PIL Cases Compiled by 2A 2015

PUBLIC'INTERNATIONAL'LAW'DIGESTS'' '

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''''''''''''' '''''''DEAN'SEDFREY'CANDELARIA'

PUBLIC INTERNATIONAL LAW SHARING IS A GOOD THING! ' 2A'||'2015'

SALVADOR'ENRIQUEZ,'in'his'capacity'as'Secretary'of'Budget'and' Management;' CARIDAD' VALDEHUESA,' in' her' capacity' as' National' Treasurer;' RIZALINO' NAVARRO,' in' his' capacity' as' Secretary' of' Trade' and' Industry;' ROBERTO' SEBASTIAN,' in' his' capacity' as' Secretary' of' Agriculture;' ROBERTO' DE' OCAMPO,' in' his' capacity' as' Secretary' of' Finance;' ROBERTO' ROMULO,' in' his' capacity' as' Secretary' of' Foreign' Affairs;' and' TEOFISTO' T.' GUINGONA,'in'his'capacity'as'Executive'Secretary,'respondents.'

1. Tañada'v.'Angara' TOPIC:'Reconciling'Treaty'obligations'with'Constitutional'Policies' Treaties/Laws'' •

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World' Trade' Organization' (WTO)' ~' ' General' Agreements' on' Trade' and' Tariffs'(GTAA)' o HISTORY—to'hasten'recovery'after'WWII,'three'institutions'were' sought'to'be'established:'the'IMF,'World'Bank,'and'International' Trade'Organization.'The'ITO'unlike'the'IMF'and'WB'never'took'off' for'a'variety'of'reasons'including'nonPratification'by'the'US.'What' remained' was' the' General' Agreements' on' Trade' and' Tariffs' (GATT)' which' is' a' collection' of' treaties' governing' access' to' the' economies' of' treaty' adherents.' However,' the' problem' was' the' absence' of' AN' INSTITUTIONALIZED' BODY' administering' the' agreements' or' a' system' of' dispute.' THUS,' after' 50' years' of' negotiation,'the'WTO'became'this'administering'body.''

Ponente:'PANGANIBAN,'J.:' PETITION'IN'BRIEF:' • • •

G.R.'No.:'118295''May'2,'1997' Petitioner:''

WIGBERTO' E.' TAÑADA' and' ANNA' DOMINIQUE' COSETENG,' as' members'of'the'Philippine'Senate'and'as'taxpayers;'GREGORIO' ANDOLANA' and' JOKER' ARROYO' as' members' of' the' House' of' Representatives' and' as' taxpayers;' NICANOR' P.' PERLAS' and' HORACIO' R.' MORALES,' both' as' taxpayers;' CIVIL' LIBERTIES' UNION,' NATIONAL' ECONOMIC' PROTECTIONISM' ASSOCIATION,' CENTER' FOR' ALTERNATIVE' DEVELOPMENT' INITIATIVES,' LIKAST KAYANG' KAUNLARAN' FOUNDATION,' INC.,' PHILIPPINE' RURAL' RECONSTRUCTION' MOVEMENT,' DEMOKRATIKONG' KILUSAN' NG' MAGBUBUKID' NG' PILIPINAS,' INC.,' and' PHILIPPINE' PEASANT' INSTITUTE,' in' representation' of' various' taxpayers' and' as' nonT governmental'organizations,'petitioners,''

Respondents:''

EDGARDO' ANGARA,' ALBERTO' ROMULO,' LETICIA' RAMOST SHAHANI,' HEHERSON' ALVAREZ,' AGAPITO' AQUINO,' RODOLFO' BIAZON,' NEPTALI' GONZALES,' ERNESTO' HERRERA,' JOSE' LINA,' GLORIA.' MACAPAGALTARROYO,' ORLANDO' MERCADO,' BLAS' OPLE,' JOHN' OSMEÑA,' SANTANINA' RASUL,' RAMON' REVILLA,' RAUL' ROCO,' FRANCISCO' TATAD' and' FREDDIE' WEBB,' in' their' respective' capacities' as' members' of' the' Philippine' Senate' who' concurred' in' the' ratification' by' the' President' of' the' Philippines' of' the' Agreement' Establishing' the' World' Trade' Organization;'

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' FACTS:'

Does' the' Philippine' Constitution' prohibit' Philippine' participation' in' worldwide'trade'liberalization'and'economic'globalization?'' Does' it' proscribe' Philippine' integration' into' a' global' economy' that' is' liberalized,'deregulated'and'privatized?' These' are' the' main' questions' raised' in' this' petition' for'certiorari,' prohibition'and'mandamus,.praying'for'(1)'nullification'of'concurrence'by' the' Senate' of' the' ratification' by' President' Ramos' of' the' agreement' establishing' the' WTO' (world' trade' org)' and' (2)' prohibition' of' its' implementation.' It' is' true,' as' alleged' by' petitioners,' that' broad' constitutional' principles' require'the'State'to'develop'an'independent'national'economy'effectively' controlled' by' Filipinos;' and' to' protect' and/or' prefer' Filipino' labor,' products,'domestic'materials'and'locally'produced'goods.'But'it'is'equally' true'that'such'principles'—'while'serving'as'judicial'and'legislative'guides' —'are'not'in'themselves'sources'of'causes'of'action.'Moreover,'there'are' other' equally' fundamental' constitutional' principles' relied' upon' by' the' Senate' which' mandate' the' pursuit' of' a' "trade' policy' that' serves' the' general' welfare' and' utilizes' all' forms' and' arrangements' of' exchange' on' the' basis' of' equality' and' reciprocity"' and' the' promotion' of' industries' "which' are' competitive' in' both' domestic' and' foreign' markets,"' thereby' justifying' its' acceptance' of' said' treaty.' So' too,' 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.'

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April'15,'1994:'Rizalino'Navarro'(Sec'of'DTI)'signed'in'Marrakesh,'Morroco,' the' Final' Act' ' Embodying' results' of' the' Uruguay' round' of' multilateral' Negotiations' o He' signed' not' only' the' agreement' proper' (WTO' +' Annexes)' but' also' the' (1)' Ministerial' decisions' and' declarations' and' (2)' Understanding'and'Commitments'in'Financial'Services.' August'12'and'13'1994:'the'President'sent'letters'to'Senate'submitting'the' Uruguay'Final'Act'for'concurrence' December' 9,' 1994:' President' certified' necessity' for' immediate' concurrence' December' 14,' 1994:' Senate' concurred' through' resolution' 97' the' ratification'of'the''WTO'agreement' December'16,'1994:'President'signed'the'Instrument'of'Ratification' o Agreement'Establishing'WTO'+'agreements'included'in'ANNEXES' 1,'2'&'3''only' December'29,'1994:''Petition'was'filed'

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ISSUES/HELD:' 1. 2.

W/N' court' has' jurisdiction?' Yes,' otherwise' walang' case' na' Tanada' v.' Angara,'duh!'Won’t'discuss,'he'doesn’t'ask'this' W/N'WTO'violates'letter,'spirit'and'intent'of'the'Constitutional'mandate' of'“Economic'Nationalism”?'NO'(LIS'MOTA'OF'CASE)'

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Article'II'(Principles'and'Policies),'Sec'19'TT'The'State'shall'develop'a'selfP reliant' and' independent' national' economy' effectively' controlled' by' Filipinos.' Article'XII'(Nat’l'Econ'and'Patrimony),'Sec'10' TP'The'Congress'shall'enact' measures' that' will' encourage' the' formation' and' operation' of' enterprises' whose' capital' is' wholly' owned' by' Filipinos.' x' x' x' In' the' grant' of' rights,' privileges,'and'concessions'covering'the'national'economy'and'patrimony,' the'State'shall'give'preference'to'qualified'Filipinos.' Article'XII,'Sec'12'TT'The'State'shall'promote'the'preferential'use'of'Filipino' labor,'domestic'materials'and'locally'produced'goods,'and'adopt'measures' that'help'make'them'competitive.' Petitioner' asserts' that' these' sacred' constitutional' principles' are' desecrated' by' the' WTO' provisions' in' Article' 2' (par' 1' and' 2)' and' the' corresponding'annexes'' o They' provide' for' “national' treatment”' and' “party' provisions”' which'place'“nationals'and'products'of'member'countries'on'the' same'footing'as'Filipinos'and'local'products,"'in'contravention'of' the'"Filipino'First"'policy'of'the'Constitution.'

Also,' they' argue' that' these' provisions' contravene' constitutional' limitations'on'role'of'export'in'nat’l'development' SC:'(1)'Declaration'of'Principles'Not'SelfTExecuting' o Mere' guides' or' aides' to' judicial' and' legislative' branch;' does' not' provide'for'specific'legal'rights'from'which'a'cause'of'action'may' stem.'' o They'need'legislative'enactment'(Basco'v.'Pagcor)' SC:' (2)' Economic' Nationalism' should' be' read' with' other' constitutional' mandates'to'attain'balanced'development'of'economy' o Sections'10'and'12'of'Article'XII'should'be'read'and'understood'in' relation'to'sections'1'and'13'of'the'same'article'  The' basic& goals& ' of' national' economic' development' in' section' 1' are' (1)' more' equitable' distribution' of' opportunities' and' wealth;' (2)' sustainable' increase' in' goods'and'services;'and'(3)'expanded'productivity'  With' these' goals' in' context,' the' Constitution' then' mandates' the' ideals' of' economic' nationalism' by' expressing' preference. to. Filipinos' in' grants' of' rights,' concessions,' etc.;' adopting' measures' to' make' them' competitive;' and' requiring' the' state' to' develop' self4 reliant.and.independent'economy' o Though' Section' 10' was' held' in' Manila. Prince. v.. GSIS. to' be' complete' and' enforceable,' it' is' limited' to' the' preference' in' the' grant' of' rights,' privileges' and' concession' and' NOT' TO' EVERY' ASPECT'of'trade'and'commerce'  The' issue' here' is' whether,' as' a' rule,' there' are' enough' balancing' provisions' in' the' constitution' to' allow' the' Senate'to'ratify'the'WTO.'The'SC'thinks'there'are.'' o ALL'TOLD,'while'the'Constitution'mandates'preference'in'favor'of' Filipinos,' 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' (Section'1'of'Article'XII)'  In' other' words,' the' Constitution' did' not' pursue' an' isolationist' policy—while' unlimited' entry' of' foreign' goods,' services,' and' investments' in' the' country,' it' does' not'prohibit'them'either.'' SC:'(3)'WTO'recognizes'need'to'protect'week'economies' o In'the'WTO,'decisions'are'made'on'the'basis'of'sovereign'equality' unlike'in'the'Security'Council'where'major'states'have'permanent' seats'and'veto'power.'' o

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Hence,' poor' countries' can' protect' common' interests' more' effectively' through' WTO' than' 1PonP1' talks' with' developed' countries' SC:'(4)'Specific'WTO'provisos'protect'developing'countries' o More' lenient' treatment' of' developing' countries;' reduction' in' Tariff' rates' of' only' 24%' (36' for' developed)' within' a' period' of' 10' years' (6' for' developed).' Similar' preference' to' developing' countries' are' found' in' regard' subsidy' for' agricultural' products,' foreign'competition'and'trade'practices' SC:'(5)'Constitution'does'not'rule'out'foreign'competition' o The' policy' in' the' constitution' is' to' have' a' self' reliant' and' independent' national' economy—this' does' not' rule' out' entry' of' foreign'goods,'investment,'etc.' o the'fundamental'law'encourages'industries'that'are'"competitive' in' both' domestic' and' foreign' markets,"' thereby' demonstrating' a' clear' policy' against' a' sheltered' domestic' trade' environment,' but' one'in'favor'of'the'gradual'development'of'robust'industries'that' can'compete'with'the'best'in'the'foreign'markets.' SC:' (6)' Constitution' designed' to' Meet' Future' Events' and' Contingencies' (ON'CONFLICT'OF'TREATY'AND'CONSTITUTION?)' o WTO'was'not'yet'in'existence'when'1987'constitution'took'effect.' Does'that'mean'that'our'charter'is'flawed?'In'the'same'token,'the' UN'was'not'yet'in'existence'when'the'1935'constitution'became' effective;' does' that' mean' that' the' then' constitution' might' not' have' contemplated' a' diminution' of' absoluteness' of' sovereignty' when' the' Philippines' effectively' surrendered' part' of' it' to' the' control'of'the'Security'Council'by'signing'the'UN'charter?'' o Constitutions' are' interpreted' to' cover' even' future' and' unknown' circumstances—it' can' bend' with' the' refreshing' winds' of' change' necessitated'by'unfolding'events' o “It.must.grow.with.the.society.it.seeks.to.re4structure.and.march. apace.with.the.progress.of.the.race,.drawing.from.the.vicissitudes. of. history. the. dynamism. and. vitality. that. will. keep. it,. far. from. becoming. a. petrified. rule,. a. pulsing,. living. law. attuned. to. the. heartbeat.of.the.nation.”' o

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W/N' WTO' intrudes' on' the' power' of' SC' to' promulgate' rules' concerning' pleadings,'practice'and'procedure?'NO,'same'arguments'as'above'

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W/N' Concurrence' was' only' in' WTO' agreement' and' not' in' other' documents'contained'in'the'final'act?'NO,'see'below.'' ' As' seen' from' the' facts,' Secretary' Navarro' signed' the' Final' ACT' (WTO' Agreement'+'annexes)''+'ministerial'declarations'and'understanding'AND' financial'services'commitment.'' Since'the'senate'concurred'only'to'the'WTO'agreement'alone'is'in'effect'a' rejection'of'the'Final'ACT' SC:' o Final' act—protocol' de' cloture,' is' the' instrument' which' records' the'winding'up'of'the'proceedings'and'signed'by'plenipotentiaries' attending' the' conference;' not' a' treaty' but' a' summary' of' proceeding''

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W/N' WTO' unduly' limits,' restricts,' impairs' legislative' power' such' as' power'to'tax?'It'limits,'but'it'is'valid.''

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SC:'(1)'Sovereignty'it'limited'by'international'law'and'treaties'

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.'' o One'of'the'oldest'and'most'fundamental'rules'in'international'law' is.pacta. sunt. servanda.—' international' agreements' must' be' performed' in' good' faith.' "A' treaty' engagement' is' not' a' mere' moral' obligation' but' creates' a' legally' binding' obligation' on' the' parties' .' .' .' 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.' o '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.' o The' sovereignty' of' a' state' therefore' cannot' in' fact' and' in' reality' be'considered'absolute.'Certain'restrictions'enter'into'the'picture:' (1)'limitations'imposed'by'the'very'nature'of'membership'in'the' family'of'nations'and'(2)'limitations'imposed'by'treaty'stipulations' SC:'(2)'UN'Charter'and'Other'treaties'limit'sovereignty' o Many' treaties' cited' where' Philippines' effectively' agreed' to' limit' exercise'of'powers'of'taxation,'eminent'domain,'and'police'power' o The' point' is,' sovereignty' may' be' waived' without' violating' the' constitution' based' on' rationale' that' Philippines' adopt' the' generally' accepted' principles' of' international' law' as' part' of' the' land…' o

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By'signing'said'Final'Act,'Secretary'Navarro'as'representative'of' the'Republic'of'the'Philippines'undertook:'  (a)'to'submit,'as'appropriate,'the'WTO'Agreement'for' the'consideration'of'their'respective'competent' authorities'with'a'view'to'seeking'approval'of'the' Agreement'in'accordance'with'their'procedures;'and'  (b)'to'adopt'the'Ministerial'Declarations'and'Decisions.' The'ministerial'decisions'were'deemed'adopted'without'need'or' ratification' The'Understanding'on'commitments'in'financial'services'does'not' apply'to'Philippines' The' senate' was' likewise' well' aware' of' what' is' was' concurring' in' as'shown'by'the'deliberations'

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' DISPOSITIVE:'WHEREFORE,'the'petition'is'DISMISSED'for'lack'of'merit.'

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SO'ORDERED.' '

2. Mijares'v.'Ranada' Topic:'Enforcement'of'Foreign'Judgment' Treaties/Laws:' • Alien'Tort'Act'(this'wasn’t'discussed'in'case,'I'just'put'a'Wikipedia'entry'at' the'end'just'in'case'he'asks)' • Sec.'48,'Rule'39'of'Rules'of'Court' • Philippine'Constitution,'Art'II,'Sec.'2' ' G.R.'No.'139325.''April'12,'2005' Petitioners:'PRISCILLA'C.'MIJARES,'LORETTA'ANN'P.'ROSALES,'HILDA'B.'NARCISO,'SR.' MARIANI'DIMARANAN,'SFIC,'and'JOEL'C.'LAMANGAN'in'their'behalf'and'on'behalf' of' the' Class' Plaintiffs' in' Class' Action' No.' MDL' 840,' United' States' District' Court' of' Hawaii,'. Respondents:'HON.'SANTIAGO'JAVIER'RANADA,'in'his'capacity'as'Presiding'Judge'of' Branch' 137,' Regional' Trial' Court,' Makati' City,' and' the' ESTATE' OF' FERDINAND' E.' MARCOS,'' Ponente:'TINGA,'J.:' ' FACTS:' • The' petitioners' in' this' case' are' prominent' victims' of' human' rights' violations' who,' deprived' of' the' opportunity' to' directly' confront' the' man' who' once' held' absolute' rule' over' this' country,' have' chosen' to' do' battle'

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instead'with'the'earthly'representative,'his'estate.'The'clash'has'been'for' now'interrupted'by'a'trial'court'ruling,'seemingly'comported'to'legal'logic,' that' required' the' petitioners' to' pay' a' whopping' filing' fee' of' over' Four' Hundred' SeventyPTwo' Million' Pesos' (P472,000,000.00)' in' order' that' they' be'able'to'enforce'a'judgment'awarded'them'by'a'foreign'court.''' On'9'May'1991,'a'complaint'was'filed'with'the'United'States'District'Court' (US' District' Court),' District' of' Hawaii,' against' the' Estate' of' former' Philippine'President'Ferdinand'E.'Marcos'(Marcos'Estate).'The'action'was' brought' forth' by' ten' Filipino' citizens' who' each' alleged' having' suffered' human' rights' abuses' such' as' arbitrary' detention,' torture' and' rape' in' the' hands'of'police'or'military'forces'during'the'Marcos'regime.' The' Alien' Tort' Act' was' invoked' as' basis' for' the' US' District' Court’s' jurisdiction' over' the' complaint,' as' it' involved' a' suit' by' aliens' for' tortious' violations'of'international'law.'' These'plaintiffs'brought'the'action'on'their'own'behalf'and'on'behalf'of'a' class' of' similarly' situated' individuals,' particularly' consisting' of' all' current' civilian' citizens' of' the' Philippines,' their' heirs' and' beneficiaries,' who' between' 1972' and' 1987' were' tortured,' summarily' executed' or' had' disappeared' while' in' the' custody' of' military' or' paramilitary' groups.' Plaintiffs' alleged' that' the' class' consisted' of' approximately' ten' thousand' (10,000)'members;'hence,'joinder'of'all'these'persons'was'impracticable.' The'institution'of'a'class'action'suit'was'warranted'under'Rule' 23(a)' and' (b)(1)(B)' of' the' US' Federal' Rules' of' Civil' Procedure,' the' provisions' of' which' were' invoked' by' the' plaintiffs.' Subsequently,' the' US' District' Court' certified'the'case'as'a'class'action'and'created'three'(3)'subPclasses'of'(a)' torture,' (b)' summary' execution' and' (c)' disappearance' victims.' Trial' ensued,' and' subsequently' a' jury' rendered' a' verdict' and' an' award' of' compensatory'and'exemplary'damages'in'favor'of'the'plaintiff'class.''' 3'February'1995,'the'US'District'Court,'presided'by'Judge'Manuel'L.'Real,' rendered' a' Final' Judgment'(Final. Judgment)' awarding' the' plaintiff' class' a' total'of'One'Billion'Nine'Hundred'Sixty'Four'Million'Five'Thousand'Eight' Hundred'Fifty'Nine'Dollars'and'Ninety'Cents'($1,964,005,859.90).'' On'20'May'1997,'the'present'petitioners'filed'Complaint'with'the'Regional' Trial' Court,' City' of' Makati' (Makati' RTC)' for' the' enforcement' of' the' Final. Judgment.'' They' alleged' that' they' are' members' of' the' plaintiff' class' in' whose'favor'the'US'District'Court'awarded'damages.'' On'5'February'1998,'the'Marcos'Estate'filed'a'motion'to'dismiss,'raising,' among'others,'the'nonTpayment'of'the'correct'filing'fees.''It'alleged'that' petitioners'had'only'paid'Four'Hundred'Ten'Pesos'(P410.00)'as'docket'and' filing' fees,' notwithstanding' the' fact' that' they' sought' to' enforce' a' monetary' amount' of' damages' in' the' amount' of' over' Two' and' a' Quarter' Billion'US'Dollars'(US$2.25'Billion).''' Judge' Santiago' Javier' Ranada' of' the' Makati' RTC' issued' the' subject' Order'

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dismissing'the'complaint'without'prejudice.'Respondent'judge'opined'that' contrary' to' the' petitioners’' submission,' the' subject' matter' of' the' complaint' was' indeed' capable' of' pecuniary' estimation,' as' it' involved' a' judgment' rendered' by' a' foreign' court' ordering' the' payment' of' definite' sums'of'money,'allowing'for'easy'determination'of'the'value'of'the'foreign' judgment.' On' that' score,' Section' 7(a)' of' Rule' 141' of' the' Rules' of' Civil' Procedure' would' find' application,' and' the' RTC' estimated' the' proper' amount' of' filing' fees' was' approximately' Four' Hundred' Seventy' Two' Million'Pesos,'which'obviously'had'not'been'paid.' The'Commission'on'Human'Rights'(CHR)'was'permitted'to'intervene'in'this' case.' It' urged' that' the' petition' be' granted' and' a' judgment' rendered,' ordering'the'enforcement'and'execution'of'the'District'Court'judgment'in' accordance'with'Section'48,'Rule'39'of'the'1997'Rules'of'Civil'Procedure.' For' the' CHR,' the' Makati' RTC' erred' in' interpreting' the' action' for' the' execution'of'a'foreign'judgment'as'a'new'case,'in'violation'of'the'principle' that' once' a' case' has' been' decided' between' the' same' parties' in' one' country'on'the'same'issue'with'finality,'it'can'no'longer'be'relitigated'again' in'another'country.The'CHR'likewise'invokes'the'principle'of'comity,'and'of' vested'rights.'

' ISSUES/HELD:' I.' Filing' Fees?' CORRECT,' incapable' of' pecuniary' estimation,' enforcement' of' judgment.'(copy'pasted'from'CivPro'digest)'' II.'Basis'for'enforcement'of'foreign'judgment?'Sec.'48,'Rule'39'RoC'and'Consti,'Art'II,' Sec.'2.' ' RATIO:' I.'Filing'Fees:'(CIVPRO)' SECTION'7'(A)'RULE'141'IS'APPLICABLE'ONLY'IF'IT'IS'A'MONEY'CLAIM'NOT'BASED' ON'JUDGEMENT'  Sec'7'(a)'states:'“For'filing'an'action'or'a'permissive'counterclaim'or' money'claim'against'an'estate'not'based'on'judgment...”'  The'provision'of'the'law'does'not'make'any'distinction'between'a'local' judgment'and'a'foreign'judgment,'and'where'the'law'does'not'distinguish,' we'shall'not'distinguish'  Petitioners''complaint'may'have'been'lodged'against'an'estate,'but'it'is' clearly'based'on'a'judgment,'the'Final.Judgment'of'the'US'District'Court,' being'so'Section7'(a)'R'141'is'not'applicable'' SUBJECT'MATTER'OF'AN'ENFORCEMENT'OF'A'FOREIGN'JUDGEMENT'CASE'IS'THE' FOREIGN'JUDGEMENT' W/N'a'case'is'capable'of'pecuniary'estimation''

Generally'to'determine'w/n'a'claim'is'capable'of'pecuniary'estimation,'you' have'to'look'at'its'primary'issue.'  If'it'is'primarily'for'the'recovery'of'a'sum'of'money'claim'then'it'is'capable' of'pecuniary'estimation'but'if'the'money'claim'is'just'incidental'or'is'just'a' consequence,'such'a'case'may'not'be'estimated'in'terms'of'money''  If'[the'case]'is'primarily'for'the'recovery'of'a'sum'of'money,'the'claim'is' considered'capable'of'pecuniary'estimation''(Singsong.v..Isabela.Sawmill. and.Raymundo.v..Court.of.Appeals)'  Examples:'Specific'performance'of'a'contract,'case'for'support,'annulment' of'judgement'or'to'foreclose'a'mortgage'(Lapitan.v..Scandia)'  'However'the'court'said'that,'in'this'case,'even'if'the'subject'matter'is' the'foreign'judgement,'“there'is'no'denying'that'the'enforcement'of'the' foreign'judgment'will'necessarily'result'in'the'award'of'a'definite'sum'of' money.”'Thus'it'is'it'is'capable'of'pecuniary'estimation' APPLICABLE'FILING'FEE'  Rule'141'section'7(b)'(I'think'the'fees'were'updated/increased'by'SC'thus' the'rule'says'P600'rather'than'P410'which'was'paid'by'the'petitioners)' o (b)'For'filing' 1. Actions'where'the'valueof'the'subject'matter'cannot'be' estimated'P'P'600.00' 2. Special'civil'actions'except'judicial'foreclosure'which'shall'be' governed'by'paragraph'(a)'above'P'P'600.00' 3. All'other'actions'not'involving'property''T'P'600.00'  Sec'7'bP1'contended'by'the''petitioner'is'not'applicable'since'the'US' District'Court'judgment'is'one'capable'of'pecuniary'estimation'  But'Sec7Pa'contended'by'the'respondents'is'not'also'applicable'since'this' case'is'based'on'a'judgment'  Thus'SC'said'Sec7bP3''(others)'is'applicable'which'has'the'same'fees'as' Sec7bP1'paid'by'the'petitioner'  Court'who'has'jurisdiction'to'hear'cases'for'enforcement'of'foreign' judgements:'RTC''(see'BP'129'Sec'19'&33)' 1. Sec.'19.'Jurisdiction.in.civil.cases.'—'Regional'Trial'Courts'shall' exercise'exclusive'original'jurisdiction:' xxx' (6)'In'all'cases'not'within'the'exclusive'jurisdiction'of'any'court,' tribunal,'person'or'body'exercising'jurisdiction'or'any'court,' tribunal,'person'or'body'exercising'judicial'or'quasiPjudicial' functions.'' 2. Section'33'jurisdiction'for'MTC’s'' 

It'only'involves'cause'of'action'or'subject'matter' pertaining'to'an'assertion'of'rights'and'interests'over' property'or'a'sum'of'money'  But'a'mentioned'above,'subject'matter'of'an'action'to' enforce'a'foreign'judgment'is'the'foreign'judgment'itself,' and'the'cause'of'action'arising'from'the'adjudication'of' such'judgment'' Since'MTC’s'have'no'jurisdiction,'RTC'has'jurisdiction' 

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' II.'ENFORCEMENT'OF'FOREIGN'JUDGMENT' • The'rules'of'comity,'utility'and'convenience'of'nations'have'established'a' usage'among'civilized'states'by'which'final'judgments'of'foreign'courts'of' competent' jurisdiction' are' reciprocally' respected' and' rendered' efficacious'under'certain'conditions'that'may'vary'in'different'countries.'' • This' principle' was' prominently' affirmed' in' the' leading' American' case' of' Hilton& v.& Guyot' and' expressly' recognized' in' our' jurisprudence' beginning' with' Ingenholl& v.& Walter& E.& Olsen& && Co.' The' conditions' required' by' the' Philippines' for' recognition' and' enforcement' of' a' foreign' judgment' were' originally'contained'in'Section' 311' of' the' Code' of' Civil' Procedure,' which' was'taken'from'the'California'Code'of'Civil'Procedure'which,'in'turn,'was' derived' from' the' California' Act' of' March' 11,' 1872.' Remarkably,' the' procedural'rule'now' outlined' in' Section' 48,' Rule' 39' of' the' Rules' of' Civil' Procedure' has' remained' unchanged' down' to' the' last' word' in' nearly' a' century.'Section'48'states:' SEC.'48.'''''''Effect'of'foreign'judgments.'—'The'effect'of'a'judgment'of'a'tribunal'of'a'foreign' country,'having'jurisdiction'to'pronounce'the'judgment'is'as'follows:' a) In' case' of' a' judgment' upon' a' specific' thing,' the' judgment' is' conclusive' upon' the' title'to'the'thing;' b) In'case'of'a'judgment'against'a'person,'the'judgment'is'presumptive'evidence'of'a' right'as'between'the'parties'and'their'successors'in'interest'by'a'subsequent'title;' ' In' either' case,' the' judgment' or' final' order' may' be' repelled' by' evidence' of' a' want' of' jurisdiction,'want'of'notice'to'the'party,'collusion,'fraud,'or'clear'mistake'of'law'or'fact.'

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For'an'action'in.rem,'the'foreign'judgment'is'deemed'conclusive'upon'the' title'to'the'thing,'while'in'an'action'in'personam,.the'foreign'judgment'is' presumptive,' and' not' conclusive,' of' a' right' as' between' the' parties' and' their'successors'in'interest'by'a'subsequent'title.' However,' in' both' cases,' the' foreign' judgment' is' susceptible' to' impeachment'in'our'local'courts'on'the'grounds'of'want'of'jurisdiction'or' notice'to'the'party,'collusion,'fraud,'or'clear'mistake'of'law'or'fact.' 'Thus,' the' party' aggrieved' by' the' foreign' judgment' is' entitled' to' defend' against'the'enforcement'of'such'decision'in'the'local'forum.'It'is'essential'

that'there'should'be'an'opportunity'to'challenge'the'foreign'judgment,'in' order'for'the'court'in'this'jurisdiction'to'properly'determine'its'efficacy.' Consequently,' the' party' attacking' a' foreign' judgment' has' the' burden' of' overcoming'the'presumption'of'its'validity.' The'rules'are'silent'as'to'what'initiatory'procedure'must'be'undertaken' in'order'to'enforce'a'foreign'judgment'in'the'Philippines.'But'there'is'no' question'that'the'filing'of'a'civil'complaint'is'an'appropriate'measure'for' such'purpose.'' As' stated' in' Section' 48,' Rule' 39,' the' actionable' issues' are' generally' restricted' to' a' review' of' jurisdiction' of' the' foreign' court,' the' service' of' personal'notice,'collusion,'fraud,'or'mistake'of'fact'or'law.'' The' limitations' on' review' is' in' consonance' with' a' strong' and' pervasive' policy'in'all'legal'systems'to'limit'repetitive'litigation'on'claims'and'issues.' Otherwise' known' as' the' policy' of' preclusion,' it' seeks' to' protect' party' expectations' resulting' from' previous' litigation,' to' safeguard' against' the' harassment' of' defendants,' to' insure' that' the' task' of' courts' not' be' increased'by'neverPending'litigation'of'the'same'disputes.' There' have' been' attempts' to' codify' through' treaties' or' multilateral' agreements'the'standards'for'the'recognition'and'enforcement'of'foreign' judgments,' but' these' have' not' borne' fruition.' The' members' of' the' European'Common'Market'accede'to'the'Judgments.Convention,'signed'in' 1978,'which'eliminates'as'to'participating'countries'all'of'such'obstacles'to' recognition'such'as'reciprocity'and'révision.au.fond.'The'most'ambitious'of' these'attempts'is'the'Convention&on&the&Recognition&and&Enforcement&of& Foreign&Judgments&in&Civil&and&Commercial&Matters,'prepared'in'1966'by' the'Hague'Conference'of'International'Law.'While'it'has'not'received'the' ratifications'needed'to'have'it'take'effect,'it'is'recognized'as'representing' current' scholarly' thought' on' the' topic.' Neither' the' Philippines' nor' the' United'States'are'signatories'to'the'Convention.' Yet' even' if' there' is' no' unanimity' as' to' the' applicable' theory' behind' the' recognition' and' enforcement' of' foreign' judgments' or' a' universal' treaty' rendering' it' obligatory' force,' there' is' consensus' that' the' viability' of' such' recognition'and'enforcement'is'essential.'' Salonga,' whose' treatise' on' private' international' law' is' of' worldwide' renown,'points'out:' o Whatever' be' the' theory' as' to' the' basis' for' recognizing' foreign' judgments,'there'can'be'little'dispute'that'the'end'is'to'protect' the'reasonable'expectations'and'demands'of'the'parties.'Where' the'parties'have'submitted'a'matter'for'adjudication'in'the'court' of' one' state,' and' proceedings' there' are' not' tainted' with' irregularity,' they' may' fairly' be' expected' to' submit,' within' the' state'or'elsewhere,'to'the'enforcement'of'the'judgment'issued'by' the'court.'

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There' is' also' consensus' as' to' the' requisites' for' recognition' of' a' foreign' judgment' and' the' defenses' against' the' enforcement' thereof.' As' earlier' discussed,'the'exceptions'enumerated'in'Section'48,'Rule'39'have'remain' unchanged'since'the'time'they'were'adapted'in'this'jurisdiction'from'long' standing' American' rules.' The' requisites' and' exceptions' as' delineated' under'Section'48'are'but'a'restatement'of'generally'accepted'principles'of' international' law.' Section' 98' of' The' Restatement,' Second,' Conflict' of' Laws,'states'that'“a' valid' judgment' rendered' in' a' foreign' nation' after' a' fair' trial' in' a' contested' proceeding' will' be' recognized' in' the' United' States,”'' o the' term' “valid”' brings' into' play' requirements' such' notions' as' valid'jurisdiction'over'the'subject'matter'and'parties.'' o The'notion'that'fraud'or'collusion'may'preclude'the'enforcement' of'a'foreign'judgment'finds'affirmation'with'foreign'jurisprudence' and'commentators,'' o as' well' as' the' doctrine' that' the' foreign' judgment' must' not' constitute'“a'clear'mistake'of'law'or'fact.”'' o “public' policy”' as' a' defense' to' the' recognition' of' judgments' serves' as' an' umbrella' for' a' variety' of' concerns' in' international' practice'which'may'lead'to'a'denial'of'recognition.' The' viability' of' the' public' policy' defense' against' the' enforcement' of' a' foreign'judgment'has'been'recognized'in'this'jurisdiction.' o This' defense' allows' for' the' application' of' local' standards' in' reviewing' the' foreign' judgment,' especially' when' such' judgment' creates'only'a'presumptive'right,'as'it'does'in'cases'wherein'the' judgment'is'against'a'person.' There' is' no' obligatory' rule' derived' from' treaties' or' conventions' that' requires' the' Philippines' to' recognize' foreign' judgments,' or' allow' a' procedure'for'the'enforcement'thereof.''' However,'generally'accepted'principles'of'international'law,'by'virtue'of' the'incorporation'clause'of'the'Constitution,'form'part'of'the'laws'of'the' land'even'if'they'do'not'derive'from'treaty'obligations.' o The' classical' formulation' in' international' law' sees' those' customary'rules'accepted'as'binding'result'from'the'combination' two' elements:' (1)' the' established,' widespread,' and' consistent' practice' on' the' part' of' States;' and' (2)' a' psychological' element' known'as'the'opinion&juris&sive&necessitates'(opinion'as'to'law'or' necessity).' Implicit' in' the' latter' element' is' a' belief' that' the' practice' in' question' is' rendered' obligatory' by' the' existence' of' a' rule'of'law'requiring'it.' As' earlier' demonstrated,' there' is' a' widespread' practice' among' states' accepting' in' principle' the' need' for' such' recognition' and' enforcement,' albeit' subject' to' limitations' of' varying' degrees.' The' fact' that' there' is' no' binding' universal' treaty' governing' the' practice' is' not' indicative' of' a'

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widespread'rejection'of'the'principle,'but'only'a'disagreement'as'to'the' imposable' specific' rules' governing' the' procedure' for' recognition' and' enforcement.' Aside'from'the'widespread'practice,'it'is'indubitable'that'the'procedure'for' recognition' and' enforcement' is' embodied' in' the' rules' of' law,' whether' statutory'or'jurisprudential,'adopted'in'various'foreign'jurisdictions.'In'the' Philippines,'this'is'evidenced'primarily'by'Section'48,'Rule'39'of'the'Rules' of' Court' which' has' existed' in' its' current' form' since' the' early' 1900s.' Certainly,' the' Philippine' legal' system' has' long' ago' accepted' into' its' jurisprudence' and' procedural' rules' the' viability' of' an' action' for' enforcement' of' foreign' judgment,' as' well' as' the' requisites' for' such' valid' enforcement,'as'derived'from'internationally'accepted'doctrines.''' The' procedure' and' requisites' outlined' in' Section' 48,' Rule' 39' derive' their' efficacy' not' merely' from' the' procedural' rule,' but' by' virtue' of' the' incorporation'clause'of'the'Constitution.''The'Supreme'Court'is'obliged,'as' are'all'State'components,'to'obey'the'laws'of'the'land,'including'generally' accepted' principles' of' international' law' which' form' part' thereof,' such' as' those' ensuring' the' qualified' recognition' and' enforcement' of' foreign' judgments.' Thus,'relative'to'the'enforcement'of'foreign'judgments'in'the'Philippines,' it'emerges'that'there'is'a'general'right'recognized'within'our'body'of'laws,' and'affirmed'by'the'Constitution,'to'seek'recognition'and'enforcement'of' foreign' judgments,' as' well' as' a' right' to' defend' against' such' enforcement' on' the' grounds' of' want' of' jurisdiction,' want' of' notice' to' the' party,' collusion,'fraud,'or'clear'mistake'of'law'or'fact.' POINT' OF' THIS' WHOLE' DISCUSSION:' PHILIPPINES' RECOGNIZES' FOREIGN' JUDGMENTS' ON' THE' BASIS' OF' INTERNATIONAL' COMITY,' GENERALLY' ACCEPTED'PRINCIPALS'OF'INT’L'LAW,'INCLUSION'CLAUSE'OF'1987'CONSTI' (Art.'II,'Sec.'2),'Sec.'48,'Rule'39'of'Rules'of'Court.''

' WHAT'HAPPENED'TO'CASE?' • Use' Php410' as' docket' fees' because' its' an' action' incapable' of' pecuniary' estimation' • Rules' of' Court' promote' reasonableness,' to' ask' for' 42M' worth' of' docket' fees'is'excessive'and'wouldn’t'promote'justice…'blahblah' ' WHEREFORE,'the'petition'is'GRANTED.'The'assailed'orders'are'NULLIFIED'and'SET' ASIDE,' and' a' new' order' REINSTATING' Civil' Case' No.' 97P1052' is' hereby' issued.' No' costs.' SO'ORDERED.' . ALIEN'TORT'ACT:'(source:'Wikipedia)& '

Public'International'Law'

1. Bayan'v.'Zamora'(RK)'

Sources'of'International'Law:'Treaties'

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[G.R.'No.'138570.'October'10,'2000] BAYAN'(Bagong'Alyansang'Makabayan),'a'JUNK'VFA'MOVEMENT,'BISHOP'TOMAS'MILLAMENA'(Iglesia'Filipina'Independiente),'BISHOP' ELMER'BOLOCAN'(United'Church'of'Christ'of'the'Phil.),'DR.'REYNALDO'LEGASCA,'MD,'KILUSANG'MAMBUBUKID'NG' PILIPINAS,'KILUSANG'MAYO'UNO,'GABRIELA,'PROLABOR,'and'the'PUBLIC'INTEREST'LAW'CENTER,'petitioners,* vs.*EXECUTIVE'SECRETARY'RONALDO'ZAMORA,'FOREIGN'AFFAIRS'SECRETARY'DOMINGO'SIAZON,'DEFENSE'SECRETARY' ORLANDO'MERCADO,'BRIG.'GEN.'ALEXANDER'AGUIRRE,'SENATE'PRESIDENT'MARCELO'FERNAN,'SENATOR'FRANKLIN' DRILON,'SENATOR'BLAS'OPLE,'SENATOR'RODOLFO'BIAZON,'and'SENATOR'FRANCISCO'TATAD,*respondents.* G.R.'No.'138572.'October'10,'2000]' PHILIPPINE'CONSTITUTION'ASSOCIATION,'INC.(PHILCONSA),'EXEQUIEL'B.'GARCIA,'AMADOGAT'INCIONG,'CAMILO'L.'SABIO,'AND'RAMON' A.'GONZALES,'petitioners,*vs.*HON.'RONALDO'B.'ZAMORA,'as'Executive'Secretary,'HON.'ORLANDO'MERCADO,'as' Secretary'of'National'Defense,'and'HON.'DOMINGO'L.'SIAZON,'JR.,'as'Secretary'of'Foreign'Affairs,'respondents' [G.R.'No.'138587.'October'10,'2000]' TEOFISTO'T.'GUINGONA,'JR.,'RAUL'S.'ROCO,'and'SERGIO'R.'OSMEÑA'III,'petitioners,*vs.*JOSEPH'E.'ESTRADA,'RONALDO'B.'ZAMORA,' DOMINGO'L.'SIAZON,'JR.,'ORLANDO'B.'MERCADO,'MARCELO'B.'FERNAN,'FRANKLIN'M.'DRILON,'BLAS'F.'OPLE'and' RODOLFO'G.'BIAZON,'respondents* [G.R.'No.'138680.'October'10,'2000]' INTEGRATED'BAR'OF'THE'PHILIPPINES,'Represented'by'its'National'President,'Jose'Aguila'Grapilon,'petitioners,*vs.*JOSEPH'EJERCITO' ESTRADA,'in'his'capacity'as'President,'Republic'of'the'Philippines,'and'HON.'DOMINGO'SIAZON,'in'his'capacity'as' Secretary'of'Foreign'Affairs,'respondents.[' G.R.'No.'138698.'October'10,'2000]' JOVITO'R.'SALONGA,'WIGBERTO'TAÑADA,'ZENAIDA'QUEZONdAVENCEÑA,'ROLANDO'SIMBULAN,'PABLITO'V.'SANIDAD,'MA.'SOCORRO'I.' DIOKNO,'AGAPITO'A.'AQUINO,'JOKER'P.'ARROYO,'FRANCISCO'C.'RIVERA'JR.,'RENE'A.V.'SAGUISAG,'KILOSBAYAN,' MOVEMENT'OF'ATTORNEYS'FOR'BROTHERHOOD,'INTEGRITY'AND'NATIONALISM,'INC.'(MABINI),'petitioners,*vs.*THE' EXECUTIVE'SECRETARY,'THE'SECRETARY'OF'FOREIGN'AFFAIRS,'THE'SECRETARY'OF'NATIONAL'DEFENSE,'SENATE'PRESIDENT' MARCELO'B.'FERNAN,'SENATOR'BLAS'F.'OPLE,'SENATOR'RODOLFO'G.'BIAZON,'AND'ALL'OTHER'PERSONS'ACTING'THEIR' CONTROL,'SUPERVISION,'DIRECTION,'AND'INSTRUCTION'IN'RELATION'TO'THE'VISITING'FORCES'AGREEMENT' (VFA),'respondents.'

BUENA,'J.:' FACTS:' Brief'History:' • March!14,!1947,!US!and!PH!forged!the!RP8US!Military!Bases!Agreement' • August!30,!1951,!US!and!PH!entered!into!a!Mutual!Defense!Treaty!' • RP8US!Military!Bases!Agreement!expired!in!1991\' o the!PH!Senate!rejected!the!proposed!RP8US!Treaty!of!Friendship,! Cooperation!and!Security!in!Sept!16,!1991!which!would!have!extended! presence!of!US!military!bases!in!the!PH.!' • July!18,!1997,!US!(represented!by!Kurt!Campbell,!Defense!Deputy!Assistant! Secretary)!and!PH!(Rodolfo!Severino!Jr.,!DFA!undersecretary)!met!to!discuss!the! possible!elements!of!the!Visiting!Forces!Agreement!(VFA)' • This!resulted!to!a!series!of!conferences!and!negotiations!which!culminated!on! January!12!and!13,!1998.!Then!President!Fidel!Ramos!approved!the!VFA,!which!was! respectively!signed!by!DFA!Secretary!Domingo!Siazon!and!US!Ambassador!Thomas! Hubbard!' • October!5,!1998,!President!Joseph!Estrada,!through!DFA!Secretary,!ratified!the!VFA.!' • October!6,!1998,!President!transmitted!to!the!Senate!for!concurrence!pursuant!to! Section'21,'Article'VII'of'the'1987'Constitution.!The!VFA!was!referred!to!the! committee!on!National!Defense!and!Security!for!recommendation!and!hearing'

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May!3,!1999,!the!committee!submitted!Propose!Senate!Resolution!No!443! recommending!concurrence!of!the!Senate!to!the!VFA' May!27,!1999,!proposed!Senate!Resolution!No.!443!was!approved!by!the!Senate!via! 2/3!vote!of!its!members' June!1,!1999,!the!VFA!officially!entered!into!force!after!Exchange'of'Notes!between! Secretary!Siazon!and!US!Ambassador!Hubbard.!*!see#case#for#full#text#of#VFA'

' The'Present'Action' • Via!these!consolidated!petitions!for!certiorari!and!prohibition,!petitioners!8!as! legislators,!non8governmental!organizations,!citizens!and!taxpayers!8!assail!the! constitutionality!of!the!VFA!and!impute!to!herein!respondents!grave!abuse!of! discretion!in!ratifying!the!agreement.' ' ISSUES*:' 1. Do!petitioners!have!legal!standing!as!concerned!citizens,!taxpayers,!or!legislators!to! question!the!constitutionality!of!the!VFA?' 2. Is!the!VFA!governed!by!the!provisions!of!Section!21,!Article!VII!or!of!Section!25,! Article!XVIII!of!the!Constitution?! 3. Does!the!VFA!constitute!an!abdication!of!Philippine!sovereignty?! a.!Are!Philippine!courts!deprived!of!their!jurisdiction!to!hear!and!try!offenses! committed!by!US!military!personnel?! b.!Is!the!Supreme!Court!deprived!of!its!jurisdiction!over!offenses!punishable! by!reclusion!perpetua!or!higher?! 4. Does!the!VFA!violate:! a.!the!equal!protection!clause!under!Section!1,!Article!III!of!the!Constitution?! b.!the!Prohibition!against!nuclear!weapons!under!Article!II,!Section!8?! c.!Section! 28! (4),! Article! VI! of! the! Constitution! granting! the! exemption! from! taxes!and!duties!for!the!equipment,!materials!supplies!and!other!properties! imported!into!or!acquired!in!the!Philippines!by,!or!on!behalf,!of!the!US!Armed! Forces?! HELD/RATIO:' 1. Petitioners'Bayan'Muna,'etc.'have'no'standing.!!! • A!party!bringing!a!suit!challenging!the!Constitutionality!of!a!law!must!show!not!only! that!the!law!is!invalid,!but!that!he!has!sustained!or!is!in!immediate!danger!of! sustaining!some!direct!injury!as!a!result!of!its!enforcement,!and!not!merely!that!he! suffers!thereby!in!some!indefinite!way.!!Petitioners!have!failed!to!show!that!they! are!in!any!danger!of!direct!injury!as!a!result!of!the!VFA.! • As!taxpayers,!they!have!failed!to!establish!that!the!VFA!involves!the!exercise!by! Congress!of!its!taxing!or!spending!powers.!A!taxpayer’s!suit!refers!to!a!case!where! the!act!complained!of!directly!involves!the!illegal!disbursement!of!public!funds!

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derived!from!taxation.!!Before!he!can!invoke!the!power!of!judicial!review,!he!must! specifically!prove!that!he!has!sufficient!interest!in!preventing!the!illegal! expenditure!of!money!raised!by!taxation!and!that!he!will!sustain!a!direct!injury!as!a! result!of!the!enforcement!of!the!questioned!statute!or!contract.!It!is!not!sufficient! that!he!has!merely!a!general!interest!common!to!all!members!of!the! public.!!Clearly,!inasmuch!as!no!public!funds!raised!by!taxation!are!involved!in!this! case,!and!in!the!absence!of!any!allegation!by!petitioners!that!public!funds!are!being! misspent!or!illegally!expended,!petitioners,!as!taxpayers,!have!no!legal!standing!to! assail!the!legality!of!the!VFA.! Similarly,!the!petitioner8legislators!(Tanada,!Arroyo,!etc.)!do!not!possess!the! requisite!locus!standi!to!sue.!In!the!absence!of!a!clear!showing!of!any!direct!injury! to!their!person!or!to!the!institution!to!which!they!belong,!they!cannot!sue.!!The! Integrated!Bar!of!the!Philippines!(IBP)!is!also!stripped!of!standing!in!these!cases.! The!IBP!lacks!the!legal!capacity!to!bring!this!suit!in!the!absence!of!a!board! resolution!from!its!Board!of!Governors!authorizing!its!National!President!to! commence!the!present!action.! Notwithstanding,'in'view'of'the'paramount'importance'and'the'constitutional' significance'of'the'issues'raised,'the'Court'may'brush'aside'the'procedural'barrier' and'takes'cognizance'of'the'petitions.' ' APPLICABLE'CONSTITUTIONAL'PROVISION' ' Petitioners!argue!that!Section!25,!Article!XVIII!is!applicable!considering!that!the! VFA!has!for!its!subject!the!presence!of!foreign!military!troops!in!the!Philippines.!' Respondents,!on!the!contrary,!maintain!that!Section!21,!Article!VII!should!apply! inasmuch!as!the!VFA!is!not!a!basing!arrangement!but!an!agreement!which!involves! merely!the!temporary!visits!of!United!States!personnel!engaged!in!joint!military! exercises.' o Section'21,'Article'VII88!No!treaty!or!international!agreement!shall!be! valid!and!effective!unless!concurred!in!by!at!least!two8thirds!of!all!the! Members!of!the!Senate.' o Section'25,'Article'XVIII!–after!the!expiration!in!1991!of!the!Agreement! between!the!Republic!of!the!Philippines!and!the!United!States!of!America! concerning!Military!Bases,!foreign!military!bases,!troops,!or!facilities!shall! not!be!allowed!in!the!Philippines!except!under!a!treaty!duly!concurred!in! by!the!senate!and,!when!the!Congress!so!requires,!ratified!by!a!majority! of!the!votes!cast!by!the!people!in!a!national!referendum!held!for!that! purpose,!and!recognized!as!a!treaty!by!the!other!contracting!State.”' SC:'Section!25,!Art!XVIII,!not!section!21,!Art.!VII,!applies,!as!the!VFA!involves!the! presence!of!foreign!military!troops!in!the!Philippines.'

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The!Constitution!contains!two!provisions!requiring!the!concurrence!of! the!Senate!on!treaties!or!international!agreements.!Section!21,!Article!VII! reads:!“[n]o!treaty!or!international!agreement!shall!be!valid!and!effective! unless!concurred!in!by!at!least!two8thirds!of!all!the!Members!of!the! Senate.”!Section!25,!Article!XVIII,!provides:”[a]fter!the!expiration!in!1991! of!the!Agreement!between!the!Republic!of!the!Philippines!and!the!United! States!of!America!concerning!Military!Bases,!foreign!military!bases,! troops,!or!facilities!shall!not!be!allowed!in!the!Philippines!except!under!a! treaty!duly!concurred!in!by!the!Senate!and,!when!the!Congress!so! requires,!ratified!by!a!majority!of!the!votes!cast!by!the!people!in!a! national!referendum!held!for!that!purpose,!and!recognized!as!a!treaty!by! the!other!contracting!State.”! Section'21,'Article'VII'deals'with'treaties'or'international'agreements'in' general,!in!which!case,!the!concurrence!of!at!least!two8thirds!(2/3)!of!all! the!Members!of!the!Senate!is!required!to!make!the!treaty!valid!and! binding!to!the!Philippines.!This!provision!lays!down!the!general!rule!on! treaties.!All#treaties,#regardless#of#subject#matter,#coverage,#or#particular# designation#or#appellation,#requires#the#concurrence#of#the#Senate#to#be# valid#and#effective.# In'contrast,'Section'25,'Article'XVIII'is'a'special'provision'that'applies'to' treaties'which'involve'the'presence'of'foreign'military'bases,'troops'or' facilities'in'the'Philippines.!Under!this!provision,!the!concurrence!of!the! Senate!is!only!one!of!the!requisites!to!render!compliance!with!the! constitutional!requirements!and!to!consider!the!agreement!binding!on! the!Philippines.!Sec#25#further#requires#that#“foreign#military#bases,# troops,#or#facilities”#may#be#allowed#in#the#Philippines#only#by#virtue#of#a# treaty#duly#concurred#in#by#the#Senate,#ratified#by#a#majority#of#the#votes# cast#in#a#national#referendum#held#for#that#purpose#if#so#required#by# Congress,#and#recognized#as#such#by#the#other#contracting#state.# On!the!whole,!the!VFA'is'an'agreement'which'defines'the'treatment'of' US'troops'visiting'the'Philippines.!It!provides!for!the!guidelines!to!govern! such!visits!of!military!personnel,!and!further!defines!the!rights!of!the!US! and!RP!government!in!the!matter!of!criminal!jurisdiction,!movement!of! vessel!and!aircraft,!import!and!export!of!equipment,!materials!and! supplies.! Undoubtedly,!Section'25,'Article'XVIII,'which'specifically'deals'with' treaties'involving'foreign'military'bases,'troops,'or'facilities,'should' apply'in'the'instant'case.!To!a!certain!extent,!however,!the!provisions!of! Section'21,'Article'VII'will'find'applicability!with!regard!to!determining!

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the!number'of'votes!required!to!obtain!the!valid!concurrence!of!the! Senate.! o It!is!specious!to!argue!that!Section!25,!Article!XVIII!is!inapplicable!to!mere! transient!agreements!for!the!reason!that!there!is!no!permanent!placing! of!structure!for!the!establishment!of!a!military!base.!The!Constitution! makes!no!distinction!between!“transient”!and!“permanent”.!We!find! nothing!in!Section!25,!Article!XVIII!that!requires!foreign!troops!or!facilities! to!be!stationed!or!placed!permanently!in!the!Philippines.!!When!no! distinction!is!made!by!law;!the!Court!should!not!distinguish.!We'do'not' subscribe'to'the'argument'that'Section'25,'Article'XVIII'is'not' controlling'since'no'foreign'military'bases,'but'merely'foreign'troops' and'facilities,'are'involved'in'the'VFA.!The!proscription!covers!“foreign! military!bases,!troops,!or!facilities.”!Stated!differently,!this!prohibition!is! not!limited!to!the!entry!of!troops!and!facilities!without!any!foreign!bases! being!established.!The'clause'does'not'refer'to'“foreign'military'bases,' troops,'or'facilities”'collectively'but!treats!them!as!separate!and! independent!subjects,!such!that!three!different!situations!!are! contemplated!—!a!military!treaty!the!subject!of!which!could!be!either!(a)! foreign!bases,!(b)!foreign!troops,!or!(c)!foreign!facilities!—'any'of'the' three'standing'alone'places'it'under'the'coverage'of'Section'25,'Article' XVIII.' ' WERE'REQUIRMENTS'OF'SEC'25,'ART'XVIII'COMPLIED'WHEN'SENATE'GAVE' CONCURRENCE'TO'VFA?'YES' ' Section!25,!Article!XVIII!disallows!foreign!military!bases,!troops,!or!facilities!in!the! country,!unless!the!following!conditions!are!sufficiently!met:!(a)!it!must!be!under!a! treaty;!(b)!the!treaty!must!be!duly!concurred!in!by!the!Senate!and,!when!so! required!by!Congress,!ratified!by!a!majority!of!the!votes!cast!by!the!people!in!a! national!referendum;!and!(c)!recognized!as!a!treaty!by!the!other!contracting! state.!!There'is'no'dispute'as'to'the'presence'of'the'first'two'requisites'in'the'case' of'the'VFA.'The!concurrence!handed!by!the!Senate!through!Resolution!No.!18!is!in! accordance!with!the!Constitution,!as!there!were!at!least!16!Senators!that! concurred.! As'to'condition'(c),!the!Court!held!that!the!phrase!“recognized'as'a'treaty”!means! that!the!other!contracting!party!accepts!or!acknowledges!the!agreement!as!a! treaty.!To'require'the'US'to'submit'the'VFA'to'the'US'Senate'for'concurrence' pursuant'to'its'Constitution,'is'to'accord'strict'meaning'to'the'phrase.!Well8 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.!

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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.! a. A'treaty,!as!defined!by!the!Vienna!Convention!on!the!Law!of!Treaties,!is!“an! international!instrument!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.”!There!are!many! other!terms!used!for!a!treaty!or!international!agreement,!some!of!which!are:!act,# protocol,#agreement,#compromis#d’#arbitrage,#concordat,#convention,#declaration,# exchange#of#notes,#pact,#statute,#charter#and#modus#vivendi.!All!writers,!from!Hugo! Grotius!onward,!have!pointed!out!that!the!names!or!titles!of!international! agreements!included!under!the!general!term!treaty*have!little!or!no!legal! significance.!Certain!terms!are!useful,!but!they!furnish!little!more!than!mere! description.! b. Article'2(2)'of!the!Vienna!Convention!provides!that!“the!provisions!of!paragraph!1! regarding!the!use!of!terms!in!the!present!Convention!are!without!prejudice!to!the! use!of!those!terms,!or!to!the!meanings!which!may!be!given!to!them!in!the!internal! law! of! the! State.”! Thus,' 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'International'law'continues'to'make'no'distinction'between'treaties'and' executive'agreements:'they'are'equally'binding'obligations'upon'nations.'

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The'records'reveal'that'the'US'Government,'through'Ambassador'Hubbard,'has' stated'that'the'US'has'fully'committed'to'living'up'to'the'terms'of'the'VFA.!For!as! long!as!the!US!accepts!or!acknowledges!the!VFA!as!a!treaty,!and!binds!itself!further! to!comply!with!its!treaty!obligations,!there!is!indeed!compliance!with!the!mandate! of!the!Constitution.! Worth'stressing'too,!is!that!the!ratification!by!the!President!of!the!VFA,!and!the! concurrence!of!the!Senate,!should!be!taken!as!a!clear!and!unequivocal!expression! of!our!nation’s!consent!to!be!bound!by!said!treaty,!with!the!concomitant!duty!to! uphold!the!obligations!and!responsibilities!embodied!thereunder.!!Ratification!is! generally!held!to!be!an!executive!act,!undertaken!by!the!head!of!the!state,!through! which!the!formal!acceptance!of!the!treaty!is!proclaimed.!A!State!may!provide!in!its! domestic!legislation!the!process!of!ratification!of!a!treaty.!In!our!jurisdiction,!the! power!to!ratify!is!vested!in!the!President!and!not,!as!commonly!believed,!in!the! legislature.!The!role!of!the!Senate!is!limited!only!to!giving!or!withholding!its! consent,!or!concurrence,!to!the!ratification.! With!the!ratification!of!the!VFA!it!now!becomes!obligatory!and!incumbent!on!our! part,!under!principles!of!international!law!(pacta!sunt!servanda),!to!be!bound!by! the!terms!of!the!agreement.!Thus,!no!less!than!Section!2,!Article!II!declares!that!the!

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

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ON'GRAVE'ABUSE'OF'DISCRETION! As!regards!the!power!to!enter!into!treaties!or!international!agreements,!the! Constitution!vests!the!same!in!the!President,!subject!only!to!the!concurrence!of!at! least!two8thirds!vote!of!all!the!members!of!the!Senate.!In!this!light,!the!negotiation! of!the!VFA!and!the!subsequent!ratification!of!the!agreement!are!exclusive!acts! which!pertain!solely!to!the!President,!in!the!lawful!exercise!of!his!vast!executive! and!diplomatic!powers!granted!him!no!less!than!by!the!fundamental!law!itself.!Into# the#field#of#negotiation#the#Senate#cannot#intrude,#and#Congress#itself#is#powerless# to#invade#it' • onsequently,!the!acts!or!judgment!calls!of!the!President!involving!the!VFA8 specifically!the!acts!of!ratification!and!entering!into!a!treaty!and!those!necessary!or! incidental!to!the!exercise!of!such!principal!acts!8!squarely!fall!within!the!sphere!of! his!constitutional!powers!and!thus,!may!not!be!validly!struck!down,!much!less! calibrated!by!this!Court,!in!the!absence!of!clear!showing!of!grave!abuse!of!power!or! discretion.' • Even!if!he!erred!in!submitting!the!VFA!to!the!Senate!for!concurrence!under!the! provisions!of!Section!21!of!Article!VII,!instead!of!Section!25!of!Article!XVIII!of!the! Constitution,!still,!the!President!may!not!be!faulted!or!scarred,!much!less!be! adjudged!guilty!of!committing!an!abuse!of!discretion!in!some!patent,!gross,!and! capricious!manner.' • Corollarily,!the!Senate,!in!the!exercise!of!its!discretion!and!acting!within!the!limits! of!such!power,!may!not!be!similarly!faulted!for!having!simply!performed!a!task! conferred!and!sanctioned!by!no!less!than!the!fundamental!law.' • For!the!role!of!the!Senate!in!relation!to!treaties!is!essentially!legislative!in! [57] character; !the!Senate,!as!an!independent!body!possessed!of!its!own!erudite! mind,!has!the!prerogative!to!either!accept!or!reject!the!proposed!agreement,!and! whatever!action!it!takes!in!the!exercise!of!its!wide!latitude!of!discretion,!pertains!to! the!wisdom!rather!than!the!legality!of!the!act.!' • True!enough,!rudimentary!is!the!principle!that!matters!pertaining!to!the!wisdom!of! a!legislative!act!are!beyond!the!ambit!and!province!of!the!courts!to!inquire.' • In!fine,!absent!any!clear!showing!of!grave!abuse!of!discretion!on!the!part!of! respondents,!this!Court8!as!the!final!arbiter!of!legal!controversies!and!staunch! sentinel!of!the!rights!of!the!people!8!is!then!without!power!to!conduct!an!incursion! and!meddle!with!such!affairs!purely!executive!and!legislative!in!character!and! nature.!' *Issues'as'enumerated'in'the'case.'

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NOTE:'SC'did'not'answer'issues'no.'3a,b,'and'4a,'b,'c' ' WHEREFORE,! in! light! of! the! foregoing! disquisitions,! the! instant! petitions! are! hereby! DISMISSED.! SO'ORDERED.'

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2. Lim'v.'Executive'Secretary'(RC)' Topic:!Treaty!Interpretation,!examine!the!! Treaties/Laws:! • Mutual!Defense!Treaty!(MDT)!–!Bases!Agreement! • Visiting!Forces!Agreement!(VFA)!–!replaced!the!Bases!Agreement!when!it!expired! • Vienna!Convention!on!the!Law!of!Treaties!(just!Articles!31!and!32,!in!ratio!part)! • UN!Charter!! • Philippine!Constitution! ' G.R.'No.'151445''''''April'11,'2002! Petitioner:! ARTHUR' D.' LIM' and' PAULINO' R.' ERSANDO,! SANLAKAS' and' PARTIDO' NG' MANGGAGAWA,!petitioner8intervenors! Respondents:! HONORABLE' EXECUTIVE' SECRETARY' as' alter' ego' of' HER' EXCELLENCEY' GLORIA' MACAPAGALdARROYO,' and' HONORABLE' ANGELO' REYES' in' his' capacity' as' Secretary'of'National'Defense' ! FACTS:! • This!case!involves!a!petition!for!certiorari!and!prohibition!as!well!as!a!petition8in8 intervention,!praying!that!respondents'be'restrained'from'proceeding'with'the'sod called' "Balikatan' 02d1"! and! that! after! due! notice! and! hearing,! that! judgment! be! rendered! issuing! a! permanent! writ! of! injunction! and/or! prohibition' against' the' deployment' of' U.S.' troops' in' Basilan' and' Mindanao' for' being' illegal' and' in' violation'of'the'Constitution.! • Beginning!January!2002,!personnel!from!the!armed!forces!of!the!United!States!of! America! started! arriving! in! Mindanao! to! take! part,! in! conjunction! with! the! Philippine!military,!in!"Balikatan!0281."!These!so8called!"Balikatan"!exercises!are!the! largest! combined' training' operations' involving' Filipino' and' American' troops.! In! theory,!they!are!a!simulation'of'joint'military'maneuvers'pursuant'to'the'Mutual' Defense'Treaty,!a!bilateral!defense!agreement!entered!into!by!the!Philippines!and! the!United!States!in!1951.! • Prior! to! 2002,! the! last! "Balikatan"! was! held! in! 1995.! In! the! meantime,! the! respective! governments! of! the! two! countries! agreed! to! hold! joint! exercises! on! a! reduced! scale.! The! lack! of! consensus! was! eventually! cured! when! the! two! nations!

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concluded!the!Visiting!Forces!Agreement!(V!FA)!in!1999.! The! entry! of! American! troops! into! Philippine! soil! is! proximately' rooted' in' the' international' antidterrorism' campaign' declared' by' President' George' W.' Bush! in! reaction!to!the!tragic!events!that!occurred!on!9/11.!! On! February! 1,! 2002,! petitioners! Arthur! D.! Lim! and! Paulino! P.! Ersando! filed! this! petition! for! certiorari! and! prohibition,! attacking! the! constitutionality! of! the! joint! exercise! in! their! capacity! as! citizens,! lawyers! and! taxpayers.! They! were! joined! subsequently! by! SANLAKAS! and! PARTIDO! NG! MANGGAGAWA,! both! party8Iist! organizations!whose!members!reside!in!Zamboanga!and!Sulu,!who!filed!a!petition8 in8intervention!on!February!11,!2002.! On!February!71!2002!the!Senate!conducted!a!hearing!on!the!"Balikatan"!exercise! wherein!Vice8President!Teofisto!T.!Guingona,!Jr.,!who!is!concurrently!Secretary!of! Foreign.!Affairs,!presented!the!Draft!Terms!of!Reference!(TOR).!Five!days!later,!he! approved! the! TOR,! which! we! quote! hereunder:! (at! end! of! digest! if! you! want! to! look)!

! ISSUE/HELD:! I.!W/N!petitioners!have!standing?!YES'(minor'issue'in'grey)' II.!W/N!the!Balikatan!Exercises!fall!within!the!purview!of!the!Visiting!Forces!Agreement?!YES' III.!W/N!VFA!sanctions!actual!combat?!NO' ! ! RATIO:! I.!STANDING:!YES'THEY'HAVE'STANDING'bec.'of'the'importance'of'the'issue' • Anent! their! locus# standi,# the! Solicitor! General! argues! that! first,# they! may! not! file! suit! in! their! capacities! as,! taxpayers! inasmuch! as! it! has! not! been! shown! that! "Balikatan! 0281! "! involves! the! exercise! of! Congress'! taxing! or! spending! powers.! Second,# their! being! lawyers! does! not! invest! them! with! sufficient! personality! to! initiate!the!case,!citing!our!ruling!in!Integrated* Bar* of* the* Philippines* v.* Zamora.# Third,!Lim!and!Ersando!have!failed!to!demonstrate!the!requisite!showing!of!direct! personal!injury.!We'agree.! • It!is!also!contended!that!the!petitioners!are!indulging!in!speculation.!The!Terms!of! Reference! are! clear! as! to! the! extent! and! duration! of! "Balikatan! 0281,"! the! issues! raised! by! petitioners! are! premature,! as! they! are! based! only! on! a! fear! of! future# violation!of!the!Terms!of!Reference.!Even!petitioners'!resort!to!a!special!civil!action! for!certiorari!is!assailed!on!the!ground!that!the!writ!may!only!issue!on!the!basis!of! established!facts.! • Given'the'primordial'importance'of'the'issue'involved,'it'will'suffice'to'reiterate' our'view'on'this'point'in'a'related'case:' o In!view!of!the!paramount!importance!and!the!constitutional!significance!

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of!the!issues!raised!in!the!petitions,!this!Court,!in!the!exercise!of!its!sound! discretion,!brushes!aside!the!procedural!barrier!and!takes!cognizance!of! the!petitions,! o Gonzales' vs.' COMELEC,' Daza' vs.' Singson,' and' Basco' vs.' Phil,' Amusement'and'Gaming'Corporation,!where!we!emphatically!held:! Considering!however!the!importance!to!the!public!of!the!case!at!bar,!and! in! keeping! with! the! Court's' duty,' under' the' 1987' Constitution,' to' determine'whether'or'not'the'other'branches'of'the'government'have' kept'themselves'within'the'limits'of'the'Constitution'and'the'laws'that' they' have' not' abused' the' discretion' given' to' them,! the! Court! has! brushed! aside! technicalities! of! procedure! and! has! taken! cognizance! of! this!petition.!xxx'! o Kilosbayan' vs.' Guingona,' Jr.,! this! Court! ruled! that! in! cases! of! transcendental! importance,! the' Court' may' relax' the' standing' requirements'and'allow'a'suit'to'prosper'even'where'there'is'no'direct' injury'to'the'party'claiming'the'right'of'judicial'review.! Primary'concern'of'this'case'is'the'INTERPRETATION'of'the'VFA.!

• ! II.!FALL!WITHIN!VFA?!YES' • At! any! rate,! petitioners'! concerns! on! the! lack! of! any! specific! regulation! on! the! latitude!of!activity!US!personnel!may!undertake!and!the!duration!of!their!stay!has! been!addressed!in!the!Terms!of!Reference.! • The! first! of! these! is! the! Mutual' Defense' Treaty! (MDT,! for! brevity).! The! MDT! has! been!described!as!the!"core"!of!the!defense!relationship!between!the!Philippines! and! its! traditional! ally,! the! United! States.! Its! aim! is! to! enhance! the! strategic! and! technological! capabilities! of! our! armed! forces! through! joint! training! with! its! American!counterparts;!the!"Balikatan"!is!the!largest!such!training!exercise!directly! supporting!the!MDT's!objectives.!It!is!this'treaty'to'which'the'VFA'adverts'and'the' obligations'thereunder'which'it'seeks'to'reaffirm.' • The!lapse!of!the!USdPhilippine' Bases' Agreement' in' 1992' and' the' decision' not' to' renew'it'created'a'vacuum'in'USdPhilippine'defense'relations,'that'is,'until'it'was' replaced' by' the' Visiting' Forces' Agreement.! On! October! 10,! 2000,! by! a! vote! of! eleven!to!three,!this!Court!upheld!the!validity!of!the!VFA.!! • The!VFA!provides!the!"regulatory!mechanism"!by!which!"United!States!military!and! civilian! personnel! [may! visit]! temporarily! in! the! Philippines! in! connection! with! activities! approved! by! the! Philippine! Government."! It! is! the! VFA! which! gives' continued'relevance'to'the'MDT'despite'the'passage'of'years.'Its'primary'goal'is' to' facilitate' the' promotion' of' optimal' cooperation' between' American' and' Philippine'military'forces!in!the!event!of!an!attack!by!a!common!foe.! • The!VFA!permits!United!States!personnel!to!engage,!on!an!impermanent!basis,!in!

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"activities,"' the' exact' meaning' of' which' was' left' undefined.! (MAIN' PROBLEM)! The!expression!is!ambiguous,!permitting!a!wide!scope!of!undertakings!subject!only! to!the!approval!of!the!Philippine!government.!The!sole!encumbrance!placed!on!its! definition!is!couched!in!the!negative,!in!that!United!States!personnel!must!"abstain' from'any'activity'inconsistent*with*the*spirit*of'this*agreement,*and*in*particular,* from*any*political*activity."#All!other!activities,!in!other!words,!are!fair!game.! We! are! not! left! completely! unaided.! The! Vienna' Convention' on' the' Law' of' Treaties,! which! contains! provisos! governing! interpretations! of! international! agreements,!state:!

•

SECTION!3.!INTERPRETATION!OF!TREATIES! Article*31' General#rule#of#interpretation! 1.! A! treaty! shall! be! interpreted' in' good' faith' ill' accordance' with' the' ordinary' meaning'to'be'given'to'the'tenus'of'the'treaty'in'their'context'and'in'the'light'of' its'object'and'purpose.' 2.! The! context! for! the! purpose! of! the! interpretation! of! a! treaty! shall! comprise,! in! addition!to!the!text,!including!its!preamble!and!annexes:! (a)! any! agreement! relating' to' the' treaty' which' was' made' between' all' the'parties'in'connexion'with'the'conclusion'of'the'treaty;' (b)!any!instrument'which'was'made'by'one'or'more'parties'in'connexion! with!the!conclusion!of!the!treaty!and!accepted'by'the'other'parties'as'an' instrument'related'to'the'party'.' 3.!There!shall!be!taken!into!account,!together!with!the!context:! (a)! any! subsequent' agreement' between' the' parties' regarding' the' interpretation'of'the'treaty!or!the!application!of!its!provisions;! (b)! any' subsequent' practice' in' the' application' of' the' treaty' which' establishes'the'agreement'of'the'parties'regarding'its'interpretation;! (c)! any! relevant' rules' of' international' law' applicable' in' the' relations! between!the!parties.! 4.!A!special!meaning!shall!be!given!to!a!term!if!it!is!established!that!the!parties!so! intended.! * Article*32' Supplementary#means#of#interpretation! Recourse' may' be' had' to' supplementary' means' of' interpretation,' including' the' preparatory'work'of'the'treaty'and'the'circumstances'of'its'conclusion,!in!order!to! confirm! the! meaning! resulting! from! the! application! of! article! 31,! or! to! determine! the!meaning!when!the!interpretation!according!to!article!31!:! (a)!leaves!the!meaning!ambiguous!or!obscure;!or! (b)!leads!to!a!result!which!is!manifestly!absurd!unreasonable.!

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! It'is'clear'from'the'foregoing'that'the'cardinal'rule'of'interpretation'must'involve' an' examination' of' the' text,' which' is' presumed' to' verbalize' the' parties''

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intentions.!The!Convention!likewise!dictates!what!may!be!used!as!aids!to!deduce! the! meaning! of! terms,! which! it! refers! to! as! the! context! of! the! treaty,! as! well! as! other!elements!may!be!taken!into!account!alongside!the!aforesaid!context.!! After!studied!reflection,!it!appeared!farfetched!that!the!ambiguity!surrounding!the! meaning! of! the! word! .'activities"! arose! from! accident.! In! our! view,! it' was' deliberately'made'that'way'to'give'both'parties'a'certain'leeway'in'negotiation.! In! this! manner,! visiting! US! forces! may! sojourn! in! Philippine! territory! for! purposes! other!than!military.!As!conceived,!the!joint!exercises!may!include!training!on!new! techniques!of!patrol!and!surveillance!to!protect!the!nation's!marine!resources,!sea! search8and8rescue!operations!to!assist!vessels!in!distress,!disaster!relief!operations,! civic! action! projects! such! as! the! building! of! school! houses,! medical! and! humanitarian!missions,!and!the!like.!

! III.!WHAT!IS!AUTHORIZED!BY!VFA?!No'combat!'' • Granted!that!"Balikatan!0281"!is!permitted!under!the!terms!of!the!VFA,!what!may! US!forces!legitimately!do!in!furtherance!of!their!aim!to!provide!advice,!assistance! and! training! in! the! global! effort! against! terrorism?! Differently! phrased,! may! American! troops! actually! engage! in! combat! in! Philippine! territory?! The! Terms! of! Reference!are!explicit!enough.!Paragraph'8'of'section'I!stipulates!that!US!exercise! participants!may!not*engage!in!combat'"except*in*self?defense."#! • The!target!of!"Balikatan!0281!I"!the!Abu!Sayyaf,!cannot!reasonably!be!expected!to! sit!idly!while!the!battle!is!brought!to!their!very!doorstep.!They!cannot!be!expected! to!pick!and!choose!their!targets!for!they!will!not!have!the!luxury!of!doing!so.!! • The!indirect!violation!is!actually!petitioners'!worry,!that!in!reality,!"Balikatan!0281!"! is!actually!a!war!principally!conducted!by!the!United!States!government,!and!that! the!provision!on!self8defense!serves!only!as!camouflage!to!conceal!the!true!nature! of!the!exercise.!A!clear!pronouncement!on!this!matter!thereby!becomes!crucial.! • Neither'the'MDT'nor'the'VFA'allow'foreign'troops'to'engage'in'an'offensive'war' on' Philippine' territory.! We! bear! in! mind! the! salutary! proscription! stated! in! the! Charter'of'the'United'Nations,!to!wit:! ! Article!2! The!Organization!and!its!Members,!in!pursuit!of!the!Purposes!stated!in!Article!1,!shall!act! in!accordance!with!the!following!Principles.! xxx!!!!!!xxx!!!!!!xxx!!!!!!xxx! 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.!

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In! the! same! manner,! both' the' Mutual' Defense' Treaty' and' the' Visiting' Forces' Agreement,' as' in' all' other' treaties' and' international' agreements' to' which' the' Philippines'is'a'party,'must'be'read'in'the'context'of'the'1987'Constitution.!Thus,! in!the!Declaration!of!Principles!and!State!Policies,!Article!II,!it!is!provided!that:!

xxx!!!!!!xxx!!!!!!xxx!!!!!!xxx! SEC.! 2.! The! Philippines! renounces! war! as! an! instrument! of! national! policy,! adopts! the! generally! accepted! principles! of! international! law! as! part! of! the! law! of! the! land! and! adheres!to!the!policy!of!peace,!equality,!justice,!freedom,!cooperation,!and!amity!with! all!nations.! xxx!!!!!!xxx!!!!!!xxx!!!!!!xxx! SEC.!7.!The!State!shall!pursue!an!independent!foreign!policy.!In!its!relations!with!other! states! the! paramount! consideration! shall! be! national! sovereignty,! territorial! integrity,! national!interest,!and!the!right!to!self8!determination.! SEC.!8.!The!Philippines,!consistent!with!the!national!interest,!adopts!and!pursues!a!policy! of!freedom!from!nuclear!weapons!in!the!country.! xxx!!!!!!xxx!!!!!!xxx!!!!!!xxx! !

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given!a!standing!equal,!not!superior,!to!national!legislation.! From!the!perspective!of!public!international!law,!a!treaty!is!favored!over!municipal! law!pursuant!to!the!principle!of!pacta#sunt#servanda.#Hence,!"[e]very!treaty!in!force! is! binding! upon! the! parties! to! it! and! must! be! performed! by! them! in! good! faith."! Further,!a!party!to!a!treaty!is!not!allowed!to!"invoke!the!provisions!of!its!internal! law!as!justification!for!its!failure!to!perform!a!treaty."! Our!Constitution!espouses!the!opposing!view.!Witness!our!jurisdiction!as!I!stated!in! section!5!of!Article!VIII:!

! The!Supreme!Court!shall!have!the!following!powers:! xxx!!!!!!xxx!!!!!!xxx!!!!!!xxx! (2)! Review,! revise,! reverse,! modify,! or! affirm! on! appeal! or! certiorari,# as! the! law! or! the! Rules!of!Court!may!provide,!final!judgments!and!order!of!lower!courts!in:! (A)! All! cases! in! which! the! constitutionality# or# validity# of# any# treaty,# international# or# executive# agreement,# law,! presidential# decree,! proclamation,! order,! instruction,! ordinance,!or!regulation!is!in!question.!

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The!Constitution!also!regulates!the!foreign!relations!powers!of!the!Chief!Executive! when! it! provides! that! "[n]o! treaty! or! international! agreement! shall! be! valid! and! effective! unless! concurred! in! by! at! least! two8thirds! of! all! the! members! of! the! Senate."!Even!more!pointedly,!the!Transitory'Provisions'state:!

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

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The! aforequoted! provisions! betray! a! marked! antipathy! towards! foreign! military! presence! in! the! country,! or! of! foreign! influence! in! general.! Hence,! foreign! troops! are!allowed!entry!into!the!Philippines!only!by!way!of!direct!exception.!! A!rather!recent!formulation!of!the!relation!of!international!law!visKaKvis#municipal! law!was!expressed!in!Philip*Morris,*Inc.*v.*Court*of'Appeals,!to!wit:! o xxx!Withal,!the!fact!that!international!law!has!been!made!part!of!the!law! of!the!land!does!not!by!any!means!imply!the!primacy!of!international!law! over! national! law! in! the! municipal! sphere.! Under! the! doctrine! of! incorporation!as!applied!in!most!countries,!rules!of!international!law!are!

•

In!Ichong*v.*Hernandez,#we!ruled!that!the!provisions'of'a'treaty'are'always'subject' to' qualification' or' amendment' by' a' subsequent' law,' or' that' it' is' subject' to' the' police'power'of'the'State.!! In! Gonzales* v.* Hechanova,! the! Court! has! ruled! our! Constitution! authorizes! the! nullification! of! a! treaty,! not! only! when! it! conflicts! with! the! fundamental! law,! but,# also,#when#it#runs#counter#to#an#act#of#Congress.! The! foregoing! premises! leave! us! no' doubt' that' US' forces' are' prohibited' /' from' engaging'in'an'offensive'war'on'Philippine'territory.' Yet'a'nagging'question'remains:'are'American'troops'actively'engaged'in'combat' alongside' Filipino' soldiers' under' the' guise' of' an' alleged' training' and' assistance' exercise?! Contrary! to! what! petitioners! would! have! us! do,! we! cannot! take! judicial! notice! of! the! events! transpiring! down! south,! as! reported! from! the! saturation! coverage! of! the! media.! As! a! rule,! we' do' not' take' cognizance' of' newspaper' or' electronic'reports'per*se,*not'because'of'any'issue'as'to'their'truth,'accuracy,'or' impartiality,' but' for' the' simple' reason' that' facts' must' be' established' in' accordance'with'the'rules'of'evidence.!! It!is!all!too!apparent!that!the!determination!thereof!involves!basically!a!question#of# fact.# On! this! point,! we! must! concur! with! the! Solicitor! General! that! the! present! subject!matter!is!not!a!fit!topic!for!a!special!civil!action!for!certiorari.#We!have!held! in!too!many!instances!that!questions!of!fact!are!not!entertained!in!such!a!remedy.! The! sole! object! of! the! writ! is! to! correct! errors! of! jurisdiction! or! grave! abuse! of! discretion:! The! phrase! "grave! abuse! of! discretion"! has! a! precise! meaning! in! law,!

7!


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denoting!abuse!of!discretion!"too!patent!and!gross!as!to!amount!to!an!evasion!of!a! positive! duty,! or! a! virtual! refusal! to! perform! the! duty! enjoined! or! act! in! contemplation!of!law,!or!where!the!power!is!exercised!in!an!arbitrary!and!despotic! manner!by!reason!of!passion!and!personal!hostility."! In!this!connection,!it!will!not!be!amiss!to!add!that!the!Supreme!Court!is!not!a!trier! of!facts.! From!the!facts!obtaining,!we!find!that!the!holding!of!"Balikatan!0281"!joint!military! exercise!has!not!intruded!into!that!penumbra!of!error!that!would!otherwise!call!for! correction! on! our! part.! In! other! words,! respondents! in! the! case! at! bar! have! not! committed!grave!abuse!of!discretion!amounting!to!lack!or!excess!of!jurisdiction.!

' WHEREFORE,! the! petition! and! the! petition8in8intervention! are! hereby! DISMISSED! without! prejudice! to! the! filing! of! a! new! petition! sufficient! in! form! and! substance! in! the! proper! Regional!Trial!Court.! SO'ORDERED.!

! THIS!IS!THE!VFA:! I.!POLICY!LEVEL! 1.! The! Exercise! shall! be! consistent! with! the! Philippine! Constitution! and! all! its! activities! shall! be! in! consonance!with!the!laws!of!the!land!and!the!provisions!of!the!RP8US!Visiting!Forces!Agreement!(VFA).! 2.!The!conduct!of!this!training!Exercise!is!in!accordance!with!pertinent!United!Nations!resolutions!against! global!terrorism!as!understood!by!the!respective!parties.! 3.! No! permanent! US! basing! and! support! facilities! shall! be! established.! Temporary! structures! such! as! those!for!troop!billeting,!classroom!instruction!and!messing!may!be!set!up!for!use!by!RP!and!US!Forces! during!the!Exercise.! 4.!The!Exercise!shall!be!implemented!jointly!by!RP!and!US!Exercise!Co8Directors!under!the!authority!of! the!Chief!of!Staff,!AFP.!In!no!instance!will!US!Forces!operate!independently!during!field!training!exercises! (FTX).!AFP!and!US!Unit!Commanders!will!retain!command!over!their!respective!forces!under!the!overall! authority!of!the!Exercise!Co8Directors.!RP!and!US!participants!shall!comply!with!operational!instructions! of!the!AFP!during!the!FTX.! 5.!The!exercise!shall!be!conducted!and!completed!within!a!period!of!not!more!than!six!months,!with!the! projected!participation!of!660!US!personnel!and!3,800!RP!Forces.!The!Chief!of!Staff,!AFP!shall!direct!the! Exercise! Co8Directors! to! wind! up! and! terminate! the! Exercise! and! other! activities! within! the! six! month! Exercise!period.! 6.! The! Exercise! is! a! mutual! counter8terrorism! advising,! assisting! and! training! Exercise! relative! to! Philippine! efforts! against! the! ASG,! and! will! be! conducted! on! the! Island! of! Basilan.! Further! advising,! assisting! and! training! exercises! shall! be! conducted! in! Malagutay! and! the! Zamboanga! area.! Related! activities!in!Cebu!will!be!for!support!of!the!Exercise.! 7.! Only! 160! US! Forces! organized! in! 128man! Special! Forces! Teams! shall! be! deployed! with! AFP! field,! commanders.!The!US!teams!shall!remain!at!the!Battalion!Headquarters!and,!when!approved,!Company! Tactical!headquarters!where!they!can!observe!and!assess!the!performance!of!the!AFP!Forces.! 8.!US!exercise!participants!shall!not!engage!in!combat,!without!prejudice!to!their!right!of!self8defense.! 9.! These! terms! of! Reference! are! for! purposes! of! this! Exercise! only! and! do! not! create! additional! legal!

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obligations!between!the!US!Government!and!the!Republic!of!the!Philippines.! ! II.!EXERCISE!LEVEL! 1.!TRAINING! a.!The!Exercise!shall!involve!the!conduct!of!mutual!military!assisting,!advising!and!training!of!RP!and!US! Forces! with! the! primary! objective! of! enhancing! the! operational! capabilities! of! both! forces! to! combat! terrorism.! b.!At!no!time!shall!US!Forces!operate!independently!within!RP!territory.! c.!Flight!plans!of!all!aircraft!involved!in!the!exercise!will!comply!with!the!local!air!traffic!regulations.! 2.!ADMINISTRATION!&!LOGISTICS! a.! RP! and! US! participants! shall! be! given! a! country! and! area! briefing! at! the! start! of! the! Exercise.! This! briefing!shall!acquaint!US!Forces!on!the!culture!and!sensitivities!of!the!Filipinos!and!the!provisions!of!the! VF!A.!The!briefing!shall!also!promote!the!full!cooperation!on!the!part!of!the!RP!and!US!participants!for! the!successful!conduct!of!the!Exercise.! b.!RP!and!US!participating!forces!may!share,!in!accordance!with!their!respective!laws!and!regulations,!in! the!use!of!their!resources,!equipment!and!other!assets.!They!will!use!their!respective!logistics!channels.! c.!Medical!evaluation!shall!be!jointly!planned!and!executed!utilizing!RP!and!US!assets!and!resources.! d.!Legal!liaison!officers!from!each!respective!party!shall!be!appointed!by!the!Exercise!Directors.! 3.!PUBLIC!AFFAIRS! a.!Combined!RP8US!Information!Bureaus!shall!be!established!at!the!Exercise!Directorate!in!Zamboanga! City!and!at!GHQ,!AFP!in!Camp!Aguinaldo,!Quezon!City.! b.! Local! media! relations! will! be! the! concern! of! the! AFP! and! all! public! affairs! guidelines! shall! be! jointly! developed!by!RP!and!US!Forces.! c.! Socio8Economic! Assistance! Projects! shall! be! planned! and! executed! jointly! by! RP! and! US! Forces! in! accordance! with! their! respective! laws! and! regulations,! and! in! consultation! with! community! and! local! government!officials.! Contemporaneously,!Assistant!Secretary!for!American!Affairs!Minerva!Jean!A.!Falcon!and!United!States! Charge#d'#Affaires#Robert!Fitts!signed!the!Agreed!Minutes!of!the!discussion!between!the!Vice8President! 4 and!Assistant!Secretary!Kelly. !

!

3. Pimentel'v.'Executive'Secretary'(JG)' TOPIC:!Treaty!Ratification;!the!power!to!ratify!a!treaty!is!vested!in!the!President,!subject!to! the!concurrence!of!the!Senate! ! Treaties/Laws:' • Rome!Statute! • Section!21,!Article!VII!of!the!1987!Constitution! • Executive! Order! No.! 459! –! Guidelines! in! the! Negotiation! of! International! Agreements!and!Its!Ratification! ! G.R.!No.:!158088! !

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Petitioners:! Senator! Aquilino! Pimentel,! Jr.,! Rep.! Etta! Rosales,! Philippine! Coalition! For! The! Establishment! Of! The! International!Criminal! Court,! Task! Force! Detainees! Of! The! Philippines,!Families! Of! Victims! Of! Involuntary! Disappearances,! Bianca! Hacintha! R.! Roque,! Harrison! Jacob! R.! Roque,!Ahmed! Paglinawan,! Ron! P.! Salo,!! Leavides! G.! Domingo,! Edgardo!Carlo!Vistan,!Noel!Villaroman,!Celeste!Cembrano,!Liza!Abiera,!Jaime!Arroyo,!Marwil! Llasos,!!Cristina!Atendido,!Israfel!Fagela,!And!Romel!Bagares,!!!! ! Respondents:! Office! Of! The! Executive! Secretary,! represented! by! Hon.! Alberto! Romulo,! and! the!Department!Of!Foreign!Affairs,!represented!by!Hon.!Blas!Ople!! July!6,!2005! Ponente:!Puno,!J.!! FACTS:' • The!Rome' Statute!established!the!International!Criminal!Court,!which!“shall!have! the! power! to! exercise! its! jurisdiction! over! persons! for! the! most! serious! crimes! of! international! concern! xxx! and! shall! be! complementary! to! the! national! criminal! jurisdictions.”!! o Its! jurisdiction! covers! the! crime! of! genocide,! crimes! against! humanity,! war!crimes!and!the!crime!of!aggression!as!defined!in!the!Statute.!! o The! Statute! was! opened! for! signature! by! all! states! in! Rome! on! July! 17,! 1998! and! had! remained! open! for! signature! until! December! 31,! 2000! at! the!United!Nations!Headquarters!in!New!York.!! o The!Philippines!signed!the!Statute!on!December!28,!2000!through!Charge# d’# Affairs!Enrique! A.! Manalo! of! the! Philippine! Mission! to! the! United! Nations.!! o Its! provisions,! however,! require! that! it! be! subject! to! ratification,! acceptance!or!approval!of!the!signatory!states.! • Petitioners!filed!a!petition!for!mandamus!to!compel!the!respondents!—!the!Office! of!the!Executive!Secretary!and!the!Department!of!Foreign!Affairs!—!to!transmit'the' signed' text' of' the' treaty' to' the' Senate! of! the! Philippines! for! ratification! for! its! concurrence!in!accordance!with!Sec.!21,!Art.!VII!of!the!1987!Philippine!Constitution.! o Section!21,!Article!VII!of!the!1987!Constitution!provides!that!“no!treaty!or! international! agreement! shall! be! valid! and! effective! unless! concurred! in! by!at!least!two8thirds!of!all!the!Members!of!the!Senate.”!!The!1935!and! the!1973!Constitution!also!required!the!concurrence!by!the!legislature!to! the!treaties!entered!into!by!the!executive.! • Petitioners’!contention:!(not!accepted!by!the!SC)! o The! ratification! of! a! treaty,! under! both! domestic! law! and! international! law,!is!a!function!of!the!Senate.!!!

