Bayan v. Zamora, G.R. No. 138570, October 10, 2000 NO, the VFA is not unconstitutional.

DECISION Section 25, Article XVIII disallows foreign military bases,

(En Banc) troops, or facilities in the country, unless the following conditions are
sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must
BUENA, J.: 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
I. THE FACTS referendum; and (c) recognized as a treaty by the other contracting state.

The Republic of the Philippines and the United States of America There is no dispute as to the presence of the first two requisites
entered into an agreement called the Visiting Forces Agreement (VFA). in the case of the VFA. The concurrence handed by the Senate through
The agreement was treated as a treaty by the Philippine government and Resolution No. 18 is in accordance with the provisions of the Constitution
was ratified by then-President Joseph Estrada with the concurrence of 2/3 . . . the provision in [in §25, Article XVIII] requiring ratification by a
of the total membership of the Philippine Senate. majority of the votes cast in a national referendum being unnecessary
since Congress has not required it.
The VFA defines the treatment of U.S. troops and personnel
visiting the Philippines. It provides for the guidelines to govern such xxx xxx xxx
visits, and further defines the rights of the U.S. and the Philippine
governments in the matter of criminal jurisdiction, movement of vessel This Court is of the firm view that the phrase “recognized as a
and aircraft, importation and exportation of equipment, materials and treaty” means that the other contracting party accepts or
supplies. acknowledges the agreement as a treaty. To require the other
contracting state, the United States of America in this case, to submit the
Petitioners argued, inter alia, that the VFA violates §25, Article VFA to the United States Senate for concurrence pursuant to its
XVIII of the 1987 Constitution, which provides that “foreign military Constitution, is to accord strict meaning to the phrase.
bases, troops, or facilities shall not be allowed in the Philippines except
under a treaty duly concurred in by the Senate . . . and recognized as a Well-entrenched is the principle that the words used in the
treaty by the other contracting State.” Constitution are to be given their ordinary meaning except where
technical terms are employed, in which case the significance thus attached
II. THE ISSUE to them prevails. Its language should be understood in the sense they have
in common use.
Was the VFA unconstitutional?
Moreover, it is inconsequential whether the United States treats
III. THE RULING 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
[The Court DISMISSED the consolidated petitions, held that VFA possesses the elements of an agreement under international law, the
the petitioners did not commit grave abuse of discretion, and sustained said agreement is to be taken equally as a treaty.
the constitutionality of the VFA.]
xxx xxx xxx
 The records reveal that the United States Government, through
Ambassador Thomas C. Hubbard, has stated that the United States
government has fully committed to living up to the terms of the VFA. For
as long as the United States of America accepts or acknowledges the VFA
as a treaty, and binds itself further to comply with its obligations under
the treaty, there is indeed marked compliance with the mandate of the
Constitution.
 RP-US Military Bases Agreement was never advised for ratification by
SUZETTE NICOLAS Y SOMBILON v. ALBERTO ROMULO, GR the United States Senate, a disparity in treatment, because the
No. 175888, 2009-02-11 Philippines... regarded it as a treaty and had it concurred in by our
Facts: Senate.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the Subsequently, the United States agreed to turn over these bases to the
United States Armed Forces. He was charged with the crime of rape Philippines; and with the expiration of the RP-US Military Bases
committed against a Filipina, petitioner herein, sometime on November Agreement in 1991, the territory covered by these bases were finally
1, 2005 ceded to the Philippines.
Pursuant to the Visiting Forces Agreement (VFA) between the Republic whether or not the presence of US Armed Forces in Philippine territory
of the Philippines and the United States, entered into on February 10, pursuant to the VFA is allowed "under a treaty duly concurred in by the
1998, the United States, at its request, was granted custody of defendant Senate xxx and recognized as a treaty by the other... contracting State."
Smith pending the proceedings. Issues:
United States Government faithfully complied with its undertaking to whether or not the presence of US Armed Forces in Philippine territory
