement of a treaty or an executive agreement,
as the parties in either international agreement each labor
under the pacta sunt servanda principle.
The enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which
the international agreement format would be convenient to
serve its best interest. And lest it be overlooked, one type of
executive agreement is a treaty-authorized or a treaty-
implementing executive agreement, which necessarily
would cover the same matters subject of the underlying
treaty.
Agreement Need Not Be in the Form of a Treaty
As a corollary, it is argued that any derogation from the
Rome Statute principles cannot be undertaken via a mere
executive agreement, which, as an exclusive act of the
executive branch, can only implement, but cannot amend or
repeal, an existing law. The Agreement, so the argument goes,
seeks to frustrate the objects of the principles of law or alters
customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus
advanced considers the Agreement inefficacious, unless it is
embodied in a treaty duly ratified with the concurrence of the
Senate, the theory being that a Senate- ratified treaty partakes
of the nature of a municipal law that can amend or supersede
another law, in this instance Sec. 17 of RA 9851 and the status
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of the Rome Statute as constitutive of enforceable domestic law
under Sec. 2, Art. II of the Constitution.
We are unable to lend cogency to the view thus taken. For
one, we find that the Agreement does not amend or is
repugnant to RA 9851. For another, the view does not
clearly state what precise principles of law, if any, the
Agreement alters. And for a third, it does not demonstrate
in the concrete how the Agreement seeks to frustrate the
objectives of the principles of law subsumed in the Rome
Statute.
Nonetheless, despite the lack of actual domestic legislation, the
US notably follows the doctrine of incorporation. Thus, a
person can be tried in the US for an international crime despite
the lack of domestic legislation. The US doubtless recognizes
international law as part of the law of the land, necessarily
including international crimes, even without any local statute.
In fact, years later, US courts would apply international law as
a source of criminal liability despite the lack of a local statute
criminalizing it as such.
This rule finds an even stronger hold in the case of crimes
against humanity. It has been held that genocide, war crimes
and crimes against humanity have attained the status of
customary international law. Some even go so far as to state
that these crimes have attained the status of jus cogens.
The term jus cogens means the compelling law. Corollary, ajus
cogensnorm holds the highest hierarchical position among all
other customary norms and principles. These jus cogens
crimes relate to the principle of universal jurisdiction, i.e., any
state may exercise jurisdiction over an individual who commits
certain heinous and widely condemned offenses, even when no
other recognized basis for jurisdiction exists. The rationale
behind this principle is that the crime committed is so
egregious that it is considered to be committed against all
members of the international community and thus granting
every State jurisdiction over the crime.
Therefore, even with the current lack of domestic legislation on
the part of the US, it still has both the doctrine of
incorporation and universal jurisdiction to try these crimes.
13. Singh vs. Insular Collector of Customs
Facts:
Plaintiffs and appellants were East Indians who were peddlers
and farmers, who arrived at the port of manila asking for
permission to enter the Philippine Islands but were denied
admission by virtue of Sec.3 of the Act of Congress.
They were not granted permission to enter the same by the
board of special inquiry because they were not among the
exceptions provided under the Act, The exceptions are: (a)
Government officials; (b) ministers or religious teachers; (c)
missionaries; (d) lawyers; (e) physicians; (f) chemists; (g) civil
engineers; (h) teachers; (i) students; (j) authors; (k) artists; (l)
merchants; (m) travelers for curiosity or pleasure.
Appellants contended that: (a) That by virtue of treaty relations
between the United States and the Great Britain, they are
entitled to enter the territory of the United States; (b) That in
considering the law in force, they are considered “merchants”
and therefore belong to the class of persons who may enter the
territory of the United States under the above quoted Act of
Congress.
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Upon appeal to the Court of Customs the decision was
affirmed. A petition for writ of habeas corpus was applied for in
the Court of First Instance, Manila, but it was denied and
remanded each of said appellants to the custody of the
Collector of Customs in order that said appellants might be
returned to the place where they came. From said judgment
the appellants appealed to this court.
Issue:
Whether or not Treaty between the United States and Britain
invoked by the appellants can be applied to them.
Ruling: NO.
Regarding topic of Self-executing Treaties
Justice Field, in the case of Whitney vs. Robertson, of Supreme
Court of the United States said: "A treaty is primarily a
contract between two or more independent nations, . . . For the
infraction of its provisions a remedy must be sought by the
injured party through reclamations upon the other. . . . If the
treaty contains stipulations which are self-executing that is,
require no legislation to make them operate, to that extent they
have the force and effect of a legislative enactment.
By the Constitution a Treaty is placed on the same footing, and
made of like obligation with an act of legislation. Both are
declared by that instrument to be the supreme law of the land,
and no superior efficacy is given to either over the other. When
the two relate to the same subject, the courts will always
endeavor to construe them so as to give effect to both, if the
that can be done without violating the language of either, but if
the two are inconsistent, the one last in date will control the
other, provided always the stipulation of the treaty on the
subject is self-executing.
However, the treaty relations between the United States of
America and his Britannic Majesty relating to the right of
British subjects to enter the territory of the United States, is
expressly limited to His Majesty's subjects in Europe, and
do not apply to British subjects in India.
14.Self-executing (direct applicability of) treaties
Guerero’s Transport Services, Inc. v. Blaylock
Transportation Services Employees Association- KILUSAN
FACTS:
In this case, the U.S. Naval Base authorities at Subic, Zambales
conducted a public bidding for a five-year contract for the right
to operate and/or manage the transportation services inside the
naval base. The bidding was won by Santiago Guerrero , owner
of Guerrero’s Transport Services who after commencement of
operation refused to employ the members of respondent union
employed by the incumbent concessionaire Baylock Transport
Services. The said transportation filed a complaint with the
NLRC to compel Guerrero’s Transport Services to employ its
members pursuant to Article I, Section 2 of the RP-US Base
Agreement. The complaint was dismissed on jurisdictional
grounds, there being no employer-employee relationship
between the partied. The petitioner(BTSEA-KILUSAN) therein
appealed to the Secretary of the Department of Labor who
remanded the case for review to the NLRC. The NLRC then
issued a resolution ordering the petition “to absorb all the
complainants who filed their applications on or before the
deadline”. Guerrero claims that it substantially complied w/ the
decision of the Sec. of Labor affirming the NLRC Resolution, &
that any non-compliance was attributable to the individual
complainants who failed to submit themselves for processing &
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examination. The Labor Arbiter ordered the reinstatement of 129
individuals. The Union filed a Motion for Issuance of Writ of
Execution. The order wasn’t appealed so it was declared final &
executory.
Subsequently, the parties arrived at a Compromise Agreement
wherein they agreed to submit to the Sec. of Labor the
determination of members of the Union who shall be reinstated
by Guerrero, w/c determination shall be final. The agreement is
deemed to have superseded the Resolution of the NLRC. The Sec.
of Labor ordered the absorption of 175 members of the Union
subject to 2 conditions.
ISSUE:
Whether or not the petitioner should reinstate the members of
union?
