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Treaties

A. 1987 Constitution

Art. VII, Sec. 20.The President may (1)contract or (2) guarantee foreign loans onbehalf of the Republic of the Philippines withthe prior concurrence of the Monetary Board,and subect to such limitations as may be

pro!ided by law" The Monetary Board shall,within thirty days from the end of e!ery #uarterof the calendar year, submit to the $ongress acomplete report of its decision on applicationsfor loans to be contracted or guaranteed by the%o!ernment or go!ernment&owned andcontrolled corporations which would ha!e thee'ect of increasing the foreign debt, andcontaining other matters as may be pro!idedby law"

Art. VII, Sec.21.o treaty or internationalagreement shall be !alid and e'ecti!e unlessconcurred in by at least two&thirds of all theMembers of the enate"

Art. VIII, Sec. 4.

The upreme $ourt shall be composed of a$hief *ustice and fourteen +ssociate *ustices" tmay sit en banc or in its discretion, in di!isionof three, -!e, or se!en Members" +ny !acancyshall be -lled within ninety days from theoccurrence thereof"

+ll cases in!ol!ing the constitutionality of atreaty, international or e.ecuti!e agreement, or

law, which shall be heard by the upreme$ourt en banc, and all other cases which underthe Rules of $ourt are re#uired to be heard enbanc, including those in!ol!ing theconstitutionality, application, or operation ofpresidential decrees, proclamations, orders,instructions, ordinances, and other regulations,shall be decided with the concurrence oa !a"orit# o the $e!bers who actuall#too% &art in the deliberations on theissues in the case and 'oted thereon.

$ases or matters heard by a di!ision shall be

decided or resol!ed with the concurrence of amaority of the Members who actually too/ part

in the deliberations on the issues in the caseand !oted thereon, and in no case without theconcurrence of at least three of such Members"0hen the re#uired number is not obtained, thecase shall be decided en banc Pro!ided, thatno doctrine or principle of law laid down by thecourt in a decision rendered en banc or indi!ision may be modi-ed or re!ersed e.cept bythe court sitting en banc"

Art. (VIII, Sec. 2).+fter the e.piration in11 of the +greement between the Republicof the Philippines and the 3nited tates of+merica concerning military bases, foreignmilitary bases, troops, or facilities shall not beallowed in the Philippines e.cept under a treatyduly concurred in by the enate and, whenthe Con*ress so re+uires, rati-ed by amaority of the !otes cast by the people in anational referendum held for that purpose, andrecogni4ed as a treaty by the other contractingtate"

. -.. 4)9 /o'. 2), 1997

-.. 4)9 3ro'idin* or the uidelines inthe e*otiation o InternationalA*ree!ents and its 5ati6cation

-5-AS,the negotiations of internationalagreements are made in pursuance of theforeign policy of the country5

-5-AS,6.ecuti!e 7rder o" 22,otherwise /nown as the +dministrati!e $ode of189, pro!ides that the :epartment of ;oreign

+'airs shall be the lead agency that shallad!ise and assist the President in planning,organi4ing, directing, coordinating ande!aluating the total national e'ort in the -eldof foreign relations5

-5-AS,6.ecuti!e 7rder o" 22 furtherpro!ides that the :epartment of ;oreign +'airsshall negotiate treaties and other agreementspursuant to the instructions of the President,and in coordination with other go!ernmentagencies5

-5-AS, there is a need to establishguidelines to go!ern the negotiation and

rati-cation of international agreements by thedi'erent agencies of the go!ernment5

70, T" R+M7, Presidentof the Philippines, by !irtue of the powers!ested in me by the $onstitution, do herebyorder

Sec 1. eclaration o 3olic#? t is hereby

declared the policy of the tate that thenegotiations of all treaties and e.ecuti!eagreements, or any amendment thereto, shallbe coordinated with, and made only with theparticipation of, the :epartment of ;oreign+'airs in accordance with 6.ecuti!e 7rder o"22" t is also declared the policy of the tatethat the composition of any Philippinenegotiation panel and the designation of thechairman thereof shall be made in coordinationwith the :epartment of ;oreign +'airs"

Sec. 2. e6nition o Ter!s&

a" International a*ree!entshall referto a contract or understanding,regardless of nomenclature, enteredinto between the Philippines andanother go!ernment in written formand go!erned by international law,whether embodied in a singleinstrument or in two or more relatedinstruments"

b" Treaties :international agreementsentered into by the Philippines whichre#uire legislati!e concurrence aftere.ecuti!e rati-cation" This term may

include compacts li/e con!entions,declarations, co!enants and acts"

c" -;ecuti'e A*ree!ents? similar totreaties e.cept that they do not re#uirelegislati!e concurrence"

d"


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f" 3ro'isional -=ect? recognition byone or both sides of the negotiationprocess that an agreement beconsidered in force pending compliancewith domestic re#uirements for thee'ecti!ity of the agreement"

Sec. >. Authorit# to e*otiate? Prior to anyinternational meeting or negotiation of a treaty

or e.ecuti!e agreement, authori4ation must besecured by the lead a*enc#from thePresident through the ecretary of ;oreign+'airs" The re#uest for authori4ation shall be(1) in writing, (2) proposing the composition ofthe Philippine delegation and (A)recommending the range of positions to beta/en by that delegation" n case ofnegotiations of agreements, changes ofnational policy or those in!ol!ing internationalarrangements of a permanent characterentered into in the name of the %o!ernment ofthe Republic of the Philippines, theauthori?ation shall be in the or! o


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Sec. 9. eter!ination o the ature o theA*ree!ent :The :epartment of ;oreign+'airs shall determine whether an agreementis an e.ecuti!e agreement or a treaty"

Sec. 10. Se&arabilit# Clause? f, for anyreason, any part or pro!ision of this 7rder shallbe held unconstitutional or in!alid, other partsor pro!isions hereof which are not a'ected

thereby shall continue to be in full force ande'ect"

Sec. 11. 5e&ealin* Clause :+ll e.ecuti!eorders, proclamations, memorandum orders ormemorandum circulars inconsistent herewithare hereby repealed or modi-ed accordingly"

Sec. 12. -=ecti'it# :This 6.ecuti!e 7rdershall ta/e e'ect immediately upon its appro!al"

:76 in the $ity of Manila, this 2Cth day ofo!ember in the year of 7ur =ord, ineteen28 /no co!!odit#!a# be e;&orted to or i!&orted ro!ccu&ied a&an without an e;&ort ori!&ort license ro! the Central an% othe 3hili&&ines or the I!&ort ControlAd!inistration

-.. >28 is an e;ecuti'e a*ree!entor a treat# and it is 'alid

eld

1" The concurrence of said , ection 1GI9J),which are, howe!er, distinct anddi'erent from He.ecuti!e agreements,Hwhich may be !alidly entered intowithout such concurrence"

Treaties -;ecuti'e

A*ree!ent;ormal documentswhich re#uirerati-cation with theappro!al of two thirdsof the enate

Become bindingthrough e.ecuti!eaction without theneed of a !ote by theenate or by $ongress

nternationalagreements in!ol!ing(1) political issues or(2) changes ofnational policy and (A)those in!ol!inginternational

arrangements of apermanent character

nternationalagreementsembodyingadustments of detailcarrying out well&established nationalpolicies and traditions

and those in!ol!ingarrangements of a

usually ta/e the formof treaties"

more or lesstemporary natureusually ta/e the formof e.ecuti!eagreements"

2" The right of the 6.ecuti!e to enter intobinding agreements without thenecessity of subse#uent $ongressional

appro!al has been con-rmed by longusage"A" The !alidity of the e.ecuti!e

agreement in #uestion is thus patent(ob!ious)" n fact, the so&called ParityRights pro!ided for in the 7rdinance+ppended to our $onstitution were,prior thereto, the subect of ane.ecuti!e agreement, made withoutthe concurrence of two&thirds (2@A) ofthe enate of the 3nited tates"

E" =astly, it would be unreasonable tore#uire from respondent&appellee animport license when the mport $ontrol$ommission was no longer in e.istenceand, hence, there was, said courtbelie!ed, no agency authori4ed to issuethe aforementioned license" Thisconclusion is untenable, for theauthority to issue the aforementionedlicenses was not !ested e.clusi!elyupon the mport $ontrol $ommission or+dministration"

C" 6"7" A28 pro!ided for e.port or importlicenses Hfrom the $entral Ban/ of thePhilippines or the mport $ontrol+dministrationH or $ommission"

F" ndeed, the latter was created only toperform the tas/ of implementingcertain obecti!es of the MonetaryBoard and the $entral Ban/, whichotherwise had to be underta/en bythese two (2) agencies" 3pon theabolition of said $ommission, the dutyto pro!ide means and ways for theaccomplishment of said obecti!es hadmerely to be discharged directly by theMonetary Board and the $entral Ban/,e!en if the aforementioned 6"7" hadbeen silent thereon"

9" 0herefore, the decision appealed fromis hereby R6>6R6:" The decision of


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the $ommissioner of $ustoms is+;;RM6:"

atu 4 is

in conDict with the Tri&oliA*ree!ent

eld

1" 0e -nd it neither necessary nordeterminati!e of the case to rule on thenature of the Tripoli +greement and itsbinding e'ect on the Philippine%o!ernment whether under publicinternational or internal Philippine law"

2" t is not the $onstitution itself thatpro!ides for the creation of anautonomous region in MuslimMindanao"

A" Thus, any conKict between thepro!isions of R"+" o" F9AE and thepro!isions of the Tripoli +greement willnot ha!e the e'ect of enoining theimplementation of the 7rganic +ctbecause the Tri&oli A*ree!ent isnot a bindin* treat# orinternational a*ree!ent

E" The Tripoli +greement, e!en assuming

that it is a binding treaty orinternational agreement, would not

be su&erior to 5.A. 7>4. 5ather, itwould be at the sa!e class as theother.