bring defendant Smith to the trial court every time his presence was... pursuant to the VFA is allowed "under a treaty duly concurred in by the
required. Senate xxx and recognized as a treaty by the other... contracting State."
RTC of Makati, following the end of the trial, rendered its Decision, Petitioners contend that these undertakings violate another provision of
finding defendant Smith guilt the Constitution, namely, that providing for the exclusive power of this
As a result, the Makati court ordered Smith detained at the Makati jail Court to adopt rules of procedure for all courts in the Philippines (Art.
until further orders. VIII, Sec. 5[5]). They argue that to... allow the transfer of custody of an
Smith was taken out of the Makati jail by a contingent of Philippine law accused to a foreign power is to provide for a different rule of procedure
enforcement agents, purportedly acting under orders of the Department for that accused, which also violates the equal protection clause of the
of the Interior and Local Government, and brought to a facility for Constitution (Art. III, Sec. 1.).
detention under the control... of the United States government, provided Ruling:
for under new agreements between the Philippines and the United This Court finds that it is, for two reasons.
States, referred to as the Romulo-Kenney Agreement... in accordance First, as held in Bayan v. Zamora,[5] the VFA was duly concurred in by
with the Visiting Forces Agreement signed between our two nations, the Philippine Senate and has been recognized as a treaty by the United
Lance Corporal Daniel J. Smith, United States Marine Corps, be States as attested and certified by the duly authorized representative of
returned... to U.S. military custody at the U.S. Embassy in Manila. the United States... government.
He will be guarded round the clock by U.S. military personnel. The The fact that the VFA was not submitted for advice and consent of the
Philippine police and jail... authorities, under the direct supervision of United States Senate does not detract from its status as a binding
the Philippine Department of Interior and Local Government (DILG) international agreement or treaty recognized by the said State. For this is
will have access to the place of detention to ensure the United States is a matter of internal United States law.
in compliance with the terms of the VFA. The second reason has to do with the relation between the VFA and the
Clark and Subic and the other places in the Philippines covered by the RP-US Mutual Defense Treaty of August 30, 1951. This earlier
RP-US Military Bases Agreement of 1947 were not Philippine territory, agreement was signed and duly ratified with the concurrence of both the
as they were excluded from the cession and retained by the US. Philippine Senate and the United States Senate.
Accordingly, the Philippines had no jurisdiction over these bases except Clearly, therefore, joint RP-US military exercises for the purpose of
to the extent allowed by the United States. 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 confinement or detention by Philippine authorities of United States
the instrument agreed upon to provide for the joint RP-US military... personnel shall be carried out in facilities agreed on by appropriate
exercises, is simply an implementing agreement to the main RP-US Philippines and United States authorities. United States personnel
Military Defense Treaty. serving sentences in the Philippines shall have the right to... visits and
The Preamble of the VFA states material assistance.
Reaffirming their obligations under the Mutual Defense Treaty of It is clear that the parties to the VFA recognized the difference between
August 30, 1951; custody during the trial and detention after conviction, because they
Accordingly, as an implementing agreement of the RP-US Mutual provided for a specific arrangement to cover detention.
Defense Treaty, it was not necessary to submit the VFA to the US not only that the detention shall... be carried out in facilities agreed on
Senate for advice and consent, but merely to the US Congress under the by authorities of both parties, but also that the detention shall be "by
Case-Zablocki Act within 60 days of its ratification. It is for this reason Philippine authorities."
that... the US has certified that it recognizes the VFA as a binding Therefore, the Romulo-Kenney Agreements of December 19 and 22,
international agreement, i.e., a treaty, and this substantially complies 2006, which are agreements on the detention of the accused in the
with the requirements of Art. XVIII, Sec. 25 of our Constitution. United
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied States Embassy, are not in accord with the VFA itself because such
with by virtue of the fact that the presence of the US Armed Forces detention is not "by Philippine authorities."