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Hence,! it! is! the! duty! of! the! executive! department! to! transmit! the!signed!copy!of!the!Rome!Statute!to!the!Senate!to!allow!it!to! exercise!its!discretion!with!respect!to!ratification!of!treaties.!!! o The! Philippines! has! a! ministerial! duty! to! ratify! the! Rome! Statute! under! treaty!law!and!customary!international!law.!!! o Petitioners! invoke! the! Vienna! Convention! on! the! Law! of! Treaties! enjoining! the! states! to! refrain! from! acts! which! would! defeat! the! object! and! purpose! of! a! treaty! when! they! have! signed! the! treaty! prior! to! ratification! unless! they! have! made! their! intention! clear! not! to! become! parties!to!the!treaty.! Respondents’!contention:! o The! executive! department! has! no! duty! to! transmit! the! Rome! Statute! to! the!Senate!for!concurrence.!! 

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! ISSUES/HELD:' Whether! the! Executive! Secretary! and! the! Department! of! Foreign! Affairs! have! a!ministerial!duty! to! transmit! to! the! Senate! the! copy! of! the! Rome! Statute! signed! by! a! member! of! the! Philippine! Mission! to! the! United! Nations! even! without! the! signature! of! the! President!–!NO! • In! our! system! of! government,! the! President,! being! the! head! of! state,! is! the! country’s!sole!representative!with!foreign!nations.!!As!the!chief!architect!of!foreign! policy,!the!President!acts!as!the!country’s!mouthpiece!with!respect!to!international! affairs.!!Hence,!the!President!is!vested!with!the!authority!to!deal!with!foreign!states! and! governments,! extend! or! withhold! recognition,! maintain! diplomatic! relations,! enter!into!treaties,!and!otherwise!transact!the!business!of!foreign!relations.!!In!the! realm! of! treaty8making,! the! President! has! the! sole! authority! to! negotiate! with! other!states.! • Nonetheless,! the! Constitution! provides! a! limitation! to! the! President’s! power! by! requiring!the!concurrence!of!2/3!of!all!the!members!of!the!Senate!for!the!validity! of!the!treaty!entered!into!by!him.! o By!requiring!the!concurrence!of!the!legislature!in!the!treaties!entered!into!by! the! President,! the! Constitution! ensures! a! healthy! system! of! checks! and! balance!necessary!in!the!nation’s!pursuit!of!political!maturity!and!growth.! • The! court! described! the! treaty8making! process,! according! to! Justice! Isagani! Cruz’! book!on!International!Law! o The! usual! steps! in! the! treaty8making! process! are:!! negotiation,! signature,! ratification,! and! exchange! of! the! instruments! of! ratification.! • Petitioners! equate! the! signing! of! the! treaty! by! the! Philippine! representative! with! ratification,!which!are!two!separate!and!distinct!steps!in!the!treaty8making!process.!

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The!signature,!performed!by!the!state’s!authorized!representative!in!the!diplomatic! mission,!is!primarily!intended!as!a!means!of!authenticating!the!instrument!and!as!a! symbol! of! the! good! faith! of! the! parties.!! Ratification,! on! the! other! hand,! is! the! formal! act! executive! in! nature,! undertaken! by! the! head! of! the! state! or! of! the! government.! Thus,!the!President'has'the'discretion'even'after'the'signing'of'the'treaty'by'the' Philippine' representative' whether' or' not' to' ratify' the' same.! The! Vienna! Convention!on!the!Law!of!Treaties!does!not!contemplate!to!defeat!or!even!restrain! this!power!of!the!head!of!states.!!If!that!were!so,!the!requirement!of!ratification!of! treaties!would!be!pointless!and!futile.! Executive' Order' No.' 459' provides' the' guidelines' in' the' negotiation' of' international' agreements' and' its' ratification.'' It' mandates' that' after' the' treaty' has'been'signed'by'the'Philippine'representative,'the'same'shall'be'transmitted' to' the'Department' of' Foreign' Affairs.'' The' latter' shall' then' prepare' the' ratification'papers'and'forward'the'signed'copy'of'the'treaty'to'the'President'for' ratification.'' o Section!7!of!Executive!Order!No.!459!reads:! 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! sub8 paragraph[s]! 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.!

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! The!signature!does!not!signify!the!final!consent!of!the!state!to!the!treaty.!!It!is!the! ratification!that!binds!the!state!to!the!provisions!thereof.!!Under'our'Constitution,' the'power'to'ratify'is'vested'in'the'President,'subject'to'the'concurrence'of'the' Senate.'!The!role!of!the!Senate,!however,!is!limited!only!to!giving!or!withholding!its! consent,!or!concurrence,!to!the!ratification.!Such!power!of!the!President!cannot!be! encroached! by! this! Court!via!a! writ! of!mandamus! and! the! courts! have! no! jurisdiction!over!actions!seeking!to!enjoin!the!President!in!the!performance!of!his! official!duties.!! Therefore,! the! court! cannot! issue! the! writ! of!mandamus!prayed! for! by! the! petitioners! as! it! is! beyond! its! jurisdiction! to! compel! the! executive! branch! of! the! government!to!transmit!the!signed!text!of!Rome!Statute!to!the!Senate.!

! DISPOSITIVE:!Petition!is!dismissed.! !

4. Sps.'Constantino'v.'Hon.'Rosario'(CG)' G.R.'No.'106064'October'13,'2005! TOPIC:'Powers!of!the!President!to!enter!into!debt8relief!contracts!with!foreign!creditors;! Qualified!Political!Agency! RELEVANT'LAWS:'Article!7,!Section!20!of!the!Constitution;!R.A.!No.!245!as!amended!by!Pres.! Decree!(P.D.)!No.!142,!s.!1973,!entitled!An#Act#Authorizing#the#Secretary#of#Finance#to#Borrow# to#Meet#Public#Expenditures#Authorized#by#Law,#and#for#Other#Purposes! Petitioners:!Spouses!Renato!Constantino,!Jr.!and!Lourdes!Constantino!and!their!minor! children!Renato!Redentor,!Anna!Marika!Lissa,!Nina!Elissa,!and!Anna!Karmina,!Freedom!From! Debt!Coalition,!and!Filomeno!Sta.!Ana!III! ! Respondents:!Hon.!Jose!B.!Cuisia,!in!his!capacity!as!Governor!of!the!Central!Bank,!Hon.!

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Ramon!del!Rosario,!in!his!capacity!as!Secretary!of!Finance,!Hon.!Emmanuel!V.!Pelaez,!in!his! capacity!as!Philippine!Debt!Negotiating!Chairman,!and!the!NATIONAL!TREASURER! Ponente:!Tinga,!J.! • This!Petition#for#Certiorari,#Prohibition#and#Mandamus!assails!said!contracts!which! were!entered!into!pursuant!to!the!Philippine!Comprehensive!Financing!Program!for! 1992!(Financing!Program)! • It!seeks!to!enjoin!respondents!from!executing!additional!debt8relief!contracts! pursuant!thereto!and!also!urges!the!Court!to!issue!an!order!compelling!the! Secretary!of!Justice!to!institute!criminal!and!administrative!cases!against! respondents'for!acts,!which!circumvent!or!negate!the!provisions!Art.!XII!of!the! Constitution! Facts' • The!Financing!Program!began!during!the!term!of!former!President!Corazon!Aquino! to!manage!the!country’s!external!debt!problem!through!a!negotiation8oriented! debt!strategy!involving!cooperation!and!negotiation!with!foreign!creditors! • Pursuant!to!this!strategy,!the!Aquino!government!entered!into!six!(6)!restructuring! agreements!(198681991):!3!with!representatives!of!foreign!creditor!governments,! and!another!3!with!commercial!bank!creditors! • On!28!February!1992,!the!Philippine!Debt!Negotiating!Team,!chaired!by!respondent! Pelaez,!negotiated!an!agreement!with!the!country’s!Bank!Advisory!Committee,! representing!all!foreign!commercial!bank!creditors,!on!the!Financing!Program,! which!respondents!characterized!as!"a!multi8option!financing!package.”! • The!Program!was!scheduled!to!be!executed!on!24!July!1992!by!respondents!in! behalf!of!the!Republic.!! • Petitioners!alleged!that!even'prior'to'the'execution'of'the'Program'respondents' had'already'implemented'its'"buyback'component"!when!on!15!May!1992,!the! Philippines!bought!back!P1.26!billion!of!external!debts!pursuant!to!the!Program! • The!petition'sought'to'enjoin'the'ratification'of'the'Program,!but!the!Court!did! not!issue!any!injunctive!relief.!Hence,!it!came!to!pass!that!the!Program!was!signed! in!London!as!scheduled.! • The!petition'still'has'to'be'resolved'though'as'petitioners'seek'the'annulment'"of' any'and'all'acts'done'by'respondents,!their!subordinates!and!any!other!public! officer!pursuant!to!the!agreement!and!program!in!question.”!Even'after'the' signing'of'the'Program,'respondents'themselves'acknowledged'that'the' remaining'principal'objective'of'the'petition'is'to'set'aside'respondents’'actions.' • Petitioners!characterize!the!Financing!Program!as!a!package!offered!to!the! country’s!foreign!creditors!consisting!of!two!debt8relief!options:!! o The!first!option!was!a!cash!buyback!of!portions!of!the!Philippine!foreign! debt!at!a!discount.!!

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The!second!option!allowed!creditors!to!convert!existing!Philippine!debt! instruments!into!any!of!three!kinds!of!bonds/securities!(New!money! bonds!w/!58yr!grace!period!and!178yr!maturity,!Interest8reduction!bonds! w/!258yr!maturity!or!Principal8collateralized!interest8reduction!bonds! with!258yr!maturity)! • According!to!the!respondents!the!Financing!Program!would!cover!about!U.S.!$5.3! billion!of!foreign!commercial!debts!and!it!was!expected!to!deal!comprehensively! with!the!commercial!bank!debt!problem!of!the!country!and!pave!the!way!for!the! country’s!access!to!capital!markets.! • They!add!that!the!Program!carried!three!basic!options!from!which!foreign!bank! lenders!could!choose,!namely:!to!lend!money,!to!exchange!existing!restructured! Philippine!debts!with!an!interest!reduction!bond;!or!to!exchange!the!same! Philippine!debts!with!a!principal!collateralized!interest!reduction!bond.! Issues/Ruling' '(1)'WON'the'debtdrelief'contracts'entered'into'pursuant'to'the'Financing'Programs'was' beyond'the'scope'of'the'powers'granted'to'the'President'under'Section'20,'Article'VII'of' the'Constitution'–'NO,'the'Constitution'does'not'prohibit'the'President'from'so'doing,'and' it'is'in'RA'245' • The!language!of!the!Constitution!is!simple!and!clear!as!it!is!broad.!It'allows'the' President'to'contract'and'guarantee'foreign'loans.'It!makes!no!prohibition!on!the! issuance!of!certain!kinds!of!loans!or!distinctions!as!to!which!kinds!of!debt! instruments!are!more!onerous!than!others.'' • The!plain,!clear!and!unambiguous!language!of!the!Constitution!should!be!construed! in!a!sense!that!will!allow!the!full!exercise!of!the!power!provided!therein! • The!only!restriction!that!the!Constitution!provides,!aside!from!the!prior! concurrence!of!the!Monetary!Board,!is!that!the!loans'must'be!subject'to' limitations'provided'by'law.'' • In!this!regard,!we!note!that!Republic'Act'(R.A.)'No.'245!as!amended!by!Pres.! Decree!(P.D.)!No.!142,!s.!1973,!entitled!An#Act#Authorizing#the#Secretary#of#Finance# to#Borrow#to#Meet#Public#Expenditures#Authorized#by#Law,#and#for#Other# Purposes,#allows!foreign!loans!to!be!contracted!in!the!form!of,!inter#alia,!bonds.! Thus:! “…!The!Secretary!of!Finance,!with!the!approval!of!the!President! of!the!Philippines,!after!consultation!with!the!Monetary!Board,!is! authorized!to!borrow!from!time!to!time!on!the!credit!of!the!Republic!of! the!Philippines!such!sum!or!sums!as!in!his!judgment!may!be!necessary,! and!to!issue!therefor!evidences!of!indebtedness!of!the!Philippine! Government.”! Such#evidences#of#indebtedness#may#be#of#the#following#types:# # # xxx# o

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c.#Treasury#bonds,#notes,#securities#or#other#evidences#of#indebtedness# having#maturities#of#one#year#or#more#but#not#exceeding#twentyKfive#years# from#the#date#of#issue.#(Emphasis#supplied.)# Under!the!foregoing!provisions,!sovereign'bonds'may'be'issued'not'only'to' supplement'government'expenditures'but'also'to'provide'for'the'purchase,' redemption,'or'refunding'of'any'obligation,'either'direct'or'guaranteed,'of'the' Philippine'Government.! The!law8making!authority!has!promulgated!a!law!ordaining!an!automatic! appropriations!provision!for!debt!servicing!by!virtue!of!which!the!President'is' empowered'to'execute'debt'payments'without'the'need'for'further' appropriations.'' Debt!service!is!not!included!in!the!General!Appropriation!Act,!since!authorization! therefor!already!exists!under!RA!Nos.!4860!and!245,!as!amended,!and!PD!1967.!' Precisely!in!the!light!of!this!subsisting!authorization!as!embodied!in!said!Republic! Acts!and!PD!for!debt!service,!Congress'does'not'concern'itself'with'details'for' implementation'by'the'Executive,'but'largely'with'annual'levels'and'approval' thereof'upon'due'deliberations'as'part'of'the'whole'obligation'program'for'the' year.!! Specific!legal!authority!for!the!buyback!of!loans!is!established!under!Section!2!of! Republic!Act!(R.A.)!No.!240,!viz:! Sec.#2.#The#Secretary#of#Finance#shall#cause#to#be#paid#out#of#any#moneys# in#the#National#Treasury#not#otherwise#appropriated,#or#from#any#sinking# funds#provided#for#the#purpose#by#law,#any#interest#falling#due,#or# accruing,#on#any#portion#of#the#public#debt#authorized#by#law.#He#shall# also#cause#to#be#paid#out#of#any#such#money,#or#from#any#such#sinking# funds#the#principal#amount#of#any#obligations#which#have#matured,#xxx#or,# if#redeemed#prior#to#maturity,#such#portion#of#the#face#value#as#is# prescribed#by#the#terms#and#conditions#under#which#such#obligations#were# originally#issued.# The!afore8quoted!provisions!of!law!specifically'allow'the'President,'thru'its'alter' ego,'to'predterminate'debts'without'further'action'from'Congress! The!fact!that!the!Constitution!does!not!explicitly!bar!the!President!from!exercising! a!power!does!not!mean!that!he!or!she!does!not!have!that!power! It!is!inescapable!from!the!standpoint!of!reason!and!necessity!that!the'authority'to' contract'foreign'loans'and'guarantees'without'restrictions'on'payment'or' manner'thereof'coupled'with'the'availability'of'the'corresponding' appropriations,'must'include'the'power'to'effect'payments'or'to'make'payments' unavailing'by'either'restructuring'the'loans'or'even'refusing'to'make'any' payment'altogether.'

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More!fundamentally,!when!taken!in!the!context!of!sovereign!debts,!a!buyback!is! simply!the!purchase!by!the!sovereign!issuer!of!its!own!debts!at!a!discount.!Clearly! then,!the!objection!to!the!validity!of!the!buyback!scheme!is!without!basis' (2)'WON'this'power'can'be'delegated'd'YES,'it'is'within'the'realm'of'the'expertise'of'the' Department'of'Finance;'Doctrine'of'Qualified'Political'Agency;'Lack'of'showing'that'the' President'countermanded'DOF’s'orders,'deemed'presidential'approval' • Petitioners!stress!that!unlike!other!powers,!which!may!be!validly!delegated!by!the! President,!the!power!to!incur!foreign!debts!is!expressly!reserved!by!the! Constitution!in!the!person!of!the!President.!They!argue!that!the!gravity!by!which! the!exercise!of!the!power!will!affect!the!Filipino!nation!requires!that!the!President! alone!must!exercise!this!power.!They!submit!that!the!requirement!of!prior! concurrence!of!an!entity!specifically!named!by!the!Constitution!–!the!Monetary! Board!–!reinforces!the!submission!that!not!respondents!but!the!President!"alone! and!personally"!can!validly!bind!the!country.' • This!sort!of!constitutional!interpretation!would!negate!the!very!existence!of! cabinet!positions!and!the!respective!expertise,!which!the!holders!thereof!are! accorded!and!would!unduly!hamper!the!President’s!effectivity!in!running!the! government.! • The!evident!exigency!of!having!the!Secretary!of!Finance!implement!the!decision!of! the!President!to!execute!the!debt8relief!contracts!is!made'manifest'by'the'fact'that' the'process'of'establishing'and'executing'a'strategy'for'managing'the' government’s'debt'is'deep'within'the'realm'of'the'expertise'of'the'Department' of'Finance,!primed!as!it!is!to!raise!the!required!amount!of!funding,!achieve!its!risk! and!cost!objectives,!and!meet!any!other!sovereign!debt!management!goals.!! • Necessity'thus'gave'birth'to'the'doctrine'of'qualified'political'agency,!later! adopted!in!Villena#v.#Secretary#of#the#Interior!from!American!jurisprudence! • Inevitably,!it!fell!upon!the!Secretary!of!Finance,!as!the!alter#ego!of!the!President! regarding!"the!sound!and!efficient!management!of!the!financial!resources!of!the! Government,"!to!formulate!a!scheme!for!the!implementation!of!the!policy!publicly! expressed!by!the!President!herself.! • The!decision'to'contract'or'guarantee'foreign'debts'is'of'vital'public'interest,!but! only!akin!to!any!contractual!obligation!undertaken!by!the!sovereign,!which!arises! not!from!any!extraordinary!incident,!but!from!the!established!functions!of! governance.! • The!Secretary'of'Finance'or'any'designated'alter*ego'of'the'President'is'bound'to' secure'the'latter’s'prior'consent'to'or'subsequent'ratification'of'his'acts.!In!the! matter!of!contracting!or!guaranteeing!foreign!loans,!the!repudiation'by'the' President'of'the'very'acts'performed'in'this'regard'by'the'alter*ego'will'definitely' have'binding'effect.!! •

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Notably!though,!petitioners!do!not!assert!that!respondents!pursued!the!Program! without!prior!authorization!of!the!President!or!that!the!terms!of!the!contract!were! agreed!upon!without!the!President’s!authorization.!Congruent!with!the!avowed! preference!of!then!President!Aquino!to!honor!and!restructure!existing!foreign! debts,!the'lack'of'showing'that'she'countermanded'the'acts'of'respondents'leads' us'to'conclude'that'said'acts'carried'presidential'approval.! • It!bears!emphasis!that!apart!from!the!Constitution,!there!is!also!a!relevant!statute,! R.A.'No.'245,'that'establishes'the'parameters'by'which'the'alter*ego'may'act'in' behalf'of'the'President'with'respect'to'the'borrowing'power.!This!law!expressly' provides'that'the'Secretary'of'Finance'may'enter'into'foreign'borrowing' contracts.!This!law!neither!amends!nor!goes!contrary!to!the!Constitution!but! merely!implements!the!subject!provision!in!a!manner!consistent!with!the!structure! of!the!Executive!Department!and!the!alter#ego#doctine.!! (3)'WON'the'Financing'Program'violates'several'constitutional'policies'and'the'contracts' executed'or'to'be'executed'pursuant'thereto'were'or'will'be'done'by'respondents'with' grave'abuse'of'discretion'amounting'to'lack'or'excess'of'jurisdiction'd'NO' • Petitioners!allege!that!the!Financing!Program!violates!the!constitutional!state! policies!to!promote!a!social!order!thus,!the!contracts!executed!or!to!be!executed! pursuant!thereto!were!or!would!be!tainted!by!a!grave!abuse!of!discretion! amounting!to!lack!or!excess!of!jurisdiction.! • Respondents!cite!the!following!in!support!of!the!propriety!of!their!acts:!! (1)!A!Department!of!Finance!study!showing!that!as!a!result!of!the!implementation! of!voluntary!debt!reductions!schemes,!the!country’s'debt'stock'was'reduced'by' U.S.'$4.4'billion'as'of'December'1991;! (2)!Revelations'made'by'independent'individuals!made!in!a!hearing!before!the! Senate!Committee!on!Economic!Affairs!indicating!that!the!assailed!agreements! would!bring!about!substantial!benefits!to!the!country;!and!! (3)!The'Joint'LegislativedExecutive'Foreign'Debt'Council’s'endorsement'of'the' approval'of'the'financing'package!containing!the!debt8relief!agreements!and! issuance!of!a!Motion!to!Urge!the!Philippine!Debt!Negotiating!Panel!to!continue! with!the!negotiation!on!the!aforesaid!package.!! • Even!with!these!justifications,!respondents!aver!that!their!acts!are!within!the!arena! of!political!questions,!which!the!judiciary'must'leave'without'interference'lest'the' courts'substitute'their'judgment'for'that'of'the'official'concerned'and'decide'a' matter'which'by'its'nature'or'law'is'for'the'latter'alone'to'decide.'' • Assuming!the!accuracy!of!the!article!written!by!Jude!Esguerra!(which!the! petitioners!used!to!support!their!claim)!regarding!the!Buyback!and!Securitization! Agreement!that,!at!the!worst8case!scenario,!it!will!yield!a!$1.638M!flow!out!of!the! country,!the!court!can!make!no!conclusion!other!than!that!respondents’!efforts! were!geared!towards!debt8relief!with!marked!positive!results!and!towards! •

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achieving!the!constitutional!policies!which!petitioners!so!hastily!declare!as!having! been!violated!by!respondents.!! • Moreover,!the!policies!set!by!the!Constitution!as!litanized!by!petitioners!are!not!a! panacea!that!can!annul!every!governmental!act!sought!to!be!struck!down.!! (4)'WON'petitioners'had'locus*standi*–*YES,'as'citizens'of'the'Philippines'and'as'taxpayers.' Also,'as'this'issue'is'of'paramount'public'interest,'it'is'but'just'for'the'court'to'take' cognizance'of'the'case.' Conclusion' • The!raison#d’#etre#of!the!Financing!Program!is!to!manage!debts!incurred!by!the! Philippines!in!a!manner!that!will!lessen!the!burden!on!the!Filipino!taxpayers–thus! the!term!"debt8relief!agreements."!The!measures!objected!to!by!petitioners!were! not!aimed!at!incurring!more!debts!but!at!terminating!pre8existing!debts!and!were! backed!by!the!know8how!of!the!country’s!economic!managers!as!affirmed!by!third! party!empirical!analysis.! • That!the!means!employed!to!achieve!the!goal!of!debt8relief!do!not!sit!well!with! petitioners!is!beyond!the!power!of!this!Court!to!remedy.!! • The!exercise!of!the!power!of!judicial!review!is!merely!to!check–not!supplant–the! Executive,!or!to!simply!ascertain!whether!he!has!gone!beyond!the!constitutional! limits!of!his!jurisdiction!but!not!to!exercise!the!power!vested!in!him!or!to! determine!the!wisdom!of!his!act.!! • In!cases!where!the!main!purpose!is!to!nullify!governmental!acts!whether!as! unconstitutional!or!done!with!grave!abuse!of!discretion,!there!is!a!strong! presumption!in!favor!of!the!validity!of!the!assailed!acts.!The!heavy!onus!is!in!on! petitioners!to!overcome!the!presumption!of!regularity.! Dispositive*Portion:* WHEREFORE!the!petition!is!hereby!DISMISSED.!No!costs.!

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5. Abaya'v.'Ebdane'(RL)' TOPIC:!Exchange#Notes#are#executive#agreements#and#are#binding#among#the#states.! TREATIES/LAWS:' • EO' 40' –' Consolidating! Procurement! Rules! and! Procedures! for! All! National! Government! Agencies,! GOCCs! and! Government! Financial! Institutions,! and! Requiring!the!Use!of!the!Government!Procurement!System' • RA' 9184' –' An! Act! for! the! Modernization,! Standardization! and! Regulation! of! the! Procurement!Activities!of!the!Government!and!for!Other!Purposes! • Exchange'of'Notes'–!this!constitutes!an!executive!agreement! ! G.R.'No.'167919.'February'14,'2007.'

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Petitioners:!PLARIDEL!M.!ABAYA,!COMMODORE!PLARIDEL!C.!GARCIA!(retired)!and!PMA!’59! FOUNDATION,!INC.,!rep.!by!its!President,!COMMODORE!CARLOS!L.!AGUSTIN!(retired)! Respondents:!HON.!SECRETARY!HERMOGENES!E.!EBDANE,!JR.,!in!his!capacity!as!Secretary!of! the!DEPARTMENT!OF!PUBLIC!WORKS!and!HIGHWAYS,!HON.!SECRETARY!EMILIA!T.!BONCODIN,! in! her! capacity! as! Secretary! of! the! DEPARTMENT! OF! BUDGET! and! MANAGEMENT,! HON.! SECRETARY!CESAR!V.!PURISIMA,!in!his!capacity!as!Secretary!of!the!DEPARTMENT!OF!FINANCE,! HON.!TREASURER!NORMA!L.!LASALA,!in!her!capacity!as!Treasurer!of!the!Bureau!of!Treasury,! and!CHINA!ROAD!and!BRIDGE!CORPORATION! Ponente:'Callejo,'Sr.,'J.' FACTS:' • The! Government! of! Japan! and! the! Government! of! the! Philippines,! through! their! respective! representatives,! Mr.! Yoshihisa! Ara,! Ambassador! Extraordinary! and! Plenipotentiary! of! Japan! to! the! Republic! of! the! Philippines,! and! then! Secretary! of! Foreign!Affairs!Domingo!L.!Siazon,!reached!an!understanding!concerning!Japanese! loans!to!be!extended!to!the!Philippines.!! • These! loans! were! aimed! at! promoting! our! country’s! economic! stabilization! and! development!efforts.! • The!Exchange!of!Notes!consisted!of!two!documents:!! o A! Letter! from! the! Government! of! Japan,! signed! byAra,! addressed! to! Siazon,! confirming! the! understanding! reached! between! the! two! governments!concerning!the!loans!to!be!extended!by!the!Government!of! Japan!to!the!Philippines;!and! o A! document! denominated! as! Records! of! Discussion! where! the! salient! terms!of!the!loans!were!reiterated!and!the!said!terms!were!accepted!by! the!Philippine!delegation.!! o Both!of!them!signed!the!Records!of!Discussion!as!representatives!of!their! Governments.! • The!Exchange!of!Notes!provided!that!the!loans!to!be!extended!by!the!Japan!to!the! Philippines!consisted!of!two!loans:!Loan!I!and!Loan!II.!! • The!Exchange!of!Notes!stated!in!part:! o A! loan! worth! Y79,861,000,000! (Loan! I)! will! be! extended,! in! accordance! with!the!relevant!laws!and!regulations!of!Japan!to!the!Philippines!by!the! Japan! Bank! for! International! Cooperation! (JBIC)! to! implement! the! projects!enumerated!in!the!List!A,!which!included!the!Arterial'Road'Links' Development' Project,! Cordillera! Road! Project,! Philippines8Japan! Friendship!Highway!Mindanao!Section!Rehabilitation!Project,!etc.! o The! Loan! I! will! be! made! available! by! loan! agreements! to! be! concluded! between!the!Phils!and!JBIC.! • An!agreement!was!reached!between!both!Governments,!as!shown!in!the!Exchange! of!Notes!between!the!representative.!

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The!Philippines!obtained!from!and!was!granted!a!loan!by!the!JBIC,!Loan'Agreement' No.'PHdP204'dated!December!28,!1999.! Under! the! terms! and! conditions! of! the! Loan! JBIC! agreed! to! lend! the! Philippine! Government! an! amount! not! exceeding! Y! 15,384,000,000! as! principal! for! the! implementation!of!the!Arterial!Road!Links!Development!Project!(Phase!IV).! o The! amount! shall! be! used! for! the! purchase! of! goods! and! services! necessary!for!the!implementation!of!the!project.! Phase! IV! includes! the! Catanduanes! Circumferential! Road,! which! was! further! dividided!in!4!packages:! o CP!I:!San!Andres!(Codon)8Virac8Jct.!Bato8!Viga!Road!8!79.818!kms! o CP!II:!Viga8Bagamanoc!Road!8!10.40!kms.! o CP!III:!Bagamanoc8Pandan!Road!8!47.50!kms.! 11 o CP!IV:!Pandan8Caramoran8Codon!Road!8!66.40!kms. ! Subsequently,!the!DPWH!caused!the!publication!of!the!"Invitation!to!Prequalify!and! to! Bid"! for! the! implementation! of! the! CP! I! project! in! two! leading! national! newspapers! (Manila! Times! and! Manila! Standard)! on! November! 22! and! 29,! and! December!5,!2002.! 23!foreign!and!local!contractors!responded!to!the!invitation!but!only!8!contractors! were!eligible!to!bid,!one!withdrew,!so!a!total!of!7!contractors.! Prior! to! the! opening! of! the! respective! bid! proposals,! it! was! announced! that! the! Approved!Budget!for!the!Contract!(ABC)!was!P738,710,563.67.! The!result!of!the!bidding!revealed!the!following!3!lowest!bidders:!

Name!of!Bidder!

Original! Bid! As! Read! As8Corrected! Bid! Variance! (Pesos)! Amount!(Pesos)!

1)! China! Road! &! Bridge! P!993,183,904.98! Corporation!

P952,564,821.71!

28.95%!

2)! Cavite! Ideal! Int’l! P1,099,926,598.11! Const.!Devt.!Corp.!

P1,099,926,598.11!

48.90%!

3)! Italian! Thai! Dev’t.! P1,125,022,075.34! Public!Company,!Ltd.!

P1,125,392,475.36!

52.35%!

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The!bid!of!private!respondent!China!Road!&!Bridge!Corporation!was!corrected!from! the! original! P993,183,904.98! (with! variance! of! 34.45%! from! the! ABC)! to! P952,564,821.71! (with! variance! of! 28.95%! from! the! ABC)! based! on! their! letter! clarification!dated!April!21,!2004.!! Mr.! Hedifume! Ezawa,! Project! Manager! of! the! Catanduanes! Circumferential! Road! Improvement! Project! (CCRIP),! in! his! Report,! recommended! the! award! of! the! contract!to!private!respondent!China!Road!&!Bridge!Corporation.! The!BAC!of!the!DPWH,!with!the!approval!of!then!Acting!Secretary!Soriquez,!issued' the'assailed'Resolution'No.'PJHLdAd04d012!dated!May!7,!2004!recommending'the'

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award' in' favor' of' private' respondent' China' Road' &' Bridge' Corporation! of! the! contract!under!JBIC!Loan!Agreement!No.!PH8P204.!! !On!September!29,!2004,!a!Contract!of!Agreement!(COA)!was!entered!into!by!and! between! the! DPWH! China! Road! &! Bridge! Corporation! for! the! implementation! of! the!CP!I!project.! The! petitioners! mainly! seek! to! nullify! the! Resolution! and! they! seek! to! annul! the! COA!entered!into!by!DPWH!and!China!Road!&!Bridge!Corporation.!

' ISSUES/HELD:' ' 1. W/N' Petitioners' have' standing' to' file' the' instant' Petition—YES,' they' possess' locus* standi*to'file'the'present'suit'as'taxpayers.' • Locus#standi!–!“a!right!of!appearance!in!a!court!of!justice!on!a!given!question."!! o a! party’s! personal! and! substantial! interest! in! a! case! such! that! he! has! sustained!or!will!sustain!direct!injury!as!a!result!of!the!governmental!act! being!challenged.!! o "Interest"!–!material!interest,!an!interest!in!issue!affected!by!the!decree,! as! distinguished! from! mere! interest! in! the! question! involved,! or! a! mere! incidental!interest.! • The! prevailing! doctrine! in! taxpayer’s! suits! is! to! allow' taxpayers' to' question' contracts' entered' into' by' the' national' government' or' GOCCs' allegedly' in' contravention'of'law.! o !A!taxpayer!is!allowed!to!sue!where!there'is'a'claim'that'public'funds'are' illegally' disbursed,' or' that' public' money' is' being' deflected' to' any' improper' purpose,' or' that' there' is' a' wastage' of' public' funds' through' the'enforcement'of'an'invalid'or'unconstitutional'law.!! o He!need!not!be!a!party!to!the!contract!to!challenge!its!validity.!! • The!petitioners!are!suing!as!taxpayers.!! o They!have!sufficiently!demonstrated!that!taxpayers’!money!would!be!or! is!being!spent!on!the!project!considering!that!the!Philippine!Government! is!required!to!allocate!a!peso8counterpart!therefor.!! o The!respondents!themselves!admit!that!appropriations!for!these!foreign8 assisted! projects! are! composed! of! the! loan! proceeds! and! the! peso8 counterpart.!! o The!counterpart!funds!refer!to!the!component!of!the!project!cost!to!be! financed! from! government8appropriated! funds,! as! part! of! the! government’s!commitment!in!the!implementation!of!the!project.! ! 2. W/N' the' Resolution' and' the' COA' are' valid—YES,' Resolution' No.' PJHLdAd04d012' is' valid.'As'a'corollary,'the'subsequent'contract'is'likewise'valid.'

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! Brief#History#of#Philippine#Procurement#Laws#(I#don’t#think#this#is#important,#but#we#can#never# be#too#sure#with#Cande.#HAHA)# • The#US#Philippine#Commission#(1901),#through#various#statutes#(Act#No.#22,#74,#82,# etc),# introduced# the# American# practice# of# public# bidding# mainly# for# the# making# of# contracts# for# public# works# and# the# purchase# of# office# supplies# for# the# use# of# the# Gov’t.# • On# February# 3,# 1936,# Pres.# Manuel# L.# Quezon# issued# EO* No.* 16* declaring* as* a* matter* of* general* policy* that* government* contracts* for* public* service* or* for* furnishing* supplies,* materials* and* equipment* to* the* government* should* be* subjected*to*public*bidding.## • The#Revised#Administrative#Code#of#1917#subsequently#improved#public#bidding.# • Pres.# Diosdado# Macapagal# up# to# PGMA# issued# various# EOs# and# PDs,# which# reiterated# the# need# for# public# bidding# when# dealing# with# government# projects.# These#included#procurement#laws#and#guidelines.# • PGMA! (Oct.! 2001)! issued! EO! 40,! the! law! mainly! relied! upon! by! the! respondents,! entitled! Consolidating! Procurement! Rules! and! Procedures! for! All! National! Government! Agencies,! GOCCs! and! Government! Financial! Institutions,! and! Requiring!the!Use!of!the!Government!Procurement!System.!It!repealed,!amended! or! modified! all! executive! issuances,! orders,! rules! and! regulations! or! parts! thereof! inconsistent!therewith.!! • She! signed! into! law! RA! 9184! (January! 2003)! which! expressly! repealed,! among! others,!those!EOs!and!PDs!issued!by!the!former!presidents.! (End#of#History)# • EO'40,'not'RA'9184,'is'applicable'to'the'procurement'process'undertaken'for'the' CP' I' project.' RA' 9184' cannot' be' given' retroactive' application.' (Petitioners!insist! RA!9184!is!the!applicable!process)' o It! is! not! disputed! that! the! Invitation! to! Prequalify! and! to! Bid! for! its! implementation!was!published!in!two!leading!national!newspapers.' o At!the!time,!the!law!in!effect!was!EO!40.!' o On!the!other!hand,!RA!9184!took!effect!two!months!later' • The!procurement!process!of!CP!I!is!covered!by!EO!40!(sec.!1)' o “shall# apply# to# see# procurement# of# (a)# goods,# supplies,# materials# and# related#service;#(b)#civil#works#xxx”# • The!procurement!process!involves!the!following!steps:!# o (1)!pre8procurement!conference;!# o (2)!advertisement!of!the!invitation!to!bid;!# o (3)!pre8bid!conference;!# o (4)!eligibility!check!of!prospective!bidders;!# o (5)!submission!and!receipt!of!bids;!#

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o (6)!modification!and!withdrawal!of!bids;!# o (7)!bid!opening!and!examination;!# o (8)!bid!evaluation;!# o (9)!post!qualification;!# o (10)!award!of!contract!and!notice!to!proceed.# Clearly!then,!when!the!Invitation!to!Prequalify!and!to!Bid!for!the!implementation!of! the!CP!I!project!was!published,!the!procurement!process!had!already!commenced! and!the!application!of!EO!40!to!the!procurement!process!for!the!CP!I!project!had! already!attached.# RA! 9184! cannot! be! applied! retroactively! as! there! was! no! express! provision! that! provides!for!such.# Further,!the!Transitory!Clause!(Sec.!77)!of!the!IRR8A!for!the!applicability!of!RA9184! provides!that:# o if! the! advertisement! of! the! invitation! for! bids! was! issued! prior! to! the! effectivity! of! RA! 9184,! such! as! in! the! case! of! the! CP! I! project,! the! provisions! of! EO! 40! and! its! IRR,! and! PD! 1594! and! its! IRR! in! the! case! of! national! government! agencies,! and! RA! 7160! and! its! IRR! in! the! case! of! local!government!units,!shall!govern.# The! IRR8A! covers! only! fully! domestically8funded! procurement! activities! from! procurement!planning!up!to!contract!implementation!and!that!it!is!expressly!stated! that! IRR8B! for! foreign8funded! procurement! activities! shall! be! subject! of! a! subsequent!issuance.# o !Nonetheless,!there!is!no!reason!why!the!policy!behind!Section!77!of!IRR8 A!cannot!be!applied!to!foreign8funded!procurement!projects!like!the!CP!I! project.!# o It! would! be! incongruous,! even! absurd,! to! provide! for! the! prospective! application!of!RA!9184!with!respect!to!domestically8funded!procurement! projects! and,! on! the! other! hand,! as! urged! by! the! petitioners,! apply! RA! 9184!retroactively!with!respect!to!foreign8funded!procurement!projects.!! Under' EO' 40,' the' award' of' the' contract' to' private' respondent' China' Road' &' Bridge'Corporation'is'valid.' Nonetheless,! EO! 40! expressly! recognizes! as! an! exception! to! its! scope! and! application!those!government!commitments!with!respect!to!bidding!and!award!of! contracts! financed! partly! or! wholly! with! funds! from! international! financing! institutions!as!well!as!from!bilateral!and!other!similar!foreign!sources.! In! relation,! Sec.' 4' of' RA' 4860! was! correctly! cited! by! the! respondents,! authorizes' the'President,'in'the'contracting'of'any'loan,'credit'or'indebtedness'thereunder,' "when' necessary,' agree' to' waive' or' modify' the' application' of' any' law' granting' preferences'or'imposing'restrictions'on'international'competitive'bidding!x!x!x."! o The! said! provision! of! law! further! provides! that! "the' method' and'

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procedure'in'the'comparison'of'bids'shall'be'the!subject'of'agreement' between'the'Philippine'Government'and'the'lending'institution."! The! procurement! of! goods! and! services! for! the! CP! I! project! is! governed' by' the' corresponding'loan'agreement!entered!into!by!the!government!and!the!JBIC,!i.e.,! Loan!Agreement!No.!PH8P204.!! o It! is! stipulated! that! the' procurement' of' goods' and' services' for' the' Arterial' Road' Links' Development' Project' (Phase' IV),' of' which' CP' I' is' a' component,'is'to'be'governed'by'the'JBIC'Procurement'Guidelines.!! It!is!clear!that!the!JBIC!Procurement!Guidelines!proscribe'the'imposition'of'ceilings' on'bid'prices'and'it'enjoins'the'award'of'the'contract'to'the'bidder'whose'bid'has' been'determined'to'be'the'lowest'evaluated'bid.'! Since!these!terms!and!conditions!are!made!part!of!Loan!Agreement!No.!PH8P204,' the'government'is'obliged'to'observe'and'enforce'the'same'in'the'procurement' of'goods'and'services'for'the'CP'I'project.!! As! shown! earlier,! private! respondent! China! Road! &! Bridge! Corporation’s! bid! was! the!lowest!evaluated!bid.! o In! accordance! with! the! JBIC! Procurement! Guidelines,! therefore,! it! was! correctly!awarded!the!contract!for!the!CP!I!project.! Even! if! RA! 9184! were! to! be! applied! retroactively,! the! terms! of! the! Exchange! of! Notes!and!Loan!Agreement!would!still!govern!the!procurement!for!the!CP!I!project.!

! International*Law*Part!!!*(SUPER*IMPORTANT)' SUBdISSUE:' W/N' the' Loan' Agreement' constitutes' an' international' agreement—YES,' the' exchange'of'notes'is'an'executive'agreement,'hence'binding'among'the'contracting'parties.* • The!petitioners,!in!order!to!place!the!procurement!process!undertaken!for!the!CP!I! project!within!the!ambit!of!RA!9184,!assert!that!Loan!Agreement!is!neither!a!treaty,! an!international!agreement!nor!an!executive!agreement.!! • They! cite! EO! 459! dated! November! 25,! 1997! where! the! three! agreements! are! defined!in!this!wise:! o 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.! o 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.! o Executive#agreements!–!similar!to!treaties!except!that!they!do!not!require! legislative!concurrence.!! • The!petitioners!mainly!argue!that!Loan!Agreement!No.!PH8P204!does!not!fall!under!

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any!of!the!three!categories!because!to!be!any!of!the!three,!an!agreement!had!to!be! one!where!the!parties!are!the!Philippines!as!a!State!and!another!State.!! o The! JBIC,! the! petitioners! maintain,! is! a! Japanese! banking! agency,! which! presumably! has! a! separate! juridical! personality! from! the! Japanese! Government.! The'Court'holds'that'Loan'Agreement'No.'PHdP204'taken'in'conjunction'with'the' Exchange' of' Notes' between' the' Japanese' Government' and' the' Philippine' Government'is'an'executive'agreement.' The! Loan! Agreement! was! executed! by! and! between! the! JBIC! and! the! Philippine! Government!pursuant!to!the!Exchange!of!Notes!executed!by!the!two!Government’s! representatives.! The! Exchange' of' Notes' expressed' that' the' two' governments' have' reached' an' understanding! concerning! Japanese! loans! to! be! extended! to! the! Philippines! and! that!these!loans!were!aimed!at!promoting!our!country’s!economic!stabilization!and! development!efforts.! Under! the! circumstances,' the' JBIC' may' well' be' considered' an' adjunct' of' the' Japanese'Government.!! o Further,! the' Loan' is' indubitably' an' integral' part' of' the' Exchange' of' Notes.!! o It! forms! part! of! the! Exchange! of! Notes! such! that! it! cannot! be! properly! taken!independent!thereof.! As! defined! by! the! United! Nations! Treaty! Collection,! An! "exchange* of* notes"! is! a! record' of' a' routine' agreement' that' has' many' similarities' with' the' private' law' contract.!! o It!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.!! o Under! the! usual! procedure,! the! accepting! State! repeats! the! text! of! the! offering!State!to!record!its!assent.!! o The!signatories!of!the!letters!may!be!government!Ministers,!diplomats!or! departmental!heads.!! o 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.!! It! is! stated! that' "treaties,' agreements,' conventions,' charters,' protocols,' declarations,' memoranda' of' understanding,' modus' vivendi' and' exchange' of' notes"'all'refer'to'"international'instruments'binding'at'international'law."!! o 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.! o These'rules'are'the'result'of'long'practice'among'the'States,'which'have'

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accepted' them' as' binding' norms' in' their' mutual' relations' and' are' regarded'as'international'customary'law.'' o To!codify!these!rules,!two!conventions!were!had:!  The! 1969! Vienna! Convention! on! the! Law! of! Treaties! (! 1969! VCLT),! which! contains! rules! for! treaties! concluded! between! States.!!  The! 1986! Vienna! Convention! on! the! Law! of! Treaties! between! States! and! International! Organizations! (1986! VCLT)! which! has! still! not! entered! into! force,! added! rules! for! treaties! with! international!organizations!as!parties.!!  Both!the!1969!and!1986!VCLTs!do!not!distinguish!between!the! different!designations!of!these!instruments.!! An' exchange' of' notes' is' considered' a' form' of' an' executive' agreement,' which' becomes' binding' through' executive' action' without' the' need' of' a' vote' by' the' Senate'or'Congress.! o The! following! disquisition! by! Francis! B.! Sayre,! former! US! High! Commissioner!to!the!Philippines,!entitled!"The!Constitutionality!of!Trade! Agreement! Acts,"! quoted! in! Commissioner# of# Customs# v.# Eastern# Sea# Trading,!is!apropos:! o “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'exchange'of' notes'and'at'other'times'that'of'more'formal'documents'denominated' "agreements"'or'"protocols".!x!x!x”!

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Under! the! fundamental! principle' of' international' law' of' pacta* sunt* servanda,' which!is,!in!fact,!embodied!in!Section!4!of!RA!9184,!provides!that!"[a]ny#treaty#or# international# or# executive# agreement# affecting# the# subject# matter# of# this# Act# to# which# the# Philippine# government# is# a# signatory# shall# be# observed,"! the! DPWH,! as! the! executing! agency! of! the! projects! financed! by! Loan! Agreement! No.! PH8P204,! rightfully! awarded! the! contract! for! the! implementation! of! civil! works! for! the! CP! I! project!to!private!respondent!China!Road!&!Bridge!Corporation.!

! DISPOSITIVE:!Petition!is!DISMISSED.!

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6. Pharmaceutical'v.'DOH'(EM)' Pharmaceutical!and!Health!Care!Association!of!the!Philippines,!petitioner! vs.!

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Health!Secretary!Francisco!Duque!III;!Health!Undersecretaries!Dr.!Ethelyn!Nieto,!Dr.! Margarita!Galon,!Atty.!Alexander!Padilla!&!Dr.!Jade!Del!Mundo,!and!Assistant! Secretaries!Dr.!Mario!Villaverde,!Dr.!David!Lozada,!and!Dr.!Nemesio!Gako,!respondents! Note:#DOH!deemed!impleaded!as!respondent!since!the!named!respondents!issued!the! RIRR!in!their!capacity!as!officials!of!the!said!executive!agency! G.R.!No.!173034!October!9,!2007! !! Austria8Martinez,!J.! !!

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This!is!a!petition!for!certiorari!seeking!to!nullify!A.O.!200680012!Revised!Implementing! Rules!and!Regulations!(RIRR)!of!E.O.!51!"The!Milk!Code"

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Petitioner!posits!that!the!RIRR!is!not!valid!as!it!contains!unconstitutional!provisions! that!go!beyond!the!law!it!seeks!to!implement !! Facts:!

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E.O.!51!or!the!Milk!Code o Issued!by!President!Cory!Aquino!on!1986!through!her!legislative!powers!under! the!Freedom!Constitution o In!its!preamble,!it!stated:!it!seeks!to!give!effect!to!Art.!11!of!the!International! Code!of!Marketing!of!Breastmilk!Substitutes!(ICMBS),!a!code!adopted!by!the! World!Health!Assembly!(WHA)!in!1981 198282006!8!the!WHA!adopted!several!resolutions!to!the!effect!that! breastfeeding!!should!be!supported,!promoted!and!protected;!nutrition! and!health!claims!are!not!permitted!for!breastmilk!substitutes 1990!8!Philippines!ratified!the!International!Covenant!on!the!Rights!of!the!Child!(CRC) o Art.!24!8!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 May!15,!2006 o DOH!issued!herein!assailed!RIRR!which!was!to!take!effect!July!7,!2006 June!28,!2006 o Petitioner,!representing!its!members!that!are!manufacturers!of!breastmilk! substitutes,!filed!the!Petition!for!Certiorari!and!Prohibition!with!Prayer!for!the! Issuance!of!a!TRO!or!Writ!of!Preliminary!Injunction o Main!issue!raised:!respondents!acted!with!GADALEJ!in!violating!the! Constitution!through!the!RIRR's!provisions

o

1. 2. 3. 4.

5. 6.

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August!15,!2006! o TRO!was!granted June,!2007 o June!19!8!case!was!set!for!oral!arguments!on!this!day

Issues:! WON!the!petitioner!is!a!real!party8in8interest WON!the!RIRR!is!unconstitutional WON!the!RIRR!is!in!accord!with!E.O.!51 WON!pertinent!international!agreements!entered!into!by!the!Philippines!are!part!of! the!law!of!the!land!and!may!be!implemented!by!the!DOH!through!the!RIRR;!If!in!the! affirmative,!whether!the!RIRR!is!in!accord!with!such!agreements; WON!sections!4,!5(w),!22,!32,!47,!and!52!of!the!RIRR!violate!due!process WON!Section!13!of!the!RIRR!on!Total!Effect!provides!sufficient!standards !! Held:!this!petition!is!partly#imbued!with!merit! !! Ratio:! CONSTITUTIONALITY/'INTERNATIONAL'LAW'PART'

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Here,!the!court!will!determine!if!pertinent!international!instruments!adverted!to!by! respondents!are!part!of!the!law!of!the!land

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The!following!instruments!were!invoked!by!the!respondents o CRC o International!Covenant!on!Economic,!Social,!and!Cultural!Rights!(ICESCR) o Convention!on!the!Elimination!of!All!Forms!of!Discrimination!against!Women! (CEDAW)

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These!instruments!provide!that: o Steps!must!be!taken!by!State!Parties!to!diminish!infant!and!child!morality!and! inform!the!society!of!the!advantages!of!breastfeeding,!ensure!the!health!and! well8being!of!families,!and!ensure!that!women!are!provided!with!services!and! nutrition!in!connection!with!pregnancy!and!lactation o No'specific!provisions!regarding!the!use!or!marketing!of!breastmilk!substitutes

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WHA!and!ICMBS!are!the!ones!that!have!specific!provisions!regarding!the!use!or! marketing!of!breastmilk!substitutes The!Constitution!provides!two!ways!by!which!international!law!can!become!part!of!the! sphere!of!domestic!law o Transformation'

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June!5!8!court!issued!an!Advisory!(Guidance!for!Oral!Arguments)!setting!out!the! following!issues: !!

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requires!that!international!law!can!be!transformed!through!a! constitutional!mechanism!such!as!local!legislation

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Treaties!become!part!of!the!law!of!the!land!through!transformation! pursuant!to!Art.!VII,!Section!21!of!the!Constitution:!"no!treaty!or!

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international!agreement!shall!be!valid!and!effective!unless!concurred!in! by!at!least!2/3!of!all!the!members!of!the!Senate" Incorporation'd'this!applies!when,!by!mere!constitutional!declaration,! international!law!is!deemed!to!have!the!force!of!domestic!law • This!is!made!through!Art.!2,!Section!2!!of!the!Constitution:!the! Philippines..adopts'the'generally'accepted'principles'of'international' law'as'part'of'the'law'of'the'land

The!ICMBS!and!WHA!resolutions!are!not'treaties!as!they!have!not!been!concurred!in!by! at!least!2/3!of!the!Senate! o However,!the!ICMBS!which!was!adopted!by!the!WHA!in!1981!had!been! transformed!into!domestic!law!through'local'law!(the!Milk!Code)!that!has!force! and!effect!of!law!in!this!jurisdiction!and!not!the!ICMBS#per#se#(transformation) o The!Milk!Code!is!almost!a!verbatim!reproduction!of!the!ICMBS! • BUT!it!did!not!adopt!the!provision!in!the!ICMBS!absolutely!prohibiting! advertising!or!other!forms!of!promotion!to!the!general!public!of! products!within!the!scope!of!the!ICMBS • Instead,!the!Milk!Code!expressly!provides!that!advertising,!promotion,! or!other!marketing!materials!may!be!allowed!if!such!materials!are!duly! authorized!and!approved!by!the!Inter8Agency!Committee Mijares!v.!Ranada!provides!that o Generally!accepted!principles!of!international!law,!by!virtue!of!the! incorporation!clause!of!the!Constitution,!forms!part!of!the!laws!of!the!land!even! if!they!do!not!derive!from!treaty!obligations

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WHA!resolutions!have!not!been!embodied!in!any!local!legislation.!But!have!they! attained!customary!status? o The!World!Health!Organization!(WHO)8!one!of!the!international!specialized! agencies!allied!with!the!UN o Under!the!WHO!Constitution,!it!is!the!WHA!which!determines!the!policies!of! the!WHO,!and!has!the!power!to!adopt!regulations!concerning!"advertising!and! labelling!of!biological,!pharmaceutical!and!similar!products!moving!in! international!commerce"!and!to!"make!recommendations!to!members!with! respect!to!any!matter!within!the!competence!of!the!Organization"

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Regulations,!along!with'conventions'and'agreements,!duly!adopted!by!the!WHA!bind' members'states o Art.!19!8conventions!and!agreements(with!respect!to!any!matter!within!the! competence!of!the!organization)!...shall!come!into!force!for!each!member! when!accepted!by!it!in!accordance!with!its!constitutional!processes o Art.!20!8!each!member!undertakes!that!it!will...take!action!relative!to!the! acceptance!of!such!convention!or!agreement o Art.!21!8!the!Health!Assembly!shall!have!the!authority!to!adopt!regulations! regarding!certain!matters o Art.!22!8!regulations!adopted!pursuant!to!Article!21!shall!come!into!force!for!all! members!after!due!notice!has!been!given!of!their!adoption On!the!other!hand,!under!Art.!23,!recommendations!of!the!WHA!do'not'come!into! force!for!members!in!the!same!way!those!regulations!and!conventions!and!agreements! under!Arts.!19822!do. o Former!Senior!Legal!Officer!of!WHO,!Sami!Shubber,!stated!the!WHA! recommendations!are!generally!not!binding,!but!carry!moral!and!political! weight!as!they!constitute!the!judgement!on!a!health!issue!of!the!collective! membership!of!the!highest!international!in!the!filed!or!health o Even!the!ICMBS!itself!was!adopted!as!a!mere!resolution

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They!are!norms!of!general!or!customary!international!law!which!are! binding!of!all!states

e.g.!Pacta#sunt#servanda,!good!faith,!due!process O'Connell!holds!that!these!are!binding!because!they'are'"basic'to'legal' systems'generally"' Customary!rules!are!binding,!they!have!two!requisites • State!practice!8!established,!widespread,!and!consistent!practice!of!the! part!of!States • Opinio#juris8!psychological!element;!belief!that!the!practice!in!question! is!rendered!obligatory!

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Material!factor:!how!states!behave Psychological!or!subjective!factor:!why!they!behave!the!way!they!do;! belief!that!a!certain!form!of!behavior!is!obligatory

Its!introduction!reads:!the!code!is!in!the!form!of!a!recommendations! rather!than!a!regulation The!WHA!resolution!adopting!the!ICMBS!and!subsequent!WHA!resolutions! urging!member!states!to!implement!the!ICMBS!are!merely!recommendatory! and!not!legally!binding • Thus,'while'the'provisions'adopted'of'the'Milk'Code'are'binding' having'been'translated'into'domestic'law,'the'subsequent'WHA' resolutions'(providing!for!exclusive!breastfeeding!from!086!months,! continued!breastfeeding!up!to!24!months,!and!absolutely!prohibiting! advertisements!and!promotions!of!breatstmilk!substitutes)'which'have' not'been'adopted'into'domestic'law,'are'not'binding

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Fr.!Bernas!defines!customary!international!law!as! o General!and!consitent!practice!of!states!followed!by!them!from!a!sense!of!legal! obligation o Two!elements

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WHA!resolutions!are!known!to!be!"soft!law"

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Soft!law!does!not!fall!into!any!of!the!sources!on!international!law!in!Art.!38(1)! of!the!ICJ!statute It!is!however,!an!expression!of!non8binding!norms,!principles,!and!practices!that! influence!state!behaviour Certain!declarations!of!the!UN!General!Assembly!fall!under!this!category,!most! notably,!the!UN!Declaration!on!Human!Rights!which!was!cited!by!this!court! several!times

Here,!respondents!failed'to!establish!that!the!provisions!of!the!pertinent!WHA! resolutions!are!customary!international!law!which!may!be!deemed!part!of!the!law!of! the!land o Consequently,!legislation!is!necessary!to!transform!the!provisions!of!the!WHA! resolutions!into!domestic!law o 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. !! OTHER'ISSUES:' '' WON'the'petitioner'is'the'real'party'in'interest?'Yes.' An!association!has!standing!to!file!suit!for!its!workers!despite!its!lack!of!direct!interest.! An!organization!has!standing!to!assert!the!concerns!of!its!constituents.!(Exec!Sec!vs!CA) The!Court!has!rules!that!an!association!has!the!legal!personality!to!represent! itsmembers!because!the!results!of!the!case!will!affect!their!vital!interests.! (PurokBagong!Silang!Association!Inc.!vs.!Yuipco)8In!the!petitioner’s!Amended!Articles!of! Incorporation,!it!states!that!the!association! is!formed!“to!represent!directly!or!through!approved!representatives!the! pharmaceutical!and!health!care!industry!before!the!Philippine!Government!and!any!of! its!agencies,!the!medical!professions!and!the!general!public.” Therefore,!the!petitioner,!as!an!organization,!has!an!interest!in!fulfilling!its!avowed! purpose!of!representing!members!who!are!part!of!the!pharmaceutical!and!healthcare! industry.!Petitioner!is!duly!authorized!to!bring!to!the!attention!of!the!government! agencies!and!courts!any!grievance!suffered!by!its!members!which!are!directly!affected! by!the!assailed!RIRR. '' WON'the'DOH'has'the'power'to'implement'the'WHA'Resolutions'under'the'Revised' Administrative'Code'even'in'the'absence'of'a'domestic'law?'' Only!the!provisions!of!the!Milk!Code.!(as!per!the!discussion!above)8Section!3,!Chapter! 1,!Title!IX!of!the!RAC!of!1987!provides!that!the!DOH!shall!define!the!national!health! policy!and!can!issue!orders!and!regulations!concerning!the!implementation!of! established!health!policies.8A.O.!No!2005!80014!which!provides!the!national!policy!on!

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infant!and!young!child!feeding,!does!not!declare!that!as!part!of!its!policy,!the! advertisement!or!promotion!of!breastmilk!substitutes!should!be!absolutely!prohibited. 8Only!the!provisions!of!the!Milk!Code,!but!not!those!of!the!subsequent!WHA! Resolutions,!can!be!validly!implemented!by!the!DOH!through!the!subject!RIRR.! !! WON'the'provisions'of'the'RIRR'being'in'accordance'with'the'Milk'Code?'Not'all'of' them' !! Assailed!provisions:![1]!extending!the!coverage!to!young!children;![2]!imposing! exclusive!breastfeeding!for!infants!from!086!months;![3]!imposes!an!absolute!ban!on! advertising!and!promotion!for!breastmilk!substitutes;![4]!requiring!additional!labeling! requirements;![5]!prohibits!the!dissemination!of!information!on!infant!formula;![6]! forbids!milk!manufacturers!and!distributors!to!extend!assistance!in!research!and! continuing!education

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!Although!the!DOH!has!the!power!under!the!Milk!Code! to!control!information!regarding!breastmilk!vis8à8vis!breastmilk!substitutes,!this!power! is!not!absolute!because!it!has!no!power!to!impose!an! absolute!prohibition!in!the!marketing,!promotion!and!advertising!of!breastmilk! substitutes.!

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Several!provisions!of!the!Milk!Code!attest!to!the!fact!that!such!power!to!control! information!is!not!absolute.8Sections!11!and!4(f)!of!the!RIRR!are!clearly!violative!of!the! Milk!Code!because!such!provisions!impose!an!absolute! prohibition!on!advertising,!promotion!andmarketing!of!breastmilk!substitutes,!which! is!not!provided!for!in!the!Milk!Code.!Section!46!is!violative!of!the!Milk!Code!because! the!DOH!has!exceeded!its!authority!in!imposing!such!fines!or!sanctions!when!the!Milk! Code!does!not!do!so!.Other!assailed!provisions!are!in!accordance!with!the!Milk!Code. !! WON'Section'13'of'the'RIRR'providing'a'sufficient'standard?'Yes.' !!

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Questioned!provision,!in!addition!to!Section!26!of!Rule!VII!provide!labeling! requirements!for!breastmilk!substitutes!found!to!be!in!consonance!with!theMilk!Code

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The!provisions!in!question!provide!reasonable!means!of!enforcing!related!provisions!in! the!Milk!Code. !! WON'Section'57'of'the'RIRR'repeals'existing'laws?dSection'in'question'only'repeals' orders,'issuances'and'rules'and'regulations,'not'laws.'' ''

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The!provision!is!valid!as!it!is!within!the!DOH’s!rule8making!power. An!administrative!agency!has!quasi8legislative!or!rule8making!power.!However,!such! power!is!limited!to!making!rules!and!regulation!subjected!to!the!boundaries!set!by!the!

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granting!statute!and!the!Constitution.!The!power!is!also!subject!to!the!doctrine!of!non8 delegability!and!separability!of!powers.! The!power,!which! includes!amending,!revising,!altering!or!repealing,!is!granted!to!allow!!for!flexibility!in! the!implementation!of!the!laws. !! WON'Section'4,'5(w),'11,'22,'32,'47'and'52'violates'the'due'process'clause'of'the' Constitution?' !!

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Despite!the!fact!that!the!present!Constitution!enshrines!free!enterprise!as!a! policy,!it!nonetheless!reserves!to!the!government!the!power!to!intervene!whenever! necessary!to!promote!the!general!welfare

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Free!enterprise!does!not!call!for!the!removal!of!protective!regulations. It!must!be!clearly!explained!and!!proven!by!competent!evidence!just!exactly!how! such!protective!regulation!would!result!in!the!restraint!of!trade In!the!instant!case,!petitioner!failed!to!show!how!the!aforementioned!section!shamper! the!trade!of!breastmilk!substitutes.!They!also!failed!to!establish!that!these!activities! are!essential!and!indispensable!to!their!trade. !! Dispositive'Portion:'The'Petition'is'Partially'Granted.'Only'sections'4(f),'11'and'46' of'A.O.'2006d0014'are'declared'null'and'void'for'being'ultra'vires.'The'TRO'islifted' insofar'as'the'rest'of'the'provisions'of'A.O.'2006d0012'is'concerned.!'

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7. North'Cotabato'v.'GRP'Peace'Panel'(NO)' TOPIC:!Territorial!sovereignty;!Treaty/Agreement!Obligations;!Unilateral!Declaration! ! G.R.'No.'183591' Petitioner:! THE' PROVINCE' OF' NORTH' COTABATO,' duly' represented' by' GOVERNOR' JESUS' SACDALAN'and/or'VICEdGOVERNOR'EMMANUEL'PIÑOL' Respondent:! THE' GOVERNMENT' OF' THE' REPUBLIC' OF' THE' PHILIPPINES' PEACE' PANEL' ON' ANCESTRAL' DOMAIN' (GRP),' represented' by' SEC.' RODOLFO' GARCIA,' ATTY.' LEAH' ARMAMENTO,' ATTY.' SEDFREY' CANDELARIA,' MARK' RYAN' SULLIVAN' and/or' GEN.' HERMOGENES' ESPERON,' JR.,' the' latter' in' his' capacity' as' the' present' and' dulydappointed' Presidential' Adviser' on' the' Peace' Process' (OPAPP)' or' the' sodcalled' Office' of' the' Presidential'Adviser'on'the'Peace'Process.' J.#CarpioKMorales! ! Facts:'

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On! August! 5,! 2008,! the! Government! of! the! Republic! of! the! Philippines! (GRP)! and! the! MILF,! were! scheduled! to! sign! a! Memorandum! of! Agreement! on! the! Ancestral! Domain! (MOA8AD)!Aspect!of!the!GRP8MILF!Tripoli!Agreement!on!Peace!of!2001!in!Kuala!Lumpur,! Malaysia.!  The! GRP! is! created! by! virtue! of! E.O.! No.! 3! series! of! 2001,! it! requires! a! policy! framework! for! peace,! including! the! systematic! approach! and! the! administrative! structure!for!carrying!out!the!comprehensive!peace!process.!  The! MILF! is! a! rebel! group! which! was! established! in! March! 1984! when,! under! the! leadership! of! the! late! Salamat! Hashim,! it! splintered! from! the! Moro! National! Liberation!Front!(MNLF)!then!headed!by!Nur!Misuari.!  This! peace! negotiation! document! is! the! product! of! the! long! peace! process! talks! which!started!in!1996.!!  The! process! went! well! until! the! early! 2000s! when! the! MILF! attacked! several! municipalities!which!prompted!President!Estrada!to!call!for!an!“all8out8war”!against! the!MILF.!  President! Arroyo! asked! the! Government! of! Malaysia! through! Prime! Minister! Mahathir!Mohammad!to!help!convince!the!MILF!to!return!to!the!negotiating!table,! the!MILF!eventually,!decided!to!meet!with!the!GRP.!  Formal!peace!talks!between!the!parties!were!held!in!Tripoli,!Libya!from!June!20822,! 2001,!the!outcome!of!which!was!the!GRP8MILF!Tripoli!Agreement!on!Peace!(Tripoli! Agreement! 2001)! containing! the! basic! principles! and! agenda! on! the! following! aspects!of!the!negotiation:!Security,!Rehabilitation,!and!Ancestral'Domain.!  A!second!round!of!peace!talks!was!held!in!Cyberjaya,!Malaysia!on!August!587,!2001! which! ended! with! the! signing! of! the!Implementing! Guidelines! on! the! Security! Aspect!of! the! Tripoli! Agreement! 2001! leading! to! a! ceasefire! status! between! the! parties.!  This! was! followed! by! the! Implementing! Guidelines! on! the! Humanitarian! Rehabilitation!and!Development!Aspects!of!the!Tripoli!Agreement!2001,!which!was! signed!on!May!7,!2002!at!Putrajaya,!Malaysia.! The!signing!of!the!MOA8AD!between!the!GRP!and!the!MILF!did!not!materialize!because! of!the!petitions,!and!the!SC!issued!a!Temporary!Restraining!Order.!  The!motions!were!invoking!the!right!to!information,!exclusion!of!Zamboanga!from! the!MOA8AD,!and!that!the!MOA8AD!be!declared!unconstitutional.! What!is!this!MOA8AD?!  The!MOA8AD!includes!not!only!four!earlier!agreements!between!the!GRP!and!MILF,! but! also! two! agreements! between! the! GRP! and! the! MNLF:! the! 1976! Tripoli! Agreement,! and! the! Final! Peace! Agreement! on! the! Implementation! of! the! 1976! Tripoli! Agreement,! signed! on! September! 2,! 1996! during! the! administration! of! President!Fidel!Ramos.!

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Public'International'Law' 

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Under!its!Terms!of!Reference,!it!identifies!the!organic!act!for!the!creation!of!ARMM! and!the!Indigenous!Peoples!Rights!Act,!and!several!international!law!instruments!8! the! ILO! Convention! No.! 169! Concerning! Indigenous! and! Tribal! Peoples! in! Independent! Countries! in! relation! to! the! UN! Declaration! on! the! Rights! of! the! Indigenous!Peoples,!and!the!UN!Charter,!among!others.! # Concepts#and#Principles# "Bangsamoro' people"! as! the!natives! or! original! inhabitants!of! Mindanao! and! its! adjacent!islands!including!Palawan!and!the!Sulu!archipelago!at#the#time#of#conquest# or# colonization,!and! their! descendants!whether! mixed! or! of! full! blood,!including! their! spouses.! (Basically! it! includes! not! only! Moros! but! all! indigenous! peoples! of! Mindanao!and!its!adjacent!islands)! "Bangsamoro' homeland,"! the! ownership! of! which! is! vested! exclusively! in! the! Bangsamoro!people!by!virtue!of!their!prior!rights!of!occupation.!Both!parties!to!the! MOA8AD! acknowledge! that! ancestral! domain! does! not! form! part! of! the! public! domain.! The!MOA8AD!goes!on!to!describe!the!Bangsamoro!people!as!"the!‘First!Nation'!with! defined!territory!and!with!a!system!of!government!having!entered!into!treaties!of! amity!and!commerce!with!foreign!nations."!(The!term!first!nation,!in!Canada,!refers! to!the!Indians)!! "Bangsamoro'Juridical'Entity"!(BJE)!to!which!it!grants!the!authority!and!jurisdiction! over!the!Ancestral!Domain!and!Ancestral!Lands!of!the!Bangsamoro.! ! Territory# The!territory!of!the!Bangsamoro!homeland!is!described!as!the!land!mass!as!well!as! the! maritime,! terrestrial,! fluvial! and! alluvial! domains,! including! the! aerial! domain! and! the! atmospheric! space! above! it,! embracing! the! Mindanao8Sulu8Palawan! geographic!region.! The!core!of!the!BJE!is!defined!as!the!present!geographic!area!of!the!ARMM!8!thus! constituting! the! following! areas:! Lanao! del! Sur,! Maguindanao,! Sulu,! Tawi8Tawi,! Basilan,!and!Marawi!City.!Significantly,!this!core!also!includes!certain!municipalities! of!Lanao!del!Norte!that!voted!for!inclusion!in!the!ARMM!in!the!2001!plebiscite! Outside!of!this!core,!the!BJE!is!to!cover!other!provinces,!cities,!municipalities!and! barangays,! which! are! grouped! into! two! categories,! Category! A! and! Category! B.! (This!categories!mark!the!difference!of!time!frames!for!signing!the!plebiscite,!A!–! 12!months!and!B!–!25!years!from!the!signing!of!the!MOA8AD)! ! Resources!

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The!MOA8AD!states!that!the!BJE!is!free!to!enter!into!any!economic!cooperation!and! trade!relations!with!foreign!countries!and!shall!have!the!option!to!establish!trade! missions!in!those!countries.!  The! sharing! between! the! Central! Government! and! the! BJE! of! total! production! pertaining!to!natural!resources!is!to!be!75:25!in!favor!of!the!BJE.!  The!BJE!may!modify'or'cancel!the!forest!concessions,!timber!licenses,!contracts!or! agreements,! mining! concessions,! Mineral! Production! and! Sharing! Agreements! (MPSA),!Industrial!Forest!Management!Agreements!(IFMA),!and!other!land!tenure! instruments!granted! by! the! Philippine! Government,! including! those! issued! by! the! present!ARMM.! ! Governance#  The!MOA8AD!describes!the!relationship!of!the!Central!Government!and!the!BJE!as! "associative,"! characterized!by! shared! authority! and! responsibility.! And! it! states! that! the! structure! of! governance! is! to! be! based! on! executive,! legislative,! judicial,! and! administrative! institutions! with! defined! powers! and! functions! in! the! Comprehensive!Compact.!  The! MOA8AD! provides! that! its!provisions! requiring! "amendments! to! the! existing! legal!framework"!shall!take!effect!upon!signing!of!the!Comprehensive!Compact!and! upon!effecting!the!aforesaid!amendments,!with!due!regard!to!the!nondderogation' of' prior' agreements!and! within! the! stipulated! timeframe! to! be! contained! in! the! Comprehensive!Compact.! The! Solicitor! General! argues! that! there! is! no! justiciable! controversy! that! is! ripe! for! judicial!review!  The! MOA8AD! remains! to! be! a! proposal! that! does! not! automatically! create! legally! demandable! rights! and! obligations! until! the! list! of! operative! acts! required! have! been!duly!complied!with.! 

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! Issues:' 1.! Whether! or! not! the! issue! is! considered! moot! and! academic,! thereby! divesting! the! court! from!ruling!on!it.! • No.!MOA8AD!did!not!push!through!because!of!the!TRO.! 2.!!Whether!or!not!the!right!to!information!of!public!concern!is!violated.! • Yes.! 3.!Whether!or!not!the!MOA8AD!is!unconstitutional.! • Yes.! ' Ratio:' Mootness#

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The!non8signing!of!the!MOA8AD!and!the!eventual!dissolution!of!the!GRP!Peace!Panel!did! not!moot!the!present!petitions.!It!bears!emphasis!that!the!signing!of!the!MOA8AD!did! not!push!through!due!to!the!Court's!issuance!of!a!Temporary!Restraining!Order!  Respondents!insist!that!the!present!petitions!have!been!rendered!moot!and!it!has! only!become!a!mere!list!of!concessions.'  Given! its!nomenclature,! the!need! to! have! it! signed! or! initialed!by! all! the! parties! concerned! on! August! 5,! 2008,! and! the!far8reaching! Constitutional! implications!of! these!"consensus!points,"!foremost!of!which!is!the!creation!of!the!BJE.!  It! is! also! imbued! with! public! interest! involving! a! significant! part! of! the! country's! territory!and!the!wide8ranging!political!modifications!of!affected!LGUs.! In! the! present! controversy,!the! MOA8AD! is! a!significant! part! of! a! series' of' agreements!necessary!to!carry!out!the!Tripoli!Agreement!2001.!  The!MOA8AD!which!dwells!on!the!Ancestral!Domain!Aspect!of!said!Tripoli! Agreement!is!the!third!such!component!of!the!2001!and!2002!talks.!  Surely,!the!present!MOA8AD!can!be!renegotiated!or!another!one!will!be! drawn!up'to' carry' out' the' Ancestral' Domain' Aspect' of' the' Tripoli' Agreement' 2001,!in!another!or!in!any!form,!which!could!contain!similar! or!significantly!drastic!provisions.!  A'decision'on'the'merits'in'the'present'petitions''is'needed'to'formulate' controlling'principles'to'guide'the'bench,'the'bar,'the'public'and,'most' especially,' the' government' in' negotiating' with' the' MILF' regarding' Ancestral'Domain.'

' Right#to#Information# o Art.!III!Sec.!7.!The!right!of!the!people!to!information!on!matters!of!public!concern!shall! be! recognized.! Access! to! official! records,! and! to! documents,! and! papers! pertaining! to! official!acts,!transactions,!or!decisions,!as!well!as!to!government!research!data!used!as! basis!for!policy!development,!shall!be!afforded!the!citizen,!subject!to!such!limitations!as! may!be!provided!by!law.!  Undoubtedly,! the! MOA8AD! subject! of! the! present! cases! is! of! public! concern,! involving! as! it! does! the! sovereignty! and! territorial! integrity! of! the! State,! which! directly!affects!the!lives!of!the!public!at!large.!  The! preambulatory! clause! of! E.O.! No.! 3! declares! that! there! is! a! need! to! further! enhance! the! contribution! of! civil! society! to! the! comprehensive! peace! process! by! institutionalizing!the!people's!participation.!  In! fine,! E.O.! No.! 3! establishes! petitioners'! right! to! be! consulted! on! the! peace! agenda,!as!a!corollary!to!the!constitutional!right!to!information!and!disclosure.!  The! PAPP! committed! grave! abuse! of! discretion! when! he! failed! to! carry! out! the! pertinent! consultation.! The! furtive! process! by! which! the! MOA8AD! was! designed!

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and!crafted!runs!contrary!to!and!in!excess!of!the!legal!authority,!and!amounts!to!a! whimsical,!capricious,!oppressive,!arbitrary!and!despotic!exercise!thereof.!

! Constitutionality!(I’ll!skip!the!other!rations!na)! Associative!relationship! o On!the!Associative!relationship!between!the!BJE!and!the!Government!  Keithner! and! Reisman! states! that,[! a]n! association! is! formed! when! two! states! of! unequal! power! voluntarily! establish! durable! links.! In! the! basic! model,! one' state,! the! associate,! delegates! certain! responsibilities! to! the! other,! the! principal,! while! maintaining!its!international!status!as!a!state.!i.e.!US8Federate!States!of!Micronesia!  Micronesia!has!the!capacity!to!conduct!foreign!affairs!in!their!own!name!and!right,! such! capacity! extending! to! matters! such! as! the! law! of! the! sea,! marine! resources,! trade,!banking,!postal,!civil!aviation,!and!cultural!relations.!  In!international!practice,!the!"associated!state"!arrangement!has!usually!been!used! as! a! transitional! device! of! former! colonies! on! their! way! to! full! independence.! i.e.! Grenada! o MOA8AD! contains! many! provisions! which! are! consistent! with! the! international! legal! concept!of!association!  The!BJE's!capacity!to!enter!into!economic!and!trade!relations!with!foreign!countries!  The! commitment! of! the! Central! Government! to! ensure! the! BJE's! participation! in! meetings!and!events!in!the!ASEAN!and!the!specialized!UN!agencies.!  BJE's! right! to! participate!in! Philippine! official! missions! bearing! on! negotiation! of! border!agreements,!environmental!protection,!and!sharing!of!revenues!pertaining! to! the! bodies! of! water! adjacent! to! or! between! the! islands! forming! part! of! the! ancestral!domain.!  Resembles!the!right!of!the!governments!of!Micronesia!and!the!Marshall!Islands!to! be!consulted!by!the!U.S.!government!on!any!foreign!affairs!matter!affecting!them.! ! o The!concept!of!association!is!not!recognized!under!the!present!Constitution!  It!also!implies!the!recognition!of!the!associated#entity!as!a!state.!!  The! Constitution,! however,! does! not! contemplate! any! state! in! this! jurisdiction! other! than! the! Philippine! State,! much! less! does! it! provide! for! a! transitory! status! that!aims!to!prepare!any!part!of!Philippine!territory!for!independence.!  Even! the! mere! concept! of! the! MOA8AD! requires! amendment! of! constitutional! provisions.! Specifically! Art.! X! Sec.! 1! (Political! subdivision,! provinces,! cities,! municipalities,! and! barangays)! and! Sec.! 15! (ARMM! be! created,! xxx! within! the! framework! of! this! Constitution! and! the! national! sovereignty! as! well! as! territorial! integrity!of!the!Republic!of!the!Philippines)! ! !

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Bangsamoro!Juridical!Entity! o The! BJE! is! a! far! more! powerful! entity! than! the! autonomous! region! recognized! in! the! Constitution!  BJE'is'a'state'in'all'but'name'as'it'meets'the'criteria'of'a'state'laid'down'in'the' ! Montevideo' Convention, namely,! a!permanent! population,! a!defined! territory,! a!government,!and!a!capacity!to!enter!into!relations!with!other!states!  Even!assuming!arguendo!that!the!MOA8AD!would!not!necessarily!sever!any!portion! of!Philippine!territory,!the!spirit!animating!it!8!which!has!betrayed!itself!by!its!use!of! the!concept!of!association!8!runs!counter!to!the!national!sovereignty!and!territorial! integrity!of!the!Republic.!  The! municipalities! of! Lanao! del! Norte! which! voted! for! inclusion! in! the! ARMM! during!the!2001!plebiscite!8!Baloi,!Munai,!Nunungan,!Pantar,!Tagoloan!and!Tangkal! 8! are! automatically! part! of! the! BJE! without! need! of! another! plebiscite.! These! municipalities!voted!for!the!inclusion!in!the!ARMM!and!not!in!the!BJE.! ! Indigenous#peoples# o Article! X,! Section! 3! of! the! Organic! Act! of! the! ARMM! is! a! bar! to! the! adoption! of! the! definition!of!"Bangsamoro!people"!used!in!the!MOA8AD.!  The!Organic!act!of!ARMM!distinguishes!between!the!two,!! (a)!Tribal!peoples.!These!are!citizens!whose!social,!cultural!and!economic! conditions! distinguish! them! from! other! sectors! of! the! national! community;!and! ! (b)!Bangsa! Moro! people.! These! are! citizens! who! are!believers! in! Islam!and!who! have! retained! some! or! all! of! their! own! social,! economic,! cultural,!and!political!institutions."! ! o Respecting! the! IPRA,! it! lays! down! the! prevailing! procedure! for! the! delineation! and! recognition! of! ancestral! domains.! The! MOA8AD's! manner! of! delineating! the! ancestral! domain!of!the!Bangsamoro!people!is!a!clear!departure!from!that!procedure.!  Under!the!MOAdAD,![t]he!Bangsamoro!homeland!and!historic!territory!refer!to!the! land!mass!as!well!as!the!maritime,!terrestrial,!fluvial!and!alluvial!domains,!and!the! aerial! domain,! the! atmospheric! space! above! it,! embracing! the! Mindanao8Sulu8 Palawan!geographic!region.!  Under! IPRA,! a! petition! must! be! initiated! by! the! NCIP! with! the! consent! of! the! IPs,! the! delineation! will! be! in! coordination! with! the! community! concerned,! it! will! require!the!proof!including!the!testimony!of!elders!or!community!under!oath,!and! other!documents!directly!or!indirectly!attesting!to!the!possession!or!occupation!of! the!area,!etc.!

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Article' II,' Section' 2' of' the' Constitution' states' that' the' Philippines' "adopts' the' generally'accepted'principles'of'international'law'as'part'of'the'law'of'the'land."!  In! Mejoff# v.# Director# of# Prisons,! the! court,! held! that! the! Universal! Declaration! of! Human!Rights!(UDHR)!is!part!of!the!law!of!the!land.!!  International!law!has!long!recognized!the!right!to!self8determination!of!"peoples,"! understood! not! merely! as! the! entire! population! of! a! State! but! also! a! portion! thereof.!This!was!emphasized!in!the!case!of!Quebec!when!it!seceded!from!Canada.!  The! International! Covenant! on! Civil! and! Political! Rights! and! the! International! Covenant!on!Economic,!Social!and!Cultural!Rights!which!state,!in!Article!1!of!both! covenants,! that! all! peoples,! by! virtue! of! the! right! of! self8determination,! "freely! determine! their! political! status! and! freely! pursue! their! economic,! social,! and! cultural!development."!  A! distinction! should! be! made! between! the! right! of! internal! and! external! self8 determination.!  In!a!Reference!!Re!the!Secession!of!Quebec,! !Right! to! self8determination! of! a! people! is! normally! fulfilled! through!internal'selfddetermination'8!a! people's! pursuit! of! its! political,! economic,! social! and! cultural! development! within! the! framework! of! an! existing!state.!! ! A! right' to' external' selfddetermination! (which! in! this! case! potentially! takes!the!form!of!the!assertion!of!a!right!to!unilateral!secession)!arises!in! only!the!most!extreme!of!cases!and,!even!then,!under!carefully!defined! circumstances.!! ! The!Canadian!court!ultimately!denied!the!secession!of!Quebec!because!it! was! not! under! colonial! rule! as! contemplated! in! external! self8 determination! and! they! were! free! to! pursue! political! and! economic! choices.!  In! REPORT! OF! THE! INTERNATIONAL! COMMITTEE! OF! JURISTS! ON! THE! LEGAL! ASPECTS!OF!THE!AALAND!ISLANDS!QUESTION,!Sweden!presented!to!the!League!of! Nations!the!question!whether!the!inhabitants!of!the!island!should!be!determined!if! it! should! remain! under! Finnish! rule! or! be! incorporated! with! Sweden.! The! Court! Held:! “The! right! of! disposing! of! national! territory! is! essentially! an! attribute! of! the! sovereignty! of! every! State.! Positive! International! Law! does! not! recognize! the! right! of! national! groups,! as! such,! to! separate! themselves! from! the! State! of! which!they!form!part!by!the!simple!expression!of!a!wish”!

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In! September! 13,! 2007,! the! UN! General! Assembly! adopted! the! United! Nations! Declaration! on! the! Rights! of! Indigenous! Peoples! (UN! DRIP)! through! General! Assembly! Resolution!61/295.!!  Under!Art.!3!of!such!declaration!acknowledge!the!right!of!self8determination,!  Under!Art.!5!its!exercise!shall!include!the!right!to!autonomy!or!self8government!in! matters!relating!to!their!internal!and!local!affairs.'!  Under! Art.! 26,! Indigenous! peoples! have! the! right! to! the! lands,! territories! and! resources! which! they! have! traditionally! owned,! occupied! or! otherwise! used! or! acquired.!  The! obligations! enumerated! therein(UNDRIP),unlike! the! UDHR,! do! not! strictly! require!the!Republic!to!grant!the!Bangsamoro!people,!through!the!instrumentality! of!the!BJE,!the!particular!rights!and!powers!provided!for!in!the!MOA8AD.!!  The!UN!DRIP,!while!upholding!the!right!of!indigenous!peoples!to!autonomy,!does! not!obligate!States!to!grant!indigenous!peoples!the!near8independent!status!of!an! associated!state.!  Even!under!Art.!46!of!the!said!declaration,!recognizes!that!it!cannot!be!construed! as!authorizing!or!encouraging!any!action!which!would!dismember!or!impair,!totally! or! in! part,! the! territorial! integrity! or! political! unity! of! sovereign! and! independent! States.!  It! is,! therefore,! clear! that! the! MOA8AD! contains! numerous! provisions! that! cannot! be!reconciled!with!the!Constitution!and!the!laws!as!presently!worded.! ! By!the!time!these!changes!are!put!in!place,!the!MOA8AD!itself!would!be!counted!among! the!"prior!agreements"!from!which!there!could!be!no!derogation.!  The! provision! in! question! states,! "with! due! regard! to! non! derogation! of! prior!agreements!and!within!the!stipulated!timeframe!to!be!contained!in! the!Comprehensive!Compact."!  Plainly,!stipulation8paragraph!7!on!GOVERNANCE!is!inconsistent!with!the! limits!of!the!President's!authority!to!propose!constitutional!amendments,! it! being! a! virtual! guarantee! that! the! Constitution! and! the! laws! of! the! Republic!of!the!Philippines!will!certainly!be!adjusted!to!conform!to!all!the! "consensus!points"!found!in!the!MOA8AD.Hence,!it!must!be!struck!down! as!unconstitutional.!  A! similar! provision! is! found! with! the! GRP8MNLF! agreement,! however! there! is! a! stark! difference.! While! the! MOA8AD! virtually! guarantees! that! the!"necessary!changes!to!the!legal!framework"!will!be!put!in!place,!the! GRP8MNLF! final! peace! agreement! states! thus:! "Accordingly,! these! provisions! shall! be! recommended! by! the! GRP! to! Congress! for! incorporation!in!the!amendatory!or!repealing!law."!

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Does! the! MOA8AD! give! rise! to! an! internationally! binding! agreement! or! a! binding! unilateral!declaration?!NO! ! The! contention! was! that! the! inclusion! of! foreign! dignitaries! and! presence! of! other! nations! for! the! signing! in! Kuala! Lumpur! gave! rise! to! an! internationally! binding! agreement.!  In! the! Lomé' Accord' case,! the! Defence! argued! that! the! Accord! created! an!internationally' binding!obligation! not! to! prosecute! the! beneficiaries! of! the! amnesty! provided! therein,!citing,! among! other! things,! the! participation! of! foreign! dignitaries! and! international! organizations! in! the! finalization! of! that! agreement.! This!was!however!denied,!it!held:! The! non8contracting! signatories! of! the! Lomé! Agreement! were!moral! guarantors!of! the! principle! that,! in! the! terms! of! Article! XXXIV! of! the! Agreement,! "this! peace! agreement! is! implemented!with!integrity!and!in!good!faith!by!both!parties".! The!moral!guarantors!assumed!no!legal!obligation.!  The! Lomé! Agreement! created! neither! rights! nor! obligations! capable! of! being! regulated!by!international!law.!An!agreement!such!as!the!Lomé!Agreement!which! brings!to!an!end!an!internal!armed!conflict!no!doubt!creates!a!factual!situation!of! restoration!of!peace!that!the!international!community!acting!through!the!Security! Council! may! take! note! of.! That,! however,! will! not! convert! it! to! an! international! agreement! which! creates! an! obligation! enforceable! in! international,! as! distinguished!from!municipal,!law.!  Similarly,! that! the! MOA8AD! would! have! been! signed! by! representatives! of! States! and! international! organizations! not! parties! to! the! Agreement! would! not! have! sufficed!to!vest!in!it!a!binding!character!under!international!law.! ! Concern!has!been!raised!that!the!MOA8AD!would!amount!to!a!unilateral!declaration!of! the!Philippine!State,!binding!under!international!law.!  In!the!Nuclear!tests!case(Australia!v.!France),!When!it!is!the!intention!of!the!State! making! the! declaration! that! it! should! become! bound! according! to! its! terms,! that! intention!confers!on!the!declaration!the!character!of!a!legal!undertaking,!the!State! being!thenceforth!legally!required!to!follow!a!course!of!conduct!consistent!with!the! declaration.!  The!requisites!are!(1)!With!an!intent!to!be!bound,!even!though!not!made!within!the! context!of!international!negotiations,!(2)!with!an!intent!to!be!bound,!even!though! not!made!within!the!context!of!international!negotiations!and!(3)!not!to!give!legal! effect! to! those! statements! would! be! detrimental! to! the! security! of! international! intercourse.!

!

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25!



The!present!case!does!not!amount!to!such!binding!declaration;!the!Philippine!panel! did! not! draft! the! same! with! the! clear! intention! of! being! bound! thereby! to! the! international!community!as!a!whole!or!to!any!State,!but!only!to!the!MILF.!  While! there! were! States! and! international! organizations! involved,! one! way! or! another,!in!the!negotiation!and!projected!signing!of!the!MOA8AD,!they!participated! merely!as!witnesses!or,!in!the!case!of!Malaysia,!as!facilitator.! WHEREFORE,!respondents'!motion!to!dismiss!is!DENIED.!The!main!and!intervening!petitions! are!GIVEN!DUE!COURSE!and!hereby!GRANTED.! 

!

8. Bayan'Muna'v.'Romulo'(MT)' Topic:!Treaties! Treaty/'Law:!Rome!Statute!&!RP8US!Non8Surrender!Agreement! G.R.!No.!159618!February!1,!2011! Petitioner:!BAYAN!MUNA,!as!represented!by!Rep.!SATUR!OCAMPO,!Rep.!CRISPIN!BELTRAN,! and!Rep.!LIZA!L.!MAZA! Respondent:!ALBERTO!ROMULO,!in!his!capacity!as!Executive!Secretary,!and!BLAS!F.!OPLE,!in! his!capacity!as!Secretary!of!Foreign!Affairs! Ponente:!VELASCO,!JR.,!J.:! ! Facts:'' • This!petition!for!certiorari,!mandamus!and!prohibition!under!Rule!65!assails!and! seeks!to!nullify!the!Non8Surrender!Agreement!concluded!by!and!between!the! Republic!of!the!Philippines!(RP)!and!the!United!States!of!America!(USA).! • Petitioner!Bayan!Muna!is!a!duly!registered!party8list!group!established!to!represent! the!marginalized!sectors!of!society.!! Rome'Statute'of'the'International'Criminal'Court' ! • Having!a!key!determinative!bearing!on!this!case!is!the!Rome!Statute establishing! the!International!Criminal!Court!(ICC)!with!"the#power#to#exercise#its#jurisdiction# over#persons#for#the#most#serious#crimes#of#international#concern#x!x!x!and#shall#be# ! complementary#to#the#national#criminal#jurisdictions." The!serious!crimes!adverted! to!cover!those!considered!grave!under!international!law,!such!as!genocide,!crimes! against!humanity,!war!crimes,!and!crimes!of!aggression.! • On!December!28,!2000,!the!RP,!through!Charge!d’Affaires!Enrique!A.!Manalo,! signed!the!Rome!Statute!which,!by!its!terms,!is!"subject!to!ratification,!acceptance! or!approval"!by!the!signatory!states.! RPdUS'NondSurrender'Agreement' • On!May!9,!2003,!then!Ambassador!Francis!J.!Ricciardone!sent!US!Embassy!Note!No.! 0470!to!the!Department!of!Foreign!Affairs!(DFA)!proposing!the!terms!of!the!non8 surrender!bilateral!agreement!(Agreement)!between!the!USA!and!the!RP.!

