PART I

I. CONCEPTS

A. Definition of International Law

Traditional Definition: International Law is a body of principles, norms and processes which regulates the
relations of States and other international persons, and governs their conduct affecting the interests of the
international community of States as a whole.

(Third) Restatement of Foreign Relations Law of United States:

International law, as used in this Restatement, consists of rules and principles of general application dealing with the
conduct of states and of international organizations and with their relations inter se, as well as with some of their
relations with persons, whether natural or juridical.

B. Theories of Law
Command theory. In the view of John Austin, a renowned legal philosopher, law consists of commands originating
from a sovereign and backed up by threats of sanction if disobeyed. In this view, international law is not law because
it does not come from a command of a sovereign. Neither treaties nor custom come from a command of a
sovereign. This theory, however, has generally been discredited. The reality is that nations see international law not
as commands but as principles for free and orderly interaction.

Consensual theory. Under this theory, international law derives its binding force from the consent of states. Treaties
are an expression of consent. Likewise, custom, as voluntary adherence to common practices, is seen as expression
of consent. In reality, however, there are many binding rules which do not derive from consent.

Natural law theory. The natural law theory posits that law is derived by reason from the nature of man International
law is said to be an application of natural reason to the nature of the state-person. Although the theory finds little
support now, much of customary law and what are regarded as generally accepted principles of law are in fact an
expression of what traditionally was called natural law.

Magallona (2005) pp. 1-9

ICJ President Rosalyn Higgins – characterizes International Law as a continuing process of authoritative
decisions; it I s a system of normative conduct which is regarded by each actor, and by the group as a
whole, as being obligatory

Section 101, American (Third) Restatement of Foreign Relations Law of United States

§ 101 International Law Defined

International law, as used in this Restatement, consists of rules and principles of general application dealing with
the conduct of states and of international organizations and with their relations inter se, as well as with some of
their relations with persons, whether natural or juridical.

II. SOURCES

Sources are often classified into formal sources and material sources

A. In General
1. Article 38 (1), International Court of Justice (ICJ) Statute

Article 38
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it,
shall apply:
 a. international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law.

B. Formal Sources - Formal sources can refer to the various processes by which rules come into existence.
Thus, for instance, legislation is a formal source of law. So are treaty making and judicial decision making as well as
the practice of states.

1. Treaties and Conventions – The Vienna Convention 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.”

Functions: Treaties have many functions. They are sources of international law, they
serve as the charter of international organizations, they are used to transfer territory,
regulate commercial relations, settle disputes, protect human rights, guarantee
investments, etc.

Rules:
 If the treaty is intended to be declaratory of customary law, it may be seen as
evidence of customary law;
 Normally, treaties and custom can be complementary. As seen, for instance, in
Nicaragua v. United States, adherence to treaties can be indicative also of
adherence to practice as opinio juris;
 If a treaty comes later than a particular custom, as between the parties to the
treaty, the treaty should prevail;
 A treaty manifests a deliberate choice of the parties and the principle of pacta sunt
servanda should be followed.
 If a later treaty is contrary to a customary rule that has the status of jus cogens,
custom will prevail. (Article 53 of the Vienna Convention on the law of Treaties)

The Making Of Treaties.

Negotiation is done through foreign ministries. Larger multilateral treaties are
negotiated in diplomatic conferences which are run like a legislative body. The
negotiators must possess powers to negotiate. An act relating to the conclusion of a
treaty by one who has no proper authorization has no legal effect unless confirmed by
his state:
 Article 7. Full powers - A person is considered as representing a State for the
purpose of adopting or authenticating the text of a treaty or for the purpose of
expressing the consent of the State to be bound by a treaty
 Authentication of text - Negotiations conclude with the signing of the
document. The signatures serve as authentication of the document.
 Consent to be bound - Once the document has been signed, there are stages
which follow which culminate in making the document binding. The most
important step is the consent to be bound. (by signature, exchange of
instruments constituting a treaty, ratification, acceptance, approval or accession,
or by any other means if so agreed)
 Ratification is next followed by either exchange of ratification, in bilateral
treaties, or, in multilateral treaties
 Accession to a treaty States which did not participate in the initial negotiation
may also express their consent to be bound by “accession.” Article 15 of the
Convention.
 Reservations - as “a unilateral statement, however phrased or named, made by
a State, when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or to modify the legal effect of certain provisions
of the treaty in their application to that State.
 o Article 19. A State may, when signing, ratifying, accepting, approving or
acceding to a treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not
include the reservation in question, may be made; or
(c) the reservation is incompatible with the object and purpose of the
treaty.

Application of treaties

 The first fundamental rule on treaties is pacta sunt servanda. Article 26 of the
Convention says that “every treaty in force is binding upon the parties to it and
must be performed by them in good faith.”

 A second fundamental rule, Article 46, is that a “party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty.”

 As to the territorial scope of its applicability, Article 29 says: “Unless a different

intention appears from the treaty or is otherwise established, a treaty is binding
upon each party in respect of its entire territory.”

Interpretation of treaties

 A treaty shall be interpreted in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their context and in the light of
its object and purpose;
 The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes;
 There shall be taken into account, together with the context;
 A special meaning shall be given to a term if it is established that the parties so
intended.

Invalidity of Treaties.

The usual ground for invalidation of contracts can also invalidate a treaty: error of fact,
fraud, corruption or duress.

Termination of Treaties.

 A treaty may be terminated or suspended according to the terms of the treaty or

with the consent of the parties.
 A treaty with a definite period may also expire.
 It may also end when the purpose for the treaty has already been achieved.
 But a mere change of government or severance of diplomatic relations does not
terminate or suspend a treaty.

Three other important modes of terminating a treaty are material breach, impossibility
of performance and change of fundamental conditions (rebus sic stantibus).

Jus cogens
A peremptory norm of general international law which is accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the same character.
2. Customary International Law - Custom or customary international law means “a general and consistent
practice of states followed by them from a sense of legal obligation.” (Restatement) This statement
contains the two basic elements of custom: the material factor, that is, how states behave, and the
psychological or subjective factor, that is, why they behave the way they do.

The initial factor for determining the existence of custom is the actual behavior of states (usus). This
includes several elements: duration, consistency, and generality of the practice of states.

In the North Sea Continental Shelf Cases, however, the Court indicated that a short duration, by itself, will
not exclude the possibility of a practice maturing into custom provided that other conditions are satisfied:
.

. . Although the passage of only a short period of time is not necessarily, or of itself, a
bar to the formation of a new rule of customary international law on the basis of what
was purely a conventional rule, an indispensable requirement would be that within the
period in question, short though it might be, State practice, including that of states
whose interests are specially affected, should have been both extensive and virtually
uniform in the sense of the provision invoked — and should moreover have occurred in
such a way as to show a general recognition that a rule of law or legal obligation is
involved.