through the VFA is a presence "allowed under" the RP-US Mutual Next, the Court addresses the recent decision of the United States
Defense Treaty. Supreme Court in Medellin v. Texas ( 552 US ___ No. 06-984, March
The VFA provides that in cases of offenses committed by the members 25, 2008), which held that treaties entered into by the United States are
of the US Armed Forces in the Philippines, the following rules apply: not automatically part of their domestic law unless these... treaties are
The custody of any United States personnel over whom the Philippines self-executing or there is an implementing legislation to make them
is to exercise jurisdiction shall immediately reside with United States enforceable.
military authorities, if they so request, from the commission of the First, the VFA is a self-executing Agreement, as that term is defined in
offense until completion of all judicial proceedings. Medellin itself, because the parties intend its provisions to be
this Court finds no violation of the Constitution. enforceable, precisely because the Agreement is intended to carry out
Nothing in the Constitution prohibits such agreements recognizing obligations and undertakings under the RP-US
immunity from jurisdiction or some aspects of jurisdiction (such as Mutual Defense Treaty.
custody), in relation to long-recognized subjects of such immunity like Secondly, the VFA is covered by implementing legislation, namely, the
Heads of State, diplomats and members of the armed forces contingents Case-Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose
of... a foreign State allowed to enter another State's territory. On the and intent of the US Congress that executive agreements registered
contrary, the Constitution states that the Philippines adopts the generally under this Act within 60 days from their ratification be... immediately
accepted principles of international law as part of the law of the land. implemented.
Applying, however, the provisions of VFA, the Court finds that there is VFA differs from the Vienna Convention on Consular Relations and the
a different treatment when it comes to detention as against custody. The Avena decision of the International Court of Justice (ICJ), subject matter
moment the accused has to be detained, e.g., after conviction, the rule of the Medellin decision. The Convention and the ICJ decision are not
that governs is the following provision of the self-executing and are not... registrable under the Case-Zablocki Act,
VFA: and thus lack legislative implementing authority.
inally, the RP-US Mutual Defense Treaty was advised and consented to of ratification under the provisions of the Case-Zablocki Act, after
by the US Senate which they are recognized by the Congress and may be... implemented.
Principles:
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. The Status of Forces Agreements involving foreign
military units around the world vary in terms and conditions,...
according to the situation of the parties involved, and reflect their
bargaining power. But the principle remains, i.e., the receiving State can
exercise jurisdiction over the forces of the sending State only to the
extent agreed upon by the parties.
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 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.
It was not the intention of the framers of the 1987 Constitution, in
adopting Article XVIII, Sec. 25, to require the other contracting State to
convert their system to achieve alignment and parity with ours. It was
simply required that the treaty be recognized as a treaty by the... other
contracting State.
as held by the US Supreme Court in Weinberger v. Rossi,[13] an
executive agreement is a "treaty" within the meaning of that word in
international law and constitutes enforceable domestic law vis-à-vis the
United States. Thus, the
US Supreme Court in Weinberger enforced the provisions of the
executive agreement granting preferential employment to Filipinos in
the US Bases here.
Accordingly, there are three types of treaties in the American system:
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.
Executive-Congressional Agreements: These are joint agreements of the
President and Congress and need not be submitted to the Senate.
Sole Executive Agreements. - These are agreements entered into by the
President. They are to be submitted to Congress within sixty (60) days
Lim v. Executive Secretary HELD: NO. Petition and the petition-in-intervention are hereby
DISMISSED without prejudice to the filing of a new petition sufficient
Lessons Applicable: Locus Standi, International Law v. Muncipal in form and substance in the proper Regional Trial Court - Supreme
Law, Certiorari, Incorporation Clause, Treaties Court is not a trier of facts