!

7

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Via!Exchange!of!Notes!No.!BFO8028803 !dated!May!13,!2003!(E/N!BFO8028803,! 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.!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.!! • In!response!to!a!query!of!then!Solicitor!General!Alfredo!L.!Benipayo!on!the!status!of! the!non8surrender!agreement,!Ambassador!Ricciardone!replied!in!his!letter!of! October!28,!2003!that!the!exchange!of!diplomatic!notes!constituted!a!legally! binding!agreement!under!international!law;!and!that,!under!US!law,!the!said! agreement!did!not!require!the!advice!and!consent!of!the!US!Senate.! • In!this!proceeding,!petitioner!imputes!grave!abuse!of!discretion!to!respondents!in! concluding!and!ratifying!the!Agreement!and!prays!that!it!be!struck!down!as! unconstitutional,!or!at!least!declared!as!without!force!and!effect.! • For!their!part,!respondents!question!petitioner’s!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.! The'Issues/'held:' The!foregoing!issues!may!be!summarized!into!two:!! 1. WON!the!Agreement!was!contracted!validly,!which!resolves!itself!into!the!question! of!whether!or!not!respondents!gravely!abused!their!discretion!in!concluding!it— YES! 2. WON!the!Agreement,!which!has!not!been!submitted!to!the!Senate!for!concurrence,! contravenes!and!undermines!the!Rome!Statute!and!other!treaties—NO'! ! Ratio:!This!petition!is!bereft!of!merit.! Validity'of'the'RPdUS'NondSurrender'Agreement' • Petitioner’s!initial!challenge!against!the!Agreement!relates!to!form,!its!threshold! posture!being!that!E/N!BFO8028803!cannot!be!a!valid!medium!for!concluding! the!Agreement.! • Petitioners’!contention!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!inter8governmental!agreements, which!is!an!internationally!accepted! •

26!



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.!! Senate'Concurrence'Not'Required' • 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)!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.! • Under!international!law,!there!is!no!difference!between!treaties!and!executive! agreements!in!terms!of!their!binding!effects!on!the!contracting!states!concerned,! as!long!as!the!negotiating!functionaries!have!remained!within!their!powers.! Neither,!on!the!domestic!sphere,!can!one!be!held!valid!if!it!violates!the! Constitution.! • The!Court!has!given!recognition!to!the!obligatory!effect!of!executive!agreements! without!the!concurrence!of!the!Senate:! x!x!x![T]he!right!of!the!Executive!to!enter!into!binding!agreements!without!the! necessity!of!subsequent!Congressional!approval!has!been!confirmed!by!long!usage.! From!the!earliest!days!of!our!history,!we!have!entered!executive!agreements! covering!such!subjects!as!commercial!and!consular!relations,!most!favored8nation! rights,!patent!rights,!trademark!and!copyright!protection,!postal!and!navigation! arrangements!and!the!settlement!of!claims.!The!validity!of!these!has!never!been! seriously!questioned!by!our!courts.! The'Agreement'Not'in'Contravention'of'the'Rome'Statute' • It!is!the!petitioner’s!next!contention!that!the!Agreement!undermines!the! establishment!of!the!ICC!and!is!null!and!void!insofar!as!it!unduly!restricts!the!ICC’s! jurisdiction!and!infringes!upon!the!effectivity!of!the!Rome!Statute.!Petitioner!posits!

!

•

•

•

•

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that!the!Agreement!was!constituted!solely!for!the!purpose!of!providing!individuals! or!groups!of!individuals!with!immunity!from!the!jurisdiction!of!the!ICC;!and!such! grant!of!immunity!through!non8surrender!agreements!allegedly!does!not! legitimately!fall!within!the!scope!of!Art.!98!of!the!Rome!Statute.!! Contrary!to!petitioner’s!pretense,!the!Agreement!does!not!contravene!or! undermine,!nor!does!it!differ!from,!the!Rome!Statute.!Far!from!going!against!each! other,!one!complements!the!other.!As!a!matter!of!fact,!the!principle!of! complementarity!underpins!the!creation!of!the!ICC.!As!aptly!pointed!out!by! respondents!and!admitted!by!petitioners,!the!jurisdiction!of!the!ICC!is!to!"be! ! complementary!to!national!criminal!jurisdictions![of!the!signatory!states]." Art.!1!of! the!Rome!Statute!pertinently!provides:! Article!1.!The!Court.!An!International!Crimininal!Court!("the!Court")!is!hereby! established.!It!x!x!x!shall!have!the!power!to!exercise!its!jurisdiction!over!persons!for! the!most!serious!crimes!of!international!concern,!as!referred!to!in!this!Statute,! and!shall!be!complementary!to!national!criminal!jurisdictions.!The!jurisdiction!and! functioning!of!the!Court!shall!be!governed!by!the!provisions!of!this!Statute.!! The!foregoing!provisions!of!the!Rome!Statute,!taken!collectively,!argue!against!the! idea!of!jurisdictional!conflict!between!the!Philippines,!as!party!to!the!non8 surrender!agreement,!and!the!ICC;!or!the!idea!of!the!Agreement!substantially! impairing!the!value!of!the!RP’s!undertaking!under!the!Rome!Statute.!Ignoring!for!a! while!the!fact!that!the!RP!signed!the!Rome!Statute!ahead!of!the!Agreement,!it!is! abundantly!clear!to!us!that!the!Rome!Statute!expressly!recognizes!the!primary! jurisdiction!of!states,!like!the!RP,!over!serious!crimes!committed!within!their! respective!borders,!the!complementary!jurisdiction!of!the!ICC!coming!into!play!only! when!the!signatory!states!are!unwilling!or!unable!to!prosecute.! Given!the!above!consideration,!petitioner’s!suggestion––that!the!RP,!by!entering! into!the!Agreement,!violated!its!duty!required!by!the!imperatives!of!good!faith!and! breached!its!commitment!under!the!Vienna!Convention!to!refrain!from!performing! any!act!tending!to!impair!the!value!of!a!treaty,!e.g.,!the!Rome!Statute––has!to!be! rejected!outright.!For!nothing!in!the!provisions!of!the!Agreement,!in!relation!to!the! Rome!Statute,!tends!to!diminish!the!efficacy!of!the!Statute,!let!alone!defeats!the! purpose!of!the!ICC.!Lest!it!be!overlooked,!the!Rome!Statute!contains!a!proviso!that! enjoins!the!ICC!from!seeking!the!surrender!of!an!erring!person,!should!the!process! require!the!requested!state!to!perform!an!act!that!would!violate!some! international!agreement!it!has!entered!into.!! Moreover,!under!international!law,!there!is!a!considerable!difference!between!a! State8Party!and!a!signatory!to!a!treaty.!Under!the!Vienna!Convention!on!the!Law!of! Treaties,!a!signatory!state!is!only!obliged!to!refrain!from!acts!which!would!defeat! the!object!and!purpose!of!a!treaty,!whereas!a!State8Party,!on!the!other!hand,!is! legally!obliged!to!follow!all!the!provisions!of!a!treaty!in!good!faith.!

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In!the!instant!case,!it!bears!stressing!that!the!Philippines!is!only!a!signatory!to!the! Rome!Statute!and!not!a!State8Party!for!lack!of!ratification!by!the!Senate.!Thus,!it!is! only!obliged!to!refrain!from!acts,!which!would!defeat!the!object!and!purpose!of!the! Rome!Statute.!Any!argument!obliging!the!Philippines!to!follow!any!provision!in!the! treaty!would!be!premature.! • Furthermore,!a!careful!reading!of!said!Art.!90!would!show!that!the!Agreement!is! not!incompatible!with!the!Rome!Statute.!Specifically,!Art.!90(4)!provides!that!"[i]f! the!requesting!State!is!a!State!not!Party!to!this!Statute!the!requested!State,!if!it!is! not!under!an!international!obligation!to!extradite!the!person!to!the!requesting! State,!shall!give!priority!to!the!request!for!surrender!from!the!Court.!x!x!x"!In! applying!the!provision,!certain!undisputed!facts!should!be!pointed!out:!first,!the!US! is!neither!a!State8Party!nor!a!signatory!to!the!Rome!Statute;!and!second,!there!is!an! international!agreement!between!the!US!and!the!Philippines!regarding!extradition! or!surrender!of!persons,!i.e.,!the!Agreement.!Clearly,!even!assuming!that!the! Philippines!is!a!State8Party,!the!Rome!Statute!still!recognizes!the!primacy!of! international!agreements!entered!into!between!States,!even!when!one!of!the! States!is!not!a!State8Party!to!the!Rome!Statute.! Sovereignty'Limited'by'International'Agreements' • Petitioner!next!argues!that!the!RP!has,!through!the!Agreement,!abdicated!its! sovereignty!by!bargaining!away!the!jurisdiction!of!the!ICC!to!prosecute!US! nationals,!government!officials/employees!or!military!personnel!who!commit! serious!crimes!of!international!concerns!in!the!Philippines.!! • We!are!not!persuaded.!As!it!were,!the!Agreement!is!but!a!form!of!affirmance!and! confirmance!of!the!Philippines’!national!criminal!jurisdiction.!National!criminal! jurisdiction!being!primary,!as!explained!above,!it!is!always!the!responsibility!and! within!the!prerogative!of!the!RP!either!to!prosecute!criminal!offenses!equally! covered!by!the!Rome!Statute!or!to!accede!to!the!jurisdiction!of!the!ICC.!Thus,!the! Philippines!may!decide!to!try!"persons"!of!the!US,!as!the!term!is!understood!in! the!Agreement,!under!our!national!criminal!justice!system.!Or!it!may!opt!not!to! exercise!its!criminal!jurisdiction!over!its!erring!citizens!or!over!US!"persons"! committing!high!crimes!in!the!country!and!defer!to!the!secondary!criminal! jurisdiction!of!the!ICC!over!them.! • !As!to!"persons"!of!the!US!whom!the!Philippines!refuses!to!prosecute,!the!country! would,!in!effect,!accord!discretion!to!the!US!to!exercise!either!its!national!criminal! jurisdiction!over!the!"person"!concerned!or!to!give!its!consent!to!the!referral!of!the! matter!to!the!ICC!for!trial.!In!the!same!breath,!the!US!must!extend!the!same! privilege!to!the!Philippines!with!respect!to!"persons"!of!the!RP!committing!high! crimes!within!US!territorial!jurisdiction.! • Nothing!in!the!Constitution!prohibits!such!agreements!recognizing!immunity!from! jurisdiction!or!some!aspects!of!jurisdiction!(such!as!custody),!in!relation!to!long8 •

!

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recognized!subjects!of!such!immunity!like!Heads!of!State,!diplomats!and!members! of!the!armed!forces!contingents!of!a!foreign!State!allowed!to!enter!another!State’s! territory.!! • To!be!sure,!the!nullity!of!the!subject!non8surrender!agreement!cannot!be! predicated!on!the!postulate!that!some!of!its!provisions!constitute!a!virtual! abdication!of!its!sovereignty.!Almost!every!time!a!state!enters!into!an!international! agreement,!it!voluntarily!sheds!off!part!of!its!sovereignty.!The!Constitution,!as! drafted,!did!not!envision!a!reclusive!Philippines!isolated!from!the!rest!of!the!world.! It!even!adheres,!as!earlier!stated,!to!the!policy!of!cooperation!and!amity!with!all! nations.! • By!their!nature,!treaties!and!international!agreements!actually!have!a!limiting! effect!on!the!otherwise!encompassing!and!absolute!nature!of!sovereignty.!By!their! voluntary!act,!nations!may!decide!to!surrender!or!waive!some!aspects!of!their!state! power!or!agree!to!limit!the!exercise!of!their!otherwise!exclusive!and!absolute! jurisdiction.!The!usual!underlying!consideration!in!this!partial!surrender!may!be!the! greater!benefits!derived!from!a!pact!or!a!reciprocal!undertaking!of!one!contracting! party!to!grant!the!same!privileges!or!immunities!to!the!other.!! Agreement'Not'Immoral/Not'at'Variance'with'Principles'of'International'Law' • Petitioner!urges!that!the!Agreement!be!struck!down!as!void!ab#initio!for!imposing! immoral!obligations!and/or!being!at!variance!with!allegedly!universally!recognized! principles!of!international!law.!The!immoral!aspect!proceeds!from!the!fact!that! the!Agreement,!as!petitioner!would!put!it,!"leaves!criminals!immune!from! responsibility!for!unimaginable!atrocities!that!deeply!shock!the!conscience!of! humanity;!x!x!x!it!precludes!our!country!from!delivering!an!American!criminal!to! the![ICC]!x!x!x."! • The!Court!is!not!persuaded.!Suffice!it!to!state!in!this!regard!that!the!non8surrender! agreement,!as!aptly!described!by!the!Solicitor!General,!"is!an!assertion!by!the! Philippines!of!its!desire!to!try!and!punish!crimes!under!its!national!law.!x!x!x!The! agreement!is!a!recognition!of!the!primacy!and!competence!of!the!country’s! judiciary!to!try!offenses!under!its!national!criminal!laws!and!dispense!justice!fairly! and!judiciously."! • Persons!who!may!have!committed!acts!penalized!under!the!Rome!Statute!can!be! prosecuted!and!punished!in!the!Philippines!or!in!the!US;!or!with!the!consent!of!the! RP!or!the!US,!before!the!ICC,!assuming,!for!the!nonce,!that!all!the!formalities! necessary!to!bind!both!countries!to!the!Rome!Statute!have!been!met.!For! perspective,!what!the!Agreement!contextually!prohibits!is!the!surrender!by!either! party!of!individuals!to!international!tribunals,!like!the!ICC,!without!the!consent!of! the!other!party,!which!may!desire!to!prosecute!the!crime!under!its!existing!laws.! With!the!view!we!take!of!things,!there!is!nothing!immoral!or!violative!of! international!law!concepts!in!the!act!of!the!Philippines!of!assuming!criminal!

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jurisdiction!pursuant!to!the!non8surrender!agreement!over!an!offense!considered! criminal!by!both!Philippine!laws!and!the!Rome!Statute.! No'Grave'Abuse'of'Discretion' • Petitioner’s!final!point!revolves!around!the!necessity!of!the!Senate’s!concurrence!in! the!Agreement.!And!without!specifically!saying!so,!petitioner!would!argue!that!the! non8surrender!agreement!was!executed!by!the!President,!thru!the!DFA!Secretary,! in!grave!abuse!of!discretion.! • By!constitutional!fiat!and!by!the!nature!of!his!or!her!office,!the!President,!as!head! of!state!and!government,!is!the!sole!organ!and!authority!in!the!external!affairs!of! the!country.!The!Constitution!vests!in!the!President!the!power!to!enter!into! international!agreements,!subject,!in!appropriate!cases,!to!the!required! concurrence!votes!of!the!Senate.!But!as!earlier!indicated,!executive!agreements! may!be!validly!entered!into!without!such!concurrence.!As!the!President!wields!vast! powers!and!influence,!her!conduct!in!the!external!affairs!of!the!nation!is,!as!Bayan! would!put!it,!"executive!altogether."!The!right!of!the!President!to!enter!into!or! ratify!binding!executive!agreements!has!been!confirmed!by!long!practice.! • In!thus!agreeing!to!conclude!the!Agreement!thru!E/N!BFO8028803,!then!President! Gloria!Macapagal8Arroyo,!represented!by!the!Secretary!of!Foreign!Affairs,!acted! within!the!scope!of!the!authority!and!discretion!vested!in!her!by!the!Constitution.! At!the!end!of!the!day,!the!President––by!ratifying,!thru!her!deputies,!the!non8 surrender!agreement––did!nothing!more!than!discharge!a!constitutional!duty!and! exercise!a!prerogative!that!pertains!to!her!office.! Agreement'Need'Not'Be'in'the'Form'of'a'Treaty' • On!December!11,!2009,!then!President!Arroyo!signed!into!law!Republic!Act!No.! (RA)!9851,!otherwise!known!as!the!"Philippine!Act!on!Crimes!Against!International! Humanitarian!Law,!Genocide,!and!Other!Crimes!Against!Humanity."!Sec.!17!of!RA! 9851,!particularly!the!second!paragraph!thereof,!provides:! Section!17.!Jurisdiction.!In!the!interest!of!justice,!the!relevant!Philippine! authorities!may!dispense!with!the!investigation!or!prosecution!of!a!crime! punishable!under!this!Act!if!another!court!or!international!tribunal!is!already! conducting!the!investigation!or!undertaking!the!prosecution!of!such!crime.!Instead,! the!authorities!may!surrender!or!extradite!suspected!or!accused!persons!in!the! Philippines!to!the!appropriate!international!court,!if!any,!or!to!another!State! pursuant!to!the!applicable!extradition!laws!and!treaties.!! • A!view!is!advanced!that!the!Agreement#amends!existing!municipal!laws!on!the! State’s!obligation!in!relation!to!grave!crimes!against!the!law!of!nations,!i.e.,! genocide,!crimes!against!humanity!and!war!crimes.!Relying!on!the!above8quoted! statutory!proviso,!the!view!posits!that!the!Philippine!is!required!to!surrender!to!the! proper!international!tribunal!those!persons!accused!of!the!grave!crimes!defined! under!RA!9851,!if!it!does!not!exercise!its!primary!jurisdiction!to!prosecute!them.!

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The!basic!premise!rests!on!the!interpretation!that!if!it!does!not!decide!to!prosecute! a!foreign!national!for!violations!of!RA!9851,!the!Philippines!has!only!two!options,!to! wit:!(1)!surrender!the!accused!to!the!proper!international!tribunal;!or!(2)!surrender! the!accused!to!another!State!if!such!surrender!is!"pursuant!to!the!applicable! extradition!laws!and!treaties."!But!the!Philippines!may!exercise!these!options!only! in!cases!where!"another!court!or!international!tribunal!is!already!conducting!the! investigation!or!undertaking!the!prosecution!of!such!crime;"!otherwise,!the! Philippines!must!prosecute!the!crime!before!its!own!courts!pursuant!to!RA!9851.! Moreover,!consonant!with!the!foregoing!view,!citing!Sec.!2,!Art.!II!of!the! Constitution,!where!the!Philippines!adopts,!as!a!national!policy,!the!"generally! accepted!principles!of!international!law!as!part!of!the!law!of!the!land,"!the!Court!is! further!impressed!to!perceive!the!Rome!Statute!as!declaratory!of!customary! international!law.!In!other!words,!the!Statute!embodies!principles!of!law!which! constitute!customary!international!law!or!custom!and!for!which!reason!it!assumes! the!status!of!an!enforceable!domestic!law!in!the!context!of!the!aforecited! constitutional!provision.!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.! Moreover,!RA!9851!clearly:!(1)!defines!and!establishes!the!crimes!against! international!humanitarian!law,!genocide!and!other!crimes!against!humanity;!(2)! provides!penal!sanctions!and!criminal!liability!for!their!commission,!and!(3)! establishes!special!courts!for!the!prosecution!of!these!crimes!and!for!the!State!to! exercise!primary!criminal!jurisdiction.!Nowhere!in!RA!9851!is!there!a!proviso!that! goes!against!the!tenor!of!the!Agreement.! The!view!makes!much!of!the!above!quoted!second!par.!of!Sec.!17,!RA!9851! as!requiring!the!Philippine!State!to!surrender!to!the!proper!international!tribunal! those!persons!accused!of!crimes!sanctioned!under!said!law!if!it!does!not!exercise! its!primary!jurisdiction!to!prosecute!such!persons.!This!view!is!not!entirely!correct,! for!the!above!quoted!proviso!clearly!provides!discretion!to!the!Philippine!State!on! whether!to!surrender!or!not!a!person!accused!of!the!crimes!under!RA!9851.!The! statutory!proviso!uses!the!word!"may."!It!is!settled!doctrine!in!statutory! construction!that!the!word!"may"!denotes!discretion,!and!cannot!be!construed!as! having!mandatory!effect.Thus,!the!pertinent!second!pararagraph!of!Sec.!17,!RA! 9851!is!simply!permissive!on!the!part!of!the!Philippine!State.1avvphi1! Besides,!even!granting!that!the!surrender!of!a!person!is!mandatorily!required!when! the!Philippines!does!not!exercise!its!primary!jurisdiction!in!cases!where!"another! court!or!international!tribunal!is!already!conducting!the!investigation!or!

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undertaking!the!prosecution!of!such!crime,"!still,!the!tenor!of!the!Agreement!is!not! repugnant!to!Sec.!17!of!RA!9851.!Said!legal!proviso!aptly!provides!that!the! surrender!may!be!made!"to!another!State!pursuant!to!the!applicable!extradition! laws!and!treaties."!! Likewise,!the!Philippines!and!the!US!already!have!an!existing!extradition!treaty,!i.e.,! RP8US!Extradition!Treaty,!which!was!executed!on!November!13,!1994.!The! pertinent!Philippine!law,!on!the!other!hand,!is!Presidential!Decree!No.!1069,!issued! on!January!13,!1977.!Thus,!the!Agreement,!in!conjunction!with!the!RP8US! Extradition!Treaty,!would!neither!violate!nor!run!counter!to!Sec.!17!of!RA!9851.! The!US!has!already!enacted!legislation!punishing!the!high!crimes!mentioned! earlier.!In!fact,!as!early!as!October!2006,!the!US!enacted!a!law!criminalizing!war! crimes.!Section!2441,!Chapter!118,!Part!I,!Title!18!of!the!United!States!Code! Annotated!(USCA)!provides!for!the!criminal!offense!of!"war!crimes"!which!is!similar! to!the!war!crimes!found!in!both!the!Rome!Statute!and!RA!9851! Similarly,!in!December!2009,!the!US!adopted!a!law!that!criminalized!genocide.! Despite!the!lack!of!actual!domestic!legislation,!the!US!notably!follows!the!doctrine! of!incorporation.!As!early!as!1900,!the!esteemed!Justice!Gray!in!The!Paquete! ! Habana case!already!held!international!law!as!part!of!the!law!of!the!US.!Thus,!a! person!can!be!tried!in!the!US!for!an!international!crime!despite!the!lack!of! domestic!legislation.!! 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.! Customary!international!law!or!international!custom!is!a!source!of!international! law!as!stated!in!the!Statute!of!the!ICJ.!It!is!defined!as!the!"general!and!consistent! practice!of!states!recognized!and!followed!by!them!from!a!sense!of!legal!obligation.! In!order!to!establish!the!customary!status!of!a!particular!norm,!two!elements!must! concur:!State!practice,!the!objective!element;!and!opinio!juris!sive!necessitates,!the! subjective!element.! State!practice!refers!to!the!continuous!repetition!of!the!same!or!similar!kind!of!acts! or!norms!by!States.!It!is!demonstrated!upon!the!existence!of!the!following! elements:!(1)!generality;!(2)!uniformity!and!consistency;!and!(3)!duration.!While,! opinio!juris,!the!psychological!element,!requires!that!the!state!practice!or!norm!"be! carried!out!in!such!a!way,!as!to!be!evidence!of!a!belief!that!this!practice!is!rendered! obligatory!by!the!existence!of!a!rule!of!law!requiring!it."! "The!term!‘jus!cogens’!means!the!‘compelling!law.’"Corollary,!"a!jus!cogens!norm! holds!the!highest!hierarchical!position!among!all!other!customary!norms!and! principles.!As!a!result,!jus!cogens!norms!are!deemed!"peremptory!and!non8 derogable."!When!applied!to!international!crimes,!"jus!cogens!crimes!have!been!

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deemed!so!fundamental!to!the!existence!of!a!just!international!legal!order!that! states!cannot!derogate!from!them,!even!by!agreement."! • 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.!Consequently,!no!matter!how!hard!one!insists,!the!ICC,!as!an!international! tribunal,!found!in!the!Rome!Statute!is!not!declaratory!of!customary!international! law.!More!than!eight!(8)!years!have!elapsed!since!the!Philippine!representative! signed!the!Statute,!but!the!treaty!has!not!been!transmitted!to!the!Senate!for!the! ratification!process.! • Further,!the!Rome!Statute!itself!rejects!the!concept!of!universal!jurisdiction!over! the!crimes!enumerated!therein!as!evidenced!by!it!requiring!State!consent.!Even! further,!the!Rome!Statute!specifically!and!unequivocally!requires!that:!"This!Statute! ! is!subject!to!ratification,!acceptance!or!approval!by!signatory!States.” These!clearly! negate!the!argument!that!such!has!already!attained!customary!status.! • In!light!of!the!above!consideration,!the!position!or!view!that!the!challenged!RP8US! Non8Surrender!Agreement!ought!to!be!in!the!form!of!a!treaty,!to!be!effective,!has! to!be!rejected.! Dispositive'Portion:!WHEREFORE,!the!petition!for!certiorari,!mandamus!and!prohibition!is! hereby!DISMISSED!for!lack!of!merit.!No!costs.! SO!ORDERED!

!

9. China'National'Machinery'v.'Santamaria'(RK)' TOPIC:!(1)!STATE!Immunity;!(2)!Executive!Agreement! Treaties/Laws:! • Theories!of!State!Immunity! • PIL:!Request!from!foreign!office!of!state!for!immunity! • Waiver!of!Immunity!~!The!Foreign!Sovereign!Immunities!Act!of!1976!of!US! • Definition!of!Treaty,!Executive!Agreement!(and!requisites)! ! RE:!NORTHRAIL!PROJECT! G.R.'No.'185572'February'7,'2012! Petitioner:!CHINA!NATIONAL!MACHINERY!&!EQUIPMENT!CORP.!(GROUP),!

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Respondents:! HON.! CESAR! D.! SANTAMARIA,! in! his! official! capacity! as! Presiding! Judge! of! Branch! 145,! Regional! Trial! Court! of! Makati! City,! HERMINIO! HARRY! L.! ROQUE,! JR.,! JOEL! R.! BUTUYAN,! ROGER! R.! RAYEL,! ROMEL! R.! BAGARES,! CHRISTOPHER! FRANCISCO! C.! BOLASTIG,! LEAGUE! OF! URBAN! POOR! FOR! ACTION! (LUPA),! KILUSAN! NG! MARALITA! SA! MEYCAUAYAN! (KMM8LUPA!CHAPTER),!DANILO!M.!CALDERON,!VICENTE!C.!ALBAN,!MERLYN!M.!VAAL,!LOLITA! S.! QUINONES,! RICARDO! D.! LANOZO,! JR.,! CONCHITA! G.! GOZO,! MA.! TERESA! D.! ZEPEDA,! JOSEFINA!A.!LANOZO,!and!SERGIO!C.!LEGASPI,!JR.,!KALIPUNAN!NG!DAMAYANG!MAHIHIRAP! (KADAMAY),!EDY!CLERIGO,!RAMMIL!DINGAL,!NELSON!B.!TERRADO,!CARMEN!DEUNIDA,!and! EDUARDO!LEGSON! Ponente:!SERENO,!J.:# ' FACTS:' • September' 14,' 2002:' China! National! Machinery! &! Equipment! Corporation! (hereinafter# CNMEG)! entered! into! a! Memorandum! of! Agreement! (MOU)! with! Northrail! Luzon! Railways! Corporation! (hereinafter# Northrail)! for! the! conduct! of! feasibility!study!on!a!possible!railway!line!from!Manila!to!San!Fernando,!La!Union,! also!known!as!the!Northrail!Project.!! • August' 30,' 2003:! ' Export! and! Import! Bank! of! China! (hereinafter# EXIM! Bank),! and! the! Dept.! of! Finance! entered! into! a! MOU,! wherein! China! agreed! to! extend! Preferential! Buyer’s! Credit! to! the! Philippine! Government! to! finance! the! Northrail! Project.! The! Chinese! Gov’t! designated! EXIM! Bank! as! the! lender,! while! the! Philippine!Gov’t!named!DOF!as!the!borrower.!! o AMT:!Not!exceeding!USD!400,000,000! o Period:!Payable!in!20!Years! o Grace!period:!5!years! o Rate:!3%!per!annum! • October' 1,' 2003:' Ambassador! Wang! Chungui! wrote! a! letter! to! DOF! of! CNMEG’s! designation!as!the!Prime!Contractor!for!the!Northrail!Project.! • December'30,'2003:'Northrail!and!CNMEG!executed!a!Contract!Agreement!for!the! construction! of! Section! 1,! Phase! 1! of! the! North! Luzon! Railway! System! from! Caloocan!to!Malolos!on!a!turnkey!basis! o Contract'price:!'USD!421,050,000! • February' 26,' 2004:! Philippine! Gov’t! and! EXIM! Bank! entered! into! a! counterpart! financial! agreement! –! Buyer! Credit! Load! Agreement! No.! BLA! 04055,! where! EXIM! Bank! agreed! to! extend! Preferential! Buyer’s! Credit! in! the! amount! of! USD! 400,000,000! in! favor! of! the! Philippines! to! finance! the! construction! of! Phase! 1,! of! the!Northrail!Project! • February' 13,' 2006:' Respondent!taxpayers!filed!in!the!Makati!RTV!a!complaint!for! annulment! of! contract! and! injunction! against! CNMEG,! the! Office! of! the! Executive! Secretary,!the!DOF,!the!DBM,!NEDA,!and!the!Northrail.!!

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RTC! set! the! case! for! hearing! on! the! issuance! of! injunctive! reliefs,! prompting! CNMEG! to! file! an! Urgent! Motion! for! Reconsideration! of! this! order.!! o Before! the! RTC! could! rule! on! this,! CNMEG! filed! a! motion! to! dismiss! the! case!arguing!the!RTC!did!not!have!jurisdiction!over!it.!!  CNMEG! argued! that! the! trial! court! did! not! have! jurisdiction! over(1)! its! person,! as! it! was! an! agent! of! the! Chinese! Gov’t,! making!it!immune!from!suit,!and!!  (2)!the!subject!matter,!as!the!Northrail!Project!was!a!product!of! an!executive!agreement! ! May' 15,' 2007:' RTC! issued! omnibus! order! denying! CNMEG’s! motion! to! dismiss! eventually!prompting!CNMEG!to!elevat!case!to!the!CA.!! April'4,'2008:'CA!dismissed!the!petition! THUS,'CNMEG!filed!the!instant!Petition!for!Review!on!Certiorari!dated!January!21,! 2009! o

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! ISSUES'' 1. WON!CNMEG!is!entitled!to!immunity,!precluding!it!from!being!sued!before!a!local! court! 2. WON! the! Contract! Agreement! is! an! executive! agreement,! such! that! it! cannot! be! questioned!by!or!before!a!local!court! ' HELD:' ' On'the'issue'of'Immunity' 1. Two'conflicting'concepts'of'sovereign'immunity' • classical'or'absolute'theory'88!a!sovereign!cannot,!without!its!consent,!be!made!a! respondent!in!the!courts!of!another!sovereign! • newer' or' restrictive' theory! 88! the! immunity! of! the! sovereign! is! recognized! only! with! regard! to! public! acts! or! acts!jure# imperii!of! a! state,! but! not! with! regard! to! private!acts!or!acts!jure#gestionis! o The!restrictive!theory!came!about!because!of!the!entry!of!sovereign!states!into! purely! commercial! activities! remotely! connected! with! the! discharge! of! governmental!functions.!! • JUSMAG' v' NLRC:! Court! affirmed! the! Philippines’! adherence! to! the! restrictive! theory! • Current' Doctrine:' the!application!of!the!doctrine!of!immunity!from!suit!has!been! restricted!to!sovereign!or!governmental!activities!(jure#imperii).'The!mantle!of!state!

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Public'International'Law' 2.

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immunity! cannot! be! extended! to! commercial,! private! and! proprietary! acts! (jure# gestionis)! CNMEG'is'engaged'in'a'proprietary'activity' • The!parties!executed!the!Contract!Agreement!for!the!purpose!of!constructing!the! Luzon! Railways.! However,! the! Contract! Agreement! must! not! be! read! in! isolation! because! it! does! not! on! its! own! reveal! whether! the! construction! of! the! Luzon! railways!was!meant!to!be!a!proprietary!endeavor.!! • The! Contract! of! Agreement! must! be! construed! in! conjunction! with! 3! other! documents:!(1)!the!MOU!between!Northrail!and!CNMEG,!(b)!Letter!of!Ambassador! Wang,!and!(c)!the!Loan!Agreement.!! o Memorandum!of!Understanding!dated!14!September!2002! 1. The!Memorandum!of!Understanding!dated!14!September!2002!shows!that! CNMEG! sought! the! construction! of! the! Luzon! Railways! as! a! proprietary! venture!(see#full#text#for#all#relevant#parts#of#the#MOU)!  APPROVAL! PROCES:! xxx! As! soon! as! possible! after! completion! and! presentation! of! the! Study…! the! parties! shall! commence! the! preparation! and! negotiation! of! the! terms! and! conditions! of! the! Contract!! 2. Clearly,!it'was'CNMEG'that'initiated'the'undertaking,!and!not!the!Chinese! government.! The! Feasibility! Study! was! conducted! not! because! of! any! diplomatic! gratuity! from! or! exercise! of! sovereign! functions! by! the! Chinese! government,!but!was!plainly!a!business!strategy!employed!by!CNMEG!with! a!view!to!securing!this!commercial!enterprise.! o Letter!Dated!1!OCT!2003! 1. That! CNMEG,! and! not! the! Chinese! government,! initiated! the! Northrail! Project! was! confirmed! by! Amb.! Wang! in! his! letter! dated! 1! October! 2003! (see#full#text#for#all#relevant#parts#of#the#Letter)!  “…CNMEG! already! signed! an! MOU! with! the! North! Luzon! Railways! Corporation! last! September! 14,! 2000! during! the! visit! of! Chairman! Li! Peng.! Such! being! the! case,! they! have! already! established! an! initial! working!relationship!with!your!North!Luzon!Railways!Corporation…”! 2. Thus,! the! desire! of! CNMEG! to! secure! the! Northrail! Project! was! in! the! ordinary!or!regular!course!of!its!business!as!a!global!construction!company.!  The! use! of! the! term! "state! corporation"! to! refer! to! CNMEG! was! only! descriptive! of! its! nature! as! a! government8owned! and/or! 8controlled! corporation,! and! its! assignment! as! the! Primary! Contractor! did! not! imply!that!it!was!acting!on!behalf!of!China!! o The!Loan!Agreement! 1. CNMEG! claims! immunity! on! the! ground! that! the! Aug! 30! MOU! on! the! financing!of!the!Northrail!Project!was!signed!by!the!Philippine!and!Chinese!

3.

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governments,! and! its! assignment! as! the! Primary! Contractor! meant! that! it! was!bound!to!perform!a!governmental!function!on!behalf!of!China.! 2. However,! the! Loan! Agreement! belies! this! reasoning.! (see# full# text# for# all# relevant#parts#of#the#loan#agreement)!  Article! 11.! Xxx! (j)! Commercial! Activity! Borrower’s!private' and' commercial'acts'done'and'performed'for'commercial'purposes'under' the'laws'of'the'Republic'of'the'Philippines'and'neither'the'Borrower' nor' any' of' its' assets' is' entitled' to' any' immunity' or' privilege' (sovereign'or'otherwise)'from'suit….! 3. Loan! Agreement! likewise! contains! this! express! waiver! of! immunity:! “The! Borrower!irrevocably!and!unconditionally!waives,!any!immunity!to!which!it! or!its!property!may!at!any!time!be!or!become!entitled….”!  Thus,!it!is!clear!from!the!foregoing!provisions!that!the!Northrail!Project! was!a!purely!commercial!transaction! • Thus! piecing! together! the! above! would! reveal! the! desire! of! CNMEG! to! construct! the!Luzon!Railways!in!pursuit!of!purely!commercial!activity!performed!in!ordinary! course!of!its!business.!! CNMEG'failed'to'adduce'evidence'that'it'is'immune'from'suit'under'Chinese'Law! • Even! assuming!arguendo!that! CNMEG! performs! governmental! functions,! such! claim!does!not!automatically!vest!it!with!immunity!because!“immunity!from!suit!is! determined! by! the! character! of! the! objects! for! which! the! entity! was! organized”! (Malong!v.!PNR)! • Court’s! ruling! in! Deutsche' Gesellschaft' Fur' Technische' Zusammenarbeit' (GTZ)' v.' CA:! o The!mere!entering!into!a!contract!by!a!foreign!state!with!a!private!party!cannot! be!the!ultimate!test.!Such!an!act!can!only!be!the!start!of!the!inquiry.!! o The!logical!question!is!whether!the!foreign!state!is!engaged!in!the!activity!in!the! regular!course!of!business.! 1. If!not,!the!particular!act!or!transaction!must!then!be!tested!by!its!nature.!  if! the! act! is! in! pursuit! of! a! sovereign! activity,! or! an! incident! thereof,! then!it!is!an!act!jure!imperii! o The! principle! of! state! immunity! from! suit,! whether! a! local! state! or! a! foreign! state,!is!reflected!in!Section!9,!Article!XVI!of!the!Constitution,!which!states!that! "the!State!may!not!be!sued!without!its!consent."!! 1. IF!the!suit!is!against!the!STATE!itself,!the!only!necessary!inquiry!is!whether! said!State!had!consented!to!be!sued.! 2. IF!it!is!against!a!State’s!agency,!then!see!below:! o State! immunity! from! suit! may! be! waived! by! general! or! special! law.! The! special! law! can! take! the! form! of! the! original! charter! of! the! incorporated! government! agency!

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Public'International'Law' 1. 2. 3.

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Thus,!the!agency!can!simply!invoke!its!charter!and!claim!exemption.! Also,!the!court!can!simply!check!the!charter!and!sue.!! However,! if! the! agency! fails! to! invoke! exemption! from! its! national! law! or! charter,! “We' adhere' to' the' rule' that' in' the' absence' of' evidence' to' the' contrary,'foreign'laws'on'a'particular'subject'are'presumed'to'be'the'same' as'those'of'the'Philippines,'and'following'the'most'intelligent'assumption' we' can' gather,' GTZ' is' akin' to' a' governmental' owned' or' controlled' corporation' without' original' charter' which,' by' virtue' of' the' Corporation' Code,'has'expressly'consented'to'be'sued.”'' o Applying!GTZ!v.!CA!to!the!present!case,!it!is!readily!apparent!that!CNMEG!cannot! claim! immunity! from! suit,! even! if! it! contends! that! it! performs! governmental! functions! 1. Its! designation! as! the! Primary! Contractor! does! not! automatically! grant! it! immunity! 2. Although!CNMEG!claims!to!be!a!government8owned!corporation,!it!failed!to! adduce!evidence!that!it!has!not!consented!to!be!sued!under!Chinese!law.! o THUS,in!the!absence!of!evidence!to!the!contrary,!CNMEG!is!to!be!presumed!to! be!a!government8owned!and!8controlled!corporation!without!an!original!charter.! As! a! result,! it! has! the! capacity! to! sue! and! be! sued! under! Section! 36! of! the! Corporation!Code.! CNMEG'failed'to'present'a'certification'from'the'DFA! • the! determination! by! the! Executive! that! an! entity! is! entitled! to! sovereign! or! diplomatic!immunity!is!a!political!question!conclusive!upon!the!courts! • In' Public' International' Law,!when!a!state!or!international!agency!wishes!to!plead! sovereign!or!diplomatic!immunity!in!a!foreign!court,!it!requests!the!Foreign!Office! of!the!state!where!it!is!sued!to!convey!to!the!court!that!said!defendant!is!entitled! to!immunity.!(Holy!See!v.!Rosario)! o In!the!Philippines,!the!practice!is!for!the!foreign!government!or!the!international! organization!to!first!secure!an!executive!endorsement!of!its!claim!of!sovereign!or! diplomatic!immunity.! o But! how! the! Philippine! Foreign! Office! conveys! its! endorsement! to! the! courts! varies:! 1. Sent!a!letter!directly!to!the!Secretary!of!Labor!and!Employment,!informing! the!latter!that!the!respondent8employer!could!not!be!sued! 2. Secretary!of!Foreign!Affairs!sent!the!trial!court!a!telegram!to!that!effect! 3. In!some!cases,!the!defense!of!sovereign!immunity!was!submitted!directly!to! the!local!courts!by!the!respondents!through!their!private!counsels! 4. In!cases!where!the!foreign!states!bypass!the!Foreign!Office,!the!courts!can! inquire!into!the!facts!and!make!their!own!determination!as!to!the!nature!of! the!acts!and!transactions!involved!

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The! question! now! is! whether! any! agency! of! the! Executive! Branch! can! make! a! determination!of!immunity!from!suit,!which!may!be!considered!as!conclusive!upon! the! courts.! The! SC! emphasized' DFA’s' competence! and! authority! to! provide! such! necessary!determination! o The! DFA’s! function! includes,! among! its! other! mandates,! the! determination! of! persons!and!institutions!covered!by!diplomatic!immunities…! • Moreover,!this!authority!is!exclusive'to!the!DFA! o In!the!case!at!bar,!CNMEG!offers!the!Certification!executed!by!the!Economic!and! Commercial!Office!of!the!Embassy!of!the!People’s!Republic!of!China,!stating!that! the!Northrail!Project!is!in!pursuit!of!a!sovereign!activity.! 1. However,! this! is! not! the! kind! of! certification! that! can! establish! CNMEG’s! entitlement!to!immunity!from!suit,!as!Holy!See!unequivocally!refers!to!the! determination!of!the!"Foreign!Office!of!the!state!where!it!is!sued! o Further,! CNMEG! also! claims! that! its! immunity! from! suit! has! the! executive! endorsement! of! both! the! OSG! and! the! Office! of! the! Government! Corporate! Counsel!(OGCC)! 1. BUT,!determination!by!the!OSG,!or!by!the!OGCC!for!that!matter,!does!not! inspire!the!same!degree!of!confidence!as!a!DFA!certification.! Agreement' to' submit' dispute' to' arbitration' may' be' construed' as' implicit' waiver' of' immunity'from'suit! • In!the!United!States,!The'Foreign'Sovereign'Immunities'Act'of'1976!provides!for!a! waiver! by! implication! of! state! immunity.! The! law! provides! that! agreement! to! submit! to! arbitration! in! a! foreign! country! is! construed! as! an! implicit! waiver! of! immunity!of!suit.! • Although!there!is!no!similar!law!in!the!Philippines,!there!is!reason!to!apply!the!legal! reasoning!behind!the!waiver!in!this!case.! • The!Conditions!of!Contract!in!the!Contract!Agreement!provides!for!Settlement' of' Disputes'and'Arbitration! From! all! the! foregoing,! it! is! clear! that! CNMEG! has! agreed! that! it! will! not! be! afforded! immunity!from!suit.!Thus,!the!courts!have!the!competence!and!jurisdiction!to!ascertain! the!validity!of!the!Contract!Agreement.! ! ON'EXECUTIVE'AGREEMENT..' Article! 2(1)! of! the! Vienna! Convention! on! the! Law! of! Treaties! (Vienna! Convention)! defines!a!treaty!as!follows:' • [A]n! 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.' •

5.

6.

1.

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Public'International'Law' 2.

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4.


In!Bayan#Muna#v.#Romulo,!this!Court!held!that!an' executive' agreement' is' similar' to' a' treaty,!except!that!the!former!(a)!does!not!require!legislative!concurrence;!(b)!is!usually! less!formal;!and!(c)!deals!with!a!narrower!range!of!subject!matters.' The! Requisites! of! an! Executive! agreement! are:! (a)! the! agreement! must! be! between! states;!(b)!it!must!be!written;!and!(c)!it!must!governed!by!international!law' • The!first!and!the!third!requisites!do!not!obtain!in!the!case!at!bar.' o CNMEG#is#neither*a*government*nor*a*government*agency.' 1. The! Contract! Agreement! was! not! concluded! between! the! Philippines! and! China,!but!between!Northrail!and!CNMEG' 2. Northrail!is!a!government8owned!or!8controlled!corporation,!while!CNMEG! is!a!corporation!duly!organized!and!created!under!the!laws!of!the!People’s! Republic!of!China'  Both! Northrail! and! CNMEG! entered! into! the! Contract! Agreement! as! entities! with! personalities! distinct! and! separate! from! the! Philippine! and!Chinese!governments,!respectively.' 3. Neither! can! it! be! said! that! CNMEG! acted! as! agent! of! the! Chinese! government'  Amb.!Wang,!in!his!letter!dated!1!October!2003,!described!CNMEG!as!a! "state!corporation' o The#Contract#Agreement#is#to#be#governed#by#Philippine#law.' 54 1. Article! 2! of! the! Conditions! of! Contract, !which! under! Article! 1.1! of! the! Contract! Agreement! is! an! integral! part! of! the! latter,! states:! “The! contract! shall! in! all! respects! be! read! and! construed! in! accordance! with! the! laws! of! the!Philippines…”' 2. Since!the!Contract!Agreement!explicitly!provides!that!Philippine!law!shall!be! applicable,! the! parties! have! effectively! conceded! that! their! rights! and! obligations!thereunder!are!not!governed!by!international!law.' It!is!therefore!clear!from!the!foregoing!reasons!that!the!Contract!Agreement!does!not! partake! of! the! nature! of! an! executive! agreement.! It! is! merely! an! ordinary! commercial! contract!that!can!be!questioned!before!the!local!courts.'

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! WHEREFORE,! the! instant! Petition! is!DENIED.! Petitioner! China! National! Machinery! &! Equipment!Corp.!(Group)!is!not!entitled!to!immunity!from!suit,!and!the!Contract!Agreement! is! not! an! executive! agreement.! CNMEG’s! prayer! for! the! issuance! of! a! TRO! and/or! Writ! of! Preliminary! Injunction! is! DENIED! for! being! moot! and! academic.! This! case! is! REMANDED! to! the!Regional!Trial!Court!of!Makati,!Branch!145,!for!further!proceedings!as!regards!the!validity! of!the!contracts!subject!of!Civil!Case!No.!068203.!

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MCRAE: STATE PRACTICE I. CUSTOMARY INTERNATIONAL LAW The Paquete Habana (RC) Topic: Int’l Customary Law (ICL), Usage ripens into ICL, fishing boats, in the exercise of their profession, are exempt from capture as prizes of war Treaties: NONE, but these agreements/orders/edicts were mentioned in the case Henry IV and King of France: Concerning Safety of Fishermen (1400 and 1403) Emperor Charles V and Francis L of France (1521) French and Dutch Edicts (1538) Louis XIV and Holland and the Dutch (1675) France and England and US during the War of Independence (1779)* US and Mexico (1846)* *US was directly involved 175 US 677 Parties: Unknown, just stated that appeal from decrees of the district court of Florida FACTS: There was a blockade between the US and Spain during the American-Spanish War. Two fishing boats sailing under the Spanish flag with crew and ownership (a Spanish subject) from Havana, Cuba were captured and brought into Key West, Florida. The crew had no knowledge of the existence of war or any blockade. They did not resist nor made any attempt to run the blockade at the time of capture. The Florida court decreed after trial a condemnation and sale of the two vessels because there was no existing ordinance, treaty or proclamation that boats of their class were exempt form seizure. ISSUE/HELD: W/N the boats were exceptions to being prizes of war based on ICL? YES Upon the facts proved, in either case, it is the duty of this court, sitting as the highest prize court of the United States, and administering the law of nations, to declare and adjudge that the capture was unlawful and without probable cause; and it is therefore, that the decree of the District Court be reversed. RATIO: By ancient usage among civilized nations, beginning centuries ago and gradually ripening into a rule of international law, coast fishing vessels, pursing their

vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prizes of war. The would cite the following agreements/orders/edicts: o Henry IV and King of France: Concerning Safety of Fishermen (1400 and 1403) o Emperor Charles V and Francis L of France (1521) o French and Dutch Edicts (1538) o Louis XIV and Holland and the Dutch (1675) o France and England and US during the War of Independence (1779)* o US and Mexico (1846)* All these were made during times of conflict between the various countries recognizing the vulnerability of its citizens and their need to continue on fishing for livelihood. They all made exempt fishing vessels exempt from capture as prizes of war. It was repeatedly said that citizens shouldn’t suffer unduly during such times and should be allowed to provide livelihood for themselves. The only exception of this long-standing practice being the capture of French and Dutch vessels by the English during the French Revolution. Lord Stowell (the guy who issued the order to capture) stated: o The exemption of fishing vessels was only a rule of comity and not of legal decision. o Comity was used synonymously with courtesy or goodwill and no court in England at the time had made any decision exempting such. The US SC went on to say that international law is part of our law and must be ascertained and administered by the courts of justice. Where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usage of civilized nations, and as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subject of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. The review of precedence and authorities demonstrates that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of mutual convenience of belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their calling are exempt for capture as prizes of war. Whatever the may have been its origins whether usage or ordinances it has become the law of the sea only by concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which, when generally accepted, became of universal obligation. 1

The Asylum Case (Columbia v. Peru) (RC) Topic: Regional Customary Law, Burden of Proof for Custom, Constant and Uniform Usage as evidence of custom, political asylum Treaties: Bolivarian Agreement on Extradition (1911) Convention on Asylum (1928) Havana Convention (1928) Montevido Convention (1933 & 1939) 17 I.L.R. 280, I.C.J. Rep. 266 Petitioner: Columbia Respondent: Peru They submitted themselves to the jurisdiction of ICJ thru the Act of Lima of 1949. FACTS: October 1948, military rebellion broke out in Peru and was suppressed the same day. Victor Raul Haya de la Torre (de la Torre) was charged with military rebellion as being the leader of the faction responsible. In 1949, de la Torre sought asylum in the Columbian embassy Peru. According to the embassy de la Torre was qualified as a political refugee. Relying on the Bolvarian Agreement and the Convention on Asylum and general American International Law, they argued that qualification was both implied in the conventions and inherent in the institution of asylum. Peruvian government said that he was a mere criminal and cannot avail of asylum. ISSUE/HELD: W/N Columbia was competent as the country granting asylum, to qualify the offense for the purpose of granting asylum? NO Such competence is not inherent in the institution of diplomatic asylum. Furthermore, neither the Havana Convention nor the Montevido Convention justified the reliance on custom. RATIO: Neither the Bolivarian Agreement nor the Convention on Asylum in force between Peru and Columbia grant the right to qualify the offense. Columbia’s reliance on practice and usage is also unfounded. First, the one relying on the custom must prove that the custom does exist. ON THE EXISTENCE OF SUCH CUSTOM: Columbia cited the following treaties to prove such custom:

o Montevido Convention of 1889 o Bolivarian Agreement of 1911 o Havana Convention of 1928 o Montevido Conventions of 1933 & 1939 None of these treaties except the 1933 Convention contain any provision concerning the alleged rule of unilateral and definitive qualification. Further, according to Columbia, Montevido Convention of 1933, merely codified principles which were already recognized by Latin-American countries on asylum and extradition and was valid proof of custom against Peru. The 1933 Convention was only ratified by a limited number of countries. Peru resisted its ratification, so cannot be said to abide by it. As such, Columbia failed to prove the existence of any such custom. As the state granting asylum, Columbia is not competent to qualify the offense y unilateral and definitive decision, binding on Peru. WHAT IS QUALIFICATION? (read thru random things in Google) From what I understand…. It’s whether or not the one claiming it can be considered a political refugee. He has to meet the qualifications before he can claim asylum.

North Sea Continental Shelf Cases (RC) Topic: Int’l Customary Law, Equidistant Principal is Custom Treaties: Agreements between the countries Geneva Convention on the Continental Shelf I.C.J. Rep. 1969 Petitioner: Federal Republic of Germany Respondents: Denmark and Netherlands FACTS: Germany, Denmark and the Netherlands had made lateral line agreements delimiting the North Sea continental shelves. Denmark and the Netherlands said that the equidistant-special circumstances principle in Article 6(2) of Geneva Convention applied. By applying this, Germany for a smaller portion. Germany argued that the doctrine of just and equitable share applied. ICJ ruled against Germany. But also stated that the equidistant rule was only customary international law that was not crystallized by the Geneva Convention. ISSUE/HELD: W/N Geneva Convention on Continental Shelf crystallized the equidistant principal as int’l law? NO 2

What rule applies? Equidistant Principle W/N the equidistant principal is customary int’l law? YES RATIO: ARTICLE 6(2) of Geneva Convention on the Continental Shelf This is subject to other agreements between the countries. It is contractual in nature and based on equity. This article was framed so as to put second the obligation to make use of the equidistant method, causing it to come after a primary obligation to effect delimitation by agreement between the parties. So the countries have to continue negotiations with the following in mind: o Delimitation of boundaries is to be effected by agreement in accordance of equitable principles, and taking into account all of the relevant circumstances, to allow Parties to have as much shelf without encroachment on the natural prolongation of the land territory of the other o A degree of proportionality Even though it isn’t binding as int’l law. It is part of customary int’l law. CUSTOMARY INT’L LAW Article 6(2) is a norm-creating provision partly because of its own impact, partly on the basis of subsequent State practice. It has thus, become binding on countries not even part of the Convention TEST/EXISTENCE OF OPINIO JURIS: 1. Be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law (objective part – settled practice) 2. States conform because they feel a legal obligation (subjective – opinio juris sive necessitatis) Another element to be considered is that of TIME (it’s been 10 years since the Convention was signed and five since it came into force). But a short of passage of time does not in itself prevent the formation of custom. What matters is that state practice should have been both extensive and virtually uniform in the provision invoked. So refer to the test above. DISSENTING OPINION: According to Judge Sorenson, Article 6(2) is int’l law. It is generally accepted by signatories, Germany never refused to recognize it. In fact, Germany has used the same Convention to secure for itself other rights in the continental shelf.

Statement of Mr. JA Beesley to the 1st Committee of the GA on Unilateral State Action in Development of CIL (JG) TOPIC: Customary International Law; Methods in the Development of the Law of the Sea TREATY: None, but the Geneva Law of the Sea Conferences and the Geneva Convention on the Territorial Sea were mentioned. FACTS: On December 4, 1970, Mr. J.A. Beesley, Canadian Representative, made a statement addressed to the First Committee of the General Assembly regarding unilateral state action in the development of customary international law. He said that: o In order to prevent the threatened degradation of the marine environment and to ensure an orderly and equitable exploitation of seabed resources, there must be an effective and early international action. o While awaiting such action, states must be responsible for preventing pollution of the sea and for instituting regulatory measures for the conservation of its living resources. o States should not neglect their responsibility to cooperate on a bilateral and multilateral basis for the fulfillment of these purposes. o If the international community delays of fails to agree on a new order of the Law of the Sea, states shall make use of the existing law. ISSUE/POSITION OF CANADA: In developing the Law of the Sea, which method has more merits, Unilateralism or Multi-lateralism? It is Canada’s position that multilateral action and unilateral action are not mutually exclusive courses. They should not be treated as alternatives. The contemporary international law of the sea comprises both conventional and customary law. o Conventional or Multi-Lateral Treaty Law must be developed primarily by multilateral action, drawing as necessary upon principles of customary international law. Multilateral conventions consist of both codification of existing principles of international law and progressive development of new principles. o Customary International Law, on the other hand, is derived primarily from state practice, i.e. unilateral action by various states, frequently drawing upon the principles embodied in bilateral and limited multilateral treaties. Law-making treaties often become accepted not by virtue of their status as treaties, but through a gradual acceptance by states of the principles they lay down. 3

Unilateral action carried to an extreme and based upon conflicting principles could produce complete chaos, while insistence upon the multilateral approach alone can lead to the situation which has prevailed since the failure of the two Geneva Law of the Sea Conferences to reach agreement upon the breadth of the territorial sea and fishing zones. Hence, what is required is a judicious mix of the two approaches, taking into account the complex set of inter-related and sometimes conflicting political, economic and legal considerations, both national and international, and based upon the imperatives of time itself.

Trends in the Law of the Sea (JG) D.P. O’Connel, Chichele Professor of Public International Law Topics: Two Schools of Thought in the International Legal System; Opinio Juris vs. Effectivity Treaties: Geneva Convention of the Law of the Sea of 1958 The Third Law of the Sea Conference has revealed the extent of the current incoherence in international law. For the past two hundred years, there have been two main doctrines on the ultimate nature of the international legal system: 1. Grotian Tradition of Moral Order – whereby the rules of international law have been elucidated by reference to what the society of mankind requires for its regular development; and 2. Vatellian Tradition of Acquiescence and Consent – whereby these rules have been promulgated by reference to the practices of States. o The difference between the two has been marked by difficulty in practice by the common doctrine of opinion juris, the doctrine that supposes that governments act based on legal conviction and not from motives of power and gain. The doctrine of opinion juris provided international lawyers with a workable methodology, as in the case of maritime law, where practice established the freedom of the seas and the nature of the territorial sea. But the methodology has now collapsed because governments now, in the matter of the Law of the Sea, no longer act by reference to what they think the law is; they deliberately break traditional rules in order to bring about the changes they seek (e.g. setting the 200 mile exclusive zone). The 200-mile exclusive zone rule is a product of a State practice based upon power and not upon formal rules. The power may be justified on the basis of moral, sociological, or other considerations, but it is not based on opinion juris.

The alternative methodology to opinion juris is effectivity, where a rule is made or changed simply by making it effective. And the only way to make it effective is by the use of force. Judge Read in the International Court in the Anglo-Norwegian Fisheries case pointed out that in maritime law, State practice can be found in seizures, where the coastal state asserts its sovereignty over the waters in question. This is an alarming doctrine because it supposes that the law is a product of force and not the curb of force. Also, it puts a premium on unilateral action and leads to constant struggles and disputes among states. The Geneva Conventions of the Law of the Sea of 1958 were supposed to be a codification of the maritime law, and for that reason they did not contain any denunciation clauses. One third of the countries at the Third Law of the Sea Conference have ratified or acceded. Most countries even repudiated some of their rules. Due to rapid technological growth and changing economic and social circumstances, the old rules which magnified the freedom of the seas, have been replaced. Absolute freedom cannot be upheld when the result would be the devastation of fishery resources and the disruption of the economies and societies of countries dependent upon local fishing. The only way to reconcile absolute freedom with regulation is through unilateral action. However, that raises difficult questions as to when such action is so widespread and so uniform so as to completely change the rules. In the Icelandic Fisheries Case of 1974, the International Court held that Iceland could not validly assert a 50-mile claim to drive away British and German fishermen. However, the reasons given for the decision were so various as to leave the law in as confused a condition as before the case began. o The Court held that exclusive fishery limits extended only to 12 miles. This was determined by recording the pressures of unilateral actions during the 1960’s which had established that limit. o The Court also endorsed the doctrine of effectivity, which provided a juridical platform for Iceland to eventually consolidate a 200-mile limit.

Fisheries Jurisdiction Case (UK v. Ireland) (JG) TOPIC: Fishery Zone; Preferential Rights of Fishing in Adjacent Waters; Negotiations to Delimit the Rights and Interests of States TREATIES: Exchange of Notes of 1961 between U.K. and Iceland – regarding Iceland’s fishery limits Geneva Convention on the High Seas 1958 Resolution and 1960 joint amendment – concerning preferential rights 4

Arrangement Relating to Fisheries in Waters Surrounding the Faroe Islands- signed in 1973 on behalf of Belgium, Denmark, France, Germany, Norway, Poland, and the UK Agreement on the Regulation of the Fishing of North-East Arctic (ArctoNorwegian) Cod – signed in 1974 on behalf of the UK, Norway, and the Union of Soviet Republics FACTS: The Government of Iceland promulgated Regulations in 1972, which established a zone of exclusive fisheries jurisdiction extending to 50 nautical miles from baselines around the coast of Iceland. The 1958 Convention on the Territorial Sea and the Contiguous Zone did not define the breadth of the territorial sea, but Article 24 of this Convention limits the contiguous zone to 12 miles “from the baseline from which the breadth of the territorial sea is measured”. The question of the breadth of the territorial sea and that of the extent of the coastal State’s fishery jurisdiction were referred to the Second Conference on the Law of the Sea in 1960. Furthermore, the question of the extent of the fisheries jurisdiction of the coastal State became gradually separated from the notion of the territorial sea. The 1960 Conference failed by one vote to adopt a text governing the two questions of the breadth of the territorial sea and the extent of fishery rights. Two concepts have crystallized as customary law from the general consensus at the Conference: o Fishery Zone – the area in which a State may claim exclusive fishery jurisdiction independently of its territorial sea; the extension of that fishery zone up to a 12-mile limit from the baselines appears now to be generally accepted. o Preferential Rights of Fishing in Adjacent Waters – in favour of the coastal State in a situation of special dependence on its coastal fisheries. The concept of a 12-mile fishery zone has been accepted with regard to Iceland in the substantive provisions of the 1961 Exchange of Notes, and the United Kingdom has also applied the same fishery limits to its own coastal waters since 1964. U.K. has also expressly recognized Iceland’s preferential rights in the undisputed waters and at the same time has invoked its own historic fishing rights, on the ground that reasonable regard must be had to such traditional rights by the coastal State in accordance with the generally recognized principles embodied in Article 2 of the Geneva Convention on the High Seas Convention, which declares that “the high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty” and goes on to provide that freedom of the high seas comprises freedom of navigation and freedom of fishing. The freedoms of the high seas are however made subject to the consideration that

they shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas.

ISSUES: 1. Whether or not Iceland is entitled to claim preferential rights? YES 2. Whether or not it may unilaterally exclude the U.K. fishing vessels from all fishing activity in the waters beyond the limits agreed to in the 1961 Exchange of Notes? NO HELD/RATIO: Essentially, the Court held that: o Iceland is entitled to preferential rights o However, its legislation in 1972 was illegal; Iceland was not entitled unilaterally to exclude United Kingdom fishing vessels o The two governments were under mutual obligations to negotiate an equitable solution o The preferential rights of Iceland and the established rights of the U.K. as well as the interests of other States should be taken into account in the negotiations. There can be no doubt of the exceptional dependence of Iceland on its fisheries. That exceptional dependence was explicitly recognized by the U.K. in the Exchange of Notes of March 11, 1961. The preferential rights of the coastal State come into play only at the moment when an intensification in the exploitation of fishery resources makes it imperative to introduce some system of catch-limitation and sharing of those resources, to preserve the fish stocks in the interests of their rational and economic exploitation. This situation appears in the present case. The concept of preferential rights is not incompatible with the exclusion of all fishing activities of other States. A coastal State entitled to preferential rights is not free, unilaterally and according to its own uncontrolled discretion, to determine the extent of those rights. Accordingly, the fact that Iceland is entitled to claim preferential rights does not justify its claim to unilaterally exclude U.K. fishing vessels from all fishing activity in the waters. The provisions of the Icelandic Regulations of 1972 and the manner of their implementation disregard the fishing rights of UK. Iceland’s unilateral action thus constitutes an infringement of Article 2 of the 1958 Geneva Convention on the High Seas, which requires that all States, including coastal States, in exercising their freedom of fishing, pay reasonable regard to the interests of other States. The most appropriate method for the solution of the dispute is negotiation. Its objective should be the delimitation of the rights and interests of the Parties, the preferential rights of the coastal State on the one hand, and the rights of the other 5

State (i.e. UK) on the other, to balance and regulate equitably questions such as those of catch-limitation, share allocations and related restrictions concerning areas closed to fishing, number and type of vessels allowed and forms control of the agreed provisions. The obligation to negotiate flows form the very nature of the respective rights of the Parties and is in accordance with the provisions of the UN Charter concerning peaceful settlement of disputes.

Nuclear Test Cases (Australia v. France; New Zealand v. France) (JG) I.C.J. Reports 1974, pp. 253, 457 TOPIC: Obligatory Character of Customary International Law; The concept of Erga Omnes (obligations binding against the entire world) TREATIES: none FACTS: On June 8, 1974, the Office of the President of the French Republic released its first statement declaring its intention to conduct a series of nuclear tests in the South Pacific. New Zealand and Australia opposed the tests. On June 10, 1974, the French Embassy in Wellington sent a Note to the New Zealand Ministry of Foreign Affairs saying that France is in a position to conduct the series of underground tests as soon as the planning is completed and that the atmospheric tests will be the last ones to be carried out. On July 25, 1974, the President of France also made a statement at the press conference declaring that the French nuclear testing will continue, but this round of atmospheric tests would be the last. Similar statements were made by the French Minister of Defence at a press conference and on French television. ISSUE: Whether or not France made public its intention to cease the conduct of atmospheric tests following the conclusion of the 1974 series of tests? YES HELD/RATIO: It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with intent to be bound, even though not made within the context of international negotiations, is binding. o In these circumstances, nothing in the nature of a quid pro quo (according to Merriam-Webster: something given or received for

something else) nor any subsequent acceptance of the declaration, nor even any reply or reaction from the other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made. Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound – the intention is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for. The Court also stated that for such statements to create commitments in international law, no particular form is required – hence, it may be oral or written, provided that there is clear intention to be bound therewith. The Court further stated that the test is whether the language employed in any given declaration does reveal a clear intention. One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so is also the binding character of an international obligation assumed by unilateral declaration. Thus, interested states may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected. Of the statements by the French Government, the most essential are clearly those made by the President of the Republic. His statements and those of members of the French Government acting under his authority, in whatever form these statements were expressed, must be held to constitute an engagement of the State, having regard to their intention and to the circumstances in which they were made. The unilateral statements of the French authorities were made outside the Court, publicly and erga omnes. Hence, they are valid and binding against the entire world. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large, its intention effectively to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The test is whether from the actual substance of these statements, and from the circumstances attending their making, legal implications of the unilateral act can be deduced. In the statements made by France, the objects are clear and were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect. DISSENTING OPINION OF JUDGE SIR GARFIELD BARWICK Basically, it is the opinion of the judge that there was no clear intention on the part of France to undertake a legal obligation; the Presidential declarations were mere statements of policy.

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II. GENERAL ASSEMBLY RESOLUTIONS Dissenting Opinion of Judge Tanaka in the South West Africa Cases (CG) Issue: WON the resolutions and declarations of international organs can be recognized as a factor in the custom-generating process in the interpretation of Article 38, paragraph 1 (b), as evidence of a general practice Opinion: YES – The norm of non-discrimination or non-separation on the basis of race has become a rule of customary international law because resolutions, declarations, etc., on the same matter and organizations took place repeatedly

General practice in custom-generating process according to traditional international law: Result of the repetition (a historical process over a long period of time) of individual acts of States constituting consensus in regard to a certain content of a rule of law In the contemporary age of highly developed techniques of communication and information, the formation of a custom through the medium of international organizations is greatly facilitated and accelerated; the establishment of such a custom would require no more than one generation or even far less than that What is required for customary international law is the repetition of the same practice Each resolution, declaration, etc., being considered as the manifestation of the collective will of individual participant States, the will of the international community can certainly be formulated more quickly and more accurately as compared with the traditional method of the normative process This collective, cumulative and organic process of custom-generation can be characterized as the middle way between legislation by convention and the traditional process of custom making, and can be seen to have an important role from the viewpoint of the development of international law The accumulation of authoritative pronouncements such as resolutions, declarations, decisions, etc., concerning the interpretation of the Charter by the competent organs of the international community can be characterized as evidence of the international custom referred to in Article 38 Proofs of existence of the international norm and standards of non-discrimination and non-separation: o Resolutions of the GA o Resolutions of the Security Council

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o o o o o o o o o

1953 Resolution which declares the inconsistency of the policy of the South African Government with the principles contained in the Charter of the UN and with its obligations Report of the Committee on the South West Africa 11 trust territories agreements Universal Declaration of Human Rights adopted by the GA in 1948 Draft Declaration of Human Rights adopted by the IL Commission Covenant on Economic, Social and Cultural Rights Declaration on the Elimination of all Forms of Racial Discrimination adopted by the GA of the UN in 1963 Regional treaties and declarations, particularly the European Convention for the Protection of Human Rights and Fundamental Freedoms The Charter of the Organization of American States The American Declaration of the Rights and Duties of Man The Draft Declaration of International Rights and Duties

International Law of Outer Space (CG) THE INTERNATIONAL LAW OF OUTER SPACE UN is not in any sense a world government. Its deliberations, however, may have value as authority for principles of International Law Where lies the force of what is called the law for outer space of today? Some of the principles and rules are firmly established as part and parcel of general international law and the Charter of the UN Some derive their force from other International Instruments Some on analogies with existing institutions and rules (mutatis mutandis) Some are from the practice of States Formal Aspects of the Problem The place and legal value of the document is obviously determined by the powers of the organ from which it emanates It may suffice to recall that decisions adopted by the GA are no more than recommendations Conflicting views: Some reduce them to moral categories only, others see them in more than a moral obligation; still others attach to them much greater value and importance However, it is true that – with some exceptions only – they cannot be viewed as creative of legal rights or obligations They pave the way to new principles and rules of law, which in due course, take the shape of binding international instruments 7

The initiate the law-making process by taking us across the threshold into the realm of law Sometimes they may even create law, imperfect as it may be In the case of the Declaration of Legal Principles concerning Outer Space, some particular elements should be taken into consideration 1. The interpretation attached to it by member States of the UN, particularly those that play a leading part in the exploration and use of outer space Representatives of US and the Soviet Union declared that their governments would ‘respect’ the principles of the Declaration Similar statements were made by representatives of other Member States Almost all members of the UN attached to it a importance By expressing their will to be bound by the provisions of the document, they consented to be so bound, thus question of form ceases to be of essence 2. The Declaration of 1963 was preceded by other resolutions adopted by the UN. They reflected a certain trend of development of the law in statu nascendi. 3. The practice that had grown from the very day a man-made satellite reached outer space. For instance, the freedom to launch objects into outer space for purposes not affecting rights or legitimate interests of other States. Since no consent was sought or no protest or objection was raised, it can be argued that this practice has developed with a real consensus omnium It can be viewed as offering full evidence of a general consent (tacitus consensus) of States In the formation of customary law or custom, it may be added that today time travels much faster and makes institutions mature at a much quicker speed than ever before It cannot be denied, therefore, that in the light of these facts, the Declaration of 1963 is to be viewed as the culmination of a certain process. Its great value and strength is that it has created a framework for the law of tomorrow.

Canadian Practice Regarding Resolutions (CG) Declarations and resolutions of the GA, while they may contribute to the evolution of norms of international law, do not create legal rights or obligations for any state A vote for a resolution, or acquiescence in its adoption without a vote simply expresses a government’s policy and intentions on the subject matter Same is true of statements made in explanation and of reservations If the government in question wishes to change its policy and announce this fact, it will do so in an appropriate way

Some developed countries have proposed that, wherever one resolution is referred to in a later resolution, the latter should refer to the former resolution “as adopted” The intention is that the words “as adopted” would incorporate by inference interpretations, reservations and objections expressed to the former resolution at the time it was adopted Canada takes the position that such reservations, etc., remain valid whether or not the “as adopted” formula is used, and that they need not be repeated every time the resolution in question is referred to in a subsequent resolution

III. DECISIONS OF INTERNATIONAL ORGANIZATIONS The Advisory Opinion On Namibia: Which U.N. Resolutions Are Binding Under Article 25 Of The Charter? (CG) What are the legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council (SC) Resolution 276 (1970)? 1. The continued presence of South Africa is under an obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory (by 13 to 2 votes) 2. States Members of the UN are under obligation to recognize the illegality of South Africa’s presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and in particular any dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration (by 11 votes to 4) 3. It is incumbent upon States which are not Members of the UN to give assistance, within the scope of subparagraph (2) above, in the action which has been taken by the UN with regard to Namibia Background: Resolution 276, adopted in 1970, had reaffirmed GA resolution 2145 (XXI) of 1966, whereby that organ had decided that the mandate of South-West Africa was terminated and had assumed direct responsibility for the territory until its independence. It also referred to the fact that SC Resolution 264 (1969) had recognized the termination of the Mandate, and had called for the withdrawal of South Africa. SC Resolution 276 (1970) now went further, and declared that all acts taken by the Government of South Africa on behalf of, or concerning Namibia after the termination of the mandate were illegal and invalid. It also recalled SC Resolution 269 (1969) 8

The 1969 Resolution condemned South Africa for its refusal to comply with resolution 264 (1969) and, inter alia, called upon States to refrain from all dealings with South Africa in respect of Namibia Issue: Whether any of these resolutions were “decisions” in the sense that they give rise to legal obligations upon Member States within the meaning of Article 25 Discussion: 1. GENERAL ASSEMBLY RESOLUTION 2145 (1966) General Rule: GA possesses recommendatory rather than mandatory powers o Exceptions: Admission of new members, approval of the budget and the apportionment of expenses UK Government: It could not accept the opinion because the exceptions are not of relevance in the present context. The GA has no general competence of an executive character, and with the exceptions referred to above, there is no basis in the Charter for the attribution to it of a competence to adopt resolutions which are other than recommendatory in effect But it can pass resolutions which are legally operative, even if it is necessary to ask for the assistance of the Security Council in making them legally effective According to the Court, the mandate was validly terminated but the cooperation of the SC was needed to make it effective, in so far as securing the withdrawal of South Africa was concerned GA’s determination of facts or legal situations, on the other hand, are not binding in themselves or by themselves; but they have full legal validity in the sense that they apply the rules of the Charter in particular cases On this view, the determination made by the GA that South Africa has not complied with the obligations of the Mandate establishes the condition of a legal rule, in this case, the other party may consider the treaty terminated Judge Fitzmaurice takes a contrary view saying that the lack of Charter powers means that the Assembly has no power to terminate the mandate o In the Voting Procedure Case, the court had found that the Assembly could not depart from its own voting rules, even though unanimity has been required under the League Council o He also suggests that a dangerous precedent would be set if the Assembly were, under some treaty, to accept an arrangement whereby it was to exercise certain powers reserved in the Charter to the Security Council o The Assembly therefore cannot take executive action, it cannot purport to revoke the mandate by pointing to an alleged executive power to this effect under the Mandate

A resolution to revoke the Mandate, if properly exercised, could, in principle, be a valid recommendation; and could form the basis of further enabling action by the SC 2.

WHAT SECURITY COUNCIL RESOLUTIONS ARE BINDING UNDER ARTICLE 25 OF THE CHARTER? On the face of it, SC could take “decisions” within each of these chapters which would be binding on UN members under the terms of Article 25 Q: Is the term “decisions” there meant to mean only decisions under Chapter 7 pursuant to a finding under Article 39 that there has been a threat to the peace, breach of the peace, or act of aggression? o The International Court found that the decisions made by the SC in resolutions 276 (1970) were adopted in conformity with the purposes and principles of the Charter and in accordance with Art 24 and 25. The decisions are consequently binding on all States Members of the UN which are thus under obligation to accept and carry them out There seems to have been considerable confusion in the minds of UN delegations as to under which Charter provisions these resolutions were passed Mr. Castren, on behalf of the Finnish government, agreed that the SC had not intended to act within the framework of Chapter 7 of the Charter. There was as yet no “threat to the peace or act of aggression” However, he found the wording of Articles 33 and 34 applicable, to say that, it was a situation the prolongation of which was “likely to endanger the maintenance of international peace and security” He therefore believed that the legal foundation for SC resolution 276 may be sought in the powers conferred upon the Council in paragraph 1 of Article 36 But article 36 allows the SC to recommend appropriate procedures or methods of adjustment in respect of a situation or dispute, the continuance of which was likely to endanger international peace and security No real internal evidence that the resolutions were regarded as falling within Chapter 7: they all stopped short of a finding of a threat to the peace, breach of the peace or act of aggression under Article 39 Therefore, they were intended to be mere recommendations

The Provisions of the Charter Article 25 stands separately from both Chapter 6 and 7 Its provisions that UN members are bound by decisions of the SC flows from Article 24 (1) by which members confer on the SC primary responsibility for the maintenance of international peace and security In par 2, Art 24, it is stated that specific powers granted to the SC for the discharge of these duties are laid down in Chap 6-8 and 12 9

If art 25 applied only to Chap 7, one might perhaps expected to see it located in that chapter Moreover, there is some strength to the view that Art 48 and 49 achieve a binding effect for Chap 7 decisions; and that if Art 25 refers to Chap 7 alone, then it is superfluous It is less easy to see in the wording of Chap 7 any opportunities for “decision” Art 33 (2) provides that the SC may “call upon” parties to settle their dispute by certain peaceful means listed in Art 33 (1) This phrase is stronger than the phrase “recommend” used in Art 36 or 37 However, the Council is in effect requiring the parties to note an obligation, which they have already accepted under Art 33 (1) To note is that it is in reality comparatively rare for UN members to identify themselves as parties to a dispute, and voluntarily to abstain from voting The protection of Art 27 (3) in relation to Chap 6 is more apparent than real The Travaux Preparatoires When the Co-ordination Committee prepared the final draft of Art 25, it changed the wording “so as to make it clear that members would only be obliged to carry out those Council decisions that are legally mandatory” The main controversy concerned whether the obligation to carry out decisions of the SC was limited to decisions taken under Chap 6-8 By implication, therefore, the travaux provide some evidence that Art 25 was not intended to be limited to Chap 7, or inapplicable to Chap 6 Subsequent Practice Corfu Channel Incident in 1947 o The UK submitted a draft resolution recommending the dispute be referred to the ICJ o Before and after the adoption of this resolution, the question arose as to whether Art 25 applied to a recommendation under Art 36 o UK contended that the Court had jurisdiction in the case under Art 36 (1) of its Statute. It claimed that its dispute with Albania was such a matter since the SC resolution adopted under Art 36 of the Charter was binding upon the parties by virtue of Albania’s acceptance of all the obligations of a Member State and in conformity with Art 25 o In Shawcross’ statement in the Corfu Channel Case, he asserted that recommendations “under Chap 6 of this Charter, relating to methods of settling disputes which endanger peace, are binding” o Albania insisted the opposite, and said that Art 25 could only apply to decisions of the Council taken under Chap 7; and that therefore the SC resolution could not provide for an indirect form of compulsory jurisdiction o Albania, even though contending that the Court had no jurisdiction, still voluntarily accepted to the Court

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NB: 7 judges in a separate opinion stated that they could not accept that a recommendation under Art 36 of the Charter could involve the compulsory jurisdiction of the Court Greek Frontier Incidents Question o US proposed the establishment of a commission of investigation and good offices o Albania, Bulgaria and Yugoslavia, who were parties involved in the dispute, objected, stating that Chap 6 could not give rise to actions which were binding upon Members o US, however, drew the distinction between conciliation and investigation o While conciliation might imply voluntary will on the part of those who oppose each other, Art 34 must be understood to give the SC the right to investigate a dispute, regardless of WON the State being investigated approves o If the power to decide on an investigation under Art 34 were not a binding decision within Art 25, the peaceful settlement tasks of the UN would be frustrated o The outcome was inconclusive, the US draft vote failing to be adopted because of a Soviet veto Kashmir Dispute o A SC resolution in 1951 calling for a plebiscite was rejected by India on the grounds that it was a mere recommendation under Chap 6 o Other SC members merely asserted that SC resolutions, validly concluded, were binding decisions upon the membership o The matter was never clearly resolved o India also complained that a draft resolution of 1957, urging demilitarization failed to appreciate that resolutions under Chap 6 had no binding effect o No opposition was specifically voiced to India’s view, and a resolution was adopted calling for a plebiscite and demilitarization Trieste Case o Both the travaux preparatoires and the wording of the Charter lead one in the direction that the application of Art 25 is not limited to Chap 7 resolutions, excluding Chap 6 resolutions o Clearly, some resolutions passed under Chap 7 are never intended to be binding, they are meant to be mere recommendations o The binding or non-binding nature of those resolutions turns not upon whether they are to be regarded as Chap 6 or Chap 7 resolutions but upon whether the parties intended them to be “decisions” or “recommendations” o “Decisions” to investigate could perhaps have this operative effect, though “recommendations” under Art 36 or 37 would not On the Namibia case o UK, in reaching the conclusion that the SC can only bind members when it has made a determination under Art 39, did not in its public statement deal with these considerations 10

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Its Government also had decided not to avail itself of the right, under Art 66 of the Court’s Statute, to submit a written or oral presentation in the Namibia case Therefore, there exists yet no published, closely reasoned analysis of the legal conclusions which it has reached on this case Although this may be “subsequent practice” The extent to which the “understanding” is “well founded in the Charter” is more open to debate than this statement allows The UK, interestingly, is essentially adopting a teleological posture here, placing the main weight of its argument not on the letter of the Charter, or the travaux, but rather on the operational understanding which best allows the SC to carry out its business In the drafting of resolutions, Chap 7 resolutions are to be regarded as capable of binding, while Chap 6 resolutions are not Article 25 operates in respect of Chap 7 but not Chap 6 Art 25 is not confined to decisions in regard to enforcement action but applies to “the decisions of the SC” adopted in accordance with the Charter

ARTICLE 24 AND THE OPERATION OF ARTICLE 25 ICJ found that the legal basis of SC Resolution 276 (1970) was Art 24 of the Charter UK’s broad pronouncement that the Council can only bind members when acting under Chap 7 after a finding under Art 39, must be taken to mean that neither Art 24 nor Chap 6 can be the basis of a binding resolution South Africa argues that there is no objective investigation that the situation was one the continuance of which was likely to endanger international peace and security It regarded investigation as a condition precedent to the operation of Chap 6, in much the same way as it believed that a formal finding under Art 39 was a condition precedent to the operation of Chap 7 The Court in the Namibia case cited with approval the Secretary General’s statement, made to the Council in respect of Trieste, that the Council was not tied by the specific powers mentioned, and that “the only limitations are the fundamental principles and purposes found in Chap 1 of the Charter” The SecGen also said tat the action taken under Art 24 could bind members under Art 25 In San Francisco, there had been an amendment which would have bound States only by decisions taken under the specific powers of Chap 6-8 and 12, however, it was rejected The rejection is clear evidence that the obligation of the Members to carry out the decisions of the SC applies equally to decisions made under Art 24 and to the decisions made under the grant of specific powers

In ensuing the vote, the SC, by a vote of 10 in favour and Australia abstaining, approved the 3 instruments on Trieste and formally accepted the responsibilities devolving upon it under them The court clearly regarded Chap 6-8 and 12 as lex specialis while Art 24 contained the lex generalis Resolutions validly adopted under Art 24 were binding on the membership as a whole

IV. LIMITS OF STATE PRACTICE The Approach of the Different Drummer: The Principle of the Persistent Objector in IL (RL) Ted Stein TOPIC: Persistent Objector Principle Mainstream accounts of the principles governing the formation and application of rules of CIL typically include the principle of “PERSISTENT OBJECTOR”. o Definition: A State has persistently objected to a rule of CIL during the course of the rule’s emergence is not bound by the rule. For a rule to become part of CIL, it must be supported by the widespread and uniform practice of states acting on the conviction chat the practice is obligatory. o Although it is difficult to determine how much participation is necessary for customary law to develop, it is clear that this standard does not require universal participation, nor the participation of the state to which the rule is applied. GR: A rule meeting this standard is universally binding. o E: A state that has persistently objected to a rule is not bound by it, so long as the objection was made manifest during the process of the rules emergence. o A state that fails to object prior to the time that the rule finally crystallizes cannot claim exemption from it. o Subsequent departures from the standard of conduct required by the rule constitute international wrongs. o A state that achieves independence subsequent to the final emergence of the rule is bound by the rule as an inescapable consequence of statehood The premise is that the international legal order lacks a hierarchically superior sovereign authorized to prescribe rules for the subjects of the order. o In the absence of such a sovereign, law must result from the concurrent wills of states. o It cannot bind a state that has manifestly and continuously refused to accept it. 11

A survey of modern textbooks on IL and of works on the doctrine of sources in particular failed to turn up any case where an author provided even one instance of a state claiming or granting an exemption from a rule on the basis of that the principle—except the cases of Asylum and Fisheries. o These cases concurred on the validity of the principle, but no examples were given. Examples where the principle could have been invoked but was not done so o (1) Restrictive rule of the sovereign immunity The Soviet Union has maintained a continuous objection to any in roads on the rule of absolute immunity and did so during the very period that the restrictive rule was becoming predominant. Yet, there is no evidence that other states have exempted Soviet agencies and enterprises from the application of the restrictive theory. o (2) Law of the Sea US had consistently maintained that three miles marked the outer limit of the territorial sea. There were reports that the US would engage in unspecified activities in the zone between 3 and 12 miles off the coasts of certain other states. US was charged with violating the territorial integrity of other UN members. There was no hint of recognition that the US might be in a special position with respect to the twelve- mile rule. o (3) United States and some other nations have consistently opposed the view (held by the majority of states) that the deep seabed may be mined only in accordance with the regime to be established by UNCLOS. o (4) The practice of apartheid is almost universally considered to be a violation of the CIL of human rights. South Africa has always objected to a rule prohibiting systematic, official, racial discrimination and that its opposition has been manifested throughout the period during which the rule matured. But this persistent objection has not stopped such from being applied to South Africa. The author suggests that a contemporary process be taken to help promote the principle. o Classic Process: Only the laws of war and of neutrality had been codified to any significant degree. o Prescriptive Process: focuses on the production of written instruments embodying in fixed language authoritative, if often ambiguous, statements of the governing rules. (This is what we follow to date) Effects of the Shift: o States increasingly view treaties emerging from the multilateral process as authoritative, but the relationship between custom and treaties becomes even more difficult and the line between the two even more indefinite.

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It is reasonable to expect that the principle of the persistent objector will acquire a new prominence in the legal discourse of states in the next few decades. It has lightened the burden on the “applicant” to show what the law is. The “respondent” is given more pressure relv on arguments that concede, at least hypothetically, the general validity of the rule cited against it. The principle of the persistent objector offers a way to oppose the application of a customary rule while conceding the existence of the rule. Note: o The principle of the persistent objector is firmly established in the orthodox doctrine on the sources of IL; o It has played a limited role in actual legal discourse of states; o The principle of the persistent objector requires that the objection be manifested before the customary rule is crystallized. Conclusion: Although it is true that the principle provides no help for new states, since the rules were already in existence at the time they emerged, it is notable that the categories of new and old states will tend to lose their relevance as more and more areas of international law will be subject to the multilateral processes. o Increasingly, the law will be made up of rules that have obtained authoritative endorsement by the international community only after the decolonization process was well under way, if not complete. o As such, the principle of the persistent objector will provide an equal opportunity for all states.

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MCRAE: DOMESTIC LAW I. GENERAL PRINCIPLES International Status of South West Africa (RL) TOPIC: Applicability of Private Law in the International Context On Dec. 6, 1949, the UNGA submitted this question to the ICJ with request for an advisory opinion: o What is the international status of the Territory of South-West Africa (SWA) and what are the international obligations of the Union of South Africa arising therefrom, in particular: (a) Does the Union continue to have international obligations under the Mandate for South-West Africa and if so, what are those obligations ? (b) Are the provisions of Chapter XII of the Charter applicable and if so, in what manner, to the Territory of South-West Africa? (c) Does the Union of South Africa have the competence to modify the international status of the Territory of South-West Africa, or, in the event of a negative reply, where does competene rest to determine and modify the international status of the Territory? The ICJ was unanimous in saying that: o South Africa alone is not competent to change the status of SWA o South Africa had the same obligations vis-à-vis the mandated territory and the UN as it had vis-à-vis the mandated territory and the League of Nations. Sir Arnold McNair was in substantial agreement with the decision except on certain aspects of issue (a). o He approached the question of the relationship of IL and private law. McNair: What is the duty of an international tribunal when confronted with a new legal institution the object and terminology of which are reminiscent of the rules and institutions of private law? International law has continues to recruit many of its rules and institutions from private systems of law (as proved by Art. 38(c) of the ICJ: apply general principles of international law applied by civilized nations) The way in which international law borrows from this source is not by means of importing private law institutions “lock, stock and barrel” ready-made and fully equipped with a set of rules. It is his opinion that the duty of international tribunals in this matter is to regard any features or terminology which are reminiscent of the rules and institutions of private law as an indication of policy and principle rather than as directly importing these rules and institutions. On the underlying principle of Art. 22 and of the Mandates (focuses on the concept of TRUST): o The governing principle of the Mandates System is to be found in the trust.

Historically, the legal enforcement of the English Trust is that it was something, which was binding upon the trustee; hence, it was legally enforced. o In almost every legal system, properties of those who are not sui juris (ie. Minors) can be entrusted to some responsible person. o It also vests in the trustee the management of such properties. Three general principles common to all institutions (re: Mandates): o (1) Control of the trustee over the property is limited – he is precluded from administering the property for his own benefit. o (2) The trustee is under some legal obligation, based on confidence and conscience, to carry out the trust confided to him for the benefit of some other person or for some public purpose. o (3) Any attempt by the trustee to absorb the property entrusted to him would be illegal. He basically just wanted to show that general principles of private law may be used as basis in deciding IL matters, especially on new legal institutions, by citing the concept of a Mandate as an example.

Diversion of Waters from the River Meuse (RL) TOPIC: Principles of Equity in International Law Judge Manley O. Hudson, who concurred in the majority judgment, discussed principles of international equity in his separate opinion. Principles of Equity have long been considered as part of IL and have often been applied by international tribunals. Majority of international lawyers agree that the words “law and equity” are to be understood to mean general principles of justice. The ICJ has not been expressly authorized by its Statute to apply equity separately from law, nor does it expressly direct its application of IL. o Art. 38 of the SICJ directs the application of general principles of law recognized by civilized nations and in more than one nation, principles of equity have an established place in the legal system. The ICJ’s recognition of equity as a part of IL is in no way restricted by the special power conferred upon it “to decide a case ex aquo et bono, if the parties agree thereto” o Hence, the ICJ is given some freedom to consider principles of equity as part of IL. Important principle of equity: where two parties have assumed an identical or a reciprocal obligation, one party which is engaged in a continuing nonperformance of that obligation should not be permitted to take advantage of a similar non-performance of that obligation by the other party. o Found in maxims of equity such as: “Equality is equity”; “He who seeks equity must do equity” However, the ICJ must make a very sparing application of the principle. 1

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It is not to be thought that a complete fulfillment of all its obligations under a treaty must be proved as a condition precedent to a State’s appearing before an international tribunal to seek an interpretation of that treaty. Yet, the tribunal is bound by IL not to shrink from applying a principle of such obvious fairness.

II. APPLICATION OF INTERNATIONAL LAW

Alien Tort Statute—established jurisdiction for anyone with a colorable claim under international law; the idea is that if you commit such a heinous crime, then any tribunal should be able to try you because the whole world would agree how bad the crime was The US courts eventually ruled in favor of Filartigas, rewarding them roughly $10.4 million. Torture was clearly a violation of international law and the US did have jurisdiction over the case since claim was lodged when both parties were inside the US. Additionally, Pena had sought to dismiss the case based on forum non conveniens saying that Paraguay was a more convenient location for the trial, but did not succeed.