C" Thus, if at all, R"+" o" F9AE would beamendatory of the Tripoli +greement,being a subse#uent law" nl# adeter!ination b# this Court that5.A. o. 7>4 contra'ened theConstitution would result in the

*rantin* o the relies sou*ht"F" 3nder the $onstitution and R"+" oF9AE, the creation of the autonomousregion shall ta/e e'ect only whenappro!ed by a maority of the !otescast by the constituent units in aplebiscite, and only those pro!incesand cities where a maority !ote infa!or of the 7rganic +ct shall beincluded in the autonomous region" Thepro!inces and cities wherein such amaority is not attained shall not beincluded in the autonomous region"

9" t is clear that what is re#uired by the$onstitution is a simple maority of!otes appro!ing the organic +ct inindi!idual constituent units and not adouble maority of the !otes in allconstituent units put together, as wellas in the indi!idual constituent units"

8" t is thus clear that what is re#uired bythe $onstitution is a simple maority of!otes appro!ing the organic +ct inindi!idual constituent units and not adouble maority of the !otes in allconstituent units put together, as wellas in the indi!idual constituent units"

" The power to merge administrati!eregions is a power which hastraditionally been lodged with thePresident to facilitate the e.ercise ofthe power of general super!ision o!erlocal go!ernments5 o conKict betweenthe power of the President to mergeadministrati!e regions with the$onstitutional pro!ision re#uiringplebiscite in the merger of localgo!ernments units"

1G" 0herefore, the petitions are :M6:for lac/ of merit"


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A*ustin '. -du /Band Trans&ortationCo!!issioner

.5. o. B@49112


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without thin%in*, that so!ewherealon* the tra'elled &ortion o thatroad, hi*hwa#, or e;&resswa#,there is a !otor 'ehicle which isstationar#, stalled or disabledwhich obstructs or endan*ers&assin* traHc.

9" 7n the other hand, a motorist who seesany of the aforementioned other built

in warning de!ices or the petroleumlamps will not immediately getade#uate ad!ance warning because hewill still thin/ what that blin/ing light isall about" s it an emergency !ehicle sit a law enforcement car s it anambulance uch confusion oruncertainty in the mind of the motoristwill thus increase, rather thandecrease, the danger of collision"

8" The principle of separation of powershas in the main wisely allocated therespecti!e authority of eachdepartment and con-ned itsurisdiction to such a sphere" Therewould then be intrusion not allowableunder the $onstitution if on a matterleft to the discretion of a coordinatebranch, the udiciary would substituteits own"

" f there be adherence to the rule of law,as there ought to be, the last o'endershould be courts of ustice, to whichrightly litigants submit theircontro!ersy precisely to maintainunimpaired the supremacy of legalnorms and prescriptions" The attac/ on

the !alidity of the challenged pro!isionli/ewise insofar as there may beobections, e!en if !alid and cogent onis wisdom cannot be sustained"

1G" To a!oid the taint of unlawfuldelegation of power, the legislaturemust be de-ned standards" n the caseat bar, the clear obecti!e is publicsafety"

11" +pplying +rt" , ec" 2, the 1F8 >ienna$on!ention on Road ign and ignals isimpressed with the character ofQgenerally accepted principles of

international lawN which under the

$onstitution the Philippines adopts asthe law of the land"

12" The concept of pacta sunt ser!andastands in the way of such an attitude,which is, at war with the principle ofinternational morality

1A" hereore, the &etition isdis!issed"

5a!on on?ales '. 5u6no echano'a.5. o. 21897ctober 22, 19>


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thereof all importations of rice and corninto the PhilippinesH" Pursuant to R"+"o" 22G9, Hit shall be unlawful for anyperson, association, corporation orgo!ernment agency to import rice andcorn into any point in the PhilippinesH,although, by way of e.ception, it adds,that Hthe 3resident o the3hili&&ines !a# authori?e the

i!&ortation o these co!!oditiesthrou*h an# *o'ern!ent a*enc#that he !a# desi*nateH, is theconditions prescribed in ec" 2 of said+ct are present" imilarly, R"+" AEC2e.plicitly enoins Hthe Rice and $orn+dministration or any go!ernmentagencyH from importing rice and corn"

2" The pro!isions of R"+" 22G9 and AEC2 isapplicable to both go!ernmentagencies and the %7>6RM6T for thefollowing reasons

a" The importation permitted inR"+" 22G9 is to be authori4edby the QPresident of thePhilippinesN and, hence, by oron behalf of the %o!ernment ofthe Philippines"

b" mmediately after enoining theRice and $orn administrationand any other go!ernmentagency from importing rice andcorn, ec" 1G of R"+" AEC2 addsHthat the importation of riceand corn is left to &ri'ate&artiesupon payment of thecorresponding ta.esH, thus

indicating that only Hpri!atepartiesH may import rice underits pro!isions5

c" Both R"+" AEC2 and R"+" 22G9,in its penal pro!ision mentionsQif the o'ender is a publicand@or employeesN" ietnam and%o!ernment of Burma and that thesecontract constitute !alid e.ecuti!eagreements under international law" ncase of conKict, the contracts shouldpre!ail"

2. T-J A5- T -(-CGTIV-A5--$-TS.

>. The parties to said contracts do not&ear to ha'e re*arded the sa!e ase;ecuti'e a*ree!ents"

4. But, e!en assuming that said contractsmay properly considered as e.ecuti!eagreements, the same are unlawful, aswell as null and !oid, from aconstitutional !iewpoint, saidagreements being inconsistent with the

pro!isions of R"+" 22G9 and AEC2"). Althou*h the 3resident !a#, underthe A!erican constitutionals#ste! enter into e;ecuti'ea*ree!ents without &re'iousle*islati'e authorit#, he !a# not,b# e;ecuti'e a*ree!ent, enterinto a transaction which is&rohibited b# statutes enacted&rior thereto.

. The President may not interfere in theperformance of the legislati!e powersof the $ongress, e.cept in the e.erciseof his !eto power"

7. e !a# not deeat le*islati'eenact!ents that ha'e ac+uired thestatus o law, b# indirectl#re&ealin* the sa!e throu*h ane;ecuti'e a*ree!ent &ro'idin* orthe &eror!ance o the 'er# act&rohibited b# said laws.

8. +s regards the #uestion whether aninternational agreement may bein!alidated by our courts, suce it tosay that the $onstitution of thePhilippines has clearly settled it in thearmati!e, by pro!iding, in ec" 2 of

+rt" > thereof, that the upreme$ourt may not be depri!ed Hof itsurisdiction to re!iew, re!ise, re!erse,modify, or arm on appeal, certiorari,or writ of error as the law or the rulesof court may pro!ide, -nal udgmentsand decrees of inferior courts in (1)All cases in which theconstitutionalit# or 'alidit# o an#treat#, law, ordinance, ore;ecuti'e order or re*ulation is in+uestionH" n other words, our$onstitution authori4es the nulli-cation

of a treaty, not only when it conKictswith the fundamental law, but, also,


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when it runs counter to an act of$ongress"

9. The alleged consummation of theaforementioned contracts with >ietnamand Burma does not render this caseacademic, Republic +ct o" 22G9enoins our %o!ernment not fromentering into contracts for the purchaseof rice, but from importing rice, e.cept

under the conditions Prescribed in said+ct" 3pon the other hand, Republic +cto" AEC2 has two (2) main features,namely (a) it re#uires the %o!ernmentto purchase rice and corn directly fromour local planters, growers orlandowners5 and (b) it prohibitsimportations of rice by the%o!ernment, and lea!es suchimportations to pri!ate parties" Thepi!otal issue in this case is whether theproposed importation which has notbeen consummated as yet is legallyfeasible"

10. =astly, a "udicial declaration oille*alit# o the &ro&osedi!&ortation would not co!&el ouro'ern!ent to deault in the&eror!ance o such obli*ations asit !a# ha'e contracted with thesellers o the rice in +uestion,because, aside from the fact that saidobligations may be complied withwithout importing the commodity intothe Philippines, the &ro&osedi!&ortation !a# still be le*ali?edb# co!&l#in* with the &ro'isions

o the aore!entioned laws"11. -5-;+

9" 7n 7ctober F, 18, the President,acting through respondent 6.ecuti!eecretary Ronaldo Samora, ociallytransmitted to the enate of thePhilippines, the nstrument ofRati-cation, the letter of the Presidentand the >;+, for concurrence pursuantto ec" 21, +rt" > of the 189