Laws Applicable: Constitution Doctrine of Importance to the Public

Considering however the importance to the public of the case at bar, and
FACTS: in keeping with the Court's duty, under the 1987 Constitution, to
determine whether or not the other branches of the government have
Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, kept themselves within the limits of the Constitution and the laws that
personnel from the armed forces of the United States of America started they have not abused the discretion given to them, the Court has brushed
arriving in Mindanao to take partin "Balikatan 02-1” on January aside technicalities of procedure and has taken cognizance of this
2002. The Balikatan 02-1 exercises involves the simulation of joint petition.
military maneuvers pursuant to the Mutual Defense Treaty, a bilateral
defense agreement entered into by the Philippines and the United States Although courts generally avoid having to decide a constitutional
in 1951. The exercise is rooted from the international anti-terrorism question based on the doctrine of separation of powers, which enjoins
campaign declared by President George W. Bush in reaction to the 3 upon the department of the government a becoming respect for each
commercial aircrafts hijacking that smashed into twin towers of the other's act, this Court nevertheless resolves to take cognizance of the
World Trade Center in New York City and the Pentagon building in instant petition.
Washington, D.C. allegedly by the al-Qaeda headed by the Osama bin Interpretation of Treaty
Laden that occurred on September 11, 2001. Arthur D. Lim and Paulino The VFA permits United States personnel to engage, on an impermanent
P. Ersando as citizens, lawyers and taxpayers filed a petition for basis, in "activities," the exact meaning of which was left undefined.
certiorari and prohibition attacking the constitutionality of the joint The expression is ambiguous, permitting a wide scope of undertakings
exercise. Partylists Sanlakas and Partido Ng Manggagawa as residents subject only to the approval of the Philippine government. The sole
of Zamboanga and Sulu directly affected by the operations filed a encumbrance placed on its definition is couched in the negative, in that
petition-in-intervention. United States personnel must "abstain from any activity inconsistent
with the spirit of this agreement, and in particular, from any political
The Solicitor General commented the prematurity of the action as it is activity." All other activities, in other words, are fair game.
based only on a fear of future violation of the Terms of Reference and To aid in this, the Vienna Convention on the Law of Treaties Article 31
impropriety of availing of certiorari to ascertain a question of fact SECTION 3 and Article 32 contains provisos governing interpretations
specifically interpretation of the VFA whether it is covers "Balikatan of international agreements. It is clear from the foregoing that the
02-1” and no question of constitutionality is involved. Moreover, there cardinal rule of interpretation must involve an examination of the text,
is lack of locus standi since it does not involve tax spending and there is which is presumed to verbalize the parties' intentions. The Convention
no proof of direct personal injury. 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
ISSUE: W/N the petition and the petition-in-intervention should elements may be taken into account alongside the aforesaid
prosper. context. According to Professor Briggs, writer on the Convention, the
distinction between the general rule of interpretation and the
supplementary means of interpretation is intended rather to ensure that the municipal sphere. Under the doctrine of incorporation as applied in
the supplementary means do not constitute an alternative, autonomous most countries, rules of international law are given a standing equal, not
method of interpretation divorced from the general rule. superior, to national legislation.”
The meaning of the word “activities" was deliberately made that way to From the perspective of public international law, a treaty is favored over
give both parties a certain leeway in negotiation. Thus, the VFA gives municipal law pursuant to the principle of pacta sunt servanda. Hence,
legitimacy to the current Balikatan exercises. Both the history and "[e]very treaty in force is binding upon the parties to it and must be
intent of the Mutual Defense Treaty and the VFA support the conclusion performed by them in good faith." Further, a party to a treaty is not
that combat-related activities -as opposed to combat itself -such as the allowed to "invoke the provisions of its internal law as justification for
one subject of the instant petition, are indeed authorized. its failure to perform a treaty."
The Terms of Reference are explicit enough. Paragraph 8 of section I Our Constitution espouses the opposing view as stated in section 5 of
stipulates that US exercise participants may not engage in combat Article VIII: “The Supreme Court shall have the following powers: xxx
"except in self-defense." ." The indirect violation is actually petitioners' (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as
worry, that in reality, "Balikatan 02-1" is actually a war principally the law or the Rules of Court may provide, final judgments and order of
conducted by the United States government, and that the provision on lower courts in:
self-defense serves only as camouflage to conceal the true nature of the (A) All cases in which the constitutionality or validity of any treaty,
exercise. A clear pronouncement on this matter thereby becomes international or executive agreement, law, presidential decree,
crucial. In our considered opinion, neither the MDT nor the VFA allow proclamation, order, instruction, ordinance, or regulation is in question.”
foreign troops to engage in an offensive war on Philippine Ichong v. Hernandez: “provisions of a treaty are always subject to
territory. Under the salutary proscription stated in Article 2 of the qualification or amendment by a subsequent law, or that it is subject to
Charter of the United Nations. the police power of the State”
Both the Mutual Defense Treaty and the Visiting Forces Agreement, as Gonzales v. Hechanova: “our Constitution authorizes the nullification of
in all other treaties and international agreements to which the a treaty, not only when it conflicts with the fundamental law, but, also,
Philippines is a party, must be read in the context of the 1987 when it runs counter to an act of Congress.”
Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of The foregoing premises leave us no doubt that US forces are prohibited /
Principles and State Policies in this case. The Constitution also from engaging in an offensive war on Philippine territory.
regulates the foreign relations powers of the Chief Executive when it
provides that "[n]o treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the members of
the Senate." Even more pointedly Sec. 25 on Transitory Provisions
which shows antipathy towards foreign military presence in the country,
or of foreign influence in general. Hence, foreign troops are allowed
entry into the Philippines only by way of direct exception.
International Law vs. Fundamental Law and Municipal Laws
Conflict arises then between the fundamental law and our obligations
arising from international agreements.
Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that
international law has been made part of the law of the land does not by
any means imply the primacy of international law over national law in
Pimentel v. Executive Secretary Constitution with the 2/3 required vote of all the members of the Senate
G.R. No. 158088 July 6, 2005 for the treaty to be valid. (Sec. 21, Art VII).