Filartiga v. Pena-Irala (EM) FACTS: Filartiga's 17 years old son, Joelito, was kidnapped and tortured to death by D, Pena, in Paraguay. P claims that this was done in retaliation to his father's political activities and beliefs. P brought a criminal case in Paraguayan court, but his attorney was arrested, threatened with death, and supposedly disbarred without just cause. 4 years later, another man confessed to the murder, claiming he found Joelito and his wife together, and said the crime was one of passion, but he was never convicted, and also the evidence showed that Joelito's death "was the result of professional methods of torture." In 1978, Dolly Filártiga and (separately) D (Peña) came to the US. Dolly applied for political asylum, while Peña stayed under a visitor's visa. Dolly learned of Peña's presence and reported it to the Immigration and Naturalization Service, who arrested and deported Peña for staying past the expiration of his visa. When Peña was taken to the Brooklyn Navy Yard pending deportation, Dolly lodged a civil complaint in U.S. courts for Joelito's wrongful death by torture, asking for damages in the amount of $10 million. ISSUE: W/N US courts can punish non-US citizens for tortuous acts committed outside the US that were in violation of the law of nations or any treaties to which the US is a party HELD: Yes. This case extended the jurisdiction of US courts to tortuous acts committed around the world. The appellants argued that Pena’s actins had violated wrongful death statutes, the UN Charter, the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, and other customary international law. Petitioner claimed the US courts had jurisdiction to hear the case under the Alien Tort Statute, which grants district courts original jurisdiction to hear tort claims brought by an alien that have been “committed in violation of the law of nations or a treaty of the US.” This case interpreted that statute to grant jurisdiction over claims for torts committed both within the US and abroad.

Mortensen v. Peters (MT) Facts: The appellant being a foreign subject and master of a vessel registered in a foreign country, exercised the method of fishing known as otter trawling at a point within the Moray Firth more than three miles from the shore, but to the west of a line drawn from Duncans by Head in Caithness to Rattray point in Aberdeenshire. That being found within the British territory at Grimsby, he was summoned to the th Sheriff Court to answer to a complaint against him for having contravened the 7 section of the Herring Fisher Act 1889, and the by-law of the Fishery Board thereunder made, and was convisted. Appellants argument: that the statutes creating offenses must be presumed to apply 1-to British subjects and 2-to foreign subjects in British territory. The appellant is admittedly not a British subject and further argued that the locus delicti being in the sea beyond the three-mile limit was not within the British territory and that consequently the appellant was not included in the prohibition of the statute. Issue: WON the locus being spoken of is beyond what the legislature may assert right to effect by legislation against all whatsoever for the purpose of regulating methods of fishing?—YES Held and Ratio: The locus although outside the three-mile limit is within the bay known as Moray Firth and Moray Firth is within intra fauces terrae (case explicitly says that this phrase does not have a specific meaning but from context I think it means within jurisdiction of the Brits) First, the dicta of the Scottish institutional writers seem to show that it would be no usurpation according to the law of Scotland to consider it.—when the sea is enclosed in bays, creeks, or otherwise is capable of any bounds or as within the points of such lands or within the view of such shores then it may become proper, but with reservation of passage for commerce as in the land. Second, the same statute puts forward claims to what are at least analogous places. 2

Third, there are many instances to be found decided where the right of a nation to legislate for waters more or less landlocked or land embraced although beyong the three mile limit has been admitted. It seems therefore without laying down the proposition that the Moray Firth is for every purpose within the territorial sovereignty, it can at least be clearly said that the appellant cannot make out his proposition that it is inconceivable that the British Legislature should attempt for fishery regulation to legislate against all and sundry is such a place. It is therefore of opinion that the conviction was right, that both questions should be answered in the affirmative, and that appeal should be dismissed.

In the Matter of a Reference as to the Powers of the Corporation of the City of Ottawa and the Corporation of the Village of Rockcliffe Park to Levy Rates on Foreign Legations and High Commissioners’ Residences (MT) Facts: No facts stated Issues: Is it within the powers of the council of the corporation of the city of Ottawa to levy rates on:--NO Properties in Ottawa owned and occupied as Legations by the Governments of the French State, the US and Brazil respectively—NO On property in Ottawa owned and occupied by his Majesty in rights of the UK as the office and residences of the High Commissioner for the UK—NO On property in Ottawa owned and occupied by his Majesty in right of Australia as the Residence of the High Commissioner for the Commonwealth of Australia—NO And is it within the powers of the council of corporation of the Village of Rockliffe Park to levy rates on property owned and occupied by the Govt of the US as the legation of the US in Rockliffe Park?—NO Held and Ratio: As regards the properties owned and occupied by the High Commissioner for the UK and the High Commissioner for the Commonwealth of Australia, the powers of the council of the corporation of the city of Ottawa do not extend to these properties since they are embraced within the expressed exemption of Crown property by enactments of the Assessment Act. Amongst the principles of international law which have acquired validity in the domestic law of England and therefore, in the domestic law of Canada, it is generally admitted that a Foreign Minister os not subject to the laws of the State to which he has been sent; he enjoys an entire independence of the jurisdiction and authority of the latter State; and there exists towards him an implied consent that he shall possess all the privileges which his sovereign intended that he should retain as those privileges are essential to the dignity of his sovereign and to the duties he is bound to perform.

As a consequence he is exempt from the jurisdiction of the courts of the country in which he resides as a diplomatic representative. Therefore there is a necessary consequence of legal impossibility of collecting taxes against foreign states of diplomats that such taxes or rates may not be assessed and levied on the properties owned and occupied by them and used for diplomatic purposes.

Trendtex Trading Corp. v. Central Bank of Nigeria Facts: No facts stated but according to my own construction The are two schools of thought: Doctrine of incorporation—it says that the rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament. Doctrine of transformation—it say that the rules of international law are not to be considered as part of English law except insofar as they have been already adopted and made part of our law by the decisions of the judges or by Act of Parliament or long established custom. Their difference is vital when you are faced with a change in the rules of international law. Under the doc. Of incorporation, when the rules of international law change, our English law changes with them. But, under the doctrine of transformation, the English law does not change. It is bound by precedent. Issue: Which is correct? Or better? Held and Ratio: The doctrine of incorporation is correct. Otherwise, the courts would not recognize a change in the rules of international law and it is certain that international law does change. Conclusion: seeing that rules of international law have changed and do change and that the courts have been given effect to the changes without any act of parliament, it follows that the rules of international law as existing from time to time, do form part of the English Law. it follows too that a decision form this court as to what was the ruling of international law 50 or 60 years ago is not binding on this court today. International law knows no rule of stare decisis. If this court today is satisfied that the rule of international law on a subject has changed from what it was before, it can give effect to that change and apply the change to Eng Law, without waiting for the House of Lords to do it.

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PIL Case Digest: Jurisdiction of States

JURISDICTION OVER PERSONS & ECONOMIC ACTIVITIES

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(ii) Immunity from Jurisdiction A. State Immunity and Act of State 1. Sanders v. Veridiano (NO)

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TOPIC: Jurisdictional Immunity G.R. No. L‐46930

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Petitioner: DALE SANDERS, AND A.S. MOREAU, JR Respondent: HON. REGINO T. VERIDIANO II, as Presiding Judge, Branch I, Court of First Instance of Zambales, Olongapo City, ANTHONY M. ROSSI and RALPH L. WYERS

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J. Cruz Doctrine: Official acts of agents of another state(provided that they are granted immunity) are covered by such priviledge; In order for a state to be sued it must consent to it.

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Sanders was, at the time the incident in question occurred, the special services director of the U.S. Naval Station (NAVSTA) in Olongapo City, while Moreau was the commanding officer of the Subic Naval Base. Respondents were both employed as gameroom attendants in the special services department of the NAVSTA, the former having been hired in 1971 and the latter in 1969. They were informed that they are now just part time employees. They protested to the U.S. Department of Defense which ordered their reinstatement to full‐time status with back wages. Sanders sent a letter to Moreau disagreed with this recommendation and reported that Responders tend to alienate their co‐workers and were difficult to supervise. Before the grievance hearing was was started, a letter purportedly coming from Moreau as the commanding general of the U.S. Naval Station in Subic Bay was sent to the Chief of Naval Personnel explaining the change of the private respondent's employment status and requesting concurrence therewith, but this was signed by Moore, “by direction”. Respondents filed a case in the CFI for damages. Sanders and Moreau filed a motion to dismiss arguing that the court has no jurisdiction because the said acts were performed in the discharge of their duties. The trial court ruled in favor of the respondent and ordered a writ of preliminary attachment to the properties of Moreau. Hence this petition.

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Rossi and Wyers are game room attendants, they were regular employees but were reverted to part time employees. Rossi and Wyers appealed such decision which was granted and order a reinstatement of the two. Sanders wrote a letter to Moreau who was the commanding officer of the Subic Naval Base, explaining his grievance to the decision. Before a grievance meeting was commenced, a letter was sent, purportedly from Moreau, ordered the reversal of the decision. Rossi and Wyers filed a case for damages in the CFI. The issue is whether Sanders were acting in official capacity which grants them immunity. The court ruled in favor or Sanders, it reasoned that the letters written were within his official capacity. He was to report to his superior about personnel under his supervision. Assuming arguendo that it was not, he had the right to react to criticisms impugned directly upon him.

Issue:

Facts:

Whether the petitioners were acting official capacities which merits them the grant of jurisdictional immunity. YES Ratio: o

The mere allegation that a government functionary is being sued in his personal capacity will not automatically remove him from the protection of the law of public officers and, if appropriate, the doctrine of state immunity.  The mere invocation of official character will not suffice to insulate him from suability and liability for an act imputed to him as a personal tort committed without or in excess of his authority.  Baer v. Tizon, Syquia v. Almeda Lopez, United States of America v. Ruiz, consistently held that the US has not consented to be sued and the suit could not prosper because the acts complained of were covered by the doctrine of state immunity 1

PIL Case Digest: Jurisdiction of States o In the present case that the acts of the petitioners were performed by them in the discharge of their official duties. Sanders, as director of the special services department of NAVSTA, undoubtedly had supervision over its personnel, including the private respondents, and had a hand in their employment, work assignments, discipline, dismissal and other related matters.  It is not disputed that the letter Sanders had written was in fact a reply to a request from his superior, the other petitioner, for more information regarding the case of the private respondents.  Even in the absence of such request, he still was within his rights in reacting to the hearing officer's criticism—in effect a direct attack against him—‐that Special Services was practicing "an autocratic form of supervision. o

Given the official character of the above‐described letters, we have to conclude that the petitioners were, legally speaking, being sued as officers of the United States government  As they have acted on behalf of that government, and within the scope of their authority, it is that government, and not the petitioners personally, that is responsible for their acts.  There should be no question by now that such complaint cannot prosper unless the government sought to be held ultimately liable has given its consent to' be sued.  The SC , in a line of cases, upheld the doctrine of state immunity as applicable not only to our own government but also to foreign states sought to be subjected to the jurisdiction of our courts. 

It would seem only proper for the courts of this country to refrain from taking cognizance of this matter and to treat it as coming under the internal administration of the said base.(Parties in this case were Americans and Naval Base employees)

WHEREFORE, the petition is GRANTED. The challenged orders dated March 8,1977, August 9,1977, and September 7, 1977, are SET ASIDE. The respondent court is directed to DISMISS Civil Case No. 2077‐O. Our Temporary restraining order of September 26,1977, is made PERMANENT. No costs.

RP‐US Base Treaty, Art III (immunity) Petitioners: United States of America and a bunch of other people Respondents: whole bunch of peeps SUMMARY of 4 consolidated cases (HELD): G.R. No. 76607 (Barbershop bidding) There was a bidding war on a barbershop concession inside Clark Airbase. The ones that lost the bidding filed a suit against the US officers. They filed motion to dismiss because they were immune from suit since they were employees of the US Air Force. Lower court denied motion because there was a commercial transaction. (NOT IMMUNE. Commercial Transaction. Remanded for trial on facts of the case) G.R. No. 79470 (Pee in soup) Cook was dismissed from Recreational Center Resto in Camp John Hay because he peed into the soup he served. US said, dismiss because US officers enjoy immunity. Lower court denied because although he was an officer he acted beyond his duties amounting to illegal acts done in bad faith and that there was a CBA involved in employment. (NOT IMMUNE. The resto was a proprietary activity and not an official act of the State. The CBA agreement, a contract, was a waiver of immunity. But the SC said that they were not liable, it was clear the cook peed in soup and there was a proper investigation and due process for cook) G.R. No. 80018 (Buy‐bust) Airforce Officers catch barracks‐boy in a buy‐bust operation, which led to his dismissal. Civil case against the officers, they didn’t have US lawyers so they got local counsel at first and filed answers. When US government finally got to them filed for motion to dismiss. Lower court denied because immunity is only for criminal cases and not civil and that the US officers had already submitted answers to the court. (IMMUNE, as for the issue on filing of answers, immunity cannot be waived by counsel it must be embodied in an instrument) G.R. No. 80258 (dog‐biting/theft)

2. US v. Guinto (RC) Topics: Doctrine of State Immunity

Treaties:

Conflicting facts: Accdg to respondents they filed damages because the Americans handcuffed them and had their dogs attack them. Accdg to the petitioners, they caught the respondents while they stealing, the dog bites were 2

PIL Case Digest: Jurisdiction of States there because they had tried to evade capture. The motion to dismiss was denied because the facts of the case should be ventilated in trials since one set of them alleges that the US officers were exceeding their authority and doing illegal shiz. (REMANDED to determine which facts were correct, if in the course of their duties then IMMUNE)

concessionaires, bidders and Base, so that’s why Respondents could be sued. So that’s why it was appealed. G.R. No. 79470, •

Facts: (you can skip this…. Ok na summaries) These cases have been consolidated because they all involve the doctrine of state immunity. The United States of America was not impleaded in the complaints below but has moved to dismiss on the ground that they are in effect suits against it to which it has not consented. It is now contesting the denial of its motions by the respondent judges.

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the private respondents are suing several officers of the U.S. Air Force stationed in Clark Air Base in connection with the bidding conducted by them for contracts for barber services in the said base. The bidding was won by Ramon Dizon, over the objection of the private respondents, who claimed that he had made a bid for four facilities, including the Civil Engineering Area, which was not included in the invitation to bid. respondents complained to the Philippine Area Exchange (PHAX). The latter, through its representatives, petitioners Yvonne Reeves and Frederic M. Smouse explained that the Civil Engineering concession had not been awarded to Dizon as a result of the bidding. Dizon was already operating this concession, then known as the NCO club concession, and the expiration of the contract had just been extended respondents filed a complaint in the court below to compel PHAX and the individual petitioners to cancel the award to defendant Dizon, to conduct a rebidding for the barbershop concessions and to allow the private respondents by a writ of preliminary injunction to continue operating the concessions pending litigation. petitioners filed a motion to dismiss and opposition to the petition for preliminary injunction on the ground that the action was in effect a suit against the United States of America, which had not waived its non‐suability. The individual defendants, as official employees of the U.S. Air Force, were also immune from suit. Lower Court noted that there was a commercial transaction between the

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Fabian Genove filed a complaint for damages against petitioners n for his dismissal as cook in the U.S. Air Force Recreation Center at the John Hay Air Station in Baguio City. It had been ascertained after investigation that Genove had poured urine into the soup stock used in cooking the vegetables served to the club customers. Respondent, as club manager, suspended him and thereafter referred the case to a board of arbitrators conformably to the collective bargaining agreement between the Center and its employees. The board unanimously found him guilty and recommended his dismissal. On March 13, 1987, the defendants, joined by the United States of America, moved to dismiss the complaint, alleging that Lamachia, as an officer of the U.S. Air Force stationed at John Hay Air Station, was immune from suit for the acts done by him in his official capacity. They argued that the suit was in effect against the United States, which had not given its consent to be sued. Lower Court denied the motion because although respondents were US officers, they acted beyond their duties taking them out of the mantle of immunity. So US is appealing this too.

G.R. No. 80018, •

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Luis Bautista, who was employed as a barracks boy in Camp O' Donnell, an extension of Clark Air Base, was arrested following a buy‐bust operation conducted by the individual petitioners herein, officers of the U.S. Air Force and special agents of the Air Force Office of Special Investigators (AFOSI). On the basis of the sworn statements made by them, an information for violation of R.A. 6425, otherwise known as the Dangerous Drugs Act, was filed against Bautista in the Regional Trial Court of Tarlac. The above‐named officers testified against him at his trial. As a result of the filing of the charge, Bautista was dismissed from his employment. He then filed a complaint for damages against the individual petitioners herein claiming that it was because of their acts that he was removed. At first, the petitioners only had local counsel and were able to submit answers and ask for extensions since they weren’t adequately represented by US counsel. Finally US counsel were able to get to them and… 3

PIL Case Digest: Jurisdiction of States •

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The ground invoked was that the defendants were acting in their official capacity when they did the acts complained of and that the complaint against them was in effect a suit against the United States without its consent. The motion was denied by the respondent judge in his order dated September 11, 1987, which held that the claimed immunity under the Military Bases Agreement covered only criminal and not civil cases. Moreover, the defendants had come under the jurisdiction of the court when they submitted their answer.

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G.R. No. 80258, •

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a complaint for damages was filed by the private respondents against the herein petitioners (except the United States of America), for injuries allegedly 9 sustained by the plaintiffs as a result of the acts of the defendants. There is a conflict of factual allegations here. According to the plaintiffs, the defendants beat them up, handcuffed them and unleashed dogs on them which bit them in several parts of their bodies and caused extensive injuries to them. The defendants deny this and claim the plaintiffs were arrested for theft and were bitten by the dogs because they were struggling and resisting arrest, The defendants stress that the dogs were called off and the plaintiffs were immediately taken to the medical center for treatment of their wounds. In a motion to dismiss the complaint, the United States of America and the individually named defendants argued that the suit was in effect a suit against the United States, which had not given its consent to be sued. The defendants were also immune from suit under the RP‐US Bases Treaty for acts done by them in the performance of their official functions. Lower court judge denied saying: the defendants certainly cannot correctly argue that they are immune from suit. The allegations, of the complaint which is sought to be dismissed, had to be hypothetically admitted and whatever ground the defendants may have, had to be ventilated during the trial of the case on the merits. The complaint alleged criminal acts against the individually‐named defendants and from the nature of said acts it could not be said that they are Acts of State, for which immunity should be invoked.

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ISSUE/RATIO: CAN STATE IMMUNITY BE INVOKED? ON STATE IMMUNITY: (JUST READ THIS PART)

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The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles of international law that we have adopted as part of the law of our land under Article II, Section 2. Even without such affirmation, we would still be bound by the generally accepted principles of international law under the doctrine of incorporation. Doctrine of state immunity is based on the justification given by Justice Holmes that "there can be no legal right against the authority which makes the law on which the right depends." There are other practical reasons for the enforcement of the doctrine. In the case of the foreign state sought to be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A contrary disposition would, in the language of a celebrated case, "unduly vex the peace of nations." It is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been formally impleaded. In such a situation, the state may move to dismiss the complaint on the ground that it has been filed without its consent. The doctrine is sometimes derisively called "the royal prerogative of dishonesty" because of the privilege it grants the state to defeat any legitimate claim against it by simply invoking its non‐suability. In fact, the doctrine is not absolute and does not say the state may not be sued under any circumstance. On the contrary, the rule says that the state may not be sued without its consent, which clearly imports that it may be sued if it consents. The consent of the state to be sued may be manifested expressly or impliedly. Express consent may be embodied in a general law or a special law. Consent is implied when the state enters into a contract or it itself commences litigation. The general law waiving the immunity of the state from suit is found in Act No. 3083, under which the Philippine government "consents and submits to be sued upon any moneyed claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties”. GR: When the government enters into a contract, it is deemed to have descended to the level of the other contracting party and divested of its 4

PIL Case Digest: Jurisdiction of States sovereign immunity from suit with its implied consent. E: Express consent is effected only by the will of the legislature through the medium of a duly enacted statute. We have held that not all contracts entered into by the government will operate as a waiver of its non‐suability; distinction must be made between its sovereign and proprietary acts. • GR: Waiver is also implied when the government files a complaint, thus opening itself to a counterclaim. E: As for the filing of a complaint by the government, suability will result only where the government is claiming affirmative relief from the defendant. • In the case of the United States of America, the customary rule of international law on state immunity is expressed with more specificity in the RP‐US Bases Treaty. Article III thereof provides as follows: It is mutually agreed that the United States shall have the rights, power and authority within the bases which are necessary for the establishment, use, operation and defense thereof or appropriate for the control thereof and all the rights, power and authority within the limits of the territorial waters and air space adjacent to, or in the vicinity of, the bases which are necessary to provide access to them or appropriate for their control. •

Accdg to Case Law: o Baer v. Tizon: The invocation of the doctrine of immunity from suit of a foreign state without its consent is appropriate. o Raquiza v. Bradford: 'It is well settled that a foreign army, permitted to march through a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place.' o Syquia v. Almeda Lopez, where plaintiffs as lessors sued the Commanding General of the United States Army in the Philippines, seeking the restoration to them of the apartment buildings they owned leased to the United States armed forces stationed in the Manila area. Court said: 'It is clear that the courts of the Philippines including the Municipal Court of Manila have no jurisdiction over the present case for unlawful detainer. The question of lack of jurisdiction was raised and interposed at the very beginning of the action. The U.S. Government has not given its consent to the filing of this suit which is essentially against her, though not in name. Moreover, this is not only a case of a citizen filing a suit against his own Government without the latter's consent but it is of a citizen firing an action against a foreign

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government without said government's consent, which renders more obvious the lack of jurisdiction of the courts of his country. It bears stressing at this point that the above observations do not confer on the United States of America a blanket immunity for all acts done by it or its agents in the Philippines. Other than WAIVER, a State may be sued when…

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The proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. It does not apply where the contract relates to the exercise of its sovereign functions.

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The other petitioners in the cases before us all aver they have acted in the discharge of their official functions as officers or agents of the United States. However, this is a matter of evidence. The charges against them may not be summarily dismissed on their mere assertion that their acts are imputable to the United States of America, which has not given its consent to be sued. In fact, the defendants are sought to be held answerable for personal torts in which the United States itself is not involved. If found liable, they and they alone must satisfy the judgment.

HELD: G.R. No. 80018 (Buy‐bust operation) •

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individually‐named petitioners therein were acting in the exercise of their official functions when they conducted the buy‐bust operation against the complainant and thereafter testified against him at his trial. The said petitioners were in fact connected with the Air Force Office of Special Investigators and were charged precisely with the function of preventing the distribution, possession and use of prohibited drugs and prosecuting those guilty of such acts. It cannot for a moment be imagined that they were acting in their private or unofficial capacity when they apprehended and later testified against the complainant. It follows that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts imputable to their principal, which has not given its consent to be sued. Express waiver of immunity cannot be made by a mere counsel of the government but must be effected through a duly‐enacted statute. Neither 5

PIL Case Digest: Jurisdiction of States does such answer come under the implied forms of consent as earlier discussed. G.R. No. 80258 (dog‐biting/theft) •

The contradictory factual allegations in this case deserve in our view a closer study of what actually happened to the plaintiffs. Lacking this information, this Court cannot directly decide this case. The needed inquiry must first be made by the lower court so it may assess and resolve the conflicting claims of the parties on the basis of the evidence that has yet to be presented at the trial. Only after it shall have determined in what capacity the petitioners were acting at the time of the incident in question will this Court determine, if still necessary, if the doctrine of state immunity is applicable.

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G.R. No. 76607, (barbershop bidding) •

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G.R. No. 79470 (pee in soup), •

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private respondent Genove was employed as a cook in the Main Club located at the U.S. Air Force Recreation Center, also known as the Open Mess Complex, at John Hay Air Station. As manager of this complex, petitioner Lamachia is responsible for eleven diversified activities generating an annual income of $2 million. Under his executive management are three service restaurants, a cafeteria, a bakery, a Class VI store, a coffee and pantry shop, a main cashier cage, an administrative office, and a decentralized warehouse which maintains a stock level of $200,000.00 per month in resale items. He supervises 167 employees, one of whom was Genove, with whom the United States government has concluded a collective bargaining agreement. From these circumstances, the Court can assume that the restaurant services offered at the John Hay Air Station partake of the nature of a business enterprise undertaken by the United States government in its proprietary capacity. Such services are not extended to the American servicemen for free. Neither does it appear that they are exclusively offered to these servicemen; on the contrary, it is well known that they are available to the general public as well, including the tourists in Baguio City, many of whom make it a point to visit John Hay for this reason. The consequence of this finding is that the petitioners cannot invoke the doctrine of state immunity to justify the dismissal of the damage suit against them by Genove. Such defense will not prosper even if it be established that they were acting as agents of the United States when they investigated and later dismissed Genove. For that matter, not even the United States

government itself can claim such immunity. The reason is that by entering into the employment contract with Genove in the discharge of its proprietary functions, it impliedly divested itself of its sovereign immunity from suit. While suable, the petitioners are nevertheless not liable. It is obvious that the claim for damages cannot be allowed on the strength of the evidence before us, which we have carefully examined.

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The barbershops subject of the concessions granted by the United States government are commercial enterprises operated by private person's. They are not agencies of the United States Armed Forces nor are their facilities demandable as a matter of right by the American servicemen. All the barbershop concessionaires are under the terms of their contracts, required to remit to the United States government fixed commissions in consideration of the exclusive concessions granted to them in their respective areas. This being the case, the petitioners cannot plead any immunity from the complaint filed by the private respondents in the court below. The contracts in question being decidedly commercial. Case is remanded to be tried on the facts

3. Chuidian v. SB (JG) TOPIC: Acts of State carried out within its won territory cannot be challenged in the courts of other States. G.R. No. 139941. January 19, 2001 Petitioner: Vicente Chuidian Respondents: Sandiganbayan and the Republic of the Philippines Ponente: Ynares‐Santiago, J. FACTS: •

Petitioner Vicente Chuidian was alleged to be a dummy of spouses Ferdinand and Imelda Marcos in the spouse’s illegally‐acquired companies.

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He allegedly induced Philippine Export and Foreign Loan Guarantee Corporation (PHILGUARANTEE), the Board of Investments (BOI) and the Central Bank, to 6

PIL Case Digest: Jurisdiction of States execute a loan guarantee of $25Million USD in favor of the Asian Reliability Company, Incorporated (ARCI), of which 98% was owned by the former sometime in September 1980. •

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In 1987, the government filed before the Sandiganbayan a complaint against the Marcos spouses, several government officials, cronies of the Marcoses (including Chuidian), seeking for the reconveyance of the ill‐gotten wealth.

However, Chiudian defaulted on his obligations and instead invested the proceeds of the loan in other corporations. o

Although ARCI had received the proceeds of the loan guaranteed by Philguarantee, the former defaulted in the payments thereof, compelling Philguarantee to undertake payments for the same.

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The Republic of the Philippines filed a motion for issuance of a writ of attachment over the L/C, alleging that Chuidian fraudulently misapplied the funds of ARCI.

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Consequently, in June 1985, Philguarantee sued Chuidian before the Santa Clara County Superior Court for misuse of funds and violations of the terms of the loan.

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The Sandiganbayan issued a Resolution ordering the issuance of a writ of attachment against the L/C as security for the satisfaction of judgment.

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Four years later, Chuidian filed a motion to lift the attachment and a motion to require the Republic to deposit the L/C in an interest bearing account, to which the Republic opposed. o The Republic alleged that Chuidian’s absence was not the only ground for the attachment and, therefore, his belated appearance before the Sandiganbayan is not a sufficient reason to lift the attachment. Moreover, allowing the foreign judgment as a basis for the lifting of the attachment would essentially amount to an abdication of the jurisdiction of the Sandiganbayan to hear and decide the ill gotten wealth cases lodged before it in deference to the judgment of foreign courts.

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The Sandiganbayan denied the two motions filed by Chuidian.

Three months before the EDSA revolution, Philguarantee entered into a compromise agreement with Chuidian whereby petitioner Chuidian shall assign and surrender title to all his companies in favor of the Philippine government. o

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exchange for which the government would assume certain liabilities of PNB, including the L/C of Chuidian.

In return, Philguarantee shall absolve Chuidian from all civil and criminal liability, and the Philippine government shall pay Chuidian US$5,300,000.00 through an irrevocable Letter of Credit (L/C) by the Philippine National Bank (PNB).

With the advent of the Aquino administration, the PCGG sequestered the assets of Chuidian, including the L/C. Because of this, Chuidian filed before the United States District Court, Central District of California, an action against PNB seeking, among others, to compel PNB to pay the proceeds of the L/C. o

PNB countered that it cannot be held liable for a breach of contract under principles of illegality, international comity and act of state, and thus it is excused from payment of the L/C.

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Philguarantee intervened in said action, raising the same issues and arguments it had earlier raised in the action before the Santa Clara Superior Court, alleging that PNB was excused from making payments on the L/C since the settlement was void due to illegality, duress and fraud.

The Federal Court rendered judgment ruling: (1) in favor of PNB excusing the said bank from making payment on the L/C; and (2) in Chuidian’s favor by denying intervenor Philguarantee’s action to set aside the settlement agreement. Pursuant to the rehabilitation plan for PNB, a Deed of Transfer was executed providing for the transfer to the government of certain assets of PNB in

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On Reconsideration, the Sandiganbayan still denied the motion to lift attachment, but gave due course to Chuidian’s plea for the attached L/C to be deposited in an interest‐bearing account, on the ground that it will redound to the benefit of both parties.

The Sandiganbayan declared the national government as the principal obligor of the L/C even though the liability remained in the books of the PNB for accounting and monitoring purposes.

ISSUE/HELD: W/N the favorable judgment of the United States District Court brought by petitioner Chuidian against PNB could be used as basis to lift the order of attachment and compel PNB to pay the L/C? ‐ NO 7

PIL Case Digest: Jurisdiction of States RATIO: •

Petitioner cites the favorable judgment by the United States District Court in civil case brought by petitioner Chuidian against PNB to compel the latter to pay the L/C. However, while it is true that the US District Court ruled in favor of Chuidian by denying intervenor Philguarantee’s action to set aside the settlement agreement, it also said that: o

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In 1986, PNB/Manila received an order from the PCGG ordering PNB to freeze any further drawings on the L/C. The freeze order has remained in effect and was followed by a sequestration order issued by the PCGG. o

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Subsequently, Chuidian’s Philippine counsel filed a series of challenges to the freeze and sequestration orders, which challenges were unsuccessful as the orders were found valid by the Philippine Supreme Court. The freeze and sequestration orders are presently in effect. Thus, under the PCGG order and Executive Orders Nos. 1 and 2, performance by PNB would be illegal under Philippine Law. Therefore PNB is excused from performance of the L/C agreement as long as the freeze and sequestration orders remain in effect.

Chuidian argues that the fact that the L/C was issued pursuant to a settlement in California, that the negotiations for which occurred in California, and that two of the payments were made at PNB/LA, compels the conclusion that the act of prohibiting payment of the L/C occurred in Los Angeles. o

Under Executive Order No. 1, the PCGG is vested by the Philippine President with the power to enforce its directives and orders by contempt proceedings. Under Executive Order No. 2, the PCGG is empowered to freeze any, and all assets, funds and property illegally acquired by former President Marcos or his close friends and business associates.

The Court is not convinced with this argument. The L/C was issued in Manila, such was done at the request of a Philippine government instrumentality for the benefit of a Philippine citizen. The L/C was to be performed in the Philippines, all significant events relating to the issuance and implementation of the L/C occurred in the Philippines, the L/C agreement provided that the L/C was to be construed according to laws of the Philippines, and the Philippine government certainly has an interest in preventing the L/C from being remitted in that it would be the release of funds that are potentially illgotten gains. Accordingly,

the Court finds that the PCGG orders are acts of state that must be respected by this Court, and thus PNB is excused from making payment on the L/C as long as the freeze and sequestration orders remain in effect. •

Petitioner’s own evidence strengthens the government’s position that the L/C is under the jurisdiction of the Philippine government and that the U.S. Courts recognize the authority of the Republic to sequester and freeze said L/C. Hence, the foreign judgments relied upon by petitioner do not constitute a bar to the Republic’s action to recover whatever alleged ill‐gotten wealth petitioner may have acquired.

DISPOSITIVE: The petition is DISMISSED. The PNB is directed to remit to the Sandiganbayan the proceeds of Letter of Credit in the amount of U.S. $4.4 million, to be placed under special time deposit with the Land Bank of the Philippines, for the account of Sandiganbayan in escrow for the person or persons, natural or juridical, who shall eventually be adjudged lawfully entitled thereto, the same to earn interest at the current legal bank rates.

4. Dayrit v. Phil Pharmawealth (CG) Petitioners: The Department of Health, Secretary Manuel M. Dayrit, Usec. Ma. Margarita Galon and Usec. Antonio M. Lopez Respondent: Phil. Pharmawealth, Inc., G.R. No. 169304 March 13, 2007 Topic: State Immunity (When it cannot be invoked by Government Officials) Applicable Law: Rule 58 of the ROC, Section 3, Article XVI of the 1987 Constitution FACTS: •

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Phil. Pharmawealth, Inc. (respondent) is a domestic corporation engaged in the business of manufacturing and supplying pharmaceutical products to government hospitals in the Philippines Secretary of Health Romualdez, Jr. issued A.O. 27 (1998), outlining the guidelines and procedures on the accreditation of government suppliers for pharmaceutical products.

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It was amended by A.O. No. 10 (2000), providing for additional guidelines for accreditation of drug suppliers aimed at ensuring that only qualified bidders can transact business with petitioner DOH In May 2000, respondent submitted to DOH a request for the inclusion of additional items in its list of accredited drug products, including the antibiotic “Penicillin G Benzathine.” Based on the schedule provided by DOH, the processing of and release of the result of respondent’s request were due on September 2000 In September 2000, petitioner DOH, through petitioner Lopez, chairperson of the pre‐qualifications, bids and awards committee, issued an Invitation for Bids for the procurement of 1.2 million units vials of Penicillin G Benzathine Despite the lack of response from DOH regarding respondent’s request for inclusion of additional items in its list of accredited products, respondent submitted its bid for the Penicillin G Benzathine contract When the bids were opened on October 11, 2000, only two companies participated, with respondent submitting the lower bid at P82.24 per unit, compared to Cathay/YSS Laboratories’ (YSS) bid of P95.00 per unit In view, however, of the non‐accreditation of respondent’s Penicillin G Benzathine product, the contract was awarded to YSS Respondent thus filed a complaint for injunction, mandamus and damages with prayer for the issuance of a writ of preliminary injunction and/or TRO with the RTC of Pasig City praying, inter alia, that the TC “nullify the award of the contract to YSS Laboratories, Inc. and direct DOH, Romualdez, Galon and Lopez to declare Pharmawealth as the lowest complying responsible bidder for the Benzathine contract, and that they accordingly award the same to plaintiff company” and “adjudge defendants Romualdez, Galon and Lopez liable, jointly and severally to plaintiff, for [the therein specified damages].” In their Comment, DOH, Romualdez, Jr. who was later succeeded by Dayrit, and Usecs Galon and Lopez argued for the dismissal of the complaint for lack of merit in view of the express reservation made by petitioner DOH to accept or reject any or all bids without incurring liability to the bidders, positing that government agencies have such full discretion Petitioners subsequently filed a Manifestation and Motion to Dismiss praying for the outright dismissal of the complaint based on the doctrine of state immunity. To petitioners’ motion to dismiss, respondent filed its comment/opposition contending, in the main, that the doctrine of state immunity is not applicable considering that individual petitioners are being

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sued both in their official and personal capacities, hence, they, not the state, would be liable for damages. In December 2003, the RTC denied petitioners’ motion to dismiss Their motion for reconsideration having been denied, petitioners filed a petition for certiorari with the CA, before which they maintained that the suit is against the state. By the assailed Decision of 2005, CA also affirmed RTC’s Order and denied petitioners’ motion for reconsideration.

ISSUE: WON the petitioners can invoke State Immunity – NO RULING: •

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As regards petitioner DOH, the defense of immunity from suit will not avail despite it being an unincorporated agency of the government, for the only causes of action directed against it are preliminary injunction and mandamus. Under Section 1, Rule 58 of the Rules of Court, preliminary injunction may be directed against a party or a court, agency or a person. Moreover, the defense of state immunity from suit does not apply in causes of action, which do not seek to impose a charge or financial liability against the State. The rule that a state may not be sued without its consent, now embodied in Section 3, Article XVI of the 1987 Constitution, is one of the generally accepted principles of international law, which we have now adopted as part of the law of the land. While the doctrine of state immunity appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The suit is regarded as one against the state where satisfaction of the judgment against the officials will require the state itself to perform a positive act, such as the appropriation of the amount necessary to pay the damages awarded against them. According to Shauf vs CA, the State authorizes only legal acts by its officers. Therefore, unauthorized acts of government officials or officers are not acts of the State. An action against those officials is not a suit against a state within the rule of immunity of the State from suit. 9

PIL Case Digest: Jurisdiction of States Hence, the rule does not apply where the public official is charged in his official capacity for acts that are unauthorized or unlawful and injurious to the rights of others. Neither does it apply where the public official is clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public position. In the present case, suing individual petitioners in their personal capacities for damages in connection with their alleged act of “illegally abusing their official positions to make sure that plaintiff Pharmawealth would not be awarded the Benzathine contract, which was done in bad faith and with full knowledge of the limits and breadth of their powers given by law” is permissible. An officer who exceeds the power conferred on him by law cannot hide behind the plea of sovereign immunity and must bear the liability personally. It bears stressing, however, that the statements in the immediately foregoing paragraph in no way reflect a ruling on the actual liability of petitioners to respondent. The mere allegation that a government official is being sued in his personal capacity does not automatically remove the same from the protection of the doctrine of state immunity. Neither, on the other hand, does the mere invocation of official character suffice to insulate such official from suability and liability for an act committed without or in excess of his or her authority. These are matters of evidence which should be presented and proven at the trial. (IMPORTANT DOCTRINE) •

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SUMMARY: TESDA entered into a contract with PROVI for the printing and encoding of PVCs. PROVI alleged that out of TESDA’s liability of P39.47M, TESDA only paid P3.7M as evidenced by PROVI’s Statement of Account. PROVI filed a case against TESDA in the RTC, which issued a writ of preliminary attachment against the latter’s properties. The CA reversed the decision. The SC affirmed the CA’s decision. As a government instrumentality, it cannot be sued without its consent. The Contract entered into was in lieu of its governmental functions; hence, there was no waiver of immunity from suit by TESDA. Further, TESDA’s funds are public in character, hence they are exempt from attachment or garnishment. FACTS: •

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WHEREFORE, the petition is DENIED. The assailed Decision dated May 12, 2005 and Resolution dated August 9, 2005 issued by the Court of Appeals are AFFIRMED.

5. Professional Video v. TESDA (RL)

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PROFESSIONAL VIDEO v. TESDA (RL) TOPIC: Immunity from suit of TESDA as a government instrumentality. G.R. No. 155504 June 26, 2009 Petitioner: Professional Video, Inc. (PROVI) Respondent: Technical Education and Skills Development Authority (TESDA) Ponente: BRION, J.:

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PROVI is an entity engaged in the sale of high technology equipment, information technology products and broadcast devices, including the supply of plastic card printing and security facilities. TESDA is an instrumentality of the government established under RA 7796 (the TESDA Act of 1994) and attached to the DOLE to “develop and establish a national system of skills standardization, testing, and certification in the country.” o To fulfill this mandate, it sought to issue security‐printed certification and/or identification polyvinyl (PVC) cards to trainees who have passed the certification process. TESDA’s conducted 2 public bidding for the printing and encoding of the PVCs, but failed in both instances since PROVI and Sirex Phils. Corp were the only bidders. o Due to the failed bidding, the Bidding Awards Committee recommended that TESDA enter into a negotiated contract with PROVI. On December 29, 1999, TESDA and PROVI signed and executed their “Contract Agreement Project: PVC ID Card Issuance” (the Contract) for the printing and encoding of PVC cards. o PROVI was to provide TESDA with the system and equipment based on the proposal. o TESDA would pay PROVI the amount of P39,475,000 within 15 days after TESDA’s acceptance of the contracted goods and services. On August 24, 2000, they executed an Addendum to the Contract whose terms bound PROVI to deliver 100% of the supplies to TESDA (includes security foils, security die with TESDA seal, ID cards, etc)

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PIL Case Digest: Jurisdiction of States o PROVI would also install and maintain a certain number of printers and scanners. o TESDA in turn undertook to pay PROVI 30% of the total cost of the supplies within thirty (30) days after receipt of the contracted supplies, with the balance payable within thirty (30) days after the initial payment. • PROVI alleged that out of TESDA’s liability of P39.47M, TESDA only paid P3.7M as evidenced by PROVI’s Statement of Account. This remained unpaid despite the demand letters sent by PROVI. • PROVI filed with the RTC a complaint for sum of money with damages against TESDA and additionally prayed for the issuance of a writ of preliminary attachment/garnishment against TESDA. o GRANTED and issued a writ of preliminary attachment against the properties of TESDA not exempt from execution in the amount of P35,000,000.00

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TESDA filed a MTQ the Writ of Attachment, arguing mainly that public funds cannot be the subject of garnishment. o DENIED by the RTC. TESDA filed a Petition for Certiorari with the CA to question the RTC orders, imputing GADALEJ on the RTC. o CA ruled in favor of TESDA:  TESDA’s funds are public in nature and, therefore, exempt from garnishment; and  TESDA’s purchase of the PVC cards was a necessary incident of its governmental function o CA DENIED PROVI’s MR.

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ISSUE: W/N the writ of attachment against TESDA and its funds, to cover PROVI’s claim against TESDA, is valid.—NO. TESDA is an agency of the government, hence it cannot be sued without its consent.

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PROVI argues that when TESDA entered into a purely commercial contract with PROVI, TESDA went to the level of an ordinary private citizen and could no longer use the defense of state immunity from suit. TESDA claims that it entered the Contract and Addendum in the performance of its governmental function; hence, TESDA is immune from suit.

Under RA 7796, which created TESDA, as well as the constitutional affirmation that “[T]he State affirms labor as a primary social economic force,” and shall “protect the rights of workers and promote their welfare”; that “[T]he State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all”; in order “to afford protection to labor” and “promote full employment and equality of employment opportunities for all.”, TESDA’s role in the government cannot be contested. It is an unincorporated instrumentality of the government, directly attached to the DOLE through the participation of the Secretary of Labor as its Chairman, for the performance of governmental functions – i.e., the handling of formal and non‐formal education and training, and skills development. As an unincorporated instrumentality operating under a specific charter, it is equipped with both express and implied powers, and all State immunities fully apply to it.

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TESDA is an instrumentality of the government undertaking governmental functions.

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TESDA, as an agency of the State, cannot be sued without its consent. (IMPT!!!) Sec. 3, Art. XVI of the Consti embodies the rule that a state may not be sued without its consent. o It is as well a universally recognized principle of international law that exempts a state and its organs from the jurisdiction of another state. o The principle is based on the very essence of sovereignty, and on the practical ground that there can be no legal right as against the authority that makes the law on which the right depends. o It also rests on reasons of public policy — that public service would be hindered, and the public endangered, if the sovereign authority could be subjected to law suits at the instance of every citizen and, consequently, controlled in the uses and dispositions of the means required for the proper administration of the government. The proscribed suit that the state immunity principle covers takes on various forms, namely: 11

PIL Case Digest: Jurisdiction of States o a suit against the Republic by name; o a suit against an unincorporated government agency; o a suit against a government agency covered by a charter with respect to the agency’s performance of governmental functions; and o a suit that on its face is against a government officer, but where the ultimate liability will fall on the government. • In the present case, the writ of attachment was issued against a government agency covered by its own charter. o TESDA performs governmental functions, and the issuance of certifications is a task within its function of developing and establishing a system of skills standardization, testing, and certification in the country. o From this function, the core reason for the existence of state immunity applies (i.e., the public policy reason that the performance of governmental function cannot be hindered or delayed by suits, nor can these suits control the use and disposition of the means for the performance of governmental functions).

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PROVI argues that TESDA can be sued because it has effectively waived its immunity when it entered into a contract with PROVI for a commercial purpose. o SC agrees with TESDA that the purchasing of PVC cards by TESDA is within the governmental functions given to it. o That TESDA sells the PVC cards to its trainees for a fee does not characterize the transaction as industrial or business; the sale cannot be considered separately from TESDA’s general governmental functions, as they are undertaken in the discharge of these functions.  Mobil Philippines v. Customs Arrastre Services: the fact that a non‐corporate government entity performs a function proprietary in nature does not necessarily result in its being suable. If said non‐governmental function is undertaken as an incident to its governmental function, there is no waiver thereby of the sovereign immunity from suit extended to such government entity.

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TESDA’s funds are public in character, hence exempt from attachment or garnishment.

Even assuming that TESDA entered into a proprietary contract with PROVI and thereby gave its implied consent to be sued, TESDA’s funds are still public in nature and cannot be the valid subject of a writ of garnishment or attachment. o TESDA funds, being sourced from the Treasury, are moneys belonging to the government, or any of its departments, in the hands of public officials. o Republic v. Villasor: public funds cannot be the object of garnishment proceedings even if the consent to be sued had been previously granted and the state liability adjudged. o Traders Royal Bank v. Intermediate Appellate Court: Being public funds, the deposits are not within the reach of any garnishment or attachment proceedings. As pointed out by TESDA in its Memorandum, the garnished funds constitute TESDA’s lifeblood whose withholding via a writ of attachment, even on a temporary basis, would paralyze TESDA’s functions and services. o These funds also include TESDA’s Personal Services funds from which salaries of TESDA personnel are sourced.

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PROVI has not shown that it is entitled to the writ of attachment. Even without the benefit of any immunity from suit, the attachment of TESDA funds should not have been granted, as PROVI failed to prove that TESDA “fraudulently misapplied or converted funds allocated under the Certificate as to Availability of Funds.” Jurisprudence teaches us that the rule on the issuance of a writ of attachment must be construed strictly in favor of the defendant. o Thus, the applicant’s affidavit must contain statements clearly showing that the ground relied upon for the attachment exists. Section 1(b), Rule 57 of the Rules of Court, that PROVI relied upon, applies only where money or property has been embezzled or converted by a public officer, an officer of a corporation, or some other person who took advantage of his fiduciary position or who willfully violated his duty. o PROVI, in this case, never entrusted any money or property to TESDA. While the Contract Agreement is supported by a Certificate as to Availability of Funds (Certificate) issued by the Chief of TESDA’s Accounting Division, this Certificate does not automatically confer ownership over the funds to PROVI. 12

PIL Case Digest: Jurisdiction of States o Absent any actual disbursement, these funds form part of TESDA’s public funds, and TESDA’s failure to pay PROVI the amount stated in the Certificate cannot be construed as an act of fraudulent misapplication or embezzlement.

•

The Labor Arbiter held that there was illegal dismissal and ordered all the petitioners to pay USD 3,600 representing her salary for 3 months

•

This decision was affirmed by the NLRC

•

The petitioners filed suit in the CA contending that

DISPOSITIVE: WHEREFORE, premises considered, we hereby DENY the petition filed by petitioner Professional Video, Inc., and AFFIRM the CA’s Decision.

o

their principal, MPHK, being a foreign government agency, is IMMUNE FROM SUIT, and as such, the immunity is extended to them

o

The dismissal was valid for her failure to meet the perfromance rating within the 1 year period required under Kuwait's civil service laws

o

CA affirmed the NLRC decision

o

The CA said that under the law, a private employment agency shall assume all responsibilities for the implementation of the contract of employment of an overseas worker, hence, it can be sued jointly and severally with the foreign principal for any violation of the recruitment agreement

o

As to Ikdal's liability, the appellate court held that under Sec. 10 of RA 8042, the "Migrant and Overseas Filipinos' Act of 1995", corporate officers, directors and partners of a recruitment agency may themselves be jointly and solidarily liable with the recruitment agency for money claims

6. ATCI v. Echin (EM) ATCI Overseas Corporation, Amalia G. Ikdal, and Ministry of Public Health‐Kuwait (MPHK), petitioners vs. Ma. Josefa Echin, respondent October 11, 2010 Carpio Morales, J. Facts: •

•

Echin was hired by ACTI in behalf of MPHK o

for the position of Medical Technologist

o

under a 2 year contract,

o

denominated as a Memorandum of Agreement

o

with a monthly salary of 1,200 USD All newly‐hired employees undergo a probationary period of 1 year

Echin was deployed on February 17, 2000 BUT was terminated from employment on February 11, 2001, she not having ALLEGEDLY passed the probationary period

•

As her request for reconsideration was denied, she returned to the Philippines on March 17,2001

•

On July 27, 2001, Echin filed with the NLRC a complaint for illegal dismissal against ATCI, represented by Ikdal (also a petitioner) and MPHK

However, petitioner maintains that they should not be held liable because the employment contract specifically said that the employment shall be governed by the Civil Service Law and Regulations of Kuwait

•

They also argue that even assuming Philippine labor laws apply, given that the foreign principal is a government agency which is immune from suit, petitioner ATCI cannot likewise be held liable

The MOA o

•

•

Issue: WON ATCI and Ikdal may be held liable? Held: Yes Ratio: •

Petitioner ATCI, as a private recruitment agency, cannot evade responsibility for the money claims of OFWs which it deploys abroad by just saying that its foreign principal is immune from suity

•

In providing for the joint and solidary liability of private recruitment agencies with their foreign principals, RA 8042 precisely affords the OFWs with a recourse 13

PIL Case Digest: Jurisdiction of States o It is in line with the policy of the State to protect and alleviate the plight of the OFWs o

•

However, they must submit a copy of the pertinent Kuwaiti labor laws duly authenticated and translated by Embassy officials thereat, as required by the Rules

With regard to Ikdal's joint and solidary liability as a corporate officer, the same is in oder too following the express provision of RA 8042 on Money Claims o

The liability of the principal and the recruitment agency shall be joint and several.....the corporate officers..as the case may be, shall be jointly and solidarily liable with the corporation or partnership

The party invoking the application of foreign law has the burden of proving the law, under the doctrine of processual presumption, which in this case, petitioners failed to discharge

o

In international law, the part who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law

G.R. No. 124772, August 14, 2007

o

The foreign law is treated as a question of fact to be properly pleaded and proved as the judge cannot take judicial notice of a foreign law

Respondent: Sandiganbayan, Officeco holdings.

Unfortunately for petitioner, it failed to prove the pertinent Saudi laws‐ they must not only be alleged, THEY MUST BE PROVEN o

Thus, the international law doctrine of presumed‐identity approach or processual presumption comes into play •

Where a foreign law is not plead, or even if pleaded, is not proved, the presumption is that the foreign law is the same as ours

•

Thus, we apply, Philippine labor laws in determining the issues before us

o

To prove a foreign law, a party invoking it must present a copy and comply with Secs 24 and 25 of Rule 132 of the Rules of Court

o

To prove Kuwaiti law, petitioners just submitted the ff: •

MOA between respondent and MPHK

•

A translated copy

•

Termination letter to respondent stating that she did not pass the probation terms 

•

•

With respect to petitioners' argument that it is governed by Kuwait laws and that POEA rules accord respect to rules, customs, and practices of the host state ‐ the same was not substantiated o

•

To allow the petitioners to simply invoke immunity from suit of its foreign principal or to wait for the judicial determination of the foreign principal's liability renders the law on joint and solidary liability inutile

o

Must be certified by Alawi, Head of the Dept of Foreign Affairs‐Office of Consular Affiars Inslamic Certification and Translation Unit

Respondent's letter of reconsideration

7. Gunigundo v. SB (NO) Petitioner: PCGG, represented by Chairman Gunigundo Ponente: J. Tinga FACTS: •

Criminal proceedings were instituted in the Philippines to locate, sequester and seek restitution of the ill‐gotten wealth of the Marcoses o

•

On 7 April 1986, the Office of the Solicitor General (OSG) wrote the Federal Office for Police Matters in Berne, Switzerland, requesting assistance for the latter office to: 

(a) ascertain and provide the OSG with information about the ill‐ gotten fortune of the Marcoses, the names of the depositors and the banks and amounts involved; and



(b) take necessary precautionary measures to freeze the assets in order to preserve their existing value and prevent any further transfer.

The Office of the District Attorney in Zurich issued an Order directing the Swiss Banks in Zurich to freeze the accounts, including those of Officeco Holdings. o Officeco appealed the Order of the District Attorney to the Attorney General of the Canton of Zurich, who affirmed the Order of the District Attorney. Officeco further appealed to the Swiss Federal Court which likewise dismissed the appeal. 14


•

In late 1992, Officeco asked the OSG and the PCGG to officially advise the Swiss government to unfreeze Officeco’s assets. The PCGG required Officeco to present countervailing evidence to support its request. Instead, Officeco filed the complaint in 1994, which prayed for the PCGG and the OSG to officially advise the Swiss government to exclude from the freeze or sequestration order the account of Officeco. o The PCGG filed a motion to dismiss which was denied by the Sandiganbayan. The Motion for Reconsideration was also denied.

ISSUE: Whether or not the Sandiganbayan erred in not dismissing the case for reasons of (1) res judicata; (2) lack of jurisdiction on account of the “act of state doctrine”; (3) lack of cause of action for being premature for failure to exhaust administrative remedies; and (4) lack of cause of action for the reason that mandamus does not lie to compel performance of a discretionary act, there being no showing of grave abuse of discretion on the part of petitioners.

•

•

Act of State Doctrine •

Held: Res Judicata Petitioners argue that the decision of the Swiss court of denying Officeco’s appeal, and the freeze order of the District Attorney in Zurich where conclusive on Officeco’s rights o Thus a relitigation will violate res judicata • Requisites of Res Judicata: 1) The former judgment or order must be final; (2) It must be a judgment or order on the merits, that is, it was rendered after a consideration of the evidence or stipulations submitted by the parties at the trial of the case; (3) It must have been rendered by a court having jurisdiction over the subject matter and the parties; and (4) There must be, between the first and second actions, identity of parties, of subject matter and of cause of action. •

The first three elements above are present in this case, we rule that the fourth element is absent. Hence, res judicata does not apply to prevent the Sandiganbayan from proceeding with Civil Case No. 0164 Petitioners’ interest is to recover ill‐gotten wealth, wherever the same may be located. The interest of the Swiss court, on the other hand, is only to settle the issues raised before it, which include the propriety of the legal assistance extended by the Swiss authorities to the Philippine government.

•

•

Petitioners claim that the case in effect seeks a judicial review of the legality or illegality of the acts of the Swiss government. o “act of state” doctrine ‐ courts of one country will not sit in judgment on the acts of the government of another in due deference to the independence of sovereignty of every sovereign state. o Citing Underhill v. Hernandez: Every sovereign state is bound to respect the independence of every other state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. There are three methods by which States prevent their national courts from deciding disputes which relate to the internal affairs of another State: act of state doctrine, immunity and non‐justiciability. o It is an avoidance technique that is directly related to a State’s obligation to respect the independence and equality of other States by not requiring them to submit to adjudication in a national court or to settlement of their disputes without their consent. In Banco Nacional de Cuba v. Sabbatino(US SC) held that, International law does not require the application of this doctrine nor does it forbid the application of the rule even if it is claimed that the act of state in question violated international law. Moreover, due to the doctrine’s peculiar nation‐to‐nation character, in practice the usual method for an individual to seek relief is to exhaust local remedies and then repair to the executive 15

PIL Case Digest: Jurisdiction of States authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal • Contrary to Petitioner’s assertion, the Sandiganbayan will only review and examine the propriety of maintaining PCGG’s position with respect to Officeco’s accounts with BTAG for the purpose of further determining the propriety of issuing a writ against the PCGG and the OSG.

• •

Exhaustion of Remedy •

•

Petitioners allege that Officeco failed to exhaust the remedies available under Secs. 5 and 6 of the PCGG Rules and Regulations However, the provisions refer only to sequestration orders, freeze orders and hold orders issued by the PCGG in the Philippines. They do not apply to those issued in another country

Mandamus of a Discretionary act •

•

Petitioner contend that the complaint is for mandamus but the act sought by Officeco is discretionary in nature and add that they did not commit grave abuse of discretion in denying Officeco’s request to unfreeze its account. The real issue is whether Officeco’s complaint before the Sandiganbayan states a cause of action, not whether or not mandamus will lie. o Officeco actually sent several requests (4) to the PCGG asking them to remove them from the list of companies whose assets were frozen in Switzerland. o Neither the PCGG nor the OSG replied to the requests of Officeco within 15 days as required by law, and the inaction is equivalent to a denial of these requests.  This inaction resulted in a cause of action because they had no other choice but to resort to judicial remedies.

Dispositive Portion: WHEREFORE, premises considered, the instant petition is DISMISSED.

•

• • • • • • • •

•

•

B. Diplomatic and Consular Immunity 1. Minucher v. CA (MT) Facts:

•

On August 1988, petitioner filed with the RTC a complaint for damages against respondent, Arthur Scalzo Jr. Petitioner alleged that he was a labor attaché of the Embassy of Iran in the Phils. And that he met respondent, then connected with the American Emabassy, through Jose Inigo, informer belonging to the military intelligence community whom he had various business transaction like the buying and selling carpets and caviar (this will be the same transactions he will have with the respondent). So they met. Respondent was purportedly interested in buying caviar and carpets too. On this same occasion, petitioner told respondent that he had problems with his visa and along with his wife’s and sought respondent’s help. Respondent offered his help and presented himself as an agent of the DEA (drug enforcement agency) of the US Embassy in Manila. Respondent bought caviar and said that the fee for the visas were $2000. Further, ordered more caviar and bought a carpet worth $24,000. It turned out that respondent had an elaborate plan to frame petitioner and Abbas Torabian for alleged heroin trafficking. Some American and Filipino police officers arrested them and brought them to Camp Crame in their underwear (how unfortunate huhu). Private respondent and his companions took three suitcases and papers, his wallet, the keys to his car and his house, the $24,000 earlier delivered to him. They were handcuffed together for three days and were not given food and water. They were asked to confess for possession of heroin or else they would be jailed or even executed by Iranian terrorists. Consequently, they were charged for the violation of the Dangerous Drugs Act of 1972 in the RTC of Pasig. Respondent testified for the prosecution of the same case. Petitioner alleged that respondent falsely testified against him and also avers that charges of unlawful arrest, robbery, estafa and swindling have been filed against the respondent. Petitioner therefore prays for actual and compensatory damages: $24,000 for the Persian carpet, $2000 for the fees he gave for the visas, moral damages P5M, exemplary damages for P100k, and at least P200k for litigation fees he spent on for the criminal cases filed against him and this civil case. On September 1988, private respondent’s counsel, filed a special appearance (civpro hehe) and motion alleging therein that since respondent is an agent of the DEA of the US and the acts and omissions complained were performed by him in the performance of his official functions and that the case is now under 16

PIL Case Digest: Jurisdiction of States study with the Department of State and Justice in Washington DC for the purpose of determining what defenses would be appropriate. • Moving on… On June 1990, private respondent filed a motion to dismiss the case on the ground of a DIPLOMATIC NOTE issued by the US Embassy by Donald Woodward, Vice consul of the US advising the DFA of the RP that Arthur Scalzo was a member of a diplomatic mission, which is basically an official function and raises the ART 39(2) of the Vienna Convention on Diplomatic Relations, which provides that respondent retains immunity from civil suit for acts performed in the exercise of his functions. • The RTC then denied the dismissal but the CA reversed the decision thus this petition…

2. Republic of Indonesia v. Vinzon (RK) THE REPUBLIC OF INDONESIA, HIS EXCELLENCY AMBASSADOR SOERATMIN, and MINISTER COUNSELLOR AZHARI KASIM,petitioners, vs. JAMES VINZON, doing business under the name and style of VINZON TRADE AND SERVICES, respondent. Facts:

Issue: WON the case against the respondent must be dismissed based on diplomatic immunity?

Petitioners entered into a maintenance agreement with Respondent, in order to maintain specified equipment – aircons, generators, water heaters, etc – at the Embassy, its annex, and the official residence of the petitioner‐ambassador. This agreement would be effective for a period of four years and would automatically renew itself unless cancelled by either party by giving thirty days prior written notice.

Held & Ratio: NO. For the reasons below:

•

•

•

•

• •

Said complaint contains sufficient allegations which indicate that the respondent committed the imputed acts in his personal capacity and outside the scope of his official functions and duties. As described in the complaint he committed criminal acts for which he is also criminally liable. In the decision acquitting the petitioner in the criminal case that he was indeed a victim of the frame up—there is prima facie showing that respondent could be held personally liable for the acts committed beyond his official functions. Shauff v CA: It is a well settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and bad faith or beyond the scope of his authority of jurisdiction. Art 31 of the Vienna Convention on Diplomatic Relations admits exception: immunity can be availed of except an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside of his official functions. Besides the diplomatic note there was no sufficient evidence presented by respondent to support his claim of immunity. WHEREFORE, the challenged decision of public respondent of 31 October 1990 in C.A.‐G.R. SP No. 22505 is SET ASIDE and the Order of 25 June 1990 of Branch 19 of the Regional Trial Court of Manila In Civil Case No. 88‐45691 denying private respondent’s Motion to Dismiss is hereby REINSTATED.

Before expiration of agreement in 1999, petitioners involved respondent that the renewal would be at the discretion of the incoming chief of administration. Such Chief found respondentt’s work unsatisfactory, and thus, terminated the agreement. Respondent claimed that such dismissal was arbitrary and unfair, and filed a suit. Citing that a sovereign state is immune from suit, petitioners filed a motion to dismiss. They also said that Soeratmin and kasim are diplomatic agents and enjoy immunity. Respondet claimed that Indonesia expressly waived its immunity from suit, citing a provision in the Maintenance Agreement – “any legal action arising out of this maintenance agreement shall be settled according to the laws of the Philippines and by the proper court of Makati City, Philippines.” RTC and CA ruled in favor of respondent – hence this petition. Issue: WoN CA erred in ruling that petitioners have waived their immunity based on the abovementioned provision in the agreement Ruling : PETITION GRANTED Ratio 17

PIL Case Digest: Jurisdiction of States  Immunity of a sovereign is recognized with regard to public acts – acts jure imperii – but not with regard to private acts – jure gestionis.  Ex : Conduct of a public bidding for the repair of a Wharf at a US Naval station – jure imperiii  Ex: Hiring a cook in the recreation center of camp john hay – jure gestionis  In present case o Mere entering into a contract does not immediately classify it as one or the other o We must ask – is foreign state engaged regularly in conduct of a business? – in this case, it is not, and thus it seems as if the act is in pursuit of a sovereign activity, and thus an act jure imperii. o Petitioner : maintenance is no longer a sovereign function  Court disagrees : “it is clear that Indonesia ws acting in pursuit of a sovereign activity when it entered into contract with respondent”  “one does not merely establish a diplomatic mission and leave it at that, such establishment encompasses maintenance and upkeep”  With regard to provision in maintenance agreement o Not necessarily/explicitly a waiver. o Could apply when sovereign sues in local courts, or otherwise expressly waives o Applicability of Phil Laws can also mean recognition of immunity  Waiver must be explicit, clear, and unequivocal

3. Nicolas v. Romulo (RC) Topic: Daniel Smith case, VFA is valid treaty, custody of US troops Treaties: VFA Romulo‐Kennedy Agreement of 2006 Petitioner: Suzette Nicolas et al Respondent: Alberto Romulo, acting as Secretary of Foreign Affairs, et al. SUMMARY:

Daniel Smith was convicted of the Rape of Suzette Nicolas. After conviction during his appeal, he was taken from Makati Jail by authorities and placed in US custody pursuant to the Romulo‐Kennedy Agreement. So question, where should he be detained. Accdg. to petitioner, the VFA is void so the US shouldn’t be able take him out of jail. SC said that VFA is valid based on previous rulings in Bayan v Zamora. It is merely implementing the MDT. So looking at VFA, the proper procedure is that upon conviction the US and Philippine authorities have to agree where the convicted should serve his sentence. The Romulo‐Kennedy Agreement is invalid because it doesn’t follow this provision of the VFA. When US and Phils agree the service of sentence should be done under Philippine Authority (Art V Sec 10 of VFA). Also, explained Medellin v Texas case (end of digest). FACTS •

•

These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA‐G.R. SP No. 97212, dated January 2, 2007. Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was charged with the crime of rape committed against a Filipina, petitioner herein, sometime on November 1, 2005, as follows: st

“That on or about the First (1 ) day of November 2005, inside the Subic Bay Freeport Zone, Olongapo City and within the jurisdiction of this Honorable Court, the above‐named accused’s (Smith, Carpentier, Duplantis, Silkwood, Soriano), being then members of the United States Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating together and mutually helping one another, with lewd design and by means of force, threat and intimidation, with abuse of superior strength and taking advantage of the intoxication of the victim, did then and there willfully, unlawfully and feloniously sexually abuse and have sexual intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22‐year old unmarried woman inside a Starex Van with Plate No. WKF‐ 162, owned by Starways Travel and Tours, with Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her damage and 18

PIL Case Digest: Jurisdiction of States prejudice. •

•

•

Pursuant to VFA, the US, at its request, was granted custody of defendant Smith pending the proceedings. During the trial, which was transferred from the RTC of Zambales to the RTC of Makati for security reasons, the United States Government faithfully complied with its undertaking to bring defendant Smith to the trial court every time his presence was required. RTC of Makati Acquitted the other men. Found Smith guilty, sentencing him to reclusion perpetua. Pursuant to VFA, Smith shall serve his sentence in facilities to be agreed upon by the US and Philippine authorities. Pending such agreement he is to serve it in Makati City Jail. On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of Philippine law enforcement agents, purportedly acting under orders of the Department of the Interior and Local Government, and brought to a facility for detention under the control of the United States government, provided for under new agreements between the Philippines and the United States, referred to as the Romulo‐Kenney Agreement which states: o The Government of the Republic of the Philippines and the Government of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila o The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between the two nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military personnel. The Philippine police and jail authorities, under the direct supervision of the Philippine Department of Interior and Local Government (DILG) will have access to the place of detention to ensure the United States is in compliance with the terms of the VFA.

ISSUE/HELD: Who gets custody? Status Quo, DFA has to conduct talks because the Romulo‐ Kennedy Agreement is void for being contrary to VFA.

Accdg to Petitioner: Philippines because VFA is void. COURT: VFA is constitutional RATIO: VFA •

The provision of the Constitution is Art. XVIII, Sec. 25 which states: Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.

•

•

The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation in which the terms and conditions governing the presence of foreign armed forces in our territory were binding upon us but not upon the foreign State. Applying the provision to the situation involved in these cases, the question is whether or not the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed “under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other contracting State.” o Bayan v. Zamora, the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly authorized representative of the United States government. o VFA and the RP‐US Mutual Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate  RP‐US military exercises for the purpose of developing the capability to resist an armed attack fall squarely under the provisions of the RP‐US Mutual Defense Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP‐US military exercises, is simply an implementing agreement to the main RP‐US Military Defense Treaty.  Accordingly, as an implementing agreement of the RP‐US Mutual Defense Treaty, the provision of Art. XVIII, Sec. 25 of 19

PIL Case Digest: Jurisdiction of States the Constitution, is complied with by virtue of the fact that the presence of the US Armed Forces through the VFA is a presence “allowed under” the RP‐US Mutual Defense Treaty. Since the RP‐US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting from such presence. The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide by its terms and provisions.

rules of procedure) of one State do not extend or apply – except to the extent agreed upon – to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces. Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to detention as against custody. The moment the accused has to be detained, e.g., after conviction, the rule that governs is the following provision of the VFA: Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance.

Article V Criminal Jurisdiction x x x 6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged. In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one year period will not include the time necessary to appeal. Also, the one year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so. o

o

The rule in international law is that a foreign armed forces allowed to enter one’s territory is immune from local jurisdiction, except to the extent agreed upon. As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including

o

o

There is a difference between custody during the trial and detention after conviction, because they provided for a specific arrangement to cover detention. And this specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of both parties, but also that the detention shall be “by Philippine authorities.” Therefore, the Romulo‐Kenney Agreements of December 19 and 22, 2006, which are agreements on the detention of the accused in the United States Embassy, are not in accord with the VFA itself because such detention is not “by Philippine authorities.” Respondents should therefore comply with the VFA and negotiate with representatives of the United States towards an agreement on detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals’ Decision in CA‐G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, is UPHELD as constitutional, but the Romulo‐Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as 20

PIL Case Digest: Jurisdiction of States provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court. NOTE: Case‐ception: Medellin v. Texas which held that treaties entered into by the United States are not automatically part of their domestic law unless these treaties are self‐executing or there is an implementing legislation to make them enforceable. (important bits) First, the VFA is a self‐executing Agreement, as that term is defined in Medellin itself, because the parties intend its provisions to be enforceable, precisely because the Agreement is intended to carry out obligations and undertakings under the RP‐US Mutual Defense Treaty. As a matter of fact, the VFA has been implemented and executed, with the US faithfully complying with its obligation to produce L/CPL Smith before the court during the trial. Secondly, the VFA is covered by implementing legislation, namely, the Case‐Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that executive agreements registered under this Act within 60 days from their ratification be immediately implemented. The parties to these present cases do not question the fact that the VFA has been registered under the Case‐Zablocki Act. Finally, the RP‐US Mutual Defense Treaty was advised and consented to by the US Senate. Accordingly, there are three types of treaties in the American system: 1. Art. II, Sec. 2 treaties – These are advised and consented to by the US Senate in accordance with Art. II, Sec. 2 of the US Constitution. 2. Executive–Congressional Agreements: These are joint agreements of the President and Congress and need not be submitted to the Senate. 3. Sole Executive Agreements. – These are agreements entered into by the President. They are to be submitted to Congress within sixty (60) days of ratification under the provisions of the Case‐Zablocki Act, after which they are recognized by the Congress and may be implemented.

21

IMMUNITY'FROM'JURISDICTION' A.'STATE'IMMUNITY' 1. The'Tate'Letter'(MR)' 26'Dept.'of'State'Bull.'(MR)' 984!(1952)! ! A! letter! from! the! Acting! Legal! Adviser,! Jack! B.! Tate,! to! the! United! States! Department!of!Justice,!May!18,!1952.! ! Note:& The& point& is& really& to& discuss& the& 2& kinds& of& sovereign& immunity& (absolute& and&restrictive)&and&to&say&that&the&Department’s&policy&is&to&follow&the&restrictive& theory.&& ! 2'conflicting'concepts'of'sovereign'immunity:' 1. 2.

3.

classical!or!absolute—a!sovereign!cannot,!without!its!consent,!be!made! a!respondent!in!the!courts!of!another!sovereign! newer! or! restrictive—immunity! of! the! sovereign! is! recognized! with! regard!to!sovereign!or!public!acts!(jure!imperii),!but!not!with!respect!to! private!acts!(jure!gestionis)! matter!where!proponents!of!both!theories!are!in!agreement—sovereign! immunity!should!not!be!claimed!or!recognized:!! • in! actions! with! respect! to! real! property! (except! diplomatic! and! consular!property)! • or!with!respect!to!disposition!of!the!property!of!a!deceased!person! even!though!a!foreign!sovereign!is!the!beneficiary!!

! Countries' that' tend' to' decide' in' favor' of' absolute' theory:! US,! British! Commonwealth,! Czechoslovakia,! Estonia,! Poland,! Brazil,! Chile,! China,! Hungary,! Japan,!Luxembourg,!Norway,!Portugal!! Countries'that'tend'to'decide'in'favor'of'restrictive'theory:!Belgium,!Italy,!Egypt,! Switzerland,!France,!Austria,!Greece,!Romania,!Peru,!Denmark!!

restrictive! theory! and! the! views! of! writers,! at! least! in! civil! law! countries,! are! a! major!factor!in!the!development!of!the!law.!! ! Of! related! interest! is! the! fact! that! 10! of! the! 13! countries! cited! as! supporters! of! the!classical!theory!have!ratified!the! Brussels' Convention' of' 1926,!under!which! immunity!for!government!owned!merchant!vessels!is!waived.!US,!which!is!not!a! party!to!the!convention,!has!also!followed!a!policy!of!not!claiming!immunity!for! its!public!owned!or!operated!vessels.!It!is!noteworthy!that!these!10!countries!plus! the! US! have! relinquished! an! important! part! of! the! immunity! which! they! claim! under!the!classical!theory.!There!is!thus!now!little!acceptance!for!the!continued! full!acceptance!of!the!absolute!theory!of!sovereign!immunity.!! ! The!Department!feels!that!the!widespread!and!increasing!practice!on!the!part!of! governments!engaging!in!commercial!activities!makes!necessary!a!practice!which! will!enable!persons!doing!business!with!them!to!have!their!rights!determined!in! the! courts.! For! these! reasons! it' will' hereafter' be' the' Department’s' policy' to' follow'the'restrictive'theory'in'considering'requests'of'foreign'governments'for' a'grant'of'sovereign'immunity.'' ! A!shift!in!policy!by!the!executive!branch!cannot!control!the!courts.!But!there!have! been! indications! that! at! least! some! Justices! of! the! SC! feel! that! in! this! matter! courts! follow! the! branch! of! the! government! charged! with! responsibility! for! the! conduct!of!foreign!relations.!!

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2. Victory' Transport' Inc' v.' Comisaria' General' de' Abastecimientos'y'Transportes'(MR)' 35!ILR!110!USCA!2d!Circ.!1964! ! Facts& •

Countries'that'tend'to'decide'in'favor'of'either:!Netherlands,!Sweden,!Argentina! ! A!trend!toward!the!restrictive!theory!has!become!more!and!more!evident!since! its!development.!Furthermore,!there!is!a!school!of!influential!writers!favoring!the! !

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Victory!charted!a!ship!to!Comisaria!(a!branch!of!the!Ministry!of!Commerce!of! the! Spanish! Government)! for! a! voyage! from! Alabama! to! Spain! to! carry! surplus! wheat! purchased! by! the! Spanish! Government! under! an! Agricultural! Commodities! Agreement! (agreement)! with! the! US! pursuant! to! the! US! Agricultural!Trade!Development!and!Assistance!Act!(act).!! The!charter!agreement!contained!an!arbitration!clause:!should!dispute!arise,! it! shall! be! referred! to! 3! persons! in! New! York,! commercial! men,! one! to! be! 1!

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appointed! by! each! party! and! the! third! to! be! appointed! by! the! two! chosen.! Their!decision!shall!be!final!and!for!the!purpose!of!enforcing!award,!may!be! made!a!rule!of!court.!! The!ship!was!damaged!while!discharging!cargo!at!Spanish!ports!which!were! allegedly! unsafe! for! a! vessel! of! that! size,! so! Victory! filed! suit! to! compel! arbitration!under!the!US!Arbitration!Act:!Sec.!4!states!that!parties!aggrieved! by! the! failure! or! refusal! of! another! party! to! arbitrate! pursuant! to! an! arbitration! agreement! may! petition! the! US! district! court! to! issue! order! directing!that!arbitration!proceed!as!provided!for!in!the!agreement.!! Victory! secured! an! ex! parte! order! from! the! District! Court.! Service! of! its! petition! was! made! by! registered! mail! to! Comisaria.! Comisaria! moved! to! vacate!the!service!because!Court!lacked!in!personam!jurisdiction!because!of! (a)!extraterritorial!service!and!(b)'sovereign'immunity'from'suit'to'which'it' was'entitled,'being'a'branch'of'the''Spanish'government.'

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Victory’s! motion! to! compel! arbitration! granted.! By! entering! into! the! arbitration! agreement,! both! parties! consented! to! the! jurisdiction! of! courts! in! New! York.! And' being' a' commercial' operation,' sovereign' immunity'was'not'available.''

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' Judgment&of&the&Court& Jack! Tate! (see! Tate! Letter)! announced! that! the! Department! would! adhere! to! the! restrictive! theory! of! sovereign! immunity.! However,! it! offers!no!guidelines!or!criteria!for!differentiating!a!private!from!a!public! act! • Some!criteria!from!the!past:! a by!nature—sovereign!acts!are!only!those!activities!which!could!not! be! performed! by! individuals;! but! this! only! postpones! the! difficulty! for! particular! contracts! in! some! instances! may! be! made! only! by! States!! a by! purpose! of! transaction—jure! imperii! are! those! in! which! the! object!of!the!performance!is!public!in!character;!but!this!criterion!is! purely!arbitrary! purpose! of! the! restrictive! theory—to! try! to! accommodate! the! interest! of! individuals!doing!business!with!foreign!governments!having!their!legal!rights! determined!by!the!courts,!with!the!interest!of!foreign!Governments!in!being! •

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free!to!perform!certain!political!acts!without!undergoing!the!embarrassment! or!hindrance!of!defending!the!propriety!of!such!acts!before!foreign!courts!! Sovereign! immunity! is! a! derogation! from! the! normal! exercise! of! state! jurisdiction! so! we! are! disposed! to! deny! a! claim! of! sovereign! immunity! that! has! not! been! recognized! and! allowed! by! the! State! Department! unless! it! is! plain!that!the!activity!falls!within!one!of!the!categories!of!strictly!political!or! public!acts!! Such!acts!are!general!limited!to:!! a internal!administrative!acts,!such!as!expulsion!of!alien! a legislative!acts!such!as!nationalization! a acts!concerning!armed!forces! a acts!concerning!diplomatic!activity! a public!loans! Should! diplomacy! require! enlargement! of! these! categories,! the! State! Department! can! file! a! suggestion! of! immunity! with! the! court.! Should! it! require! contraction,! Department! can! issue! new! or! clarifying! policy! pronouncement! The! Comisaria’s! chartering! of! Victory’s! ship! is! not! strictly! a! public! act! but! more!a!private!commercial!act.!It!has!all!the!earmarks!of!such:! a executed!for!Comisaria!by!the!head!of!its!commercial!division! a wheat! ! was! consigned! to! and! shipped! by! private! commercial! concern! a inclusion!of!the!arbitration!clause!! The! French! CA! dismissed! a! claim! of! sovereignty! by! the! governmental! charterer! which! had! agreed! to! arbitration,! pointing! out! that! even! if! you! broaden!the!view!to!say!that!purchase!of!wheat!was!to!help!feed!the!people! of!Spain,!it!still!remains!commercial!activity! Comisaria! does! not! claim! that! wheat! will! be! used! for! the! public! services! of! Spain.! Presumptively,! the! wheat! will! be! sold! to! Spanish! nationals.! The! purchasing!activity!was!through!private!channels!of!trade! In! New! York! and! Cuoa! Mail! v.! Republic! of! Korea,! we! held! that! wartime! transportation! of! rice! to! civilian! and! military! personnel! is! not! a! public! act,! and!so!the!peacetime!transportation!of!wheat!for!presumptive!resale!is!not!a! public!act!! Generally,! purchasing! activity! by! a! State! instrumentality,! particularly! for! resale!to!nationals,!is!a!commercial!or!private!activity! District!court!affirmed.!!

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3. Gov't'of'the'Democratic'Rep.'of'the'Congo'v.'Venne'(RS)'' Supreme!Court!of!Canada,!1972! TOPIC:! State! Immunity;! Congo’s! entry! into! a! contract! with! a! Canadian! architect! for!sketching!its!pavilion!is!a!public!act.! Appellant:!The!Congo!

a!Yes,!it!was!an!act!made!pursuant!to!its!sovereign!capacity.!Therefore,!The!Congo! can! invoke! sovereign! immunity! and! could! not! be! impleaded! in! the! Courts! of! Quebec.! ! •

Appellee:!Venne,!the!Canadian!architect! Ponente:!Ritchie,!J.!! FACTS:' •

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Appeal!from!a!judgment!of!the!CA!of!Province!of!Quebec,!which!dismissed!an! appeal!from!a!judgment!of!the!Superior!Court!of!Montreal,!which!disallowed! the!appellant’s!(The!Congo)!claim!that,!by!reason!of!its!sovereign!immunity,! it!could!not!be!imp!leaded!in!the!courts!of!Quebec.! Venn!–!an!architect!who!claims!to!have!been!retained!between!Feb!1965!and! March!1966,!on!behalf!of!The!Congo!for!the!purpose!of!making!preliminary! studies!and!preparing!sketches!in!relation!to!the!national!pavilion!which!The! Congo!proposed!to!build!at!“Expo!67”!(ie,!Canada’s!main!celebration!for!its! centennial! year,! held! in! 1967).! Venne! was! hired! by! duly! accredited! diplomatic!representatives!of!The!Congo.! Venne’s! declaration! incorporated! an! unsigned! copy! of! a! contract,! pursuant! to!which!he!claims!to!have!been!employed,!and!also!certain!sketches!of!the! proposed!pavilion!which!he!claims!to!have!furnished!to!The!Congo.! Venne! prepared! a! bill! of! $20,000! for! services! rendered! which! he! subsequently!reduced!to!$12,000!and!which!was!not!paid!because!the!Congo! decided!not!to!proceed!with!the!pavilion.! Venne!sued!The!Congo.! Superior!Court!of!Montreal!decided!in!favor!of!Venne! CA!of!Quebec!affirmed,!thereby!dismissing!The!Congo’s!appeal.!CA!accepted! the!trial!Judge’s!finding!that!when!the!Congo!employed!Venne!to!prepare!the! sketches! of! the! national! pavilion! which! it! proposed! to! build! at! a! duly! authorized! international! exhibition,! it! was! not! performing! a! public! act! of! a! sovereign!state!but!rather!one!of!a!purely!private!nature!(thus,!not!immune).! !

ISSUES/HELD:' W/N! The! Congo’s! act! of! employing! Venne! for! the! construction! of! a! national! pavilion!constituted!a!public!act.!

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Considered! from! the! point! of! view! of! the! architect,! the! contract! may! be! deemed! a! purely! commercial! one,! but,! even! if! the! theory! of! restrictive! sovereign!immunity!were!applicable,!the!questions!to!be!determined!would! not! be! whether! the! contractor! was! engaged! in! a! private! act! of! commerce,! but!whether'or'not'the'Congo,'acting'as'a'visiting'sovereign'state'through' its' duly' accredited' diplomatic' representatives,' was' engaged' in' the' performance'of'a'public'sovereign'act'of'State.' Ponente! pointed! out! the! significance! of! the! fact! that! Venne! was! employed! not! only! by! the! duly! accredited! diplomatic! representatives,! but! also! by! the! representative!of!the!Dept.!of!Foreign!Affairs!(DFA)!of!The!Congo.' o This!makes!it!plain!that!in!preparing!for!the!construction!of!its!national! pavilion,!a'department'of'the'Gov’t'of'a'foreign'state,'together'with' its' duly' accredited' diplomatic' representatives,' were' engaged' in' the' performance' of' a' public' sovereign' act' of' State! on! behalf! of! their! country! and! that! the! employment' of' Venn' was' a' step' taken' in' the' performance'of'that'sovereign'act.' o Therefore,' The' Congo' could' not' be' impleaded' in' the' courts' of' Quebec'even'if'the'so[called'restrictive'sovereign'immunity'had'been' adopted'in'the'Canadian'Courts.' As!an!aside,!there!is!a!suggestion!in!the!CA’s!decision!that!the!onus!probandi! lies! upon! the! Sovereign! to! show! that! the! act! was! a! public! one! if! it! is! to! be! granted!sovereign!immunity.' o But!the!ponente’s!view!is!that!the!question'of'whether'the'contract'in' question' was' a' public' act! done! on! behalf! of! a! sovereign! State! for! State! purposes,! is! one! which! should' be' decided' on' the' record' as' a' whole' without' placing' the' burden' of' rebutting' any' presumption' on' either'party.' Allan&Construction&Ltd.&V.&Got&of&Venezuela:' o Facts:! Plaintiff! was! hired! by! Venezuela! for! the! construction! of! a! pavilion! in! the! same! Expo! 67.! However,! Venezuela! planned! to! incorporate!in!the!pavilion!a!restaurant!with!the!right!to!sell!alcoholic! liquor!and!to!sell!the!products!of!Venezuela.' o Held:!Venezuela’s!contract!with!the!plaintiff!was!a!commercial!one.'

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In' the' case' of' The' Congo,' there' is' no' such' plan' to' incorporate' a' commercial' venture.' Therefore,' the' case' law' in' Allan& Construction' Ltd.'does'not'apply'in'this'case.' US!cases!referred!to!by!the!CA!decision:' o Tate& Letter:! “…it! will! hereafter! be! the! [State]! Department’s! policy! to! follow! the! restrictive! theory! of! sovereign! immunity! in! the! consideration! of! requests! of! foreign! governments! for! a! grant! of! sovereign!immunity.”' o Victory& Transport& Inc.& v.& Commisaria& General& de& Abastecimientos& y& Transportes:!'  This! case! was! cited! as! an! example! of! an! independent! judicial! acceptance!of!the!theory!of!restrictive!sovereign!immunity'  “…!the!court!must!decide!for!itself!whether!it!is!the!established! policy!of!the!State!Department!to!recognize!claims!of!immunity! of!this!type!(i.e.,!restrictive!sovereign!immunity).”' o It!is!thus!clear!that!in!the!US,!the!question!to!be!answered!is!whether! it! is! the! established! policy! of! the! State! Department! to! recognize! the! immunity!claimed!in!any!particular!case.' o As!no!such!question!arises!in!Canada,!the!ponente!takes!tea!view!that! cases! concerning! sovereign! immunity! decided! in! the! US! Courts! in! those!years!are!of!little!or!no!authority!in!Canada.' ' o

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DISPOSITIVE:! Judgment! appealed! from! is! reversed.! The! Congo! cannot! be! imp! leaded!in!the!Court!of!Quebec.!

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4. In'Re:'PNB'v'USDC'(JG)'' TOPIC:!“Acts!of!State”!doctrine! Petitioner:!Philippine!National!Bank! Respondents:! United! States! District! Court! for! the! District! of! Hawaii;! Maximo! Hilao;!Estate!of!Ferdinand!Marcos;!Imelda!R.!Marcos;!Ferdinand!R.!Marcos,!Jr.! Ponente:!Canby,!Circuit!J.!! ! FACTS:! •

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On! one! side! is! a! class! of! plaintiffs! who! obtained! a! large! judgment! in! the! federal! district! court! in! Hawaii! against! the! Marcos! estate! for! human! rights! violations!by!the!Marcos!regime.!

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The!Republic!of!the!Philippines,!on!the!other!hand,!sought!forfeiture!of!the! Marcos!estate’s!assets!on!the!ground!that!they!were!stolen!by!Marcos!from! the!Philippine!government!and!its!people.! There!was!an!attempt!by!the!class!plaintiffs!to!get!the!assets!of!the!Marcos! estate!located!in!Swiss!banks.!! o The! Swiss! assets! were! frozen! by! the! Swiss! government! at! the! request!of!the!Republic.!! o The! class! plaintiffs! obtained! an! injunction! from! the! district! court! requiring! the! Swiss! banks! to! hold! the! assets! for! the! benefit! of! the! class!plaintiffs.!  It! was! held! that! the! injunction! violated! the! act! of! state! doctrine.! Accordingly,! a! writ! of! mandamus! was! issued! directing! the! dismissal! of! the! district!court’s!order.!! Thereafter,! the! Swiss! government! released! the! funds! frozen! in! Switzerland! for!transfer!to!the!PNB!in!escrow!pending!determination!of!proper!disposal! by!a!competent!court!in!the!Philippines.!! o The!PNB!deposited!the!funds!in!Singapore.! o The! Philippine! Supreme! Court! subsequently! held! that! the! assets! were!forfeited!to!the!Republic!of!the!Philippines.! The! district! court! then! issued! orders! that! triggered! this! present! petition! for! mandamus.! o It!ruled!that!the!Philippine!SC!had!violated!the!“due!process!by! any!standard”!and!its!judgment!was!entitled!to!no!deference.!! o It! further! ordered! that! any! transfer! of! monies,! without! first! appearing! and! showing! cause! to! the! court! as! to! how! such! transfer! might! occur! without! violating! the! Court’s! injunction,! shall!be!considered!contempt.!! o It!issued!an!Order!to!Show!Cause!against!PNB,!which!was!not!a! party!to!the!litigation,!requiring!the!Bank!to!show!cause!why!it! should! not! be! held! in! contempt! for! violating! the! court’s! injunction!against!transfer!of!assets!by!the!estate.!! The! Bank! then! filed! the! present! petition! for! mandamus,! seeking! to! restrain! the!district!court!from!enforcing!its!Order!to!Show!Cause!and!from!pursuing! discovery!against!the!Bank!officer.!! !

ISSUE/HELD:' W/N' the' entire' proceeding' against' the' Bank' for' its' transfer' of' funds' violated' the'act'of'state'doctrine.'['YES' 4!

! RATIO:' The!Act!of!State!doctrine! •

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Every! sovereign! state! is! bound! to! respect! the! independence! of! every! other! sovereign!state,!and!the!courts!of!one!country!will!not!sit!in!judgment!on!the! acts! of! government! of! another,! done! within! its! own! territory.! Redress! of! grievances!by!reason!of!such!acts!must!be!obtained!through!the!means!open! to!be!availed!of!by!sovereign!powers!as!between!themselves.!! The! doctrine! reflects! “the! strong! sense! of! the! Judicial! Branch! that! its! engagement!in!the!task!of!passing!on!the!validity!of!foreign!acts!of!state!may! hinder!the!conduct!of!foreign!affairs.”! The!district!court’s!orders!in!issue!violated!this!principle.! o In! order! to! obtain! assets! from! the! PNB,! or! to! hold! the! Bank! in! contempt!for!the!transfer!of!those!assets!to!the!Republic,!the!district! court! necessarily! (and! expressly)! held! invalid! the! forfeiture! judgment! of!the!Philippine!Supreme!Court.!We!conclude!that!this!action!of!the! district!court!violated!the!act!of!state!doctrine.! The!class!plaintiffs!in!the!district!court!argue!that!the!act!of!state!doctrine!is! directed! at! the! executive! and! legislative! branches! of! foreign! governments,! and!does!not!apply!to!judicial!decisions.! o Although!the!act!of!state!doctrine!is!normally!inapplicable!to!court! judgments! arising! from! private! litigation,! there! is! no! inflexible! rule! preventing! a! judgment! sought! by! a! foreign! government! from! qualifying!as!an!act!of!state.! o There! is! no! question! that! the! judgment! of! the! Philippine! SC! gave! effect!to!the!public!interest!of!the!Philippine!government.!! The!forfeiture!action!was!not!a!mere!dispute!between!private!parties;!it!was! an! action! initiated! by! the! Philippine! government! pursuant! to! its! “statutory! mandate!to!recover!property!allegedly!stolen!from!the!treasury.”! o We!have!earlier!characterized!the!collection!efforts!of!the!Republic! to!be!governmental.! o The! subject! matter! of! the! forfeiture! action! thus! qualifies! for! treatment!as!an!act!of!state.!! The! class! plaintiffs! next! argue! that! the! act! of! state! doctrine! is! inapplicable! because!the!judgment!of!the!Philippine!SC!did!not!concern!matters!within!its! own!territory.! o Generally,!the!act!of!state!doctrine!applies!to!official!acts!of!foreign! sovereigns!“performed!within!their!own!territory.”!!

The! act! of! the! Philippine! Supreme! Court! was! not! wholly! external,! however.!  Its! judgment,! which! the! district! court! declared! invalid,! was! issued! in! the! Philippines! and! much! of! its! force! upon! the! Philippine! Bank! arose! from! the! fact! that! the! Bank! is! a! Philippine!corporation.!! Even! assuming! that! the! assets! are! no! in! Singapore,! this! fact! does! not! preclude!the!application!of!the!act!of!state!doctrine.!! o It!is!to!be!applied!pragmatically!and!with!reference!to!the!underlying! considerations!of!the!case.!! The! District! Court! is! thus! directed! to! refrain! from! further! actions! regarding! the!controversy.! o

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5. Canada:' Act' to' Provide' for' State' Immunity' in' Canadian' Courts'(JG)'' (It’s!pure!codal.!You!may!browse!through!it!if!you!have!the!time!to!do!so.!Below! are!some!important!points)! • •

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It!does!not!cover!commercial!activity.! It!does!not!apply!in!cases!of!death/destruction/damage!to!property!within! Canada’s!territory,!or!to!criminal!proceedings,!or!to!actions!involving! succession.! No!immunity!if!the!transactions!are!commercial!in!nature.! Military!properties!are!also!immune.! The!rights!may!be!waived!through!a!voluntary!submission!to!the!jurisdiction! of!the!courts!or!by!some!other!expressions!of!consent.! Injunction!or!specific!performance!reliefs!will!not!be!granted!to!foreign!states! unless!Canada!consents!to!it.!