$onstitution"

8" The enate, in turn, referred the >;+ toits $ommittee on ;oreign Relations,chaired by enator Blas ;" 7ple, and its$ommittee on ational :efense andecurity, chaired by enator Rodolfo %"Bia4on, for their oint consideration andrecommendation" Thereafter, ointpublic hearings were held by the two$ommittees"

" 7n May A, 1, the $ommitteessubmitted Proposed enate Resolutiono" EEA8 recommending theconcurrence of the enate to the >;+and the creation of a =egislati!e7!ersight $ommittee to o!ersee itsimplementation" :ebates then ensued"

1G" 7n May 29, 1, Proposed enateResolution o" EEA was appro!ed bythe enate, by a two&thirds (2@A) !oteof its members" enate Resolution o"EEA was then re&numbered as enateResolution o" 18"

11" 7n *une 1, 1, the >;+ ociallyentered into force after an 6.change ofotes between respondent ecretaryBia4on and 3nited tates +mbassador;+, which consists of a Preambleand nine () +rticles, pro!ides for themechanism for regulating thecircumstances and conditions underwhich 3 +rmed ;orces and defensepersonnel may be present in thePhilippines"

Issues

1. &etitioners ha'e le*alstandin* as concerned citi?ens,ta;&a#ers, or le*islators to+uestion the constitutionalit# othe V


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"urisdiction to hear and tr#o=enses co!!itted b# GS!ilitar# &ersonnelM

b. Is the Su&re!e Courtde&ri'ed o its "urisdictiono'er o=enses &unishable b#reclusion &er&etua orhi*herM

4. the V, ec" 2C should undoubtedlyapply to the >;+ (le. specialis derogantgenerali)

E" Gndoubtedl#, Section 2), Article(VIII, which s&eci6call# deals withtreaties in'ol'in* orei*n !ilitar#bases, troo&s, or acilities, shoulda&&l# in the instant case" To acertain e.tent and in a limited sense,

howe!er, the pro!isions of section 21,+rticle > will -nd applicability withregard to the issue and for the solepurpose of determining the number of!otes re#uired to obtain the !alidconcurrence of the enate"

C" t is a -nely&imbedded principle instatutory construction that a specialpro!ision or law pre!ails o!er a generalone" =e. specialis derogat generali"Thus, where there is in the samestatute a particular enactment and alsoa general one which, in its mostcomprehensi!e sense, would includewhat is embraced in the former, theparticular enactment must beoperati!e, and the general enactmentmust be ta/en to a'ect only such caseswithin its general language which arenot within the pro!ision of theparticular enactment"

F" ection 2C, +rticle > disallowsforeign military bases, troops, orfacilities in the country, unless thefollowing conditions are sucientlymet, !i4

a" it must be under a treaty5

b" the treaty must be dulyconcurred in by the enateand, when so re#uired bycongress, rati6ed b# a!a"orit# o the 'otes castb# the &eo&le in a nationalreerendu!5

c" and recogni4ed as a treaty bythe other contracting state"

9" +pplying the foregoing constitutionalpro!isions, a two&thirds !ote of all themembers of the enate is clearlyre#uired so that the concurrence

contemplated by law may be !alidlyobtained and deemed present" 0hile it


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is true that ection 2C, +rticle >re#uires, among other things, that thetreaty&the >;+, in the instant case&beHduly concurred in by the enate,H it is!ery true howe!er that said pro!isionmust be related and !iewed in light ofthe clear mandate embodied in ection21, +rticle >, which in more speci-cterms, re#uires that the concurrence of

a treaty, or international agreement, bemade by a two @thirds 'oteof all themembers of the enate" ndeed,ection 2C, +rticle > must not betreated in isolation to section 21,+rticle, >"

8" This $ourt is of the -rm !iew that thephrase Nreco*ni?ed as a treat#Nmeans that the other contracting partyaccepts or ac/nowledges theagreement as a treaty" To re#uire theother contracting state, the 3+ in thiscase, to submit the >;+ to the 3enate for concurrence pursuant to its$onstitution, is to accord strictmeaning to the phrase"

" Moreo!er, it is inconse#uential whetherthe 3nited tates treats the >;+ only asan e.ecuti!e agreement because,under international law, an e.ecuti!eagreement is as binding as a treaty" Tobe sure, as long as the >;+ possessesthe elements of an agreement underinternational law, the said agreement isto be ta/en e#ually as a treaty"

1G" + treaty, as de-ned by the >ienna$on!ention on the =aw of Treaties, is

Han international instrument concludedbetween tates in written form andgo!erned by international law, whetherembodied in a single instrument or intwo or more related instruments, andwhate!er its particular designation"HThere are many other terms used for atreaty or international agreement,some of which are act, protocol,agreement, compromis d arbitrage,concordat, con!ention, declaration,e.change of notes, pact, statute,charter and modus !i!endi" +ll writers,

from


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cannot intrude, and $ongress itself ispowerless to in!ade it" $onse#uently,the acts or udgment calls of thePresident in!ol!ing the >;+&speci-callythe acts of rati-cation and enteringinto a treaty and those necessary orincidental to the e.ercise of suchprincipal acts & s#uarely fall within thesphere of his constitutional powers and

thus, may not be !alidly struc/ down,much less calibrated by this $ourt, inthe absence of clear showing of gra!eabuse of power or discretion"

A" t is the $ourts considered !iew thatthe President, in ratifying the >;+ andin submitting the same to the enatefor concurrence, acted within thecon-nes and limits of the powers!ested in him by the $onstitution"

E" n -ne, absent any clear showing ofgra!e abuse of discretion on the part ofrespondents, this $ourt& as the -nalarbiter of legal contro!ersies and

staunch sentinel of the rights of thepeople & is then without power toconduct an incursion and meddle withsuch a'airs purely e.ecuti!e andlegislati!e in character and nature" ;orthe $onstitution no less, maps out thedistinct boundaries and limits themetes and bounds within which each ofthe three political branches ofgo!ernment may e.ercise the powerse.clusi!ely and essentially conferred toit by law"

C" 0herefore, the instant petitions are

hereby :M6:

Bi! '. -;ecuti'e Secretar#.5. o. 1)144)A&ril 11, 2002

isiting;orces +greement (> ;+) in 1"

A" The entry of +merican troops intoPhilippine soil is pro.imately rooted inthe international anti&terrorismcampaign declared by President%eorge 0" Bush in reaction to thetragic e!ents that occurred oneptember 11, 2GG1"

E" 7n ;eb" 1, 2GG2, petitioners =im and6rsando -led this petition for certiorari

and prohibition, attac/ing theconstitutionality of the oint e.ercise"They were oined subse#uently by+=+D+ and P+RT:7 %M+%%+%+0+, both party&istorgani4ations, who -led a petition&in&inter!ention on ;eb" 11, 2GG2"

Issue

1" 07 ;+ ad!erts and the obligationsthereunder which it see/s to rearm"

As to Eali%atan 02@1 is co'ered b#the Vienna $on!ention on the =aw ofTreaties, +rt" A1 and A2 pro!ides

Section > Inter&retation o TreatiesArt. >1 eneral 5ule o Inter&retation

1" + treaty shall be interpreted in good

faith ill accordance with the ordinarymeaning to be gi!en to the tenus of the


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treaty in their conte.t and in the lightof its obect and purpose"

2" The conte.t for the purpose of theinterpretation of a treaty shallcomprise, in addition to the te.t,including its preamble and anne.es

a" any agreement relating to thetreaty which was madebetween all the parties inconne.ion with the conclusionof the treaty5

b" any instrument which wasmade by one or more parties inconne.ion with the conclusionof the treaty and accepted bythe other parties as aninstrument related to theparty "

A" There shall be ta/en into account,together with the conte.t

a" any subse#uent agreementbetween the parties regarding

the interpretation of the treatyor the application of itspro!isions5

b" any subse#uent practice in theapplication of the treaty whichestablishes the agreement ofthe parties regarding itsinterpretation5

c" any rele!ant rules ofinternational law applicable inthe relations between theparties"

E" + special meaning shall be gi!en to aterm if it is established that the partiesso intended"

Art. >2 Su&&le!entar# !eans ointer&retation

Recourse may be had to supplementarymeans of interpretation, including thepreparatory wor/ of the treaty and thecircumstances of its conclusion, in order tocon-rm the meaning resulting from theapplication of article A1, or to determine

the meaning when the interpretationaccording to article A1

a" lea!es the meaning ambiguousor obscure5 or

b" leads to a result which ismanifestly absurdunreasonable"

A" t is clear from the foregoing that thecardinal rule of interpretation mustin!ol!e an e.amination of the te.t,which is presumed to !erbali4e thepartiesO intentions" The $on!entionli/ewise dictates what may be used asaids to deduce the meaning of terms,which it refers to as the conte.t of thetreaty, as well as other elements maybe ta/en into account alongside theaforesaid conte.t"

E" The T5 ri*htl# all within theconte;t o the V ;+ allow foreign troopsto engage in an o'ensi!e war on