Duration therefore is not the most important element. More important is the consistency and the
generality of the practice. The basic rule on consistency, that is, continuity and repetition, was laid down in
the Asylum Case (ICJ Reports 1950). The facts in the case were as follows:

On October 3rd, 1948, a military rebellion broke out in Peru; it was suppressed the same
day. On the following day, a decree was published charging a political party, the
American People’s Revolutionary Party, with having prepared and directed the rebellion.
The head of the Party, Victor Raul Haya de la Torre, was denounced as being
responsible. With other members of the party, he was prosecuted on a charge of military
rebellion....

On January 4th, 1949, the Colombian Ambassador in Lima informed the Peruvian
Government of the asylum granted to Haya de la Torre, at the same time he asked that
a safe-conduct be issued to enable the refugee to leave the country. On January 14th, he
further stated that the refugee had been qualified as a political refugee. The Peruvian
Government disputed this qualification and refused to grant a safe-conduct. A
diplomatic correspondence ensued which terminated in the signature, in Lima, on
August 31st, 1949, of an Act by which the two Governments agreed to submit the case
to the International Court of Justice.

The decision of the ICJ was against Colombia:

Finally, as regards American international law, Colombia had not proved the existence,
either regionally or locally, of a constant and uniform practice of unilateral qualification
as a right of the State of refuge and an obligation upon the territorial State. The facts
submitted to the Court disclosed too much contradiction and fluctuation to make it
possible to discern therein a usage peculiar to Latin America and accepted as law.

It therefore followed that Colombia, as the State granting asylum, was not competent to
qualify the nature of the offence by a unilateral and definitive decision binding on Peru.

Uniformity and generality of practice need not be complete, but it must be substantial. In Nicaragua v.
United States (ICJ Reports 1986), the Court said that the practice need not be “in absolute conformity”
with the purported customary rule. It said:
 In order to deduce the existence of customary rules, the Court deems it sufficient that
the conduct of states should, in general, be consistent with such rules, and that instances
of state conduct inconsistent with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition of a new rule.

Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law. ... Even humanitarian consideration by itself does not
constitute opinio juris. As the Nicaragua case again put it: ...

[f]or a new customary rule to be formed, not only must the acts concerned ‘amount to a
settled practice,’ but they must be accompanied by the opinio juris sive necessitatis.
Either the States taking such action or other States in a position to react to it, must have
behaved so that their conduct is “evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it.” The need for such a belief, i.e.,
the existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis.

“Instant custom” is not the product of constant and prolonged practice. Rather it comes about as a
spontaneous activity of a great number of states supporting a specific line of action.

3. General Principles of Law – also referred to as Restatement as “general principles of law recognized by
or common to the world’s major legal systems.” This has reference not to principles of international law
but to principles of municipal law common to the legal systems of the world. They may, in a sense, be said
to belong to no particular system of law but are evidence rather of the fundamental unity of law.

C. Material Sources - Material sources are not concerned with how rules come into existence but rather
with the substance and content of the obligation. They identify what the obligations are. In this sense, state
practice, UN Resolutions, treaties, judicial decisions and the writings of jurists are material sources in so far as they
identify what the obligations are. They are also sometimes referred to as “evidence” of international law.

1. Judicial Decisions - Article 38 of the Statute directs the Court to apply judicial decisions as subsidiary
means for the determination of the rules of law. But this is made subject to Article 59 which says that “the
decisions of the court have no binding force except between the parties and in respect of that particular
case.” Hence, such decisions do not constitute stare decisis. However, the decisions of the ICJ are not only
regarded as highly persuasive in international law circles; they have also contributed to the formulation of
principles that have become international law.

2. Teachings of Highly Qualified Publicists - In many cases of first impression, the only authorities that can
be cited are writers. The extent to which they are referred to depends on the tradition of the court or of
individual judges

‘Publicists” are institutions which write on international law. They also play a role. The more significant
ones are: The International Law Commission, an organ of the U.N.; the Institut de Droit International, the
International Law Association, a multinational body; the (Revised) Restatement of Foreign Relations Law of
the United States; and the annual publication of the Hague Academy of International Law. It should be
noted, however, that these institutions are generally government sponsored; hence, they bear within
themselves a potential for national bias.
D. Hierarchy of Norms

A. Constitution
1. Definition of Constitution
2. Philippine Constitutions
a. Malolos Constitutions
b. 1935 Constitution
c. 1973 Constitution
d. Provisional or Freedom Constitution
e. 1987 Constitution
3. Constitution interpreted as a whole
B. National Laws - Statutes (Legislative Enactments)
1. Definition of Statute
2. Different Types of Statutes
3. Difference of Constitution and Statute
4. How a Bill becomes a Law
5. Designation used for Philippine Laws

C. International Laws
1. Treaty and Executive Agreement
2. Validity of International Laws
3. Treaty and Constitution
4. Treaty and Domestic Legislation

D. Administrative Rules and Regulations

1. Definition of Administrative Rules and Regulations
2. Requirements of a Valid Administrative Regulation
3. Publication Procedure
4. Administrative Orders and Statute

E. Ordinances
1. Definition of Ordinance
2. Requirements of a Valid Ordinance
3. How to Pass an Ordinance
4. Ordinance and Statute

E. Ex aequo et bono ("according to the right and good" or "from equity and conscience")

1. Magallona (2005) pp. 9-33

2. Section 102, American Third Restatement

§ 102 Sources of International Law

(1) A rule of international law is one that has been accepted as such by the international community of states

(a) in the form of customary law;

(b) by international agreement; or

(c) by derivation from general principles common to the major legal systems of the world.

(2) Customary international law results from a general and consistent practice of states followed by them
from a sense of legal obligation.

(3) International agreements create law for the states parties thereto and may lead to the creation of
customary international law when such agreements are intended for adherence by states generally and are in fact
widely accepted.

(4) General principles common to the major legal systems, even if not incorporated or reflected in customary
law or international agreement, may be invoked as supplementary rules of international law where appropriate.

3. VCLT, Art. 2 (1); Art. 26; Art. 34

Article 2. Use of terms: (a) “treaty” means 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;

Article 26. “Pacta sunt servanda” : Every treaty in force is binding upon the parties to it and must be performed by
them in good faith

Article 34. General rule regarding third States: A treaty does not create either obligations or rights for a third State
without its consent.