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6. Il'Congreso'del'Partido'(CG)'' Facts:' •

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In!Feb!1973,!a!contract!for!sale!of!128,!935!tons!sugar!was!made!between!a! Cuban!state!trading!enterprise,!Empresa!Exportadora!de!Acuzar!(Cubazucar),! as!sellers!and!a!Chilean!company,!Industria!Azucarera!Nacional!SA!(Iansa)! One! shipment! was! made,! which! was! 10,476! tons,! carried! by! Playa! Larga,! a! Cuban!flag!vessel,!and!operated!by!Mambisa!! Playa!Larga!was!chartered!for!voyage!to!Chile!by!Cubzucar! 5!

Iansa,!in!turn,!sold!the!sugar!to!another!Chilean!company! The!other!shipment!was!of!10,890!tons!carried!on!Marble!Islands,!which!was! Liechtenstein!corporation!with!a!Somali!flag.!It!was!chartered!to!Mambisa!on! a!demise!charter!and!subachartered!by!Mambisa!to!Cubazucar!for!the!voyage! to!Chile! While!Playa!Larga!was!discharging!its!cargo,!a!coup!d’etat!took!place!in!Chile! The!take!over!of!President!Pinochet!was!strongly!disapproved!by!Cuba,!thus! diplomatic!relations!between!Chile!and!Cuba!were!terminated! Due! to! this,! Playa! Larga! was! ordered! by! Mambisa,! which! was! instructed! by! the! Cuban! Government,! to! leave! and! join! Marble! Islands! carrying! with! it! 7,907!tons!of!sugar!not!yet!discharged! Playa!Larga!met!Marble!Islands!at!sea!and!both!of!them!proceeded!to!Peru! Chilean!authorities,!through!their!embassy,!requested!discharge!at!that!port,! but!both!masters!refused,!and!went!back!to!Cuba! Marble! Islands! also! intends! to! return! to! Cuba! but! was! arrested! at! the! Panama!Canal!on!the!application!of!Iansa.!It!broke!arrest!and!sailed!west!for! North! Vietnam.! In! the! course! of! its! voyage,! its! ownership! and! flag! were! transferred!to!the!Republic!of!Cuba.!! Its!cargo!was!sold!to!another!Cuban!state!enterprise,!Alimport! Note:! Mambisa,! Cubazucar! and! Alimport! are! all! state! trading! enterprises.! Meaning,!they!have!independent!legal!existence!and!are!not!departments!of! the!Cuban!state.!It!is!not!claimed!that!it!would!be!entitled!to!state!immunity.! But! it! is! subject! to! direction! and! control! by! the! Cuban! government.! State! controlled!enterprises,!with!legal!personality,!ability!to!trade!and!enter!into! contracts!of!private!law,!though!wholly!subject!to!the!control!of!their!state,! are!a!wellaknown!feature!of!modern!commercial!scene.!

•

Issue:! WON! a! plea! of! state! immunity! can! be! raised! as! to! deny! jurisdiction! of! courts!of!other!states!as!to:!

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& As&to&Playa&Larga& •

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1. 2.

Playa!Larga!–!NO! Marble!Islands!–!YES!

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! Ruling:' •

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Generally,!the!basis!on!which!one!state!is!considered!immune!from!territorial! jurisdiction! of! courts! of! another! state! is! “par! in! parem”,! which! means! that! the! sovereign! or! governmental! acts! of! one! state! are! not! matters! on! which! the!courts!of!other!states!will!adjudicate!

However,! exception! to! this! is! the! restrictive' theory,! which! arises! from! the! willingness! of! states! to! enter! into! commercial,! or! other! private! law,! transactions!with!individuals.! It!appears!to!have!two!main!foundations:!(1)!it!is!necessary!in!the!interest!of! justice! to! individuals! having! such! transactions! with! states! to! allow! them! to! bring! such! transactions! before! the! courts;! and! (2)! to! require! a! state! to! answer!a!claim!based!on!such!transactions!does!not!involve!a!challenge!to!or! inquiry!into!any!act!of!sovereignty!or!governmental!act!of!that!state! The! restrictive! theory! does! not! and! could! not! deny! capability! of! a! state! to! resort!to!sovereign!or!governmental!action.!It!merely!asserts!that!acts!done! within!the!trading!or!commercial!activity!are!not!immune! Thus,! the! court! first! needs! to! characterize! the! activity! into! which! the! defendant!state!has!entered! TEST:! Whether! state! immunity! should! be! granted! or! not,! the! court' must! consider' the' whole' context' in' which' the' claim' against' the' state' is' made,! with! a! view! to! deciding' whether' the' relevant' acts' on' which' the' claim' is' based' should,' in' that' context,' be' considered' as' fairly' within' an' area' of' activity:!(1)!trading!or!commercial!or!otherwise!of!a!private!law!character,!in! which! the! state! has! chosen! to! engage;! or! (2)! whether! the! relevant! acts! should!be!considered!as!having!been!done!outside!that!area!and!within!the! sphere!of!governmental!or!sovereign!activity!

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As!it!appears!from!the!case,!the!appellants!are!able!to!show!that!Playa!Larga! was!engaged!in!trade!with!the!consent,!if!not!with!the!active!participation,!of! the! Republic! of! Cuba.! Thus,! they! were! doing! business! with! a! foreign! government.! However,' it' is' the' opinion' of' this' judge' that' the' decision' not' to' complete' the'unloading'or'the'discharging'was'NOT'a'political'decision'taken'by'the' government'of'Cuba'for'political'and'non[commercial'reasons' Everything!done!by!the!Republic!of!Cuba!in!relation!to!Playa!Larga!could!have! been!done,!and,!so!far!as!evidence!goes,!was!done,!as!owners!of!the!ship' It! did! not! exercise,! and! had! no! need! to! exercise,! sovereign! powers! and! invoked!no!governmental!authority' All! the! documents,! such! as! the! bills! of! lading,! were! carried! out! (legally! or! illegally)!as!trading!operations!governed!by!contract!and!by!private!law' The!Republic!of!Cuba!never!entered!into!these!operations'

As&to&Marble&Islands& 6!

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The! acts! of! the! Republic! of! Cuba! were! and! remained! in! their! nature! purely! governmental! There! was! no! purely! commercial! obligation! involved! and! the! vessel! never! entered! the! trading! area! (remained! at! sea)! and! never! entered! into! commercial!relations!

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7. Trendtex'Trading'Corp'v.'Central'Bank'of'Nigeria'(CG)''

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Facts:' •

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The! Central! Bank! of! Nigeria! issued! a! letter! of! credit! drawn! on! the! Midland! Bank!in!London!in!favor!of!the!plaintiff,!to!pay!for!cement!sold!by!the!plaintiff! to!an!English!company! The!bank!assured!the!plaintiff!that!the!letter!of!credit!was!reliable! The! plaintiffs! purchased! the! cement,! sold! it! to! the! English! company,! and! shipped!it!to!Nigeria.!! However,! the! bank! refused! to! pay,! and! the! plaintiff! brought! this! action! on! the!letter!of!credit!

! Issue:'WON!the!Bank,!as!an!arm!or!department!of!the!Nigerian!Government,!was! entitled!to!sovereign!immunity!a!NO! ! Ruling:' • •

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The! doctrine! of! absolute! immunity! has! been! abandoned,! and! has! been! replaced!by!the!doctrine!of!restrictive!immunity' This!doctrine!gives!immunity!to!acts!of!a!governmental!nature,!described!in! Latin! as! jure& imperil,! but! no! immunity! to! acts! of! a! commercial! nature,! jure& gestionis' The!modern!rule!of!international!law!is!if!the!dispute!concerns,!for!instance,! the!commercial!transactions!of!a!foreign!government!(whether!carried!on!by! its!own!departments!or!agencies!or!by!setting!up!separate!legal!entities),!and! it! arises! properly! within! the! territorial! jurisdiction! of! our! courts,! there! is! no! ground!for!granting!immunity' The!European!Community!as!well!adopts!the!doctrine!of!restrictive!immunity' In!this!case,!the!original!contracts!for!cement!were!made!by!the!Ministry!of! Defense!of!Nigeria,!and!that!the!cement!was!for!the!building!of!barracks!for! the!army' The!contracts!of!purchase!were!acts!of!governmental!nature!–!jure&imperii!–! and!not!of!a!commercial!nature!–!jure&gestionis'

However,! it! entered! into! a! commercial! transaction,! thus! the! government! department!should!be!subject!to!all!the!rules!of!the!marketplace' The!seller!is!not!concerned!with!the!purpose!to!which!the!purchaser!intends! to!put!the!goods' Also,!the!plaintiffs!here!are!not!suing!on!the!contracts!of!purchase.!They!are! claiming!on!the!letter!of!credit,!which!is!an!entirely!separate!contract.!It!was! a!straightforward!commercial!transaction.' Although!the!Bank!is!considered!an!“alter!ego”!or!organ!of!government,!the! internal! arrangements! ought! not! to! affect! the! availability! of! immunity! in! international!law.!A!foreign!department!of!state!ought!not!to!lose!immunity! simply!because!it!conducts!some!of!its!activities!by!means!of!a!separate!legal! entity.!But!still,!the!nature!of!the!transaction!must!be!the!one!looked!at.'

' Conclusion' •

In! my! opinion,! the! plea! of! sovereign! immunity! does! not! avail! the! Central! Bank!of!Nigeria.!I!would!allow!the!appeal,!accordingly.'

' Separate'Opinions'(Justices'Stephenson'and'Shaw)' • • •

There!is!not!enough!evidence!that!the!Central!Bank!of!Nigeria!is!an!alter!ego! of!the!Nigerian!Government' But!nonetheless,!immunity!will!not!shield!it!from!liability' The! new! restrictive! rule! is! more! in! consonance! with! justice! since! strict! adherence! to! the! absolute! rule! based! on! a! perverse! notion! of! sovereign! dignity!will!in!fact!only!disserve!international!comity!rather!than!promote!the! same'

'

B.'DIPLOMATIC'AND'CONSULAR'IMMUNITY' 1. Vienna'Convention'on'Diplomatic'Relations'(RL)' • • • •

Head!of!the!Mission!–!person!charged!by!the!sending!state!with!the!duty!of! acting!in!that!capacity! Diplomatic!Agent!–!head!of!the!mission!or!a!member!of!the!diplomatic!staff! of!the!mission! Establishment!of!diplomatic!relations!between!states!takes!place!by!mutual! consent.! The! receiving! state! may! at! any! time! without! having! to! explain! its! decision,! notify!the!sending!state!that!the!head!of!the!mission!or!any!member!of!the! diplomatic!staff!is!persona!non!grata.! 7!

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The! receiving! state! is! under! a! special! duty! to! take! all! appropriate! steps! to! protect!the!premises!of!the!mission!against!any!intrusion!or!damage!and!to! prevent! any! disturbance! of! the! peace! of! the! mission! or! impairment! of! its! dignity.! The!premises!of!the!mission,!their!furnishings!and!other!property!and!means! of!transport!of!the!mission!shall!be!IMMUNE!from:! o Search! o Requisition! o Attachment! o Execution.! The! sending! state! and! the! head! of! the! mission! shall! be! exempt! from! all! national,!regional!or!municipal!dues!and!taxes,!except:! o Indirect!taxes,!dues!on!immovable!property,!estate!duties,!dues!and! taxes! on! private! income,! charges! levied! for! specific! services,! registration!and!court/record!fees,!and!the!like.! The!ff!shall!be!inviolable:! o Premises!of!the!mission! o Archives!and!documents!of!the!mission! o Official!correspondence!of!the!mission!  The!diplomatic!bag!shall!not!be!opened!or!detained! o Diplomatic!carrier!(enjoys!personal!inviolability)! o Person!of!a!diplomatic!agent!  Not!liable!to!any!form!or!arrest!or!detention! o Private!residence!of!a!diplomatic!agent! Diplomatic! agent! enjoys! immunity! from! the! criminal! jurisdiction! of! the! receiving!state,!as!well!as!civil!and!administrative!jurisdiction! Immunity!may!be!waived!by!the!sending!state,!EXPRESSLY.! Members! of! the! family! of! a! diplomatic! agent! and! members! of! the! administrative! and! technical! staff! of! the! mission,! as! well! as! their! family! members,!who!are!not!nationals!of!the!receiving!state!shall!enjoy!the!same! immunities!and!privileges!

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Establishment! of! consular! relations! between! states! takes! place! by! mutual! consent.! The!ff!shall!be!inviolable:! o Premises!of!the!consular!  Unless! the! head! gives! consent! in! cases! of! fire! or! other! disaster!requiring!prompt!action! o Archives!and!documents! o Official!correspondence!!  The!consular!bag!shall!not!be!opened!or!detained!  Unless! competent! authorities! have! serious! reason! to! believe! that! something! other! than! the! correspondence! is! contained!therein!(may!request!that!the!bag!be!opened)! o Consular!carrier!(enjoys!personal!inviolability)! Consular! premises! are! be! exempt! from! all! national,! regional! or! municipal! dues!and!taxes,!except:! o Indirect!taxes,!dues!on!immovable!property,!estate!duties,!dues!and! taxes! on! private! income,! charges! levied! for! specific! services,! registration!and!court/record!fees,!and!the!like.! Consular! officers! enjoys! immunity! from! the! criminal! jurisdiction! of! the! receiving!state,!! o Except!in!the!case!of!a!grave!crime!and!pursuant!to!a!decision!by!the! competent!judicial!authority;! o As!well!as!civil!and!administrative!jurisdiction!  Unless! the! civil! action! arises! out! of! a! contract! concluded! was!done!not!in!his!official!capacity/scope!of!his!authority!

Or!a!third!party!for!damage!arising!from!an!accident!

!

3. US'v'Iran'(QN)' ICJ!Reports!1980,!p.!3!

!

(This!case!actually!involves!a!twoapart!story.!The!digest!will!follow!the!way!it!was! discussed!in!the!case.)!

2. Vienna'Convention'on'Consular'Relations'(RL)'

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Consular! post! –! consulateageneral,! consulate,! viceaconsulate! or! consular! agency! Two!categories:! o Career!Consular!Officers! o Honorary!Consular!Officers!

Part!1! Facts:! •

The!case!talks!about!the!events!in!the!movie,!Argo.!Watch!it.!Astig!yun.!

8!

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(Not!in!McRae)!In!1979,!the!Iranian!Revolution!took!place.!It!overthrew!the! Shah! (Emperor)! Mohammad! Reza! Pahlavi,! and! installed! Ayatollah! Khomeini! as!the!new!leader!of!Iran.!The!Shah!went!on!exile!to!the!US.! In! November! 4,! 1979,! armed! militant! students! attacked! and! seized! the! US! Embassy! in! Tehran.! They! took! those! inside! as! their! hostages,! including! 2! American! private! individuals.! They! also! ransacked! the! property! and! the! archives.! During! the! 3ahour! attack,! no! police! or! military! unit! from! the! Iranian! government!came!to!stop!the!attack.! There!was!no!indication!that!the!actions!of!the!militants!were!under!orders! from! the! Iranian! government.! Thus,! the! acts! by! the! militants! cannot! be! imputable!to!the!Iranian!State.! (The! following! day,! the! US! Consulates! at! Tabriz! and! Shiraz! were! also! ransacked!by!militants.)!

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! Held:! •

! Issue:' Despite!the!acts!not!being!imputable!to!the!Iranian!State,!did!it!have!any! responsibility!with!regard!to!the!events!which!transpired?! ! Held:'YES' •

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Iran!has!the!obligation!to!take!appropriate!steps!to!ensure!the!protection!of! the! US! Embassy! and! Consulates,! their! staffs,! their! archives,! their! means! of! communication,!and!the!freedom!of!movement!of!their!staffs.! The! 1961! Vienna! Convention! on! Diplomatic! Relations! imposes! upon! the! receiving! State! the! special! duty! to! protect! the! premises! of! the! diplomatic! mission! (Art.! 22)! and! to! protect! the! person! of! a! diplomatic! agent! (Art.! 29).! Art.!24!protects!the!archives!and!documents!of!the!embassy.! These! obligations! are! also! in! the! 1963! Vienna! Convention! on! Consular! Relations.! The!inaction!by!the!Iranian!Government!thus!constituted!a!clear!and!serious! violation!of!Iran’s!obligation!under!the!1961!and!1963!Vienna!Conventions.!

! Part!2! Facts:! •

!

At! a! press! conference! the! following! day,! the! Iranian! Foreign! Minister,! Mr.! Yazdi,!announced!that!the!actions!of!the!students!“enjoys!the!endorsement! and! support! of! the! government,! because! America! herself! is! responsible! for! this!incident.”!

On! November! 17,! 1979,! Ayatollah! Khomeini! issued! a! decree! asserting! that! the!US!Embassy!was!a!“center!of!espionage!and!conspiracy”!and!that!people! there!did!not!enjoy!international!diplomatic!respect.! The! same! decree! also! proclaimed! that! the! American! Embassy! and! the! hostages!would!remain!as!they!are!until!the!US!hands!over!the!deposed!Shah! back!to!Iran.! The! actions! of! the! Ayatollah! and! the! rest! of! the! Iranian! Government! thus! turned! the! continued! occupation! of! the! Embassy! and! detention! of! the! hostages!into!acts!of!the!State.!The!militants!became!agents!of!the!state.!

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These!acts!thus!resulted!in!additional!and!continuing!breaches!by!Iran!of!its! obligations!under!the!1961!and!1963!Vienna!Conventions.! o The! conventions! forbid! agents! of! the! receiving! State! to! enter! the! premises!of!a!mission!without!consent!or!to!undertake!any!search,! requisition,!attachment!or!like!measure!in!the!premises.! o Art.! 29! of! the! 1961! Vienna! Convention! forbids! the! arrest! or! detention!of!a!diplomatic!agent.! o Iran! also! violated! the! obligation! to! preserve! the! inviolability! of! the! archives!and!documents!of!diplomatic!missions.!It!also!breached!its! obligation!to!provide!for!freedom!of!movement!and!communication! of!the!diplomatic!staff.!! In!the!continuation!of!the!detention!of!the!diplomatic!staff,!Iran!was!also!in! violation!of!the!fundamental!principles!in!the!UN!Charter!and!the!Universal! Declaration!of!Human!Rights.! The! Court! further! reiterated! the! gravity! of! the! situation! because! it! was! a! state!itself,!and!not!just!certain!individuals,!which!violate!international!law.! (The!Court!also!mentioned!that!the!American!military!incursion!into!Iranian! territory!in!April!1980,!while!this!case!was!pending,!tended!to!undermine!the! respect!for!the!judicial!process.!However,!it!did!not!rule!on!the!legality!of!the! operation!since!it!was!not!at!issue!in!the!current!case.!

! The'Court’s'Final'Ruling:! • •

13! votes! to! 2:! the! Islamic! Republic! of! Iran! has! violated! and! is! still! violating! obligations!it!owes!to!the!USA.! 13!votes!to!2:!The!Islamic!Republic!of!Iran!thus!have!a!responsibility!towards! the!USA! 9!

Unanimously:! Iran! must! immediately! take! all! steps! to! redress! the! situation! by:! o Immediately! terminating! the! unlawful! detention! of! the! US! diplomatic!and!consular!staff! o Ensuring!that!the!said!persons!have!the!necessary!means!of!leaving! Iran,!including!means!of!transport! o Immediately! placing! in! the! hand! of! the! protecting! Power! the! premises,!property,!archives!and!documents!of!the!US!Embassy!and! Consulates! Unanimously:!no!member!of!the!US!diplomatic!or!consular!staff!may!be!kept! in!Iran!to!be!subjected!to!any!form!of!judicial!proceeding!or!to!participate!as! a!witness! 12! votes! to! 3:! Iran! is! obliged! to! make! a! reparation! to! the! US! for! the! injury! caused!by!the!events! 14! votes! to! 1:! The! form! and! amount! of! reparation! shall! be! settled! by! the! Court!in!a!subsequent!procedure,!if!US!and!Iran!fail!to!agree.!

•

4. Diplomatic' and' Consular' Privileges' and' Immunities' in' Canada'(RL)'

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An'Act'Respecting'Diplomatic'and'Consular'Privileges'and'Immunities'in'Canada'

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If! it! appears! to! the! Sec! of! State! for! External! Affairs! that! the! Canadian! diplomatic/consular! post! enjoys! lesser! rights! than! those! conferred! by! Canadian! Law! to! the! post! of! that! country,! he! may! withdraw! some! or! all! of! the!privileges!and!immunities!conferred!to!their!post!in!Canada.! The!same!may!be!restored.! If! there! is! a! question! as! to! a! person’s! status! or! entitlement! to! the! said! privileges,!a!certificate!from!the!Sec!shall!constitute!conclusive!proof!of!the! facts!so!stated.!

• • • • • •

! ISSUE/HELD:!W/N'the'leaving'of'the'diplomatic'staff'temporarily'terminates'his' diplomatic'immunity—NO.'It'ceases'when'he'leaves'the'country'permanently.! RATIO:'

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5. Re'Regina'and'Palacios'(RL)' (1984)' Topic:!Temporary!departure!is!not!tantamount!to!losing!one’s!immunity! Treaties/Laws:'Vienna!Convention!on!Diplomatic!Relations! ! FACTS:' !

A!Nicaraguan!diplomatic!staff!has!been!residing!in!Ottawa!with!his!wife!and! child.! July!12,!1983,!he!was!advised!that!Nicaragua!had!terminated!his!duties!at!his! mission.! July!16,!1983,!he!left!Canada!for!a!temporary!visit!to!the!US.! When!he!returned,!he!was!detained!by!the!police!and!later!on!was!issued!a! search!warrant.! He! was! then! arrested! for! possession! of! cocaine! as! well! as! prohibited! weapons!(2!revolvers)!and!careless!storage!of!ammunition.! The!counsel!for!the!Republic!of!Nicaragua!contends!that!Palacios!has!lost!his! immunity!when!he!“left!the!country”!to!visit!the!US.! The! lower! court! ruled! that! according! to! the! Convention,! the! words! “leaves! the! country”! must! be! interpreted! to! be! permanently! leaving! the! country! in! order!for!him!to!lose!his!diplomatic!immunity.!

•

The! personal! inviolability! of! diplomats! has! been! recognized! by! all! legal! systems!since!the!earliest!times.! o Such!immunity!is!meant!to!ensure!the!efficient!performance!of!the! functions!of!diplomatic!missions!as!representing!States.! The!immunities!recognized!by!CIL!were!considered!to!be!incorporated!in!the! domestic!law!of!Canada!by!the!SC!of!Canada.! Under! customary! rules,' immunity' is' not' limited' in' time' to' the' dates' on' which'the'diplomat'takes'up'his'duties'and'relinquishes'them.! o It! extends' to' protect' them' from' the' time' he' enters' the' host' country!for!the!purpose!of!taking!up!his!duties!and'for'a'reasonably' time' after' their' termination!in!order!to!enable!him!to!wind!up!his! affairs!and!leave!the!country.! o Reasonable! time! is! measured! by! the! time! required! to! permit! the! diplomat!to!move!permanently!from!the!host!country!either!to!his! home!country!or!to!another!foreign!posting.! In! interpreting! the! treaty! which! states! that! “privileges! and! immunities! shall! normally! cease! at! the! moment! he' leaves' the' country,' or' on' expiry' of' a' reasonable'period'in'which'to'do'so…”:! 10!

o

o o

Use! the! effectiveness' principle! which! requires! the! court! to! read! a! treaty! as! a! whole! to! ascertain! its! purpose! and! intent! and! to! give! effect!thereto! It' is' without' doubt' that' the' phrase' “leaves' the' country”' refer' to' permanent'departure'from'the'host'country.! It!would!require!the!clearest!possible!language!in!the!convention!to! compel! the! conclusion! that! a! diplomat! would! have! any! lesser! protection!under!it!and!could!lose!his!immunity!by!a!temporary!visit! outside! the! country! before! he! was! ready! or! required! to! leave! the! country!permanently.!

AREAS'NOT'SUBJECT'TO'THE'JURISDICTION'OF' INDIVIDUAL'STATES' A.'HIGH'SEAS' 1. UNCLOS'(Art.'87,'97,'101)'(RL)' Art.'87!–!The!High!Seas!are!open!to!all!States,!whether!coastal!or!landalocked.! •

!

6. Diplomatic'Bag'(RL)' •

• • •

!

The! Nigerian! Ministry! of! External! Affairs! delivered! notes,! informing! the! US! embassy!that!it!will!conduct'careful'searches,'without'distinction,'of'goods' and'persons'entering'Nigeria.! view This! is! in! lieu! of! their! purpose! of! combating! the! importation! of! Nigerian! currency.! No'packages,'documents'or'articles'are'immune!from!search.! The!US'Embassy,!in!a!note,!protested'and'objected!to!this,!stating!that:! o IL! governing! diplomatic! relations! prohibits' any' interference' with' official'correspondence!and!diplomatic!pouches! o Nigeria!is!a!party!to!the!Vienna!Convention!on!Diplomatic!Relations! and!as!such!adheres!to!the!provisions!laid!therein.! o As! regards! consular! communications,! IL! does' not' permit' the' receiving'state'to'detain'any'pouch'nor'to'request'the'opening'of' the' same,!unless!its!authorities!have!serious!reason!to!believe!that! the! pouch! contains! something! other! than! the! correspondence! and! such!must!be!done!with!the!consent!of!the!sending!state! o Further,! in! the! bilateral! consular! convention! between! the! US! and! the! Federal! Military! Government,! the! consular' correspondence' shall' be' INVIOLABLE! and! the! authorities! of! the! territory! shall! not! examine!or!detain!it.' o The!measure!to!be!taken!by!Nigeria!is!contrary!to!IL.'

Allowable'acts'of!states!(freedom!of…):! o Navigation! o Overaflight! o Fishing! o Research! o Laying!of!Submarine!Cables!and!Pipelines! o Construction!of!Artificial!Islands!

! Art.' 97!–!In!case!of!collisions!in!the!high!seas,!penal!or!disciplinary!proceedings! can!only!be!instituted!against!the!master!of!the!vessel!before!the:!(1)!flag!state;! or!(2)!state!of!which!he!is!a!national! • •

In!disciplinary'matters,!only!the!state!which!issued!the!master’s!certificate!or! certificate!of!competence!or!license!may!withdraw!the!same! Only!the!flag!state!may!order!the!arrest'or'detention!of!the!ship/vessel!

! Art.'101!–!Piracy! •

• •

Illegal' act' of' violence/detention' or' any' act' of' depredation! committed! for! private! ends! by! the! crew! or! the! passengers! of! a! private! ship! or! aircraft! directed! on' the' high' seas! against! another! vessel! or! person/property! on! board;! or' against! any! ship/aircraft/person/property! in! a' place' outside' the' jurisdiction'of'any'state! Any!act!of!voluntary' participation!in!the!operation!of!the!ship/aircraft!with! knowledge!of!such!fact!that!it!is!a!pirate!ship/aircraft! Inciting'or'intentionally'facilitating!the!acts!above!

!

2. Persons' entitled' to' privileges' (pls' see' handouts' pages' 223(a)[(c))' 3. In're'Piracy'Jure'Gentium'(RL)' FACTS:'

!

11!

• • • • • •

A!number!of!armed!Chinese!nationals!were!cruising!in!two!Chinese!junks.! They! pursued! and! attacked! a! cargo! junk,! also! a! Chinese! vessel! on! the! high! seas.! The!master!of!the!cargo!junk!attempted!to!escape!and!a!chase!ensued!until! two!ships,!Hang!Sang!and!Shui!Chow,!approached!the!scene.! The! command! of! the! two! latter! ships! intervened! and! the! pursuers! were! eventually!taken!in!charge.! They!were!brought!as!prisoners!to!HK!and!indicted!for!the!crime!of!robbery.! The!jury!found!them!guilty!but!the!HK!Full!court!acquitted!them,!arriving!at! the!conclusion!that!robbery!was!necessary!to!support!conviction.!

' ISSUE/HELD:! W/N! actual! robbery! is! an! essential! element! of! the! crime! of! piracy! jure! gentium! or! a! frustrated! attempt! to! commit! piratical! robbery! is! not! equally! piracy!jure!gentium—NO,!it!is!not!an!element!of!piracy!and!it!is!equally!piracy!jure! gentium.! ' RATIO:' (Note& that& the& HK& court’s& decision& was& final,& but& this& matter& was& referred& to& a& Judicial&Committee&for&hearing&and&consideration)& • • • • •

Actual'robbery'is'NOT'an'essential'element'in'the'crime.' A' frustrated' attempt' to' commit' piratical' robbery' is' equally' piracy' jure' gentium.' Although!the!act!was!committed!outside!the!territorial!jurisdiction!of!HK,!the! pirates!may!nonetheless!be!tried!therein.! Having! committed! the! said! crime,! they! have! placed! themselves! beyond! the! protection!of!any!state.! They!are!no!longer!nationals!of!a!certain!state,!rather!they!are!hostis&humani& generis;!and!as!such,!they!are!justiciable!by!any!state!anywhere.!

!

B.'DEEP'SEA'BED' 1. UN' Declaration' of' Principles' and' UNCLOS' (Art.' 133[159)' (QN)' UN' Declaration' of' Principles' Governing' the' Sea[Bed' and' the' Ocean' Floor,' and' the'Subsoil'Thereof,'beyond'the'limits'of'National'Jurisdiction! th

General!Assembly!Resolution!2749!(25 !Session)!on!Dec.!17,!1970! !

1.

The! seaabed! and! ocean! floor,! and! the! subsoil! thereof,! beyond! the! limits! of! national! jurisdiction,! as! well! as! the! resources! of! the! area,! are! the! common! heritage!of!mankind.! 2. The!area!shall!not!be!subject!to!appropriation!by!any!State!or!person,!and!no! State!shall!claim!or!exercise!sovereignty!over!it.! 3. No! State! or! person! shall! claim,! exercise! or! acquire! rights! to! the! area! or! its! resources! which! are! incompatible! with! the! international! regime! or! the! principles!of!this!Declaration.! 4. All!exploration!and!exploitation!activities!with!regard!to!the!resources!of!the! area!shall!be!governed!by!the!international!regime.! 5. The!area!shall!be!open!to!use!exclusively!for!peaceful!purposes!by!all!States,! coastal!or!landalocked,!in!accordance!with!the!international!regime.! 6. States! shall! act! in! the! area! in! accordance! with! the! applicable! principles! of! international! law! in! the! interest! of! maintaining! international! peace! and! security!and!promoting!international!cooperation!and!mutual!understanding.! 7. The! exploration! of! the! area! and! the! exploitation! of! its! resources! shall! be! carried!out!for!the!benefit!of!mankind!as!a!whole,!regardless!of!geographical! location! of! States,! and! taking! into! consideration! the! interests! and! needs! of! developing!countries.! 8. The!area!shall!be!reserved!exclusively!for!peaceful!purposes.! 9. An! international! regime! governing! the! area! and! its! resources! should! be! established! by! an! international! treaty! of! universal! character,! generally! agreed! upon.! It! should! also! provide! for! the! orderly! and! safe! development! and! management! of! the! area! and! its! resources,! and! ensure! the! equitable! sharing! of! states,! taking! into! consideration! the! needs! of! the! developing! countries.! 10. States! shall! promote! international! cooperation! in! scientific! research! exclusively!for!peaceful!purposes:! a. By!participation!in!international!programs! b. Through!effective!publication!of!research! c. By! cooperation! in! measures! to! strengthen! research! capabilities! of! developing!countries! d. No!such!activity!shall!form!the!legal!basis!for!any!claims!with!respect! to!any!part!of!the!area!or!its!resources.! 11. States! shall! take! appropriate! measures! for! and! shall! cooperate! in! the! adoption! and! implementation! of! international! rules,! standards! and! procedures!for:! a. Prevention!of!pollution! 12!

b.

12.

13.

14.

15.

Protection! and! conservation! of! the! natural! resources! of! the! area! and! prevention! of! damage! to! the! flora! and! fauna! of! the! marine! environment! In! their! activities! in! the! area,! States! shall! pay! due! regard! to! the! rights! and! legitimate!interests!of!coastal!States!in!the!region!of!such!activities.!Coastal! states!shall!be!consulted!with!respect!to!activities.! Nothing!herein!shall!affect:! a. The!legal!status!of!waters!superjacent!(above!or!overlying)!the!area,! or!the!airspace!above! b. The! rights! of! coastal! States! with! respect! to! measures! to! prevent,! mitigate!or!eliminate!grave!and!imminent!danger!to!their!coastline! from!pollution!or!threat!thereof!resulting!from!any!activities!in!the! area! Every! State! shall! have! the! responsibility! to! ensure! that! its! activities! in! the! area,! undertaken! by! its! government! or! its! agents,! shall! be! carried! out! in! conformity!with!the!international!regime!to!be!established.! Disputes!relating!to!activities!in!the!area!shall!be!resolved!using!the!measures! in! Article! 33! of! the! UN! Charter! and! such! procedures! for! settling! disputes! agreed!upon!in!the!international!regime!to!be!established.!

' 1982'UNCLOS' Part'XX' ' The!international!regime!mentioned!in!the!UN!Declaration!above!is!now! embodied!in!Part!XX!of!the!1982!UNCLOS.!It!basically!restates!everything!said!in! the!declaration.! ! Some!provisions!not!included!in!the!UN!Declaration:! • Article!156!established!the!International!SeaaBed!Authority! o All!States!Parties!to!the!UNCLOS!are!members!of!the!Authority! o Its!seat!shall!be!in!Jamaica! • Article!157!says!that!the!Authority!is!the!organization!through!which! States!Parties!shall!organize!and!control!activities!in!the!Area! • Article!158!–!The!Authority!shall!have!an!Assembly,!a!Council,!and!a! Secretariat.! • Article!159!–!The!Assembly,!consisting!of!all!members!of!the!Authority! with!one!vote!each,!shall!resolve!questions!relating!to!the!Area.! !

2. Deep'Sea'Bed'Hard'Mineral'Resources'Act'(NO)' Sec.!102!Licenses!for!exploration!and!permits!for!commercial!recovery! !

! (a) Administrator!shall!issue!to!applicants!who!are!eligible!therefor!licenses! for!exploration!and!permits!for!commercial!recovery.! (b) Authorizes! the! holder! to! engage! in! the! exploration! or! commercial! recovery,as!the!case!maybe,!consistent!with!the!provisions!of!this!act.! ! (2)!Licenses!or!permit!issued!shall!be!exclusive!with!respect!to!the!holder.! ! (3)!It!recognizes!the!right!of!the!holder!to!recover!hard!mineral!resources,!and!to! own,!transport,!use!and!sell!hard!mineral!resources!recovered!under!the!permit! and!in!accordance!with!the!requirements!of!this!act.! ! (4)! In! case! of! interference! with! the! exploration! and! commercial! recovery! by! nationals! of! other! states,! the! Secretary! of! State! shall! use! all! peaceful! means! to! resolve!the!controversy.! ! (a) The!administrator!may!not!issue:!  After! the! date! on! which! an! international! agreement! is! ratified! by!and!enters!into!force!with!respect!to!the!US,!unless!it!is!not! inconsistent!with!the!agreement!  Which! is! in! conflict! with! a! pending! application,! an! existing! license,!which!a!reciprocating!state!has!submitted.! ! (b) Any!exploration!license!before!July!1,!1981,!or!any!commercial!recovery! to!commence!before!January!1,!1988.! (c) Any! permit! or! license! or! approve! the! transfer! of! a! license! or! permit! except!to!a!US!citizen.! !

3. 3rd'UN'Conference'on'the'Law'of'the'Sea'(NO)' Bernard'H.'Oxman.' ' This!happened!on!Feb!27!to!April!4!in!New!York!and!from!July!28!to!August!29,! 1980.! At! the! end! of! the! New! York! session,! they! issued! a! second! revision! of! the! Informal!Composite!Negotiating!Text!(ICNT).! ! II.!First!Committee:!Deep!Seabed!Mining! 13!

! The! committee! discussed! institutional! and! nonainstitutional! issues.! ! It! also! discussed! the! objective! of! the! “parallel! system”,! the! objective! of! such! is! to! give! states!and!private!companies!sponsored!by!states!on!the!one!hand!and!the!new! international! Enterprise! and! its! partners! on! the! other! hand,! a! genuine! opportunity!to!mine!the!deep!seabed.! ! One!of!the!elements!of!settlement!is!that!the!parallel!system!would!be!subject!to! review!after!about!20!years.!Another!element!is!an!interim!limitation!on!the!rate! of!expansion!of!production!of!minerals!from!seabed!nodules.! ! The!new!International!SeaaBed!Authority!would!administer!the!system!and!adopt! necessary! nondiscriminatory! ground! rules! and! regulation,! including! matters! of! environmental!protection!and!safety.!! ! Basically! they! discussed! how! to! grant! the! licenses! for! seabed! mining.! The! body! will!be!composed!of!36!members!from!different!nations.!The!voting!process!when! it!comes!to!decisions!where!special!protection!for!the!interest!of!the!minority!is! not! needed! requires! a! 2/3! vote.! For! decisions! requiring! additional! assurance! a! vote!of!¾!of!the!members!present!is!required.! !!

!

4. Analysis'of'the'Deep'Seabed'Mining'Provisions'of'the'Law' of'the'Sea'Convention'(NO)' S.'Houston'Lay' I.

Introduction!

! President! Reagan! withdrew! the! US! delegation! in! the! negotiation! of! the! LOS.! During!an!interview!he!stated!that!the!deep!seabed!mining!section!did!not!meet! the!U.S.!objectives.!His!said!that!their!concerns!were:!! (a)! there! are! provisions! that! would! deter! future! development! of! deep! seabed! resources;!! (b)! the! decision! making! process! which! does! not! give! the! US! and! other! states! reflect!or!protect!their!interests;!! (c)! amendments! without! prior! US! approval! which! is! incompatible! with! their! approach!to!treaties;!! !

(d)! Mandatory! transfer! of! private! technology! and! the! possibility! of! national! liberation!movements’!share;!and!! (e)! absence! of! assure! access! for! future! deep! seabed! mining.! Despite! these! objections!the!convention!was!adopted!anyways.! ! II.

US!beef(problems)!with!Deep!Seabed!mining!regime!

! Reagan! referred! to! it! as! discouraging! investment! in! mining! and! as! having! a! deleterious! effect! upon! freeamarket! economics.! US! argue! that! the! pertinent! articles! of! the! LOS! indicate! that! the! Authority! is! provided! broad! discretionary! powers!that!amount!to!the!establishment!of!an!economic!cartel.!Their!viewpoint! is! the! policies! are! not! economically! sound,! most! especially! the! controls! on! production.! ! The! US! is! also! faced! with! the! constant! threat! of! being! outvoted! in! the! International!Seabed!Authority!(ISA).!The!one!nation!one!vote!principle!is!based! on! the! sovereign! equality! of! states.! They! further! argue! that! the! US! is! not! guaranteed!with!a!seat!in!the!council!while!soviet!states!are!guaranteed!at!least!3! seats.! ! To! conclude! this! section,! it! is! clear! that! the! US! and! other! industrialized! nations! are!fearful!that!the!council!may!always!outvote!them.!The!US!is!not!guaranteed!a! seat!on!the!council.!The!council!is!the!omnipotent!executive!organ!of!the!ISA!and! controls!all!aspects!f!deep!seabed!mining.! ! In!conclusion,!the!US!cannot!sign!a!treaty!that!would!force!private!companies!to! give!away!their!most!valuable!assets,!especially!when!such!assets!may!eventually! end!up!with!national!liberation!movements.!Most!importantly,!without!the!LOS,! US!companies!can!mine!the!seabed!in!accordance!with!customary!international! law,!protect!their!technology,!recoup!their!investment,!and!preclude!national! liberation!movements!from!sharing!the!benefits!of!seabed!mining.!

C.'OUTER'SPACE' 1. Treaty' on' Principles' Governing' the' Activities' of' States' in' the'Exploration'and'Use'of'Outer'Space'(NO)' Article!I! 14!

The! exploration! and! use! of! outer! space,! including! the! moon! and! other! celestial! bodies,! shall! be! carried! out! for! the! benefit! and! in! the! interests! of! all! countries,! irrespective! of! their! degree! of! economic! or! scientific! development,! and! shall! be! the!province!of!all!mankind.!

persons! by! such! object! or! its! component! parts! on! the! Earth,! in! air! space! or! in! outer!space,!including!the!Moon!and!other!celestial!bodies.!

!

!

If!a!State!Party!to!the!Treaty!has!reason!to!believe!that!an!activity!or!experiment! planned! by! it! or! its! nationals! in! outer! space,! including! the! Moon! and! other! celestial! bodies,! would! cause! potentially! harmful! interference! with! activities! of! other!States!Parties!in!the!peaceful!exploration!and!use!of!outer!space,!including! the!Moon!and!other!celestial!bodies,!it!shall!undertake!appropriate!international! consultations!before!proceeding!with!any!such!activity!or!experiment.!

Article!IV!

!

States!Parties!to!the!Treaty!undertake!not!to!place!in!orbit!around!the!Earth!any! objects! carrying! nuclear! weapons! or! any! other! kinds! of! weapons! of! mass! destruction,!install!such!weapons!on!celestial!bodies,!or!station!such!weapons!in! outer!space!in!any!other!manner.!

!

!

Convention!on!International!Liability!for!Damage!Caused!by!Space!Objects!

The! Moon! and! other! celestial! bodies! shall! be! used! by! all! States! Parties! to! the! Treaty! exclusively! for! peaceful! purposes.! The! establishment! of! military! bases,! installations! and! fortifications,! the! testing! of! any! type! of! weapons! and! the! conduct!of!military!maneuvers!on!celestial!bodies!shall!be!forbidden.!The!use!of! military!personnel!for!scientific!research!or!for!any!other!peaceful!purposes!shall! not! be! prohibited.! The! use! of! any! equipment! or! facility! necessary! for! peaceful! exploration!of!the!Moon!and!other!celestial!bodies!shall!also!not!be!prohibited.!

(this!article!is!full!codal!so!what!I!did!is!I!summarized!articles!he!had!checks!and! underlines!on!and!also!ill!put!a!summary!of!important!points!below)!

Article!II! Outer! space,! including! the! moon! and! other! celestial! bodies,! is! not! subject! to! national!appropriation!by!claim!of!sovereignty,!by!means!of!use!or!occupation,!or! by!any!other!means.!

! Article!V!

Article!IX! !

2. Convention' on' International' Liability' for' Damage' Caused' by'Space'objects'(MT)'

! Article!1! •

• •

! States!Parties!to!the!Treaty!shall!immediately!inform!the!other!States!Parties!to! the! Treaty! or! the! SecretaryaGeneral! of! the! United! Nations! of! any! phenomena! they! discover! in! outer! space,! including! the! Moon! and! other! celestial! bodies,! which!could!constitute!a!danger!to!the!life!or!health!of!astronauts.! ! Article!VII!

• Article!2! •

! Each! State! Party! to! the! Treaty! that! launches! or! procures! the! launching! of! an! object!into!outer!space,!including!the!Moon!and!other!celestial!bodies,!and!each! State!Party!from!whose!territory!or!facility!an!object!is!launched,!is!internationally! liable!for!damage!to!another!State!Party!to!the!Treaty!or!to!its!natural!or!juridical! !

Damage:! means! loss! of! life,! personal! injury! or! other! impairment! of! health;!or!loss!of!or!damage!to!property!of!States!or!of!persons!natural! or!juridical,!or!property!of!international!governmental!organizations.! Launching:!includes!attempted!launching.! Launching!state!means:!! 1. State! which! launches! or! procures! the! launching! of! a! space! object.! 2. State!from!whose!territory!or!facility!a!space!object!is!launched.! Space!object:!includes! component! parts! of! a! space! object! as! well! as! its! launch!vehicle!and!parts!thereof.! A! launching! state! shall! be! absolutely! liable! to! pay! compensation! for! damage! caused! by! its! space! object! on! the! surface! of! the! earth! or! to! aircraft!flight.!

Article!5! •

Whenever!two!or!more!states!jointly!launch!a!space!object!they!shall!be! jointly!and!severally!liable!for!any!damage!caused…! 15!

Article!8! •

•

•

A!state!which!suffers!damage!or!whose!natural!or!juridical!persons!suffer! damage,!may!present!to!a!launching!state!a!claim!for!compensation!for! such!damage.! If!the!state!of!nationality!has!not!presented!a!claim,!another!state!may!in! respect! of! damage! sustained! in! its! territory! by! any! natural! or! juridical! person,!present!a!claim!to!a!launching!state.! If! neither! the! state! of! nationality! nor! the! state! in! whose! territory! the! damage!was!sustained!has!presented!a!claim!or!notified!its!intention!of! presenting!a!claim,!another!state!may!in!respect!of!damage!sustained!by! its!permanent!residents,!present!a!claim!to!a!launching!state.!

Article!15! •

The! claims! commission! shall! be! composed! of! three! members:! one! appointed!by!the!claimant!state,!one!appointed!by!the!launching!state! and! the! third! member! by! the! Chairman,! to! be! chosen! by! both! parties! jointly.! Each! party! shall! make! it! appointment! within! two! mos! of! the! request!for!the!establishment!of!the!claims!commission.!

Summary:! Outer'Space' • • • • •

• •

Is!not!subject!to!national!appropriation.! Only!open!to!scientific!exploration.!! No!nuclear!weapons!are!allowed!to!be!placed!on!orbit.! Astronauts!are!entitled!to!emergency!landing.!! ! There! is! national! responsibility! for! national! activities! in! outer! space;! state! parties! must! require! authorization! for! nonagovernmental! activities.! Jurisdiction!over!the!space!vessels!retained!by!the!flag!state.!!! There!is!absolute!liability!for!damages!caused!by!space!objects.!

!

3. Legal'Status'of'Geostationary'Orbit'[GO]'(RK)' Realm!of!the!Satellites;!approx.!35,000!Km!up!there! SUMMARY:!Basically,!it!reiterates!the!present!trend!that!the!GO!is!part!of!outer! space! (as! opposed! to! the! Bogota! Declaration).! As! such,! it! is! governed! by! Outer! Space! Treaty.! (NO! ONE! OWNS! IT).! Nevertheless,! the! author! considers! GO! as! having!a!special!legal!status.!What!is!this?!Simply,!in!addition!to!having!a!general! legal! status! as! part! of! outer! space,! it! has! a! special! legal! status! because! it! is! !

important,! limited,! and! natural! resource! that! must! be! utilized! efficiently! and! economically.!!  Introduction'  What!is!the!legal!status!of!geostationary!orbit!(hereinafter&GO)?!!  It!depends!on!whether!it!is!part!of!outer!space!or!not.!! • Outer!Space!Treaty!(1962):!YES' • Bogota!Declaration!(1976):!NO'  What!is!the!implication?!  If!part!of!outer!space,!no!body!owns!it;!heritage!of!mankind.!  If! not! part! of! outer! space,! it! would! be! subject! to! jurisdiction! of! a! certain!State!  So!far,!no!agreement.!This!paper!discusses!the!legal!status!of!GO.!  GO'as'a'part'of'outer'space'  Two!Arguments!  Bogota!Declaration:!GO!is!part!of!earth!linked!to!it!by!gravity.!Thus,! not!part!of!outer!space.!  ITU! Convention:! Satellites! affected! not! only! be! earth’s! gravity! but! also!that!of!the!moon,!sun,!and!that!of!other!forces.!Likewise,!other! NonaGO’s! (those! higher! in! altitude)! are! also! affected! by! earth’s! gravity!but!are!clearly!in!outer!space.!!  Bottomline:!NO!DEFINITION!OF!OUTER!SPACE!  COPUOS!(UN!Committee!on!Peaceful!Use!of!Outer!Space)!tried!to!define:!  1967—not! possible! at! the! present! time! to! identify! precisely! definition!of!outer!space!  1977—joined!GO!issue!with!their!agenda!to!define!outer!space.!!  Functionalist!v.!Spatialist! • F:! Atmosphere! is! continuum;! regulate! based! on! purpose! or! nature!of!flight! • S:! Stressed! need! for! clear! demarcation! between! airspace! and! outer!space.!!(this!is!the!more!accepted!trend)! ♦ QUESTION:!AT!WHAT!HEIGHT?!!  So!far,!no!agreement!on!the!answer.!  Though! no! agreement! between! spatialists! on! the! height,! they! consider! GO!as!part!of!outer!space,!thus,!governed!by!outer!space!treaty!  All!satellites!use!the!radio!frequencies!allocated!so!space!services!in! the!Radio!regulations!  Both! US! and! USSR! (super! space! powers)! agree! that! GO! is! in! outer! space! 16!

The! Bogota! Declaration! was! motivated! by! political! interest! to! pressure!the!super!powers!from!saturating!the!GO!  The!Bogota!Declaration!signatories!(countries!found!in!equator)!are! not!less!strict!in!their!position.!!  Legal'Status'of'Outer'Space!  Often! equated! with! res& extra& commercium,& res& communis,& or! res& communis&omnium.&!!  However,!the!author!argues!that!the!application!of!these!descriptions!to! outer!space!is!doubtful!  There!is!fundamental!difference!between!high!seas!(res&communis)! and!outer!space.!!  One!cannot!equate!islands!in!high!seas!with!celestial!bodies!in!outer! space!  It!is!prohibited!to!place!nuclear!weapon!in!outer!space!but!the!same! is!not!prohibited!in!law!of!the!sea!  Law!of!high!seas!developed!based!on!the!realities!of!its!time,!while! outer!space!law!is!still!being!developed.!  Thus,! the! legal! status! of! outer! space! should! be! considered' primarily' according' to' the' law' applicable' to' outer' space,' rather' than' resort' to' abstract'concepts'and'analogies'applicable'to'other'areas.'!  The!legal!status!of!GO!would!then!be!based!on!the!general!principles!of! international!space!law.!!  It' is' an' integral' part' of' outer' space—an' international' resource' which' is' free' for' exploration' and' use' by' all' States' on' a' basis' of' equality'and'which'is'not'subject'to'national'appropriation'  Special'Legal'Status''of'GO'  Has!a!special!legal!status!in!addition!to!the!general!legal!status!of!outer! space'  Has!unique!advantages!which!could!not!be!derived!from!the!use!of! other!orbits!around!the!earth'  It!is!a!privileged!portion!of!space'  Considered! a! limited! natural! resource! which! must! be! used! economically! and! efficiently! to! allow! equitable! access! to! it! by! all! countries'  Conclusion'  Limited!resource!(finite!space)'  Equal!rights!by!all!countries!(no!one!owns!it)'  Need! to! develop! and! elaborate! special! legal! regime! because! GO! is! almost!saturated'

'



!

!

17!

JURISDICTION OF STATES COMPILATION OF PHILIPPINE CASES

the regulations of sea-use rights or enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental shelves. G.R. No.: 187167

TERRITORY 1. Magallona v. Executive Secretary TOPIC: Territory in International Law; Modes of Acquisition of Sovereignty over Territory Treaties/Laws: Republic Act No. 9522 - adjusting the country’s archipelagic baselines and classifying the baseline regime of nearby territories. United Nations Convention on the Law of the Sea (UNCLOS III) Art. I of the 1987 Philippine Constitution

RECIT-READY: Pursuant to UNCLOS III which prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines, Congress enacted R.A. 9522 in 2009. R.A. 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as “regimes of islands” whose islands generate their own applicable maritime zones. Petitioners are questioning the constitutionality of R.A. 9522, contending that it reduces Philippine maritime territory and violates Art. I of the 1987 Philippine Constitution, embodying the terms of the Treaty of Paris and ancillary treaties – that Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris. In upholding the constitutionality of R.A. 9522, the Supreme Court held that baseline laws (such as R.A. 9522) are statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. This gives notice to the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters, the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone, and the right to exploit the living and non-living resources in the exclusive economic zone, and continental shelf. Also, UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and prescription, not by executing multilateral treaties on

Petitioner: Prof. Merlin M. Magallona, Akbayan Party-List Rep. Risa Hontiveros, Prof. Harry C. Roque, Jr., And University Of The Philippines College Of Law Students, Alithea Barbara Acas, Voltaire Alferes, Czarina May Altez, Francis Alvin Asilo, Sheryl Balot, Ruby Amor Barraca, Jose Javier Bautista, Romina Bernardo, Pagasa Buenaventura, Edan Marri Cañete, Vann Dela Cruz, Rene Delorino, Paulyn May Duman, Sharon Escoto, Rodrigo Fajardo III, Girlie Ferrer, Raoulle Osen Ferrer, Carla Regina Grepo, Anna Marie Cecilia Go, Irish Kay Kalaw, Mary Ann Joy Lee, Maria Luisa Manalaysay, Miguel Rafael Musngi, Michael Ocampo, Jaklyn Hanna Pineda, William Ragamat, Maricar Ramos, Enrik Fort Revillas, James Mark Terry Ridon, Johann Frantz Rivera IV, Christian Rivero, Dianne Marie Roa, Nicholas Santizo, Melissa Christina Santos, Cristine Mae Tabing, Vanessa Anne Torno, Maria Ester Vanguardia, and Marcelino Veloso III Respondents: Hon. Eduardo Ermita, In His Capacity As Executive Secretary, Hon. Alberto Romulo, In His Capacity As Secretary Of The Department Of Foreign Affairs, Hon. Rolando Andaya, In His Capacity As Secretary Of The Department Of Budget And Management, Hon. Diony Ventura, In His Capacity As Administrator Of The National Mapping & Resource Information Authority, And Hon. Hilario Davide, Jr., In His Capacity As Representative Of The Permanent Mission Of The Republic Of The Philippines To The United Nations

July 16, 2011 Ponente: Carpio, J. FACTS: In 1961, Congress passed Republic Act No. 3046 demarcating the maritime baselines of the Philippines as an archipelagic State. o This law followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I), codifying, among others, the sovereign right of States parties over their territorial sea, the breadth of which, however, was left undetermined. o The second round of negotiations in Geneva in 1960 (UNCLOS II) was also not able to determine the breadth of the territorial sea. o Thus, domestically, RA 3046 remained unchanged for nearly 50 years, except for R.A. 5446 passed in 1968, correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo. In March 2009, R.A. 9552 was enacted by Congress amending R.A. 3046, in order to be consistent with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III).

o

o

Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines and sets the deadline for the filing of application for the extended continental shelf. Complying with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as “regimes of islands” whose islands generate their own applicable maritime zones.

Petitioners’ contentions o RA 9522 reduces Philippine maritime territory and violates Art. I of the 1987 Philippine Constitution, embodying the terms of the Treaty of Paris and ancillary treaties o RA 9522 opens the country’s waters landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the country’s nuclear-free policy, and damaging marine resources, in violation of relevant constitutional provisions Respondents’ contentions o RA 9522 complies with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal. o RA 9522 does not undermine the country’s security, environment and economic interests or relinquish the Philippines’ claim over Sabah. o Respondents also question the normative force, under international law, of petitioners’ assertion that what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found within the boundaries of the rectangular area drawn under the Treaty of Paris. ISSUES/HELD: Whether RA 9522 is unconstitutional - NO I. RA 9522 is a Statutory Tool to Demarcate the Country’s Maritime Zones and Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory Baseline laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:

o

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. – The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77). Even under petitioners’ theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but from the “outermost islands and drying reefs of the archipelago.” UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and prescription, not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on general international law. II. RA 9522’s Use of the Framework of Regime of Islands to Determine the Maritime Zones of the KIG and the Scarborough Shoal, not Inconsistent with the Philippines’ Claim of Sovereignty Over these Areas RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS III’s limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. Hence, it cannot be said that RA 9522 weakens the country’s claim over the said islands.

RA 9522, by optimizing the location of basepoints, increased the Philippines’ total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles. Further, petitioners’ argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines’ continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal: o SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as “Regime of Islands” under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS): a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and

IV. UNCLOS III and RA 9522 not Incompatible with the Constitution’s Delineation of Internal Waters The Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage. Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress. DISPOSITIVE: Petition is Dismissed.

b) Bajo de Masinloc, also known as Scarborough Shoal. The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to emphasize the foregoing during the Senate deliberations: o What we call the Kalayaan Island Group or what the rest of the world call the Spratlys and the Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we might be accused of violating the provision of international law which states: “The drawing of such baseline shall not depart to any appreciable extent from the general configuration of the archipelago.” So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as our own. III. Statutory Claim Over Sabah under RA 5446 Retained Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah: o Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.

ADJACENT MARITIME AREAS 2. People v. Tulin G.R. No. 111709. August 30, 2001 TOPICS: Custodial Investigation; Assistance by Counsel; ADJACENT MARITIME AREAS (In piracy) RELEVANT LAWS: Article 3, Section 12 of the Constitution; RA 7659; PD 532; Art 122 of RPC Plaintiff-Appellee: People Of The Philippines Accused-Appellants: Roger P. Tulin, Virgilio I. Loyola, Cecilio O. Changco, Andres C. Infante, Cheong San Hiong, and John Does Ponente: Melo, J. Summary: This was a story of piracy. They attacked in Batangas and brought the vessel to SG. They were brought up many constitutional issues such as inadmissibility of evidence due to absence of counsel, etc. So basically the issue here is the jurisdiction of the court because the trade of the stolen articles, supervised by Hiong, occurred in SG. But the court said that since this is piracy, it is a reprehensible crime against the world. The court also said that because the attack was made in the Philippine waters, they acquired jurisdiction. And the disposition of the cargo and its vessel, which he

participated in, was still part of piracy. Though conspiracy wasn’t proved on his part, he was given a lesser responsibility, an accomplice. Facts In March 2, 1991, “M/T Tabangao,” a cargo vessel owned by the PNOC Shipping and Transport Corporation, loaded with kerosene, gasoline, and oil, worth P40.4M was sailing off the coast of Mindoro near Silonay Island. The vessel was suddenly boarded by seven fully armed pirates led by Emilio Changco (Emilio), older brother of accused-appellant Cecilio Changco (Cecilio). They detained the crew and took complete control of the vessel. Loyola ordered 3 crewmembers to paint over, the name "M/T Tabangao" and PNOC logos of the vessel with the name "Galilee," with registry at San Lorenzo, Honduras. The crew was forced to sail to Singapore, all the while sending misleading radio messages to PNOC that the ship was undergoing repairs. PNOC reported the disappearance of the vessel to the Philippine Coast Guard and secured the assistance of the Philippine Air Force and the Philippine Navy. However, search and rescue operations yielded negative results. March 9, 1991 – the ship arrived in SG to wait for another vessel, which failed to arrive. With this, they went back to the Philippines and arrived on March 20 March 28, 1991 – "M/T Tabangao" again sailed to SG's shoreline where another vessel called "Navi Pride" anchored beside it. March 30, 1991 – Emilio ordered the crew of "M/T Tabangao" to transfer the vessel's cargo to the hold of "Navi Pride". Hiong supervised the crew of "Navi Pride" in receiving the cargo and the transfer was completed. April 8, 1991 – "M/T Tabangao" arrived at Batangas, but the vessel remained at sea April 10, 1991 – the members of the crew were released in three batches with the stern warning not to report the incident to government authorities until April 12, 1991, otherwise they would be killed April 12, 1991 – the Chief Engineer and the members of the crew, called PNOC to report the incident. The crewmembers were brought to the Coast Guard Office for investigation, and to NBI where they executed sworn statements. Tulin, Hiong, and Cecilio were arrested in separate days in Batangas. Infante, Jr. and Loyola were arrested by chance at Aguinaldo Hi-way by NBI agents as the latter were pursuing the mastermind, who managed to evade arrest. October 24 1991, an Information charging qualified piracy or violation of PD No. 532 (piracy in Philippine Waters) was filed against accused-appellants. Upon arraignment, accused-appellants pleaded not guilty to the charge. Tulin, Infante, Jr., and Loyola, maintained the defense of denial, and disputed the charge, and the transfer of any cargo from "M/T Tabangao" to the "Navi Pride." They said that they merely worked for Libo-on as crew of the vessel. Cecilio categorically denied the charge. But he testified that he is the younger brother of Emilio.

Hiong, also known as Ramzan Ali, adduced evidence that he studied in Sydney, Australia, and was later employed at Navi Marine Services, Pte., Ltd. as Port Captain. The company was engaged in the business of trading petroleum, and owned four vessels, one of which was "Navi Pride." Hiong’s story was a long one. But basically, he acted as the broker of the pirates in Singapore. He was the ship agent for the sale of the cargo in SG. He did not join the actual piracy, hence, he was only convicted as an accomplice. (See ruling 4) Hiong went to the Philippines to discuss the matter with Emilio, who laid out the details of the new transfer, this time with "M/T Polaris" as contact vessel. Issues/Ruling: (1) What are the legal effects and implications of the fact that a non-lawyer represented accused-appellants during the trial? PROCEEDINGS ARE STILL VALID BECAUSE THERE WAS A VALID WAIVER OF RIGHTS MADE BY THE ACCUSEDAPPELLANTS. Tulin, Loyola, Infante, and Cecilio narrate that Mr. Posadas entered his appearance as counsel for all of them. In the course of the proceedings, TC discovered that Mr. Posadas was not a member of the Philippine Bar. However, the record reveals that a manifestation was executed by accusedappellants February 11, 1991, stating that they were adopting the evidence adduced when they were represented by a non-lawyer Such waiver of the right to sufficient representation during the trial as covered by the due process clause shall only be valid if made with the full assistance of a bona fide lawyer During the trial, accused-appellants, as represented by Atty. Abdul Basar, made a categorical manifestation that said accused-appellants were apprised of the nature and legal consequences of the subject manifestation, and that they voluntarily and intelligently executed the same They also affirmed the truthfulness of its contents when asked in open court (2) What are the legal effects and implications of the absence of counsel during the custodial investigation? EVIDENCE OBTAINED IS INADMISSIBLE. In this case, the uncounselled extrajudicial confessions of accused-appellants, without a valid waiver of the right to counsel, are inadmissible and whatever information is derived therefrom shall be regarded as likewise inadmissible in evidence against them. However, regardless of the inadmissibility of the subject confessions, there is sufficient evidence to convict accused-appellants with moral certainty

(3) Did the trial court err in finding that the prosecution was able to prove beyond reasonable doubt that accused-appellants committed the crime of qualified piracy? NO, THERE ARE WITNESSES, AND THEIR ALIBI WOULD NOT SUFFICE The Prosecution presented to the Court an array of witnesses, officers and members of the crew of the "M/T Tabangao" no less, who identified and pointed to the said Accused as among those who attacked and seized, the "M/T Tabangao" on March 2, 1991, and the said discharge of the cargo for the price of $500K on March 29 and 30 We also agree with the trial court's finding that accused-appellants' defense of denial is not supported by any hard evidence but their bare testimony. TC’s evaluation of the credibility of a testimony is accorded the highest respect Conspiracy issue was resolved by saying that even though they had different tasks, as long as the accused all had the same objective, each would be liable as if everyone had participated in all the acts (Criminal Law, really) (4) Did Republic Act No. 7659 obliterate the crime committed by accused-appellant Hiong? Hiong argues that he can no longer be convicted of piracy in Philippine waters under PD No. 532 because it was superseded by RA 7659 He reasons out that PD 532 has been rendered "superfluous or duplicitous" because both Article 122 of the RPC, and PD 532 punish piracy committed in Philippine waters. He maintains that in order to reconcile the two laws, the word "any person" mentioned in Section 1 [d] of PD 532 must be omitted such that PD 532 shall only apply to offenders who are members of the complement or to passengers of the vessel, whereas RA 7659 shall apply to offenders who are neither members of the complement or passengers of the vessel, hence, excluding him from the coverage of the law. RA 7659 neither superseded nor amended the provisions on piracy under PD 532. There is no contradiction between the two laws. There is likewise no ambiguity and hence, there is no need to construe or interpret the law. All the PD did was to widen the coverage of the law, in keeping with the intent to protect the citizenry as well as neighboring states from crimes against the law of nations. As regards the contention that the TC did not acquire jurisdiction over Hiong since the crime was committed outside Philippine waters, suffice it to state that unquestionably, the attack on and seizure of "M/T Tabangao" and its cargo were committed in Philippine waters Although PD 532 requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters, the disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy, hence, the same need not be committed in Philippine waters.

Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As such, it is an exception to the rule on territoriality in criminal law. The same principle applies even if Hiong, in the instant case, were charged, not with a violation of qualified piracy under the penal code but under a special law, PD 532 which penalizes piracy in Philippine waters. It is likewise, well-settled that regardless of the law penalizing the same, piracy is a reprehensible crime against the whole world However, does this constitute a violation of accused-appellant's constitutional right to be informed of the nature and cause of the accusation against him on the ground that he was convicted as an accomplice under Section 4 of PD 532 even though he was charged as a principal by direct participation under Section 2 of said law? TC found that there was insufficiency of evidence showing that Hiong directly participated in the attack and seizure and that his act was indispensable to it. But the finding by the TC that Hiong’s participation was one, which aided or abetted Emilio and his band of pirates in the disposition of the stolen cargo under PD 532 was upheld The ruling of the trial court is within well-settled jurisprudence that if there is lack of complete evidence of conspiracy, the liability is that of an accomplice and not as principal. Any doubt as to the participation of an individual in the commission of the crime is always resolved in favor of lesser responsibility. The record discloses that Hiong aided the pirates in disposing of the stolen cargo. He profited therefrom by buying the hijacked cargo for Navi Marine Services. He even tested the quality and verified the quantity of the petroleum products, connived with Navi Marine Services personnel in falsifying the General Declarations and Crew List to ensure that the illegal transfer went through, undetected by Singapore Port Authorities, and supplied the pirates with food, beer, and other provisions for their maintenance while in port

Dispositive Portion WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the Court hereby AFFIRMS the judgment of the trial court in toto. SO ORDERED. Vitug, Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.

JURISDICTION OVER PERSONS & ECONOMIC ACTIVITIES (i) CRIMINAL AND CIVIL JURISDICTION 3. Gov’t of USA v Purganan TOPIC: Exceptions to the general rule that right to bail in extradition is not available; Extradition request must comply with extradition treaties. TREATIES/LAWS: G.R. No. 148571. September 24, 2002 Petitioner: GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the DOJ Respondents: Hon. GUILLERMO G. PURGANAN, Morales, and Presiding Judge, RTC Manila, Branch 42; and MARK B. JIMENEZ a.k.a. MARIO BATACAN CRESPO Ponente: PANGANIBAN, J.: SUMMARY: The Gov’t of USA requests for the extradition of Jimenez, who is the subject of an arrest warrant in the USA for charges such as tax evasion, conspiracy to defraud the US Gov’t, etc. Jimenez filed a petition in the RTC that he be granted a hearing re: application of an arrest warrant. This was granted by the RTC. After hearing, the RTC directed the issuance of an arrest warrant and allowed him to post for bail. USA contends than an extraditee does not have the right to bail. The SC held that as a general rule, right to bail is not granted to an extraditee. Extradition cases are sui generis and does not fall under a criminal procedure. Constitutional rights are only relevant to determine the guilt or innocence of an accused. There is no such determination in an extradition case hence the constitutional right to bail cannot be invoked by an extraditee. However, after being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community and (b) there exist special, humanitarian or compelling circumstances. The SC did not rule w/n he is entitled to bail. Rather, it ordered the extradition court (RTC of Manila) to continue hearing evidence on the application for bail, which may be granted in accordance with the guidelines in this Decision. FACTS:

Pursuant to the RP-US Extradition Treaty, USA sent to the Philippine Government Note Verbale and accompanied by duly authenticated documents requesting the extradition of Mark B. Jimenez a.k.a. Mario Batacan Crespo. The SFA transmitted the documents to the SOJ for appropriate action. Upon learning of the request for his extradition, Jimenez sought and was granted a TRO by the RTC of Manila. o The TRO prohibited the Department of Justice (DOJ) from filing with the RTC a petition for his extradition. The validity of the TRO was assailed by the SOJ. o The Court dismissed the Petition of the SOJ but reconsidered and reversed its decision. o It held that Jimenez was bereft of the right to notice and hearing during the evaluation stage of the extradition process. o This Resolution has become final and executory. The USA, through the DOJ, filed with the RTC the appropriate Petition for Extradition. o It alleged that Jimenez was the subject of an arrest warrant issued by the US District Court for the Southern District of Florida. o The warrant had been issued in connection with the following charges: conspiracy to defraud the US, tax evasion, wire fraud, false statements and illegal campaign contributions. o In order to prevent the flight of Jimenez, the Petition prayed for the issuance of an order for his “immediate arrest”. Jimenez filed before the RTC an “Urgent Manifestation/Ex-Parte Motion,” which prayed that the application for an arrest warrant be set for hearing. RTC granted the Motion of Jimenez and set the case for hearing. The USA manifested its reservations on the procedure adopted by the trial court allowing the accused in an extradition case to be heard prior to the issuance of a warrant of arrest. After the hearing, the court required the parties to submit their respective memoranda. o Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post bail in the amount of P100,000. o The alternative prayer of Jimenez was also set for hearing. o The court issued an order, directing the issuance of a warrant for his arrest and fixing bail for his temporary liberty at P 1M in cash. After he had surrendered his passport and posted the required cash bond, Jimenez was granted provisional liberty.

MAIN ISSUE: W/N the Court committed GADALEJ in allowing Jimenez to post for bail— YES. (Please see sub-issues)

SUB-ISSUE/HELD 1: W/N the present petition was filed prematurely in the SC—NO. The SC can take cognizance of cases where exceptional circumstances are present. The SC has original jurisdiction, concurrent with that of the RTC and CA, over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus, and it entertains direct resort in cases where special and important reasons or exceptional and compelling circumstances justify the same. In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, the SC deem it best to take cognizance of the present case. Such proceedings constitute a matter of first impression over which there is no local jurisprudence to guide lower courts.

Five Postulates of Extradition (Not sure how important this is, but just in case he asks) The substantive issues raised in this case require an interpretation or construction of the treaty and the law on extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its intent. Since PD 1069 is intended as a guide for the implementation of extradition treaties to which the Philippines is a signatory, understanding certain postulates of extradition will aid us in properly deciding the issues raised here.

1.

Extradition Is a Major Instrument for the Suppression of Crime. a. Through the facilitating of the arrest and the custodial transfer of a fugitive from one state to the other. b. Extradition is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law.

2. 3.

The Requesting State Will Accord Due Process to the Accused The Proceedings Are Sui Generis a. It does not involve the determination of the guilt or innocence of an accused. b. Constitutional rights are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee. c. It is summary in nature. d. The rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards.

e. f. g.

4. 5.

Quantum of evidence – a fugitive may be ordered extradited ‘upon showing of the existence of a prima facie case.’ Court may adjudge an individual extraditable but the President has the final discretion to extradite him. The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable.

Compliance Shall Be in Good Faith (pacta sunt servanda) There Is an Underlying (presumption) Risk of Flight

SUBSTANTIVE ISSUES (If you’re in a hurry, read the summation!!!)

SUB-ISSUE/HELD 2: W/N Respondent is Entitled to Notice and Hearing Before the Issuance of a Warrant of Arrest? –NO. USA contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice, that an Extradition Petition has been filed against him, and that petitioner is seeking his arrest -- gives him notice to escape and to avoid extradition. Jimenez argues that he should not be hurriedly and arbitrarily deprived of his constitutional right to liberty without due process. o That there is no specific law or rule setting forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has been filed in court; ergo, the formulation of that procedure is within the discretion of the presiding judge. Both parties cite Section 6 of PD 1069 in support of their arguments. It states: “SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of the accused which may be served any where within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof. “(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney

having charge of the case.” (Emphasis ours)

1. On the Basis of the Extradition Law Hearing entails sending notices to the opposing parties, receiving facts and arguments from them, and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can no longer be considered “immediate.” By using the phrase “if it appears,” the law further conveys that accuracy is not as important as speed at such early stage. The court is expected merely to get a prima facie finding -- sufficient to make a speedy initial determination as regards the arrest and detention of the accused. It is evident that respondent judge could have already gotten an impression from the records adequate for him to make an initial determination of whether the accused was someone who should immediately be arrested in order to “best serve the ends of justice.” In point of fact, he actually concluded from these supporting documents that “probable cause” did exist. In connection with the matter of immediate arrest, however, the word “hearing” is notably absent from the provision. o Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. o It also bears emphasizing at this point that extradition proceedings are summary in nature. o The silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings. As argued by petitioner, sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law could have intended that consequence, for the very purpose of both would have been defeated by the escape of the accused from the requested state.

2. On the Basis of the Constitution Even Section 2 of Article III of the Constitution does not require a notice or a hearing before the issuance of a warrant of arrest. To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination -- under oath or affirmation -- of complainants and the witnesses they may produce.

There is no requirement to notify and hear the accused before the issuance of warrants of arrest.

SUB-ISSUE/HELD 3 (IMPT!!!): W/N Respondent Entitled to Bail? –NO, unless he falls under the exception. Jimenez maintains that Art III Sec. 13 of the Constitution secures the right to bail of all persons, including those sought to be extradited. o Supposedly, the only exceptions are the ones charged with offenses punishable with reclusion perpetua, when evidence of guilt is strong. USA claims that there is no provision in the Philippine Constitution granting the right to bail to a person who is the subject of an extradition request and arrest warrant.

SC: Agree with USA. The Consti provision on, as well as Section 4 of Rule 114 of the ROC, applies only when a person has been arrested and detained for violation of Philippine criminal laws. o It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail “flows from the presumption of innocence in favor of every accused, unless his guilt be proved beyond reasonable doubt.” o It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. His Right to due process is NOT violated. o His detention prior to the conclusion of the extradition proceedings does not amount to a violation of his right to due process. o Jimenez will be given full opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition. o It is also worth noting that before the US government requested the extradition of respondent, proceedings had already been conducted in that country. But he left the jurisdiction of the requesting state before those proceedings could be completed, which hindered the court from continuing with the due processes prescribed under its laws. His invocation of due process now has become hollow. The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14[67] of the Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to cut short their detention here.

Likewise, their detention pending the resolution of extradition proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases and the need for their speedy disposition.

Exceptions to the “No Bail” Rule GR: bail is not a matter of right in extradition cases. However, the SC believes that the right to due process is broad enough to include the grant of basic fairness to extraditees. E: After a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing o (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and o (2) that there exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. The exception is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness.

Jimenez contends that there are special circumstances that are compelling enough for the Court to grant his request for provisional release on bail. (1) Alleged Disenfranchisement and (2) Anticipated Delay o While his extradition was pending, Jimenez was elected as a member of the House of Representatives. o He claims that his detention will disenfranchise his Manila district of 600,000 residents. o In People v. Jalosjos, the Court has already debunked the disenfranchisement argument stating that the voters elected him with full awareness of the limitations on his freedom of action.” o It must be noted that even before Jimenez ran for and won, it was already of public knowledge that the United States was requesting his extradition. o His constituents were or should have been prepared for the consequences of the extradition case against their representative. o Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be unfair to confine him during the pendency of the case. o SC is not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings but this is another matter that is not at issue in this case. o Thus, any further discussion of this point would be merely anticipatory and

academic.

Not a Flight Risk? o Jimenez further claims that he is not a flight risk. o he stresses that he learned of the extradition request in June 1999; yet, he has not fled the country. o That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be within reach of our government if and when it matters; that is, upon the resolution of the Petition for Extradition.

In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the applicant has been taken into custody and prior to judgment, even after bail has been previously denied. In the present case, the extradition court may continue hearing evidence on the application for bail, which may be granted in accordance with the guidelines in this Decision.

Summation (by the SC) 1.

2. 3.

4.

5.

The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes and the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused -- or the fugitive who has illegally escaped -- back to its territory, so that the criminal process may proceed therein. xxx By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available. xxx Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that (a)

there is no flight risk and no danger to the community; and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case. 6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. 7. xxx 8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of government has broad discretion in its duty and power of implementation. 9. xxx 10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose.

DISPOSITIVE: WHEREFORE, the Petition is GRANTED xxx The RTC of Manila is directed to conduct the extradition proceedings before it, with all deliberate speed pursuant to the spirit and the letter of our Extradition Treaty with the United States as well as our Extradition Law

4. Gov’t of Hong Kong v Olalia [consti2 digest c/o Charlemagne Chavez] G.R. No. 153675, April 19, 2007 Petitioner: Gov’t of Hong Kong Special Administrative Region, represented by DOJ Respondent: Olalia is the RTC judge that granted bail; Munoz is a prospective extraditee Petition for Certiorari SANDOVAL-GUTIERREZ, J.: OhSHNAP: Juan Antonio Munoz was wanted in HK. He was arrested here in the Philippines. He applied for bail which was initially denied but was granted by Judge Olalia on reconsideration. A petition for certiorari was filed in the SC where the court

held that Judge Olalia did not err. Extradition is not a criminal proceeding but is an administrative proceeding. Although the court in Puruganan ruled that bail only applies to criminal proceeding, the decision was revised taking into consideration the various treaty obligations of the Philippines in international law that uphold human rights. Among the rights involved is the right to liberty. Although our extradition law does not provide a grant for bail to an extraditee, it neither prohibits an application for bail. Extradition proceeding is sui generis and partakes of an administrative nature. However, extradition bears all the earmarks of a criminal proceeding. A potential extraditee may be detained and arrested. While the Philippines must honor its extradition obligation to HK, it should not diminish Munoz’s right to life, liberty, and due process which are guaranteed not only by the constitution but also by the various international covenants to which the Philippines is a party. Thus, Munoz is entitled to bail, provided that he proves with clear and convincing evidence that he is not a flight risk. Case was remanded to the trial court to see if there is clear and convincing evidence that Munoz is not a flight risk. FACTS: An “Agreement for the Surrender of Accused and Convicted Persons” was entered into by the Republic of the Philippines (hereinafter PHL) and then British Crown Colony of Hong Kong (hereinafter HK) which took effect in 1997. Private respondent Munoz was charged in HK for 3 counts of “accepting an advantage as agent” and 7 counts of “conspiracy to defraud.” Warrants of arrest were issued by HK court against Munoz in 1997 and 1999 and if convicted, faces jail term of 7 to 14 years for each charge Upon receipt of request for provisional arrest by PHL through the DOJ, the NBI filed with the RTC an application for provisional arrest and the same was granted in Sept 23, 1999. On same date, NBI agents arrested and detained Munoz. Initially, Munoz filed with the CA a petition questioning the validity of the order of arrest in which the CA declared such as void. But, the SC reversed this and declared the order of arrest valid. This decision became final and executor in April 2001. Meanwhile, as early as Nov 22, 1999, HK has filed with the RTC of Manila a petition for extradition of Munoz. In the same case, a petition for bail was filed by Munoz. Judge Bernardo, Jr. (a.k.a Mr. NBA Fantasy) denied the petition for bail but upon reconsideration, Judge Olalia granted bail subject to certain conditions on Oct. 30, 2001. An urgent motion to vacate the order was denied by Judge Olalia, hence this instant Petition.

o Petitioner HK contended that Judge Olalia committed GADAJEL and that there is nothing in the constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceeding o Private Respondent maintained that right to bail extends to prospective extraditee and that extradition is a harsh process resulting in a prolonged deprivation of liberty ISSUES: (1) Whether the right to bail extends to a prospective extraditee (considering that extradition is an administrative case and right to bail involves criminal cases). HELD: YES, Case Dismissed RATIO: The court has previously ruled in Gov’t of USA v. Puraganan that the constitutional provision on bail does not apply to extradition proceedings; it is available only in criminal proceedings. The SC in that case reasoned: o The use of word “conviction” in the constitution applies only to persons arrested and detained for violation of Philippine criminal laws. Court does not render a judgment of conviction in extradition o The right to bail flows from the presumption of innocence in favour of every accused before judgement. The presumption of innocence is not an issue in extradition thus it follows that right to bail is not contemplated HOWEVER, the court took note of the current trends in international law which gives primacy on the worth of the individual person and the sanctity of human rights. o There is growing importance of the individual in PIL o Higher value is given to human rights in the international sphere o There is corresponding duty of countries to observe these universal human rights in treaty obligations o There is the duty of the courts to balance the rights of the individual under our constitution and the law on extradition on the other. THUS, the court in light of the various international treaties re-examined the ruling in Puragan. o First, deprivation of liberty is not limited to criminal proceedings. Respondents in admin cases such as deportation and quarantine have likewise been detained. o Second, Philippine jurisprudence prior to Puragan has not limited the exercise to bail to criminal proceedings only. There have been cases where right to bail was granted in admin cases mostly deportation proceedings. If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases.

o The court applied the Universal Declaration of Human Rights which the constitution says is part of the law of the land o Also, the right of an extraditee to apply for bail must be viewed in the light of various treaty obligations of PHL. What is important is that the right to liberty must not be impaired. Extradition is “the removal of an accused from PHL with the object of placing him at the disposal of foreign authorities to enable the requesting state or gov’t to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under penal or criminal law of the requesting state.” o It is a right of a foreign power created by a treaty o It is NOT A CRIMINAL PROCEEDING even if the potential extraditee is a criminal in another state o IT IS SUI GENERIS tracing its existence on treaty obligation between states It is neither a trial nor a civil action. It is merely administrative in character. While ostensibly administrative, extradition bears all earmark of criminal process. o Potential extraditee is subject to arrest, prolonged restraint of liberty, and forced to transfer to the demanding state o Extradition is characterized by (a) deprivation of liberty and (b) the means employed to attain purpose of extradition is “the machinery of criminal law” Records show that Munoz was arrested on Sept 23, 1999 and remained incarcerated until Dec 20, 2001, a period of over 2 years without having been convicted of any crime. This is a serious deprivation of his fundamental right to liberty by any standard! While the Philippines must honor its obligation under the extradition treaty, it should not diminish a potential extraditee’s right to life, liberty and due process which are guaranteed not only by the constitution but also by international conventions to which the PHL is party thereto. While our extradition law does not provide for the grant of bail to an extraditee, neither is there a prohibition. Constitutional provision on due process however guarantees this right. o Since this is not a criminal proceeding where there is a presumption of innocence and that in extradition proceedings, there is a presumption that an extraditee is a fugitive from justice, Munoz (the prospective extraditee) has the burden of proof of showing that he is not a flight risk and should be granted bail. o An extradition proceeding being sui generis the standard of proof required is “clear and convincing evidence” which is below proof beyond reasonable doubt but above preponderance of evidence. Thus Munoz must prove by clear and convincing evidence that he is not a flight risk and will abide with all the orders and processes of extradition court.

WHEREFORE, case DISMISSED and REMANDED to trial court to determine if Munoz is entitled to bail on the basis of clear and convincing evidence

(ii) IMMUNITY FROM JURISDICTION 5. Sanders v. Veridianio TOPIC: Jurisdictional Immunity G.R. No. L-46930 Petitioner: DALE SANDERS, AND A.S. MOREAU, JR Respondent: HON. REGINO T. VERIDIANO II, as Presiding Judge, Branch I, Court of First Instance of Zambales, Olongapo City, ANTHONY M. ROSSI and RALPH L. WYERS J. Cruz Doctrine: Official acts of agents of another state(provided that they are granted immunity) are covered by such priviledge; In order for a state to be sued it must consent to it. RRV: Rossi and Wyers are game room attendants, they were regular employees but were reverted to part time employees. Rossi and Wyers appealed such decision which was granted and order a reinstatement of the two. Sanders wrote a letter to Moreau who was the commanding officer of the Subic Naval Base, explaining his grievance to the decision. Before a grievance meeting was commenced, a letter was sent, purportedly from Moreau, ordered the reversal of the decision. Rossi and Wyers filed a case for damages in the CFI. The issue is whether Sanders were acting in official capacity which grants them immunity. The court ruled in favor or Sanders, it reasoned that the letters written were within his official capacity. He was to report to his superior about personnel under his supervision. Assuming arguendo that it was not, he had the right to react to criticisms impugned directly upon him. Facts: o Sanders was, at the time the incident in question occurred, the special services director of the U.S. Naval Station (NAVSTA) in Olongapo City, while Moreau was the commanding officer of the Subic Naval Base. o Respondents were both employed as gameroom attendants in the special services department of the NAVSTA, the former having been hired in 1971 and the latter in 1969. They were informed that they are now just part time

o

o

o

o

employees. They protested to the U.S. Department of Defense which ordered their reinstatement to full-time status with back wages. Sanders sent a letter to Moreau disagreed with this recommendation and reported that Responders tend to alienate their co-workers and were difficult to supervise. Before the grievance hearing was was started, a letter purportedly coming from Moreau as the commanding general of the U.S. Naval Station in Subic Bay was sent to the Chief of Naval Personnel explaining the change of the private respondent's employment status and requesting concurrence therewith, but this was signed by Moore, “by direction”. Respondents filed a case in the CFI for damages. Sanders and Moreau filed a motion to dismiss arguing that the court has no jurisdiction because the said acts were performed in the discharge of their duties. The trial court ruled in favor of the respondent and ordered a writ of preliminary attachment to the properties of Moreau. Hence this petition.

Issue: Whether the petitioners were acting official capacities which merits them the grant of jurisdictional immunity. YES Ratio: o

o

The mere allegation that a government functionary is being sued in his personal capacity will not automatically remove him from the protection of the law of public officers and, if appropriate, the doctrine of state immunity. The mere invocation of official character will not suffice to insulate him from suability and liability for an act imputed to him as a personal tort committed without or in excess of his authority. Baer v. Tizon, Syquia v. Almeda Lopez, United States of America v. Ruiz, consistently held that the US has not consented to be sued and the suit could not prosper because the acts complained of were covered by the doctrine of state immunity In the present case that the acts of the petitioners were performed by them in the discharge of their official duties. Sanders, as director of the special services department of NAVSTA, undoubtedly had supervision over its personnel, including the private respondents, and had a hand in their employment, work assignments, discipline, dismissal and other related matters. It is not disputed that the letter Sanders had written was in fact a reply to a request from his superior, the other petitioner, for more information regarding the case of the private respondents.

Even in the absence of such request, he still was within his rights in reacting to the hearing officer's criticism—in effect a direct attack against him—-that Special Services was practicing "an autocratic form of supervision. o

Given the official character of the above-described letters, we have to conclude that the petitioners were, legally speaking, being sued as officers of the United States government As they have acted on behalf of that government, and within the scope of their authority, it is that government, and not the petitioners personally, that is responsible for their acts. There should be no question by now that such complaint cannot prosper unless the government sought to be held ultimately liable has given its consent to' be sued. The SC , in a line of cases, upheld the doctrine of state immunity as applicable not only to our own government but also to foreign states sought to be subjected to the jurisdiction of our courts. It would seem only proper for the courts of this country to refrain from taking cognizance of this matter and to treat it as coming under the internal administration of the said base.(Parties in this case were Americans and Naval Base employees)

WHEREFORE, the petition is GRANTED. The challenged orders dated March 8,1977, August 9,1977, and September 7, 1977, are SET ASIDE. The respondent court is directed to DISMISS Civil Case No. 2077-O. Our Temporary restraining order of September 26,1977, is made PERMANENT. No costs.

action whatever or protest against the exercise of territorial rights by the Netherlands over the Sangi Isles and their dependencies has been recorded. The peaceful character of the display of Netherlands sovereignty for the entire period to which the evidence concerning acts of display relates (1700-1906) must be admitted. There is moreover no evidence which would establish any act of display of sovereignty over the island by Spain or another power, such as might counterbalance or annihilate the manifestations of Netherlands sovereignty. The Netherlands title of sovereignty acquired by continuous and peaceful display of state authority during a long period of time going probably back beyond the year 1700, therefore holds good.

CHAPTER 3: JURISDICTION OF STATES JURISDICTION OVER TERRITORY A.

Title to Territory 1.

Island of Palmas Case (p. 1-6) (MT)

Facts: st

Origin of dispute: the visit paid to the Island of Palmas on Jan 21 1906, by general Leonard Wood who was then governor of the province of Moro. US position: base their claim on the titles of discovery, of recognition by treaty and of contiguity i.e. titles relating to acts or circumstances leading to the acquisition of sovereignty; they have however not established the fact that sovereignty so acquired was effectively displayed at any time. Netherlands position: found their claim to sovereignty essentially on the title of peaceful and continuous display of state authority over the island. Since this title would in international law prevail over a title of acquisition of sovereignty not followed by actual display of state authority, it is necessary to ascertain in the first place, whether the contention of the Netherlands is sufficiently established by evidence, and if so, for what period of time. Issue: Who has sovereignty over the island Netherlands or USA? Held and Ratio: Netherlands for the reasons below: The islands of palmas is identical with an island designated by this or a similar name , which has formed, at least since 1700, successively a part of two of the native states of the island of Sangi. These native states were from 1677 onwards connected with the East India Company and thereby with the Netherlands, by contracts of suzerainty (form of dependency), which conferred upon the suzerain such powers as would justify his considering the vassal State as part of his territory. Acts characteristic of state authority exercised either by the vassal state or by the suzerain power in regard precisely to the Island of Palmas have been established as occurring at different epochs between 1700 and 1898, as well as in the period between 1898 and 1906. The acts of indirect or direct display of the Netherlands sovereignty at Palmas, th th especially in the 18 and 19 centuries are not numerous, and there are considerable gaps in the evidence of continuous display. It may suffice that such display existed in 1898, and had already existed as continuous and peaceful before that date long enough to enable any power who might have considered herself as possessing sovereignty over the island, or having claim to sovereignty, to have according to local conditions, as a reasonable possibility for ascertaining the existence of a state of things contrary to her real or alleged rights. It is not necessary that the display of sovereignty should be established as having begun at a precise epoch; it suffices that it had existed at the critical period preceding the year 1898. Since the moment when the Spaniards, in withdrawing from the Moluccas in 1666, made express reservations as to the maintenance of their sovereign rights, up to the contestation made by the US in 1906, no contestation or other

2.