Philippine territory" 0e bear in mind the

salutary proscription stated in the$harter of the 3nited ations, to wit

Article 2The 7rgani4ation and its Members,in pursuit of the Purposes stated in +rticle 1,shall act in accordance with the followingPrinciples"

E" +ll Members shall refrain in theirinternational relations from the threator use of force against the territorialintegrity or political independence ofany state, or in any other mannerinconsistent with the Purposes of the3nited ations"

C" The present $onstitution contains /eypro!isions useful in determining thee.tent to which foreign military troopsare allowed in Philippine territory" Thus,in the :eclaration of Principles andtate Policies, it is pro!ided that

6$" 2" The Philippines renounces war as an

instrument of national policy, adopts thegenerally accepted principles of internationallaw as part of the law of the land and adheresto the policy of peace, e#uality, ustice,freedom, cooperation, and amity with allnations"

6$" 9" The tate shall pursue an independentforeign policy" n its relations with other statesthe paramount consideration shall be nationalso!ereignty, territorial integrity, nationalinterest, and the right to self& determination"

6$" 8" The Philippines, consistent with thenational interest, adopts and pursues a policyof freedom from nuclear weapons in thecountry"

F" ;rom the perspecti!e of publicinternational law, a treaty is fa!oredo!er municipal law pursuant to theprinciple of pacta sunt ser!anda"


13/36

internal law as usti-cation for itsfailure to perform a treaty"H

9" 7ur $onstitution espouses theopposing !iew" 0itness our urisdictionas stated in section C of +rticle >

8" The upreme $ourt shall ha!e thefollowing powers

(2) Re!iew, re!ise, re!erse, modify, or arm onappeal or certiorari, as the law or the Rules of$ourt may pro!ide, -nal udgments and orderof lower courts in

(+) +ll cases in which the constitutionalityor !alidity of any treaty, internationalor e.ecuti!e agreement, law,presidential decree, proclamation,order, instruction, ordinance, orregulation is in #uestion"

" 0,ec" 21

4. 3ur&ose o the li!itation to pro!idea chec/ on the e.ecuti!e in the -eld offoreign relations"

). The usual steps in the treaty&ma/ingprocess are (1) negotiation, (2)signature, (A) rati-cation, and (E)e.change of the instruments ofrati-cation" The treaty may then be

submitted for registration andpublication under the 3"" $harter,although this step is not essential tothe !alidity of the agreement asbetween the parties"

. e*otiationmay be underta/endirectly by the head of state but henow usually assigns this tas/ to hisauthori4ed representati!es" Theserepresentati!es are pro!ided withcredentials /nown as full powers, whichthey e.hibit to the other negotiators atthe start of the formal discussions" t is

standard practice for one of the partiesto submit a draft of the proposed treatywhich, together with the counter&proposals, becomes the basis of thesubse#uent negotiations" Thenegotiations may be brief orprotracted, depending on the issuesin!ol!ed, and may e!en HcollapseH incase the parties are unable to come toan agreement on the points underconsideration"

7. f and when the negotiators -nallydecide on the terms of the treaty, the

same is opened for signature" This stepis primarily intended as a means of


14/36

authenticating the instrument and forthe purpose of symboli4ing the goodfaith of the parties5 but, signi-cantly, itdoes not indicate the 6nal consento the state in cases whererati6cation o the treat# isre+uired.The document is ordinarilysigned in accordance with the alternat,that is, each of the se!eral negotiatorsis allowed to sign -rst on the copywhich he will bring home to his ownstate"

8. 5ati6cation, which is the ne.t step, isthe formal act by which a statecon-rms and accepts the pro!isions ofa treaty concluded by itsrepresentati!es" The &ur&ose orati6cation is to enable thecontractin* states to e;a!ine thetreat# !ore closel# and to *i'ethe! an o&&ortunit# to reuse tobe bound b# it should the# 6nd itini!ical to their interests. It is or

this reason that !ost treaties are!ade sub"ect to the scrutin# andconsent o a de&art!ent o the*o'ern!ent other than that whichne*otiated the!.

9. The last step in the treaty&ma/ingprocess is the e;chan*e o theinstru!ents o rati6cation, whichusually also signi-es the e'ecti!ity ofthe treaty unless a di'erent date hasbeen agreed upon by the parties"0here rati-cation is dispensed withand no e'ecti!ity clause is embodied in

the treaty, the instrument is deemede'ecti!e upon its signature"

10.-.. 4)9, Sec. 7

S-C. 7. o!estic 5e+uire!ents or the-ntr# into 60 0


15/36

similarly&oriented restructuringagreements were e.ecuted withcommercial ban/ creditors"

E" 7n 28 ;ebruary 12, the Philippine:ebt egotiating Team, chaired byrespondent Pelae4, negotiated anagreement with the countrys Ban/+d!isory $ommittee, representing allforeign commercial ban/ creditors, onthe ;inancing Program whichrespondents characteri4ed as Ha multi&option -nancing pac/age"H

C" The Program was scheduled to bee.ecuted on 2E *uly 12 byrespondents in behalf of the Republic"onetheless, petitioners alleged thate!en prior to the e.ecution of theProgram respondents had alreadyimplemented its Hbuybac/ componentHwhen on 1C May 12, the Philippinesbought bac/ P1"2F billion of e.ternaldebts pursuant to the Program"

F" The petition sought to enoin the

rati-cation of the Program, but the$ourt did not issue any inuncti!e relief"


16/36

pay the bondholder a speci-ed sum ofmoney, usually at speci-c inter!als,and to repay the principal amount ofthe loan at maturity"

2" +n in!estor who purchases a bond islending money to the issuer, and thebond represents the issuerscontractual promise to pay interest andrepay principal according to speci-cterms" + short&term bond is often calleda note"

A" The language of the $onstitution issimple and clear as it is broad" t allowsthe President to contract andguarantee foreign loans" t ma/es noprohibition on the issuance of certain/inds of loans or distinctions as towhich /inds of debt instruments aremore onerous than others" This $ourtmay not ascribe to the $onstitutionmeanings and restrictions that wouldunduly burden the powers of thePresident" The plain, clear and

unambiguous language of the$onstitution should be construed in asense that will allow the full e.ercise ofthe power pro!ided therein" t would bethe worst /ind of udicial legislation ifthe courts were to misconstrue andchange the meaning of the organic act"

E" The only restriction that the$onstitution pro!ides, aside from theprior concurrence of the MonetaryBoard, is that the loans must besubect to limitations pro!ided by law"n this regard, we note that Republic

+ct (R"+") o" 2EC as amended by Pres":ecree (P":") o" 1E2, s" 19A, entitled+n +ct +uthori4ing the ecretary of;inance to Borrow to Meet Public6.penditures +uthori4ed by =aw, andfor 7ther Purposes, allows foreign loansto be contracted in the form of, interalia, bonds" ec" 1 pro!ides

n order to meet public e.pendituresauthori4ed by law or to pro!ide for thepurchase, redemption, or refunding ofany obligations, either direct or

guaranteed of the Philippine%o!ernment, the ecretary of ;inance,

with the appro!al of the President ofthe Philippines, after consultation withthe Monetary Board, is authori4ed toborrow from time to time on the creditof the Republic of the Philippines suchsum or sums as in his udgment maybe necessary, and to issue therefore!idences of indebtedness of thePhilippine %o!ernment"H

uch e!idences of indebtedness maybe of the following types

" " " "

c" Treasury bonds, notes,securities or other e!idences ofindebtedness ha!ing maturitiesof one year or more but note.ceeding twenty&-!e yearsfrom the date of issue"

C" The negotiable character of the subect

bonds is not mutually e.clusi!e withthe Republics freedom to negotiatewith bondholders for the re!ision of theterms of the debt" Moreo!er, thesecurities mar/et pro!ides someKe.ibility?if the Philippines wants topay in ad!ance, it can buy out itsbonds in the mar/et5 if interest rates godown but the Philippines does not ha!emoney to retire the bonds, it canreplace the old bonds with new ones5 ifit defaults on the bonds, thebondholders shall organi4e and bring

about a re&negotiation or settlement" nfact, se!eral countries ha!erestructured their so!ereign bonds in!iew either of inability and@orunwillingness to pay the indebtedness"Petitioners ha!e not presented aplausible reason that would precludethe Philippines from acting in a similarfashion, should it so opt"

F" This theory may e!en be dismissed in aperfunctory manner since petitionersare merely e.pecting that thePhilippines would opt to restructure the

bonds but with the negotiablecharacter of the bonds, would be

pre!ented from so doing" This is acontingency which petitioners do notassert as ha!ing come to pass or e!enimminent" $onsummated acts of thee.ecuti!e cannot be struc/ down bythis $ourt merely on the basis ofpetitioners anticipatory ca!ils"

B" 7n the Buybac/ cheme

1" t is true that in the balance of powerbetween the three branches ofgo!ernment, it is $ongress thatmanages the countrys co'ers by!irtue of its ta.ing and spendingpowers"