4. North Sea Continental Shelf Cases (ICJ, 1969)

5. Asylum Case (ICJ, 1950)

6. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (US vs. Nicaragua)
(ICJ, 27 June 1986)

x-------------------------------------------------------------------------------------------x
PART II

I. SUBJECTS - Subjects of international law are entities endowed with rights and
obligations in the international order and possessing the capacity to take certain kinds of
action on the international plane. In other words, they are those who have international
personality. They are actors in the international legal system and are distinct from objects
of international law.

Objects of international law are those who indirectly have rights under or are beneficiaries
of international law through subjects of international law.

A. States - a community of persons more or less numerous, permanently occupying a

definite portion of territory, independent of external control, and possessing an
organized government to which the great body of inhabitants render habitual
obedience.

The traditional statement of the characteristics which make an entity a state is found in
the Montevideo Convention of 1933 on Rights and Duties of States: “The state as a
person of international law should possess the following qualifications: (a) a permanent
population; (b) a defined territory; (c) government; (d) the capacity to enter into
relations with other States

Recognition of states.

When State A recognizes State B, it means that both recognize the capacity of each other
to exercise all the rights belonging to statehood. Recognition thus means the act of
acknowledging the capacity of an entity to exercise rights belonging to statehood.

Can an entity claim to be a state before it is recognized by other states? There are two
views on this. One view, the declaratory theory, is that recognition is merely
“declaratory” of the existence of the state and that its being a state depends upon its
possession of the required elements and not upon recognition. A recognizing state
merely accepts an already existing situation. The weight of authority favors the
“declaratory view.”

The other view, the constitutive theory, is that recognition “constitutes” a state, that is,
it is what makes a state a state and confers legal personality on the entity. In effect, this
merely emphasizes the point that states are under no obligation to enter into bilateral
relations. But then states may decide to recognize an entity as a state even if it does not
have all the elements of a state found in the Montevideo Convention.

Recognition of Government.

Closely related to recognition of states is recognition of governments. It means the act of

acknowledging the capacity of an entity to exercise powers of government of a state. If a
change in government in an existing state comes about through ordinary constitutional
procedure, recognition by others comes as a matter of course. The problem is acute
when a new government within a state comes into existence through extra-
constitutional means.

Consequences of Recognition or Non-recognition.

In a world of growing interdependence, recognition or non-recognition of government

can have very serious consequences. A government, once recognized, gains increased
prestige and stability. The doors of funding agencies are opened, loans are facilitated,
access to foreign courts and immunity from suit are gained. Military and financial
assistance also come within reach. The absence of formal recognition, on the other
hand, bars an entity from all these benefits or, at least, access to them may be
suspended.

Succession of States.

Succession or Continuity States do not last forever. The issue of state succession can
arise in different circumstances. Existing sovereignties can disappear under different
circumstances. New political sovereigns may arise as the result of decolonization,
dismemberment of an existing state, secession, annexation and merger. In each of these
cases an existing sovereignty disappears either in whole or in part and a new one arises
thus giving rise to questions of succession to rights and obligations.

Secession - the action of withdrawing formally from membership of a federation or

body, especially a political state.

B. International Organizations - An international organization is an organization that is

set up by treaty among two or more states. It is different from non-governmental
organizations (NGO) which are set up by private persons. The constituent document of
international organizations therefore is a treaty. For this reason, only states are
members of international organizations.

As the ICJ put it in its Advisory Opinion on the Use of Nuclear Weapons (1996) about
the World Health Organization:

The Court observes that in order to delineate the field of activity or the area
of competence of an international organization, one must refer to the
relevant rules of the organization and, in the first place, to its constitution.
From a formal standpoint, the constituent instruments of international
organizations are multilateral treaties, to which the well-established rules
of treaty interpretation apply.

But they are also treaties of a particular type; their object is to create new
subjects of law endowed with a certain autonomy, to which the parties
entrust the task of realizing common goals.

Such treaties can raise specific problems of interpretation owing, inter alia,
to their character which is conventional and at the same time institutional;
the very nature of the organization created, the objectives which have been
assigned to it by its founders, the imperatives associated with the effective
performance of its functions, as well as its own practice, are all elements
which may deserve special attention when the time comes to interpret
these constituent treaties.

That international organizations have international personality was established in the

oft-quoted Reparations Case (ICJ Advisory Opinion, 1949) involving the international
personality of the United Nations. The question raised was formulated thus:

“I. In the event of an agent of the United Nations in the performance of his
duties suffering injury in circumstances involving the responsibility of a
State, has the United Nations, as an Organization, the capacity to bring an
international claim against the responsible de jure or de facto government
with a view to obtaining the reparation due in respect of the damage
caused (a) to the United Nations, (b) to the victim or to persons entitled
through him?

The Court answered the question after rephrasing it:

 Do the provisions of the Charter relating to the functions of the
Organization imply that the latter is empowered to assure its agents limited
protection? These powers, which are essential to the performance of the
functions of the Organization, must be regarded as a necessary implication
arising from the Charter. In discharging its functions, the Organization may
find it necessary to entrust its agents with important missions to be
performed in disturbed parts of the world. These agents must be ensured of
effective protection. It is only in this way that the agent will be able to carry
out his duties satisfactorily. The Court therefore reaches the conclusion that
the Organization has the capacity to exercise functional protection in
respect of its agents. The situation is comparatively simple in the case of
Member States, for these have assumed various obligations towards the
Organization.

But what is the situation when a claim is brought against a State which is
not a Member of the Organization? The Court is of opinion that the
Members of the United Nations created an entity possessing objective
international personality and not merely personality recognized by them
alone. As in the case of Question 1(a), the Court therefore answers Question
1(b) in the affirmative.

The Court had to answer the question because the UN Charter is silent about the
organization’s international personality. In the case of other organizations, the charter
itself might specifically endow it with international personality. But if it does not,
possession of international personality may be implied from the functions of the
organization, as in the case of the UN.

Although international organizations have personality in international law, their powers

and privileges are by no means like those of states. Their powers and privileges are limited
by the constituent instrument that created them. To quote again from the Advisory
Opinion on the Use of Nuclear Weapons cited supra:

The Court goes on to point out that international organizations are subjects
of international law which do not, unlike States, possess a general
competence. International organizations are governed by the “principle of
speciality," that is to say, they are invested by the States which create them
with powers, the limits of which are a function of the common interests
whose promotion those States entrust to them.

The powers conferred on international organizations are normally the

subject of an express statement in their constituent instruments.
Nevertheless, the necessities of international life may point to the need for
organizations, in order to achieve their objectives, to possess subsidiary
powers which are not expressly provided for in the basic instruments which
govern their activities. It is generally accepted that international
organizations can exercise such powers, known as “implied” powers.