Legal Status of Eastern Greenland (p. 6-12) (MT)

Facts: July 10, 1931: the Norwegian Govt published a proclamation declaring that it had proceeded to occupy certain territories in Eastern Greenland. The Danish Govt contended that Eastern Greenland was subject to the sovereignty of Denmark and on those grounds brought before the Permanent Court of International Justice a suit against Norway. th th In the course of the 19 century and the early years of the 20 century the coasts of Greenland were entirely explored. For the purposes of the present case, it is only necessary to note of 2 dates: in 1822 the Scottish whaler Scoresby made the first landing by a European in the territory covered by the Norwegian declaration of occupation and about 1900, thanks to the voyages of the American Peary, the insular characted of Greenland was established. It is admitted by the Norway that from the time of Scoresby’s landing the East Coast forms part of the known portion of Greenland. 1863: the Danish Govt granted to Mr. Tayler, an Englishman, an exclusive concession for 30 yrs to enable him to establish on the East Coast of Greenland stations for the purpose of trading with the natives, hunting, fishing or working nay metalliferous or other mineral bearing mines there discovered or engaging in any other business which he may consider to his advantage.—this led to no practical result. Practice of Danish Govt in concluding bilateral commercial conventions or when participating in multilateral conventions relating to economic questions—such as those concluded since 1921 under the auspices of the League of Nations—has been to secure the insertion of a stipulation excepting Greenland from the operation of the convention. Norwegian’s actions: 1930; the Norwegian Govt conferred police powers on certain Norwegian nationals for the inspection of the Norwegian hunting stations in Eastern Greenland. Norwegian Standpoint: the land is terra nullius meaning no one owns it. Danish arguments: (you can use this in the ratio too) Denmark has claimed and exercised sovereign rights over Greenland as a whole for a long time and has obtained thereby a valid title to sovereignty. It is not necessary that sovereignty over Greenland should have existed throughout the period during which the Danish Govt maintains that it was being. 1

Issue: Who has sovereignty over Greenland? Held and Ratio: Danish Govt. Test (impt): a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involes two elements: intention and will to ask as sovereign and some actual exercise or display of such authority. Up to 1931 there was no claim by any power other than Denmark to the sovereignty over Greenland. No other power was putting forward any claim to territorial sovereignty in Greenland, and in the absence of any competing claim the King’s pretentions to be the sovereign of Greenland subsisted. The conclusion to which the court is led is that, bearing in mind the absence of any claim to sovereignty by another power and the arctic and inaccessible character of the uncolonized parts of the country, the king of Denmark and Norway displayed during the period from the founding of the colonies by Hans Egede in 1721 up to 1814 his authority to an extent sufficient to give his country a valid claim to sovereignty and that his rights over Greenland were not limited to the colonized area… Counsel for Denmark have laid stress on the long series of conventions— mostly commercial in character—which have been concluded by Denmark and in which, with the concurrence of the other contracting party, a stipulation has been inserted to that effect that the convention shall not apply to Greenland. Treaties may also be regarded as demonstrating sufficiently Denmark’s will and intention to exercise sovereignty over Greenland. 1925: legislation was enacted regulating the hunting and fishing and in the same year Greenland was divided into provinces by a law which declared that all commercial activity was reserved to the Danish state. The character of there Danish acts is not altered by the protests or reserves which were made by the Norwegian Govt.

3.

Western Sahara Case (p. 13-15) (MT)

Facts: Brief Background: Morocco claimed that it had legal ties with Western Sahara at the time of colonization of Spain in 1884. Before going into issue the court needs to answer question 1: was Western Sahara terra nullius(a territory belonging to no one)? It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through occupation of terra nullius by original title but through agreements concluded with local rulers. Such agreements with local rulers, whether or not considered as an actual “cession” of the territory, were regarded as derivative roots of title, and not original titles obtained by occupation of terra nullius. Western Sahara was inhabited by peoples which if nomadic were socially and politically organized in tribes and under chiefs competent to represent them. Spain did not proceed on the basis that it was establishing its sovereignty on terra nullius.

Morocco’s claim: based on public display of sovereignty and uninterrupted and uncontested for centuries.—stretching back to the Arab conquest of North America. Issue: WON there were legal ties between Western Sahara and Morroco? Held & Ratio: None. Claims to ties of sovereignty with Western Sahara encounters certain difficulties. A claim to sovereignty based upon continued display of authority involves two elements each of which must be shown to exist: the intention and will to act as sovereign and some actual exercise or display of such authority. The information before the court shows that the geographical unity of Western Sahara with Morocco is somewhat debatable which also militates against giving effect to the concept of contiguity. Even if the geographical contiguity of Western Sahara with Morocco would be taken into account in the present connection, it would only make the paucity of evidence of unambiguous display of authority with respect to Western Sahara more difficult to reconcile with Morocco’s claim to immemorial possession. The material and information presented to the Court show the existence at the time of Spanish colonization of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara. They equally show the existence of rights, including some rights relating to the land, which constituted legal ties between the Mauritanian entity as understood by the Court and the territory of Western Sahara. Thus, the court has not found legal ties of such a nature as might affect the application of resolution in the decolonization of Western Sahara and in particular of the principle of self determination through the free and genuine expression of the will of the peoples of the territory.

4.

SABAH article (p. 15a) (MT)

(not really a case so ill just summarize) Sabah is situated in the northern part of the island of Borneo. It is bounded by Brunei and Sarawak to the west and by Indonesian Kalimantan to the South. The territory originally owed allegiance to the Sultan of Brunei but in 1704 the land was ceded to the Sultan of Sulu. In 1946, Sabah became a British Crown Colony. 1951: Philippine statute which emphasized that the establishment of a Philippine Consulate in Singapore, with jurisdiction over North Borneo, did not constitute a waiver of the claim. In 1962, the heirs of the Sultan of Sulu formally transferred their claim to Sabah to the Philippine Government. 1963, the Philippines and the UK held talks in London on the issue of the Philippine claim to Sabah but did not arrive at a settlement. Meanwhile, Sabah became a constituent part of the Federation of Malaysia. This development was both challenged by the Philippines and Indonesia. Philippines maintained that the predecessors of the Chartered Company of British North Borneo were private lessees of the Sultan of Sulu and could not 2

have acquired dominion over the territory through the contract of 1878. The Philippines also argued that the sovereignty of the sultan of sulu was not extinguished by the unilateral act of Britain extending her protectorate over the territory in 1888, nor because the territory was subject of an international agreement between Spain, the US and Great Britain. Furthermore, the Philippine government a satisfactory settlement of sabah question should include a just and fair settlement of the proprietary claims of the heirs of the Sultan of Sulu. In August 1977, in the ASEAN heads of Government meeting, President Marcos declared that the Philippines is taking definite steps to eliminate one of the burdens of ASEAN—the Philippine claim to Sabah. Latest news in 1993: President Ramos and Prime Minister Mahathir reached an understanding on normalizing the relations between the two countries despite the Sabah questions. This understanding resulted in a surge in trade and investment between the two countries. Active cooperation on Mindanao and Sabah are being pursued by both countries through the Brunei Darussalam Indonesia Malaysia Philippines East ASEAN Growth Area and bilateral programs, such as cooperation on border crossing and patrol and assistance to Muslim Filipinos and to Filipinos in Malaysia, more particularly in Sabah.

5.

Spratlys Article by Coquia (p. 15b) (MT)

(not really a case more two articles that I consolidated na lang kaya mej mahaba) Introduction A foreign policy to be set for the Philippines involves the national territory of the Phils with vast potential for economic resources. It involves the maintenance of peace with immediate neighbors. Such policy to be valid must also be in accordance with the general principles of international law. Geographical setting Surrounded by ten littoral states: China, Taiwan, Phils, Indonesia, Brunei, Malaysia, Singapore, Thailand, Kampuchea and Vietnam. The Paracels, a group of islands on the south east of China are claimed by China and Vietnam. Some one hundred miles to the south of Paracels area group of islands is called the Spratley’s. Some of these are occupied by the Philippines, Vietnam, Taiwan and China. Nothing has been positively initiated to prevent unnecessary conflict until Jan 1990—The first workshop: “Managing Potential conflicts in the south china sea” in Bali. The objective was to elicit academic papers into some kind of policy inputs to resolve the dispute. Upon the suggestion of the Philippine participants the next workshop was held in Bandung in 1991 attended by the representatives from the China, Taiwan and Vietnam. A proposal was made by Indonesia with support of the Philippines that an institutional mechanism be organized on an unofficial status through which all issues can be ventilated periodically. Each claimant state was given the opportunity to state the legal basis of their territorial claims in the area. A joint statement was issued on July 1991 urging the participants to recommend their respective governments to set aside in

the meantime territorial and jurisdictional claims and agree to explore areas of cooperation. Similar subjects were discussed in the third workshop held in Yogyakarta, Indonesia on June 1992. The proposal of setting up an institutional mechanism again failed to get a unanimous support. Even the suggestion to hold an official conference was not favored. It was during this workshop that the Chinese participants were confronted by the Vietnamese participants on a law enacted on Feb 1992 by China declaring its territorial waters and contiguous zone which eventually claimed sovereignty over all the islands, waters, seabed and airspace stretching 12 nautical miles from the coast of all the islands on the South China Sea. Under the said law, foreign military ships must get approval from Beijing before entering China waters. ASEAN Reaction The ASEAN council of foreign ministers, in their meeting in Manila in July 1992, issued a declaration that the disputes in the South China Sea must be settled by peaceful means. Claim of China As early as the second century BC Chinese discoveries were claimed of the Xisha and Nansha islands. After the WW1, China was the only claimant of the Spratley’s. The Chinese th claimed sovereignty over the Spratley’s since the 13 century through expeditions sent by the Yuan Govt in 1923. The Chinese admit that there is no actual occupation and control of the totally uninhabited islands. The Xisha and Nansha islands are very far away from the mainland. One cannot expect to exercise in history actual occupation and effective control over these islands. It was only on Feb 1992 when China passed a law enclosing the Nansha islands within the territorial sea. The Claim of Taiwan The claim of Taiwan is the same as China’s. The Claim of Vietnam The claim to the Paracels is primarily based on the state succession relying on the dissolution of the French sovereignty in Indochina and on historical grounds. Upon the dissolution of its Indochina empire in 1954, France allegedly ceded its control over the Paracels to Vietnam but retained its claim to the Sparetly’s. In 1959 and the later years, Vietnam continued to assert sovereignty over the Paracels seizing fishing vessels of China in the area. Vietnam also awarded oil explorations contracts to eight foreign companies in the disputed area of the two island groups. The Philippine Claim Shortly after gaining independence from the US in 1946, the Philippines asserted its claim to the Spratly’s before the UN General Assembly. On May 1956, Tomas Cloma, a Filipino navigator and his associates claimed ownership by discovery and occupation of the territory identified as the Freedom Land consisting of about 33 islands, cays, sandbars, and coral reefs on the Spratly’s. 3

A diplomatic note was sent by the Philippine Government to Taipei demanding the withdrawal of a Chinese garrison on the island on the ground that the Philippines has a legal title of the island. Aside from the historical antecedents, Filipinos have domiciled peacefully on the islands which led to a viable Filipino political, social and economic community known as the Kalayaan Island Group. It is now a political subdivision of the Province of Palawan island. Established residents of said municipality have been registered as voters and participated in elections of Philippine officials. The Philippines had granted oil and hydrocarbon explorations to various American firms within the Kalayaan island group. The main legal basis of the Philippine claim over the Kalayaan island group is that it is terra nullius followed by occupation and exercise of jurisdiction. Claim of Malaysia The area claimed by Malaysia overlapped the southern portion of the Kalayaan Island Group. It was on this area that the 49 Filipino fishermen were apprehended by Malaysian authorities 1988. Value and importance of the islands on the South China Sea Presumed huge oil deposits Navigational and communication routes Suggested foreign policy options To pursue the Philippine claim by diplomatic negotiation through the ASEAN To follow the initiative taken by Indonesia with the cooperation and support of the CIDA in the workshops on managing potential conflicts in the south china sea held in Indonesia The suggestion of Professors Douglas Johnston and Mark Valencia, two eminent scholars on the Law of the Sea, to organize an international authority similar to the Treaty of Antarctic A treaty establishing the Spratly’s international authority would provide for peaceful transit of all vessels through superjacent waters. The authority could promote international cooperation in scientific research in cooperation with relevant international organizations as provided in the UNCLOS. Two factors to consider: the rigid position of China and Phil constitution art 12 par 2 because the kalayaan island group implies joint ownership. Philippines option to resolve the Chinese expansion in the Spratly’s Regional arrangements under the ASEAN initiative—China is not a member of the ASEAN but is usually invited to the summit meetings. The Philippines may also bring the matter to the attention of the UN security council. The difficulty with said option is the security council usually does not act unless the situation actually endangers international peace and security of nations. Assuming that the security council decides to take the case china can exercise veto power as a permanent member of the security council. The other option is to file the case in the ICJ. The creeping invasion of china involves the international responsibility of a state and is also a question of international law which are justiciable questions within the jurisdiction of the ICJ. The problem with the ICJ is that both parties must agree to submit the case to the court. The optional clause and reservations may be invoked by china.

The next option is to bring the matter to an arbitration body upon agreement by both states. The most feasible is to bring the case to the international tribunal of the law of the sea. Recently china manifested its willingness to settle the issue applying the provisions of the UN convention on the law of the sea. China is already a state party to the convention.

6.

Claim to Kalayaan by Arizala (p.15c) (AC)

Basis of RP Claim: x x x Uti Possidetis Juris and Occupation (p.7) What is Uti Possidetis? o It means literally, “As you possess, you shall continue to possess.” (citing Sovereignty over Certain Frontier Lands— Belgium/Netherlands) What is its origin? o The proceedings concerning the Award rendered by the King of Spain in 1891 where it stated that: “when Spanish colonies proclaimed their independence, they adopted the principle of constitutional and international law of which they gave the name ‘uti possidetis juris of 1810’ for the purpose of laying down the rule that the boundaries of the newly established republics should be the frontiers of the Spanish provinces which they were succeeding…establishing an absolute rule that in law no territory of the former Spanish America was without owners…These territories, although not occupied in fact, were by common agreement considered as being occupied in law by the new republics from the very beginning. ICJ in El Salvador –Honduras Boundary Dispute: o GR: TITLE > POSSESSION; As between the one possessing title (uti possidetis) or one having possession (effective control or administration), the one having title shall have preferential rights. EX: IF territory unclear, TITLE < POSSESSION; BUT, when the title does not indicate with exact precision the extent of territory claimed, effective control could help in proving ownership ICJ in Palau case: one having effective control or occupation has sovereignty over territory in the absence of clear title

B.

Airspace 1.

State Control of Airspace over the Territorial Sea and the Contiguous Zone (p. 16-17) (RK) th

Two conflicting theories of the 20 Century: o Freedom of the Air o National Sovereignty over the air Paris Convention (Oct 13, 1919) o Accepted the doctrine of national sovereignty over the air space 4

Article 1: “…every power has complete and exclusive sovereignty over the airspace above its territory…understood as…national territory…and the territorial waters adjacent thereto.” Chicago Convention 1944 o Same principle; contracting parties recognize that every state has complete and exclusive sovereignty over the air space above its territory. o Territory of state shall be deemed to the the land areas and territorial waters adjacent thereto..” Today however, there are some phases of sovereignty in the air space that still remain obscure. o Airspace over arctic region and territorial waters of state are difficult problems. o Chicago Convention had used the term “air space” without defining it. Is sovereignty limited to areas upward where air is present? o Do states have jurisdiction over areas where rockets fly? Professor John Cobb Cooper suggests a change in terminology to include such regions. o Recommends the term “Flight Space” Article 2 of Chicago convention likewise includes territorial waters adjacent to land o They refer to bodies of water that make up the territorial sphere of validity of a state, where one state to the exclusion of other states can carry out its coercive acts. They include the maritime belt and inland waters.

2.

Convention on International Civil Aviation Signed at Chicago on Dec. 7, 1944 (p. 17-18) (RK)

(c) No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof. (d) The contracting States undertake, when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of civil aircraft. Article 4 - Misuse of civil aviation Each contracting State agrees not to use civil aviation for any purpose inconsistent with the aims of this Convention. Chapter II - Flight over territory of Contracting States Article 5 - Right of non-scheduled flight Each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services shall have the right, subject to the observance of the terms of this Convention, to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission, and subject to the right of the State flown over to require landing. Each contracting State nevertheless reserves the right, for reasons of safety of flight, to require aircraft desiring to proceed over regions which are inaccessible or without adequate air navigation facilities to follow prescribed routes, or to obtain special permission for such flights. Such aircraft, if engaged in the carriage of passengers, cargo, or mail for remuneration or hire on other than scheduled international air services, shall also, subject to the provisions of Article 7, have the privilege of taking on or discharging passengers, cargo, or mail, subject to the right of any State where such embarkation or discharge takes place to impose such regulations, conditions or limitations as it may consider desirable.

Part I - Air navigation Chapter I - General Principles and Application of the Convention Article 1 - Sovereignty The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory. Article 2 - Territory For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State. Article 3 - Civil and state aircraft (a) This Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft. (b) Aircraft used in military, customs and police services shall be deemed to be state aircraft.

C.

International and Territorial Waters 1.

1982 Convention on the Law of the Sea (p. 18) (RK)

Article 2: Legal Stats of the territorial sea, of the air space over the territorial sea, and of its bed and subsoil 1. The sovereignty of a coastal State extends, beyond its Land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of seas, described as the territorial sea. 2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. 3. The sovereignty over the territorial seas is exercised subject to the Convention and to other rules of international law. Article 3: Breadth of territorial sea Every State has the right to establish the breadth of its territorial seas up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention. 5

2.

Fisheries Case, Judgment of Dec. 18, 1951, ICJ (p. 19-25) (RK)

TOPIC: Fishery Zone; Preferential Rights of Fishing in Adjacent Waters; Negotiations to Delimit the Rights and Interests of States TREATIES: Exchange of Notes of 1961 between U.K. and Iceland – regarding Iceland’s fishery limits Geneva Convention on the High Seas 1958 Resolution and 1960 joint amendment – concerning preferential rights Arrangement Relating to Fisheries in Waters Surrounding the Faroe Islandssigned in 1973 on behalf of Belgium, Denmark, France, Germany, Norway, Poland, and the UK Agreement on the Regulation of the Fishing of North-East Arctic (ArctoNorwegian) Cod – signed in 1974 on behalf of the UK, Norway, and the Union of Soviet Republics FACTS: The Government of Iceland promulgated Regulations in 1972, which established a zone of exclusive fisheries jurisdiction extending to 50 nautical miles from baselines around the coast of Iceland. The 1958 Convention on the Territorial Sea and the Contiguous Zone did not define the breadth of the territorial sea, but Article 24 of this Convention limits the contiguous zone to 12 miles “from the baseline from which the breadth of the territorial sea is measured”. The question of the breadth of the territorial sea and that of the extent of the coastal State’s fishery jurisdiction were referred to the Second Conference on the Law of the Sea in 1960. Furthermore, the question of the extent of the fisheries jurisdiction of the coastal State became gradually separated from the notion of the territorial sea. The 1960 Conference failed by one vote to adopt a text governing the two questions of the breadth of the territorial sea and the extent of fishery rights. Two concepts have crystallized as customary law from the general consensus at the Conference: o Fishery Zone – the area in which a State may claim exclusive fishery jurisdiction independently of its territorial sea; the extension of that fishery zone up to a 12-mile limit from the baselines appears now to be generally accepted. o Preferential Rights of Fishing in Adjacent Waters – in favour of the coastal State in a situation of special dependence on its coastal fisheries. The concept of a 12-mile fishery zone has been accepted with regard to Iceland in the substantive provisions of the 1961 Exchange of Notes, and the United Kingdom has also applied the same fishery limits to its own coastal waters since 1964. U.K. has also expressly recognized Iceland’s preferential rights in the undisputed waters and at the same time has invoked its own historic fishing rights, on the ground that reasonable regard must be had to such traditional rights by the coastal State in accordance with the generally

recognized principles embodied in Article 2 of the Geneva Convention on the High Seas Convention, which declares that “the high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty” and goes on to provide that freedom of the high seas comprises freedom of navigation and freedom of fishing. The freedoms of the high seas are however made subject to the consideration that they shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas. ISSUES: 1. Whether or not Iceland is entitled to claim preferential rights? YES 2. Whether or not it may unilaterally exclude the U.K. fishing vessels from all fishing activity in the waters beyond the limits agreed to in the 1961 Exchange of Notes? NO HELD/RATIO: Essentially, the Court held that: o Iceland is entitled to preferential rights o However, its legislation in 1972 was illegal; Iceland was not entitled unilaterally to exclude United Kingdom fishing vessels o The two governments were under mutual obligations to negotiate an equitable solution o The preferential rights of Iceland and the established rights of the U.K. as well as the interests of other States should be taken into account in the negotiations. There can be no doubt of the exceptional dependence of Iceland on its fisheries. That exceptional dependence was explicitly recognized by the U.K. in the Exchange of Notes of March 11, 1961. The preferential rights of the coastal State come into play only at the moment when an intensification in the exploitation of fishery resources makes it imperative to introduce some system of catch-limitation and sharing of those resources, to preserve the fish stocks in the interests of their rational and economic exploitation. This situation appears in the present case. The concept of preferential rights is not incompatible with the exclusion of all fishing activities of other States. A coastal State entitled to preferential rights is not free, unilaterally and according to its own uncontrolled discretion, to determine the extent of those rights. Accordingly, the fact that Iceland is entitled to claim preferential rights does not justify its claim to unilaterally exclude U.K. fishing vessels from all fishing activity in the waters. The provisions of the Icelandic Regulations of 1972 and the manner of their implementation disregard the fishing rights of UK. Iceland’s unilateral action thus constitutes an infringement of Article 2 of the 1958 Geneva Convention on the High Seas, which requires that all States, including coastal States, in exercising their freedom of fishing, pay reasonable regard to the interests of other States. The most appropriate method for the solution of the dispute is negotiation. Its objective should be the delimitation of the rights and interests of the Parties, 6

the preferential rights of the coastal State on the one hand, and the rights of the other State (i.e. UK) on the other, to balance and regulate equitably questions such as those of catch-limitation, share allocations and related restrictions concerning areas closed to fishing, number and type of vessels allowed and forms control of the agreed provisions. The obligation to negotiate flows form the very nature of the respective rights of the Parties and is in accordance with the provisions of the UN Charter concerning peaceful settlement of disputes.

3.

1982 Convention on the Law of the Sea (p. 25-26) (RK)

Article10 Bays 1. This article relates only to bays the coasts of which belong to a single State. 2. For the purposes of this Convention, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation. 3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water mark of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water area of the indentation. 4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two lowwater marks, and the waters enclosed thereby shall be considered as internal waters. 5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. 6. The foregoing provisions do not apply to so-called "historic" bays, or in any case where the system of straight baselines provided for in article 7 is applied. Article12 Roadsteads Roadsteads which are normally used for the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea.

Article15 Delimitation of the territorial sea between States with opposite or adjacent coasts Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith. SECTION 3. INNOCENT PASSAGE Article45 Innocent passage 1. The regime of innocent passage, in accordance with Part II, section 3, shall apply in straits used for international navigation: (a) excluded from the application of the regime of transit passage under article 38, paragraph 1; or (b) between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State. 2. There shall be no suspension of innocent passage through such straits. Article89 Invalidity of claims of sovereignty over the high seas No State may validly purport to subject any part of the high seas to its sovereignty.

4.

The Corfu Channel Case (p. 27-29) (RC)

Topic: Test for classification of a strait as a ‘highway’ for international navigation; Safe passage of vessels “passing innocently” Treaties: Generally accepted principles of international law that states innocent passage thru straits is a right recognized by int’l law. ICJ 1949 REP.4 Petitioner: United Kingdom of Britain Respondent: Albania ANTECEDENT FACTS: Greece and Albania are disputing territory along the Corfu Channel (not really discussed in case). Greek claims it because of historical and cultural significance. Albania claims it using baselines as their basis (from what I understood). Because of this Albania has been very uptight when it comes to passage thru the Channel May 1946, an Albanian battery fired at 2 British Cruisers (Orion and Superb). Firing ceased when the cruisers were out of range. Luckily neither ship was 7

damaged. This incident lead to an exchange of diplomatic notes. The conclusion of such exchange was: “North Corfu Strait may now be used by ships of your (UK) fleet, but only when essential and with armament in fore and aft position. If coastal guns fire at ships passing thru the strait, ships should fire back.” After the shooting incidents, Brit ships were discouraged from passing. No ships passed thru that area until…. FACTS OF CASE: October 1946, 2 cruisers (Maritius and Leander) and 2 destroyers (Saumarez and Volage) leaving the port of Corfu were passing thru the Strait. Saumarez hit a mine. Volage then proceeded to tow it, in the process it hit another mine. Both ships sustained heavy damage but Volage had managed to get them both back to the port of Corfu. The main issue of the case was whether or not Albania was liable for the damage and should compensate UK since it would have had knowledge of the placement or was even responsible for the placement of such mines. But Cande cut the case to only focus on the issue of… ISSUE/HELD: W/N the Corfu Strait qualifies as a channel for international navigation as it forms a route between to parts of the high seas? –YES. o This is important because if it is such a channel then vessels can pass thru, as long as its innocent passage, without having to get prior authorization from Albania. RATIO: Albania does not dispute that the North Corfu Channel is a strait in the geographical sense, but it denies that this channel belongs to the class of international highways trhu which a right of right exists on the grounds that it is only of secondary importance and not even a necessary route between 2 parts of the high seas and that it is used almost exclusively for local traffic. They claim that volume of traffic is most essential qualification But is it the opinion of the Court that the decisive criterion is its geographical situation as connecting 2 parts of the high seas and the fact of its being used for international navigation. Nor can it be decisive that this straight is not a necessary route since it links the Egean and Adriatic Seas. In regard to the volume, it was shown that 2,884 ships, over the course of 1 year 9 months, were registered with Albanian Customs in Corfu port as seeking passage. This is very high and does not account for ships that did not pass thru Customs. Further, UK has being using this route for 80 years. DISPOSITIVE: For these reasons the Court is unable to accept Albanian contention that the UK has violated Albanian sovereignty by sending the warships through the straight without having obtained previous authorization.

5.

Territorial Sea and Fishing Zone Act (p. 30-32) (RC)

Topic: definition of baseline, territorial sea and internal waters Treaty: NONE BASELINE Straight lines joining the consecutive geographical coordinates of points determined by the Governor in Council based on low tide elevations (which are naturally formed areas of land that are surrounded by and above water at low tide but are submerged at high tide) TERRITORIAL SEA Waters from the baseline to 12 nautical miles measured seaward and equidistant. INTERNAL WATERS Waters landward from the baseline FISHING ZONE Such areas adjacent to the Canadian coast as provided by the Governor in Council

6.

Fishing Zones of Canada (Zone 6) Order (p. 33) (RC)

***PLEASE READ P. 3-33. ITS TECHNICAL AND I CAN’T SUMMARIZE IT.

7.

Territorial Sea Geographical Coordinates Order (p. 33) (RC)

8.

Artic Waters and Canadian Sovereignty by McRae (p. 34-43) (RC)

Topic: drawing baselines for coastal and mid-ocean archipelagoes; effect of baselines on sovereignty Treaty: UNCLOS, Arctic Waters Pollution Prevention Act (Canadian legislation) 38 Int’l J. 476 (1983) (It’s unclear who are parties…. Not discussed in the materials) SUMMARY OF ARTICLE: Introduction: Canada passed the Arctic Waters Pollution Prevention Act that imposes sanctions on vessels passing thru those waters violating standards imposed by Canada to protect the ecology. The US protested to such measures, emphasizing questions on the extent of territorial sea, the exclusive economic zone, passage thru international straits and the outer limit of continental shelf. Article 234 of UNCLOS permits coastal states to adopt and enforce nondiscriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone. The Arctic Waters Act seeks to assert only the limited jurisdiction required to achieve the specific purpose of environmental protection, this is separate from the total bundle of jurisdiction that constitutes sovereignty. 8

On the UNCLOS, specifically ARTICLE 234: The Law of the Sea Convention consists of both a codification of existing rules of int’l law and progressive developments of new rules: o Existing rules – have the status of rules of int’l law whether or not the convention becomes a treaty in force (generally accepted principles) o Progressive Developments – depends upon the convention to become binding; Article 234 is one of these What is problematic about this Article is the ambiguity of the allowable exercise of jurisdiction over such ice-covered areas. Also raised was the issue of whether Canada was claiming sovereignty over the Arctic waters. On Canada’s “claim” over the Arctic waters Under international law, a state exercises absolute jurisdiction over its territorial waters subject only to the right of safe passage. This means that a state is oblige to provide innocent passage to foreign ships and cannot impose requirements that would deny or impair the right of innocent passage. Territorial waters can be established thru: o Historic title This is based on SECTOR THEORY which isn’t widely accepted. According to the sector theory, Canadian territory covers a sector formed by extending the existing boundaries, sea and land, in the east and west to the North Pole based on CONTIGUITY. But this is inadequate o Waters lying behind the baselines Traditionally in drawing baselines, you follow the low water mark along the sinuosities (curves) of the coast, crossing the mouths of rivers and bays that have relatively narrow entrances. This also applies to islands that lie off the coast. All waters behind this line are considered territorial waters. BUT! The Fisheries Case (between Norway and UK) upheld the validity of the straight baselines that do not follow the sinuosities and were drawn from point to point on its coast and to its offlying islands because of the particular geography of Norway. On the ramifications of the Fisheries Case How far can the application of the exception granted to Norway go? And how will this affect COASTAL ARCHIPELAGOS? o COASTAL ARCHIPELAGO – small islands lying off the mainland, as in this case. The use of straight baselines for coastal archipelagos arose from the Fisheries Case and was based on the relationship or closelink of the archipelago to the coastal mainland o Versus MID-OCEAN ARCHIPELAGO – what the Philippines is. The straight baselines have been applied to mid-ocean archipelagos since

they form a single political and economic unit. The 1982 Law of the Sea made straight baselines applicable to this kind of archipelago. Canada is saying that is a Coastal Archipelago with the islands in the Northern Passage/Arctic Waters The ‘close-link’ between the islands and mainland is being questioned because of the area of the water separating them. But according to the Fisheries Case, the ‘close-link’ is to be liberally construed. BUT THE MAIN CONCERN IS WHAT FOLLOWS… On the effect of allowing Canada to draw straight baselines EXPANDS THE COASTAL STATE’S JURISDICTION OVER WHAT WOULD HAVE BEEN HIGH SEAS o This concern was rendered practically inutile with the advent of the 200-mile exclusive economic zone. Because of this only a small part of the Canadian coastline is actually enhanced WILL IMPEDE NAVIGATION BY ENHANCING THE SREA OF INTERNAL WATERS AND THEREBY CLOSING OFF AREAS THRU WHICH OTHERWISE THERE WOULD BE A RIGHT OF SAFE PASSAGE o It is provided in the 1958 Convention on the Territorial Sea and Contiguous Zone that where the use of straight baselines has the effect of enclosing as internal waters areas previously regarded as territorial seas or high seas, a right of innocent passage remains in those waters. This also exists in the 1982 Law of the Sea and is taken to represent a position of generally accepted in customary int’l law. o This isn’t really a concern though because the waters involved have never been use for international navigation because they are frozen most of the time. o However, practice could eventually change this if the passage is going to used in the future. Until then… Canada is still ok doing this…

9.

The Northwest Passage in IL by Pharand (p. 44-52) (RC)

Topic: International Strait, Innocent passage Treaty: Law of the Sea Conference Definition of International Straight GEOGRAPHIC ELEMENT o Any narrow passage between land connecting two seas or large bodies of water o Not controlling… FUNCTIONAL ELEMENT OR USE o Used of international navigation o BRUEL TEST (made by Danish jurist, so only a suggestion) # of ships passing, total tonnage, value of cargo, average size of ships, # of Nations using o ICJ test in North Corfu Channel Case Gave importance to the geographic element.

9

Expounded that it was a “useful route for international maritime traffic” as seen in # of flags/Nations using and # of ships crossing (2,884) The 1958 Law of the Sea codified this 1940 decision, giving precedence to usage of the strait, hence the FUNCTIONAL USE Is the Northern Passage an International Strait? GEOGRAPHIC ELEMENT o It is squarely in the 12 mile territorial sea of Canada o Joins 2 parts of the high seas FUNCTIONAL ELEMENT/USE o So far only 18 crossings were made, all of which were EXPERIMENTAL and were done with the permission and consent of Canada. o Based on geography, there is definitely a POTENTIAL functional use, but there is as of yet, no actual use of the Northern Passage since it is iced over IT IS NOT AN INTERNATIONAL STRAIGHT Is the Right of Innocen Passage Applicable? Innocent passage applies to territorial seas. An exception would be newly enclosed internal waters that were previously subject to right of innocent passage. Right of innocent passage may be suspended when it is for the protection of nation’s o Exception: immunity afforded to warships and submarines submerged Conclusions: 1. The Northwest Passage is a legal straight and the right of innocent passage applies 2. It is not an international straight since it has never been used for international navigation as such, right of innocent passage may be suspended 3. If it becomes an international straight, the right of innocent passage can no longer be suspended 4. But Canada will retain the right to establish and enforce regulations for the prevention of marine pollution

10. 1982 Convention on the Law of the Sea (p. 52a-b) (JG)

1.

Article 76 Definition of the Continental Shelf The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory o to the outer edge of the continental margin, or o to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured

2. 3.

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7.

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where the outer edge of the continental margin does not extend up to that distance. The continental shelf of a coastal State shall not extend beyond the limits provided for in paragraphs 4 to 6. The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof. (a) The coastal State shall establish the outer edge of the continental margin extending beyond 200 nautical miles from the baselines, by either: (i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or (ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope. (b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient as its base. The fixed points comprising the line of the outer limits of the continental shelf on the sea-bed, drawn in accordance with paragraph 4(a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured, or shall not exceed 100 nautical miles from the 2,500 metre isobaths, which is a line connecting the depth of 2,500 metres. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin o such as its plateau, rises, caps, banks, and spurs The coastal State shall delineate the outer limits of its continental shelf o where that shelf extends beyond 200 nautical miles from the baselines o by straight lines not exceeding 60 nautical miles in length connecting fixed points defined by co-ordinates of latitude and longitude. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II 10

o on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States o on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations o shall be final and binding. 9. The coastal State shall deposit with the Secretary-General of the United Nations o charts and relevant information including geodetic data permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto. 10. The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.

JURISDICTION OVER ADJACENT MARITIME SEAS A.

Continental Shelf 1.

North Sea Continental Shelf Case (p. 53-57) (JG)

North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands) 8 Int’l. Leg. Mat. 340 1969, International Court of Justice TOPIC: Jurisdiction Over Adjacent Maritime Seas; Continental Shelf Petitioner: Federal Republic of Germany Respondents: Denmark and Netherlands FACTS: (copied from previous digest by RC) Germany, Denmark and the Netherlands had made lateral line agreements delimiting the North Sea continental shelves. Denmark and the Netherlands said that the equidistant-special circumstances principle in Article 6(2) of Geneva Convention applied. By applying this, Germany will have a smaller portion. Germany argued that the doctrine of just and equitable share applied. ICJ ruled against Germany. But also stated that the equidistant rule was only customary international law that was not crystallized by the Geneva Convention.

ISSUE/HELD: Whether or not the equidistant principle is necessary in the field of delimitation of the accepted doctrine of the exclusive appurtenance of the continental shelf to the nearby coastal State, and therefore having a priori character to juristic inevitability. - NO N.B. a priori means relating to reasoning or knowledge that proceeds from theoretical deduction RATIO: The doctrine of just and equitable share appears to be wholly inconsistent with what the Court considers as the most fundamental of all the rules of law relating to the continental shelf o that the rights of the coastal State in respect of the area of the continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources o in short, there is an inherent right. In order to exercise it, no special legal process has to be gone through. o The right does not depend on its being exercised It is ‘exclusive’ in the sense that if the coastal State does not choose to explore or exploit the areas of the shelf appertaining to it, that is its own affair, but no one else may also do it without its express consent. The equidistant-special circumstances rule, as maintained by Denmark and the Netherlands, should govern, because o The use of this method is not in the nature of a merely conventional obligation, but is part of a corpus of general international law, which is binding on the Federal Republic of Germany automatically and independently of any special assent, direct or indirect, given by the latter. o This involves both a positive law and a more fundamentalist aspect As a matter of positive law, it is based on the work done by the international legal bodies, on State practice, and on the influence attributed to the Geneva Convention itself. These various factors have cumulatively evidenced of the opinion juris sive necessitates, requisite for the formation of new rules of customary international law. In its fundamentalist aspect, the view is based on the natural law of the continental shelf, in the sense that the equidistant principle is seen as a necessary expression in the field of delimitation of the accepted doctrine of the exclusive appurtenance of the continental shelf to the nearby coastal State, and therefore as having an a priori character to juristic inevitability. The a priori argument starts from the position that the right of the coastal State in its continental shelf area is based on its sovereignty over the land domain, of which the shelf area is the natural prolongation into and under 11

the sea. The Court accepts that the coastal State’s rights exist ipso facto and ab initio without any question of there having to be made a good claim to the area concerned, or of any apportionment of the continental shelf between different States. Denmark and the Netherlands claim that the test of appurtenance must be “closer proximity”, all those parts of the shelf being considered as appurtenant to a particular coastal State which are (but only if they are) closer to it than they are to any point on the coast of another State. o However, the Court said that there seems to be no necessary and no complete identity between the notions of adjacency and proximity; and therefore the question of which parts of the continental shelf “adjacent to” a coastline bordering more than one State fall within the appurtenance of which of them, remains an open one, not to be determined exclusively on the basis of proximity. What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion – in the sense that although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea. o Whenever a given submarine area does not constitute a natural extension of the land territory of a coastal State, even though that area may be closer to it than it I to the territory of any other State, it cannot be regarded as appertaining to that State. In the present case, although both sides relied on the prolongation principle and regarded it as fundamental, they interpreted it quite differently. Both interpretations appear to the Court to be incorrect o Denmark and the Netherlands identified natural prolongation with closest proximity and argued that it called for an equidistance line o The Federal Republic seemed to think it implied the notion of just and equitable share, although the connection is distinctly remote. As regards equidistance, it clearly cannot be identified with natural prolongation or extension, since the method would frequently cause areas which are the natural prolongation or extension of the territory of one State to be attributed to another, when the configuration of the latter’s coast makes the equidistance line swing out laterally across the former’s coastal front, cutting it off from areas situated directly before that front. o In the Norwegian Trough case, the Court held that the shelf areas in the North Sea separated from the Norwegian coast by the 80-100 kilometers of the Trough cannot in any physical sense be said to be adjacent to it, nor to be its natural prolongation. The conclusion drawn by the Court is that the notion of equidistance as being logically necessary, in the sense of being an inescapable a priori accompaniment of basic continental shelf doctrine, is incorrect. o The Court cannot accept the view that there is a rule of law ascribing certain areas to a State as a matter of inherent and original right, without also admitting the existence of some rule by which those areas can be obligatorily delimited.

2.

1982 Convention on the Law of the Sea (p. 58) (JG)

Article 234 Ice-covered Areas Coastal States have the right to adopt and enforce non-discriminatory laws and regulations o for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. o Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.

3.

Gulf Maine Case (p. 58(1)-(2)) (JG)

Gulf of Maine Case (Canada/U.S.A.) 1984 I.C.J. Rep. 246 TOPIC: Jurisdiction Over Adjacent Maritime Seas; Continental Shelf Petitioner: Canada Respondent: U.S.A. FACTS: Although both Parties had more disagreements, they agreed that: o the “rules and principles of international law” should govern maritime delimitations. o They were at one in believing in the existence of a “fundamental norm” of international law. This norm must apply to any delimitation and a fortiori (with stronger reason) to the drawing of a single maritime boundary like that sought in the Gulf of Maine area. According to Canada’s definition, the fundamental norm requires that this course be “determined according to the applicable law, in conformity with equitable principles, having regard to all relevant circumstances in order to achieve an equitable result.” The United States stated explicitly that it also believed that delimitation should be effected on the basis of the applicable principles and rules of international law. The common conclusion of the Parties as to the fundamental norm governing the question of maritime delimitations seems to be closely related to international case law and the Third Conference on the Law of the Sea.

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o

ISSUE: Whether or not the mere natural fact of adjacency of a shelf or zone produces legal effect, which could be a basis for a title conferred on the State - NO

It signifies that greater importance must be attributed to elements such as distance from the coast, which are common to both concepts. For Malta, the reference to distance in Article 76 of the 1982 Convention represents a consecration of the ‘distance principle’. For Libya, only the reference to natural prolongation corresponds to customary international law. It is the Court’s view that the institution of the exclusive economic zone is shown by the practice of States to have become a part of customary law. Although the institutions of the continental shelf and the exclusive zone are different and distinct, the rights which the exclusive economic zone entails over the sea-bed of the zone are defined by reference to the regime laid down for the continental shelf. o Although there can be a continental shelf where there is no exclusive economic zone, there cannot be an exclusive economic one without a corresponding continental shelf. It follows that, for juridical and practical reasons, the distance criterion must now apply to the continental shelf as well as to the exclusive economic zone. o This is not to suggest that the idea of natural prolongation is now superseded by that of distance. o What it does mean is that where the continental margin does not extend as far as 200 miles from the shore, natural prolongation is in part defined by distance from the shore, irrespective of the physical nature of the intervening sea-bed and subsoil. o The concepts of natural prolongation and distance are therefore not opposed but complementary; and both remain essential elements in the juridical concept of the continental shelf. Thus, the Court is unable to accept the Libyan contention that distance from the coast is not a relevant element for the decision of the present case.

HELD: Canada concentrated its efforts on deducing these other rules of maritime delimitation from the concept of geographic adjacency, since it was convinced that this concept constituted the basis of the title of the coastal State to the partial extension of its jurisdiction to the continental shelf and the waters of which it formed the bed Regarding adjacency, the Chamber acknowledges that in most cases this concept can be related with the ability to express the link between a State’s sovereignty and its sovereign rights to adjacent submerged land. It should not be forgotten, however, that “legal title” to certain maritime or submarine areas is always and exclusively the effect of a legal operation. That boundary results from a rule of law, and not from any intrinsic merit in the purely physical fact. In the Chamber’s opinion, it is therefore correct to say that international law confers on the coastal State a legal title to an adjacent continental shelf or to a maritime zone adjacent to its coasts; it would not be correct to say that international law recognizes the title conferred on the State by the adjacency of that shelf or that zone as if the mere natural fact of adjacency produced legal consequences. The Court in the North Sea Continental Shelf cases refused to imply any fundamental or inherent rule, the ultimate effect of which would be to prohibit any State (otherwise than by agreement) from exercising continental shelf rights in respect of areas closer to the coast of another State. o At that time, the Court stressed that the submarine areas appertaining to the coastal State were not always those closest to its coasts.

4.

Libya/Malta Continental Shelf Case (p. 58(2)-(3)) (JG)

Libya/Malta Continental Shelf Case 1985 I.C.J. Rep. 13 Topic: Jurisdiction Over Adjacent Maritime Seas; Continental Shelf Petitioner: Libya Respondent: Malta The two institutions demonstrated by the 1982 Convention – the continental shelf and exclusive economic zone – are linked together in modern law. o Since the rights enjoyed by a State over its continental shelf would also be possessed by it over the sea-bed and subsoil of any exclusive economic zone which it might proclaim, one of the relevant circumstances to be taken into account for the delimitation of the continental shelf of a State is the legally permissible extent of the exclusive economic zone appertaining to that same State.

5.

1982 Convention on the Law of Seas (p. 58(3)) (JG) Article 234 Ice-covered Areas

Coastal States have the right to adopt and enforce non-discriminatory laws and regulations o for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. o Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence. 13

B.

Exclusive Economic Zone 1.

Fisheries Jurisdiction (p. 59-75) (CG)

UK VS. ICELAND, 1974 Facts: In 1948, the Althing (the Parliament of Iceland) passed a law entitled “Law concerning the Scientific Conservation of the Continental Shelf Fisheries” containing the following: o Ministry of Fisheries shall issue regulations establishing explicitly bounded conservation zones within the limits of the continental shelf of Iceland; wherein all fisheries shall be subject to Icelandic rules and control o Regulations promulgated shall be to the extent compatible with agreements with other countries to which Iceland is or may become a party As explained by the Icelandic Government in its expose des motifs, such law was passed because of Iceland’s dependency on fishing in the vicinity of its coasts, and that measures to protect fisheries ought to be extended in proportion to the growing efficiency of fishing equipment In view of this, Iceland gave notice to its denunciation of the Anglo-Danish Convention, which applied to fisheries in the waters around Iceland and established a 3-mile limit for the exclusive right of fishery, under its own right of termination with a 2-yr prior notice In 1952, Iceland informed UK of its intention to issue new fishery regulations in accordance with the 1948 Law, which provides for a fishery zone whose outer limit was to be a line drawn 4 miles to seaward of straight baselines traced along the outermost points of the coasts, islands and rocks and across the opening of bays, and prohibiting all foreign fishing activities within that zone The 1952 Fisheries Regulation met with protests from the UK After various attempts to resolve the dispute, a modus vivendi was reached in 1956 under which there was to be no further extension of Iceland’s fishery limits pending discussion by the UN GA This discussion resulted in the convening at Geneva in 1948 of the first UNCLOS The 1958 Conference also failed to reach an agreement, and instead adopted a nd resolution requesting the GA to study the advisability of convening a 2 Law of the Sea Conference After the conclusion of the 1958 Conference, Iceland made a preliminary announcement of its intention to reserve the right of fishing within an area of 12 nautical miles from the baselines exclusively to Icelandic fishermen, and to extend the fishing zone also by modification of the baselines UK did not accept the validity of the new Regulations, and its fishing vessels continued to fish inside the 12-mile limit, and thus disputes arose The Althing issued a resolution stressing that the 12-mile limit asserted that recognition should be obtained of Iceland’s right to the entire continental shelf area in conformity with the policy adopted by the Law of 1948. It even said that it was merely a further step in Iceland’s progress towards its objective of a fishery zone extending over the whole of the continental shelf area nd After the 2 UNCLOS, Iceland and UK embarked on a series of negotiations

Proposals were submitted concerning preferential rights A settlement was reached, which set out: o UK would no longer object to a 12-mile fishery zone around Iceland measured from the baselines accepted solely for the purpose of delimitation of that zone o For 3 years, Iceland would not object to UK vessels fishing within certain specified areas and during certain stated months of the year o During that 3-year period, however, UK vessels would not fish within the outer 6 miles of the 12-mile zone in 7 specified areas o Iceland will continue to work for the implementation of the Althing Resolution of 1959, but shall give UK 6 months prior notice, and in case of disputes, the matter shall be referred to the ICJ In 1971, Iceland issued a policy statement which says that an extension of fisheries st jurisdiction to 50 nautical miles from base lines be effective not later than 1 of Sept 1972 This led UK to emphasize that the Exchange of Notes was not open to unilateral denunciation or termination. It said that “such an extension of the fishery zone around Iceland would have no basis in international law” UK expressed its readiness to negotiate any arrangements for the limitation of catches that scientific evidence might show to be necessary, and in which any preferential requirements of the coastal state resulting from its dependence on fisheries would be recognized. It further proposed that pending the arrangement, to limit its annual catch of demersal fish in Icelandic Waters to 185,000 tons The Icelandic Government was not, however, prepared to negotiate further on this basis This prompted UK to submit the case before the Court. The Court issued provisional measures for Iceland to refrain from taking any measures to enforce the Regulations and for UK to limit the annual catch of its vessels At first, Iceland refused to recognize the binding effect of the provisional remedies of the Court because of its lack of jurisdiction over it. But the Court said that the delimitation of sea areas has always an international aspect. st nd The 1 and 2 UNCLOS failed to adopt a text governing the questions of the breadth of territorial sea and the extent of fishery rights. But two concepts have nd crystallized through customary law after the 2 UNCLOS. First is the concept of fishery zone, the area in which a State may claim exclusive fishery jurisdiction. Second, the concept of preferential rights of fishing in adjacent waters in favor of the coastal state. Issues: a. WON the claim by Iceland to be entitled to a zone of exclusive fisheries jurisdiction extending 50 nautical miles from baselines around the coast of Iceland is without foundation in international law and is invalid - YES b. WON Iceland is entitled unilaterally to assert an exclusive fisheries jurisdiction beyond the limits agreed to in the Exchange of Notes of 1961 - NO c. WON Iceland is not entitled unilaterally to exclude British fishing vessels from the area of the high seas beyond the limits agreed to in the Exchange of Notes in 1961 or unilaterally to impose restrictions on the activities of such vessels in that area NO 14

d.

WON Iceland and UK are under a duty to examine together in good faith the existence and extent of that need and to negotiate for the establishment of such a regime for the fisheries of the area - YES

Ruling: Preferential Rights for the Coastal State The coastal State had the faculty of claiming preferential fishing rights in any area of the high seas adjacent to its exclusive fishing zone when it is scientifically established that a special situation or condition and makes the exploitation of the living resources of the high seas on that area of fundamental importance to the economic development of the coastal State or the feeding of its population Special conditions are defined as (1) the fisheries and the economic development of the coastal state are so manifestly interrelated that, in consequence, that State is greatly dependent on the living resources of the high seas; or (2) it becomes necessary to limit the total catch of a stock or stocks of fish in such areas This will be implemented by agreement between the States concerned, either bilateral or multilateral, and, in case of disagreement, through the means for the peaceful settlement of disputes provided for in Art 33 of the UN Charter There can be no doubt of exceptional dependence of Iceland on its fisheries The preferential rights of the coastal State come into play only at the moment when an intensification in the exploitation of fishery resources makes it imperative to introduce some System of catch-limitation and sharing of those resources, to preserve the fish stocks in the interests of their rational and economic exploitation Discussion of Issues (a) to (c) The concept of preferential rights is not compatible with the exclusion of all fishing activities of other States A coastal State entitled to preferential rights is not free, unilaterally and according to its own uncontrolled discretion, to determine the extent of those rights It only implies a certain priority, but cannot imply the extinction of the concurrent rights of other States, which are also engaged in fishing in the waters in question The fact that Iceland is entitled to preferential rights does not suffice to justify its claim unilaterally to exclude UK’s fishing vessels from all activity in the waters beyond the limits agreed to in the 1961 Exchange of Notes UK also established their dependence on the Icelandic waters for centuries and proved that the waters in question constitute the most important of the Applicant’s distant-water fishing grounds for demersal species A coastal State’s exceptional dependence on fisheries may relate not only to the livelihood of its people but to its economic development as well If UK would be deprived access to those waters, the UK vessels would be diverted at economic levels to other fishing grounds in the North Atlantic and it would have very serious adverse consequences Even Iceland acknowledges the existence of the interests of UK since time immemorial Iceland’s unilateral action constitutes an infringement of the principle enshrined in Article 2 of the 1958 Geneva Convention on the High Seas which requires that all States, including coastal States, in exercising their freedom of fishing, pay reasonable regard to the interests of other States

It’s necessary that the preferential fishing rights of Iceland, as a State specially dependent on coastal fisheries, be reconciled with the traditional fishing rights of UK The preferential rights of the coastal State and the established rights of other States were considered as, in principle, continuing to co-exist Preferential right is not an absolute one. It is limited according to the extent of its special dependence on the fisheries and by its obligations to take account of the rights of other States and the needs of conservation Both parties have the obligation to keep under review the fishery resources in the disputed waters and to examine together, the measures required for the conservation and development, and equitable exploitation, of those resources, taking into account any international agreement in force between them Issue (d) Most appropriate method for the solution of the dispute is clearly that of negotiation Its objective should be delimitation of the rights and interests of the parties, the preferential rights of the coastal State and the rights of UK, to balance and regulate equitably questions such as those of catch-limitation, share allocations and “related restrictions” It need detailed scientific knowledge of the fishing grounds Negotiations are required in order to define or delimit the extent of those rights It is not a matter of finding simply an equitable solution, but an equitable solution derived from the applicable law

2.

1982 Convention on the Law of the Sea (p. 75) (JG) Article 55 Specific legal regime of the exclusive economic zone

The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. Article 56 Rights, jurisdiction and duties of the coastal State in the exclusive economic zone 1. In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: 15

(i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment;

cooperative arrangements, to furnish, upon the request of that State, information as to whether it is proceeding to a State of the same region participating in such cooperative arrangements and, if so, to indicate whether it complies with the port entry requirements of that State. This article is without prejudice to the continued exercise by a vessel of its right of innocent passage or to the application of article 25, paragraph 2.

(c) other rights and duties provided for in this Convention. 2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention. 3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI. Article 57 Breadth of the exclusive economic zone The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

3.

1982 Convention on the Law of the Sea (p. 93-94) (JG Article 211 Pollution from vessels

1. States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, in the same manner, wherever appropriate, of routeing systems designed to minimize the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal States. Such rules and standards shall, in the same manner, be re-examined from time to time as necessary. 2. States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference. 3. States which establish particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters or for a call at their off-shore terminals shall give due publicity to such requirements and shall communicate them to the competent international organization. Whenever such requirements are established in identical form by two or more coastal States in an endeavour to harmonize policy, the communication shall indicate which States are participating in such cooperative arrangements. Every State shall require the master of a vessel flying its flag or of its registry, when navigating within the territorial sea of a State participating in such

4. Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations shall, in accordance with Part II, section 3, not hamper innocent passage of foreign vessels. 5. Coastal States, for the purpose of enforcement as provided for in section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference. 6. (a) Where the international rules and standards referred to in paragraph 1 are inadequate to meet special circumstances and coastal States have reasonable grounds for believing that a particular, clearly defined area of their respective exclusive economic zones is an area where the adoption of special mandatory measures for the prevention of pollution from vessels is required for recognized technical reasons in relation to its oceanographical and ecological conditions, as well as its utilization or the protection of its resources and the particular character of its traffic, the coastal States, after appropriate consultations through the competent international organization with any other States concerned, may, for that area, direct a communication to that organization, submitting scientific and technical evidence in support and information on necessary reception facilities. Within 12 months after receiving such a communication, the organization shall determine whether the conditions in that area correspond to the requirements set out above. If the organization so determines, the coastal States may, for that area, adopt laws and regulations for the prevention, reduction and control of pollution from vessels implementing such international rules and standards or navigational practices as are made applicable, through the organization, for special areas. These laws and regulations shall not become applicable to foreign vessels until 15 months after the submission of the communication to the organization. (b) The coastal States shall publish the limits of any such particular, clearly defined area. (c) If the coastal States intend to adopt additional laws and regulations for the same area for the prevention, reduction and control of pollution from vessels, they shall, when submitting the aforesaid communication, at the same time notify the organization thereof. Such additional laws and regulations may relate to discharges or navigational practices but shall not require foreign vessels to observe design, construction, manning or equipment standards other than generally accepted international rules and standards; they shall become applicable to foreign vessels 15 months after the submission of the communication to the organization, provided that the organization agrees within 12 months after the submission of the communication. 16

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7. The international rules and standards referred to in this article should include inter alia those relating to prompt notification to coastal States, whose coastline or related interests may be affected by incidents, including maritime casualties, which involve discharges or probability of discharges.

Demons was sentenced with 80 days of imprisonment and a fine of 72 pounds o Hassan Bey’s was sentenced with a more severe penalty (not specified). o Note: the decision was not yet final and executory. The French Government protested against the arrest of Lt. Demons or had a view that the case should be transferred to the French Courts. As a result, the parties opted to submit the matter to the ICJ for resolution. France now contends that Turkey has no jurisdiction to try the case. o Further, it argues that breaches of navigation regulations fall exclusively within the jurisdiction of the State under whose flag the vessel sails (so dapat daw sa France).

Article123 Cooperation of States bordering enclosed or semi-enclosed seas States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization: (a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article.

JURISDICTION OVER PERSONS AND ECONOMIC ACTIVITY A.

Criminal Jurisdiction 1.

The SS Lotus Case (p. 95-105) (RL)

TOPIC: Jurisdiction over crimes that occurred in High Seas 1920 Petitioner: French Government Respondents: Turkish Government FACTS: Before 12mn of Aug. 2, 1926, a collision occurred between the French steamer “LOTUS” on its way to Constantinople and the Turkish collier “BOS-KOURT”. The latter ship was cut into two, sank and 8 Turkish Nationals on board perished. The survivors were rescued and the Lotus proceeded to its destination (Constantinople, Turkey). Upon arrival, Lieutenant Demons (of Lotus) and Capt. Hassan Bey (of BosKourt), who were both the officers of the watch of their respective ships at the time of the collision, were arrested and tried for, and subsequently convicted of involuntary manslaughter. (all of these were done in Turkey, invoking the Turkish law)

ISSUES/HELD: W/N Turkey has jurisdiction to try the criminal case—YES, Turkey has jurisdiction. There is nothing in IL that prohibits Turkey from assuming jurisdiction to try the case. RATIO: France claims that there is a need for Turkey to point to some title to jurisdiction recognized by IL in favor of the latter. Turkey, on the other hand, argues that Art. 15 of the Convention of Lausanne allows it jurisdiction whenever such jurisdiction does not come into conflict with a principle of IL. o The ICJ agrees with Turkey. IL imposes a restriction upon a State to exercise its power in any form in the territory of another State if there is no permissive rule, which would otherwise allow it to do so. o This means that jurisdiction is territorial and that it cannot be exercised by a State outside its territory. o However, it does not follow that IL prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken abroad, and in which it cannot rely on some permissive rule of IL. o As such, if there is no prohibitive rule that exists, States have the discretion to try such cases. o Turkey need not prove to France that there is a principle of IL that exists, which would allow it to exercise jurisdiction over the matter. Further, while it is true that—apart from certain special cases which are defined by IL—vessels on the high seas are subject to no authority except that of the States whose flag they fly, it does not follow that a State can never on its own territory exercise jurisdiction over acts which have occurred on board a foreign ship on high seas. o What occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the State whose flag the ship flies. o If therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in a foreign territory, the same principles must be applied as if the territories of two different states were concerned. 17

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However, there is no rule of IL in regard to collision cases to the effect that criminal proceedings are exclusively w/in the jurisdiction of the State whose flag is flown. The offence for which Lt. Demons appears to have been prosecuted was an act having its origin on board the Lotus, while the effects made themselves felt on board the Boz-Kourt. o These two elements are, legally, entirely inseparable, so much so that their separation renders the offence non-existent. o Hence, it is but natural that either country should be able to exercise jurisdiction and to do so in respect of the whole. o Turkey and France have concurrent jurisdiction over the case.

2.

In this case, the crimes dealt with are not crimes under Israel law alone, but are in essence offences against the law of nations. The case also reiterated that the UNGA has already passed a resolution declaring genocide to be a crime against the law of nations, and has been consistently reaffirmed by the UN. As such, one who commits genocide, which is a crime against the law of nations, becomes a hostis humani generis (enemy to all mankind) and places himself beyond the protection of any state. It follows then that under the principles of IL, the jurisdiction to try such crimes is universal. Hence, Israel has the jurisdiction to try Eichmann for the crime he has committed.

The Attorney General of Israel v. Eichmann (p, 106-110) (RL)

TOPIC: Genocide as a crime against the law of nations; Hostis Humani Generis; Universal jurisdiction 1962 Petitioner: Government of Israel through its Atty. General Respondent: Eichmann FACTS: (Not in McRae) Eichmann, a high-ranking general of Hitler, played a central role in the persecution of the Jews in WWII. He escaped to Argentina after the war and was abducted by Israeli agents. He was then tried before a court in Israel for the crimes he allegedly committed, particularly that of genocide. Counsel of Eichmann now assails the jurisdiction of the Israeli Court on the ground that there was no wrong done to the State of Israel. ISSUES/HELD: W/N Israel has jurisdiction to try the case even if the crime was committed elsewhere?—YES. The jurisdiction to try crimes under IL is universal. RATIO: (Note: The excerpt in McRae is more of the development on how genocide was considered as a crime under IL, which gave a universal jurisdiction to States to try such cases) Grotis (Father of IL) raised the question of one’s right to punish. o It is the moral duty of every state to enforce the natural right to punish, possessed by victims of the crime whoever they may be, against criminal whose acts have “violated in extreme form the law of nature or the law of nations.” o This laid the foundations for the future definition of the crime against humanity as a crime under the law of nations and to universal jurisdiction in such crimes. Hyde (another author) said that: “in order to justify the criminal prosecution by a State of an alien on account of an act committed and consummated by him in a place outside of its territory… it needs to be established that there is a close and definite connection between the act and the prosecutor on which is commonly acknowledged to excuse the exercise of jurisdiction.”

3.

Princeton Principles on Universal Jurisdiction (p. 154a) (NO)

Principle 1 -- Fundamentals of Universal Jurisdiction 1. For purposes of these Principles, universal jurisdiction is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction. 2. May be exercised by a competent and ordinary judicial body of any state in order to try a person duly accused of committing serious crimes under international law as specified in Principle 2(1). 3. A state may rely on this principle as basis for extradition of a person accused or convicted of committing a serious crime under international law specified in Principle 2(1), provided that it has established a prima facie case of the person's guilt and it will be tried or the punishment carried out in accordance with international norms and standards. 4. In exercising or in relying upon universal jurisdiction as a basis for seeking extradition, a state and its judicial organs shall observe international due process norms including but not limited to those involving the rights of the accused and victims, the fairness of the proceedings, and the independence and impartiality of the judiciary (hereinafter referred to as "international due process norms").

Principle 2 -- Serious Crimes Under International Law 1. For purposes of these Principles, serious crimes under international law include: (1) piracy; (2) slavery; (3) war crimes; (4) crimes against peace; (5) crimes against humanity; (6) genocide; and (7) torture. 2. Without prejudice to the application of universal jurisdiction to other crimes under international law. 18

Principle 3 -- Reliance on Universal Jurisdiction in the Absence of National Legislation

(b) the place of commission of the crime;

With respect to serious crimes under international law as specified in Principle 2(1), national judicial organs may rely on universal jurisdiction even if their national legislation does not specifically provide for it.

(c) the nationality connection of the alleged perpetrator to the requesting state; (d) the nationality connection of the victim to the requesting state;

Principle 4 -- Obligation to Support Accountability 1. A state shall comply with all international obligations that are applicable to: prosecuting or extraditing persons in accordance with a legal process that complies with international due process norms, providing other states investigating or prosecuting, and under-taking such other necessary and appropriate measures as are consistent with international norms and standards.

(e) any other connection between the requesting state and the alleged perpetrator, the crime, or the victim; (f) the likelihood, good faith, and effectiveness of the prosecution in the requesting state;

2. A state, in the exercise of universal jurisdiction, may, for purposes of prosecution, seek judicial assistance to obtain evidence from another state, provided that the requesting state has a good faith basis and that the evidence sought will be used in accordance with international due process norms.

(g) the fairness and impartiality of the proceedings in the requesting state;

Principle 5 -- Immunities

(i) the interests of justice.

With respect to serious crimes under international law, the official position of any accused person, whether as head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment. Principle 6 -- Statutes of Limitations Statutes of limitations or other forms of prescription shall not apply to aerious crimes specified in Principle 2(1). Principle 7 -- Amnesties 1. Amnesties are generally inconsistent with the obligation of states to provide accountability for crimes specified in Principle in 2(1). 2. The exercise of universal jurisdiction with respect to serious crimes under international law as specified in Principle 2(1) shall not be precluded by amnesties which are incompatible with the international legal obligations of the granting state. Principle 8 -- Resolution of Competing National Jurisdictions Where more than one state has or may assert jurisdiction over a person and where the state that has custody of the person has no basis for jurisdiction other than the principle of universality, that state or its judicial organs shall, in deciding whether to prosecute or extradite, base their decision on an aggregate balance of the following criteria: (a) multilateral or bilateral treaty obligations;

(h) convenience to the parties and witnesses, as well as the availability of evidence in the requesting state; and

Principle 9 -- Non Bis In Idem/ Double Jeopardy 1. In the exercise of universal jurisdiction, a state shall ensure that a person who is subject to criminal proceedings shall not be exposed to multiple prosecutions or punishment for the same criminal conduct where the prior criminal proceedings or other accountability proceedings have been conducted in good faith and in accordance with international norms and standards. Sham prosecutions or derisory punishment resulting from a conviction or other accountability proceedings shall not be recognized as falling within the scope of this Principle. 2. A state shall recognize the validity of a proper exercise of universal jurisdiction by another state and shall recognize the final judgment of a competent and ordinary national judicial body. 3. Any person tried or convicted by a state exercising universal jurisdiction for serious crimes specified in Principle 2(1) shall have the right and legal standing to raise before any national or international judicial body the claim of non bis in idem in opposition to any further criminal proceedings. Principle 10 -- Grounds for Refusal of Extradition 1. A state or its judicial organs shall refuse to entertain a request for extradition if the person sought is likely to face a death penalty sentence or to be subjected to torture or any other cruel, degrading, or inhuman punishment or treatment, or if it is likely that the person sought will be subjected to sham proceedings in which international due process norms will be violated and no satisfactory assurances to the contrary are provided. 19

It must noted that there are considerable variations in the extradition arrangements with various countries. o These treaties between countries provide for the more formal procedural requirements. o However, these treaties have been by-passed nowadays to conform with less formal style of present day diplomacy. o Some of the non-formal aspects of extradition procedures have been ledt to be worked out on a practical level—given that time is of the essence in such cases and the workings of the treaties should not be impaired by fixed or cumbersome rules. The judicial proceedings for determining whether the evidence to apprehend or surrender a fugitive is sufficient are governed by the domestic law of each country, which may vary from state to state.

2. A state which refuses to extradite on the basis of this Principle shall, when permitted by international law, prosecute the individual accused of a serious crime or extradite such person to another state where this can be done without exposing him or her to the risks referred to in paragraph 1. Principle 11 -- Adoption of National Legislation A state shall, where necessary, enact national legislation to enable the exercise of universal jurisdiction and the enforcement of these Principles. Principle 12 -- Inclusion of Universal Jurisdiction in Future Treaties In all future treaties, and in protocols, concerned with serious crimes under international law, states shall include provisions for universal jurisdiction. Principle 13 -- Strengthening Accountability and Universal Jurisdiction 1. National judicial organs shall construe national law in a manner that is consistent with these Principles. 2. Nothing in these Principles shall be construed to limit the rights and obligations of a state to prevent or punish, by lawful means recognized under international law, the commission of crimes under international law. 3. These Principles shall not be construed as limiting the continued development of universal jurisdiction in international law. Principle 14 -- Settlement of Disputes 1. Consistent with international law and the Charter of the United Nations, states should settle their disputes arising out of the exercise of universal jurisdiction by all available means of peaceful settlement of disputes and in particular by submitting the dispute to the International Court of Justice. 2. Pending the determination of the issue in dispute, a state seeking to exercise universal jurisdiction shall not detain the accused person nor seek to have that person detained by another state unless there is a reasonable risk of flight and no other reasonable means can be found to ensure that person's eventual appearance before the judicial organs of the state seeking to exercise its jurisdiction.

4.

Extradition To and From Canada (p. 111) (RL)

G.V. La Forest and Sharon Williams (1977) Test of extradition invokes two questions: 1. W/N there is an extradition treaty with that country and 2. Whether the crime is listed in the treaty.

5.

Extradition Act (p. 112) (RL)

(I don’t think this is relevant. This is the old law eh. Nonetheless…) It talks about the procedure on how requisition for the surrender of a fugitive criminal of a foreign state, who is believed to be in Canada, should be made; as well as the procedure on how a Canadian fugitive may be extradited. o The Ministry of Justice is the key figure to whom the requisition must be addressed. o He determines the offence and the proceedings that should be taken to try the fugitive, and may refuse to order for the surrender of said fugitive. o If there is an existing extradition arrangement between Her Majesty and another State, and the crime is not listed, it is still within the authority of the Minister to issue a warrant for the surrender to the other State any offender from that other State.

6.

Treaty on Extradition between Canada and the US (p. 113-114) (RL)

(Only included the pertinent provisions) Offenses should be punishable by both US and Canada by a term of imprisonment exceeding one year. (Art. 2 (1) Conspiracy to commit any of the offenses listed in the annex of the treaty is also punishable (Art. 2(2)) Extradition shall not be granted when (Art. 4): o The person is being proceeded against, or has been tried and discharged or punished in the territory of the requested State; o The prosecution for the offense has become barred by prescription according to the laws of the requesting State; o The offense is political in character. However if the offense is political in character and it involves kidnapping, murder or other assault upon a person which the contracting party has a duty under the IL to protect or those committed on board an aircraft

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7.

engaged in commercial services, then extradition may be granted. The determination that extradition should/should not be granted shall be made in accordance with the law of the requested State and the person whose extradition is sought shall have the right to use all remedies and recourses provided by law. (Art. 8) Extradition will be granted ONLY if there is sufficient evidence according to the laws of the place where the person sought shall be found (Art. 10)

8.

In the Matter of the Requested Extradition of Joseph Doherty (p. 115) (RL)

9.

TOPIC: DEC. 12, 1984 Petitioner: US, on behalf of UK Respondent: Doherty FACTS: Doherty participated in a Provisional Irish Republican Army (PIRA) (it’s a rebel group) organized ambush of a British Army convoy wherein a British soldier was shot and killed. He was arrested and charged with murder and related offenses. After completion of the trial but before the issuance of the verdict, Doherty escaped prison and fled to the US. UK sought to extradite him pursuant to the Treaty of Extradition between US and UK. Doherty contended that his conduct was not an extraditable offense under the Treaty’s political offense exception. ISSUES/HELD: W/N Doherty may be extradited based on his conducts.—NO, the US Court said that his acts were political in nature, hence it denied the extradition request. (Acts which are political in nature is not a ground for extradition) RATIO: Operative factors identified by the court to determine w/n it would fall under the “political offense exception”: o Nature of the act o Context in which it is committed o Status of the party committing the act o Nature of the organization on whose behalf it is committed o Particularized circumstances of the place where the act takes place The court concluded that Doherty’s actions fell w/in the exception because they: o Took place in the area where change was to be effected o Did not clearly violate the Geneva Convention & International Law o Were directed in furtherance of military objectives o Were not aimed at civilians. PIRA’s structure and internal system illustrated its political character

UK-US: Extradition Treaty Supplement Limiting Scope of Political Offenses to Exclude Acts of Terrorism and Letter of Transmittal to the the U.S. Senate (p. 116) (EM)

Excludes from the scope of political offense exception serious offenses typically committed by terrorists Narrows the application of the political offense exception to extradition

UK-US Extradition Treaty Supplement [Supplementary Treaty Concerning the Extradition Treaty between Government of the U.S.A. And the government of the U.K. Of Great Britain and Northern Ireland (1972)] (p. 117-120) (EM)

Article 1 o None of the following offenses shall be regarded as an offense of a political character Offense within the scope of the Convention for the Suppression of Unlawful Seizure of Aircraft Offense within the scope of the Convention for the Suppression of Unlawful Acts against the safety of Civil Aviation Offense within the scope of the Convention of the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents Offense within the scope of the International Convention against the Taking of Hostages Murder Manslaughter Maliciously wounding or inflicting grievous bodily harm Kidnapping, abduction, false imprisonment or unlawful detention, including the taking of a hostage The following offenses relating to explosives Causing of an explosion likely to endanger life or property Conspiracy to cause such explosion Making or possession of an explosive substance by a person who intends either himself or through another person to endanger life or cause serious damage to property Following offenses relating to firearms Possession or ammunition with the intention to endanger life Use of firearm with intent to resist or prevent the arrest or detention Damaging property with intent to endanger life or with reckless disregard as to whether the life of another would thereby be endangered Attempt to commit any of the foregoing offenses

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Article 2 o Prosecution for the offense for which extradition is requested has become barred by lapse of time according to the law of the requesting party Article 3 o A person arrested shall be set at liberty upon the expiration of 60 days from the date of his arrest if a request for his extradition shall not have been received. Article 4 o This treaty shall apply to any offense committed before or after this supplementary treaty enters into force except offenses not considered an offense under the laws of both Parties at the time of commission Article 5 o This supplementary treaty shall form an integral part of the Extradition treaty and shall apply To U.K. To U.S. Article 6 o This supplementary treaty shall be subject to ratification o Only after ratification may this treaty come into force

10. Offences and Certain Other Acts Committed on Board Aircraft: The Tokyo Convention of 1963 (p. 121-122) (EM) Two objectives of the convention To ensure that, the case of offense against penal law committed on board aircraft, there will always be a jurisdiction in which a suspected offender may be tried, and To authorize the aircraft commander and other to take certain steps such as restraint of persons who commit, or are about to commit on board an aircraft an offense which jeopardizes the safety of the aircraft or persons or property therein Dual Rules: The convention applies if the offense or other act takes place on board of any aircraft registered in a contracting state while it is in flight or on the surface of the high seas or in any other area outside the territory of any state the power of the aircraft commander will not apply to offenses committed or about to be committed by a person on board in the airspace of the state of registration, or over the high seas, or any other area outside the territory of any state Uniform Rule on jurisdiction in the Rome Draft: The state of registration may exercise jurisdiction over both offenses and acts committed on board an aircraft. "Acts" pertain to civil violations of air regulations.

Existing extradition arrangements are affected. Offense committed on aircraft registered to a contracting state are to be treated for the purpose of extradition as if they had been committed not only in the place where they occurred but also in the territory of the state of registration. The Convention does not create an obligation to grant extradition. A crime may be considered as having been committed in the state of registry of the aircraft , but the jurisdiction in another state may be had if the offense: o Has an effect in its territory o Has been committed by or against its national or permanent resident o Against its national security o Is a subject of an exercise of jurisdiction and necessary to ensure the observance of an obligation of such state under multilateral agreement

11. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (p. 123-127) (EM) Article 1 Any person commits an offence if he unlawfully and intentionally o Performs an act of violence against a person on board an aircraft o Destroys an aircraft o Places a device in an aircraft that is likely to endanger the latter o Destroys or damages air navigation facilities o Communicates information which he knows to be false, thereby endangering the aircraft's safety Any person also commits an offense if he: o Attempts to commit any of the above o Is an accomplice to the offenses above Article 2 Aircraft is in flight - at any time from the moment its external doors are closed following embarkation until the moment when any such door is opened for disembarkation Aircraft in service - from the beginning of the preflight preparation of the aircraft until 24 hours after any landing Article 3 Each of the offenses in Article 1 is punishable by severe penalties Article 4 This convention shall not apply to aircraft used in military, customs or polic services This convention applies when (1) the aircraft is outside the territory of the State of registration, (2) the offender is found in the territory other than the State of registration

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Article 5 Each Contracting State shall take such measures as may be necessary to establish its jurisdiction over the offences when (1) the offence is committed within their jurisdiction, (2) when the offense is committed in an aircraft registered in that State, (3) when the aircraft lands on the territory of the State and the offender is still on board, (4) when the offence is committed against a staff who has their principal place as the State

Sherman Act was supplemented in 1914by the Federal Trade Commission Act and the Clayton Act - these three statutes form the antitrust legislation for the promotion of competition in open markets Since many great monopolies do not operate merely within the territory of one State, the antitrust law has been given an extraterritorial application Chapter 1: The Territorial Principle of Jurisdiction

Article 6 A Contracting State must take the offender into custody, make preliminary factual enquiries

First principle of jurisdiction - in general, every State is competent to punish crimes committed upon its own territory Extra territorium jus dicenti impune non paratur - a national, when abroad, is beyond the range of his country's criminal law

Article 7 The State, if no extradition is contemplated, must submit the offender's case to competent authorities for prosecution

However, this is not an absolute principle This has not commanded the general assent of States, and has never therefore been a rule of international law

Article 8 (impt.) The offences shall be deemed to be included as extraditable offences in any extradition treaty existing between Contracting States. Contracting States undertake to include the offences as extraditable offences in every extradition treaty to be concluded between them If a contracting State which makes extradition conditional on the existence of a treaty receives a request for extradition from another Contracting State with which rrrre5t55rit has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of the offences. Extradition shall be subject to other conditions provided by law of the requested State. Contracting States which do not make extradition conditional on the existence of a treaty shall recognize the offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State.

B.

State practice is against the idea that extraterritorial jurisdiction is a matter just left to the discretion of each Sovereign State and not governed by international law Extraterritoriality of jurisdiction us not a matter of sovereign discretion The countervailing principle limiting extraterritorial jurisdiction: extraterritorial jurisdiction may not be exercised in a way contradicting local law at the place where the alleged offense was committed Local law must be preferred More difficult question: when there is no direct collision between the local and external laws BUT the act, though unlawful for the external law, was perfectly lawful in the place where it was done Local law must still be preferred since a person should not be put in jeopardy of a criminal law to which he has never owed allegiance to However, there are certain exceptions: o A State may exercise jurisdiction if the unlawful act done in another country is affecting it ("common crime")

Civil Jurisdiction 1.

Extraterritorial Jurisdiction and the US Anti-trust Laws (p. 128-137) (EM) United States Antitrust laws "distinctive American means for assuring competitive economy on which our political and social freedom under representative government in par depend" Elaborate and highly technical body of legislation and cases Sherman Act of 1890 (sec. 1) Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations is declared illegal

Burden of proof - the burden of proof is on the State claiming a right to extraterritorial jurisdiction o States may claim extraterritorial jurisdiction in cases where they believe their legitimate interests are concerned Chapter II: Principles of Extraterritorial Jurisdiction 1.

The Nationality Principle - international law permits a State to claim jurisdiction over its nationals without territorial limit 23

2.

The Passive Personality Principle - a State claims the right to punish aliens for committed abroad to the injury of their own nationals (sometimes called the "protection principle") The Security Principle - a State may exercise extraterritorial jurisdiction over crimes of aliens directed against its security, credit, political independence, or territorial integrity The universality principle - suppression of crime is an interest common to all States and to all humankind Extensions of the territorial principle - applies when different elements of the offence take place in different State o Subjective territorial principle - jurisdiction of a State to prosecute and punish crimes commenced within the State by completed or consummated abroad o Objective territorial principle - jurisdiction of the State to prosecute and punish crimes commenced without the State but consummated within its territory Lotus case - many countries regard offences as having been committed in their territory "if one of the constituent elements of the offence, and more especially its effects, have taken place there" "effects" - those effects which are a constituent element in the crime

3.

4. 5.

(a) the conduct and its effect are constituent elements of activity to which the rule applies (b) the effect within the territory is substantial and (c) it occurs as a direct and primarily intended result of the conduct outside the territory. Article 7 In the event of there being concurrent jurisdiction of two or more States so as to create a conflict with respect to the conduct of any person: (a) no State shall require conduct within the territory of another State which is contrary to the law of the latter, and (b) each State shall, in applying its own law to conduct in another State, pay due respect to the major interests and economic policies of such other State. Note: Anti-Trust regulation by which a State is entitled to prescribe rules governing the conduct outside of its territory which threatens its security as a State (Protective principle) is applicable only in the most exceptional circumstances.

3. 2.

Resolution adopted by the ILA: Extraterritorial application of the Antitrust Legislation (p. 138-139) (NO)

Extra territorial application of Anti-Trust Legislation Article 3 (1) A State has jurisdiction to prescribe rules governing the conduct of an alien outside its territory provided— (a) part of the conduct being constituent the element of the offence occurs within the territory and (b) acts or omissions occurring outside the territory are constituent elements of the same offence (2) Whereas municipal law is the sole authority for the purpose of ascertaining the constituent elements of a particular offences, international law retains a residual but overriding authority to specify what is or is not capable of being a constituent element for the purpose of determining jurisdictional competence. Article 5 A State has jurisdiction to prescribe rules of law governing conduct that occurs outside its territory and causes an effect within its territory if:

US v. FNCB (p. 139-143) (NO)

379 U.S. J. Douglas

Facts: Omar, S.A. is an Uruguayan company seeking a $10,000 credit from a regulated investment company. When the IRS investigated, it revealed that Omar possibly owed the US a large amount of taxes. o Omar maintained several accounts in New York o The lawyer contended that the transactions have no tax liability because Omar was not a personal holding company. o He added that if the IRS continues the such action, Omar might liquidate and send the money out the US IRS issued a jeopardy assessment against Omar totaling to $19,300,000.00 and filed a case in the District court of New York. o It impleaded Omar as well as several banks including the First National City Bank(Citibank) Omar liquidated a large part of its securities and sent out its funds. Some were transferred to Citibank in Uruguay and deposited there on the day when the complaint was filed. NY District court froze the account until jurisdiction could be obtained over Omar.

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Citibank contests the authority of the Court on the ground that it lacks jurisdiction because the account’s situs is in Montevideo(Uruguay) and personal jurisdiction over Omar was not obtained. Issue: WON the creditor (US) may by injunction protect whatever rights the debtor(Omar) may have against respondent(Citibank) who is before the court on personal service. Yes Held: Citibank argues that the US can assert only those rights that Omar has against Citibank in New York and under NY law and that a depositor in a foreign branch has an action against the head office only when there has been a demand and wrongful refusal at the foreign branch. The opportunity to make that collection should not be lost merely because Omar has not made the agreed-upon demand on Citibank at the time and place and manner in the contract. Citibank(Respondent) has actual control and practical control over its branches; it is organized under federal statutes which authorizes it ‘to be sued or to sue, defend as one entity and not branch by branch’. o The branch bank is therefore within the reach of the in personam order by the Court as are those of the home office. o Once personal jurisdiction has been acquired, the court has the authority to order it(Citibank) to freeze property under its control, whether within or without the country. The temporary injunction is appropriate to prevent further dissipation of assets. o If its was beyond the court’s jurisdiction, foreign tax payers facing jeopardy assessments may simply transfer funds abroad before personal service on the tax payer could be made. o Dispositive: We conclude that this temporary injunction is a “reasonable measure to preserve status quo pending service of process on Omar and an adjudication on merits. CA decision is reversed.

25

Regardless of whether the organ is part of the formal structure of the government, so long as the organ is empowered by internal law to exercise such authority

RESPONSIBILITY OF STATES (Pt. I)

A. GENERAL PRINCIPLES OF RESPONSIBILITY 1. ILC Draft Articles on SR (Arts. 1‐4) (RC)

Examples of International crimes and delicts: breach of international obligation

Topic: General Principles of State Responsibility

committing an act recognized as a crime by the international community

committing aggression

Summary:

impeding the right to self‐determination

For every international wrongful act of a State entails the international responsibility of that State. Internationally wrongful act: based on international law and cannot be affected by the characterization of the same as a lawful act in internal law.

acts of slavery, genocide, apartheid acts endangering the environment

B. RESPONSIBILITY FOR ACTS AFFECTING INDIVIDUALS

I. TRADITIONAL INTERNATIONAL LIABILITY 1. US v. Mexico (RC)

2. Second Report on SR (RC) Topic: Internationally Wrongful Act An internationally wrongful act is based on the actual existence of an international legal order and in the legal nature of the obligations it imposes on its subject. Whenever a State is guilty of an internationally wrongful act against another State, international responsibility is established immediately as between the two states.

3. ILC Draft Articles on SR (Arts. 5‐8 and 19) (RC)

Topic: State Responsibility, act of judiciary is direct governmental responsibility FACTS: B.E. Chattin was an American citizen working for the Southern Pacific Railroad Company of Mexico as a passenger conductor. He was arrested for allegedly pocketing money from passengers instead of remitting them to the company. Thereafter, he proceeded to trial and was found guilty. He was imprisoned but was able to escape when there was rebellion. He returned to the US and now claims damages against Mexican state for having been deprived of due process and being treated inhumanely.

Topic: Attribution of State Responsibility.

ISSUE: W/N Mexico is liable to pay $50,000 as damages to Chattin? YES!

The State is responsible for acts done by its ORGANS when:

The organ was acting within its capacity

RATIO:

Regardless of whether the organ is part of the constituent, legislative, executive, judicial or other power

Evidence and court records showed that Chattin was indeed deprived of due process. When he went to trial, he was not allowed to confront his accusers. The accusers only had to submit anonymous testimony. Furthermore, his trial was delayed. He had been imprisoned for a few months before he saw the inside of the courtroom. Lastly, the trial had only lasted like a day. 1

Mexico is liable because it is the state's responsibility to ensure that its judiciary keeps up with the international standards.

Criticism #4: “The Declaration pays scant regard to economic rights.”

II. INTERNATIONAL PROTECTION OF HUMAN RIGHTS 1. UDHR (please look at the original text  ) 2. UDHR AT 35: Western Passe or Alive and Universal (JG) Since the adoption by the UN General Assembly of the Universal Declaration of Human Rights in 1948, there have been many criticisms and opinions against its th status and validity. On the 35 year of the Declaration and in view of the fact that it continues to serve as a cornerstone for the activities both of the UN and of the most non‐governmental organizations in the field of human rights, it seems timely to assess the validity of these competing perspectives. Criticism #1: “Third World participation in the drafting of the Declaration was negligible”

UDHR Defense: Despite the fact that the development of the protection of such rights came much later, it equally prioritizes economic, social, and cultural rights. Criticism #5: “The Declaration does not take adequate account of the traditions and needs of the Third World.” UDHR Defense: Efforts are bring undertaken to the effect that in the implementation of human rights, methods used should take into account the traditions and culture of each society as well as of its legal system. Moreover, contribution to the implementation of international standards on human rights at the domestic level may also be made through various bodies such as human rights commissions, people’s organizations, and village tribunals. Criticism #6: “The Declaration overlooks the importance of international solidarity.”

UDHR Defense: The contribution by the Third World was by no means negligible. Indeed, the main proponents were Chile, Cuba, and Panama. At the GA in 1948, Egypt, Ethiopia, Liberia, Afghanistan, the Philippines, Thailand, India, and Pakistan, as well as all of the Central and Latin American States were among the 48 voting in favor of the Declaration.

UDHR Defense: Article 28 of the Declaration provides that “everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” The responsibilities of States in this regard are also provided in Articles 55 and 56, which require cooperation among States for the promotion of both respect for human rights and economic and social progress and development.

Criticism #2: “The Declaration’s philosophical roots are exclusively Western and its values are therefore inapplicable to other societies.”

Conclusion: There is a large and growing body of evidence to support that in addition to their admitted moral and political authority, the justiciable provisions of the Declaration have acquired the force of law as part of the customary law of nations.

UDHR Defense: The Declaration cannot reasonably be said to be the exclusive reflection of any one ideological conception. The Eastern European input was sufficient to ensure the inclusion of economic, social, and cultural rights. In the implementation of rights, there is due regard for the cultures of each society. Criticism #3 “The Declaration enshrines an individualistic approach to human rights which is unacceptable in non‐Western societies.” UDHR Defense: It is true that the UDHR places emphasis on the rights of the individual, but it equally protects collective or people’s rights. The language used is flexible; in fact, a procedure was established by ECOSOC resolution 1503 which focuses on ‘situations’ involving gross violations of human rights rather than on individual cases.

3. Charter of the UN (Art. 2) The Organization and its Members, in pursuit of the Purposes stated in Art. 1, shall act in accordance with the ff Principles: xxx 7. Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require Members to submit such matters to settlement under the present 2

Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

4. South West Africa Cases (CG) (Ethiopia v. South Africa); (Liberia v. South Africa) Dissenting Opinion of Judge Tanaka Issue: WON the policy of racial discrimination or separate development is per se incompatible with the well‐being and social progress of the inhabitants, or whether the policy of apartheid is illegal and constitutes a breach of the Mandate – YES Discussion: 1. •

•

•

2. • • • •

•

What is Apartheid? The status, rights, duties, opportunities and burdens of the population are determined and allotted arbitrarily on the basis of race, color and tribe, in a pattern which ignores the needs and capabilities of the groups and individuals affected, and subordinates the interest and rights of the great majority of the people to the preferences of the minority From the standpoint of the Applicants, the violation of the norm of non‐ discrimination is established if there exists a simple fact of discrimination without regard to the intent of oppression on the part of the Mandatory Meanwhile, the respondent does not recognize the existence of the norm of non‐discrimination of an absolute character and seeks to prove the necessity of group differentiation in the administration of a diverse community Principle of Equality Most fundamental principles of modern democracy and is the starting point of all other liberties It is philosophically related to the concepts of freedom and justice All human beings as persons have an equal value in themselves, that they are the aim itself and not means for others, and that, therefore, slavery is denied This idea, however, does not exclude the different treatment of persons from the consideration of the differences of factual circumstances such as sex, age, language, religion, etc. There must be reasonable distinctions

3. • •

Relative Equality The principle to treat equally what are equal and unequally what are unequal A different treatment is permitted when it can be justified by the criterion of justice, which logically excludes arbitrariness

4. • • •

• •

•

•

Why Apartheid is violative of the basic rights against discrimination For this, freedom of choice of occupations shall be considered There are certain jobs specifically reserved for Europeans or the Whites, while Natives are confined to unskilled labor This, itself, is a form of discrimination because they contend that some Whites, in general, do not desire to serve under the authority of the Natives on the hierarchy of industrial systems It is admitted that there is friction, conflict and animosity, and it cannot be prevented, but it must be overcome, not approved To take into consideration the psychological effect upon the Whites who would be subjected to the supervision of the Natives if a ceiling did not exist, that is nothing else but the justification or official recognition on the part of the White population which does harm to the dignity of man Furthermore, individuals who could have advanced by their personal merits if there existed no ceiling are unduly deprived of their opportunity for promotion Respondent tries to justify this as a necessary sacrifice for the maintenance of social security, but it is unjust to require a sacrifice for the sake of social security when this is of such importance as humiliation of the dignity of the personality

Summary: • •

•

The principle of equality before the law requires that what are equal are to be treated equally and what are different are to be treated differently All human beings, notwithstanding the differences in their appearance and other minor points, are equal in their dignity as persons. Accordingly, from the point of view of human rights and fundamental freedoms, they must be treated equally. The principle of equality does not mean absolute equality, but recognizes relative equality, namely different treatment proportionate to concrete individual circumstances. Different treatment must not be given arbitrarily; it requires reasonableness, or must be in conformity with justice, as in the 3

•

• •

•

•

treatment of minorities, different treatment of sexes regarding public conveniences, etc. In these cases, the differentiation is aimed at the protection of those concerned, and it is not detrimental and therefore not against their will. Discrimination according to the criterion of “race, color, national or tribal origin” in establishing the rights and duties of the inhabitants of the territory is not considered reasonable and just Consequently, the practice of apartheid is fundamentally unreasonable and unjust As to the alleged violation by the Respondent of the obligations incumbent upon it under Article 2, paragraph 2, of the Mandate, the policy of apartheid including in itself elements not consistent with the principle of equality before the law, constitutes a violation of the said Article, because the observance of the principle of equality before the law must be considered as a necessary condition of the promotion of the material and moral well‐being and the social progress of the inhabitants of the territory The Court cannot, however, examine and pronounce the legality or illegality of the policy of apartheid as a whole; it can decide that there exist some elements in the apartheid policy which are not in conformity with the principle of equality before the law or international standard or norm of non‐ discrimination and non‐separation For the purpose of the present cases, the foregoing consideration of a few points as illustrations may be sufficient to establish the Respondent’s violation of the principle of equality, and accordingly its obligations incumbent upon it by Article 2, paragraph 2 of the Mandate and Article 22 of the Covenant

• •

•

•

5. Inter‐American Court of HR (RL) Thomas Buergenthal

•

(1982) [Salient points of the Article] • •

The Court was established by the American Convention on HR which entered into force in 1978 It has been ratified by 17 out of 29 member states of the Organization of American States (OAS).

•

It has 7 judges, with a regular term of 6 years, nominated and elected by the state parties. The President, Vice President and another judge, who is designated by the President, compose the Permanent Commission. o It acts as the Court’s bureau or directorate, and assists and advises the President in the exercise of his functions. Jurisdiction: o CONTENTIOUS JURISDICTION – the jurisdiction to decide disputes involving charges that a state party has violated the HR guaranteed by the Convention. o ADVISORY JURISDICTION – empowers the court to interpret the convention and other HR instruments at the request of OAS member states. o Its power to decide a case referred to it is conditioned on the acceptance of its jurisdiction by the states parties to the dispute; being mere signatory to the convention is insufficient. o A state that ratifies the convention is deemed ipso facto to have accepted the right of any person/group or persons, or any non‐ governmental entity legally recognized in one or more OAS member states to file a petition with the Commission.  But, both states must recognize the competence of the Commission to receive and examine interstate complaints. o Amicable settlements are preferred. Judgments and Preliminary Decisions: o It has the power to enter a declaratory judgment and to award damages. o It has the power to grant an extraordinary remedy in the nature of a temporary injunction in cases (1) pending before the Court and (2) for cases being dealt with by the Commission that have not yet been referred to the Court for adjudication. Enforcement of Judgments: o The Convention does not establish a formal procedure to enforce the rulings of the Court against recalcitrant states. The court may also issue advisory opinions.