HELD:
Yes. Pursuant to Sec. 6 of Art. I of the RP-US Labor Agreement,
the US Armed Forces undertook, consistent w/ military
requirements, "to provide security for employment, and, in the
event certain services are contracted out, the US Armed Forces
shall require the contractor or concessioner to give priority
consideration to affected employees for employment.
A treaty has 2 aspects — as an international agreement between
states, and as municipal law for the people of each state to
observe. As part of the municipal law, the aforesaid provision of
the treaty enters into and forms part of the contract between
Guerrero and the US Naval Base authorities. In view of said
stipulation, the new contractor (Guerrero) is, therefore, bound
to give "priority" to the employment of the qualified employees of
the previous contractor (Blaylock). It is obviously in recognition
of such obligation that Guerrero entered into the aforementioned
Compromise Agreement.
16. MIRPURI V. CA (G.R. NO. 114508)
Facts:
Lolita Escobar applied for the registration of the trademark
‘Barbizon’ for her products such as brassieres and ladies
undergarments. Respondent Barbizon Corporation, an
American corporation, opposed alleging that petitioner’s mark is
confusingly similar to its own trademark ‘Barbizon.’ Escobar’s
application was given due course and her trademark was
registered. Later, Escobar assigned all her rights to petitioner
Mirpuri who failed to file an Affidavit of Use resulting in the
cancellation of the trademark. Petitioner then applied for
registration of the trademark to which respondent Barbizon
again opposed, now invoking the protection under Article 6bis
of the Paris Convention. The Director of Patents declaring
respondent’s opposition was already barred, petitioner’s
application was given due course. CA reversed the judgment.
Issue:
Whether or not respondent may invoke the protection under
Article 6bis of the Paris Convention.
Ruling: YES.
The Convention of Paris for the Protection of Industrial Property,
otherwise known as the Paris Convention, is a multilateral treaty
that seeks to protect industrial property consisting of patents,
utility models, industrial designs, trademarks, service marks,
trade names and indications of source or appellations of origin,
and at the same time aims to repress unfair competition. The
Convention is essentially a compact among various countries
which, as members of the Union, have pledged to accord to
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citizens of the other member countries trademark and other
rights comparable to those accorded their own citizens by their
domestic laws for an effective protection against unfair
competition. Art. 6bis is a self-executing provision and does not
require legislative enactment to give it effect in the member
country. It may be applied directly by the tribunals and officials
of each member country by the mere publication or
proclamation of the Convention, after its ratification according
to the public law of each state and the order for its execution.
The Philippines and the United States of America have acceded
to the WTO Agreement. Conformably, the State must reaffirm its
commitment to the global community and take part in evolving
a new international economic order at the dawn of the new
millennium.
17. SEHWANI, INCORPORATED and/or BENITA'S FRITES,
INC. vs. IN-N-OUT BURGER, INC.
G.R. No. 171053
FACTS
Respondent IN-N-OUT Burger, Inc., a foreign corporation
organized under the laws of California, U.S.A., and not doing
business in the Philippines, filed before the Bureau of Legal
Affairs of the intellectual Property Office (BLA-IPO), an
administrative complaint against petitioners Sehwani, Inc. and
Benita’s Frites, Inc. for violation of intellectual property rights.
Respondent alleged that it is the owner of the tradename "IN-N-
OUT" and trademarks "IN-N-OUT," "IN-N-OUT Burger & Arrow
Design" and "IN-N-OUT Burger Logo," which are used in its
business since 1948 up to the present. These tradename and
trademarks were registered in the United States as well as in
other parts of the world.
When respondent applied with the IPO for the registration of its
trademark "IN-N-OUT Burger & Arrow Design" and servicemark
"IN-N-OUT," it discovered that petitioner Sehwani, Inc. had
obtained Trademark Registration for the mark "IN N OUT
without its authority. Respondent thus demanded that
petitioner Sehwani, Inc. desist from claiming ownership of the
mark "IN-N-OUT" and to voluntarily cancel its Trademark
Registration.
Petitioner Sehwani, Inc. refused to accede to the demand and
even entered into a Licensing Agreement granting its co-
petitioner Benita’s Frites, Inc. license to use for a period of five
years the trademark "IN-N-OUT BURGER" in its restaurant in
Pasig City.
Petitioners alleged that respondent lack the legal capacity to sue
because it was not doing business in the Philippines and that it
has no cause of action because its mark is not registered or used
in the Philippines. Petitioner Sehwani, Inc. also claimed that as
the registered owner of the "IN-N-OUT" mark, it enjoys the
presumption that the same was validly acquired and that it has
the exclusive right to use the mark.
The BLA rendered a Decision in favor of respondent.
ISSUE
Whether or not respondent has the legal capacity to sue for the
protection of its trademarks, albeit it is not doing business in
the Philippines.

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 Special Issues On International Law
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HELD
Yes. Respondent anchors its causes of action under Articles
6bis and 8 of The Convention of Paris for the Protection of
Industrial Property, otherwise known as the Paris Convention,
wherein both the United States and the Philippines are
signatories.
Article 6 - (1) The countries of the Union undertake, ex officio if
their legislation so permits, or at the request of an interested
party, to refuse or to cancel the registration, and to prohibit the
use, of a trademark which constitutes a reproduction, an
imitation, or a translation, liable to create confusion, of a mark
considered by the competent authority of the country of
registration or use to be well known in that country as being
already the mark of a person entitled to the benefits of this
Convention and used for identical or similar goods. These
provisions shall also apply when the essential part of the mark
constitutes a reproduction of any such well-known mark or an
imitation liable to create confusion therewith.
Article 8 - A tradename shall be protected in all countries of the
Union without the obligation of filing or registration whether or
not it forms part of a trademark.
Article 6 which governs the protection of well-known
trademarks, is a self-executing provision and does not require
legislative enactment to give it effect in the member country. It
may be applied directly by the tribunals and officials of each
member country by the mere publication or proclamation of the
Convention, after its ratification according to the public law of
each state and the order for its execution. The essential
requirement under this Article is that the trademark to be
protected must be "well-known" in the country where protection
is sought. The power to determine whether a trademark is well-
known lies in the "competent authority of the country of
registration or use." This competent authority would be either
the registering authority if it has the power to decide this, or the
courts of the country in question if the issue comes before a
court.
The question of whether or not respondent’s trademarks are
considered "well-known" is factual in nature, involving as it does
the appreciation of evidence adduced before the BLA-IPO. The
settled rule is that the factual findings of quasi-judicial agencies,
like the IPO, which have acquired expertise because their
jurisdiction is confined to specific matters, are generally
accorded not only respect, but, at times, even finality if such
findings are supported by substantial evidence.
18. G.R. No. 169507
AIR CANADA vs CIR
Facts:
Air Canada is a "foreign corporation organized and
existing under the laws of Canada. On April 24, 2000, it was
granted an authority to operate as an offline carrier by the Civil
Aeronautics Board, subject to certain conditions, which
authority would expire on April 24, 2005
On July 1, 1999, Air Canada engaged the services of
Aerotel Ltd., Corp. (Aerotel) as its general sales agent in the
Philippines. Aerotel "sells [Air Canada’s] passage documents in
the Philippines."