C. Individuals
 In the early development of international law human beings were exclusively under the
control of states. In international law they were objects or at best “beneficiaries” of
international law. With the greater global awareness of human rights individuals have
now come to be recognized as possessing albeit limited rights and obligations in
international law.

Among the obligations of individuals are those arising from the regulation of armed
conflicts. Violation of these rules can place individuals under criminal responsibility.
There are also rules on international crimes to which individuals are subject such as
crimes against humanity, genocide, aggression, and terrorism.

When individual rights are violated, however, individuals still have to rely on the
enforcement power of states. But some treaties have provided for the right of
individuals to petition international bodies alleging that a contracting state has violated
some of their human rights.

State vs. Individuals

To differentiate the position of individuals from that of States, it can be maintained that
while States have international legal personality proper, individuals have a limited locus
standi in international law. Furthermore, unlike States, individual have a limited array of
rights and obligations: on this score, one can speak of a limited legal capacity (in this
respect they can be put on the same footing as other non-State international subjects:
insurgents, international organizations, and national liberation movements).

Magallona (2005), pp. 33-48

Art. 2, UN Charter

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance
with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfill in good faith the obligations assumed by them in accordance with
the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner
that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from giving assistance to any state
against which the United Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations act
in accordance with these Principles so far as may be necessary for the maintenance of
international peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require
the Members to submit such matters to settlement under the present Charter; but this
principle shall not prejudice the application of enforcement measures under Chapter Vll.
Montevideo Convention on the Rights and Duties of States (1933)

The traditional statement of the characteristics which make an entity a state is found in the
Montevideo Convention of 1933 on Rights and Duties of States: “The state as a person of
international law should possess the following qualifications: (a) a permanent population; (b) a
defined territory; (c) government; (d) the capacity to enter into relations with other States.”
Hence, the definition of the concept “state” which has found currency among Philippine
writers is this: it is a community of persons more or less numerous, permanently occupying a
definite portion of territory, independent of external control, and possessing an organized
government to which the great body of inhabitants render habitual obedience. Commentators,
following the Montevideo Convention, break down the concept into four elements: people,
territory, government, and sovereignty.

People or Population.

As an element of a state, “people” simply means a community of persons sufficient in number

and capable of maintaining the permanent existence of the community and held together by a
common bond of law. It is of no legal consequence if they possess diverse racial, cultural, or
economic interests. Nor is a minimum population required.

Territory

A definite territory over which an entity exercises permanent sovereignty is another element of a
state. But as the Restatement (Third) on the Foreign Relations Law of the United States
explains: “An entity may satisfy the territorial requirement for statehood even if its boundaries
have not been finally settled, if one or more of its boundaries are disputed, or if some of its
territory is claimed by another state. An entity does not necessarily cease to be a state even if all
its territory has been occupied by a foreign power or if it has otherwise lost control of its
territory temporarily.”

Government

Government, as an element of a state, is defined as “that institution or aggregate of institutions

by which an independent society makes and carries out those rules of action which are
necessary to enable men to live in a social state, or which are imposed upon the people forming
that society by those who possess the power or authority of prescribing them.”3 International
law does not specify what form a government should have. Moreover, for purposes of
international law, it is the national government that has legal personality and it is the national
government that is internationally responsible for the actions of other agencies and
instrumentalities of the state. Finally, a temporary absence of government, for instance during
an occupation by a foreign power, does not terminate the existence of a state.

Sovereignty

Sovereignty means independence from outside control. The Montevideo Convention expresses
this in positive terms as including “the capacity to enter into relations with other States.” This
latter element of sovereignty, however, is dependent on recognition. An entity may in fact
possess all the elements of a state but if one or more states do not extend recognition to it, the
entity would not be able to establish relations with those states. Incidentally, although the
Philippines was not yet an independent state in 1945, it was accepted as one of the original
signatories of the United Nations Charter.

Self-determination
Sovereignty as an element of a state is related to but not identical with the broader concept of
the right of self-determination. In the post- World War II era, there have arisen numerous new
states. The impetus behind the birth of new states is the principle of self-determination of
peoples. Both the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social, and Cultural Rights assert the principle of self determination of
people in identical language: “All peoples have the right of self-determination. By virtue of that
right they freely determine their political status and freely pursue their economic, social and
cultural development.” This principle has been affirmed and reaffirmed by various documents
of the United Nations, notably the Declaration on the Granting of Independence to Colonial
Countries and Peoples (1960) and the Declaration on Principles of International Law
concerning Friendly Relations and Cooperation among States in accordance with the Charter of
the United Nations. (1970).

The various levels of claim to self-determination may be broken down into two main categories.
The first is the establishment of new states — that is, the claim by a group within an established
state to break away and form a new entity. The second does not involve the establishment of a
new state. This can simply be claims to be free from external coercion, or the claim to
overthrow effective rulers and establish a new government, that is, the assertion of the right of
revolution; or the claim of people within an entity to be given autonomy.

The UN has used various means to give effect to self-determination: resolutions of support for
demands, sanctions for offenses against selfdetermination, helping in ascertaining the will of the
people, giving rights of participation in international fora, inquiries and reports, military force to
maintain order, formulation of criteria whether self- government exists, and technical assistance.
But international law has not recognized a right of secession from a legitimately existing state.

ILC Draft Declaration on the Rights and Duties of States (1949)

Reparation for Injuries Suffered in the Service of the United Nations, ICJ advisory opinion, 1 April 1949

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ advisory opinion, 8 July 1996

II. INTERNATIONAL AND NATIONAL LAW

A. International and Domestic/Municipal Law

a. Monist View - international law and municipal law belong to only one system
with international law as superior to domestic law; locates basic norm of the national
legal system in the norm of international law;

b. Dualist View - international law as distinct from the domestic law system;
dualism of legal origin, subjects and subject matter; sovereign act of municipal law
means it exceeded its competence in international law but does not void municipal
law. Dualism also rules when it comes to entry of international law into the
domestic sphere. International law, unless it is made part of the domestic system,
has no role in the settlement of domestic conflicts.

c. Coordinationist View - the two legal systems are harmonized and given effect.

Rules on conflict between a treaty and a law

It depends which court is deciding:
  international court- will uphold treaty obligation in general
 domestic court- will uphold local laws

 Treaty v. Constitution- A46, VCLT, when constitutional violation is manifest and concerns a rule of
internal law of fundamental importance, state may deviate from treaty obligation.
(NOTE: See A27, VCLT which states, “A party may not invoke the provisions of
internal law as justification for its failure to perform a treaty.” Under dualist theory,
unconstitutionality of a treaty is purely domestic matter. State faces risk of
international sanction.)