4

III. TAKING OF PROPERTY: EXPROPRIATION

NATIONALIZATION

1. UN Declaration on Permanent Sovereignty Over Natural Resources (EM) -

As a basic constituent of the right to self‐determination, due regard should be paid to the rights and duties of States under international law and to the importance of encouraging international cooperation in the economic development of developing countries.

-

Any measure in this respect must be based on the recognition of the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests, and on respect for the economic independence of States.

-

It is desirable to promote international cooperation for the economic development of developing countries.

-

Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign.

-

-

Owner shall be paid appropriate compensation in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law. When question of compensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. However, upon agreement, settlement may be made through arbitration or international adjudication.

2. UN Resolution 3171 (EM) 1.

Strongly reaffirms the inalienable rights of States to permanent sovereignty over its natural resources.

2.

Supports the efforts of developed States and those under colonial and racial denomination, or foreign occupation to regain effective control over their natural resources.

3.

to determine the amount of possible compensation and the mode of payment, and that any disputes that might arise should be settled in accordance with the national legislation of each State carrying out such measures.

AND

Affirms the application of nationalization as an expression of States’ sovereignty in order to safeguard their interests. As such – States are implied

4.

Deplores the use of force, aggression, economic coercion, and other illegal/improper means in resolving disputes concerning the exercise of its sovereign rights.

5.

Emphasizes that actions aimed at coercing other States are violations of the UN Charter

6.

Emphasizes the duty of States to refrain from military, political, or economic coercion.

7.

Recognizes that one of the most effective ways for developing States to protect their natural resources is through establishing, promoting, or strengthening their machineries for cooperation

3. Charter of Economic Rights & Duties of States (EM) Economic, political and other relations among States shall be governed by: a.

Sovereignty, territorial integrity and political independence of States

b.

Sovereign equality of all States

c.

Non‐aggression

d.

Non‐intervention

e.

Mutual and equitable benefit

f.

Peaceful co‐existence

g.

Equal rights and self‐determination of peoples

h.

Peaceful settlement of disputes

i.

Remedying of injustice brought about by force and which deprive a nation of the natural means for its normal development

j.

Fulfillment in good faith of international obligations

k.

Respect for human rights and fundamental freedoms

l.

No attempt to seek hegemony and spheres of influence

m. Promotion of international social justice n.

International cooperation for development

o.

Free access to and from the sea by land‐locked countries 5

Article 2 -

Every State has and shall freely exercise full permanent sovereignty over all its wealth, natural resources, and economic activities

-

Libya opposed this practice, saying that was involved were “sovereign acts” of Libya, thus not subject to arbitration

-

The president of the ICJ appointed Dupuy to be the sole arbitrator in the proceedings, which, however, Libya did not go to

Each State has the right

To regulate and exercise authority over foreign investment within its national jurisdiction in accordance with its national objectives and priorities. No State shall be compelled to grant preferential treatment to foreign investment

Issue: WON the issues in this case may be subject to arbitration; WON there was a breach of contract on the part of Libya

o

To regulate and supervise the activities of transnational corporations within its jurisdiction

Held: Yes, case may be subject to arbitration; Yes, Libya breached its obligations under the contract

o

To nationalize, expropriate, or transfer ownership of foreign property, in which case APPROPRIATE COMPENSATION should be paid by the State adopting such measures

o

Ratio: On jurisdiction for arbitration – the 14 deeds of concession were internationalized contracts -

The deeds of concession contained a provision saying that the concession would be governed by general principles of Libyan law COMMON TO PRINCIPLES OF INTERNATIONAL LAW, and that in the absence of such common principles, then they would be governed by and in accordance with THE GENERAL PRINCIPLES OF LAW, including those applied by international tribunals

-

This supported the conclusion that the nature of the deeds of concession made it an internationalized contract

4. Proposed Amendment to Art. 2 (EM) In this amendment, it was proposed that “appropriate” compensation be changed to “just” compensation. However, this proposal was rejected by a vote of 19 in favor vs 87 against.

5. Dispute Between Texaco Overseas Petroleum Company/California Asiatic Oil Company and Gov’t of Libyan Arab Republic (EM) Facts: -

In 1973 and 1974, Libya issued decrees nationalizing all of the rights, interests, and property, of Texaco Overseas Petroleum Company (TOPCO) and California Asiatic Oil Company (CAOC) in Libya that had been granted to them under 14 deeds of concession

-

In response to such action, TOPCO and CAOC requested for arbitration and thus appointed an arbitrator.

-

However, Libya refused to submit to arbitration.

-

Subsequently, the president of the International Court of Justice appointed a sole arbitrator to hear the dispute

On Breach of Contract -

Libya was legally bound to perform the deeds of concession according to their terms

-

An internationalized contract has effects and consequences on the rights of the parties – they may enter into arbitration if their rights in the contracts are breached. This gives the party a specific, but limited, “international capacity”

-

The injured parties were entitled to restitutio in integrum and that the sovereign State was obliged to perform in accordance with its contractual obligations

-

The tribunal also said that the UN General Assemblies regarding permanent sovereignty over natural wealth and resources could not be used by the State to violate its contractual obligations in commercial transactions.

6

PIL McRAE Digest: Responsibility of States (part 2)

RESPONSIBILITY OF STATES (Pt. II)

C. RESPONSIBILITY FOR ENVIRONMENTAL HARM 1. Trail Smelter Arbitration (NO) Facts: •

A smelter (for lead and zinc) was started by the American Auspices in 1896 and later taken over by a Canadian company in 1906. o In 1925 and 1927 two stacks were erected to increase the output. o From 1925 to 1931 damages to Washington was due to the sulphur dioxide from the Trail Smelter

•

•

•

The International Joint Commission recommended that $350,000 to be paid to the US but an arbitration convention was signed in 1935.

Issue: 1.

• Whether the Trail Smelter caused the damages in Washington therefor meriting for payment of indemnity and should the Trail Smelter refrain from causing such damages in the future.

Facts

•

2. Corfu Channel Case (NO)

Held: •

The Tribunal finds that the above decisions taken as a whole, constitute an adequate basis for its conclusions, namely that under the principles of international law, as wells as the US law: “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence” The tribunal holds that Canada is responsible in international law for the conduct of Trail Smelter Future damages So long as the present condition in the Columbia River prevails, Canada is shall be required to refrain from causing further damage. o The damage referred to and its extent being such as would be recoverable under the decisions of the courts of the US in suits between private individuals. The tribunal decided to impose a regime or measure of control which shall remain in force unless and until modified. o

A State owes at all times the duty to protect other States against injurious acts by individuals from within its jurisdiction The difficulty rises when it comes to determining the pro subjecta materie that is deemed to be an injurious act. o However there has been yet a case that brought into attention air pollution the most analogous case is water pollution decided by US law. o It took into consideration such decisions, which may serve as a guide in international law.

•

• •

nd

On October 22 , 1946, two British cruisers and two destroyers, coming from the south, entered the North Corfu Strait. The channel they were following, which was in Albanian waters, was regarded as safe: it had been swept in 1944 and check‐swept in 1945. One of the destroyers, the Saumarez, when off Saranda, struck a mine and was gravely damaged. The other destroyer, the Volage, was sent to her assistance and, while towing her, struck another mine and was also seriously damaged. Forty‐ five British officers and sailors lost their lives, and forty‐two others were wounded.

Issue Dean Candelaria 12‐13

1

PIL McRAE Digest: Responsibility of States (part 2) 1.

Whether or not Albania should be held liable. Yes

Held •

•

The court draws the conclusion that the laying of the minefield that caused the explosions could not have been accomplished without the knowledge of the Albanian government. o If Albania had been of the British operation and warned the British vessels of the existence of a minefield her responsibility would be involved The obligations incumbent upon Albania was to notify, for the benefit of shipping in general, the existence of a minefield in Albanian water and in warning the British warships approaching

Based on elementary considerations of humanity, the freedom of maritime communication and State’s obligation not to allow knowingly to its territory to be used for acts contrary to the rights of other states.

3. Stockholm Principles (NO) See full text in McRae but here are the important provisions Principle 4 Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors. Nature conservation, including wildlife, must therefore receive importance in planning for economic development. Principle 5 The non‐renewable resources of the earth must be employed in such a way as to guard against the danger of their future exhaustion and to ensure that benefits from such employment are shared by all mankind. Principle 6

Dean Candelaria 12‐13

The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems. The just struggle of the peoples of ill countries against pollution should be supported. Principle 11 The environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries, nor should they hamper the attainment of better living conditions for all, and appropriate steps should be taken by States and international organizations with a view to reaching agreement on meeting the possible national and international economic consequences resulting from the application of environmental measures. Principle 16 Demographic policies which are without prejudice to basic human rights and which are deemed appropriate by Governments concerned should be applied in those regions where the rate of population growth or excessive population concentrations are likely to have adverse effects on the environment of the human environment and impede development. Principle 20 Scientific research and development in the context of environmental problems, both national and multinational, must be promoted in all countries, especially the developing countries. In this connection, the free flow of up‐to‐date scientific information and transfer of experience must be supported and assisted, to facilitate the solution of environmental problems; environmental technologies should be made available to developing countries on terms which would encourage their wide dissemination without constituting an economic burden on the developing countries. Principle 21 States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Principle 22 States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage 2

PIL McRAE Digest: Responsibility of States (part 2) caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.

4. Statement by JA Beesley (NO) The Canadian government considers principle 21 reflects customary international law and principle 22 as secondary consequential principle reflects an existing duty of states. It also considers the duty to inform states of the environmental impact of their actions beyond their jurisdiction as a tertiary consequential principle.

5. Resolution Adopted by the GA: Cooperation Between States in the field of the Environment; Resolution Adopted by the GA: Int’l Responsibility of States in Regard to the Environment; Resolution Adopted by the GA: Cooperation in the Field of the Environment Concerning Natural Resources Shared by two or more States (NO) A/8901/2995 Recognizing principle 20 of the Stockholm principles, it emphasizes that states must not produce significant harmful effects in zones situated outside their national jurisdiction Co‐operation will be achieved if official and public knowledge is provided of the technical data relating to work carried out by states within their territory.

6. The Freedom of the Seas (NO) The existing law of the sea rests on two traditional concepts, the high seas where freedom of the seas prevail and the territorial sea which is under the sovereignty of the coastal state. On one hand, ships have been on the exclusive jurisdiction of the flag state while the other the coastal states have jurisdiction over the ship whatever the flag is. While the prevention and control of marine pollution is a universal concern, it nevertheless falls naturally within the category of coastal states. The general distinction between global and coastal interest is neither absolute nor all embracing. Dean Candelaria 12‐13

Of all pollutants of the sea, oil has received the greatest publicity in recent years. Large quantities of oil have been regularly dumped into the sea by tankers and other ships in the course of deballasting and tank‐cleaning operations. The first efforts to stop pollution by oil discharge was made at a conference in Washington, however, it failed to achieve ratification. A second conference convened in London and later became the “1954 London Convention for the Prevention of Pollution of the Sea by Oil” which came into force in 1958. The London convention prohibited the intentional discharge of oil and oily mixtures into the sea within certain zones extending generally 50 miles from land. These zones encompassed both territorial and high seas. Violations of the convention were made punishable only under the laws of the flag state of the offending ship, except that the coastal state remained free to take enforcement action against all ships within its territorial sea. In 1958, the Intergovernmental Maritime Consultative Organization (IMCO), a second conference on oil pollution was held at London in 1962 amending the 1954 convention. The most notable revision was the extension of prohibited zones from 50‐100 miles and a reduction of the classes of ships exempted from the said convention. The convention was however not without defect. The central defect relates to enforcement and involves problems of both detection and jurisdiction. For instance, the detection of a particular oil discharge created posed the enforcement with great difficulty. A further problem was whether or not a particular discharge exceeded the limits under the convention. Finally, the convention does not make compulsory the adoption of techniques and use of equipment that could eliminate the discharge of oil. The 1954 London Convention and the 1958 Geneva Conventions on the High Seas on the Continental Shelf were the only multilateral agreements directed to the problem of oil pollution until 1969. The 1969 Brussels Conference was prompted by the 1967 Torrey Canyon disaster. Brussels Conference As public international, the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties was born. The convention provides that states may take such measure on the high seas as may be necessary to protect their coastline or related interests from pollution of the sea by oil, following upon a maritime casualty which may reasonably be expected to result in major harmful consequences. Such convention relates to oil pollution only, whereas Canada urged that it should 3

PIL McRAE Digest: Responsibility of States (part 2) extend to all pollutants. The Convention also provides that the measure taken by the coastal state must be such as are, in the circumstances, reasonable or proportionate to the actual or threatened damage; the coastal state is made liable for damage caused by its preventive measures. As regards the private law convention at Brussels the International Convention on Civil Liability for Oil Pollution Damage. The convention imposes strict liability on the owner of any oil‐carrying ship from which oil has escaped after an incident at sea. The convention is restricted to liability for damage occurring on the territory or in the territorial waters of a contracting state. Nevertheless the two conventions adopted at Brussels in certain respects represent some forward movement in the development of the law of the sea and maritime law. The public law convention codifies the right of the coastal state to intervene on the high seas against a ship threatening to pollute its coastal environment, and serves to establish a principle applicable to any pollution incident despite the fact that the convention is limited to pollution by oil. While the private convention, does not provide for the innocent victims of oil pollution incidents and does not cover damage suffered to important interests beyond the territorial sea, nevertheless fixes the liability of ships for oil pollution damage at double the amount formerly available under the 1957 convention relating to Tanker Owners.

7. Resolution Adopted by the ILA: Draft Articles on Marine Pollution of Continental Origin (NO) Art II A state shall prevent any new form of continental sea‐water pollution or any increase in the degree of the existing pollution which cause substantial injury in the territory of another state or to its rights Art III States should establish as soon as possible international standards for controls of sea‐water pollution. Until such standards are established, the existence of substantial injury from pollution shall be determined by taking into account all relevant factors.

8. UN Environment Program: Governing Council Decisions Concerning Policy Objectives (NO) Having considered a number of reports, the following decisions have been adopted: 1.

Criticisms on the conventions were that it is remedial and liability oriented. Furthermore, it is only enforceable between parties. The Author posits that what is needed is a legal framework which would provide for effective preventive measures and would not leave it to the potential perpetrators to decide if they want to submit to such measures.

2.

In a report of panel of experts on the disposal of radioactive wastes in fresh water stated that ‘It is a general rule of international law that a state must not abuse its rights under international law by allowing alteration of the natural conditions of its own territory to the disadvantage of natural conditions of the territory of another state’.

General policy objectives: provide improved knowledge for management of the resources of the biosphere, encourage and support to the planning and management of development to achieve maximum benefits, assist all countries to deal with their environmental problems and provide assistance with a view of the enhancement and preservation of the environment Particular policy objectives: Anticipate and prevent threat to human health, detect and prevent serious threats to the health of the ocean, improve the quality of water for human use, help governments in improving the quality of life, prevent the loss of productive soil, help government in managing forest resources, anticipate disasters, help gain public awareness

What is required in the new legal order for the seas is a better balance of interests, a balance between exploitation and conservation, as between free seas and clean seas, as between peaceful uses and strategic considerations, and as between coastal interests and flag interests.

Principle 24

9. European Environmental Law (MT) •


International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries, big or 4

PIL McRAE Digest: Responsibility of States (part 2) small, on an equal footing. Cooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control, prevent, reduce and climate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interest of all states.

Principle 13 •

10. Rio Declaration on Environment and Development (MT) Adopted on June 14 1992 Principle 2 •

States have in accordance with the charter of the UN and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and development policies ,and the responsibility to ensure activities and within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.

Principle 14 •

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The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.

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Principle 6 The special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries.

D. INTERNATIONAL CLAIMS 1. North American Dredging Co. of Texas v. United Mexican States (MT)

Principle 12 States should cooperate to promote supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not constitutes a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade.


States shall immediately notify other states of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those states. Every effort shall be made by the international community to help states so afflicted.

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Environmental impact assessment as a national instrument shall be undertaken for proposed activities that are likely to have a significant and adverse impact on the environment and are subject to a decision of a competent national authority.

Principle 18

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States should effectively cooperate to discourage or prevent the relocation and transfer to other states of any activities and substances that cause severe environmental degradation or are found to be harmful to human health.

Principle 16

Principle 3

States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.

Facts: • •

This case is before this commission on a motion of the Mexican agent to dismiss. It is put forward by the US on behalf of North American Dredging Company of Texas, an American Corporation for the recovery of the sum of $233,523 with interest thereon, the amount of losses and damages alleged to have 5


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been suffered by claimant for breaches of a contract for dredging at the port of Salina Cruz, which contract was entered into between the claimant and the govt of Mexico (1912). The contract was signed at Mexico. The govt of Mexico was party to it. It had for its subject matter services to be rendered by the claimant in Mexico. Art 18 (the basis of contention of this whole case) (also called the Calvo clause) incorporated by Mexico as an indispensible provision, not separable from the other provisions of the contracts was subscribed to by the claimant for the purpose of securing the award of the contract. Its translation is as follows: “The contractor and all persons who as employees or in any other capacity, may be engaged in the execution of the work under this contract either directly or indirectly shall be considered as Mexicans in all matters, within the Republic of Mexico, concerning the execution of such work and the fulfillment of the contract. They shall not claim, nor shall they have, with regard to the interests of the business connected with this contract, any other rights or means to enforce the same than those granted by the laws of the republic to Mexicans, nor shall they enjoy any other rights than those established in favor of Mexicans. They are consequently deprived of any rights as aliens and under no conditions shall the intervention of foreign diplomatic agents be permitted, in any matter related to this contract. Basically, it says, that the corporation agreed to have no other rights or means of enforcement than those conferred upon Mexicans and that under no conditions shall the intervention of foreign diplomatic agents be permitted in any matter relating to the contract.

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an alleged violation of any rule or principle of international law, the commission will take jurisdiction notwithstanding the existence of such clause in a contract subscribed by the claimant. But where a claimant has expressly agreed in writing, attested by his signature, that in all matters pertaining to the execution, fulfillment and interpretation of the contract he will have to resort to local tribunals remedies and authorities and then willfully ignores them by applying in such matters to his govt, he will be held bound by his contract and the commission will not take jurisdiction of such claim… The calvo clause is neither upheld by all outstanding international authorities and by the soundest among international awards nor it is universally rejected. Calvo clause can be entered into but the commission holds that it cannot deprive the government of his nation (meaning the govt of the person damaged) of its undoubted right of applying international remedies to violations of international law committed to his damage. In short, in this case the calvo clause is upheld. Though it depends on a case to case basis. Also note that it should not violate any principle of international law if not the commission can interject. Lastly, that such agreement cannot deprive the government of the person damaged to apply international remedies. There must be a balance daw…

2. In the Subsequent International Fisheries Co. Case (MT)

(Nielsen’s Dissent)

Issue & Held: Is the corporation bound by the calvo clause? YES

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WON international law really contains a rule prohibiting contract provisions attempting to accomplish the purpose of the calvo clause? NO

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The commission decides that the case as presented is not within its jurisdiction and motion of the Mexican agent to dismiss is sustained and the case is hereby dismissed without prejudiced to the claimant to pursue his remedies elsewhere… Each case involving application of a valid clause partaking of the nature of the calvo clause will be decided on its own merits. Where a claim is based on


This is a dissent to the decision made in the Dredging case of the US against Mexico. The commission’s discussion of the restriction on interposition was characterized by failure of recognition and application of fundamental principles of law with respect to several subjects. Among them are: 1. The nature of international law as a law between nations whose operation is not controlled by acts of private individuals. 2. The nature of international reclamation as a demand of a govt for redress from another govt and not a private litigation. 3. A remarkable confusion between substantive rules of international law that a nation may invoke in behalf of itself or its nationals against another nation, and jurisdictional questions before international 6


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tribunals which are regulated by covenants between nations and of course not by rules of international law or by acts of private individuals or by contact between private persons. International law recognizes the right of the nation to intervene to protect its national in foreign countries through diplomatic channels and through instrumentalities such as are afforded by internationals tribunals. The question presented for determination in considering the effect of local laws or contractual obligations between a govt and a private individual to restrict that right therefore is whether there is evidence of general assent to such restrictions. Although the case was dismissed on jurisdictional grounds, the commission made reference to international law but did not cite a word of the evidence of that law… The commission seemed to indicate some view to the effect that the contractual stipulations in question were in harmony with international law because they required the exhaustion of local remedies and that therefore the claim might be rejected. The commission ignored the effect of article 5 of the convention between US and Mexico to the effect that no claim shall be dismissed due to non‐exhaustion of local remedies. No rule can be abolished, or amplified or restricted in its operation by a single nation or by a few nations or by private individuals or by private individuals acting in conjunction with a govt. And assuredly no nation can by contract with a private individual relieve itself of its obligations under international law nor nullify rights of another nation under that law… Domestic law cannot destroy rights secured by international law. domestic laws are not finally determinative of an alien’s rights. As have been observed, violations of the law of nations occur by failure of a nation to live up to the obligations of the requirements of that law. While the signing of the contract with a private concern would scarcely in precise language be declared a violation of international law, certainly any attempt to frustrate another nation’s rights of interposition secured by international law would not be in harmony with that… It is quite possible the commission said to recognize as valid some forms of waiving the right of foreign protection without thereby recognizing as valid and lawful every form of doing so. It is difficult to perceive however since international law is a law made by general consent of nations and therefore a law which can be modified only by the same process of consent among the nations, how the contract of a private individual with a single nation could


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have the effect either of making of modifying international law with respect to diplomatic protection… Except by expatriation a private person can by no act of his own forfeit or destroy his govt’s right to protect him. His acts may of course give rise to considerations of policy which may influence the attitude of his govt with respect to his appeal for assistance… It was the duty of the commission to give effect to the clearly expressed intent of article 5 of the arbitration agreement. The intent and clear legal effect of that article is that claims shall not be dismissed for failure of claimants to resort to local remedies. Therefore to reject the claim was to nullify the clear intent and legal effect of provisions by which two govts stipulated that claims should not be rejected on the ground that there had not been a resort to legal remedies. A claimants right to protection from his govt is determined by the law of that govt.

3. The Tattler (US v. Great Britain) (MT) Facts: •

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This is a claim for $2,028 with interest on account of a seizure of the said schooner Tattler and its detention for six days by the Canadian authorities in Liverpool (on charge of alleged violation of Canadian fisheries laws and of the treaty of 1818 between the US and GB) The owners of the schooner entered into the following undertaking: in consideration of the release of the American schooner Tattler (on payment of fine of $500) we hereby guarantee his Majesty King Edward, his successors and assigns… and all whom it does or may concern, against all claims made or to be made on account of or in respect to such detention…hereby waiving all such claims and right to libel or otherwise before any court or tribunal in respect to said detention or to such or any such claims or loss or damage in the premises. The payment was under protest.

Issue: WON the claim is waivable? Held and Ratio: with respect to the YES. With respect to the US govt NO. •

It has been objected that the renunciation of and the guarantee against any claims are not binding upon the govt of the US which presents the claim.

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PIL McRAE Digest: Responsibility of States (part 2) •

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In this case only the right of the US is supporting is that of its national who waived his right and consequently in presenting this claim before the tribunal it can rely on no legal ground other than those which would have been open to its national. For these reasons, this tribunal decides that the claim must be dismissed.

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4. The Panezys (Estonia v. Lithuania) (MT) Please bear with me the facts of the case in mcrae are really long and confusing. Facts: •

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In 1892, a company was founded at St. Petersburg under the name First Company of Secondary Railways in Russia. They were allowed to construct railways under their statutes and an imperial decree. Then the Bolshevist revolution took place. Almost immediately afterwards, a decree of the Central Executive Committee concerning the nationalization of banks placed in the hands of the Soviet Govt, the shares, assets and liabilities of companies existing in Russia. Among these companies was the First Company of Secondary Railways. Political events them followed: Lithuania proclaimed itself an independent state, the same thing happened in Estonia and some days later, the Treaty of Brest‐Litovsk between Germany and her allies and Russia confirmed the abandonment of Russian sovereignty over the former Baltic provinces and Lithuania which however remained in the occupation of German troops. Furthermore, the Bolshevist leaders hurried on measures intended to establish the communist Soviet regime confiscating private property throughout Russian territory. A decree was promulgated declaring to be the property of the Russian Socialist Federated Soviet Republic all industrial and commercial undertakings in Soviet Russia including all the undertakings of private and secondary railway companies, whether in operation or under construction. Shortly afterwards a second Soviet decree was promulgated which was designed to supplement the preceding decree, particularly with regard to railways. The boards of former private railways which now became the property of the Republic were abolished and replaced by a so‐called liquidation commission for each line. Some months later, a third Soviet decree which provides that the shares and foundation shared of joint stock companies the undertakings of


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which have been nationalized or sequestrated are annulled even in cases where such undertakings have not yet passed under the control of governmental boards and where they have been leased to the former owners rent free. The Lithuanian Govt took possession of the Panevezys‐Sventziany railway which was situated in territory which had become part of the state of Lithuania. Months later, the Russian Socialist Federated Soviet Republic signed its first treaty with the new Baltic states: the treaty of Tartu with Estonia…some treaties followed after but not relevant to the case. In the present case (sorry for the long but necessary build up), the Treaty of Tartu concluded between the Soviet Republic and Estonia merits special attention for the reason that, it contains detailed provisions as to the fate of private property situated in Estonian territory particularly as to property of joint‐stock companies. Under Art. 11 of which the meaning and translation are disputed between the parties, Russia renounces all the rights of the Russian Treasury to the movable and immovable property of individuals, which previously did not belong to her, in so far as such property may be situated in Estonian territory. All such property became the property of Estonia and was freed from obligations as the date of nationalizing the banks. Further, an article supplementary provides that the Russian Govt will hand over to the Estonian Govt the shares of those joint stock companies which had undertakings in Estonian territory, in so far as such shares may be at the disposal of the Russian Govt as a result of the decree of the Central Executive Committee. But the treaty points out that the above mentioned shares shall only confer on Estonia rights in respect of those undertakings of the joint stock companies which may be situated in Estonian territory and that in no case shall rights of Estonia extend to undertakings of the same companies outside the confers of Estonia. The treaty then expressly mentions the First Co. of Secondary Railways as included amongst these joint stock companies. After coming into force of the treaty.. they were directed to hold general meetings if they did not do so then all the powers of the board would be held as to have lapsed and that curators appointed by the courts would undertake the administration… 8


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The First Co. of Secondary Railways in Russia which had been sequestered was placed under curatorship by order of the District Court of Tallinn‐Hospital. It does not appear that any general meeting of this company was held and it was even said that a meeting was held in Latvia. That at this meeting the board was instructed to take necessary steps to reacquire possession of and to operate the property of the company in Lithuania and Poland. On August 1923, a law was promulgated in Estonia declaring that the concession of the First Company of Secondary Railways in Russia all railways of this company in the territory of the Estonian Republic shall be bought out and become property of the Treasury. But then the next thing that happened was that the Estonian Govt authorized a holding of the meeting. It proceeded to revise and amend the statutes in accordance with Estonian law and with a view to the exercise of the powers thenceforward to be enjoyed by the Company in Estonia. Changed the name of the company into Esimene for short. A general meeting was then held in Tallinn authorizing the board of directors to sell the line situated in Lithuania and the lines in Latvia and Poland. Another general meeting was held to which particular consideration was given to the question of Panevezys‐Saldutikis railway. A request was then sent on behalf of the board of Esimene to the Lithuanian Govt asking it to give instructions for the necessary steps to be taken for the handling over of the Panevezys‐Saldutiskis line to its legal owners. It does not appear that any answer was made to this petition and several years elapsed in the course of which several more petitions were made. On November 1931, a memorandum accompanied by a petition from the board of Esimene was transmitted to the Lithuanian Govt stating that former Russian company transformed into an Estonian company with the same titles and accordingly it claimed fair compensation for the Panevezys line, which belonged to it of which it had been deprived. On January 1933, the Lithuanian govt referred to its council of state, the question whether the Esimene company was justified in putting forward a claim against the Lithuanian Govt in respect of the Panevezys railway. The reply was in the negative. The Lithuanian denied their claim and said that it no longer existed.


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Negotiations continued for the purchase by the Lithuanian Govt. The Lithuanian Govt said that it was a matter of their jurisdiction and a matter of civil law. The Estonian Govt renewed its representations the dispute stating the question of recognition of the Esimene as entitled to the Russian Company and on the question of jurisdiction of the Lithuanian Courts. It also argued that there had been a violation of the Commercial Convention between Estonia and Lithuania and denial of justice. Lithuanian Govt replied that it could not entertain the Estonian claim. The Estonian Govt informed the Lithuanian Govt that it intended to bring the case before the Permanent Court of International Justice. The Lithuanian govt replied that the friendly relations between the two states might make it possible to reach a friendly settlement of the dispute should the Esimene not win its case before the Lithuanian Courts.

Issue: WON Estionian govt should have first exhausted its remedies in Lithuanian Courts and not automatically move it up to the ICJ? Held and Ratio: They should’ve exhausted their remedies first. •

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The rule on international law on the first Lithuanian objection is based that in taking up the case of one of its nationals, resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own right, the right to ensure in the person of its nationals respect for the rules of international law. The Lithuanian agent is therefore right in maintaining that Estonia must prove that at the time when the injury occurred which is alleged to involve international responsibility of Lithuania the company suffering the injury possessed Estonian nationality. This is because the grounds on which Lithuania disputes Estonia’s right to take up the case on behalf of the company that the claim lacks national character, cannot be separated from those on which Lithuania disputes the company’s alleged right to the Panevezys‐Saldutikis railway. The second Lithuanian objection is based on the non‐observance by the Estonian govt of the rule of international law requiring the exhaustion of remedies of international law requiring the exhaustion of the remedies afforded by municipal law. In principle, the property rights and contractual rights of individuals depend in every state on municipal law and fall therefore more particularly within the jurisdiction of municipal 9


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tribunals. The question as to whether or not the Lithuanian courts have jurisdiction to entertain a particular suit depends on Lithuanian law and is one which the Lithuanian courts alone can pronounce a final decision. Until it has been clearly shown that Lithuanian courts have no jurisdiction to entertain a suit by the Esimene company as to its title to the Panevezys‐Saldutiskis railway, the court cannot accept the contention of the Estionian agent that the rule as to exhaustion of local remedies does not apply. Also the rule of international law as to exhaustion of local remedies has never been held to require that a claimant should be bound to institute proceedings on a point on which the highest court has already given a decision. Important to note that the Estonian Company has not instituted any legal proceedings before the Lithuanian Courts in order to establish its title to the Panevezys‐Saldutikis railway. The court then declares that the objection regarding the non‐exhaustion of the remedies afforded by municipal law is well founded and declares that the claim presented by the Estonian Govt cannot be entertained.

was later extradited to the U.S., where he was held at an internment camp until the end of the war. All his possessions in Guatemala were confiscated. After his release, he lived out the rest of his life in Liechtenstein. Liechtenstein offered Nottebohm protection against the government of Guatemala and sued Guatemala in the International Court of Justice. Basically, Liechtenstein is saying that because of Nottebohm’s naturalization, Liechtenstein is entitled to claim from Guatemala in his behalf. However, the government of Guatemala argued that Nottebohm did not gain Liechtenstein citizenship for the purposes of international law. ISSUE: The issue here is the admissibility of Liechtenstein’s application but in order to determine this, the question which the ICJ needs to answer is whether the nationality conferred on Nottebohm by Liechtenstein through naturalization can be validly invoked against Guatemala. HELD: NO •

5. Nottebohm Case (Liechtenstein v. Guatemala) (RK) Liechtenstein claims restitution and compensation on the ground that Guatemala had acted towards the person and property of Mr. Friedrich Nottebohm (naughty bum), a citizen of Liechtenstein, in a manner contrary to international law.

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FACTS: Nottebohm was born in Germany, and was a German citizen, although h e lived in Guatemala since 1903, and conducted a prosperous business there, but never became a citizen of Guatemala. In 1939, he applied to become a citizen of Liechtenstein. The application was approved even though a requirement was that he be in residence there for at least 3 years, but there was an exception and he became a citizen of Liechtenstein. When he tried to re‐enter Guatemala in 1943, he was refused entry (probably because of his original German citizenship and because of WWII). He Dean Candelaria 12‐13

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No proof was adduced that Guatemala has recognized the naturalization of Nottebohm (in which case Guatemala would have been ESTOPPED from denying). So, the ICJ had to determine whether the act of granting nationality by Liechtenstein directly entails an obligation on the part of Guatemala to recognize its effect, namely, Liechtenstein’s right to exercise its protection. (NO) Although the Court stated that it is the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law, such a process would have to be scrutinized on the international plane where the question is of diplomatic protection. (in other words, yes, citizen si Nottebohm according to your law, pero you are claiming his protection and seeking reparation against Guatemala, and this is governed by Int’l law) The Court upheld the principle of effective nationality, (later on termed as the Nottebohm principle) where the national must prove a meaningful connection to the state in question. :> o Different factors to consider include: habitual residence, centre of interests, family ties, participation in public life, attachment shown by him for a given country 10

PIL McRAE Digest: Responsibility of States (part 2) It has been a practice of States to refrain from exercising protection in favour of a naturalized person when the latter has, in fact, by his prolonged absence, severed his links with what is no longer for him anything but his nominal country.  THUS, nationality must correspond to the factual situation o Essential Facts Why Nottebohm failed to establish meaningful connection to Liechtenstein:  German national from time of his birth  Always retained connections with family member  Had business connections with Germany  Germany was at war for more than a month when he applied for naturalization and there was nothing to show that he was motivated by any desire to dissociate himself form the government of Germany  He settled in Guatemala for 34 years and had carried on activities there prior to the war. He returned there after his naturalization until his removal as a result of war measures in 1943. He subsequently tried to return there but Guatemala refused admission.  IN CONTRAST, his connection with Liechtenstein was extremely tenuous.  No settled abode, no prolonged residence, his visit there was transient in character. He had no intention of settling there. He returned to Guatemala shortly after naturalization.  No evidence also of any economic interest in Liechtenstein. Basically, for a claim of a State in behalf of a naturalized citizen to prosper, there must be a meaningful connection between the State and the Naturalized citizen. Meaningful connection is a question of fact and decided on a case‐to‐case basis. o

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Thus, the claim submitted by the Government of the Principality of Liechtenstein is Inadmissible.


6. Case Concerning the Barcelona Traction, Light and Power Company, Ltd (RK) Procedural History: Action

for

damages

for

the

expropriation

of

a

corporation.

Overview: Belgium (P) brought an action for damages against Spain (D) on the ground that its nationals as shareholders of the Barcelona Traction Co., incorporated and registered in Canada, had been seriously harmed by actions of Spain (D) resulting in expropriation. The Barcelona Traction, Light, and Power Co. was incorporated and registered in Canada for the purpose of developing and operating electrical power in Spain (D). After the Spanish Civil War, the company was declared bankrupt by a Spanish court and its assets were seized. After the Canadian interposition ceased, Belgium (P) brought an action for damages against Spain (D) for what it termed expropriation of the assets of the Traction Co. on the ground that a large majority of the stock of the company was owned by Belgian (P) nationals. Spain (D) raised the preliminary objection that Belgium (P) lacked standing to bring suit for damages to a Canadian company. Issue: Does the state of the shareholders of a company have a right of diplomatic protection if the state whose responsibility is invoked is not the national state of the company? Outcome: No. In order for a state to bring a claim in respect of the breach of an obligation owed to it, it must first establish its right to do so. This right is predicated on a showing that the defendant state has broken an obligation toward the national state in respect of its nationals. In the present case it is therefore essential to establish whether the losses allegedly suffered by Belgian (P) shareholders in Barcelona Traction were the consequence of the violation of obligations of which they are beneficiaries.

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PIL McRAE Digest: Responsibility of States (part 2) In the present state of the law, the protection of shareholders requires that recourse be had to treaty stipulations or special agreements directly concluded between the private investor and the state in which the investment is placed. Barring such agreements, the obligation owed is to the corporation, and only the state of incorporation has standing to bring an action for violations of such an obligation. Nonetheless, for reasons of equity a theory has been developed to the effect that the state of the shareholders has a right of diplomatic protection when the state whose responsibility is invoked is the national state of the company. This theory, however, is not applicable to the present case, since Spain (D) is not the national state of Barcelona Traction. Barcelona Traction could have approached its national state, Canada, to ask for its diplomatic protection.

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Barcelona Traction is a company incorporated in Canada with a significant number of Belgium shareholders. It conducted business in Spain thru some subsidiary companies. These subsidiaries were declared bankrupt in Spain.

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Canada eventually declared the company bankrupt as well.

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Belgium suddenly challenged the legality of the action of Spanish Government in declaring the company bankrupt causing prejudice to its citizens.

Issue: W/N Belgium has jus standi? NO Ratio: ‐

Municipal law has always considered that corporations and its stockholders separate entities. And then International Law has only recognized the nationality of the company to intervene on behalf of it.

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The state of a shareholders corporation has a right of diplomatic protection only when the state whose responsibility is invoked is the national state of the company.

The Nationality of the the company is Canadian (it was incorporated there, and its principal office is there), not Belgian. It is irrelevant that there are Belgian shareholders. Only Canada can intervene in behalf of the corporation. Canada has a 'genuine connection' with the corporation.

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Analysis:

Just because Canada did not exercise this 'right', there is no rationale to allow Belgium to take over. There must exist a legal basis for a state to intervene in behalf of a corporation.

For the above reasons, the Court is of the opinion that Belgium (P) lacks standing to bring this action. Rule:

The Restatement of the Foreign Relations Law of the United States. § 185, states that failure of a state to pay just compensation for the taking of the property of an alien is wrongful under international law, regardless of whether the taking itself is conceived as wrongful. Such a wrongful taking is characterized either as tortious conduct or as unjust enrichment

8. Banco Nacional De Cuba v. Sabbatino (RC) Topic: Act of State Doctrine Facts: ‐

US enacted a law that basically decreased the allowable import of Cuban sugar/products. Cuba thought this was an act of aggression on the part of the US, so the former adopted a policy that targeted American‐owned companies and allowed for the forcible expropriation of such.

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A company, CAV (Compania Azucarera Vertientes‐Camaguey de Cuba) owned by American citizens was affected by this policy implemented by the President of Cuba.

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CAV had previously had a contract to ship sugar to New York. The contract/sugar was forcibly expropriated Cuba and the the bills of exchange evidencing the transaction was assigned to Banco National.

7. Barcelona Traction: The Jus Standi of Belgium (RC) Topic: jus standi of State, Nottebohm Case is inapplicable Facts: ‐

Nottebohm case is the one with the German guy who applied for citizenship with Liechtenstein to avoid some tax laws in Guatemala. In this case the "genuine link" theory was applied. (the article calls this case impertinent, I don't really get the connection though, it was just mentioned in the article)


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PIL McRAE Digest: Responsibility of States (part 2) ‐

When the sugar arrived and the bills were presented to US buyer. The latter refused to pay. So it went before the US courts.

Issue: W/N the Cuban policy is against the principles of IL? Yeah... but we shouldn't judge W/N the US Courts can overturn such policy and compel the equal treatment of Americans? NO

This law says that the US will withdraw any assistance to foreign governments when they: nationalize or expropriate or seize ownership of control property owned by US citizen or corporation with 50% US‐ownership takes steps to repudiate or nullify contracts owned by US citizen or corporation with 50% US‐ownership

impose discriminatory taxes or other extractions/restrictions on properties or interests owned by US citizen or corporation with 50% US‐ownership

Ratio:

*** Basically exactly what Cuba with the CAV company.

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The Act of State Doctrine tells us that every sovereign state should respect the acts done by another sovereign state within its territory. This is ultimately rooted in the principle that all states are equal and that they exercise jurisdiction over their territory. Corollary, the judiciary should not get involved in questions best answered by executive or legislative prerogative and are best addressed by foreign policy.

Admittedly, the forcible expropriation of American‐owned companies is abhorrent to US law and values. But Cuba cannot be held to the same standards. It is for the best that the Act of State Doctrine be observed in the instant case.

Petitioner: Alfred Dunhill of London, Inc.

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DISSENT OF JUSTICE WHITE (Cande included it in the reading):

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The US should not follow blindly the Act of State Doctrine. There is no rule in IL that it should strictly followed.

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More importantly, there is a blatant violation of International Law since the Cuban policy is clearly retaliatory (it was done is response to the US decrease of allowable Cuban imports) and discriminatory (it only targeted US‐owned companies). There are international standards against this.

10. Alfred Dunhill v. Cuba (JG) TOPIC: International Claims; Act of State doctrine 96 S.Ct. 1854 (1976), 425 U.S. 682, 48 L.Ed. 2d 301 Respondents: Republic of Cuba, et al. Ponente: White, J. FACTS: •

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9. Foreign Assistance Act (RC) The year the above decision was passed, the US came up with this law. Instead of directly addressing the issue, the US basically cut all ties with Cuba after the Banco National incident. Dean Candelaria 12‐13

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In 1960, the Cuban Government confiscated Cuban corporations which exported Havana cigars to other countries. o U.S. companies Dunhill, Saks & Co. (Saks) and Faber, Coe & Gregg, Inc. (Faber) were the three principal importers of cigars from the Cuban corporations. Agents of the Cuban Government named “interventors” took possession of and continued to operate the business of the seized Cuban corporations. o They continued exporting cigars to foreign purchasers, including Dunhill, Saks, and Faber. In suits between the former owners of the Cuban companies and the American importers, the Cuban “interventors” and the Republic of Cuba were allowed to intervene. On the assumption that the “interventors” were entitled to collect the accounts receivable of the Cuban companies, the American importers mistakenly paid the “interventors” sums of money. The former owners then claimed title to and demanded payment of these accounts. 13


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The District Court held that: o With respect to the shipments made after the date of intervention, the “interventors” were accordingly entitled to collect from the importers all amounts due and unpaid. o As to the accounts owing at the time of the intervention, the former owners were entitled to collect them from the importers.  This is because the United States courts will not give effect to foreign government confiscations without compensation of property located in the United States, and the situs of the accounts receivable was with the importer‐debtors.  Hence, the importer‐debtors had mistakenly paid the sums of money to the “interventors” in the belief that they were fully discharging trade debts in the ordinary course of their business. Since there was a mistake in payment by the importers, the latter claims that they are entitled to recover these payments from the “interventors” by way of counterclaim and set‐off. o The “interventors” claim that their refusal to pay the obligation was an act of state, which shall not be questioned in other courts. The District Court held that: o First, the situs of the obligation was deemed situated in the U.S. and hence remained unaffected by any confiscatory act by the Cuban Government. o Second, nothing had occurred which qualified as an act of state. The importers were accordingly held entitled to set off their mistaken payments to the “interventors” for pre‐intervention shipments against the amounts due from them for their post‐intervention purchases. o Faber and Saks, because they owed more than the “interventors” were obligated to return to them – were satisfied completely by the right to set off. o But Dunhill was entitled to more from the “interventors”. Contrary to the District Court, the Court of Appeals was of the view that the mistaken payments by the importers to the “interventors” gave rise to a quasi‐contractual obligation to repay these sums. It had a situs in Cuba, and had been extinguished by a conduct that was deemed to be an act of state. Hence, the act of state doctrine was said to bar the affirmative judgment awarded to Dunhill to the extent that its claim exceeded its debt. o Hence, this petition for certiorari filed by Dunhill.


ISSUE/HELD: Whether the statement by counsel for the Republic of Cuba constituted an act of state. ‐ NO. The statement that Dunhill cannot recover mistaken payments by way of set off is not an act of state. RATIO: •

•

•

The concept of an act of state should not be extended to include the repudiation of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities. Repudiations by a foreign sovereign of its commercial debts should not be considered to be acts of state since they are commercial, and not public, in nature. o The acts arising out of the conduct by Cuba’s agents/interventors in the operation of cigar businesses for profit was not an act of state  They are not public and sovereign acts or those carried out in the exercise of governmental authority. The “restrictive theory” of sovereign immunity was applied in this case. o It suggests that established rules regarding commercial dealings of private parties should be applied to the commercial transactions of sovereign states. o In their commercial capacities, foreign governments do not exercise powers peculiar to sovereigns. Instead, they exercise only those powers that can also be exercised by private citizens.

11. Buttes Gas and Oil Co. v. Hammer (JG) TOPIC: Acts of State [1981] 3 W.L.R. 787 (H.L.) Petitioner: Buttes Gas & Oil Co. and Another Respondents: Hammer and Another FACTS: •

Three states, the Emirates of Sharjah, Umm Al Qaiwain (UAQ), and the State of Iran are involved in this case. 14


•

•

•

• •

•

They are laying claim on certain portions of the Abu Misa, which is a portion of the Arabian Gulf. o The waters of the Arabian Gulf are less than 200 meters in depth, and so potentially have continental shelf status of some coastal state or states. o The Gulf contains a number of islands and there may be conflicting claims with regard to the boundary lines. Two Californian oil exploration corporations were granted oil concessions in the Gulf. o One was granted by the ruler of UAQ to Occidental (defendants), and the other to Buttes (plaintiffs) by the ruler of Sharjah. o The area in dispute was rich in oil. It is being contended by Occidental and Dr. Hammer (defendants) that the grant given to Buttes was unlawful since it was by virtue of a back‐dated decree made by the Ruler of Sharjah. o In the decree, it was declared that the territorial sea of Sharjah would be extended to 12 miles (from an original width of 3 miles) from the baselines around its coasts and islands, by virtue of Sharjah’s rights over the continental shelf. o This back‐dated decree allowed the Emirates of Sharjah to obtain the oil‐bearing deposits therefrom. Occidental and Dr. Hammer allege that Buttes committed conspiracy with Sharjah and induced the latter to back‐date the decree in order to wrongfully and fraudulently manipulate the granting of the concessionaire to Buttes, to defraud, cheat and cause injury to Occidental. Thereafter, UAQ terminated the concession it granted to Occidental, the latter now having no more rights to exploit the deposits. In an action for damages against Buttes, Occidental alleges that the agreements among the three states which determined their boundaries and interests over the disputed area are unlawful and void. For their part, Buttes and Mr. Boreta submit the following arguments that: o The doctrine of sovereign immunity applies, in so far as this excludes actions concerning property which is in the ownership, possession or control of a foreign sovereign state, or in which a foreign state claims an interest; and o The English courts will not entertain actions:


Requiring the interpretation of the nature of obligations arising under transactions between foreign sovereign states; or  Questioning the validity or effectiveness of foreign legislation; or  Examining the validity of, or motives for, acts of foreign sovereign states in their international relations. In answer to these, the contentions of Occidental include the following: o There is no absolute rule forbidding English courts from entertaining questions relating to foreign land; o There is no absolute rule forbidding English courts from sitting in judgment upon or inquiring into the validity or nature of a foreign law; o There is no general doctrine of “act of state” which can be applied to the facts of the present case; and o The doctrine of sovereign immunity has no application. 

•

ISSUE/HELD: Whether or not the act of state doctrine applies, such that the English courts can not exercise jurisdiction over transactions of foreign sovereign states – YES. There exists in English law a more general principle that the courts will not adjudicate upon the transactions of foreign sovereign states. •

In Duke of Brunswick v. King of Hanover – the court held that there are two important elements: (1) sovereign immunity ratione personae; and (2) immunity from jurisdiction ratione materiae. o It is the second that is relevant; it clearly states that the courts in England will not adjudicate upon acts done abroad by virtue of sovereign authority.

•

In Underhill v. Hernandez – the US Supreme Court held that: “Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.”

15


•

It is a well‐established principle of law that the transactions of independent states between each other are governed by other laws than those which municipal courts administer. (Cook v. Sprigg) To permit the validity of the acts of one sovereign state to be re‐examined and perhaps condemned by the courts of another would very certainly imperil the amicable relations between governments and vex the peace of nations. (Oetjen v. Central Leather Co.)


16

RESPONSIBILITY OF STATES Responsibility for Acts Affecting Individuals 1. Marcos v. Manglapus (JG) Marcos v. Manglapus (I) Treaties/Laws: • • •

The Universal Declaration of Human Rights The International Covenant on Civil and Political Rights The 1987 Constitution

G.R. No.: 88211 September 15, 1989 Petitioner: Ferdinand E. Marcos, Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee Manotoc, Tomas Manotoc, Gregorio Araneta, Pacifico E. Marcos, Nicanor Yniguez, and Philippine Constitution Association, represented by its President, Conrado F. Estrella Respondents: Honorable Raul Manglapus, Catalino Macaraig, Sedfrey Ordonez, Miriam Defensor‐Santiago, Fidel Ramos, Renato De Villa, in their capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff, respectively Ponente: Cortes, J. FACTS: •

• •

In February 1986, Marcos was ousted from presidency by means of the People Power. o He was forced into exile in Hawaii. After 3 years, Marcos, now dying, prays that he and his family be allowed to return to the country. Aquino barred the Marcoses from returning due to possible threats and following supervening events: o Failed Manila Hotel coup in 1986 led by Marcos leaders o Channel 7 taken over by rebels and loyalists o Plan of Marcoses to return with mercenaries abroad a chartered plane of a Lebanese arms dealer o Honasan’s failed coup o Communist insurgency movements o Secessionist movements in Mindanao o Devastated economy due to  Accumulated foreign debt

•

 Plunder of nation by Marcos and his cronies Petitioners – 1. Filed a petition for mandamus and prohibition to order respondents to issue them travel documents and prevent implementation of the President’s decision to bar Marcoses from returning. 2. Are questioning: a. If the president has the power to bar the return of Marcoses. i. They ask if such is a political question. b. Assuming that the President has the power to bar the return of the Marcoses i. Is there a clear and present danger to national security, public safety or public health? ii. If so, was there due process? iii. Is the President’s determination (that the return of former President Marcos and his family is a clear and present danger to national security, public safety or public health) a political question? iv. Have the respondents established that the Court may inquire as to whether the return of former President Marcos and his family is a clear and present danger to national security, public safety or public health? 3. Are claiming that: a. Such act deprives them of their right to life, liberty, and property without due process and equal protection of the laws. b. Such act deprives them of their right to travel, which according to Constitution may only be impaired by a court order. c. Even international laws provide for their right to return. i. The Universal Declaration of Human Rights provide: 1. The right to freedom of movement and residence within the borders of each state; 2. The right to leave any country, including his own, and to return to his country. ii. The International Covenant on Civil and Political Rights provide: 1. The right to liberty, movement, and freedom to choose his residence; 2. The right to be free to leave any country, including his own 3. That these shall not be subject to any restrictions except those which are provided by law and are necessary to protect national security, public order, public health or

•

morals, or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant; and 4. That no one shall be arbitrarily deprived of the right to enter his own country. For their part, the respondents claim that – 1. The question of whether or not petitioners have the right to return to the Philippines and reside therein is a political question which also involves the State’s right to security and safety, and which only the President can determine. 2. The supervening events mentioned can endanger national security and public safety. 3. Article II of the Constitution provides that the State has the duty to maintain peace and order and protect rights of the people and promote the general welfare for the enjoyment by all the people of the blessings of democracy.

1.

c. d. e. f. g. 3.

ISSUES/HELD: 1.

2.

Whether or not the right to travel is similar to the right to return to one’s country – NO a. International laws distinguish the right to freedom of movement and residence from the right to leave any country including his own and to return to his country. b. The right to return to one’s country is not guaranteed by the Bill of Rights but only incorporated by virtue of the Constitution’s adoption of international laws as part of the laws of the land. Whether it is within the President’s power to ban deposed dictators from returning to the country. – YES a. Separation of power dictates that each department has exclusive powers. b. Although the Constitution provides for the tasks of the president, this list is not exclusive. i. There are residual and discretionary powers not stated in the Constitution which include the power to protect the general welfare of the people. ii. As the head of the State, the President is obliged to protect the people, promote their welfare, and advance national interest. (Art. II, Secs. 4‐5 of the Constitution). iii. Residual powers dictate that

The President can do anything which is not forbidden in the Constitution. 2. It is inevitable to vest discretionary powers on the President. 3. The President has to maintain peace not only during times of emergency but also on the day‐to‐day operation of the State. Any power not vested on the judicial and legislative bodies belong to the executive. (Springer v. Government of the Philippine Islands) It’s a folly to limit governmental powers to what is in the Constitution. (Holmes Dissent) The rights that the Marcoses are invoking are not absolute. They are flexible depending on the circumstances. Congress has recognized the President’s power by coming up with a resolution to urge Aquino to allow the Marcoses to return. The Constitution is a social contract between the sovereign who surrenders its powers to the chosen rulers for the common good.

Whether the President in banning the deposed dictator from returning acted with grave abuse of discretion amounting to lack or excess of jurisdiction – NO a. There exists factual bases ‐ from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the briefing in chambers by the Chief of Staff of the AFP and the National Security Adviser, for the President to conclude that it was in the national interest to bar the return of the Marcoses to the Philippines. b. It is the duty of the President to take preemptive measures for the self‐ preservation of the country and protection of the people.

DISPOSITIVE: Wherefore, the President did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family at the present time and under present circumstances poses a serious threat to national interest and welfare and in prohibiting their return to the Philippines. Petition is Dismissed. MARCOS v. MANGLAPUS (II) Treaties/Laws: • • •

The Universal Declaration of Human Rights The International Covenant on Civil and Political Rights The 1987 Constitution

G.R. No.: 88211 October 27, 1989

Petitioner: Ferdinand E. Marcos, Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee Manotoc, Tomas Manotoc, Gregorio Araneta, Pacifico E. Marcos, Nicanor Yniguez, and Philippine Constitution Association, represented by its President, Conrado F. Estrella

b.

Respondents: Honorable Raul Manglapus, Catalino Macaraig, Sedfrey Ordonez, Miriam Defensor‐Santiago, Fidel Ramos, Renato De Villa, in their capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff, respectively

c.

d.

FACTS: • •

• •

In September 28, 1989, Marcos died in Honolulu. Aquino made a statement to the effect that the remains of Marcos will not be allowed to be brought to the country in the interest of the safety of those who will react conflictingly to the death of Marcos and for the tranquility of the state and order of the society. This will hold until the government, whether present or succeeding, decides otherwise. On October 2, 1989, petitioners filed a Motion for Reconsideration with the following arguments: o Barring their return would deny them their inherent right as citizens to return to their country of birth and all other rights guaranteed by the Constitution to all Filipinos o The President has no power to bar a Filipino from his own country; if she has, she acted arbitrarily. o There is no basis for barring their return.

ISSUE/HELD: Whether or not the petitioners should be allowed to return to the country – NO 1. 2.

3.

The petitioners failed to show any compelling reason to warrant reconsideration. The death of Marcos, although it may be viewed as a supervening event, has not changed factual scenario during the time the Court rendered its decision. a. The threats to the government are still present. b. Mrs. Marcos even made a statement claiming that it is Mr. Marcos, not Mrs. Aquino, who is the “legal” President of the Philippines, and declared that the matter “should be brought to all courts of the world.” The President has unstated residual powers implied form the grant of executive power. a. Enumerations are merely for specifying principal articles implied in the definition, leaving the rest to flow from the general grant of executive

power, interpreted in conformity with other parts of the Constitution. (Hamilton) The Executive, unlike Congress, can exercise power form sources not enumerated so long as not forbidden by the constitutional text. (Myers v. US) This does not amount to dictatorship. The 1973 Constitution pursuant to Amendment No. 6 expressly granted Marcos the power of legislation, whereas the 1987 Constitution granted Aquino with implied powers. It is within Aquino’s power to protect and promote the interest and welfare of the people. She is bound to comply with that duty and there is no proof that she acted arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction.

DISPOSITIVE: Motion for Reconsideration is denied for lack of merit. Dean Cande’s notes: Application of the UDHR and ICCPR on the right to return of the Marcoses form Hawaii even if the Bill of Rights did not specify this right. However, the Court held that the GRP did not act arbitrarily in determining that the return of the Marcoses under the circumstances then existing posed a serious threat to national interest and welfare.

2. ISA v Quisumbing (CG) Topic: Discrimination Petitioner: INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS (ISAE) Respondents: HON. LEONARDO A. QUISUMBING in his capacity as the Secretary of Labor and Employment; HON. CRESENCIANO B. TRAJANO in his capacity as the Acting Secretary of Labor and Employment; DR. BRIAN MACCAULEY in his capacity as the Superintendent of International School‐Manila; and INTERNATIONAL SCHOOL, INC., respondents. Summary: IS pays its teachers who are foreign‐hires, a higher salary than its local‐ hires, whether the latter are Filipino or not (most are Filipino, but some are American). It justifies this under the ‘dislocation factor’ – to attract them to teach here, and to compensate them for the “significant economic disadvantages” involved in coming here. The Teacher’s Union cries discrimination. Court held that it is actually discriminatory and the classification was not a reasonable one. Even according to international law, there must be “equal pay for equal work.” And it cannot be said that they are given higher salaries to entice them or compensate

them for their dislocation or limited tenure because they already enjoy benefits (housing, etc.) not being enjoyed by local‐hires.

•

The Acting Secretary of Labor found that these non‐Filipino local‐hires received the same benefits as the Filipino local‐hires: The compensation package given to local‐hires has been shown to apply to all, regardless of race. Truth to tell, there are foreigners who have been hired locally and who are paid equally as Filipino local hires.

•

The Acting Secretary upheld the point‐of‐hire classification for the distinction in salary rates for the same reasons IS gave.

•

He also said that the Equal Protection Clause is cannot be invoked as there was a reasonable classification based on substantial distinctions and that it applies equally to all members of the same class

Facts: •

International School (IS), pursuant to PD 732, is a domestic educational institution established primarily for dependents of foreign diplomatic personnel and other temporary residents

•

The same decree authorizes IS to employ its own teaching and management personnel selected by it either locally or abroad

•

Such personnel being exempt from otherwise applicable laws and regulations attending their employment, except laws that have been or will be enacted for the protection of employees

Issue: WON the act of giving more salaries foreign‐hires than the local‐hires cry discrimination – YES

•

Accordingly, IS hires both foreign and local teachers as members of its faculty, classifying into foreign or local hires

Ruling:

•

The School grants foreign‐hires certain benefits not accorded local‐hires. These include housing, transportation, shipping costs, taxes, and home leave travel allowance. Foreign‐hires are also paid a salary rate twenty‐five percent (25%) more than local‐hires.

The Constitution •

Article on Social Justice and Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity, reduce social, economic, and political inequalities."

•

The School justifies the difference on two "significant economic disadvantages" foreign‐hires have to endure, namely: (a) the "dislocation factor" and (b) limited tenure.

•

•

When negotiations for a new CBA were held on June 1995, IS Alliance of Educators (ISAE), a legitimate labor union and the collective bargaining representative of all faculty members of IS, contested the difference in salary rates, which eventually caused a deadlock between the parties

The Constitution specifically provides that labor is entitled to "humane conditions of work." These conditions are not restricted to the physical workplace 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."

•

The failure of the National Conciliation and Mediation Board to bring the parties to a compromise prompted the (DOLE) to assume jurisdiction over the dispute

•

Thereafter, the DOLE Acting Secretary, Trajano, issued an Order resolving the parity and representation issues in favor of IS

•

Then DOLE Secretary Quisumbing subsequently denied petitioner's motion for reconsideration. Thus, petitioner now seeks relief in this Court

•

ISAE claims that the point‐of‐hire classification employed by the School is discriminatory to Filipinos and that the grant of higher salaries to foreign‐hires constitutes racial discrimination.

•

Similarly, the Labor Code provides that the State shall "ensure equal work opportunities regardless of sex, race or creed."

The School disputes these claims and gives a breakdown of its faculty members, numbering 38 in all, with nationalities other than Filipino, who have been hired locally and classified as local hires.

•

•

Article 135, for example, prohibits and penalizes the payment of lesser compensation to a female employee as against a male employee for work of equal value.

The Civil Code •

The very broad Article 19 of the Civil Code requires every person, "in the exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his due, and observe honesty and good faith."

Labor Code

•

Article 248 declares it an unfair labor practice for an employer to discriminate in regard to wages in order to encourage or discourage membership in any labor organization.

•

The School cannot invoke the need to entice foreign‐hires to leave their domicile to rationalize the distinction in salary rates without violating the principle of equal work for equal pay.

•

While we recognize the need of the School to attract foreign‐hires, salaries should not be used as an enticement to the prejudice of local‐hires. The local‐ hires perform the same services as foreign‐hires and they ought to be paid the same salaries as the latter.

•

The dislocation factor and limited tenure affecting foreign‐hires are already adequately compensated by certain benefits accorded them which are not enjoyed by local‐hires, such as housing, transportation, shipping costs, taxes and home leave travel allowances.

•

These relations are not merely contractual but are so impressed with public interest that labor contracts, collective bargaining agreements included, must yield to the common good

International Law •

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 Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation ‐ all embody the general principle against discrimination, the very antithesis of fairness and justice.

•

Notably, the International Covenant on Economic, Social, and Cultural Rights, supra, in Article 7 thereof, provides: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favorable conditions of work, which ensure, in particular:

WHEREFORE, the petition is GIVEN DUE COURSE. The petition is hereby GRANTED IN PART. The Orders of the Secretary of Labor and Employment dated June 10, 1996 and March 19, 1997, are hereby REVERSED and SET ASIDE insofar as they uphold the practice of respondent School of according foreign‐hires higher salaries than local‐ hires.

3. Republic v SB (RL)

a.....Remuneration which provides all workers, as a minimum, with: i.....Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; x x x. •

The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries.

•

This rule applies to the School, its "international character" notwithstanding.

•

There is no evidence proved, as to their defense, that foreign‐hires perform 25% more efficiently or effectively than the local‐hires.

•

Both groups have similar functions and responsibilities, which they perform under similar working conditions.

TOPIC: Rights of the Filipinos are protected under IL during the interregnum period. [G.R. No. 104768. July 21, 2003] Petitioner: Republic of the Philippines Respondent: Sandiganbayan, Major General Josephus Q. Ramas and Elizabeth Dimaano Ponente: CARPIO, J.: SUMMARY: After the EDSA Revolution, Pres. Aquino created the PCGG, which thereafter created an AFP Anti‐Graft Board. It investigated various reports of alleged unexplained wealth of Maj. Gen. Ramas. A search warrant was issued which allowed the authorities to seize items (equipments, money, etc) from Dimaano’s house in Batangas (alleged mistress of Ramas). The PCGG then filed a case in the SB against Ramas and Dimaano for violation of the Anti‐Graft and Corrupt Practices Act. Ramas and Dimaano filed their MTD based on Republic v. Migrino, which held that the PCGG does not have jurisdiction to investigate and prosecute military officers by reason of

mere position held without a showing that they are “subordinates” of Marcos. SB dismissed the complaint but ordered that the monies, equipment etc be returned to Dimaano. It remanded the case to the OMB for appropriate action. PCGG argues (among others) that the search and seizure was legal because the two cannot invoke their exclusionary right, as there was no Bill of Rights or Constitution in force at the time of the seizure.

• •

The SC held that the ICCPR and the UNDHR remained in force during the interregnum period. The revolutionary government did not repudiate such obligations of the Philippines; hence, the respondents’ rights are protected under these treaties. Furthermore, the authorities exceeded their authority by seizing items, which were not particularly described in the warrant. FACTS: (oks na yung summary for facts) •

•

• •

•

Pres. Cory Aquino issued EO 1 creating the PCGG. o PCGG is primarily tasked to recover all ill‐gotten wealth of former Marcos, his family and cronies. The PCGG, through Chairman Salonga, created an AFP Anti‐Graft Board (“AFP Board”) tasked to investigate reports of unexplained wealth and corrupt practices by AFP personnel, whether in the active service or retired. The AFP Board investigated various reports of alleged unexplained wealth of respondent Major General Ramas (“Ramas”). It issued a Resolution on its findings and recommendation on the reported unexplained wealth of Ramas, and concluded that a prima facie case exists against him. It further recommended that he be tried for the violation of the Anti‐Graft and Corrupt Practices Act (RA 1379). Some of the findings stated in the resolution: o He owns a house in La Vista worth P700,000. o Military equipment/items and communication facilities were found in the premises of Elizabeth Dimaano’s (his alleged mistress, as stated in the affidavits of certain Military Units) house in Batangas. o The team was also able to confiscate money in the amount of P2,870,000.00 and $50,000 US Dollars in the house of Elizabeth Dimaano. o Sworn statement disclosed that Elizabeth Dimaano had no visible means of income and is supported by Ramas for she was formerly a mere secretary. o Taking in toto the evidence, Elizabeth Dimaano could not have used the items seized in her house without the consent of respondent as general of the AFP.

It is also impossible for Elizabeth Dimaano to claim that she owns the the money for she had no visible source of income. o The money was never declared in the SALN of Ramas as these are all ill‐ gotten and unexplained wealth. Thus, PCGG filed a petition for forfeiture under RA 1379 against Ramas. Before Ramas could answer the petition, then SolGen Chavez filed an Amended Complaint naming the Republic of the Philippines, represented by the PCGG, as plaintiff and Ramas as defendant. It also impleaded Elizabeth Dimaano (“Dimaano”) as co‐defendant. o “xxx alleged that Ramas “acquired funds, assets and properties manifestly out of proportion to his salary as an army officer and his other income from legitimately acquired property by taking undue advantage of his public office and/or using his power, authority and influence as such officer of the AFP and as a subordinate and close associate of the deposed President Ferdinand Marcos.” It also alleged that the AFP Board found reasonable grounds to believe such allegation and prayed for the forfeiture of Ramas’ properties, funds and equipment in favor of the State. Ramas filed an Answer contending that his property consisted only of a house in La Vista. He denied ownership of any mansion in Cebu City and the cash, communications equipment and other items confiscated from the house of Dimaano. Dimaano filed her own Answer admitting her employment as a clerk‐typist in the office of Ramas and claimed ownership of the monies, communications equipment, etc seized from her house. The case was set for trial by November of 1988. Petitioner from then on started askin for defgerment of hearing due to its lack of preparation, absence of witnesses and documents, among other reasons.On o SB noted that petitioner had already delayed the case for over a year mainly because of its many postponements. Ramas and Dimaano eventually filed their MTD based on Republic v. Migrino which held that the PCGG does not have jurisdiction to investigate and prosecute military officers by reason of mere position held without a showing that they are “subordinates” of Marcos. SB dismissed the complaint but ordered that the monies, equipment etc be returned to Dimaano. It remanded the case to the OMB for appropriate action. A MR was filed but the same was dismissed. o

•

•

•

• •

•

• •

ISSUES:

st

1 ISSUE: W/N PCGG has Jurisdiction to Investigate Private Respondents—NO JURISDICTION. This involves the revisiting of an issue decided by this Court in Cruz, Jr. v. Sandiganbayan and Republic v. Migrino: (summarized version) o The term “subordinate” refers to one who enjoys a close association with former President Marcos and/or his wife, similar to the immediate family member, relative, and close associate in EO No. 1 and the close relative, business associate, dummy, agent, or nominee in EO No. 2. o It does not suffice that the respondent is or was a government official or employee during the administration of former President Marcos. There must be a prima facie showing that the respondent unlawfully accumulated wealth by virtue of his close association or relation with former Pres. Marcos and/or his wife. (Emphasis supplied) Hence, Petitioner has no jurisdiction over private respondents. The PCGG cannot exercise investigative or prosecutorial powers never granted to it. o PCGG’s powers are specific and limited. o Unless given additional assignment by the President, PCGG’s sole task is only to recover the ill‐gotten wealth of the Marcoses, their relatives and cronies. Private respondents questioned the jurisdiction of the PCGG by filing their MTD as soon as they learned of the pronouncement in Migrino. This case was decided on 30 August 1990, which explains why private respondents only filed their MTD on 8 October 1990. o Nevertheless, it has been held that the parties may raise lack of jurisdiction at any stage of the proceeding. o Hence, there was no waiver of jurisdiction in this case. o Jurisdiction is vested by law and not by the parties to an action. Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to conduct the preliminary investigation.

•

• •

•

•

• rd

3 ISSUE (IMPT!): W/N the Search and Seizure was legal—NOT LEGAL. •

• •

•

nd

2 ISSUE: W/N the Dismissal of the Case is Proper Before Completion of Presentation of Evidence—YES, dismissal was proper. •

•

Based on the findings of the SB and the records of this case, the SC finds that petitioner has only itself to blame for non‐completion of the presentation of its evidence. The Sandiganbayan gave petitioner more than sufficient time to finish the presentation of its evidence. It overlooked petitioner’s delays and yet petitioner

ended the long‐string of delays with the filing of a Re‐Amended Complaint, which would only prolong even more the disposition of the case. Thus, we hold that the Sandiganbayan did not err in dismissing the case before completion of the presentation of petitioner’s evidence.

•

Petitioner wants the Court to take judicial notice that the raiding team conducted the search and seizure five days after the successful EDSA revolution. o It argues that a revolutionary government was operative at that time and asserts that the revolutionary government effectively withheld the operation of the 1973 Constitution which guaranteed private respondents’ exclusionary right. o It also argues that the exclusionary right arising from an illegal search applies only beginning 2 February 1987, the date of ratification of the 1987 Constitution. o Petitioner contends that all rights under the Bill of Rights had already reverted to its embryonic stage at the time of the search. o Therefore, the government may confiscate the monies and items taken from Dimaano and use the same in evidence against her since at the time of their seizure, private respondents did not enjoy any constitutional right. SC: Petitioner is partly right in its arguments. The resulting government was indisputably a revolutionary government bound by no constitution or legal limitations except treaty obligations that the revolutionary government, as the de jure government in the Philippines, assumed under international law. The correct issues are: o W/N the revolutionary government was bound by the Bill of Rights of the 1973 Constitution during the interregnum; and o W/N the protection accorded to individuals under the International Covenant on Civil and Political Rights (“Covenant”) and the Universal Declaration of Human Rights (“Declaration”) remained in effect during the interregnum. SC: the Bill of Rights under the 1973 Constitution was NOT operative during the interregnum. o However, the protection accorded to individuals under the Covenant and the Declaration REMAINED IN EFFECT during the interregnum.

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During the interregnum, the directives and orders of the revolutionary government were the supreme law because no constitution limited the extent and scope of such directives and orders. o Thus, during the interregnum, a person could not invoke any exclusionary right under a Bill of Rights because there was neither a constitution nor a Bill of Rights during the interregnum. o To hold that the Bill of Rights under the 1973 Constitution remained operative during the interregnum would render void all sequestration orders PCGG before the adoption of the Freedom Constitution. During the interregnum, no one could validly question the sequestration orders as violative of the Bill of Rights because there was no Bill of Rights during the interregnum. To rule that the Bill of Rights of the 1973 Constitution remained in force during the interregnum, absent a constitutional provision excepting sequestration orders from such Bill of Rights, would clearly render all sequestration orders void during the interregnum. o Nevertheless, even during the interregnum the Filipino people continued to enjoy, under the Covenant and the Declaration, almost the same rights found in the Bill of Rights of the 1973 Constitution. The revolutionary government, after installing itself as the de jure government, assumed responsibility for the State’s good faith compliance with the Covenant to which the Philippines is a signatory. o Article 2(1) of the Covenant requires each signatory State “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” o Under Article 17(1) of the Covenant, the revolutionary government had the duty to insure that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.” The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that “[n]o one shall be arbitrarily deprived of his property.” o Although the signatories to the Declaration did not intend it as a legally binding document, being only a declaration, the Court has interpreted the Declaration as part of the generally accepted principles of international law and binding on the State. o Thus, the revolutionary government was also obligated under international law to observe the rights of individuals under the Declaration. The revolutionary government did not repudiate the Covenant or the Declaration during the interregnum.

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Suffice it to say that the Court considers the Declaration as part of customary international law, and that Filipinos as human beings are proper subjects of the rules of international law laid down in the Covenant. As the de jure government, the revolutionary government could not escape responsibility for the State’s good faith compliance with its treaty obligations under international law. During the interregnum when no constitution or Bill of Rights existed, directives and orders issued by government officers were valid so long as these officers did not exceed the authority granted them by the revolutionary government. o The directives and orders should not have also violated the Covenant or the Declaration. In this case, the revolutionary government presumptively sanctioned the warrant since the revolutionary government did not repudiate it. o The warrant, issued by a judge upon proper application, specified the items to be searched and seized. o The warrant is thus valid with respect to the items specifically described in the warrant. However, the Constabulary raiding team seized items not included in the warrant. o The search warrant did not particularly describe these items and the raiding team confiscated them on its own authority. o The raiding team had no legal basis to seize these items without showing that these items could be the subject of warrantless search and seizure. o Clearly, the raiding team exceeded its authority when it seized these items. The seizure of these items was therefore void, and unless these items are contraband per se, and they are not, they must be returned to the person from whom the raiding seized them.

DISPOSITIVE: WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of the Sandiganbayan, remanding the records of this case to the Ombudsman for such appropriate action as the evidence may warrant, and referring this case to the Commissioner of the Bureau of Internal Revenue for a determination of any tax liability of respondent Elizabeth Dimaano, are AFFIRMED.

4. CB Employees v BSP (EM) Central Bank Employees Association, petitioner Bangko Sentral ng Pilipinas, and the Executive Secretary, respondents December 15, 2004 G.R. 148208 Puno, J.:

RA 7653 (The New Central Bank Act) took effect in 1993 o Created the new BSP and abolished the old Central Bank of the Philippines In 2001, petitioner CB Employees Association filed a petition against herein respondents to restrain them from further implementing the last provision in Sec. 15(c), Art. II of this law o "..The compensation and wage structure of employees whose positions fall under salary grade 19 and below shall be in accordance with the rates prescribed by RA 6758." o They alleged that it is unconstitutional •

• o

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He stated that there was "actual and real differentiation"

Issue: WON the proviso in issue violates the Equal Protection Clause Held: YES

Facts:

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The SG, on behalf of the Executive Secretary, also defends the validity of the provision

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o

It made an "unconstitutional cut" between two classes of employees: (1) BSP officers or those exempted from the coverage of the Salary Standardization Law (SSL), and (2) rank‐and‐file, salary grade 19 and below, or those not exempted from the SSL

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In essence, NO, BUT the subsequent laws exempting other Rank‐and‐File employees (other than the CB) from the SSL renders it violative of the EPC

Ratio: 1.

On Local Law •

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They argue that this violates the EPC, a classic case of class legislation with no substantial distinctions

The concept of "relative constitutionality" •

A statute valid at one time may become void at another time because of altered circumstances

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Thus, if it becomes arbitrary in its practical operation, its validity may be open to inquiry in light of changed conditions

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The continued operation and enforcement of the law at the present time is unreasonable and oppressive

The Equal Protection Clause •

In our jurisdiction, the standard followed in issues of EPC is the "rational basis test"

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A statute, while it may non‐discriminatory on its face, may be grossly discriminatory in its application

Their sub‐arguments •

Such proviso was not intended by the original framers of the law

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Making such classification defeats the purpose of RA 7653 of establishing professionalism and excellence at all levels in the BSP

Enactment of the laws exempting rank‐and‐file employees of the GSIS, LBP, DBP, and SSS, etc. from the coverage of the SSL made the proviso violative of the EPC

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GSIS, LBP, DBP, and SSS employees are ALL exempt from the coverage of the SSL; As such, the rank‐and‐file employees of CB are discriminated upon

If the last proviso at issue in this case is still applied despite current circumstances, it becomes unconstitutional

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While such exemption is a privilege, it being granted to others and not to the employees in this case is clearly arbitrary and unreasonable

Response of Respondent BSP o They argue that the proviso is constitutional if construed in harmony with the other provisions of the same law such as the "fiscal and administrative autonomy" of the BSP The Defense of the Solicitor General

On Equal Protection under the International Lens •

U.S. Jurisprudence has gone beyond the static "rational basis test" •

Means had to be shown "necessary to achieve statutory ends" and not "merely reasonably related"

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extends to economic, social, and cultural rights under the ICESCR (e.g. Right to social security)

The Burger Court indicated two significant changes in Equal protection 

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Invocation of the EPC no longer signals an "extreme deference" to legislative classifications and a virtually automatic validation of challenged status

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Thus, the analysis made in this case, and its conclusion of unconstitutionality by subsequent operation, are in cadence and in consonance with the progressive trend of other jurisdictions and international law

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Art. 7 of the ICESCR guarantees the right of everyone to the enjoyment of just and [favorable] conditions of work, which ensures, among others,

The classification must serve important governmental objectives and must be substantially related to the achievement of those ends

On Equal Protection in Europe •

The European Convention of Human Rights prohibits discrimination of certain grounds

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Discrimination on the basis of race, sex, and religion are‐ regarded as grounds that require strict scrutiny

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Remuneration which provides all workers, as a minimum, fair wages and equal remuneration for work of equal value without distinction of any kind

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Thus, persons who work with substantially equal qualifications, skill, effort, and responsibility, under similar conditions, should be paid similar salaries

On Equality under International Law •

The principle of equality has, and continues to be, recognized under international law •

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Non‐discrimination, together with equality before the law, and equal protection of the law without discrimination, constitute basic principles of human rights protection

A classification may be struck down if its purpose or effect violates the right to equal protection

"..if the challenge to the statute is premised on the denial of a fundamental human rights, or the perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict"

The following conventions prohibit discrimination •

International Covenant on Civil and Political Rights (ICCPR)

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International Covenant on Economic, Social, and Cultural Rights (ICESCR)

This classification in this case is akin to a distinction based on economic class and status

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International Covenant on the Elimination of all Forms of Racial Discrimination (CERD)

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The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)

BSP rank‐and0file employees merit greater concern from this Court ‐ they represent the politically powerless and they should not be compwlled to seek a political solution (going to Congress) to their unequal and iniquitous treatment

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Convention on the Rights of the Child (CRC)

5. Sec of Nat’l Defense v. Manalo (NO)

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Equality is also enshrined in a lot of regional instruments

Petitioner: Secretary of National Defense; Chief of staff, AFP

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The provisions on equality in international law impose a positive obligation on States to take steps to eradicated discrimination (e.g. Art. 26 of the ICCPR)

Defense; Chief of staff, AFP

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The ICESCR prescribes basic detailed minimum standards ensuring equality and non‐discrimination in the employment field

Ponente: CJ Puno

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The United Nations Human Rights Committee (UNHRC) held that the provisions on non‐discrimination in the ICCPR go beyond the rights in the Covenant but also to other civil and political rights, and even

Facts:

Respondent: Raymond and Reynaldo Manalo G.R. No. 180906 / 7 October 2008 CA Decision being appealed

1.

The Manalo brothers filed, on 23 August 2007, a Petition for Prohibition, Injunction, and Temporary Restraining Order (TRO) against petitioners and their officers from depriving them of their right to liberty and other basic rights. • The Writ of Amparo was approved on Aug 24, 2007 and petitioners filed Motion to Treat Existing Petition as Amparo Petition.

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The CA rendered a decision in favor of the Manalo brothers and ordered the current petitioners to:  To furnish the Manalos and CA of all official and unofficial reports of the investigation undertaken in connection with their case, except those already on file.  To confirm in writing the present places of official assignment of M/Sgt Hilario aka Rollie Castillo and Donald Caigas  To cause to be produced to this Court all medical reports, records and charts, reports of any treatment given or recommended and medicines prescribed, if any, to the petitioners, to include a list of medical and (sic) personnel (military and civilian) who attended to them from February 14, 2006 until August 12, 2007 within five days from notice of this decision.

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Ito na talaga

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Feb. 14, 2006 ‐ Raymond and Reynaldo Manalo, brothers and herein respondents, were abducted by elements of the military (AFP and Citizen Armed Force Geographical Unit or CAFGU) from their house in Buhol na Mangga, San Ildefonso, Bulacan.

o

The abductors were looking for a certain “Bestre”. Manalo brothers were suspected of being members of the NPA

o

The white L300 van was driven by M/Sgt. Rizal Hilario aka Rollie Castillo

o

The brothers were repeatedly beaten and tortured and questioned about their knowledge of the NPA.

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Sometime in the third week of detention, Raymond attempted to escape. He discovered that they were in Fort Magsaysay (Palayan, Nueva Ecija). He was however recaptured and tortured. Detention in Fort Magsaysay lasted for 3 and a half months.

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One day, Rizal Hilario took the Manalo brothers to Pinaud, San Ildefonso, Bulacan and then beaten up. They remained there for one or two weeks. Then brought to Sapang, San Miguel, Bulacan to meet Maj. Gen. Jovito Palparan, Commanding General, 7th Infantry Division. o Gen. Palparan told the Manalo brother to tell their parents to not go to rallies and hearings regarding their disappearance. Instead, they should help in the capture of “Bestre”. o Respondents were then brought to their parents’ house to deliver Palparan’s message. Their parents agreed out of fear.

Manalo brothers were given medicine named “Alive”. Gen. Palparan said that this would make them feel better, but the real effect was drowsiness and a heavy feeling after waking up. After 3 months in Sapang, Raymond was brought to Camp Tecson. He was ordered to clean outside the barracks of the Army Rangers. o Met Sherlyn Cadapan, a UP student who was also abducted, tortured and raped by the military. Reynaldo was brought to Camp Tecson a week later. Other captives (Karen Empeño and Manuel Merino) also arrived. o All the captives were chained every night. They were told that their families would be killed if they escaped. o Cadapan, Empeño and Merino would later on be killed. Merino would even be burned. o November 22, 2006 – the captives were transferred to a camp of the 24th Infantry Battalion in Limay, Bataan. They were continually beaten and made to do chores. o Here, respondents witnessed how soldiers killed an old man suspected of harboring the NPA and also of an Aeta who was subsequently burned. The captives were then brought to Zambales, in a safehouse near the sea. They were brought back to Limay on June 2007 by Caigas, the commander of the 24th Infantry Battalion. June 13, 2007 – Respondents were brought to Pangasinan to farm the land of Caigas. Here, they started to save their earnings to aid in their escape. When they saved 1000 pesos, they were able to acquire a cellphone.

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August 13, 2007 – Reynaldo and Raymond Manalo were able to escape and board a bus bound for Manila. The respondents were able to corroborate each other’s affidavits. Dr. Benito Molino also corroborated the accounts of the Manalo brothers. He specializes in forensic medicine. He conducted a medical exam on the respondents After their escape. The scars and wounds of respondents were consistent with their account of physical injuries inflicted on them. He followed the Istanbul Protocol in the medical exam. Petitioners also submitted affidavits Gen. Palparan and M/Sgt. Hilario filed their affidavits late. Lt. Col. Ruben Jimenez, Provost Marshall and witness for the petitioner, conducted an investigation on May 29, 2006, from 8am to 10pm. All 6 persons (CAFGU members) implicated in the abduction denied the allegation. They had alibis (some were building a chapel, some were just at home) Discovered that “Ka Bestre” is actually Rolando Manalo, elder brother of the respondents. Recommendation was for the dismissal of the case.

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Issue: WON the privilege of the writ of amparo was properly given Dispositive: Petition dismissed. CA decision reaffirmed.

“Amparo” literally means “protection” in Spanish o Amparo thus combines the principles of judicial review derived from the U.S. with the limitations on judicial power characteristic of the civil law tradition which prevails in Mexico. o It enables courts to enforce the constitution by protecting individual rights in particular cases, but prevents them from using this power to make law for the entire nation This concept evolved into the (1) amparo libertad for the protection of personal freedom, equivalent to the habeas corpus writ; (2) amparo contra leyes for the judicial review of the constitutionality of statutes; (3) amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) amparo administrativo for the judicial review of administrative actions; and (5) amparo agrario for the protection of peasants’ rights derived from the agrarian reform process In Latin American countries, except Cuba, the writ of amparo has been constitutionally adopted to protect against human rights abuses especially committed in countries under military juntas. In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of amparo, several of the above amparo protections are guaranteed by our charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power “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.” The Clause accords a similar general protection to human rights extended by the amparo contra leyes, amparo casacion, and amparo administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987 Constitution.

Held:

Was the grant proper? YES

History of the Amparo Rule

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Promulgated in October 24, 2007. First time that the Supreme Court exercised its expanded power in the 1987 Constitution to promulgate rules to protect the people’s constitutional rights (life, liberty, property)∙

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Coverage of which is confined to:

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The adoption of the Amparo Rule is a result of the two‐day National Consultative Summit on Extrajudicial Killings and Enforced Disappearances sponsored by the Court on July 16‐17, 2007. o It was an exercise for the first time of the Court’s expanded power to promulgate rules to protect our people’s constitutional rights

o

Extralegal killings – killings committed without due process of the law

Enforced disappearances – an arrest, detention or abduction by the government; refusal of the State to disclose the fate or whereabouts places him outside the protection of the law

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It constitutes an invasion of both bodily and psychological integrity as the dignity of the human person includes the exercise of free will

“Amparo” literally means protection in Spanish. Writ of Amparo originated in Mexico (Yucatan State). Eventually incorporated into the Mexican Constitution in 1847. Spread across the Western hemisphere and eventually to the Philippines.

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Note: The consti also guarantees against torture

o

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Provides for swift relief because of the summary nature of its proceedings. Only substantial evidence is required.

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There is still a threat to the life, liberty, and a violation of their right to security of the Manalo brothers because their captors, whom they escaped from, still remain at large. o

Right to security is in Art. III, Sec. 2 of the 1987 Constitution.

o

It is the right to enjoyment of life.

o

Guarantee of protection of one’s right by the Government 

The writ of amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person under Article III, Section 2.

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Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of ELKs and EDs as well as their families

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Right to security of persons can exist independently of the right to liberty. (the court cited several cases here, Delgado Paez v. Colombia; Bwaya v. Zambia; Bahamonde v. Equatorial Guinea)

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They have a positive duty to protect right to liberty and not just a prohibition for arbitrary deprivation of such rights. (ECHR in Kurt v. Turkey)

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Three ways of exercising right to security: o

Freedom from fear. 

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Enunciated in the Universal Declaration of Human Rights (UDHR) Article 3 

Everyone has the right to life, liberty and security of person.

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It is the “right to security of person” as the word “security” itself means “freedom from fear.

International Covenant on Civil and Political Rights (ICCPR), Art. 9 (1) 

Everyone has the right to liberty and security of person.

 “Freedom from fear” is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. (PH is a signatory to both conventions) o

Guarantee of bodily and psychological integrity or security. 

Article III, Section II of the 1987 Constitution guarantees against search without warrant

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ELKs and EDs involve Physical torture, force, and violence are a severe invasion of bodily integrity.

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The continuing threat on the life of the Manalo brothers is apparent. This threat vitiates their free will because they are forced to limit their movements and activities. Threats to liberty, security, and life are actionable through a petition for a writ of amparo.

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The military failed to provide protection for the respondents. They were even the ones who actually tortured them. The one‐day investigation conducted by Jimenez was limited, superficial and one‐sided.

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“In sum, we conclude that respondents’ right to security as “freedom from threat” is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the ineffective investigation and protection on the part of the military.”

6. Reyes v. CA (MT) Facts: • •

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This case is a petition for review on certiorari of the decision and resolution of the court of appeals. Nov 30, 2007‐petitioner was among those arrested in the Manila Peninsula Hotel siege. Petitioner among with 50 others were brought to Camp Crame to await inquest proceedings. Dec 1 2007‐upon request of the DILG, respondent DOJ Sec Raul Gonzales issued a Hold Departure Order (HDO) No. 45 ordering respondent Commissioner of immigration to include in the HDO list of the Bureau of Immigration and Departation (BID) the name of the petitioner and 49 others. Dec 2 2007‐after finding probable cause against petitioner and 36 others for the crime of rebellion. The DOJ filed the information before the RTC of Makati City. Dec 13 2007‐the RTC issued an order dismissing the charge for rebellion against petitioner and 17 others for lack of probable cause. The trial court said that there wasn’t enough evidence to substantiate that they were part of the rebellion. Dec 18 2007‐petitioner’s counsel Atty. Francisco Chavez wrote the DOJ secretary requesting the lifting of the HDO in view of the dismissal of the criminal case against the petitioner. Jan 3 2008‐petitioner filed a petition claiming that despite the dismissal of his criminal case his name still stands in the HDO list—that when he flew to HK the BID officers still questioned but he was still able to leave for HK. In short, nahhassle siya… petitioner further maintained that the immediate recourse to the SC to the availment of the writ of amparo is exigent as the continued restraint to his right to travel is illegal. Jan 24 2008‐respondent represented by the OSG said that the secretary of justice had the right to issue the HDO. RTC dismissed the petition for writ of amparo and CA affirmed. Petitioner maintains that the writ of amparo does not only exclusively apply to situations of extrajudicial killings and enforced disappearances but encompasses the whole gamut of liberties protected by the Constitution. Petitioner argues that “[liberty] includes the right to exist and the right to be free from arbitrary personal restraint or servitude and includes the right of the citizens to be free to use his faculties in all lawful ways.” Part of the right to liberty guaranteed by the Constitution is the right of a person to travel.

Issue: WON petitioner’s right to liberty has been violated by the issuance of the HDO?

Held & Ratio: NO. For the reasons stated below: •

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Section 1 of the Rule on the Writ of Amparo provides: “Section 1. Petition.—The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof.” Secretary of National Defense et al. v. Manalo et al.: mentions only extralegal killings and enforce disappearances. Tapuz v. Del Rosario: lays down the basic principle of the writ of amparo: It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules,… Neither is it a writ that we shall issue on amorphous and uncertain grounds. The case went on stating what each rights were and how we are a signatory of the UDHR and that we have obliged ourselves to comply with it. Point is: The right to travel refers to the right to move from one place to another. As we have stated in Marcos v. Sandiganbayan, “xxx a person’s right to travel is subject to the usual constraints imposed by the very necessity of safeguarding the system of justice. In such cases, whether the accused should be permitted to leave the jurisdiction for humanitarian reasons is a matter of the court’s sound discretion.” Here, the restriction on petitioner’s right to travel as a consequence of the pendency of the criminal case filed against him was not unlawful. Petitioner has also failed to establish that his right to travel was impaired in the manner and to the extent that it amounted to a serious violation of his right to life, liberty and security, for which there exists no readily available legal recourse or remedy. Canlas et al. v. Napico Homeowners Association I—XIII, Inc. et al., this Court ruled that: “This new remedy of writ of amparo which is made available by this Court is intended for the protection of the highest possible rights of any person, which is his or her right to life, liberty and security. The Court will not spare any time or effort on its part in order to give priority to petitions of this nature. However, the Court will also not waste its precious time and effort on matters not covered by the writ.” • WHEREFORE, the petition is DISMISSED. The assailed Decision of the CA dated February 4, 2008 in CA‐G.R. No. 00011 is hereby AFFIRMED. SO ORDERED.

7. Rubrico v. GMA (AC) G.R. No. 183871 || 18 February 2010 PONENTE: Velasco, Jr., J.

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PETITIONERS: LOURDES RUBRICO, JEAN RUBRICO APRUEBO, AND MARY JOY RUBRICO CARBONEL RESPONDENTS: PRESIDENT GLORIA MACAPAGAL‐ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, MAJ. DARWIN SY, JIMMY SANTANA, RUBEN ALFARO, CAPT. ANGELO CUARESMA, P/SUPT. EDGAR ROQUERO, ARSENIO GOMEZ, JONATHAN, AND OFFICE OF THE OMBUDSMAN

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NATURE: Petition for Review on Certiorari of CA decision PROCEDURAL BACKGROUND: Supreme Court: Original Action for a Petition for the Writ of Amparo Court of Appeals: Upon order of the Supreme Court, the Court of Appeals summarily heard the Original Action for Petition of Amparo. Thereafter, the Court of Appeals issued a partial judgment which is the subject of the present Petition for Review on Certiorari.