17/36

ha!e matured, or which ha!e been called forredemption or for which redemption has beendemanded in accordance with terms prescribedby him prior to date of issue Pro!ided,howe!er, That he may, if he so chooses and ifthe holder is willing, e.change any suchobligation with any other direct or guaranteedobligation or obligations of the Philippine%o!ernment of e#ui!alent !alue" n the case ofinterest&bearing obligations, he shall pay notless than their face !alue5 in the case ofobligations issued at a discount he shall paythe face !alue at maturity5 or, if redeemedprior to maturity, such portion of the face !alueas is prescribed by the terms and conditionsunder which such obligations were originallyissued"

A" Buybac/ is a necessary power whichsprings from the grant of the foreignborrowing power" 6!ery statute isunderstood, by implication, to containall such pro!isions as may be

necessary to e'ectuate its obect andpurpose, or to ma/e e'ecti!e rights,powers, pri!ileges or urisdiction whichit grants, including all such collateraland subsidiary conse#uences as maybe fairly and logically inferred from itsterms" The President is not empoweredto borrow money from foreign ban/sand go!ernments on the credit of theRepublic only to be left bereft ofauthority to implement the paymentdespite appropriations therefor"

E" 6!en petitioners concede that HItJhe

$onstitution, as a rule, does notenumerate?let alone enumerate all?theacts which the President (or any otherpublic ocer) may not do,H and HItJhefact that the $onstitution does note.plicitly bar the President frome.ercising a power does not mean thathe or she does not ha!e that power"H tis inescapable from the standpoint ofreason and necessity that the authorityto contract foreign loans andguarantees without restrictions onpayment or manner thereof coupled

with the a!ailability of thecorresponding appropriations, must

include the power to e'ect paymentsor to ma/e payments una!ailing byeither restructuring the loans or e!enrefusing to ma/e any paymentaltogether"

C" More fundamentally, when ta/en in theconte.t of so!ereign debts, a buybac/is simply the purchase by the so!ereignissuer of its own debts at a discount"$learly then, the obection to the!alidity of the buybac/ scheme iswithout basis"

ele*ation o 3ower

1" The e!ident e.igency of ha!ing theecretary of ;inance implement thedecision of the President to e.ecute thedebt&relief contracts is made manifestby the fact that the process ofestablishing and e.ecuting a strategyfor managing the go!ernments debt isdeep within the realm of the e.pertise

of the :epartment of ;inance, primedas it is to raise the re#uired amount offunding, achie!e its ris/ and costobecti!es, and meet any otherso!ereign debt management goals"

2" +s it was, the bac/drop consisted of amaor policy determination made bythen President +#uino that so!ereigndebts ha!e to be respected and theconcomitant reality that the Philippinesdid not ha!e enough funds to pay thedebts" ne!itably, it fell upon theecretary of ;inance, as the alter ego

of the President regarding Hthe soundand ecient management of the-nancial resources of the %o!ernment,Hto formulate a scheme for theimplementation of the policy publiclye.pressed by the President herself"

A" 0ithal, at -rst blush, the argument ofrati-cation may seem plausible underthe circumstances, it should beobser!ed that there are certain actswhich, by their !ery nature, cannot be!alidated by subse#uent appro!al orrati-cation by the President" There are

certain constitutional powers andprerogati!es of the $hief 6.ecuti!e of

the ation which must be e.ercised byhim in person and no amount ofappro!al or rati-cation will !alidate thee.ercise of any of those powers by anyother person" uch, for instance, in his&ower to sus&end the writ ohabeas cor&us and &roclai!!artial law(P+R" A, 6$" 11, +rt" >)and the e;ercise b# hi! o thebeni*n &rero*ati'e o !erc#(par" F,sec" 11, idem)"

E" t bears emphasis that apart from the$onstitution, there is also a rele!antstatute, R"+" o" 2EC, that establishesthe parameters by which the alter egomay act in behalf of the President withrespect to the borrowing power" Thislaw e.pressly pro!ides that theecretary of ;inance may enter intoforeign borrowing contracts" This lawneither amends nor goes contrary tothe $onstitution but merelyimplements the subect pro!ision in a

manner consistent with the structure ofthe 6.ecuti!e :epartment and the alterego doctine" n this regard,respondents ha!e declared that theyha!e followed the restrictions pro!idedunder R"+" o" 2EC, which include there#uisite presidential authori4ation andwhich, in the absence of proof ande!en allegation to the contrary, shouldbe regarded in a fashion congruentwith the presumption of regularitybestowed on acts done by publicocials"

C" ec" 1 of R"+" 2EC empowers the ec"of ;inance with the appro!al of thePresident and after consultation of theMonetary Board, Qto borrow from timeto time on the credit of the Republic ofthe Philippines such sum or sums as inhis udgment may be necessary, and toissue therefor e!idences ofindebtedness of the Philippine%o!ernmentN

F" The $onstitution allocates to thePresident the e.ercise of the foreignborrowing power Qsubect to such

limitations as may be pro!ided underthe lawN " aid presidential prerogati!e


18/36

may be e.ercised by the Presidentsalter ego, who in this case is the ec" of;inance

Conclusion

1" The raison d etre of the ;inancingProgram is to manage debts incurredby the Philippines in a manner that willlessen the burden on the ;ilipinota.payers?thus the term Hdebt&reliefagreements"H The measures obectedto by petitioners were not aimed atincurring more debts but at terminatingpre&e.isting debts and were bac/ed bythe /now&how of the countryseconomic managers as armed bythird party empirical analysis"

2" That the means employed to achie!ethe goal of debt&relief do not sit wellwith petitioners is beyond the power ofthis $ourt to remedy" The e.ercise of

the power of udicial re!iew is merelyto chec/?not supplant?the 6.ecuti!e,or to simply ascertain whether he hasgone beyond the constitutional limits ofhis urisdiction but not to e.ercise thepower !ested in him or to determinethe wisdom of his act"98 n caseswhere the main purpose is to nullifygo!ernmental acts whether asunconstitutional or done with gra!eabuse of discretion, there is a strongpresumption in fa!or of the !alidity ofthe assailed acts" The hea!y onus is in

on petitioners to o!ercome thepresumption of regularity"

A" 0e -nd that petitioners ha!e notsuciently established any basis forthe $ourt to declare the acts ofrespondents as unconstitutional"

E" 0herefore, the petition is hereby:M6:

Aba#a '. -bdane.5. o. 17919


19/36

proect that was commenced e!enbefore the law too/ e'ect"

A" 3nder 67 EG, the award of the contractto $hina Road was !alid

E" ection 2C of 67 EG pro!ides thatHItJhe appro!ed budget of the contractshall be the upper limit or ceiling of thebid price" Bid prices which e.ceed thisceiling shall be dis#uali-ed outrightfrom further participating in thebidding" There shall be no lower limit tothe amount of the award" . . .H tshould be obser!ed that this te.t isalmost similar to the wording of ectionA1 of R+ 18E, relied upon by thepetitioners in contending that since thebid price of pri!ate respondent $hinaRoad W Bridge $orporation e.ceededthe +B$, then it should not ha!e beenawarded the contract for the $P proect"

C" The go!ernment is obliged to obser!eand enforce the terms and conditions

which are made part of a =oan+greement in the procurement ofgoods and ser!ices for the proectsubect of the +greement"

F" $onse#uently, in accordance withthese applicable laws, the procurementof goods and ser!ices for the $P proect is go!erned by thecorresponding loan agreement enteredinto by the go!ernment and the *B$,i"e", =oan +greement o" Pienna$on!ention on the =aw of Treatiesbetween tates and nternational7rgani4ations (H18F >ienna$on!entionH), which has still not

entered into force, added rules fortreaties with international organi4ationsas parties" Both the 1F >ienna$on!ention and the 18F >ienna$on!ention do not distinguish betweenthe di'erent designations of theseinstruments" nstead, their rules applyto all of those instruments as long asthey meet the common re#uirements"

1A" igni-cantly, an e.change of notes isconsidered a form of an e.ecuti!eagreement, which becomes bindingthrough e.ecuti!e action without the

need of a !ote by the enate or$ongress" The following dis#uisition by


20/36

;rancis B" ayre, former 3nited tates


21/36


22/36

2" The M7+&+: was not e.ecuted becauseof the motion -led by petitioners" The$ issued a TR7 enoining the %RPfrom signing the same

A" The 7% summari4es the M7+&+: bystating that the same contained,among others, the commitment of theparties to pursue peace negotiations,protect and respect human rights,negotiate with sincerity in theresolution and paci-c settlement of theconKict, and refrain from the use ofthreat or force to attain unduead!antage while the peacenegotiations on the substanti!e agendaare on&going"

E" 71 /T- II-GS 3-3B-S5ITS ACT < 1997, &articularl#Section >/* O Cha&ter VII /-BI-ATI,5-CITI < AC-ST5AB $AISPKQ

eld

1" M7+&+: contains many pro!isionswhich are consistent with theinternational legal concept ofassociation"