 Treaty v. Domestic Legislation- when the two instruments relate to the same subject, try to give
effect to both; if inconsistent, the later in date will control, provided that the treaty stipulation is
self-executing. But this rule only applies in the domestic sphere. A treaty, even if contrary to a later
statute, is binding in international law.

 Executive Agreement v. Domestic Legislation – executive agreements cannot prevail over earlier
statutes. This is only a matter of municipal law

B. Doctrine of Incorporation
a. CONST. art. II, sec. 2

SECTION 2. The Philippines renounces war as an instrument of national policy, adopts

the generally accepted principles of international law as part of the law of the landand
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all
nations.

 generally accepted principles of international law – norms of general or

customary norms of international law which are binding on all states

Kuroda v.Jalandoni – recognized rules and principles of land warfare and of humanitarian
law under, The Hague Convention and Geneva Convention as part of the law of our nation even
if the Philippines is not a signatory. The Philippines recognizes not only treaties, but also
customary laws.

Gibbs v. Rodriguez – distinguished “law-creating factor” and “evidence of law”

- law-creating factor: international conventions, customs and general principles
of law
- evidence of law: judicial decisions and teachings of the highly qualified
publicists (subsidiary means of determination of law)

Pact of Paris/ Kellog-Briand Pact – its fundamental principle is embodied in Sec. 2, Art. II. The
Philippines renounces war as an instrument of national policy … xxx

Art. XVI, Section 3. The State may not be sued without its consent. – this concept of “sovereign
immunity”, SC held that this belon gs to the category of “generally accepted principle of
international law”

C. Doctrine of Transformation
a. CONST. art. VII, sec. 21

SECTION 21. No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.

 It is the Senate’s concurrence with the act of the President’s ratification that
transforms the treaty into valid and effective domestic law

 Power to make treaties is vested in the President under the 1935 and 1973
Constitution

 Treaties assume double character: (1) domestic law ; (2) source of international
obligation
  Note: For treaty to become domestic law: (1) concurrence of Senate; and (2) it
has entered into force by its own provisions (Thus, the lack of the latter will not
transform a treaty into domestic law, if it has not yet become a binding
international law)
E.g. Vienna Convention ratified by Philippines on Nov. 15, 1972, but only entered
into force on Jan.27, 1980 because it was only on this date (the 30 th day) that the
condition that the 35th instrument of ratification or accession was deposited

 Treaties are self-executing instruments, requiring no further prerequisite to

their effectivity within Philippine jurisdiction (Marubeni v. CIR)
 However, there are treaties which require legislation for its
application/enforcement (E.g. The International Convention on the Elimination of
All Forms of Racial Discrimination, Art. 4
 there are also treaties which require administrative/executive measure for its
enforcement (E.g. Paris Convention for the Protection of Industrial Party)

 Secrecy of negotiations with foreign countries is not violative of the

constitutional provisions of freedom of speech or of the press nor of the freedom
of access to information. (PMPF v. Manglapus)

 Possibility of declaring the unconstitutionality of a treaty based on the doctrine

of separation of powers where in an obiter dictum In re: Garcia, SC held: “The
aforementioned Treaty, concluded between the Republic of the Philippines and
the Spanish State could not have been intended to modify the laws and
regulations governing admission to the practice of law in the Philippines, for the
reason that the Executive Department may not encroach upon the constitutional
prerogative of the Supreme Court to promulgate rules for admission to the practice
of law in the Philippines, the lower to repeal, alter or supplement such rules being
reserved only to the Congress of the Philippines. (See Sec. 13, Art VIII, Phil.
Constitution).

 Parity of treaty and statute:

Assuming for the sake of argument that the Tripoli Agreement is a binding treaty
or international agreement, it would then constitute part of the law of the land. But
as internal law it would not be superior to R.A. No. 6734, an enactment of the
Congress of the Philippines, rather it would be in the same class as the latter
(Abbas vs COMELEC)
However, See. Ichong v. Hernandez – where a statute which appears to be an
exercise of police power prevailed over a treaty w/out regard whether it comes
earlier or later than the treaty. Also see Agustin v. Edu – where 1968 Vienna
Conventions on Road Traffic and on Road Signs and Signals was held to constitute
as an exercise of police power.

 A statute may be modified by a treaty (Marubeni vs CIR)

 See weird ruling in Phillip Morris vs CA, where “our municipal law… must
subordinate an international agreement inasmuch as the apparent clash is
being decided by a municipal tribunal.”

 Sec. 21, Art. VII, does not include executive agreements

D. Executive Agreement under Philippine Law

CONST. art. VIII, sec. 5(2)(a)

SECTION 5. The Supreme Court shall have the following powers:

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is
in question.
  Treaties need concurrence of Senate; while executive agreements may be validly entered
without their concurrence (Commissioner of Customs v. Eastern Sea Trading)

 However, in BAYAN vs Zamora, “in international law, there is no difference between

treaties and executive agreements in their binding effect upon states concerned, as long
as the negotiating functionaries have remained within their powers.[38] International law
continues to make no distinction between treaties and executive agreements: they are
equally binding obligations upon nations.”

 Executive Agreements fall into two classes: (1) agreements made purely as executive acts
affecting external relations and independent of or without legislative authorization, which
may be termed as presidential agreements and (2) agreements entered into in pursuants
of acts of Congress, which have been designated as Congressional-Executive Agreements
(USAFFE VETERANS ASSOCIATION, INC., vs. THE TREASURER OF THE PHILIPPINES,
ET AL)

 Statute is superior to an executive agreement w/out regard whether it comes earlier or

later. (Gonzales vs Hechanova)

VCLT, Article 27 Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a
treaty. This rule is without prejudice to article 46.

VCLT, Article 46 Provisions of internal law regarding competence to conclude treaties

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in
violation of a provision of its internal law regarding competence to conclude treaties as invalidating
its consent unless that violation was manifest and concerned a rule of its internal law of
fundamental importance.

2. A violation is manifest if it would be objectively evident to any State conducting itself in the
matter in accordance with normal practice and in good faith.

Magallona (2005), pp. 523-565

Ichong v. Hernandez, G.R. No. L-7995, May 31, 1957

ICHONG VS HERNANDEZ

G.R. No. L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and
partnerships adversely affected. by Republic Act No. 1180, petitioner, vs. JAIME HERNANDEZ,
Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila, respondents.

Facts:

Driven by aspirations for economic independence and national security, the Congress enacted
Act No. 1180 entitled “An Act to Regulate the Retail Business.” The main provisions of the Act,
among others, are:

(1) Prohibition against persons, not citizens of the Philippines, and against associations, among
others, from engaging directly or indirectly in the retail trade; and

(2) Prohibition against the establishment or opening by aliens actually engaged in the retail
business of additional stores or branches of retail business.