For the period ranging from the third quarter of 2000 to
the second quarter of 2002, Air Canada, through Aerotel, filed
quarterly and annual income tax returns and paid the income
tax on Gross Philippine Billings in the total amount of
₱5,185,676.77
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 Special Issues On International Law
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On November 28, 2002, Air Canada filed a written claim
for refund of alleged erroneously paid income taxes amounting
to ₱5,185,676.77. It found basis from the revised definition of
Gross Philippine Billings under Section 28(A)(3)(a) of the 1997
National Internal Revenue Code
To prevent the running of the prescriptive period, Air
Canada filed a Petition for Review before the Court of Tax
Appeals.
The CTA denied the petition. It found out that Air Canada
was engaged business in the Phils. through a legal agent that
sells airline tickets on its behalf. As such, it held that while Air
Canada was not liable for tax on its Gross Phil Billings, it was
nevertheless liable to pay the 32% corporate income tax in
income derived from the sales of airline tickets within the Phil.
On appeal, the CTA En Banc AFFIRMED the ruling of the CTA.
Issue:
WON RP-CANADA tax treaty is enforceable
Held:
YES. While petitioner is taxable as a resident foreign
corporation under Section 28(A)(1) of the 1997 National Internal
Revenue Code on its taxable income from sale of airline tickets
in the Philippines, it could only be taxed at a maximum of 1
1/2% of gross revenues, pursuant to Article VIII of the Republic
of the Philippines-Canada Tax Treaty that applies to petitioner
as a “foreign corporation organized and existing under the laws
of Canada[.]”
Tax treaties form part of the law of the land, and
jurisprudence has applied the statutory construction principle
that specific laws prevail over general ones. The Republic of the
Philippines-Canada Tax Treaty was ratified on December 21,
1977 and became valid and effective on that date. On the other
hand, the applicable provisions relating to the taxability of
resident foreign corporations and the rate of such tax found in
the National Internal Revenue Code became effective on January
1, 1998. Ordinarily, the later provision governs over the earlier
one. In this case, however, the provisions of the Republic of the
Philippines-Canada Tax Treaty are more specific than the
provisions found in the National Internal Revenue Code.
19.Bayan Muna Vs. Romulo
Facts:
Petitioner Bayan Muna is a duly registered party-list group
established to represent the marginalized sectors of society.
Respondent Blas F. Ople, now deceased, was the Secretary of
Foreign Affairs during the period material to this case.
Respondent Alberto Romulo was impleaded in his capacity as
then Executive Secretary.
Having a key determinative bearing on this case is the Rome
Statute (Rome Statute of the International Criminal Court)
establishing the International Criminal Court (ICC) with “the
power to exercise its jurisdiction over persons for the most
serious crimes of international concern x x x and shall be
complementary to the national criminal jurisdictions.” The
serious crimes adverted to cover those considered grave under
international law, such as genocide, crimes against humanity,
war crimes, and crimes of aggression.
On December 28, 2000, the RP, through Charge d’Affaires
Enrique A. Manalo, signed the Rome Statute which, by its
terms, is “subject to ratification, acceptance or approval” by
the signatory states. As of the filing of the instant petition, only
92 out of the 139 signatory countries appear to have completed
the ratification, approval and concurrence process. The
Philippines is not among the 92.
RP-US Non-Surrender Agreement
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 Special Issues On International Law
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On May 9, 2003, then Ambassador Francis J. Ricciardone sent
US Embassy Note No. 0470 to the Department of Foreign
Affairs (DFA) proposing the terms of the non-surrender
bilateral agreement (Agreement, hereinafter) between the USA
and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003
(E/N BFO-028-03, hereinafter), the RP, represented by then
DFA Secretary Ople, agreed with and accepted the US
proposals embodied under the US Embassy Note adverted to
and put in effect the Agreement with the US government. In
esse, the Agreement aims to protect what it refers to and
defines as “persons” of the RP and US from frivolous and
harassment suits that might be brought against them in
international tribunals. It is reflective of the increasing pace of
the strategic security and defense partnership between the two
countries. As of May 2, 2003, similar bilateral agreements have
been effected by and between the US and 33 other countries.
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, “persons” are current or
former Government officials, employees (including contractors),
or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other
shall not, absent the express consent of the first Party,
(a) be surrendered or transferred by any means to any
international tribunal for any purpose, unless such tribunal
has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other
entity or third country, or expelled to a third country, for the
purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the UN
Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers
a person of the Philippines to a third country, the [US] will not
agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has
been established by the UN Security Council, absent the
express consent of the Government of the Republic of the
Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise
transfers a person of the [USA] to a third country, the [GRP]
will not agree to the surrender or transfer of that person by the
third country to any international tribunal, unless such
tribunal has been established by the UN Security Council,
absent the express consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the
date on which one party notifies the other of its intent to
terminate the Agreement. The provisions of this Agreement
shall continue to apply with respect to any act occurring, or
any allegation arising, before the effective date of termination.
In response to a query of then Solicitor General Alfredo L.
Benipayo on the status of the non-surrender agreement,
Ambassador Ricciardone replied in his letter of October 28,
2003 that the exchange of diplomatic notes constituted a
legally binding agreement under international law; and that,
under US law, the said agreement did not require the advice
and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion
to respondents in concluding and ratifying the Agreement and
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 Special Issues On International Law
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prays that it be struck down as unconstitutional, or at least
declared as without force and effect
Issue: Whether or not the RP-US Non Surrender Agreement is
void ab initio for contracting obligations that are either
immoral or otherwise at variance with universally recognized
principles of international law.
Held:
No.
Petitioner’s initial challenge against the Agreement relates to
form, its threshold posture being that E/N BFO-028-03 cannot
be a valid medium for concluding the Agreement.
Petitioners’ contention––perhaps taken unaware of certain well-
recognized international doctrines, practices, and jargons––is
untenable. One of these is the doctrine of incorporation, as
expressed in Section 2, Article II of the Constitution, wherein
the Philippines adopts the generally accepted principles of
international law and international jurisprudence as part of
the law of the land and adheres to the policy of peace,
cooperation, and amity with all nations. An exchange of notes
falls “into the category of inter-governmental agreements,”
which is an internationally accepted form of international
agreement. The United Nations Treaty Collections (Treaty
Reference Guide) defines the term as follows:
An “exchange of notes” is a record of a routine agreement, that
has many similarities with the private law contract. The
agreement consists of the exchange of two documents, each of
the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the
accepting State repeats the text of the offering State to record
its assent. The signatories of the letters may be government
Ministers, diplomats or departmental heads. The technique of
exchange of notes is frequently resorted to, either because of
its speedy procedure, or, sometimes, to avoid the process of
legislative approval.
In another perspective, the terms “exchange of notes” and
“executive
agreements” have been used interchangeably, exchange of
notes being considered a form of executive agreement that
becomes binding through executive action. On the other hand,
executive agreements concluded by the President “sometimes
take the form of exchange of notes and at other times that of
more formal documents denominated ‘agreements’ or
‘protocols.’” As former US High Commissioner to the
Philippines Francis B. Sayre observed in his work, The
Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and
other governments ends and agreements – whether
denominated executive agreements or exchange of notes or
otherwise – begin, may sometimes be difficult of ready
ascertainment. x x x
It is fairly clear from the foregoing disquisition that E/N BFO-
028-03––be it viewed as the Non-Surrender Agreement itself, or
as an integral instrument of acceptance thereof or as consent
to be bound––is a recognized mode of concluding a legally
binding international written contract among nations.