2" n international practice, theHassociated stateH arrangement hasusually been used as a transitionalde!ice of former colonies on their wayto full independence" 6.amples ofstates that ha!e passed through thestatus of associated states as atransitional phase are +ntigua, t"Ditts&e!is&+nguilla, :ominica, t"=ucia, t" >incent and %renada" +llha!e since become independent

states"A" Bac/ to the M7+&+:, it contains many

pro!isions which are consistent withthe international legal concept ofassociation, speci-cally the followingthe B*6Os capacity to enter intoeconomic and trade relations withforeign countries, the commitment ofthe $entral %o!ernment to ensure theB*6Os participation in meetings ande!ents in the +6+ and thespeciali4ed 3 agencies, and thecontinuing responsibility of the $entral

%o!ernment o!er e.ternal defense"Moreo!er, the B*6Os right to participatein Philippine ocial missions bearingon negotiation of border agreements,en!ironmental protection, and sharingof re!enues pertaining to the bodies ofwater adacent to or between theislands forming part of the ancestraldomain, resembles the right of thego!ernments of ;M and the Marshallslands to be consulted by the 3""go!ernment on any foreign a'airsmatter a'ecting them"

E" These pro!isions of the M7+ indicate,among other things, that the Parties

aimed to !est in the B*6 the status ofan associated state or, at any rate, astatus closely appro.imating it"

C" The $onstitution does not contemplateany state in this urisdiction other thanthe Philippine tate, much less does itpro!ide a transitory status that aims toprepare any part of the Philippineterritory for independence"

F" o pro!ince, city, or municipality, note!en the +RMM, is recogni4ed underour laws as ha!ing an Hassociati!eHrelationship with the nationalgo!ernment" ndeed, the conceptimplies powers that go beyondanything e!er granted by the$onstitution to any local or regionalgo!ernment" t also implies therecognition of the associated entity asa state" The $onstitution, howe!er,does not contemplate any state in thisurisdiction other than the Philippinetate, much less does it pro!ide for a

transitory status that aims to prepareany part of Philippine territory forindependence"

9" imilarly, that the M7+&+: would ha!ebeen signed by representati!es oftates and international organi4ationsnot parties to the +greement would notha!e suced to !est in it a bindingcharacter under international law"

8" The mere fact that in addition to theparties to the conKict, the peacesettlement is signed by representati!esof states and international

organi4ations does not mean that theagreement is internationali4ed so as tocreate obligations in international law"

" The M7+&+: may not be considered aunilateral declaration underinternational law

1G" n one important respect, thecircumstances surrounding the M7+&+:are closer to that of Bur/ina ;asowherein, as already discussed, the MaliPresidentOs statement was not held tobe a binding unilateral declaration bythe $*" +s in that case, there was also

nothing to hinder the Philippine panel,had it really been its intention to be


23/36

bound to other tates, to manifest thatintention by formal agreement" ia 6.change of otes o" B;7&G28&GAI9J dated May 1A, 2GGA (6@ B;7&G28&GA, hereinafter), the RP,

represented by then :;+ ecretary7ple, agreed with and accepted the 3proposals embodied under the 36mbassy ote ad!erted to and put ine'ect the +greement with the 3go!ernment" n esse, the +greementaims to protect what it refers to andde-nes as QpersonsN of the RP and 3from fri!olous and harassment suitsthat might be brought against them ininternational tribunals"I8J t isreKecti!e of the increasing pace of thestrategic security and defense

partnership between the two countries"+s of May 2, 2GGA, similar bilateralagreements ha!e been e'ected by andbetween the 3 and AA othercountries"IJ

Issue

the A*ree!ent was contracted'alidl#, which resol'es itsel into the+uestion o whether or not res&ondents*ra'el# abused their discretion inconcludin* it

the A*ree!ent, which has notsub!itted to the Senate or concurrence,

contra'enes and under!ines the 5o!eStatute and other treaties

eld

1" There are no hard and fast rules on thepropriety of entering, on a gi!ensubect, into a treaty or an e.ecuti!eagreement as an instrument of

international relations" The primaryconsideration in the choice of the formof agreement is the parties intent anddesire to craft an internationalagreement in the form they so wish tofurther their respecti!e interests">erily, the matter of form ta/es a bac/seat when it comes to e'ecti!enessand binding e'ect of the enforcementof a treaty or an e.ecuti!e agreement,as the parties in either internationalagreement each labor under the pactasunt ser!anda principle"

2" +n e.ecuti!e agreement that does notre#uire the concurrence of the enatefor its rati-cation may not be used toamend a treaty that, under the$onstitution, is the product of ratifyingacts of the 6.ecuti!e and the enate"

A" +s it were, the +greement is but a formof armance and con-rmance of thePhilippines national criminalurisdiction" ational criminalurisdiction being primary, as e.plainedabo!e, it is always the responsibilityand within the prerogati!e of the RPeither to prosecute criminal o'enses

e#ually co!ered by the Rome tatute orto accede to the urisdiction of the $$"Thus, the Philippines may decide to tryQpersonsN of the 3, as the term isunderstood in the +greement, underour national criminal ustice system"7r it may opt not to e.ercise itscriminal urisdiction o!er its erringciti4ens or o!er 3 QpersonsNcommitting high crimes in the countryand defer to the secondary criminalurisdiction of the $$ o!er them" +s toQpersonsN of the 3 whom the

Philippines refuses to prosecute, thecountry would, in e'ect, accord


24/36

discretion to the 3 to e.ercise eitherits national criminal urisdiction o!erthe QpersonN concerned or to gi!e itsconsent to the referral of the matter tothe $$ for trial" n the same breath,the 3 must e.tend the same pri!ilegeto the Philippines with respect toQpersonsN of the RP committing highcrimes within 3 territorial urisdiction"

E" n the conte.t of the $onstitution, therecan be no serious obection to thePhilippines agreeing to underta/e thethings set forth in the +greement"urely, one tate can agree to wai!eurisdictionto the e.tent agreed uponto subects of another tate due tothe recognition of the principle ofe.traterritorial immunity"

C" Persons who may ha!e committed actspenali4ed under the Rome tatute canbe prosecuted and punished in thePhilippines or in the 35 or with theconsent of the RP or the 3, before the

$$, assuming, for the nonce, that allthe formalities necessary to bind bothcountries to the Rome tatute ha!ebeen met" ;or perspecti!e, what the+greement conte.tually prohibits is thesurrender by either party of indi!idualsto international tribunals, li/e the $$,without the consent of the other party,which may desire to prosecute thecrime under its e.isting laws" 0ith the!iew we ta/e of things, there is nothingimmoral or !iolati!e of internationallaw concepts in the act of the

Philippines of assuming criminalurisdiction pursuant to the non&surrender agreement o!er an o'enseconsidered criminal by both Philippinelaws and the Rome tatute"

F" n thus agreeing to conclude the+greement thru 6@ B;7&G28&GA, thenPresident %loria Macapagal&+rroyo,represented by the ecretary of ;oreign+'airs, acted within the scope of theauthority and discretion !ested in herby the $onstitution" +t the end of theday, the President??by ratifying, thru

her deputies, the non&surrenderagreement??did nothing more than

discharge a constitutional duty ande.ercise a prerogati!e that pertains toher oce"

9" More importantly, an act of thee.ecuti!e branch with a foreigngo!ernment must be a'orded greatrespect" The power to enter intoe.ecuti!e agreements has long beenrecogni4ed to be lodged with thePresident" +s 0e held in eri !" enate$ommittee on +ccountability of Public7cers and n!estigations, QItJhepower to enter into an e.ecuti!eagreement is in essence an e.ecuti!epower" This authority of the Presidentto enter into e.ecuti!e agreementswithout the concurrence of the=egislature has traditionally beenrecogni4ed in Philippineurisprudence"NI12GJ The rationalebehind this principle is the in!iolabledoctrine of separation of powersamong the legislati!e, e.ecuti!e and

udicial branches of the go!ernment"Thus, absent any clear contra!ention ofthe law, courts should e.ercise utmostcaution in declaring any e.ecuti!eagreement in!alid"

China ational $achiner# '. Santa!aria.5. o. 18))72


25/36

A" ince the Philippines adheres to therestricti!e theory, it is crucial toascertain the legal nature of the actin!ol!ed ? whether the entity claimingimmunity performs go!ernmental, asopposed to proprietary, functions" +sheld in 3nited tates of +merica !" Rui4?29

QThe restricti!e application of tate immunity is

proper only when the proceedings arise out ofcommercial transactions of the foreignso!ereign, its commercial acti!ities oreconomic a'airs" tated di'erently, a tatemay be said to ha!e descended to the le!el ofan indi!idual and can thus be deemed to ha!etacitly gi!en its consent to be sued only when itenters into business contracts" t does notapply where the contract relates to thee.ercise of its so!ereign functions"N

E" it is readily apparent that $M6%cannot claim immunity from suit, e!enif it contends that it performs

go!ernmental functions" ts designationas the Primary $ontractor does notautomatically grant it immunity, ust asthe term Himplementing agencyH hasno precise de-nition for purposes ofascertaining whether %TS was immunefrom suit" +lthough $M6% claims tobe a go!ernment&owned corporation, itfailed to adduce e!idence that it hasnot consented to be sued under$hinese law" Thus, following this$ourts ruling in :eutsche %esellschaft,in the absence of e!idence to the

contrary, $M6% is to be presumed tobe a go!ernment&owned and&controlled corporation without anoriginal charter" +s a result, it has thecapacity to sue and be sued underection AF of the $orporation $ode"