Lao H. Ichong, in his own behalf and on behalf of other alien residents, corporations and
partnerships adversely affected by the said Act, brought an action to obtain a judicial
declaration, and to enjoin the Secretary of Finance, Jaime Hernandez, and all other persons
acting under him, particularly city and municipal treasurers, from enforcing its provisions.
Petitioner attacked the constitutionality of the Act, contending that:

It denies to alien residents the equal protection of the laws and deprives of their liberty and
property without due process of law.

The subject of the Act is not expressed or comprehended in the title thereof.

The Act violates international and treaty obligations of the Republic of the Philippines.

Issue/s:

Whether or not a law may invalidate or supersede treaties or generally accepted principles.

Discussions:

A generally accepted principle of international law, should be observed by us in good faith. If a

treaty would be in conflict with a statute then the statute must be upheld because it represented
an exercise of the police power which, being inherent could not be bargained away or
surrendered through the medium of a treaty.

Ruling/s:

Yes, a law may supersede a treaty or a generally accepted principle. In this case, the Supreme
Court saw no conflict between the raised generally accepted principle and with RA 1180. The
equal protection of the law clause “does not demand absolute equality amongst residents; it
merely requires that all persons shall be treated alike, under like circumstances and conditions
both as to privileges conferred and liabilities enforced”; and, that the equal protection clause “is
not infringed by legislation which applies only to those persons falling within a specified class, if
it applies alike to all persons within such class, and reasonable grounds exist for making a
distinction between those who fall within such class and those who do not.”

Gonzales v. Hechanova, G.R. No. L-21897, October 2, 1963

GONZALES VS HECHANOVA

G.R. No. L-21897 9 SCRA 230 October 22, 1963

RAMON A. GONZALES, petitioner,

vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of
Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of
Commerce and Industry, and SALVADOR MARINO, Secretary of Justice, respondents.

Facts:

Exec. Secretary Hechanovaauthorised the importation of foreign rice to be purchased from

private sources. Ramon Gonzales filed a petition opposing the said implementation because RA
No. 3542 which allegedly repeals or amends Republic Act No. 2207, prohibits the importation of
rice and corn “by the Rice and Corn Administration or any other government agency.”

Respondents alleged that the importation permitted in Republic Act 2207 is to be authorized by
the President of the Philippines, and by or on behalf of the Government of the Philippines. They
add that after enjoining the Rice and Corn administration and any other government agency
from importing rice and corn, Section 10 of Republic Act 3542 indicates that only private parties
may import rice under its provisions. They contended that the government has already
constitute valid executive agreements with Vietnam and Burma, that in case of conflict between
Republic Act Nos. 2207 and 3542, the latter should prevail and the conflict be resolved under
the American jurisprudence.

Issue/s:

Whether or not an international agreement may be invalidated by our courts.

Discussions:

From a constitutional viewpoint, the said international agreement being inconsistent with the
provisions of Republic Acts Nos. 2207 and 3452. Although the President may, under the
American constitutional system enter into executive agreements without previous legislative
authority, he may not, by executive agreement, enter into a transaction which is prohibited by
statutes enacted prior thereto.

Under the Constitution, the main function of the Executive is to enforce laws enacted by
Congress. He may not interfere in the performance of the legislative powers of the latter, except
in the exercise of his veto power. He may not defeat legislative enactments that have acquired
the status of law, by indirectly repealing the same through an executive agreement providing for
the performance of the very act prohibited by said laws.

Ruling/s:

Yes. The Constitution authorizes the nullification of a treaty, not only when it conflicts with the
fundamental law, but also, when it runs counter to an act of Congress.

Section 2 Article 8 states that judicial review is vested with the Supreme Court. The alleged
consummation of the aforementioned contracts with Vietnam and Burma does not render this
case academic. Republic Act No. 2207 enjoins our government not from entering into contracts
for the purchase of rice, but from entering rice, except under the conditions prescribed in said
Act.
A judicial declaration of illegality of the proposed importation would not compel our Government
to default in the performance of such obligations as it may have contracted with the sellers of
rice in question because aside from the fact that said obligations may be complied without
importing the said commodity into the Philippines, the proposed importation may still be
legalized by complying with the provisions of the aforementioned laws.

Tanada v. Angara, G.R. No. 118295, May 2, 1997

TANADA VS ANGARA

G.R. No. 118295 May 2, 1997

Wigberto E. Tanada et al, in representation of various taxpayers and as non-governmental

organizations, petitioners,vs.EDGARDO ANGARA, et al, respondents.

Facts:

This is a case petition by Sen. Wigberto Tanada, together with other lawmakers, taxpayers, and
various NGO’s to nullify the Philippine ratification of the World Trade Organization (WTO)
Agreement.
Petitioners believe that this will be detrimental to the growth of our National Economy and
against to the “Filipino First” policy. The WTO opens access to foreign markets, especially its
major trading partners, through the reduction of tariffs on its exports, particularly agricultural
and industrial products. Thus, provides new opportunities for the service sector cost and
uncertainty associated with exporting and more investment in the country. These are the
predicted benefits as reflected in the agreement and as viewed by the signatory Senators, a “free
market” espoused by WTO.

Petitioners also contends that it is in conflict with the provisions of our constitution, since the
said Agreement is an assault on the sovereign powers of the Philippines because it meant that
Congress could not pass legislation that would be good for national interest and general welfare
if such legislation would not conform to the WTO Agreement.

Issues:

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

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

Discussions:

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

Rulings:

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

Tanada v. Angara

Facts
On April 15, 1994, the Philippine Government represented by its Secretary of the Department of
Trade and Industry signed the Final Act binding the Philippine Government to submit to its
respective competent authorities the WTO (World Trade Organization) Agreements to seek
approval for such. On December 14, 1994, Resolution No. 97 was adopted by the Philippine
Senate to ratify the WTO Agreement.
This is a petition assailing the constitutionality of the WTO agreement as it violates Sec 19,
Article II, providing for the development of a self reliant and independent national economy, and
Sections 10 and 12, Article XII, providing for the “Filipino first” policy.