Petitioner urges that the Agreement be struck down as void ab
initio for imposing immoral obligations and/or being at
variance with allegedly universally recognized principles of
international law. The immoral aspect proceeds from the fact
that the Agreement, as petitioner would put it, “leaves
criminals immune from responsibility for unimaginable
atrocities that deeply shock the conscience of humanity; x x x
it precludes our country from delivering an American criminal
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to the [ICC] x x x.” The above argument is a kind of recycling of CENTRAL BANK (now Bangko Sentral ng Pilipinas)
petitioner’s earlier position, which, as already discussed, EMPLOYEES ASSOCIATION, INC., petitioner, vs. BANGKO
contends that the RP, by entering into the Agreement, virtually SENTRAL NG PILIPINAS and the EXECUTIVE
abdicated its sovereignty and in the process undermined its SECRETARY, respondents.
treaty obligations under the Rome Statute, contrary to
FACTS:
international law principles. The Court is not persuaded.
Suffice it to state in this regard that the non-surrender RA 7653 – otherwise known as the New Central Bank Act took
agreement, as aptly described by the Solicitor General, “is an effect July 3 1993, effectively replacing the earlier Central
assertion by the Philippines of its desire to try and punish Bank of the Philippines (established 1949) by the Bangko
crimes under its national law. x x x . The agreement is a Sentral ng Pilipinas. On June 8 2001, petitioner Central Bank
recognition of the primacy and competence of the country’s (now BSP) Employees Association Inc. filed a petition against
judiciary to try offenses under its national criminal laws and the Executive Secretary of the Office of the President to
dispense justice fairly and judiciously.” restrain BSP from implementing the last proviso in Section 15
(i), Article II of RA 7653 which pertains to establishment of a
Petitioner, the Court believe, labors under the erroneous
Human resource management system and a compensation
impression that the Agreement would allow Filipinos and
structure as part of the authority of the Monetary Board.
Americans committing high crimes of international concern to
Employees whose positions fall under SG 19 and below shall
escape criminal trial and punishment. This is manifestly
be in accordance with the rates in the salary standardization
incorrect. Persons who may have committed acts penalized
act. Petitioner contends that the classifications is not
under the Rome Statute can be prosecuted and punished in
reasonable, arbitrary and violates the equal protection clause.
the Philippines or in the US; or with the consent of the RP or
The said proviso has been prejudicial to some 2994 rank- and
the US, before the ICC, assuming, for the nonce, that all the
–file BSP employees. Respondent on the other hand contends
formalities necessary to bind both countries to the Rome
that the provision does not violate the equal protection clause,
Statute have been met. For perspective, what the Agreement
provided that it is construed together with other provisions of
contextually prohibits is the surrender by either party of
the same law such as the “fiscal and administrative autonomy”
individuals to international tribunals, like the ICC, without the
of the Bangko Sentral and the mandate of its monetary board.
consent of the other party, which may desire to prosecute the
The Solicitor General, as counsel of the Executive Secretary
crime under its existing laws. With the view we take of things,
defends the provision, that the classification of employees is
there is nothing immoral or violative of international law
based on real and actual differentiation and it adheres to the
concepts in the act of the Philippines of assuming criminal
policy of RA 7653 to “establish professionalism and excellence
jurisdiction pursuant to the non-surrender agreement over an
within the BSP subject to prevailing laws and policies of the
offense considered criminal by both Philippine laws and the
government.”
Rome Statute.
20.[G.R. No. 1ba48208. December 15, 2004]
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 Special Issues On International Law
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ISSUE:
Whether or not the contended proviso if RA 7653 violates the
equal protection of laws, hence unconstitutional.
HELD: YES.
The principle of equality has long been recognized under
international law. Article 1 of the Universal Declaration of
Human Rights proclaims that all human beings are born free
and equal in dignity and rights. Non-discrimination, together
with equality before the law and equal protection of the law
without any discrimination, constitutes basic principles in the
protection of human rights.
International law, which springs from general principles of law,
likewise proscribes discrimination. General principles of law
include principles of equity, i.e., the general principles of
fairness and justice, based on the test of what is reasonable.
The Constitution specifically provides that labor is entitled to
"humane conditions of work." These conditions are not
restricted to the physical workplace - the factory, the office or
the field - but include as well the manner by which employers
treat their employees.
The Constitution also directs the State to promote "equality of
employment opportunities for all." Similarly, the Labor Code
provides that the State shall "ensure equal work opportunities
regardless of sex, race or creed." It would be an affront to both
the spirit and letter of these provisions if the State, in spite of
its primordial obligation to promote and ensure equal
employment opportunities, closes its eyes to unequal and
discriminatory terms and conditions of employment.
In the case at bar, BSP rank-and-file employees are paid the
strictly regimented rates of the SSL while employees higher in
rank - possessing higher and better education and
opportunities for career advancement - are given higher
compensation packages to entice them to stay. Considering
that majority, if not all, the rank-and-file employees consist of
people whose status and rank in life are less and limited,
especially in terms of job marketability, it is they - and not the
officers - who have the real economic and financial need for the
adjustment This is in accord with the policy of the Constitution
"to free the people from poverty, provide adequate social
services, extend to them a decent standard of living, and
improve the quality of life for all.
To be sure, the BSP rank-and-file employees merit greater
concern from this Court. They represent the more impotent
rank-and-file government employees who, unlike employees in
the private sector, have no specific right to organize as a
collective bargaining unit and negotiate for better terms and
conditions of employment, nor the power to hold a strike to
protest unfair labor practices. Not only are they impotent as a
labor unit, but their efficacy to lobby in Congress is almost nil
as R.A. No. 7653 effectively isolated them from the other GFI
rank-and-file in compensation. These BSP rank-and-file
employees represent the politically powerless and they should
not be compelled to seek a political solution to their unequal
and iniquitous treatment. Indeed, they have waited for many
years for the legislature to act. Unless the equal protection
clause of the Constitution is a mere platitude, it is the Courts
duty to save them from reasonless discrimination.