C" n the 3nited tates, the ;oreigno!ereign mmunities +ct of 19Fpro!ides for a wai!er by implication ofstate immunity" n the said law, theagreement to submit disputes toarbitration in a foreign country isconstrued as an implicit wai!er of

immunity from suit" +lthough there isno similar law in the Philippines, there

is reason to apply the legal reasoningbehind the wai!er in this case"

F" +rticle 2(1) of the >ienna $on!entionon the =aw of Treaties (>ienna$on!ention) de-nes a treaty as follows

9"8" I+Jn international agreement

concluded between tates in writtenform and go!erned by internationallaw, whether embodied in a single

instrument or in two or more relatedinstruments and whate!er its particulardesignation"

"1G" n Bayan Muna !" Romulo, this $ourt

held that an e.ecuti!e agreement issimilar to a treaty, e.cept that theformer (a) does not re#uire legislati!econcurrence5 (b) is usually less formal5and (c) deals with a narrower range ofsubect matters"CG

11"12" :espite these di'erences, to be

considered an e.ecuti!e agreement,the following three re#uisites pro!idedunder the >ienna $on!ention mustne!ertheless concur (a) the agreementmust be between states5 (b) it must bewritten5 and (c) it must go!erned byinternational law" The -rst and the thirdre#uisites do not obtain in the case atbar"

1A" +rticle 2 of the $onditions of$ontract,CE which under +rticle 1"1 ofthe $ontract +greement is an integralpart of the latter, states

1E" +PP=$+B=6 =+0 +: %7>6R%=+%3+%6

1C" The contract shall in all respects beread and construed in accordance withthe laws of the Philippines"

1F" The contract shall be written in 6nglishlanguage" +ll correspondence andother documents pertaining to the$ontract which are e.changed by theparties shall be written in 6nglish

language"

19" ince the $ontract +greement e.plicitlypro!ides that Philippine law shall beapplicable, the parties ha!e e'ecti!elyconceded that their rights andobligations thereunder are notgo!erned by international law"

18" t is therefore clear from the foregoingreasons that the $ontract +greementdoes not parta/e of the nature of an

e.ecuti!e agreement" t is merely anordinary commercial contract that canbe #uestioned before the local courts"

1" 0herefore, the petition is denied"


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2" The %o!ernment of celand withregards to de!elopments of -shingtechni#ues to increase its e.ploitationof the -shery resources in the seassurrounding celand

A" The celandic statements recall thee.ceptional dependence of thatcountry on its -shing for i ts e.istenceand economic de!elopment

E" celands in!ocation of Q!ital interestN

which were not subect to the6.change of otes in 1F1 must beinterpreted in the conte.t of theassertion of changed circumstances, asan indication by celand of the reasonwhy it regards as fundamental thechanges which in its !iew ha!e ta/enplace in pre!iously e.isting -shingtechni#ues"

C" >ital or fundamental changes are thosewhich imperil the e.istence of !italde!elopment of the parties"

F" Moreo!er, The e'ect of the change is

radically to transform the e.tent ofobligations still to be performed underthe treaty" This condition is notsatis-ed"

9" The change of circumstances allegedby celand cannot be said to ha!etransformed radically the e.tent of theurisdictional obligation which isimposed in the 1F1 6.change ofotes"

8" ot only has the urisdictionalobligation not been radicallytransformed in its e.tent5 it has

remained precisely what it was in 1F1"

a!ibia CaseIC 5-3 1971 1


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relationship is that the party whichdisowns or does not ful-l its obligationscannot be recogni4ed as retaining therights which it claims to deri!e fromthe relationship" Resolution 21EC ()determined that there had been amaterial breach of the Mandate, whichouth +frica had in fact disa!owed"

8" t has been contended (a) that the$o!enant of the =eague of ations did

not confer on the $ouncil of the =eaguepower to terminate a mandate formisconduct of the mandatory and thatthe 3nited ations could not deri!efrom the =eague greater powers thanthe latter itself had, (b) that, e!en ifthe $ouncil of the =eague hadpossessed the power of re!ocation ofthe Mandate, it could not ha!e beene.ercised unilaterally but only in co&operation with the Mandatory5 (c) thatresolution 21EC () madepronouncements which the %eneral

+ssembly, not being a udicial organ,was not competent to ma/e5 (d) that adetailed factual in!estigation wascalled for (e) that one part of resolution21EC () decided in e'ect a transferof territory"

" ;or ob!ious reasons, the consent of thewrongdoers to such a form oftermination cannot be re#uired"

anube a! Caseun*ar# '. Slo'a%ia>7 IB$ 12 /1998


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E" n determining whether a treaty is self&e.ecuting courts loo/ to the intent ofthe signatory parties as manifested bythe language of the instrument, and, ifthe instrument is uncertain, recoursemay be had to the circumstancessurrounding its e.ecution

C" The humane and enlightenedobecti!es of the 3nited ations$harter are, of course, entitled to

respectful consideration by the courtsand legislatures of e!ery membernation, since that document e.pressesthe uni!ersal desire of thin/ing men forpeace and for e#uality of rights andopportunities" The charter represents amoral commitment of foremostimportance, and we must not permitthe spirit of our pledge to becompromised or disparaged in eitherour domestic or foreign a'airs" IFJ 0eare satis-ed, howe!er, that the charterpro!isions relied on by plainti' were

not IA8 $al"2d 92CJ intended tosupersede e.isting domesticlegislation, and we cannot hold thatthey operate to in!alidate the +lien=and =aw"

F" Plainti' asserts, -rst, that the statutoryclassi-cation of aliens on the basis ofeligibility to citi4enship is arbitrary forthe reason that discrimination againstan ineligible alien bears no reasonablerelationship to promotion of the safetyand welfare of the state" constitution durin* theinterre*nu!, that is, ater theactual and e=ecti'e ta%eo'er o&ower b# the re'olutionar# *o't


29/36

ollowin* the cessation oresistance o lo#alistK and

2. hether the &rotection accordedto indi'iduals under theinternational con'ention on ci'iland &olitical ri*hts and theGni'ersal eclaration o u!an5i*hts re!ained in e=ect durin*the interre*nu!.

eld1.To rule that the bill of rights of the 19Aconstitution remained in force during theinterregnum, absent a constitutional pro!isione.cepting se#uestrian orders from such bill ofrights, would clearly render all se#uestrationorders !oid during the interregnum"

2" e!ertheless, e!en during the interregnumthe ;ilipino People continued to enoy, underthe co!enant and the declaration, almostcontinued to enoy, under the $o!enant and:eclaration, almost the same rights found in

the bill of rights of the 19A constitution" There!olutionary go!ernment, after installing itselfas the de ure go!ernment, assumedresponsibility for the states good faithcompliance with the co!enant to which thePhilippines is a signatory" +rticle 2(1) of theco!enant re#uires each signatory state Qtorespect and to ensure to all indi!iduals withinits territory and subect to its urisdiction therights recogni4ed in the present co!enant"N3nder to art" 19 (1) of the co!enant that QInJoone shall be subect to arbitrary or unlawfulinterference with his pri!acy, family, home or

correspondence"N The declaration, to whichPhilippines is also a signatory, pro!ides in itsarticle 12(2) that QInJo one shall be arbitrarilydepri!ed of his property"N +lthough thesignatories to the declaration did not intend itas legally binding document, only adeclaration, the $ourt has interpreted the:eclaration as part of the generally acceptedprinciples of international law and binding onthe tate" Thus, the re!olutionary go!ernmentwas also obligated under the international lawto obser!e the rights of indi!iduals under thedeclaration"

A" uce it to say that the court considers thedeclaration as part of customary internationallaw, and that ;ilipinos as


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E" 0ith other members of the party, hewas prosecuted on a charge of militaryrebellion

C" 7n *anuary E, 1E, the $olombian+mbassador in =ima informed thePeru!ian %o!ernment of the asylumgranted to


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eliminates its legal credibility" This, of course,has no impact on the rest of the%ene!a $on!ention" +s the holding does notprescribe any speci-c remedy, this casedoes not signi-cantly aid in any futuredecisions, other than for the purpose ofdenying the e#uidistance principle legalweight" f this case were used as precedentotherwise, it would merely direct the disputingstates to loo/ to customary

international law and cooperati!e action"Bibliographyorth ea $ontinental helf, *udgment, "$"*"Reports 1FubmittedRudolph > PZemyslid, March 1E, 2GG

uclear Test CaseAustralia '.