Issue
Whether or not the Resolution No. 97 ratifying the WTO Agreement is unconstitutional
Ruling
The Supreme Court ruled the Resolution No. 97 is not unconstitutional. While the constitution
mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it
recognizes the need for business exchange with the rest of the world on the bases of equality
and reciprocity and limits protection of Filipino interests only against foreign competition and
trade practices that are unfair. In other words, the Constitution did not intend to pursue an
isolationalist policy. Furthermore, the constitutional policy of a “self-reliant and independent
national economy” does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither “economic seclusion” nor “mendicancy in the international
community.”
The Senate, after deliberation and voting, gave its consent to the WTO Agreement thereby
making it “a part of the law of the land”. The Supreme Court gave due respect to an equal
department in government. It presumes its actions as regular and done in good faith unless
there is convincing proof and persuasive agreements to the contrary. As a result, the ratification
of the WTO Agreement limits or restricts the absoluteness of sovereignty. A treaty engagement is
not a mere obligation but creates a legally binding obligation on the parties. A state which has
contracted valid international obligations is bound to make its legislations such modifications as
may be necessary to ensure the fulfillment of the obligations undertaken.

Pimentel v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005

Nov 9, 2012
Pimentel v. Executive Secretary Digest
G.R. No. 158088 July 6, 2005

Facts:

1. The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary
and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the
International Criminal Court to the Senate of the Philippinesfor its concurrence pursuant to
Sec. 21, Art VII of the 1987 Constitution.

2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the
most serious crimes as genocide, crimes against humanity, war crimes and crimes of aggression
as defined by the Statute. The Philippines through the Chargie du Affairs in UN. The provisions
of the Statute however require that it be subject to ratification, acceptance or approval of the
signatory state.

3. Petitioners contend that ratification of a treaty, under both domestic and international law, is
a function of the Senate, hence it is the duty of the Executive Department to transmit the signed
copy to the senate to allow it to exercise its discretion.

Issue: Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit to
the Senate the copy of the Rome Statute signed by a member of the Philippine mission to the
U.N. even without the signature of the President.

The Supreme Court held NO.

1. The President as the head of state is the sole organ and authorized in the external relations
and he is also the country's sole representative with foreign nations, He is the mouthpiece with
respect to the country's foreign affairs.

2. In treaty-making, the President has the sole authority to negotiate with other states and enter
into treaties but this power is limited by the Constitution with the 2/3 required vote of all the
members of the Senate for the treaty to be valid. (Sec. 21, Art VII).

3. The legislative branch part is essential to provide a check on the executive in the field of
foreign relations, to ensure the nation's pursuit of political maturity and growth.

Saguisag v. Executive Secretary, G.R. No. 212426, January 12, 2016

Saguisag v. Exec Secretary Ochoa July 26, 2016 G.R. No. 212426 EDCA, Treaty, Executive
Agreement, International Agreement
AUGUST 22, 2018

FACTS:

This is a Resolution on the Motion for Reconsideration seeking to reverse the Decision of this
Court in Saguisag et. al., v. Executive Secretary dated 12 January 2016.

Petitioners claim this Court erred when it ruled that the Enhanced Defense Cooperation
Agreement (EDCA) between the Philippines and the US was not a treaty. In connection to this,
petitioners move that EDCA must be in the form of a treaty in order to comply with the
constitutional restriction under Section 25, Article· XVIII of the 1987 Constitution on foreign
military bases, troops, and facilities. Additionally, they reiterate their arguments on the issues of
telecommunications, taxation, and nuclear weapons.

The principal reason for the Motion for Reconsideration is evidently petitioners’ disagreement
with the Decision that EDCA implements the VFA and Mutual Defense Treaty (MDT).

Petitioners argue that EDCA’s provisions fall outside the allegedly limited scope of the VFA and
MDT because it provides a wider arrangement than the VFA for military bases, troops, and
facilities, and it allows the establishment of U.S. military bases.

ISSUE:

Whether or not EDCA is a treaty.

RULING:

Petitioners detail their objections to EDCA in a similar way to their original petition, claiming
that the VFA and MDT did not allow EDCA to contain the following provisions:

1. Agreed Locations

2. Rotational presence of personnel

3. U.S. contractors

4. Activities of U.S. contractors

We ruled in Saguisag, et. al. that the EDCA is not a treaty despite the presence of these
provisions. The very nature of EDCA, its provisions and subject matter, indubitably categorize it
as an executive agreement – a class of agreement that is not covered by the Article XVIII Section
25 restriction – in painstaking detail. To partially quote the Decision:

Executive agreements may dispense with the requirement of Senate concurrence because of the
legal mandate with which they are concluded.

As culled from the deliberations of the Constitutional Commission, past Supreme Court
Decisions, and works of noted scholars, executive agreements merely involve arrangements on
the implementation of existing policies, rules, laws, or agreements.

They are concluded

(1) to adjust the details of a treaty;

(2) pursuant to or upon confirmation by an act of the Legislature; or

(3) in the exercise of the President’s independent powers under the Constitution.

The raison d’etre of executive agreements hinges on prior constitutional or legislative

authorizations.

The special nature of an executive agreement is not just a domestic variation in international
agreements.
International practice has accepted the use of various forms and designations of international
agreements, ranging from the traditional notion of a treaty – which connotes a formal, solemn
instrument – to engagements concluded in modern, simplified forms that no longer necessitate
ratification.

An international agreement may take different forms: treaty, act, protocol, agreement,
concordat, compromisd’arbitrage, convention, covenant, declaration, exchange of notes, statute,
pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other form.

Consequently, under international law, the distinction between a treaty and an international
agreement or even an executive agreement is irrelevant for purposes of determining international
rights and obligations.

However, this principle does not mean that the domestic law distinguishing treaties,
international agreements, and executive agreements is relegated to a mere variation in form, or
that the constitutional requirement of Senate concurrence is demoted to an optional
constitutional directive. There remain two very important features that distinguish treaties from
executive agreements and translate them into terms of art in the domestic setting.

First, executive agreements must remain traceable to an express or implied authorization under
the Constitution, statutes, or treaties. The absence of these precedents puts the validity and
effectivity of executive agreements under serious question for the main function of the Executive
is to enforce the Constitution and the laws enacted by the Legislature, not to defeat or interfere
in the performance of these rules. In turn, executive agreements cannot create new international
obligations that are not expressly allowed or reasonably implied in the law they purport to
implement.

Second, treaties are, by their very nature, considered superior to executive agreements. Treaties
are products of the acts of the Executive and the Senate unlike executive agreements, which are
solely executive actions. Because of legislative participation through the Senate, a treaty is
regarded as being on the same level as a statute. If there is an irreconcilable conflict, a later law
or treaty takes precedence over one that is prior. An executive agreement is treated differently.
Executive agreements that are inconsistent with either a law or a treaty are considered
ineffective. Both types of international agreement are nevertheless subject to the supremacy of
the Constitution.