21. ANG LADLAD LGBT PARTY v. COMMISSION ON
ELECTIONS
G.R. No. 169507 April 8, 2010
FACTS:
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Ang Ladlad is an organization composed of men and
women who identify themselves as lesbians, gays, bisexuals or
trans-gendered (LGBTs) individuals. Incorporated in 2003, Ang
Ladlad first applied for registration with the COMELEC in 2006
but was denied on the ground that they had no substantial
membership base. In 2009 Ang Ladlad again filed a petition for
registration with the COMELEC. The petition was dismissed by
the COMELEC Second Division on moral grounds, stating that
the definition of the LGBT sector makes it clear that it tolerates
immorality which offends religious beliefs, citing verses from
the Bible and the Koran. Ang Ladlad sought reconsideration,
but was again denied by the COMELEC. In its decision, the
COMELEC stated that the party-list system is a tool for the
realization of aspirations of marginalized individuals whose
interests are also the nation’s, only that their interests have
not been brought to the attention of the nation because of their
under representation. Until the time comes when Ang ladlad is
able to justify that having mixed sexual orientations and
transgender identities is beneficial to the nation, its application
for accreditation under the party-list system will remain just
that. In the United States, whose equal protection doctrine
pervades Philippine jurisprudence, courts do not recognize
lesbians, gays, homosexuals and bisexuals (LGBT) as a “special
class” of individuals. There can be no denying that Ang Ladlad
constituencies are still males and females, and they will remain
either male or female protected by the same Bill of Rights that
applies to all citizens alike. It further reiterated that Ang
Ladlad does not have a concrete and genuine national political
agenda to benefit the nation and that the petition was validly
dismissed on moral grounds. It also argued that the LGBT
sector is not among the sectors enumerated by the
Constitution and RA 7941. Ang Ladlad subsequently filed a
Petition for Certiorari with the Supreme Court.
ISSUE:
Whether or not Ang Ladlad should be accredited as a party-list
organization under R.A. No. 7941 (Party-list System Act).
HELD:
The Supreme Court held that Ang Ladlad’s application
for party-list accreditation should be granted by the
COMELEC. The COMELEC denied Ang Ladlad’s application for
registration on the ground that the LGBT sector is neither
enumerated in the Constitution and RA 7941, nor is it
associated with or related to any of the sectors in the
enumeration. The crucial element is not whether a sector is
specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RA
7941. The SC found that Ang ladlad has sufficiently
demonstrated its compliance with the legal requirements for
accreditation. Aside from COMELEC’s moral objection and
allegation of non-existence, COMELEC never found or ruled
that Ang Ladlad is not qualified to register as a party-list
organization under any of the requisites under RA 7941.
The Constitution provides under Article III, Sec 5 that
“no law shall be made respecting an establishment of religion,
or prohibiting the free exercise thereof.” What the non-
establishment clause calls for is “governmental neutrality in
religious matters.” Clearly, governmental reliance on religious
justification is inconsistent with this policy of neutrality. It was
grave violation of the non-establishment clause for the
COMELEC to utilize the Bible and the Koran to justify the
exclusion of Ang Ladlad. Moral disapproval, without more, is
not a sufficient governmental interest to justify exclusion of
homosexuals from participation in the party-list system. The
denial of Ang Ladlad’s registration on purely moral grounds
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amounts more to a statement of dislike and disapproval of international law obligations, the blanket invocation of
homosexuals, rather than a tool to further any substantial international law is not the panacea for all social ills. Petitioner
public interest. invokes the Yogyakarta principles (the Application of
International Human Rights Law in Relation to Sexual
In an age that has seen international law evolve
Orientation and Gender Identity), which it declares to reflect
geometrically in scope and promise, international human
binding principles of international law. At this time, the SC is
rights law, in particular, has grown dynamically in its attempt
not prepared to declare that these Yogyakarta Principles
to bring about a more just and humane world order. For
contain norms that are obligatory on the Philippines. There are
individuals and groups struggling with inadequate structural
declarations and obligations outlined in said Principles which
and governmental support, international human rights norms
are not reflective of the current state of international law, and
are particularly significant, and should be effectively enforced
do not find basis in any of the sources of international law
in domestic legal systems so much so that such norms may
enumerated under Article 38(1) of the Statute of the
become actual, rather than ideal, standards of conduct. The
International Court of Justice. Petitioner has not undertaken
SC’s decision is fully in accord with our international
any objective and rigorous analysis of these alleged principles
obligations to protect and promote human rights. In particular,
of international law to ascertain their true status. Using even
we explicitly recognize the principle of non-discrimination as it
the most liberal of lenses, these Yogyakarta Principles,
relates to the right to electoral participation, enunciated in
consisting of a declaration formulated by various international
Article 21 of the UDHR (Universal Declaration of Human
law professors, are - at best - de lege ferenda - and do not
Rights), which states that “everyone has the right to take part
constitute binding obligations on the Philippines. Indeed, so
in the government of his country, directly or through freely
much of contemporary international law is full of principles
chosen representatives,” and Articles 25-26 of the ICCPR
that promote international cooperation, harmony and respect
(International Covenant on Civil and Political Rights). In this
for human rights, most of which amount to no more than well-
context, the principle of non-discrimination requires that laws
meaning desires, without the support of either State or opinio
of general application relating to elections be applied equally to
juris.
all persons, regardless of sexual orientation. Although sexual
orientation is not specifically enumerated as a status or ratio 22 Customary international law
for discrimination in Article 26 of the ICCPR, the ICCPR
LAUDE VS. GINEZ-JABALDE
Human Rights Committee has opined that the reference to
G.R. No. 217456, November 24, 2015
“sex” in Article 26 should be construed to include “sexual
orientation.” Additionally, a variety of United Nations bodies
have declared discrimination on the basis of sexual orientation FACTS:
to be prohibited under various international agreements. The
On October 11, 2014, Jeffrey “Jennifer” Laude (Jennifer) was
SC stressed, however, that although the Court stands willing to
killed at the Celzone Lodge on Ramon Magsaysay Drive in
assume the responsibility of giving effect to the Philippines’
Olongapo City allegedly by 19-year-old US Marine L/CPL
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 Special Issues On International Law
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Joseph Scott Pemberton (Pemberton).2 On October 15, 2014, a
Complaint for murder was filed by Jennifer’s sibling, Marilou
S. Laude, against Pemberton before the Olongapo City Office of
the City Prosecutor.3 On October 22, 2014, Pemberton was
detained in Camp Aguinaldo, the general headquarters of the
Armed Forces of the Philippines.
On December 15, 2014, the Public Prosecutor filed an
Information for murder against Pemberton before the Regional
Trial Court in Olongapo City. The case was docketed as Case
No. 865-14, and was raffled to Branch 74.6 A warrant of arrest
against Pemberton was issued on December 16, 2014.7
Pem-ber-ton surrendered personally to Judge Roline M. Ginez-
Jabalde (Judge Ginez-Jabalde) on December 19, 2014, and he
was then arraigned.
On the same day, Marilou S. Laude filed an Urgent Motion to
Compel the Armed Forces of the Philippines to Surrender
Custody of Accused to the Olongapo City Jail and a Motion to
Allow Media Coverage.10 “The [M]otion was [scheduled] for
hearing on December 22, 2014, at 2 p.m.”11 According to
petitioners, they were only able to serve the Motion on
Pemberton’s counsel through registered mail.12 In any case,
they claim to have also “furnished a copy of the [M]otion
personally . . . at the hearing of the [M]otion.” Petitioners
received a copy of the Order on January 5, 2015.16 On
January 9, 2015, petitioners filed a Motion for
Recon-si-deration.17 On February 18, 2015, Judge Ginez-
Jabalde issued an Order18 denying petitioners’ Motion for
Reconsideration for lack of merit.