Rubrico also prayed for damages and for respondents to produce documents submitted to any of them on the case of Lourdes. The Supreme Court issued the desired writ and then referred the petition to the Court of Appeals (CA) for summary hearing and appropriate action. o At the hearing conducted on 20 November 2007, the CA granted petitioner’s motion that the petition and writ be served on Darwin Sy/Reyes, Santana, Alfaro, Cuaresma, and Jonathan. o By a separate resolution, the CA dropped the President as respondent in the case. On 31 July 2008, after due proceedings, the CA rendered its partial judgment, dismissing the petition with respect to Esperon, Razon, Roquero, Gomez, and Ombudsman. Hence, the petitioners filed a Petition for Review on Certiorari with the Supreme Court. o

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PERTINENT ISSUE: Whether or not the doctrine of command responsibility is applicable in an amparo petition.

HELD: No.

FACTS:

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On 03 April 2007, Lourdes Rubrico, chair of Ugnayan ng Maralita para sa Gawa Adhikan, was abducted by armed men belonging to the 301st Air Intelligence and Security Squadron (AISS) based in Lipa City. o She was brought to and detained at the air base without charges. o She was released a week after relentless interrogation, but only after she signed a statement that she would be a military asset. Despite her release, she was tailed on at least 2 occasions. Hence, Lourdes filed a complaint with the Office of the Ombudsman a criminal complaint for kidnapping and arbitrary detention and grave misconduct against Cuaresma, Alfaro, Santana, and Jonathan (military/police heads), but nothing has happened. Meanwhile, the human rights group Karapatan conducted an investigation which indicated that men belonging to the Armed Forces of the Philippines (AFP) led the abduction of Lourdes. Based on such information, Rubrico filed a petition for the writ of amparo with the Supreme Court on 25 October 2007. o She prayed that respondents be ordered to desist from performing any threatening act against the security of petitioners and for the Ombudsman to immediately file an information for kidnapping qualified with the aggravating circumstance of gender of the offended party.

RATIO: DOCTRINE OF COMMAND RESPONSIBILITY and THE WRIT OF AMPARO Doctrine of Command Responsibility has little, if at all, bearing in amparo proceedings – [C]ommand responsibility, as a concept defined, developed, and applied under international law, has little, if at all, bearing in amparo proceedings. The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed combats. According to Fr. Bernas, command responsibility, in its simplest terms, means the responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict. In this sense, command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of command responsibility, foreshadowing the present‐day precept of holding a superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of control over them. As then formulated, command responsibility is an omission mode of individual criminal liability, whereby the superior is made responsible for crimes committed by his subordinates for failing to prevent or punish the perpetrators.

There is no Philippine law that provides for criminal liability under the Doctrine of Command Responsibility – While there are several pending bills on command responsibility, there is still no Philippine law that provides for criminal liability under that doctrine. It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders liable for extra‐legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of international law or customary international law in accordance with the incorporation clause of the Constitution. Still, it would be inappropriate to apply to these proceedings the doctrine of command responsibility, as the CA seemed to have done, as a form of criminal complicity through omission, for individual respondents criminal liability, if there be any, is beyond the reach of amparo. In other words, the Court does not rule in such proceedings on any issue of criminal culpability, even if incidentally a crime or an infraction of an administrative rule may have been committed. Reluctance of the amparo petitioners or their witnesses to cooperate ought not to pose a hindrance to the police in pursuing, on its own initiative, the investigation in question to its natural end – [T]he right to security of persons is a guarantee of the protection of one’s right by the government. And this protection includes conducting effective investigations of extra‐legal killings, enforced disappearances, or threats of the same kind. The nature and importance of an investigation are captured in the Velasquez Rodriguez case, in which the Inter‐American Court of Human Rights pronounced: [The duty to investigate] must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not a step taken by private interests that depends upon the initiative of the victim or his family or upon offer of proof, without an effective search for the truth by the government. The remedy of amparo ought to be resorted to and granted judiciously – The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life, liberty, and security of persons, free from fears and threats that vitiate the quality of this life. It is an extraordinary writ conceptualized and adopted in light of and in response to the prevalence of extra‐legal killings and enforced disappearances. Accordingly, the remedy ought to be resorted to and granted judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by the indiscriminate filing of amparo petitions for purposes less than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations.

DISPOSITIVE: The Supreme Court partially granted the petition for review. It issued a decision as follows: Affirming the dropping of former President Gloria Macapagal‐Arroyo from the petition; Affirming the dismissal of the amparo case as against Gen. Hermogenes Esperon, and P/Dir. Gen. Avelino Razon, insofar as it tended, under the command responsibility principle, to attach accountability and responsibility to them, as then AFP Chief of Staff and then PNP Chief, for the alleged enforced disappearance of Lourdes and the ensuing harassments allegedly committed against petitioners. The dismissal of the petition with respect to the Ombudsman is also affirmed for failure of the petition to allege ultimate facts as to make out a case against that body for the enforced disappearance of Lourdes and the threats and harassment that followed; and Directing the incumbent Chief of Staff, AFP, or his successor, and the incumbent Director‐General of the PNP, or his successor, to ensure that the investigations already commenced by their respective units on the alleged abduction of Lourdes Rubrico and the alleged harassments and threats she and her daughters were made to endure are pursued with extraordinary diligence as required by Sec. 17 of the Amparo Rule. The Chief of Staff of the AFP and Director‐General of the PNP are directed to order their subordinate officials, in particular, to do the following: (a) Determine based on records, past and present, the identities and locations of respondents Maj. Darwin Sy, a.k.a. Darwin Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and one Jonathan; and submit certifications of this determination to the OMBUDSMAN with copy furnished to petitioners, the CA, and this Court; (b) Pursue with extraordinary diligence the evidentiary leads relating to Maj. Darwin Sy and the Toyota Revo vehicle with Plate No. XRR 428; and (c) Prepare, with the assistance of petitioners and/or witnesses, cartographic sketches of respondents Maj. Sy/Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and a certain Jonathan to aid in positively identifying and locating them. The investigations shall be completed not later than six (6) months from receipt of the Decision; and within thirty (30) days after completion of the investigations, the Chief of Staff of the AFP and the Director‐General of the PNP are likewise directed to submit a full report of the results of the investigations to the Court, the CA, the OMB, and petitioners.

The Supreme Court accordingly referred the case back to the CA for the purpose of monitoring the investigations and the actions of the AFP and the PNP. SOURCE: HUMANWRONGS.org –I edited the digest too. It’s a legit website.

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8. BOAC v. Cadapan (RK) GR 184461‐62, 184495, 187109 | May 31, 2011 SUMMARY: Cadapan, Empeno, and Merino were abducted by armed men believed to be members of the military. A petition for habeas corpus was filed but was initially denied for lack of convincing evidence. An MR and a petition for Amparo was later filed because a new witness, Raymond Manalo (the guy from Manalo v DND), testified. The CA issued an order to release the three. Three cases were elevated to the SC. The one relevant here was a certiorari from a resolution of the CA denying motion to cite for contempt respondents for failure to execute the order of release. SC said that while command responsibility does not apply in Amparo (Rubrico v. GMA), it can be loosely applied in order to determine the superior capable of enforcing order of release. Hence, CA erred by not specifically naming respondent officers and ordering them to IMMEDIATELY release.

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FACTS:

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The background of this case is the abduction of Sherlyn Cadapan, Karen Empeno, and Manuepl Merino (google them). o On June 26, 2006 they were abducted in San Miguel, Hagonoy, Bulacan by armed men and were herded onto a jeep (RTF 597). On July 17, 2006, petition for habeas corpus was filed in SC impleading then Generals Romeo Tolentino and Jovito Palparan (Gen. Palparan), Lt. Col. Rogelio Boac (Lt. Col. Boac), Arnel Enriquez and Lt. Francis Mirabelle Samson (Lt. Mirabelle) as respondents. A writ was issued returnable to the CA where trial ensued. Witnesses were called by both sides and on March 29, 2007, the petition for habeas corpus was dismissed by CA. o Habeas Corpus not proper because it presupposes that respondents have actual custody of the persons. (At this point, the petitioners were not able to prove clearly and convincingly that respondents had in their custody the 3 abductees). MR was filed. Pending MR’s resolution, a WRIT OF AMPARO dated October 24, 2007, with prayer for inspection and production oof documents was filed in SC— it impleaded the same respondents + Pres GMA, Esperon Jr. (AFP CoS), Razon

“WHEREFORE, in CA‐G.R. SP NO. 95303 (Habeas Corpus case), the Motion for Reconsideration is GRANTED. Accordingly, in both CA‐G.R. SP NO. 95303 (Habeas Corpus case) and in CA‐G.R. SP NO. 00002 (Amparo case), the respondents are thereby ordered to immediately RELEASE, or cause the release, from detention the persons of Sher[lyn] Cadapan, Karen Empeño and Manuel Merino.”

With the additional testimony, the petitioners have been able to convincingly prove the fact of their detention. Manalo’s testimony was a firsthand account—he saw them with his very own eyes as they were detained and tortured together. It was clear, convincing, and consistent. o The CA however did not grant petition to inspect under the Amparo case in light of the release order. A motion to cite in contempt the officers was filed for failure to execute said order. o CA denied this. Although the order used the words “ordered to immediately release” the same is not ipso facto deemed executory. Three cases elevated in the SC: o First case (Title)—Boac challenged decision of CA o Second case—Cadapan and Empeno (parents) challenged decision on the non issuance of inspection order o Third case—Cadapan and Empeno (parents) challenged CA’s resolution denying motion to cite respondents in contempt for failure to immediately release the three. o

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(PNP), Antolado and Caigas. Writ was issued returnable to the CA. Amparo and MR on Habeas Corpus were consolidated. This time, petitioners called in Raymond Manalo (from the Manalao v. DND case Consti 2) and Adoracion Paulino as additional witnesses. o Raymond Manalo, who himself was abducted but later escaped, testified that he personally met the three abductees in Camp Tecson. All of them were transferred to Camp Limay and later to a safe house in Zambales. The CA granted MR on the Habeas Corpus on September 17, 2008 and ordered the immediate release of the three in the Amparo Case.

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ISSUE: Essentially, the consolidated petitions present three primary issues, viz: a) whether the testimony of Raymond Manalo is credible; b) whether the chief of the AFP, the commanding general of the Philippine Army, as well as the heads of the concerned units had command responsibility over the abduction and detention of Sherlyn, Karen and Merino; and

c)

whether there is a need to file a motion for execution to cause the release of the aggrieved parties.

HELD: I will only discuss the second issue on Command Responsibility. Strictly speaking, NO

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RATIO: •

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Rubrico v. Macapagal (see previous case) o The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms, means the "responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict." o In this sense, command responsibility is properly a form of criminal complicity. An Amparo proceeding is not criminal, civil or administrative. It is a remedy designed to direct specified courses of action to government agencies to safeguard the constitutional right to life, liberty, and security o It determines responsibility or ate least accountability for enforced disappearances o Responsibility‐‐ the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. o Accountability‐‐the measure of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance Rubrico categorically denies application of command responsibility in Amparo cases to determine criminal liability. o However, it recognizes a preliminary yet limited application of command responsibility to instances of determining the responsible or accountable individuals/entities that are duty‐bound to abate any transgression.

At most, command responsibility should be invoked only to determine the author who is accountable for, and has the duty to address the disappearance/harassment complained of. In other words, command responsibility may be loosely applied to Amparo cases to identify those accountable individuals that have power to implement whatever process an Amparo court would issue. o It does not impute criminal responsibility but merely pinpoints superiors it considers to be in the best position to protect the rights of the aggrieved party. The Court finds that the appellate court erred when it did not specifically name the respondents that it found to be responsible for the abduction and continued detention of Sherlyn, Karen and Merino. For, from the records, it appears that the responsible and accountable individuals are Lt. Col. Anotado, Lt. Mirabelle, Gen. Palparan, Lt. Col. Boac, Arnel Enriquez and Donald Caigas. They should thus be made to comply with the September 17, 2008 Decision of the appellate court to IMMEDIATELY RELEASE Sherlyn, Karen and Merino. o

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9. Biraogo v. Truth Commission (RC) Topic: Treaty/Law:

EO No. 1 (Created Truth Commission)

G.R. No. 192935 December 7, 2010 Petitioner: LOUIS "BAROK" C. BIRAOGO, Respondent: THE PHILIPPINE TRUTH COMMISSION OF 2010 G.R. No. 193036 Petitioner: REP. EDCEL C. LAGMAN, REP. ET AL Respondent: EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. ET AL SUMMARY: PNoy created the Philippine Truth Commission to basically investigate the crimes committed by members of the GMA administration. The Petitioners assail the constitutionality of EO No1. The SC struck it down for a violating the equal protection clause. FACTS:

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For consideration before the Court are two consolidated cases both of which essentially assail the validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled "Creating the Philippine Truth Commission of 2010." Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption with his slogan, "Kung walang corrupt, walang mahirap." The Filipino people, convinced of his sincerity and of his ability to carry out this noble objective, catapulted the good senator to the presidency.

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EXECUTIVE ORDER NO. 1 CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010 •

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As can be gleaned from the above‐quoted provisions, the Philippine Truth Commission (PTC) is a mere ad hoc body formed under the Office of the President with the primary task to investigate reports of graft and corruption committed by third‐level public officers and employees, their co‐principals, accomplices and accessories during the previous administration, and thereafter to submit its finding and recommendations to the President, Congress and the Ombudsman. Though it has been described as an "independent collegial body," it is essentially an entity within the Office of the President Proper and subject to his control. Doubtless, it constitutes a public office, as an ad hoc body is one. It is not, however, a quasi‐judicial body as it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending parties. All it can do is gather, collect and assess evidence of graft and corruption and make recommendations. It may have subpoena powers but it has no power to cite people in contempt, much less order their arrest. Although it is a fact‐finding body, it cannot determine from such facts if probable cause exists as to warrant the filing of an information in our courts of law. Needless to state, it cannot impose criminal, civil or administrative penalties or sanctions. Truth Commission are usually established by states emerging from periods of internal unrest, civil strife or authoritarianism to serve as mechanisms for transitional justice, with following characteristics: (1) they examine only past events; (2) they investigate patterns of abuse committed over a period of time, not a particular event; (3) they are temporary bodies that finish their work with the submission of a report containing conclusions and recommendations; and (4) they are officially sanctioned, authorized or empowered by the State. •

Their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime tribunals are examples of a retributory or vindicatory

body set up to try and punish those responsible for crimes against humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation Commission of South Africa, the principal function of which was to heal the wounds of past violence and to prevent future conflict by providing a cathartic experience for victims. The PTC is a far cry from South Africa’s model. The latter placed more emphasis on reconciliation than on judicial retribution, while the marching order of the PTC is the identification and punishment of perpetrators. Aquino in his inaugural speech: "To those who talk about reconciliation, if they mean that they would like us to simply forget about the wrongs that they have committed in the past, we have this to say: There can be no reconciliation without justice. When we allow crimes to go unpunished, we give consent to their occurring over and over again."

ISSUE/HELD: Legal Standing of the Petitioners The Court, however, finds reason in Biraogo’s assertion that the petition covers matters of transcendental importance to justify the exercise of jurisdiction by the Court. There are constitutional issues in the petition which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. Where the issues are of transcendental and paramount importance not only to the public but also to the Bench and the Bar, they should be resolved for the guidance of all.Undoubtedly, the Filipino people are more than interested to know the status of the President’s first effort to bring about a promised change to the country. The Court takes cognizance of the petition not due to overwhelming political undertones that clothe the issue in the eyes of the public, but because the Court stands firm in its oath to perform its constitutional duty to settle legal controversies with overreaching significance to society. Power of the President to Create the Truth Commission The Chief Executive’s power to create the Ad hoc Investigating Committee cannot be doubted. Having been constitutionally granted full control of the Executive Department, to which respondents belong, the President has the obligation to ensure that all executive officials and employees faithfully comply with the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not affected by the fact that the investigating team and the PCAGC had the same

composition, or that the former used the offices and facilities of the latter in conducting the inquiry.

corruption in virtually all administrations previous to that of former President Arroyo.

The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover all the departments of the government including the political and executive departments, and extend to all actions of a state denying equal protection of the laws, through whatever agency or whatever guise is taken.

Power of the Truth Commission to Investigate The distinction between the power to investigate and the power to adjudicate was delineated by the Court in Cariño v. Commission on Human Rights.59 Thus: The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or matters." In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. x x. Implies a judicial determination of a fact, and the entry of a judgment." Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be accorded conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano Commission and the Zenarosa Commission, its findings would, at best, be recommendatory in nature. And being so, the Ombudsman and the DOJ have a wider degree of latitude to decide whether or not to reject the recommendation. These offices, therefore, are not deprived of their mandated duties but will instead be aided by the reports of the PTC for possible indictments for violations of graft laws.

Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth "concerning the reported cases of graft and corruption during the previous administration” only. The intent to single out the previous administration is plain, patent and manifest. Mention of it has been made in at least three portions of the questioned executive order. Decision The issue that seems to take center stage at present is ‐ whether or not the Supreme Court, in the exercise of its constitutionally mandated power of Judicial Review with respect to recent initiatives of the legislature and the executive department, is exercising undue interference. Is the Highest Tribunal, which is expected to be the protector of the Constitution, itself guilty of violating fundamental tenets like the doctrine of separation of powers? Time and again, this issue has been addressed by the Court, but it seems that the present political situation calls for it to once again explain the legal basis of its action lest it continually be accused of being a hindrance to the nation’s thrust to progress. WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.

Violation of the Equal Protection Clause

As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the provisions of Executive Order No. 1.

The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They contend that it does not apply equally to all members of the same class such that the intent of singling out the "previous administration" as its sole object makes the PTC an "adventure in partisan hostility." Thus, in order to be accorded with validity, the commission must also cover reports of graft and

PIL Case Digest: Responsibility of states Pt. 2

RESPONSIBILITY OF STATES (Pt. II) Responsibility for Environmental Harm 1. DENR v. Concerned Residents of Manila Bay (JG) TOPIC: Responsibility of States; Ministerial acts of government agencies can be compelled by Mandamus G.R. No.: 171947‐48 December 18, 2008 Petitioner: Metropolitan Manila Development Authority, Department of Environment and Natural Resources, Department of Education, Culture and Sports, Department of Health, Department of Agriculture, Department of Public Works and Highways, Department of Budget and Management, Philippine Coast Guard, Philippine National Police Maritime Group, and Department of the Interior and Local Government Respondents: Concerned Residents of Manila Bay, represented and joined by Divina V. Ilas, Sabiniano Albarracin, Manuel Santos, Jr., Dinah dela Peña, Paul Dennis Quintero, Ma. Victoria Ilenos, Donna Caloza, Fatima Quitain, Venice Segarra, Fritzie Tangkia, Sarah Joelle Lintag, Hannibal Augustus Bobis, Felimon Santiaguel, and Jaime Agustin R. Oposa Ponente: Velasco, Jr., J. FACTS: • Manila Bay is a place with a proud historic past, once brimming with marine life and, for so many decades in the past, a spot for different contact recreation activities, but now a dirty and slowly dying expanse mainly because of the abject official indifference of people and institutions that could have otherwise made a difference. • On January 29, 1999, respondents Concerned Residents of Manila Bay filed a complaint before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies, among them the petitioners, for the cleanup, rehabilitation, and protection of the Manila Bay. • The complaint alleged that the water quality of the Manila Bay had fallen way below the allowable standards set by law, specifically Presidential Decree No. (PD) 1152 or the Philippine Environment Code. o The complaint stated: . . . [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of the defendants] resulting in the clear and present danger to public health and in the depletion and contamination of the marine life of Manila Bay, [for which reason] ALL defendants must be held jointly and/or solidarily liable and be collectively ordered to clean up Manila Bay and to restore its water quality to class B waters fit for swimming, skin‐diving, and other forms of contact recreation. Dean Candelaria 12‐13

In their individual causes of action, respondents alleged that the continued neglect of petitioners in abating the pollution of the Manila Bay constitutes a violation of, among others: EHSA (1)Respondents' constitutional right to life, health, and a balanced ecology; (2)The Environment Code (PD 1152); (3)The Pollution Control Law (PD 984); (4)The Water Code (PD 1067); (5)The Sanitation Code (PD 856); (6)The Illegal Disposal of Wastes Decree (PD 825); (7)The Marine Pollution Law (PD 979); (8)Executive Order No. 192; (9)The Toxic and Hazardous Wastes Law (Republic Act No. 6969); (10)Civil Code provisions on nuisance and human relations; (11)The Trust Doctrine and the Principle of Guardianship; and (12)International Law • The respondents prayed that petitioners be ordered to clean the Manila Bay and submit to the RTC a concerted concrete plan of action for the purpose. • The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay • The DENR, DPWH, MMDA, PCG, PNP Maritime Group and five other executive departments and agencies filed directly with the Supreme Court a petition for review under Rule 45. o Petitioners asserted that the cleaning of the Manila Bay is not a ministerial act which can be compelled by mandamus. • The CA denied petitioners' appeal and affirmed the Decision of the RTC in toto, stressing that the trial court's decision did not require petitioners to do tasks outside of their usual basic functions under existing laws. ISSUE/HELD: Whether or not the cleaning or rehabilitation of the Manila Bay is a ministerial act of petitioners that can be compelled by mandamus. – YES • Generally, the writ of mandamus lies to require the execution of a ministerial duty. o A ministerial duty is one that "requires neither the exercise of official discretion nor judgment." o It connotes an act in which nothing is left to the discretion of the person executing it. o It is a "simple, definite duty arising under conditions admitted or proved to exist and imposed by law." o Mandamus is available to compel action, when refused, on matters involving discretion, but not to direct the exercise of judgment or discretion one way or the other. •

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PIL Case Digest: Responsibility of states Pt. 2 •

It is the duty of petitioners to comply with and act according to the clear mandate of the law which does not require the exercise of discretion. o Petitioners are without discretion, for example, to decide on whether or not to alleviate the problem of solid and liquid waste disposal; in other words, it is their ministerial duty to attend to such services. o A perusal of other petitioners' respective charters or like enabling statutes and pertinent laws would yield this conclusion: these government agencies are enjoined, as a matter of statutory obligation, to perform certain functions relating directly or indirectly to the cleanup, rehabilitation, protection, and preservation of the Manila Bay. They are precluded from choosing not to perform these duties. (1)The DENR, under Executive Order No. (EO) 192, is the primary agency responsible for the conservation, management, development, and proper use of the country's environment and natural resources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275), on the other hand, designates the DENR as the primary government agency responsible for its enforcement and implementation, more particularly over all aspects of water quality management. (2)The MWSS, under Sec. 3 of RA 6234, is vested with jurisdiction, supervision, and control over all waterworks and sewerage systems in the territory comprising what is now the cities of Metro Manila and several towns of the provinces of Rizal and Cavite. (3)Under RA 9275, the LWUA, as attached agency of the DPWH, is tasked with providing sewerage and sanitation facilities, inclusive of the setting up of efficient and safe collection, treatment, and sewage disposal system in the different parts of the country. In relation to the instant petition, the LWUA is mandated to provide sewerage and sanitation facilities in Laguna, Cavite, Bulacan, Pampanga, and Bataan to prevent pollution in the Manila Bay. AT (4)The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO 292), is designated as the agency tasked to promulgate and enforce all laws and issuances respecting the conservation and proper utilization of agricultural and fishery resources.


(5)The DPWH, as the engineering and construction arm of the national government, is tasked under EO 292, to provide integrated planning, design, and construction services for, among others, flood control and water resource development systems in accordance with national development objectives and approved government plans and specifications. (6)The PCG, in accordance with Sec. 5 (p) of PD 601, or the Revised Coast Guard Law of 1974, and Sec. 6 of PD 979, or the Marine Pollution Decree of 1976, shall have the primary responsibility of enforcing laws, rules, and regulations governing marine pollution within the territorial waters of the Philippines. (7)When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990 was signed into law on December 13, 1990, the PNP Maritime Group was tasked to "perform all police functions over the Philippine territorial waters and rivers." Under Sec. 86, RA 6975, the police functions of the PCG shall be taken over by the PNP when the latter acquires the capability to perform such functions. (8)In accordance with Sec. 2 of EO 513, the PPA is mandated "to establish, develop, regulate, manage and operate a rationalized national port system in support of trade and national development (9)The MMDA, as earlier indicated, is duty‐bound to put up and maintain adequate sanitary landfill and solid waste and liquid disposal system as well as other alternative garbage disposal systems. It is primarily responsible for the implementation and enforcement of the provisions of RA 9003, which would necessary include its penal provisions, within its area of jurisdiction. (10)The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is tasked to promulgate rules and regulations for the establishment of waste disposal areas that affect the source of a water supply or a reservoir for domestic or municipal use. (11)The Department of Education (DepEd), under the Philippine Environment Code (PD 1152), is mandated to integrate subjects on environmental education in its school curricula at all levels. Under Sec. 118 of RA 8550, the DepEd, in collaboration with the DA, Commission on Higher Education, and Philippine Information Agency, shall launch and pursue a nationwide educational campaign to promote the 2

PIL Case Digest: Responsibility of states Pt. 2 development, management, conservation, and proper use of the environment. Under the Ecological Solid Waste Management Act (RA 9003), on the other hand, it is directed to strengthen the integration of environmental concerns in school curricula at all levels, with an emphasis on waste management principles. (12)The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of the Administrative Code of 1987 to ensure the efficient and sound utilization of government funds and revenues so as to effectively achieve the country's development objectives. •

All told, the aforementioned enabling laws and issuances are in themselves clear, categorical, and complete as to what are the obligations and mandate of each agency/petitioner under the law. We need not belabor the issue that their tasks include the cleanup of the Manila Bay.

International Claims

1. Vinuya v. Romulo (CG) G.R. No. 162230 April 28, 2010 Petitioners: ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA MANIMBO, LEONOR H. SUMAWANG, CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M. SAMPANG, ESTER M. PALACIO, MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M. DELA PEÑA, EUGENIA M. LALU, JULIANA G. MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P. MALLARI, ROSARIO M. ALARCON, RUFINA C. GULAPA, ZOILA B. MANALUS, CORAZON C. CALMA, MARTA A. GULAPA, TEODORA M. HERNANDEZ, FERMIN B. DELA PEÑA, MARIA DELA PAZ B. CULALA, ESPERANZA MANAPOL, JUANITA M. BRIONES, VERGINIA M. GUEVARRA, MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R. PUNZALAN, JANUARIA G. GARCIA, PERLA B. BALINGIT, BELEN A. CULALA, PILAR Q. GALANG, ROSARIO C. BUCO, GAUDENCIA C. DELA PEÑA, RUFINA Q. CATACUTAN, FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA O. DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA M. BUCO, PATRICIA A. BERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C. BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILLERMA S. BALINGIT, TERECITA PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA, LEONICIA G. GUEVARRA, ROSALINA M. CULALA, CATALINA Y. MANIO, Dean Candelaria 12‐13

MAMERTA T. SAGUM, CARIDAD L. TURLA, et al. In their capacity and as members of the "Malaya Lolas Organization" Respondents: THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE SECRETARY OF FOREIGN AFFAIRS DELIA DOMINGO‐ALBERT, THE HONORABLE SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR GENERAL ALFREDO L. BENIPAYO Ponente: del Castillo, J. Summary: So this is a case being brought by the “Malaya Lolas,” an organization established for the purpose of providing aid to the victims of rape by the Japanese in WWII. Petitioners argue that the respondents committed GADALEJ in not espousing their claims. The Court said that this is a purely political question. The executive department has the discretion to assess the foreign policy relations in espousing the claims of the victim. There has already been a treaty so it is presumed that it is already enough for the reparations and apology. They cannot disturb anymore the claims, as it would be inimical to our foreign policy interests. Also, the petitioners are asking the courts to compel the respondents to espouse their claims. The court held that 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. It is not the individual anymore, but the state, that would enforce its rights, once it’s persuaded. Since in this case, the executive department thinks the Treaty shouldn’t be disturbed anymore, they don’t have the power to compel the respondents to back them up. (Sorry I found it really hard to shorten the case. Everything seemed important. But it’s easy read naman and interesting! ) 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 Department of Foreign Affairs (DFA), the Secretary of the Department of Justice (DOJ), and the Office of the Solicitor General (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 (WWII). • Petitioners narrate that during WWII, the Japanese army attacked villages and systematically raped the women as part of the destruction of the village. Their communities were bombed, houses were looted and burned, and civilians were publicly tortured, mutilated, and slaughtered. • Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of the “comfort women” stations in the Philippines. 3

PIL Case Digest: Responsibility of states Pt. 2 •

However, officials of the Executive Department declined to assist the petitioners, and took the position that the individual claims of the comfort women for compensation had already been fully satisfied by Japan’s compliance with the Peace Treaty between the Philippines and Japan.

Petitioners’ arguments Petitioners argue that the general waiver of claims made by the Philippine government in the Treaty of Peace with Japan is void. They claim that the comfort women system established by Japan, and the brutal rape and enslavement of petitioners constituted a crime against humanity, sexual slavery, and torture. They allege that the prohibition against these international crimes is jus cogens norms from which no derogation is possible; as such, in waiving the claims of Filipina comfort women and failing to espouse their complaints against Japan, the Philippine government is in breach of its legal obligation not to afford impunity for crimes against humanity. Finally, petitioners assert that the Philippine government’s acceptance of the “apologies” made by Japan as well as funds from the Asian Women’s Fund (AWF) were contrary to international law. Respondents’ Arguments 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. In addition, respondents argue that the apologies made by Japan have been satisfactory, and that Japan had addressed the individual claims of the women through the atonement money paid by the Asian Women’s Fund. Historical Background There was a very long history about Comfort Women, how it came about, and how the Japanese enslaved those women sexually. But in essence, they raped a LOT from Korea, China, Indonesia and the Philippines. Venereal diseases spread out. So a lot of countries, after the war, supported the claim that these women had that Japan should make their public apology, and make reparations. UN also issued resolutions that these are grave violations of human rights and humanitarian laws. They recommended that Japan should make reparations and public apology to each victim in writing. Some of Japanese authorities (Prime Minister, Chief Cabinet Secretary, etc.) made statements about Japan being apologetic and remorseful about this. The Asian Women’s Fund (AWF) was established by the Japanese government in 1995, which represented government’s concrete attempt to address its moral responsibility by offering monetary compensation to victims of the comfort women system. Issues/Ruling: Dean Candelaria 12‐13

a. WON the Executive Department committed grave abuse of discretion in not espousing petitioners’ claims for official apology and other forms of reparations against Japan ‐ NO • From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine whether to espouse petitioners’ claims against Japan. (Political Question Doctrine) • 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." • To be sure, 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. Neither could petitioners herein assail the said determination by the Executive Department via the instant petition for certiorari. • In the case of US v. Curtiss‐Wright Export Corp., the US Supreme Court held that “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign relations.” • This ruling has been incorporated in our jurisprudence through Bayan v. Executive Secretary and Pimentel v. Executive Secretary; its overreaching principle was, perhaps, best articulated in (now Chief) Justice Puno’s dissent in Secretary of Justice v. Lantion • 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. • Indeed, except as an agreement might otherwise provide, international settlements generally wipe out the underlying private claims, thereby terminating any recourse under domestic law. • The practice of settling claims by means of a peace treaty is certainly not new. Dames & Moore v. Regan states that the US has repeatedly exercised its sovereign authority to settle the claims of its nationals against foreign countries. But it is also undisputed that the “United States has sometimes disposed of the claims of its citizens without their consent, or even without consultation with them, usually without exclusive regard for their interests, as distinguished from those of the nation as a whole.” • Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not necessarily for the complete atonement of the suffering caused by Japanese aggression 4

PIL Case Digest: Responsibility of states Pt. 2

• •

•

during the war, not for the payment of adequate reparations, but for security purposes. The treaty sought to prevent the spread of communism in Japan, which occupied a strategic position in the Far East. Thus, the Peace Treaty compromised individual claims in the collective interest of the free world. As the statement of the chief United States negotiator, John Foster Dulles, makes clear, it was well understood that leaving open the possibility of future claims would be an unacceptable impediment to a lasting peace. Thus, from a municipal law perspective, certiorari will not lie. As a general principle – and particularly here, 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.

(b) WON the respondents can be compelled to espouse their claims for official apology and other forms of reparations against Japan before the (ICJ) and other international tribunals ‐ NO • 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. • Even then, it is not the individual’s rights that are being asserted, but rather, the state’s own rights. (1924 Mavrommatis Palestine Concessions Case) • The State, therefore, is the sole judge to decide whether its protection will be granted, to what extent it is granted, and when will it cease. • It retains, in this respect, a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case. • The International Law Commission’s (ILC’s) Draft Articles on Diplomatic Protection fully support this traditional view. They (i) State that "the right of diplomatic protection belongs to or vests in the State,” (ii) Affirm its discretionary nature by clarifying that diplomatic protection is a "sovereign prerogative" of the State; and (iii) Stress that the state "has the right to exercise diplomatic protection on behalf of a national. It is under no duty or obligation to do so." • It has been argued, as petitioners argue now, that the State has a duty to protect its nationals and act on his/her behalf when rights are injured. • However, at present, there is no sufficient evidence to establish a general international obligation for States to exercise diplomatic protection of their own nationals abroad. Dean Candelaria 12‐13

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•

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•

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•

•

Though, perhaps desirable, neither state practice nor opinio juris has evolved in such a direction. If it is a duty internationally, it is only a moral and not a legal duty, and there is no means of enforcing its fulfillment. We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally prohibited under contemporary international law. However, petitioners take quite a theoretical leap in claiming that these proscriptions automatically imply that that the Philippines is under a non‐derogable obligation to prosecute international crimes, particularly since petitioners do not demand the imputation of individual criminal liability, but seek to recover monetary reparations from the state of Japan. Absent the consent of states, an applicable treaty regime, or a directive by the Security Council, there is no non‐derogable duty to institute proceedings against Japan. Indeed, precisely because of states’ reluctance to directly prosecute claims against another state, recent developments support the modern trend to empower individuals to directly participate in suits against perpetrators of international crimes. Nonetheless, notwithstanding an array of General Assembly resolutions calling for the prosecution of crimes against humanity and the strong policy arguments warranting such a rule, the practice of states does not yet support the present existence of an obligation to prosecute international crimes. Of course a customary duty of prosecution is ideal, but we cannot find enough evidence to reasonably assert its existence. To the extent that any state practice in this area is widespread, it is in the practice of granting amnesties, immunity, selective prosecution, or de facto impunity to those who commit crimes against humanity.” Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951, petitioners have not deigned to show 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 Latin phrase, ‘erga omnes,’ has since become one of the rallying cries of those sharing a belief in the emergence of a value‐based international public order. However, as is so often the case, the reality is neither so clear nor so bright. Whatever the relevance of obligations erga omnes as a legal concept, its full potential remains to be realized in practice. With regard to jus cogens, the ILC concluded ruefully in 1963 that “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.” In a commentary accompanying the draft convention, the ILC indicated that “the prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.” 5

PIL Case Digest: Responsibility of states Pt. 2 • •

Thus, while the existence of jus cogens in international law is undisputed, no consensus exists on its substance, beyond a tiny core of principles and rules. Needless to say, our government should take the lead in protecting its citizens against violation of their fundamental human rights. Regrettably, it is not within our power to order the Executive Department to take up the petitioners’ cause. Ours is only the power to urge and exhort the Executive Department to take up petitioners’ cause. WHEREFORE, the Petition is hereby DISMISSED.


6

PIL McRAE Digest: Resolution of Disputes

RESOLUTION OF DISPUTES

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A. USE OF FORCE I. General 1. On the Rights of War and Peace (CG) • •

•

• •

From the law of nature or law of the nations, all kinds of war are not to be condemned Certain formalities, attending war, were introduced by the law of nations, which formalities were necessary to secure the peculiar privileges arising out of the law Thus, there is a distinction between a war with the usual formalities of the law of nations, which is called just or perfect, and an informal war, which does not for that reason cease to be just, or agreeable to right By the law of the nations, says Livy, provision is made to repel force by arms And Florentinus declares, that the law of the nations allows us to repel violence and injury, in order to protect our persons

Article II The entry into force in virtue of the present Protocol, of the Treaty of Paris of 1928 in reciprocal relations between the Parties to the present Protocol shall be valid independently of the entry into force of the Treaty of Paris of 1928 as provided in Article III of the last named Treaty Article III •

•

• •

2. General Treaty for the Renunciation of War (CG) Briand‐Kellogg Pact 1928 Protocol, signed at Moscow, February 9, 1929, between Estonia, Latvia, Poland, Roumania and the USSR, for the immediate entry into force of the Treaty of Paris of August 27, 1928, regarding the renunciation of war as an instrument of National Policy

It shall come into force between the Contracting Parties after the ratification of the said Treaty of Paris of 1928 by the competent legislative bodies of the respective Contracting Parties

The present Protocol shall be ratified by the competent legislative bodies of the Contracting Parties, in conformity with the requirements of their respective constitutions The instruments of ratification shall be deposited by each of the Contracting Parties with the Government of the USSR within one week of the ratification of the present Protocol by the respective parties The date of deposit shall be the date the present Protocol will come into force between those two Parties USSR shall notify the deposit of several ratifications to all the signatories to the present Protocol

Article IV •

To give effect to Article I of the Protocol, each of the High Contracting Parties shall immediately notify the Government of the USSR and all the other parties through the diplomatic channel

Article V

Important provisions

• •

Article I •

The Treaty for the renunciation of war as an instrument of national policy, signed at Paris on August 27, 1980, a copy of which is attached to the present protocol as an integral art of that instrument


This shall be open for the accession of the Governments of all countries Notification shall be made in the name of the USSR, and immediately shall be put into force

Article VI

1

PIL McRAE Digest: Resolution of Disputes •

•

The entry into force of the Treaty of Paris, between the acceding State and all the other parties to the said Protocol, shall, be effected in the way laid down in Article IV of the Protocol The Protocol has been drawn up in a single copy, an authentic copy of which shall be communicated by the Gov’t of USSR to each of the signatory or acceding State

Annex •

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The President/King/Emperor of: Germany, USA, Belgium, France, Great Britain, Ireland, Poland, Italy, Japan, Czechoslovakia, promote the welfare of mankind Peaceful and friendly relations between their peoples may be perpetuated All changes in their relations must be sought only by pacific means And have decided to conclude a Treaty

3. UN Charter (Arts. 2, 39‐42) (CG) Article II 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 UN CHAPTER VII Action with respect to threats to the peace, breaches of the peace, and acts of aggression Article 39 •

Article I •

The High Contracting Parties declare in their names that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another

•

Article II •

Settlement of resolution of disputes shall never be sought except by pacific means

Article III • •

The Security Council (SC) shall determine the existence of any threat to peace, or act of aggression And shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security

The present Treaty shall be ratified by the High Contracting Parties as named in the Preamble and shall take effect as soon as deposited at Washington It shall be the duty of the Gov’t of the USA to furnish each Gov’t named in the Preamble and every Gov’t adhering to this Treaty with a certified Copy of the Treaty and of every instrument of ratification or adherence and shall notify such gov’ts immediately upon the deposit with it of each instrument of ratification or adherence


Article 40 •

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To prevent aggravation of the situation, the SC may call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable It shall be without prejudice to the rights, claims, or position of the parties concerned The SC shall duly take account of failure to comply with such provisional measures

Article 41 •

The SC may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the UN to apply such measures

2


b.

It may include partial or complete interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations

c. d.

Article 42 • •

e.

If the measures provided for in Article 41 are inadequate, it may take such action necessary to maintain or restore international peace and security It may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the UN

f.

g.

4. GA Resolution: Definition of Aggression (CG) Article I •

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Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the UN, as set out in this definition The term ‘State’ is used without prejudice to questions of recognition or to whether a State is a member of the UN, and includes the concept of a ‘group of States’ where appropriate Article II The first use of armed force in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the SC may in conformity with the Charter conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances including the fact that the acts concerned or their consequences are not of sufficient gravity

Bombardment by the AF of a State against a territory of another State or the use of any weapons by a State against the territory of another State The blockade of posts or coasts of a State by the AF of another State An attack by the AF of a State on the land, sea or air forces, marine or air flects of another State The use of AF of one State, which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State The sending by or on behalf of a State of the armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or it substantial involvement therein

Article 4 Acts enumerated above are not exhaustive and the SC may determine other acts that constitute aggression Article 5 • • •

No consideration of whatever nature may serve as justification for aggression A war of aggression is a crime against international peace. Aggression gives rise to international responsibility No territorial acquisition or special advantage resulting from aggression are or shall be recognized as lawful

Article 6

Article III

Nothing in this definition shall be construed as in any way enlarging or diminishing the scope of the Charter including its provisions concerning cases in which the use of force is lawful

Any of the ff acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of Article 2, qualify as an act of aggression: a.

The invasion or attack by the Armed Forces (AF) of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof


Article 7

3


•

Nothing in this definition, and in particular article 3, could prejudice the right to self‐determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of IL concerning Friendly Relations and Co‐ operation among States in accordance with the Charter of the UN Nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the Principles of the Charter and in conformity with the above‐mentioned Declaration

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Article 8 •

The above provisions are interrelated and each provision should be construed in the context of the other provisions

•

Specifically, they undertook in Article 2(4) to refrain in their international relations from the threat or use of force against territorial integrity or political independence of any state They also committed themselves to “settle their international disputes by peaceful means” However, the rules against the use of force should have had so short a life appears due to various factors The rules were predicated on a false assumption: that the wartime partnership of the Big Five would continue, providing the means for policing the peace under the aegis of the UN Because of new forms of attack, the prior notions of war and peace strategy became obsolete and the Charter itself provided enough exceptions and ambiguities to open the rules to deadly erosion

Factors Undermining Article 2(4)

5. Who Killed Art 2(4)? Or: Changing Norms Governing the Use of Force by States (CG) 64 AM. J. Int’l L. 809 (1970)

The ambitious projects were founded on an invalid premise: that the Security Council (SC) would be able to discharge its responsibility as the UN’s principal organ for world peacekeeping •

Important Doctrine: What killed Art 2(4) was the wide disparity between the norms it sought to establish and the practical goals the nations are pursuing in defense of their national interest. So long as there are nations – which is likely to be for a very long time – their pursuit of the national interest will continue; and where that interest habitually runs counter to a stated international legal norm, it is the latter which will bend and break. (The Article was VERY long! It’s a bit walang kwenta, I think? It just says that Art 2(4) is obsolete. It was very idealistic to begin with, so it was never actually used by countries say for disputes.)

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Introduction •

25 yrs ago, the Allied nations gathered at SFo in the warming glow of victory and signed a solemn treaty giving effect to their determination to “save succeeding generations” •


Under Chap 7, it is the SC which must decided whether a threat to the peace exists, or whether aggression has been committed, and if so, what, if any, collective steps by the world organization would best remedy the situation SC, however, in all but procedural matters, can only act with the assent of 9 members, including the affirmative vote of at least the abstention of each of the Big Five The essential prerequisite for UN collective action – the unanimity of the great Powers – was seen to be an illusion With the exception of the UN action in defense of South Korea, it has never been possible to invoke these collective enforcement provisions This paucity of actions under Chap 7 does not, unfortunately, denote a peaceful world community. In the 25 years since the SFo Conference, there have been some 100 separate outbreaks of hostility between states and the fact that on only one of these occasions has the UN been able to mount a collective enforcement action indicates why, for security, nations have increasingly fallen back on their own resources and on military and regional alliances As Chap 7 was seen to rust, increasing use began to be made of Arts 51, 52, and 53, which set out the rights of states themselves, under certain 4

PIL McRAE Digest: Resolution of Disputes exceptional circumstances, to resort to various kinds of force outside the UN framework With no system for objective fact‐finding, the concept of self‐defense remains a convenient shield for self‐serving and aggressive conduct •

• •

Art 51 of the UN Charter permits the use of armed force by a state responding in self‐defense to an armed attack, but there is usually no way for the international system to establish conclusively which state is the aggressor and which the aggrieved, as they have, since time immemorial, used force allegedly in “self‐defense” The operation of Art 51 is effectively and dangerously unlimited The temptation remains what it was before Article 2(4) was conceived: To attack first and lie about it afterwards

The changing nature of warfare •

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The great wars of the past, up to the time of the SFo Conference, were generally initiated by organized incursions of large military formations of one state onto the territory of another, etc It was to aggression of this kind that the drafters of Art 51 addressed themselves However, modern warfare has conveniently by‐passed these practices It tends instead, to proceed along two radically different lines, one too small and the other too large to be encompassed effectively by Article 51 First is the wars of agitation, infiltration and subversion carried on by proxy through national liberation movements And second, nuclear wars involving instantaneous use, in a first strike, of weapons of near‐paralyzing destructiveness

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The Lebanon Crisis of 1958 •

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The Effect of Small‐Scale Warfare on Article 2(4) • •

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It takes the form of rural and urban hit‐and‐run operations by small bands of fighters, sometimes not in uniform and often lightly armed Article 51, however, does not recognize the existence of these newer modes of aggression, or attempt to deal with the new problems of characterization which they create for international law Example is the Benes‐Masaryk Government of Czechoslovakia, when it appeared to avail itself of Western economic assistance under the Marshall


Plan, it was suddenly overthrown by the internal Communist minority. This group “was encouraged and given promise of help, if necessary by the representatives of the Government of the USSR who came to Prague for that purpose Another example is the case of Greece, the support of the indigenous Communist insurgents by neighboring Yugoslavia was far more tangible, as evidenced by the rapid fall‐off in activity after the 1948 break between Tito and Stalin Significant support has also been given indigenous Communist insurgent movements by China in Laos, Burma and South Vietnam and by Cuba in Venezuela, Bolivia and Colombia But since the Charter speaks only of a right to defend against an armed attack, the international community is left to ponder what principles govern the right to retort in instances of lesser trespass

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This particular Middle East Crisis dared up in two stages: First being the civil war which sought to overthrow the pro‐Western regime of President Chamoun; Second, the annihilation of the pro‐Western monarchy of Iraq, which led to the prophylactic dispatch of US troops to Lebanon and British forces to the Kingdom of Jordan In May, the Lebanese Government lodged a complaint with the SC, alleging that a “situation” had arisen “the continuance of which” was likely to endanger the maintenance of international peace and security and that this situation of civil insurrection had arisen “from the intervention” of the United Arab Republic (UAR) in the internal affairs of Lebanon Specifically, IAR was guilty of “intervention” in the Lebanese civil war by the supply of arms on a large scale to subversives, by training in subversion in the territory of the UAR of elements from Lebanon, etc. However, none of these charges amounted to an “armed attack” The SC indicated confidence that there is nothing from the Lebanese Government which would lead them to say there is massive infiltration However, US proclaimed that “a ruthlessness of aggressive purposes which tiny Lebanon cannot combat without support from friendly nations” was already taking place, thus it already needs intervention from them It was against such “indirect aggression” that the US invoked the collective self‐defense exception to Article 2(4) 5


•

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But the Swedish Government does not consider that this condition has been fulfilled in the present case, nor does the Government consider that there is an international conflict in terms of Article 51 The Lebanese crisis illustrates 2 problems inherent in applying Art 51: (1) how is the fact of an armed attack to be established? And (2) how to define “armed attack” in a way relevant to the modern conditions of indirect, limited warfare without broadening it to the point at which disproportionate armed force can be used under the guise of self‐defense against imagined or slight provocation If the use of force is to be permitted in self‐defense by way of exception to the general prohibition in Art 2(4), there must be some machinery for determining whether that exception applies in particular instances

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The Effect of Potential Nuclear Warfare on Article 2(4) •

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Taken literally, Art 2(4) and 52 together seem to require a State to await an actual nuclear strike against its territory before taking forceful countermeasures Art 51, however, permits the use of self‐defense by nations only in the event of an armed attack According to Professor McDougal, Art 51 cannot be taken to read that a military response in self‐defense is permitted if, and only if, an armed attack has actually occurred. It would be against reason and nature, particularly in the age of jets, rockets and nuclear weapons. He goes to argue that Art 51 should be interpreted to mean that a state may use military force when it “regards itself as intolerably threatened by the activities of another” Maybe doctrine of necessity, customary international law and human reason may allow these pre‐emptive strikes McDougal says that this is not only applicable in cases of apprehended nuclear attack, but against any threatening “activities,” including conventional military ones that do not raise the same threat of catastrophic destruction

Regional Enforcement and Article 2(4) •

Art 52 and 53 of the Charter have been interpreted to legitimate the use of force by regional organizations in their collective self‐interest, and,


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specifically, the role and primacy of regional organizations in settling disputes between members This has played an important role in the growth of international violence over the past 25 years These regional organizations developed tight codes of loyalty and have not hesitated to enforce them against members suspected of deviation Intended to supplement the UN peacekeeping system, the regional organizations have too often instead become instruments of violence, eroding the Article 2(4) injunction The first and preferred tactic of the regionalists was to establish a total exception within the Charter for regional organizations, removing them from the jurisdiction of UN organs, giving them primacy in peacekeeping, and a free choice of peaceful or military means of enforcement The now Art 51 of the Charter permits collective self‐defense against an armed attack unless a Security Council resolution prohibits it, thus reversing, in situations of self defense, the requirement for prior SC approval before armed force is deployed However, Art 51‐53 have melded to produce an increasingly frequently asserted right of regional organizations to take the law into their own hands, to act militarily without SC approval even in the absence of an actual armed attack, and to exclude the UN from jurisdiction over disputes

The Way Ahead •

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The prohibition against the use of force in relations between states has been eroded beyond recognition, principally by 3 factors: o The rise of wars of “national liberation” o The rising threat of wars of total destruction o The increasing authoritarianism of regional systems dominated by a super power These may be traced back to the lack of congruence between the international legal norm of Art 2(4) and the perceived national interest of states, especially the super powers Two worlds may emerge from the ashes of Art 2(4) First is a world of peacefully co‐existing super‐power‐dominated regional spheres The other is the world that could arise from the ruins of Art 2(4) in which redefined national interest is no longer calculated in integers amenable to military manipulation and in which, consequently, the national interest is 6

PIL McRAE Digest: Resolution of Disputes perceived to be congruent with a renunciation of the use of military force in inter‐state relations

o

6. The Legality of Pro‐democratic Invasion (RL)

o

Oscar Schachter • •

•

This article is all about Reisman’s interpretation of Art. 2(4) of the UN Charter, which refers to the use of force. He argues that the use of force is a means by which “self‐determination”, which is the paramount goal of IL according to Reisman, may be achieved. o He proposes to re‐interpret Art. 2(4):  (1) That the rule against force is dependent on an effective UN collective security system. • UN’s failure to prevent unilateral recourse to force has made unilateral self‐help necessary. • Further, some unilateral coercion is legitimate; hence, not all unilateral recourse to force should be condemned.  (2) It is also true that verbal condemnation in the UN of the use of force is not always accompanied by effective sanctions. o As such, Reisman says that 2(4) must be reinterpreted to allow force in a good cause (popular rule). o It must be applied to increase the probability of the free choice of peoples about their government and political structure.  Where a repressive government deprives its people of their free choice, a foreign state should be legally entitled to use force to bring about the desirable end of “on‐going self‐determination”. Schachter, on the other hand, says that this argument must be REJECTED. o There has been a general agreement that the rule against unilateral recourse to force (except in self‐defense) is a fundamental tenet of IL.  It is JUS COGENS.  To re‐interpret it is a radical departure from that principle. o Furthermore, any invasion, however brief, violates the essence of territorial integrity.


And for a foreign power to overthrow the government of an independent state, that is against the state’s political independence. It would give the powerful states an almost unlimited right to overthrow government alleged to be unresponsive to the popular will or to the goal of self‐determination. Arguments such as Reisman’s may influence the policy in favor of armed intervention, which should be not become a norm of IL. 

II. Concepts of Self‐Defense and Self‐Protection 1. UN Charter (Art. 51) (RL) •

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Member States shall have the inherent right of individual or collective self‐ defence if an armed attack occurs, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by the States shall be immediately reported to the Security Council and shall not affect the authority and responsibility of the Security Council to maintain or restore international peace and security.

2. The Right of States to Use Armed Force (RL) Oscar Schacter •

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The UN charter outlawed war, except: o Force used in self‐defense when an armed attack occurs; and o Armed action authorized by the UN SC as an enforcement measure. Reality, however, seems to mock the effect of these exceptions since wars still take place, countries are invaded, armed force is used to topple governments, seize territories, etc. The obligations of the Charter then are but mere rhetoric or cover for aggression.

7

PIL McRAE Digest: Resolution of Disputes MAIN ISSUE: W/N the existing rules on the use of force are so vague and uncertain as to allow a state to offer plausible legal justification for virtually any use of force it chooses to exercise. •

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On the meaning of Art 2(4): The words “force”, “threat of force” and “intervention” are subjected to different interpretations. (below are examples) o Force: can be used in a wide sense to embrace all types of coercion, may it be economic, political and psychological as well as physical. o Threat of force: the preponderance of military strength in some states and their political relations with potential target states may justifiably lead to an inference of a threat of force against the political independence of the target state. On Recovering Territory: It is argued that States’ use of force to claim a territory that they believe is rightfully theirs amounts to self‐defense. o But the use of force to take back what has been unlawfully taken from them should not be allowed. o They must resort to peaceful means. On humanitarian intervention: In cases of large‐scale atrocities or acute deprivation, armed intervention by outside states would be justifiable exception to the use of force, invoking territorial integrity and the overriding need to act in the interest of basic humanitarian values. o This is allowed only if peaceful measures are unavailable. o But a different position is taken when a state has used force to rescue or protect its own nationals in imminent peril of injury in a foreign country.  Elements to allow the use of force for this case: (1) imminent threat of injury to nationals; (2) a failure or inability on the part of the territorial sovereign aspect to protect them; and (3) measures of protection strictly confined to the object of protecting them against injury. o Example cited: the attempt of the US to rescue the hostages in Tehran.  W/n peaceful means were already exhausted and w/n the hostages were in imminent danger of losing their lives or suffering serious injuries?


In this case, it was not clear w/n their lives were in peril but at the same time, the US cannot be assured of the hostages’ safety.  It is then hard to say that the US action was unnecessary. It was justified only to the extent of its relation to the rescue mission, nothing more. o It has also been maintained that intervention to protect nationals can be self‐defense, presumably on the premise that it involves an armed attack on the protecting states or an imminent threat of such attack. On the Requirement of an Armed Attack and Anticipatory Defense: The attack must be imminent and need not have actually taken place. The necessity to use such type of self‐defense must be (1) instant, (2) overwhelming, and (3) leaving no choice of means, and (4) no moment for deliberation. On the Requirement of Necessity and Recourse to Peaceful Means: The use of force when an attack occurs against a State may be used provided it is proportional. o An exception to this is when there is an unusual circumstance that the necessity of defense to an armed attack requires no separate justification. o Armed defense in the above situation is permissible, as well as when there have been series of attacks against that state from the same source. On Proportionality: Acts done must not exceed in manner or aim the necessity provoking them. On Collective Self‐Defense: The collective security system of the UN has been replaces by the fragmented collective defense actions and alliances founded on Art. 51. o States are then allowed to undertake enforcement measures but the UNSC approval is still necessary is use of force is sought. o This is done in order not to contravene Art. 2(4) of the Charter. On Interventions by Armed Force in Internal Conflicts: Governments commonly receive foreign military aid and they may request more such aid when faced with an armed insurrection. o Two important questions: (1) is there an obligation to cease aid to the established regime because that now involves taking sides in an internal conflict? and (2) if such aid to the gov’t 

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constitutes foreign intervention, does it permit counter‐ intervention to support the other side? o Intervention on either side in a civil war interferes with the right of the people to decide the issue for them. o However, in the absence of a civil war, recognized governments have a right to receive external military assistance and outside states are free to furnish such aid. o Problem arises if such outside military force is used to impose restrictions on the political independence of the country, such as limiting the choice of the people in regard to the government’s composition.  In this case, although the government invites them, the foreign armies are there to curtail the political independence of the state and such is an action that contravenes art. 2(4).  But, there is nothing wrong in assisting a legitimate government to resist a coup d’etat, and humanitarian aid is allowed. Despite all of these disagreements, there is a considerable area of agreement as to the core of substantive law. o These are grounded on: (1) paramount interest of in the sovereignty and independence of nation‐states; and (2) common interest in restraints on the unbridled exercise of power. o It is true that efficacy of law is limited because the system lacks effective central authority and is characterized by vast discrepancies in the power of states.  But the powerful states, though may violate IL, have a stake in stability and an acute sense of countervailing power. The inadequacy the of IL should not be a reason for ignoring the need to maintain peace.

III. The Legality of Reprisals 1. The Legal Implications of Israel’s 1982 Invasion into Lebanon (EM) LEGAL IMPLICATIONS OF ISRAEL’S 1982 INVASION INTO LEBANON Israeli armed forces swept into southern Lebanon in an invasion of unprecedented magnitude. The long expected invasion was the epilogue of deep‐ rooted tensions and hostilities between Israel and the Palestine Liberation Organization (PLO). The initial goals of Israel’s invasion were to push the PLO out of range of Israel’s northern settlements and to establish a 25‐mile buffer zone along the Lebanese‐ Israeli border. Israel views its actions as a legitimate act of self‐defense. The PLO claims that the goal of Israel’s invasion was to destroy the Palestinian movement for an independent Palestinian State. The Lebanese government has been unable to govern the actions of the PLO based in its territory. Lebanon characterized Israel’s invasion as a violation of territorial sovereignty and called for the withdrawal of all foreign forces from Lebanese soil. The Palestinian‐Israeli Conflict UN voted to partition British Mandate Palestine into 2 separate states: Israel  Jewish state and Palestine  Arab state. The plan was designed to alleviate tensions and hostilities between the Arabs and Jews. The 1948 war compelled thousands of Palestinians to relocate in Lebanon and other Arab states. PLO formed and declared itself the official representative of the Palestinian people. The aim of PLO was to provide the Palestinian people with a homeland. An agreement was reached between the Lebanese government and the PLO. This


9

PIL McRAE Digest: Resolution of Disputes agreement, Cairo Agreement, permitted PLO to use Lebanese territory as a base for military operations against Israel. The Israeli‐PLO hostilities in Lebanon are unusual. Israel did not invade Lebanon to fight the Lebanese government. Instead, it sought to vanquish the PLO from Lebanese soil. Lebanon’s State Responsibility Under the principle of international law, each State has the right to political independence and territorial sovereignty. The concept of sovereignty encompasses 2 aspects of independence: 1. 2.

Each State possesses internal independence  actions of the State in regard to its own territory and its domestic laws Sovereignty entail external independence  State has the freedom to interact with other States

If it can be successfully argued that the PLO actions were not attributable to Lebanon under the direct responsibility doctrine, Lebanese responsibility might still be vicariously imputed. Vicarious Responsibility The principle of vicarious responsibility focuses on the State’s delict, that is, the failure to prevent or punish those persons, acting within the State’s sovereignty, who commit a hostile act against a foreign State. If the State has failed to prevent an injurious act, the injured State is entitled to due satisfaction—punishment of the offenders or reparations for the harm done. Lebanon has failed to prevent any threats of injurious acts directed to Israel. Nor has Lebanon punished those persons responsible for committing these acts. Lebanon, therefore, should be considered delinquent.

One duty internationally imposed on a State is the prohibition against the threat or use of force against the territorial sovereignty of another State. Prior to Israel’s 1982 invasion, no Lebanese army, acting on behalf of the Lebanese government, had physically entered Israeli territory.

Although Lebanon may be delinquent, it is arguably not vicariously responsible for the PLO acts. Once a State has been found delinquent, the vicarious responsibility doctrine imputes State liability in one of 2 ways, either through fault or absolute responsibility. The fault doctrine obligates the State to use due diligence or the means at its disposal to prevent the injurious act. the absolute responsibility doctrine imputes all liability regardless of fault to the State for any injurious acts form its soil.

There are generally 2 theories to impute responsibility to a State for a violation of an internationally imposed duty: 1.

Direct or Original responsibility  deals with the acts of formal or informal organs of the State

2.

Vicarious or Indirect responsibility  focuses on private acts which may be imputed to the State

The Cairo Agreement may be interpreted as legitimizing the PLO as an informal organ of the State of Lebanon. Through the recognition of the PLO and the grant of power to it via the Cairo Agreement, Lebanon would assume direct responsibility for PLO violations of Israel’s sovereignty.


Responsibility Based on Fault  under this, a State does not automatically incur responsibility for hostile acts of persons committed from its territory. If the State was unaware of such conduct or knew but was unable to prevent the hostile activities, the State would not incur responsibility. Absolute Vicarious responsibility  State is liable for hostile acts from its soil, even if these acts are caused by private individuals not acting on behalf of the State. The State’s mere tolerance of the use of its territory as either a base of operations or a point of departure for incursions into the territory of another State is an international delinquency for which the State will be held absolutely responsible. 10

PIL McRAE Digest: Resolution of Disputes Lebanon arguably should bear either direct or vicarious responsibility for injuries to Israel caused by the Lebanese based PLO. Neither theory has the pragmatic force to provide security or compensation to Israel nor justify subsequent Israeli actions. The Use of Force as a Remedy against a Violation of a State’s Political Independence or Territorial Sovereignty Reprisals are acts of retaliation for violations of law which caused injury to the State exercising the reprisal. The State taking the reprisal usually seizes the land or property of the delinquent State as a means of obtaining redress for the alleged wrong. The UN Charter appears to alter any customary legitimacy for forceful reprisals. The prohibition against the use of force and the need to settle disputes peacefully support the view that retaliatory reprisals amounting to the use of force are no longer permitted. Aggression by Armed Bands  aggression is generally considered delictual conduct which violates and endangers the right of territorial integrity and political independence or sovereignty, thus placing the security of the State in danger. A State which supports or tolerates armed bands within its territory is generally held to be an aggressor if these armed bands either threaten or already have committed an armed attack against another State. Lebanon has given sanctuary to the PLO. Aggression in the Form of an Armed Attack  the hostile action must attain a certain gravity to justify a forceful exercise of self‐defense. The totality of the acts, the Nadelstichtaktik doctrine, may demonstrate a systematic campaign which might be considered an “armed attack” sufficient to justify self‐defense. Dean Candelaria 12‐13

If the Palestinian‐Israeli conflict is viewed as one continuous conflict, the totality of all hostilities may be considered an “armed attack” which has caused serious injury or provocation to Israel. A defending state would not have to wait for an armed attack to occur. Anticipatory self‐defense legitimizes the recourse to force in the face of an imminent threat of an armed attack. Israel and the PLO have been engaged in hostilities for many years. The PLO arms build‐up suggested an imminent attack against Israel. The Israel invasion into Lebanon would be legitimate only if necessary and proportionate to the harm already suffered. Necessity  the necessity of self‐defense arises when either a violation is imminent or a past violation is continued. Proportionality  requires that the force used be proportionate to the illegal act or threat. Significance of this principle is based on the need to control a possible destructive natural temptation to exceed the force necessary to repel or remove the danger. If the Palestinian‐Israeli conflict were viewed as one continuous conflict, Israel’s invasion would then appear proportionate and reasonable under the Nadelstichtaktik doctrine. Israel would thus be justified in removing the threat to its political and territorial sovereignty posed by the PLO. Proposals for a Peaceful Resolution Any legal solution must encompass the legal rights of all the parties involved. 1.

Lebanon’s sovereignty must be restored

2.

Israel’s security interests as a sovereign in the international community must be protected

3.

Palestinian right to self‐determination, as guaranteed by Art. 1(2) of UN Charter, must be fulfilled 11


B. JUDICIAL AND ARBITRAL SETTLEMENT

1.

Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

2.

If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

I. ICJ 1. UN Charter (Art. 2, 33, 92‐96) (EM) Art. 2 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. Art. 33 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

Article 95 Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future. Article 96 a.

The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.

b.

Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

CHAPTER XIV: THE INTERNATIONAL COURT OF JUSTICE Article 92 The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter. Article 93 1.

All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.

2.

A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.

Article 94 Dean Candelaria 12‐13

2. UN at 50: A Time to Reform (NO) The UN was mainly done to do reform especially on the field of peace. UN still rests on its security roles, though the original need for a system of collective security is now overshadowed by the need to prevent or settle local and internal conflicts. The other major need is for promotion of economic development to secure the charter’s aim of promoting social progress and better standards of life in larger freedom. If the UN did not exist there would be a need to develop something very much like it on the basis of these needs alone and then there is a spread of issues that 12

PIL McRAE Digest: Resolution of Disputes cross boundaries and defy effective management by individual states. The list includes measures against terrorism and narcotics industry, regulation of arms trade and efforts against global health problems.

With the UN Trusteeship Council having discharged its responsibilities, it is appropriate to reform this principal organ of the UN by assigning it trusteeship over the global commons.

UNSC

UNGA

Between 1946 and 1990, a total of 646 Security Council resolutions were passed, with another 201 falling victim to the veto. The council is at the very center of international security affairs.

A GA that occupies more of the stage and reorders its work to make it more focused and results‐oriented will allow smaller states have a meaningful role in international governance. There has been some progress with the theme debates, but much more could be done as the Assembly re‐emerges as the place where governments come together to solve common problems

A more serious concern is the composition of the council. It is not reasonable to suggest that the five winners of the second World War with the assistance of 10 additional, rotating member states comprise a representative, legitimate or authoritative voice for a UN membership of 185. The author suggests that it is time to set aside the veto. He said that we to be realistic and recognize that the veto will not relinquish it readily or during a period of transition or turmoil.

Secretariat The overhaul should include agreement that the permanent five would not use their veto selection of a sec‐gen and that candidates from the five could be considered.

Global reform

An Economic Security Council

The author suggested a conference which would allow members ample time for a thorough preparatory process to study UN reforms as well as its organs.

Any agenda for reform of international cooperation cannot be complete without advancing the argument for better governance of the economy. During the Davos forum it repeatedly mentioned globalization and its role in economic growth. Even in the forum it sent a message that revitalizing ECOSOC will not suffice.

3. Legal contribution of the UN System (NO)

Some commentators, while endorsing the need for a mechanism such as the Economic Security Council (ESC) proposed by the Commission on Global Governance, draw back from housing such a crucial group under the umbrella of the United Nations. As envisaged, the ESC would comprise the major economies of the world. Also, there should be balanced representation among the world main regions to bring in a wider, more representative constituency; smaller states could be given a role. It will meet once a year at the level of finance ministers. Trusteeship Council Dean Candelaria 12‐13

I.

Lawmaking in the UN System Not a legislative body, rather, their objectives would be carried out mainly through recommendations aimed at coordinating the actions of their member states. Although they are not legislatures, most UN organs have acted much like parliamentary bodies in their proceedings. Member states as well as UN organs provided for solutions to the world’s problems through new law and legal regimes. The most obvious law instrument in lawmaking in the UN is the multilateral “norm‐creating” treaty. Hundreds have been concluded; they were initiated, 13

PIL McRAE Digest: Resolution of Disputes negotiated and adopted by UN organs or by international conferences by UN bodies. A question has to be asked on whether UN lawmaking treaties bind states that choose not to become parties and refrain from acts that signify adherence. However, some treaties are mere codification of customary law while some crystalize emergent rules of law. For example UNCLOS which has several articles expressing new custom and UN Human Rights treaties which has been regarded by some jurists as new customary law or recognized principles of law. A related problem of lawmaking is raised by resolutions, especially when adopted without dissent. The legal arguments on its binding effects usually rests on characterizing them as (a) authentic interpretations of the UN Charter; (b) Affirmations of recognized customary law; or (c) expressions of general principles of law accepted by states. These three reasons fit into the sources of international law under the ICJ statue. The court has even recognized the binding effects of adopted resolutions (such as the South‐ West Africa Case). Due to the numerous problems created by technological development, demographic changes as well as social justice, recourse to the recommendatory authority to declare law as cannot meet these demands. Meanwhile, although treaties can answer this, they are often complicated and slow. Juxtaposed to resolutions, they are readily attained. The law declaring resolutions are not only a response to felt needs; they are also a consequence of the opportunity afforded by voting rules in the UN system. However, these efforts are limited by the realities of politics and power. The International Law Commission (ILC hereinafter) was tasked, through a UNGA resolution, to codify existing law and progressively develop the law. So they restatements from conferences, some of which were already law prior to its codification. As a practical matter, lawyers in or outside relying on its codification need not search through diplomatic history or scattered cases for precedents. Dean Candelaria 12‐13

II.

Several factors raise questions as to the ILC’s role. For one thing, the major traditional subjects of customary law have been codified except for state responsibility. Taking the UN system as a whole, a large area of international regulation has been developed by specialized agencies. The techniques are of particular interest since they significantly relax the tradition principle that no state is bound without its consent. Moreover, in practice, texts that are only recommendatory have as much effect as formal rules in channeling state conduct. (See Codex Alimentarius as an example) Basically this portion summarizes the contribution of the UN system in creating and codifying international law principles. By its very nature, it can indicate a rising custom, and bind states (i.e. UNSC decisions). Interpreting and applying the law Written instruments ranging from charters and treaties to resolutions and decisions prescribing terms of reference govern all bodies in the UN system. In practice, interpretation is required in applying text to actual cases. But unlike, judicial interpretation, it does not have an adjudicative character. There are important exceptions; these are related mainly to the UN Charter provisions and to some major treaties. The most virulent controversies have involved the competence and powers of the UNSC and GA, especially in respect to domestic matters. Other debates involved obligations of states in regard to the use of force, intervention, self‐determination and human rights. The elasticity of the Charter Language allows such choices to be relatively free of restraints. This is bolstered by the assumption that interpretations, which are generally acceptable, will settle the issue. Of course, if everyone agrees then proper legal interpretation will rarely rise. However, when there are opposing vies, political organs tend to decide on the merits, that is what they consider as desirable and politically feasible. The issue has revived interest in the possibility of utilizing the International Court to render advisory opinions on the political organ’s interpretation. An 14

PIL McRAE Digest: Resolution of Disputes example of which is the Case concerning South‐West Africa wherein the ICJ rendered an advisory opinion. It is possible, though rare, for the issue of legality to be raised in the court by a state in a contentious case against another state. Libya did so in 1992 against UK, and US this was about the economic sanctions against Libya because of its refusal to surrender terrorists. This was however denied by the court. Judge Lachs, referred to Charter mentions of the ICJ that corroborates its role as the “general guardian of legality” within the system. We cannot expect, however, that political organs will agree to request advisory opinions whenever a legal argument is made against its decision. Member states that feel prejudiced may also seek judicial determination for protection against abuse of power. In an exceptional case, the Court or an ad hoc body could be a useful means to resolve doubts and perhaps check ill considerations of the majority. The main reason for this is to avoid losing respect of its decisions because it may be perceived to be improperly motivated. There are suggestions by Thomas Franck and other political organs that the criteria be determinancy, consistency and coherence. However, at a closer look they are problematic standards for UN political bodies which take into consideration national interests and values at stake. It is interesting to note that UN organ interpretations fall, by large, into two categories. One, perhaps the more common, lays stress on the aims of the institution as expressed in the charter. The other argues mainly on the basis of practice and precedence. III. Compliance and Enforcement Some prominent international lawyers dismissively referred to enforcement as a political matter outside of the law. However, attitudes began to change as governments were gradually impelled to take more seriously precepts that they had adopted. In large part, this change transpired because public sentiments on certain areas (i.e. Human Rights) were brought to bear on governments. Dean Candelaria 12‐13

UN has applied several tactics for compliances. We can get a clearer view of the whole array by classifying them in several categories. First are reporting and supervision procedures in a particular treaty. It has a patter of characteristics such as periodic reports; a review committee and a committee noting discrepancies. It also has investigations for the supervision part, it is mainly depicted in two examples. These are ad hoc committees on designated issues and usage of special rapporteurs. Second is facilitative, wherein the UN helps the state carry out its obligation such as the UN peace keeping forces. Third is penalizing those law‐breaking states. It may take the form of suspension of privileges or expulsion. Fourth is the nonmilitary enforcement action by the UNSC such as imposing economic sanctions. However it might have a backlash because it will most likely affect the citizenry and not the regime (See Special Rapporteur Vitit Muntharborn’s report on North Korea for an in‐depth study). Fifth is use of armed force pursuant to Chapter VII of the UN Charter, as in the case of Iraq during desert storm. Sixth is judicial enforcement. Both international and national tribunals employ it. The most notable cases here is the Tehran and Nicaragua. This paper also discussed during this time the UN was considering and studying the possibility of creating a permanent international criminal court. IV. Patterns and Politics An overview of the UN legal order reveals complex patterns, we see a multitude of specialized bodies of law, each with its distinctive features, many intricate and dense. The development of human rights in the UN system is of particular interest in an overview. Human rights conventions were not widely ratified but 15

PIL McRAE Digest: Resolution of Disputes concerns over apartheid and other atrocities led to the erosion of domestic jurisdiction. It has also impacted social and economic development. Another concept is the law of peace and security which greatly affected international law. Such is the raison d’etre of the UN charter. Mainly on this aspect politics as to the UNSC with regard to the veto power is apparent. There are also other fields such as economic law, private law and transparency of the UN system whose growth and direction as it stands now is attributable to politics The author posits an architectural metaphor on the UN legal system. On the ground floor – Demands and goals of the governments nd On the 2 Floor – Activities of legal character (formation and invoking legal norms) rd On the 3 Floor – Broad policy goals, aspirations and ideals that influence governments and actors.


16

PIL Case Digest: Resolution of Disputes

RESOLUTION OF DISPUTES 1. Del Monte v. CA (RL) TOPIC: Only parties to the Agreement are bound by the arbitration clause [G.R. No. 136154. February 7, 2001]

That petitioners knowingly and surreptitiously continued to deal with the them in bad faith by involving disinterested third parties. Private respondents claimed that they had exhausted all possible avenues for an amicable resolution and settlement of their grievances but to no avail. Petitioners filed a Motion to Suspend Proceedings invoking the arbitration clause in their Agreement with private respondents. o The trial court deferred consideration of said motion as the grounds alleged did not constitute the suspension of the proceedings. Petitioners filed an MR, which was denied. The CA affirmed the TC’s decision. o

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Petitoners: DEL MONTE CORPORATION‐USA, PAUL E. DERBY, JR., DANIEL COLLINS and LUIS HIDALGO Respondents: COURT OF APPEALS, JUDGE BIENVENIDO L. REYES in his capacity as Presiding Judge, RTC Br. 74, Malabon, MONTEBUENO MARKETING, INC., LIONG LIONG C. SY and SABROSA FOODS, INC.

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Ponente: BELLOSILLO, J.

ISSUE: W/N the dispute between the parties warrants an order compelling them to submit to arbitration.—NO. Some of the petitioners are NOT bound by the arbitration clause of the Agreement.

FACTS: •

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On 1 July 1994, in a Distributorship Agreement, Del Monte Corporation‐USA (DMC‐USA) appointed Montebueno Marketing, Inc. (MMI) as the sole and exclusive distributor of its Del Monte products in the Philippines for a period of 5 years, renewable for 2 consecutive 5‐year periods with the consent of the parties. The Agreement provided for an arbitration clause which states that the Agreement shall be governed by the laws of the State of California and/or, if applicable, the United States of America. All disputes arising out of or relating to the Agreement or the parties’ relationship, including the termination thereof, shall be resolved by arbitration in the City of San Francisco, State of California, under the Rules of the American Arbitration Association. MMI appointed Sabrosa Foods, Inc. (SFI) as MMI’s marketing arm. On 3 October 1996 MMI, SFI and MMI’s Managing Director Liong Liong C. Sy (LILY SY) filed a Complaint against petitioners before the RTC of Malabon. o They allege that petitioners violated of Arts. 20, 21 and 23 of the Civil Code. o That DMC‐USA products were brought into the country by parallel importers despite the appointment of private respondent MMI as the sole and exclusive distributor of Del Monte products thereby causing them substantial damage. o That the products brought into the country by these importers were aged, damaged, fake or counterfeit.


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Petitioners contend that the subject matter of private respondents’ causes of action arises out of or relates to the Agreement between petitioners and private respondents. o Considering that the arbitration clause of the Agreement, they insist on the suspension of the proceedings in the Civil Case. Respondents claim that their causes of action are rooted in Arts. 20, 21 and 23 of the Civil Code, the determination of which demands a full‐blown trial, as held by the CA. o Accordingly, they assert that arbitration is out of the question. o They further contend that the arbitration clause centers more on venue rather than on arbitration. SC: There is no doubt that arbitration is valid and constitutional in our jurisdiction. Even before the enactment of RA 876, this Court has countenanced the settlement of disputes through arbitration. Unless the agreement is such as absolutely to close the doors of the courts against the parties, which agreement would be void, the courts will look with favor upon such amicable arrangement and will only interfere with great reluctance to anticipate or nullify the action of the arbitrator. RA 876 expressly authorizes arbitration of domestic disputes; foreign arbitration as a system of settling commercial disputes was likewise recognized when the Philippines adhered to the United Nations "Convention on the Recognition and the Enforcement of Foreign Arbitral Awards of 1958, giving reciprocal recognition 1

PIL Case Digest: Resolution of Disputes

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and allowing enforcement of international arbitration agreements between parties of different nationalities within a contracting state. A careful examination of the instant case shows that the arbitration clause in the Distributorship Agreement between petitioner DMC‐USA and private respondent MMI is valid and the dispute between the parties is arbitrable. However, the SC DENIED THE PETITION. o The Agreement is a contract. o The provision to submit to arbitration any dispute arising therefrom and the relationship of the parties is part of that contract and is itself a contract. o As a rule, contracts are respected as the law between the contracting parties and produce effect as between them, their assigns and heirs. Only parties to the Agreement are bound by the Agreement and its arbitration clause as they are the only signatories. o Petitioners Daniel Collins and Luis Hidalgo, and private respondent SFI, not parties to the Agreement and cannot even be considered assigns or heirs of the parties, are not bound by the Agreement and the arbitration clause. o Consequently, referral to arbitration in the State of California could be called for but only as to petitioners DMC‐USA and Paul E. Derby, Jr., and private respondents MMI and LILY SY, and not as to the other parties In Salas, Jr., only parties to the Agreement, their assigns or heirs have the right to arbitrate or could be compelled to arbitrate. o That in recognizing the right of the contracting parties to arbitrate or to compel arbitration, the splitting of the proceedings to arbitration as to some of the parties on one hand and trial for the others on the other hand, or the suspension of trial pending arbitration between some of the parties, should not be allowed as it would, in effect, result in multiplicity of suits, duplicitous procedure and unnecessary delay. The issue could not be speedily and efficiently resolved in its entirety if simultaneous arbitration proceedings and trial, or suspension of trial pending arbitration are allowed.

2. LM Power v. Capitol (EM) LM Power Engineering Corporation, petitioner vs. Capitol Industrial Construction Groups, Inc., respondent G.R. No. 141833, March 26, 2003 Panganiban, J. Facts: •

On February 1983, LM Power and Capitol Industrial entered to a subcontract agreement involving electrical work at the Third Port of Zamboanga

•

On April 1985, Capitol took over some of the work contracted to LM power o

•

•

•

After completion, LM power billed Capitol in the amount of P 6,711,813.90 o

Capitol refused to pay as they contested the amount billed them

o

Capitol also cited the termination clause ‐ this, according to Capitol to set‐ off the cost of the work that LM power failed to undertake ‐ due to termination or take‐over

LM Power then filed a case in the RTC for collection of the amount representing the balance due it o

Capitol filed a MTD ‐ complaint was premature because there was no prior recourse to arbitration

o

RTC denied the motion on the ground that the dispute did not involve the interpretation or implementation of the agreement ‐ thus, not covered by the arbitral clause

o

On the merits, RTC ruled that the take‐over of Capitol was not equivalent to a termination, but a mere modification, thus ordering Capitol to pay

CA reversed the decision of the RTC and ordered the referral of the case to arbitration o

DISPOSITIVE: The petition is DENIED.


LM power allegedly was not able to finish it

CA said that the issue of whether or not respondent's take over of some work items had been intended to be a termination of the original contract under Letter K of the subcontract was arbitrable

Issues: 2

PIL Case Digest: Resolution of Disputes •

Must they resort to arbitration first?

•

WON requirements for arbitration were complied with?

Held: YES Ratio: First Issue •

The instant case involves technical discrepancies that are better left to an arbitral body

•

Arbitral clause o

•

"The Parties hereto agree that any dispute or conflict as regards to interpretation and implementation of this Agreement which cannot be settled amicable shall be settled by means of arbitration xxx" [emphasis supplied]

If we review the facts, the following questions are raised: (1) was there a take‐ over/termination? (2) may the expenses incurred by Capitol in the take‐over be set off against what it owed LM Power? (3) How much were the advances and the billables?

•

The resolution of these questions lies in the interpretation of the provisions of the agreement

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Consistent with the policy of encouraging alternative dispute resolutions, courts shall liberally construe arbitration clauses ‐ any doubt shall be resolved in favor of arbitration

Second Issue •

LM power argued that the failure to file a formal request for arbitration with the Construction Industry Arbitration Commission (CIAC) precludes the latter to acquire jurisdiction over the matter. It even cited the case of Tesco to bolster its position

•

The Court does not agree o

o

Today, recourse to the CIAC may be done whenever a contract contains a clause for the submission of a future controversy to arbitration

Clearly, there is no more need to file a request with the CIAC in order to vest it with jurisdiction to decide a construction dispute

•

The arbitral clause of the agreement is a commitment on the part of the parties to submit to arbitration the disputes covered therein WHEREFORE, the Petition is DENIED

3. Frabelle v. Philamlife (NO) G.R. No. 158560 Petitioners: FRABELLE FISHING CORPORATION Respondent: THE PHILIPPINE AMERICAN LIFE INSURANCE COMPANY, PHILAM PROPERTIES CORPORATION and PERF REALTY CORPORATION Ponente: J. Sandoval‐Gutierrez Facts: •

•

Section1 of Art. III of the new Rules Procedure Governing Construction Arbitration has dispensed with the requirement of request for arbitration

•

The Court sided with Capitol ‐ the dispute arose from the parties incongruent positions on whether certain provision of their agreement could be applied to the facts

•

o

Philam Properties Corporation, Philippine American Life Insurance Company, and PERF Realty Corporation (respondents) entered into a Memorandum of Agreement to contribute cash, property and services for the construction of the Philamlife tower. On December 6, 1996 respondents executed a Deed of Assignment, assigning their rights and obligations with regard to the construction and subsequent th ownership of Unit 38‐B(38 floor) to Frabelle properties (Frabelle). o Frabelle, in turn, assigned to Frabelle Fishing Corporation (Frabelle Fishing), petitioner herein, its rights, obligations and interests over Unit No. 38‐B. o Frabelle Fishing and respondents executed a Memorandum of Agreement (1998 MOA) to fund the construction of designated office floors in Philamlife Tower.

There were different rules during the time of Tesco


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•

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The dispute started when petitioner found material concealment on the part of respondents regarding certain details in the 1996 DOA and 1998 MOA. o There were also violations of contractual obligations such as:  The non‐construction of a partition wall between Unit No. 38‐B and the rest of the floor area;  The reduction of the net usable floor area from four hundred sixty eight (468) square meters to only three hundred fifteen (315) square meters. Frabelle Fishing referred the matter to the Philippine Dispute Resolution Center, Inc. (PDRCI) for arbitration but respondents refused to submit to PDRCI’s jurisdiction. Petitioners then submitted their case with the Housing and Land Use Regulatory Board (HLURB) for reformation of instrument, specific performance and damages against respondents. o HLURB denied respondent’s plea for dismissal and scheduled a preliminary hearing o Respondent’s prayed for a TRO and restraining order with the CA  CA granted respondent’s prayer and held that the HLURB had no jurisdiction for reformation; RTC should have been the proper body to hear it.

o

II. •

• •

Dispositive portion: WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of Appeals in CA‐G.R. SP No. 71389 are AFFIRMED.

Whether or not the HLURB has jurisdiction. NO.

•

Petitioner claimed that the terms of the contract are not clear and prayed that they should be reformed to reflect the true stipulations of the parties o Petitioner’s complaint necessarily falls under the jurisdiction of the Regional Trial Court pursuant to Section 1, Rule 63 of the 1 1997 Rules of Civil Procedure

1

SECTION 1. Who may file petition. – Any person interested under a deed, will, contract or other written instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties thereunder. An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this Rule.


Whether or not parties should resort to arbitration. Yes Paragraph 4.2 of the 1998 MOA mandates that any dispute between or among the parties “shall finally be settled by arbitration conducted in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce.” It bears stressing that such arbitration agreement is the law between the parties. They are, therefore, expected to abide by it in good faith This Court has previously held that arbitration is one of the alternative methods of dispute resolution that is now rightfully vaunted as “the wave of the future” in international relations, and is recognized worldwide.

Issue/Held I.

An amendment or reformation of their contract is an issue which the courts may and can resolve without the need of the expertise and specialized knowledge of the HLURB

4. Gonzales v. Hon. Pimentel (MT) (actually this is more of a rem law case but ill just focus on what’s related to pil) Facts: • •

This is a consolidation of two petitions rooted in the same disputed Addendum contract entered into by the parties. Focusing on GR 167994, it stemmed from the petition to compel arbitration filed by respondent Climax‐Arimco before the RTC of Makati City on March 2000 while the complaint for the nullification of the Addendum Contract was pending before the DENR Panel of Arbitrators. On 23 March 2000, Climax‐Arimco had sent Gonzales a Demand for Arbitration pursuant to Clause 19.1 of the Addendum Contract and also in accordance with Sec. 5 of R.A. No. 876. The petition for arbitration was subsequently filed and Climax‐Arimco sought an order to compel the parties to arbitrate pursuant to the said arbitration clause. 4


•

•

On April 2000, Gonzales filed a motion to dismiss which he however failed to set for hearing. On May 2000, he filed an Answer with Counterclaim, questioning the validity of the Addendum Contract containing the arbitration clause. Gonzales alleged that the Addendum Contract containing the arbitration clause is void in view of Climax‐Arimco’s acts of fraud, oppression and violation of the Constitution. Thus, the arbitration clause, Clause 19.1, contained in the Addendum Contract is also null and void ab initio and legally inexistent. Climax‐Arimco basically got respondent Judge Pimentel to set the case for arbitration. He granted the motion of Climax‐Arimco and directed the parties to arbitration. Gonzales thus filed the Rule 65 petition assailing the Orders dated 13 February 2001 and 7 March 2005 of Judge Pimentel. Gonzales contends that public respondent Judge Pimentel acted with grave abuse of discretion in immediately ordering the parties to proceed with arbitration despite the proper, valid, and timely raised argument in his Answer with Counterclaim that the Addendum Contract, containing the arbitration clause null and void.

•

•

Issue: WON respondent Judge Pimentel acted with grave abuse of discretion in ordering the parties to proceed with arbitration? Held & Ratio: NO for the reasons below: •

•

Judge Pimentel acted in accordance with the procedure prescribed in R.A. No. 876 when he ordered Gonzales to proceed with arbitration and appointed a sole arbitrator after making the determination that there was indeed an arbitration agreement. It has been held that as long as a court acts within its jurisdiction and does not gravely abuse its discretion in the exercise thereof, any supposed error committed by it will amount to nothing more than an error of judgment reviewable by a timely appeal and not assailable by a special civil action of certiorari. R.A. No. 876 also expressly authorizes arbitration of domestic disputes. Foreign arbitration, as a system of settling commercial disputes of an international character, was likewise recognized when the Philippines adhered to the United Nations “Convention on the Recognition and the Enforcement of Foreign Arbitral Awards of 1958,” under the 10 May 1965 Resolution No. 71 of the Philippine Senate, giving reciprocal recognition and allowing enforcement of international arbitration agreements between parties of different nationalities within a contracting state. The enactment of R.A. No. 9285 on 2 April 2004 further institutionalized the use of alternative dispute resolution systems, including arbitration, in the settlement of disputes.


•

Disputes do not go to arbitration unless and until the parties have agreed to abide by the arbitrator’s decision. Necessarily, a contract is required for arbitration to take place and to be binding. R.A. No. 876 recognizes the contractual nature of the arbitration agreement, thus: “Sec. 2. Persons and matters subject to arbitration.—Two or more persons or parties may submit to the arbitration of one or more arbitrators any controversy existing, between them at the time of the submission and which may be the subject of an action, or the parties to any contract may in such contract agree to settle by arbitration a controversy thereafter arising between them. Such submission or contract shall be valid, enforceable and irrevocable, save upon such grounds as exist at law for the revocation of any contract. The special proceeding under Sec. 6 of R.A. No. 876 recognizes the contractual nature of arbitration clauses or agreements. It provides: “Sec. 6. Hearing by court.—A party aggrieved by the failure, neglect or refusal of another to perform under an agreement in writing providing for arbitration may petition the court for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days notice in writing of the hearing of such application shall be served either personally or by registered mail upon the party in default. The court shall hear the parties, and upon being satisfied that the making of the agreement or such failure to comply therewith is not in issue, shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the agreement or default be in issue the court shall proceed to summarily hear such issue. If the finding be that no agreement in writing providing for arbitration was made, or that there is no default in the proceeding thereunder, the proceeding shall be dismissed. If the finding be that a written provision for arbitration was made and there is a default in proceeding thereunder, an order shall be made summarily directing the parties to proceed with the arbitration in accordance with the terms thereof. The jurisdiction of the courts in relation to Sec. 6 of R.A. No. 876 as well as the nature of the proceedings therein was expounded upon in La Naval Drug Corporation v. Court of Appeals. There it was held that R.A. No. 876 explicitly confines the court’s authority only to the determination of whether or not there is an agreement in writing providing for arbitration. In the affirmative, the statute ordains that the court shall issue an order “summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.” If the court, upon the other hand, finds that no such agreement exists, “the proceeding shall be dismissed.” The cited case also stressed that the proceedings are summary in nature. 5


•

The doctrine of separability, or severability as other writers call it, enunciates that an arbitration agreement is independent of the main contract. The arbitration agreement is to be treated as a separate agreement and the arbitration agreement does not automatically terminate when the contract of which it is part comes to an end. The separability of the arbitration agreement is especially significant to the determination of whether the invalidity of the main contract also nullifies the arbitration clause. Indeed, the doctrine denotes that the invalidity of the main contract, also referred to as the “container” contract, does not affect the validity of the arbitration agreement. Irrespective of the fact that the main contract is invalid, the arbitration clause/agreement still remains valid and enforceable. There is reason, therefore, to rule against Gonzales when he alleges that Judge Pimentel acted with grave abuse of discretion in ordering the parties to proceed with arbitration. Gonzales’s argument that the Addendum Contract is null and void and, therefore the arbitration clause therein is void as well, is not tenable. First, the proceeding in a petition for arbitration under R.A. No. 876 is limited only to the resolution of the question of whether the arbitration agreement exists. Second, the separability of the arbitration clause from the Addendum Contract means that validity or invalidity of the Addendum Contract will not affect the enforceability of the agreement to arbitrate. Thus, Gonzales’s petition for certiorari should be dismissed.


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PIL Cases Compiled by 2A 2015

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