Subsequently, the Decision goes to great lengths to illustrate the source of EDCA’s validity, in
that as an executive agreement it fell within the parameters of the VFA and MDT, and
seamlessly merged with the whole web of Philippine law. We need not restate the arguments
here. It suffices to state that this Court remains unconvinced that EDCA deserves treaty status
under the law.

We find no reason for EDCA to be declared unconstitutional. It fully conforms to the Philippines’
legal regime through the MDT and VFA. It also fully conforms to the government’s continued
policy to enhance our military capability in the face of various military and humanitarian issues
that may arise.

Executive Order No. 459, dated 25 November 1997

EXECUTIVE ORDER NO. 459

PROVIDING FOR THE GUIDELINES IN THE NEGOTIATION OF INTERNATIONAL

AGREEMENTS AND ITS RATIFICATION

WHEREAS, the negotiations of international agreements are made in pursuance of the foreign
policy of the country;

WHEREAS, Executive Order No. 292, otherwise known as the Administrative Code of 1987,
provides that the Department of Foreign Affairs shall be the lead agency that shall advise and
assist the President in planning, organizing, directing, coordinating and evaluating the total
national effort in the field of foreign relations;
WHEREAS, Executive Order No. 292 further provides that the Department of Foreign Affairs shall
negotiate treaties and other agreements pursuant to the instructions of the President, and in
coordination with other government agencies;

WHEREAS, there is a need to establish guidelines to govern the negotiation and ratification of
international agreements by the different agencies of the government;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Philippines, by virtue of the powers
vested in me by the Constitution, do hereby order:

SECTION 1. Declaration of Policy. – It is hereby declared the policy of the State that the
negotiations of all treaties and executive agreements, or any amendment thereto, shall be
coordinated with, and made only with the participation of, the Department of Foreign Affairs in
accordance with Executive Order No. 292. It is also declared the policy of the State that the
composition of any Philippine negotiation panel and the designation of the chairman thereof shall
be made in coordination with the Department of Foreign Affairs.

SEC. 2. Definition of Terms.

a. International agreement shall refer to a contract or understanding, regardless of

nomenclature, entered into between the Philippines and another government in written form and
governed by international law, whether embodied in a single instrument or in two or more related
instruments.

b. Treaties – international agreements entered into by the Philippines which require legislative
concurrence after executive ratification. This term may include compacts like conventions,
declarations, covenants and acts.

c. Executive Agreements – similar to treaties except that they do not require legislative
concurrence.

d. Full Powers – authority granted by a Head of State or Government to a delegation head

enabling the latter to bind his country to the commitments made in the negotiations to be pursued.

e. National Interest – advantage or enhanced prestige or benefit to the country as defined by its
political and/or administrative leadership.

f. Provisional Effect – recognition by one or both sides of the negotiation process that an
agreement be considered in force pending compliance with domestic requirements for the
effectivity of the agreement.

SEC. 3. Authority to Negotiate. – Prior to any international meeting or negotiation of a treaty or

executive agreement, authorization must be secured by the lead agency from the President
through the Secretary of Foreign Affairs. The request for authorization shall be in writing,
proposing the composition of the Philippine delegation and recommending the range of positions
to be taken by that delegation. In case of negotiations of agreements, changes of national policy
or those involving international arrangements of a permanent character entered into in the name
of the Government of the Republic of the Philippines, the authorization shall be in the form of Full
Powers and formal instructions. In cases of other agreements, a written authorization from the
President shall be sufficient.

SEC. 4. Full Powers. – The issuance of Full Powers shall be made by the President of the
Philippines who may delegate this function to the Secretary of Foreign Affairs.

The following persons, however, shall not require Full Powers prior to negotiating or signing a
treaty or an executive agreement, or any amendment thereto, by virtue of the nature of their
functions:

a. Secretary of Foreign Affairs;

b. Heads of Philippine diplomatic missions, for the purpose of adopting the text of a treaty or an
agreement between the Philippines and the State to which they are accredited;
c. Representatives accredited by the Philippines to an international conference or to an
international organization or one of its organs, for the purpose of adopting the text of a treaty in
that conference, organization or organ.

SEC. 5. Negotiations. –

a. In cases involving negotiations of agreements, the composition of the Philippine panel or

delegation shall be determined by the President upon the recommendation of the Secretary of
Foreign Affairs and the lead agency if it is not the Department of Foreign Affairs.

b. The lead agency in the negotiation of a treaty or an executive agreement, or any amendment
thereto, shall convene a meeting of the panel members prior to the commencement of any
negotiations for the purpose of establishing the parameters of the negotiating position of the
panel. No deviation from the agreed parameters shall be made without prior consultations with the
members of the negotiating panel.

SEC. 6. Entry into Force and Provisional Application of Treaties and Executive
Agreements. –

a. A treaty or an executive agreement enters into force upon compliance with the domestic
requirements stated in this Order.

b. No treaty or executive agreement shall be given provisional effect unless it is shown that a
pressing national interest will be upheld thereby. The Department of Foreign Affairs, in
consultation with the concerned agencies, shall determine whether a treaty or an executive
agreement, or any amendment thereto, shall be given provisional effect.

SEC. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
Agreement. – The domestic requirements for the entry into force of a treaty or an executive
agreement, or any amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their
signing for the preparation of the ratification papers. The transmittal shall include the highlights of
the agreements and the benefits which will accrue to the Philippines arising from them.

ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency,
shall transmit the agreements to the President of the Philippines for his ratification. The original
signed instrument of ratification shall then be returned to the Department of Foreign Affairs for
appropriate action.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-
paragraph 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of
Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the
ratification by the President. A certified true copy of the treaties, in such numbers as may be
required by the Senate, together with a certified true copy of the ratification instrument, shall
accompany the submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply
with the provision of the treaties in effecting their entry into force.

SEC. 8. Notice to Concerned Agencies. – The Department of Foreign Affairs shall inform the
concerned agencies of the entry into force of the agreement.

SEC. 9. Determination of the Nature of the Agreement. – The Department of Foreign Affairs
shall determine whether an agreement is an executive agreement or a treaty.
SEC. 10. Separability Clause. – If, for any reason, any part or provision of this Order shall be
held unconstitutional or invalid, other parts or provisions hereof which are not affected thereby
shall continue to be in full force and effect.

SEC. 11. Repealing Clause. – All executive orders, proclamations, memorandum orders or
memorandum circulars inconsistent herewith are hereby repealed or modified accordingly.

SEC. 12. Effectivity. – This Executive Order shall take effect immediately upon its approval.

DONE in the City of Manila, this 25th day of November in the year of Our Lord, Nineteen Hundred
and Ninety-Seven.

(Sgd.) FIDEL V. RAMOS

President of the Philippines