In a Resolution dated April 21, 2015, respondents were
re-quired to file their Comment on the Petition. On June 5,
2015, public respondents, as represented by the Office of the
Solicitor General, filed their (First) Motion for Extension of
Time to File Comment for 60 days. On the same day,
Pem-berton posted his Motion for Additional Time to File
Comment21 for 10 days. Pemberton filed his Comment by
counsel on June 16, 2015, while public respondents, through
the Office of the Solicitor General, filed their Comment on
September 23, 2015.
Petitioners argue that “[r]espondent Judge committed grave
abuse of discretion tantamount to an excess or absence of
jurisdiction when she dismissed the Urgent Motion to Com-pel
the Armed Forces of the Philippines to Surrender Custody o[f]
Accused to the Olongapo City Jail [based] on mere
technicalities[.]” In particular, they argue that the three-day
rule on motions under Rule 15, Section 425 of the 1997 Rules
of Court is not absolute, and should be liberally interpreted
when a case is attended by exigent circumstances. Petitioners
also aver that the three-day notice rule should be liberally
applied due to the timing of the arrest and arraignment.
“The Urgent Motion was set for hearing on December 22,
2014[.]” This date preceded a series of legal holidays beginning
on December 24, 2014, where all the courts and government
offices suspended their work. Petitioners point out that a
“murder trial is under a distinctly special circumstance in that
paragraph 6, Article V of the Visiting Forces Agreement . . .
provides for [a] one-year trial period[,] after which the United
States shall be relieved of any obligations under said
paragraph[.]” Petitioners had to file and set the Motion hearing
at the earliest possible date.
Petitioners further argue that Judge Ginez-Jabalde should not
have dismissed the Urgent Motion to Compel the Armed Forces
of the Philippines to Surrender Custody of Accused to the
Olongapo City Jail “considering that the Urgent Motion raised
issues that are of transcendental importance and of primordial
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PART I
public interest.” Petitioners aver that under international
human rights law, in particular the International Covenant on
Civil and Political Rights and the United Nations Declaration of
Basic Principles of Justice for Victims of Crime and Abuse of
Power, they have the right to access to justice, which is
“distinct from the power of the Public Prosecutors to prosecute
[the] criminal case.”
Furthermore, petitioners advance that Philippine authorities
ought to “have primary jurisdiction over [r]espondent
Pemberton’s person while [he] is being tried [in] a Philippine
Court[,]” in accordance with Article V, paragraph (3)(b) of the
Visiting Forces Agreement.
Petitioners argue that the custody of Pemberton must be
ordered transferred to the Olongapo City Jail, considering that
the crime involved is murder, which is non-bailable.
As for the nonconformity of the Public Prosecutor, petitioners
argue that the Public Prosecutor’s refusal to sign the Urgent
Motion to Compel the Armed Forces of the Philippines to
Surrender Custody of Accused to the Olongapo City Jail
rendered the requirement for conformity superfluous. They
relied on the statement of the Secretary of Justice, Leila De
Lima, to wit: “The Philippines will now insist on the custody (of
Pemberton) now that the (case) is filed in court and especially
since the warrant of arrest has been issued,” De Lima told
reporters in an ambush interview.
Due to the nature of the case, petitioners pray in this Petition
that procedural requirements be set aside.
Respondent on the other hand, Pemberton, averred the
following: (i) the motion was not personally served to them, in
fact, they were furnished a copy a few minutes before the
hearing; (ii) Marilou S. Laude, being only the private
complainant, lacks the legal personality to file the Urgent
Motion to Compel the Armed Forces of the Philippines to
Surrender Custody of Accused to the Olongapo City Jail and
the subsequent Motion for Reconsideration “without the
conformity of the Public Prosecutor;” (iii) Pemberton also
argues that Marilou S. Laude cannot rely on the alleged
statements of Secretary De Lima for the following reasons:
First, Secretary De Lima did not direct the Olongapo City Office
of the City Prosecutor to give its approval to the Urgent Motion
and Motion for Reconsideration; second, Secretary De Lima did
not state that the Public Prose-cutor should insist on turning
over the custody of Pemberton to the Philippine authorities.
Neither was there any such order from Secretary De Lima.
Petitioners’ claims are, therefore, without legal basis; and (iv)
the “‘right to access to justice’ under international law did not
excuse [p]eti-tioner Marilou [S. Laude] from securing the
authority and conformity of the Public Prosecutor[.]” He argues
that both the International Covenant on Civil and Political
Rights and the United Nations Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power “refer to
national or domestic legislation in affording [victims] access to
justice.”
As for the issue of custody under the Visiting Forces
Agreement, Pemberton argues that there is a difference
between “jurisdiction” and “custody.” He avers that jurisdiction
is “the power and authority of a court to try, hear[,] and decide
a case.” Pemberton does not dispute that “Philippine
authorities have the primary right to exercise jurisdiction over
offenses committed by [a] United States personnel[,] [which is]
why the case is being tried [in] a Philippine court.” However,
custody “pertains to [the] actual physical control over the per
son of the accused[,]” and under the Visiting Forces
Agreement, Pemberton argues that custody shall reside with
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the United States Military authorities, since the Visiting Forces
Agreement expressly provides that “[t]he custody of any United
States personnel . . . shall immediately reside with [the] United
States military authorities . . . from the commission of the
offense until completion of all judicial proceedings.”
Public respondents advance that Judge Ginez-Jabalde did not
commit grave abuse of discretion when she denied the Urgent
Motion to Compel the Armed Forces of the Philippines to
Surrender Custody of Accused to the Olongapo City Jail. Public
respondents, through their Comment filed by the Office of the
Solicitor General, argue that “[p]etitioners are not real parties-
in-interest[.]” They claim that “the real party-in-interest is the
People [of the Philippines], represented by the public
prosecutor in the lower court and by the Office of the Solicitor
General . . . in the Court of Appeals and in the Supreme
Court.”
Referring to Rule 110, Section 5 of the Rules of Court, public
respondents aver that the requirement for motions to be “filed
in the name of and under the authority of the public
prosecutor” is not a mere technical requirement, but is part of
“the essential, inherent, and exclusive power of the State to
prosecute criminals[.]”
ISSUE:
WON there has been a grave abuse of discretion on the part of
the respondent judge in dismissing the motion.
HELD:
No, there has been NO grave abuse of discretion on the part of
the respondent judge in dismissing the motion.
On the three day rule (Rule 15, ROC)
Rule 15, Section 4 of the Rules of Court clearly makes it a
mandatory rule that the adverse party be given notice of
hearing on the motion at least three days prior. Failure to
comply with this notice requirement renders the motion
defective consistent with protecting the adverse party’s right to
procedural due process.
While the general rule is that a motion that fails to comply with
the requirements of Rule 15 is a mere scrap of paper, an
exception may be made and the motion may still be acted upon
by the court, provided doing so will neither cause prejudice to
the other party nor violate his or her due process rights. The
adverse party must be given time to study the motion in order
to enable him or her to prepare properly and engage the
arguments of the movant. In this case, the general rule must
apply because Pemberton was not given sufficient time to
study petitioners’ Motion, thereby depriving him of his right to
procedural due process.