Facts: 3. The legislative branch part is essential to provide a check on the

executive in the field of foreign relations, to ensure the nation's pursuit of
1. The petitioners filed a petition for mandamus to compel the Office of political maturity and growth.
the Executive Secretary and the Department of Foreign Affairs to transmit
the signed copy of the Rome Statute of the International Criminal
Court to the Senate of the Philippinesfor its concurrence pursuant to Sec.
21, Art VII of the 1987 Constitution.

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

3. Petitioners contend that ratification of a treaty, under both domestic and

international law, is a function of the Senate, hence it is the duty of the
Executive Department to transmit the signed copy to the senate to allow
it to exercise its discretion.

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

The Supreme Court held NO.

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

2. In treaty-making, the President has the sole authority to negotiate with

other states and enter into treaties but this power is limited by the
 running the country long enough to focus on a welter of time-consuming
CONSTANTINO v. CUISA detailed activities–the propriety of incurring/guaranteeing loans,
During the Aquino regime, her administration came up w/ a scheme to studying and choosing among the many methods that may be taken
reduce the country’s external debt. The solution resorted to was to incur toward this end, meeting countless times with creditor representatives to
foreign debts. Three restructuring programs were sought to initiate the negotiate, obtaining the concurrence of the Monetary Board, explaining
program for foreign debts – they are basically buyback programs & and defending the negotiated deal to the public, and more often than not,
bond-conversion programs). Constantino as a taxpayer and in behalf of flying to the agreed place of execution to sign the documents. This sort
his minor children who are Filipino citizens, together w/ FFDC averred of constitutional interpretation would negate the very existence of
that the buyback and bond-conversion schemes are onerous and they do cabinet positions and the respective expertise which the holders thereof
not constitute the loan “contract” or “guarantee” contemplated in Sec. are accorded and would unduly hamper the President’s effectivity in
20, Art. 7 of the Constitution. And assuming that the President has such running the government. The act of the respondents are not
power unlike other powers which may be validly delegated by the unconstitutional.
President, the power to incur foreign debts is expressly reserved by the Exception
Constitution in the person of the President. They argue that the gravity There are certain acts which, by their very nature, cannot be validated by
by which the exercise of the power will affect the Filipino nation subsequent approval or ratification by the President. There are certain
requires that the President alone must exercise this power. They argue constitutional powers and prerogatives of the Chief Executive of the
that the requirement of prior concurrence of an entity specifically named Nation which must be exercised by him in person and no amount of
by the Constitution–the Monetary Board–reinforces the submission that approval or ratification will validate the exercise of any of those powers
not respondents but the President “alone and personally” can validly by any other person. Such, for instance, in his power to suspend the writ
bind the country. Hence, they would like Cuisia et al to stop acting of habeas corpus and proclaim martial law and the exercise by him of
pursuant to the scheme. the benign prerogative of pardon (mercy).
There are certain presidential powers which arise out of exceptional
ISSUE: Whether or not the president can validly delegate her debt circumstances, and if exercised, would involve the suspension of
power to the respondents. fundamental freedoms, or at least call for the supersedence of executive
HELD: There is no question that the president has borrowing powers prerogatives over those exercised by co-equal branches of government.
and that the president may contract or guarantee foreign loans in behalf The declaration of martial law, the suspension of the writ of habeas
of this country w/ prior concurrence of the Monetary Board. It makes no corpus, and the exercise of the pardoning power notwithstanding the
distinction whatsoever and the fact that a debt or a loan may be onerous judicial determination of guilt of the accused, all fall within this special
is irrelevant. On the other hand, the president can delegate this power to class that demands the exclusive exercise by the President of the