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in the a'airs of another tate ? when it trained,armed, e#uipped and -nanced the contraforces or encouraged, supported and aided themilitary and paramilitary acti!ities againsticaragua:id the 3nited tates breach its customaryinternational law obligation ? not to use forceagainst another tate ? when it directlyattac/ed icaragua in 18A ? 18E and whenits acti!ities in bullet point 1 abo!e resulted in

the use of forcef so, can the military and paramilitaryacti!ities that the 3nited tates undertoo/ inand against icaragua be usti-ed as collecti!eself&defence:id the 3nited tates breach its customaryinternational law obligation ? not to !iolate theso!ereignty of another tate ? when it directedor authori4ed its aircrafts to Ky o!ericaraguan territory and by acts referred to inbullet point 2 abo!e:id the 3nited tates breach its customaryinternational law obligations ? not to !iolate the

so!ereignty of another tate, not to inter!enein its a'airs, not to use force against anothertate and not to interrupt peaceful maritimecommerce ? when it laid mines in the internalwaters and the territorial sea of icaragua

eld

1" n order to deduce the e.istence ofcustomary rules, the $ourt deems itsucient that the conduct of statesshould, in general, be consistent withsuch rules, and that instance of state

conduct inconsistent with a gi!en ruleshould generally ha!e been treated asbreaches of that rule, not as indicationsof the recognition of a new rule

2" 7pinio uris, or the belief that a certainform of beha!ior is obligatory, is whatma/es practice an international rule"0ithout it practice is not law" 6!enhumanitarian consideration by itselfdoes not constitute opinion uris" (fr"Bernas)

A" ;or a new customary rule to be formed,not only must the acts concerned^amount to settled practice, but they

must be accompanied by the opinionuris si!e necessitasis"

E" 6ither the tates ta/ing such action orother tates in a position to react to it,must ha!e beha!ed so that theirconduct is Qe!idence of a belief thatthis practice is rendered obligatory bythe e.istence of a rule of law re#uiringitN

C" The need for such belief (i"e" the

e.istence of a subecti!e element), isimplicit in the !ery notion of theopinion uris si!e necessitasis (opinionof law or necessity)

F" t considers that this opio uris may bededuced from, inter alia, the attitude ofthe Parties and tates towards certain%eneral +ssembly resolutions, andparticularly Resolution 2F2C entitleQ:eclaration on Principles ofnternational =aw concerning ;riendlyRelations and $o&operation amongtates in +ccordance with the $harter

of the 3"N9" $onsent to such resolutions is one of

the forms of e.pression of an opinionuris with regard to the principle of non&use of force, regarded as a principle ofcustomary international law,independently of the pro!isions,especially those of an institutional /ind,to which it is subect on the treaty&lawplane of the $harter

8" +dherence to treaties can be indicati!eof adherence to practice as opinionuris"

$* decision The 3nited tates !iolatedcustomary international law in relation to bulletpoints 1, 2, E and C abo!e" 7n bullet point A,the $ourt found that the 3nited tates couldnot rely on collecti!e self&defence to ustify itsuse of force against icaragua"

Rele!ant ;indings of the $ourt

1" The court held that the 3nited tatesbreached its customary international lawobligation ? not to use force against anothertate (1) when it directly attac/ed icaragua

in 18A ? 18E5 and (2) when its acti!ities withthe contra forces resulted in the threat or useof force (see paras 189 &2G1)"

The $ourt held that

The prohibition on the use of force is found in+rticle 2(E) of the 3 $harter and in customaryinternational law"n a contro!ersial -nding the court sub&

classi-ed the use of force as (1) the Qmostgra!e forms of the use of forceN (i"e" those thatconstitute an armed attac/) and (2) the Qlessgra!e formN (i"e" organi4ing, instigating,assisting or participating in acts of ci!il strifeand terrorist acts in another tate ? when theacts referred to in!ol!e a threat or use of forcenot amounting to an armed attac/)"The 3nited tates !iolated the customaryinternational law prohibition on the use of forcewhen it laid mines in icaraguan ports" t!iolated this prohibition when it attac/edicaraguan ports, oil installations and a na!al

base (see below)" The 3nited tates couldustify its action on collecti!e self&defence, ifcertain criteria were met ? this aspect isdiscussed below"The 3nited tates !iolated the customaryinternational law prohibition on the use of forcewhen it assisted the contras by Qorgani4ing orencouraging the organi4ation of irregular forcesand armed bands] for incursion into theterritory of another stateN and participated Qinacts of ci!il strife]in another tateN whenthese acts in!ol!ed the threat or use of force"The supply of funds to the contras did not

!iolate the prohibition on the use of force"icaragua argued that the timing of theo'ensi!es against it was determined by the3nited tates i"e" an o'ensi!e could not belaunched until the re#uisite funds werea!ailable" The $ourt held that Q]it does notfollow that each pro!ision of funds by the3nited tates was made to set in motion aparticular o'ensi!e, and that that o'ensi!ewas planned by the 3nited tates"N The $ourtheld further that while the arming and trainingof the contras in!ol!ed the threat or use offorce against icaragua, the supply of funds, init self, only amounted to an act of inter!ention


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in the internal a'airs of icaragua (para 229) ?this aspect is discussed below"0hat is an armed attac/

+ contro!ersial but interesting aspect of the$ourts udgement was its de-nition of anarmed attac/" The $ourt held that an armedattac/ included(1) action by regular armed forces across aninternational border5 and

(2) Qthe sending by or on behalf of a tate ofarmed bands, groups, irregulars ormercenaries, which carry out acts of armedforce against another tate of such gra!ity asto amount to (inter alia) an actual armed attac/conducted by regular forces, or its (the tates)substantial in!ol!ement thereinN

B The second point somewhat resembles+rticle A (g) of the 3%+ Resolution AA1E() on the :e-nition of +ggression"

Mere frontier incidents are not considered asan armed attac/ ? unless because of its scaleand e'ects it would ha!e been classi-ed as anarmed attac/ if it was carried out by regularforces"+ssistance to rebels in the form of pro!ision ofweapons or logistical support did not constitutean armed attac/ ? it can be regarded as athreat or use of force, or an inter!ention in theinternal or e.ternal a'airs of other tates (seeparas 1C, 2AG)"3nder +rticle C1 of the 3 $harter and under$= ? self&defence is only a!ailable against a

use of force that amounts to an armed attac/(para 211)"B n in the $ase $oncerning 7il Platformsand the ad!isory opinion on the =egal$onse#uences of of the $onstruction of a 0allin the 7ccupied Palestinian Territory(hereinafter called the Palestine wall case) the$* upheld the de-nition of Qarmed attac/Nproposed in the icaragua case" n thePalestinian wall case, the attac/s from whichsrael was claiming self defence originatedfrom non&tate actors"


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e.pected that the conditions of the $hartershould be respected" Thus for the purpose ofen#uiry into the customary law position, theabsence of a report may be one of the factorsindicating whether the tate in #uestion wasitself con!inced that it was acting in self&defence (ee paras 2GG, 2A2 &2AF)N"

The $ourt loo/ed e.tensi!ely into the conductof icaragua, 6l al!ador, $osta Rica and


35/36

icaragua" +ll the forms of 3nited tatesparticipation mentioned abo!e, and e!en thegeneral control by the respondent tate o!er aforce with a high degree of dependency on it,would not in themsel!es mean, without furthere!idence, that the 3nited tates directed orenforced the perpetration of the acts contraryto human rights and humanitarian law allegedby the applicant tate" uch acts could well becommitted by members of the contras without

the control of the 3nited tates" ;or thisconduct to gi!e rise to legal responsibility ofthe 3nited tates, it would in principle ha!e tobe pro!ed that that tate had e'ecti!e controlof the mil itary or paramilitary"N

nteresting, howe!er, the $ourt also held thatpro!iding Q]humanitarian aid to persons orforces in another country, whate!er theirpolitical aliations or obecti!es, cannot beregarded as unlawful inter!ention, or as in anyother way contrary to international lawN (para2E2)"

n the e!ent one tate inter!enes in the a'airsof another tate, the !ictim tate has a right tointer!ene in a manner that is short of an armedattac/ (21G)"Q0hile an armed attac/ would gi!e rise to anentitlement to collecti!e self&defence, a use offorce of a lesser degree of gra!ity cannot asthe $ourt has already obser!ed (paragraph 211 abo!e)" produce any entitlement to ta/ecollecti!e countermeasures in!ol!ing the use offorce" The acts of which icaragua is accused,e!en assuming them to ha!e been establishedand imputable to that tate, could only ha!e

usti-ed proportionate counter&measures on thepart of the tate which had been the !ictim ofthese acts, namely 6l al!ador,


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+M*= 11F (critici4es the determination ofrele!ant tate practice in relation to non&inter!ention and the reliance on 3 resolutionsto illicit opinio uris (it alleges that the $ourtsought to harden soft law prematurely)" ;ran/points out that the inter!entions falling short ofarmed attac/s would not allow tates to targetrebel groups in another tates territory e!en ifthe insurgency is planned, trained, armed anddirected from that territory)"

Protecting the $ourts institutional interests0hy not the Marbury approach Michael *"%lennon, 81 +M*= 121 (discusses reser!ationsbefore the $* and the $ourts prerogati!e todetermine its own urisdiction)

:iscretion to decline to e.ercise urisdiction,6dward %orden, 81 +M*= 12 (discusses thediscretionary power of the court to decline toe.ercise its urisdiction at the merit stages)"

The icaragua udgment and the future of the

law of force and self&defense, *ohn =awrence

pil theend

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