On the International Covenant on Civil and Political Rights which
Under treaty law, the Philippines, as a State Party, is obligated
to comply with its obligations under the International Covenant
on Civil and Political Rights
There is no need to discuss whether this provision has attained
customary status, since under treaty law, the Philippines, as a
State Party, is obligated to comply with its obligations under
the International Covenant on Civil and Political Rights.
However, petitioners went too far in their interpretation,
ignoring completely the nature of the obligation contemplated
by the provision in an attempt to justify their failure to comply
with a domestic procedural rule aimed to protect a human
right in a proceeding, albeit that of the adverse party. On
March 29, 2004, the United Nations Human Rights Committee
issued General Comment No. 31, which pertained to the
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nature of the general legal obligations imposed by the
International Covenant on Civil and Political Rights on State
Parties.
The obligation contemplated by Article 2, paragraph (3) is for
the State Party to establish a system of accessible and effective
remedies through judicial and administrative mechanisms. The
present trial of Pemberton, to which petitioner, Marilou S.
Laude, is included as a private complainant, indicates that
there is a legal system of redress for violated rights. That
petitioners chose to act on their own, in total disregard of the
mechanism for criminal proceedings established by this court,
should not be tolerated under the guise of a claim to justice.
This is especially in light of petitioners’ decision to furnish the
accused in the case a copy of her Motion only during the
hearing. Upholding human rights pertaining to access to
justice cannot be eschewed to rectify an important procedural
deficiency that was not difficult to comply with. Human rights
are not a monopoly of petitioners. The accused also enjoys the
protection of these rights.
On the issue of Real Party-in-Interest
The conformity of the Public Prosecutor to the Urgent Motion to
Compel the Armed Forces of the Philippines to Surrender
Custody of Accused to the Olongapo City Jail is not a mere
“superfluity.” In Jimenez v. Sorongon, 687 SCRA 151 (2012),
this court held that in criminal cases, the People is the real
party-in-interest, which means allowing a private complainant
to pursue a criminal action on his own is a rare exception.
On the scope of Judicial Review
The constitutionality of an official act may be the subject of
judicial review, provided the matter is not raised collaterally. In
Planters Products, Inc. v. Fertiphil Corporation, 548 SCRA 485
(2008): Judicial review of official acts on the ground of
unconstitutionality may be sought or availed of through any of
the actions cognizable by courts of justice, not necessarily in a
suit for declaratory relief. . . The constitutional issue, however,
(a) must be properly raised and presented in the case, and (b)
its resolution is necessary to a determination of the case, i.e.,
the issue of constitutionality must be the very lis mota
presented. (Emphasis supplied, citation omitted) The
constitutionality of the Visiting Forces Agreement is not the lis
mota of this Petition. Petitioners started their Petition with a
claim that their right to access to justice was violated, but
ended it with a prayer for a declaration of the Visiting Forces
Agreement’s unconstitutionality. They attempt to create the
connection between the two by asserting that the Visiting
Forces Agreement prevents the transfer of Pemberton to
Olongapo City Jail, which allegedly is tantamount to the
impairment of this court’s authority. Laude vs. Ginez-Jabalde,
775 SCRA 408, G.R. No. 217456 November 24, 2015
25.The Province of North Cotabato vs The Government of
the Republic of the Philippines Peace Panel on Ancestral
Domain G.R. No. 183591 October 14, 2008
FACTS:
The Government of the Republic of the Philippines (GRP) and
the MILF, through the Chairpersons of their respective peace
negotiating panels, were scheduled to sign a Memorandum of
Agreement on the Ancestral Domain (MOA-AD) Aspect of the
GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala
Lumpur, Malaysia. The signing of the MOA-AD between the
GRP and the MILF was not to materialize, however, for upon
motion of petitioners, specifically those who filed their cases
before the scheduled signing of the MOA-AD, this Court issued
a Temporary Restraining Order enjoining the GRP from signing
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the same. The MOA-AD was preceded by a long process of
negotiation and the concluding of several prior agreements
between the two parties beginning in 1996, when the GRP-
MILF peace negotiations began. On July 18, 1997, the GRP
and MILF Peace Panels signed the Agreement on General
Cessation of Hostilities. The following year, they signed the
General Framework of Agreement of Intent on August 27,
1998. However, the MILF attacked a number of municipalities
in Central Mindanao and, in March 2000, it took control of the
town hall of Kauswagan, Lanao del Norte. In response, then
President Joseph Estrada declared and carried out an all-out-
war against the MILF. 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. With the help of the Government of Malaysia
through Prime Minister Mahathir Mohamma, the parties met in
Kuala Lumpur, with the talks being facilitated by the
Malaysian government, the parties signing on 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.
ISSUE:
Whether or not the President has the authority to conduct
peace negotiations with rebel groups even if it is not explicitly
mentioned in the Constitution.
RULING:
That the authority of the President to conduct peace
negotiations with rebel groups is not explicitly mentioned in
the Constitution does not mean that she has no such
authority. In Sanlakas v. Executive Secretary, 421 SCRA 656
(2004), in issue was the authority of the President to declare a
state of rebellion—an authority which is not expressly provided
for in the Constitution. The Court held thus: “In her ponencia
in Marcos v. Manglapus, 177 SCRA 668 (1989), Justice Cortes
put her thesis into jurisprudence. There, the Court, by a slim
8-7 margin, upheld the President’s power to forbid the return
of her exiled predecessor. The rationale for the majority’s ruling
rested on the President’s . . . unstated residual powers which
are implied from the grant of executive power and which are
necessary for her to comply with her duties under the
Constitution. The powers of the President are not limited to
what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution.
This is so, notwithstanding the avowed intent of the members
of the Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the regime of
Mr. Marcos, for the result was a limitation of specific powers of
the President, particularly those relating to the commander-in-
chief clause, but not a diminution of the general grant of
executive power. Thus, the President’s authority to declare a
state of rebellion springs in the main from her powers as chief
executive and, at the same time, draws strength from her
Commander-in-Chief powers.
It will be observed that the President has authority, as stated
in her oath of office, only to preserve and defend the
Constitution. Such presidential power does not, however,
extend to allowing her to change the Constitution, but simply
to recommend proposed amendments or revision. As long as
she limits herself to recommending these changes and submits
to the proper procedure for constitutional amendments and
revision, her mere recommendation need not be construed as
an unconstitutional act.
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26.VINUYA v. EXECUTIVE SECRETARY, G.R. NO. 162230,
APRIL 28, 2010, 619 SCRA 533
FACTS:
This is an original Petition for Certiorari under Rule 65 of the
Rules of Court with an application for the issuance of a writ of
preliminary mandatory injunction against the Office of the
Executive Secretary, the Secretary of the DFA, the Secretary of
the DOJ, and the OSG.
Petitioners are all members of the MALAYA LOLAS, a non-
stock, non-profit organization registered with the SEC,
established for the purpose of providing aid to the victims of
rape by Japanese military forces in the Philippines during the
Second World War.
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 Women’s Fund and the
Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for
former comfort women. Over the next five years, these were
implemented by the Department of Social Welfare and
Development.

ISSUE:
Petitioners claim that since 1998, they have approached the
WON the Executive Department committed grave abuse of
Executive Department through the DOJ, DFA, and OSG,
discretion in not espousing petitioners’ claims for official
requesting assistance in filing a claim against the Japanese
apology and other forms of reparations against Japan.
officials and military officers who ordered the establishment of
the “comfort women” stations in the Philippines. But officials of RULING:
the Executive Department declined to assist the petitioners,
Petition lacks merit. From a Domestic Law Perspective, the
and took the position that the individual claims of the comfort
Executive Department has the exclusive prerogative to
women for compensation had already been fully satisfied by
determine whether to espouse petitioners’ claims against
Japan’s compliance with the Peace Treaty between the
Japan.
Philippines and Japan.
*Political questions refer “to those questions which, under the
Hence, this petition where petitioners pray for this court to (a)
Constitution, are to be decided by the people in their sovereign
declare that respondents committed grave abuse of discretion
capacity, or in regard to which full discretionary authority has
amounting to lack or excess of discretion in refusing to
been delegated to the legislative or executive branch of the
espouse their claims for the crimes against humanity and war
crimes committed against them; and (b) compel the
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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 legislative– ‘the 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 country’s 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 Department’s 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 treaty’s 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 individual’s
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
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view to furthering their cause or obtaining redress. All these
questions remain within the province of municipal law and do
not affect the position internationally.
Even the invocation of jus cogens norms and erga omnes
obligations will not alter this analysis. Petitioners have not
shown that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace
was signed, or that the duty to prosecute perpetrators of
international crimes is an erga omnes obligation or has
attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in
international law has been used as a legal term describing
obligations owed by States towards the community of states as
a whole. Essential distinction should be drawn between the
obligations of a State towards the international community as
a whole, and those arising vis-à-vis another State in the field of
diplomatic protection. By their very nature, the former are the
concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.
The term “jus cogens” (literally, “compelling law”) refers to
norms that command peremptory authority, superseding
conflicting treaties and custom. Jus cogens norms are
considered peremptory in the sense that they are mandatory,
do not admit derogation, and can be modified only by general
international norms of equivalent authority
WHEREFORE, the Petition is hereby DISMISSED.
27. Belgium v. Senegal
Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal)
Facts:
On February 19, 2009, Belgium filed an application instituting
proceedings against Senegal at the ICJ alleging that Senegal
had breached its obligations under the CAT by failing to
prosecute Habre or to extradite him to Belgium for
prosecution. Belgium invoked the CAT as the basis for the
Courts jurisdiction as both Belgium and Senegal are parties to
the treaty. Belgium filed its application on behalf of Chadian
citizens and Belgian citizens of Chadian origin who claimed to
be victims of Habres regime. In addition, Belgium asserted
that, regardless of the victims nationalities, all states parties to
the CAT have an obligation to prevent and punish torture.
Belgium originally requested the extradition of Habré in 2006,
following a four-year investigation by Belgian authorities into
the victims allegations and several failed attempts to bring
Habre to justice elsewhere. Belgium repeated its extradition
request multiple times over the ensuing years as Senegal
delayed prosecution on a variety of legal and financial
grounds.
Senegal asserted it had taken a number of steps to facilitate
the prosecution of Habre, including changes in its domestic
laws in 2007-2008 to implement the CAT and the referral of
the matter to the African Union. The AU Assembly of Heads of
State and Government issued Decision 127 (VII) in 2006
deciding that the case falls within the competence of the AU
and instructed Senegal to prosecute Habre, but Senegal
claimed that it lacked financial resources and requested
international financial assistance. Senegal also claimed that it
was hindered in the prosecution of Habre in its domestic
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courts due to a separate decision by the Economic Community
of West African States, which concluded that Habres human
rights could be violated by a failure to abide by the principle of
non-retroactivity.
Issue:
W/N torture is a generally accepted idea between the parties
and may form as basis for the prosecution of Mr. Habre?
Held:
With respect to the question relating to the temporal
application of Article 7, paragraph 1, of the Convention,
according to the time when the offences are alleged to have
been committed and the dates of entry into force of the
Convention for Senegal (26 June 1987) and Belgium (25 June
1999), the Court, having found that there is no clear divergence
between the Parties’ views on the question, considers that the
prohibition of torture is part of customary international law and
it has become a peremptory norm (jus cogens). That prohibition
is grounded in a widespread international practice and on the
opinio juris of States, taking account of the fact that it appears in
numerous international instruments of universal application and
has been introduced into the domestic law of almost all States,
and that acts of torture are regularly denounced within national
and international fora. However, the Court states that, pursuant
to the provisions of Article 28 of the Vienna Convention on the
Law of Treaties, which reflects customary law on the matter of
treaty interpretation, the obligation to prosecute the alleged
perpetrators of acts of torture under the Convention applies only
to facts having occurred after its entry into force for the State
concerned. It thus notes that nothing in the Convention against
Torture reveals an intention to require a State party to
criminalize, under Article 4, acts of torture that took place
prior to its entry into force for that State, or to establish its
jurisdiction over such acts in accordance with Article 5. It
follows that the obligation to prosecute does not apply to such
acts. This was confirmed by the United Nations Committee
against Torture in its decision of 23 November 1989 in the case
of O.R., M.M. and M.S. v. Argentina, in which it stated that
“‘torture’ for purposes of the Convention can only mean torture
that occurs subsequent to the entry into force of the
Convention”. The Court concludes that Senegal’s obligation to
prosecute pursuant to Article 7, paragraph 1, of the
Convention does not apply to acts alleged to have been
committed before the Convention entered into force for it on 26
June 1987. It notes however that, since the complaints against
Mr. Habré include a number of serious offences allegedly
committed after that date, Senegal is under an obligation to
submit the allegations concerning those acts to its competent
authorities for the purpose of prosecution. The Court further
asserts that, although Senegal is not required under the
Convention to institute proceedings concerning acts that were
committed before 26 June 1987, nothing in that instrument
prevents it from doing so. - 13 - With respect to the question
concerning the effect of the date of entry into force of the
Convention, for Belgium, on the scope of Senegal’s obligation to
prosecute, the Court observes a notable divergence between
the Parties’ views. While Belgium contends that Senegal was
still bound by the obligation to prosecute Mr. Habré after
Belgium had itself become party to the Convention, and that it
was therefore entitled to invoke before the Court breaches of
the Convention occurring after 25 July 1999, Senegal disputes
Belgium’s right to engage its responsibility for acts alleged to
have occurred prior to that date, given that the obligation
provided for in Article 7, paragraph 1, belongs, according to the
Respondent, to “the category of divisible erga omnes
obligations” and that only the injured State could call for its
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breach to be sanctioned. Senegal accordingly concludes that

Belgium was not entitled to rely on the status of injured State
in respect of acts prior to 25 July 1999 and could not seek
retroactive application of the Convention. The Court considers
that Belgium has been entitled, with effect from 25 July 1999,
the date when it became party to the Convention, to request
the Court to rule on Senegal’s compliance with its obligation
under Article 7, paragraph 1 (the same conclusion also being
valid in respect of Art. 6, para. 2). In the present case, the
Court notes that Belgium invokes Senegal’s responsibility for
the latter’s conduct starting in the year 2000, when a
complaint was filed against Mr. Habré in Senegal.

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