her direct subordinates. The evident exigency of having the Secretary of constitutionally vested power. The list is by no means exclusive, but
Finance implement the decision of the President to execute the debt- there must be a showing that the executive power in question is of
relief contracts is made manifest by the fact that the process of similar gravitas and exceptional import.
establishing and executing a strategy for managing the government’s CASE DIGEST : PHARMACEUTICAL Vs Duque
debt is deep within the realm of the expertise of the Department of G.R. No. 173034 October 9, 2007 PHARMACEUTICAL AND
Finance, primed as it is to raise the required amount of funding, achieve HEALTH CARE ASSOCIATION OF THE PHILIPPINES,
its risk and cost objectives, and meet any other sovereign debt petitioner, vs. HEALTH SECRETARY FRANCISCO T. DUQUE III;
management goals. If the President were to personally exercise every HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO, DR.
aspect of the foreign borrowing power, he/she would have to pause from MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, &
DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. of the WHO Constitution reads:
MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. Article 23. The Health Assembly shall have authority to make
NEMESIO T. GAKO, respondents. recommendations to Members with respect to any matter within the
competence of the Organization
FACTS : Named as respondents are the Health Secretary, for an international rule to be considered as customary law, it must be
Undersecretaries, and Assistant Secretaries of the Department of Health established that such rule is being followed by states because they
(DOH). For purposes of herein petition, the DOH is deemed impleaded consider it obligatory to comply with such rules
as a co-respondent since respondents issued the questioned RIRR in
their capacity as officials of said executive agency.1Executive Order Under the 1987 Constitution, international law can become part of the
No. 51 (Milk Code) was issued by President Corazon Aquino on sphere of domestic law either
October 28, 1986 by virtue of the legislative powers granted to the
president under the Freedom Constitution. One of the preambular By transformation or incorporation. The transformation method requires
clauses of the Milk Code states that the law seeks to give effect to that an international law be transformed into a domestic law through a
Article 112 of the International Code of Marketing of Breastmilk constitutional mechanism such as local legislation. The incorporation
Substitutes (ICMBS), a code adopted by the World Health Assembly method applies when, by mere constitutional declaration, international
(WHA) in 1981. From 1982 to 2006, the WHA adopted several law is deemed to have the force of domestic law.
Resolutions to the effect that breastfeeding should be supported,
promoted and protected, hence, it should be ensured that nutrition and Consequently, legislation is necessary to transform the provisions of the
health claims are not permitted for breastmilk substitutes.In 1990, the WHA Resolutions into domestic law. The provisions of the WHA
Philippines ratified the International Convention on the Rights of the Resolutions cannot be considered as part of the law of the land that can
Child. Article 24 of said instrument provides that State Parties should be implemented by executive agencies without the need of a law enacted
take appropriate measures to diminish infant and child mortality, and by the legislature
ensure that all segments of society, specially parents and children, are
informed of the advantages of breastfeeding. On May 15, 2006, the
DOH issued herein assailed RIRR which was to take effect on July 7,
2006.

Issue: . Whether Administrative Order or the Revised Implementing

Rules and Regulations (RIRR) issued by the Department of Health
(DOH) is not constitutional;

Held: YES

under Article 23, recommendations of the WHA do not come into force
for members,in the same way that conventions or agreements under
Article 19 and regulations under Article 21 come into force. Article 23
Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr. law.
That case was dismissed by the SCORP last Feb. 14 2007.
FACTS: What the petitioners wanted was that Foreign funded projects also
On May 7, 2004 Bids and Awards Committee (BAC) of the Department undergo the procurement process.
of Public Works and Highways (DPWH) issued a Resolution No. PJHL- The dismissal of the case somehow gave justification for the delay of the
A-04-012. It was approved by DPWH Acting Secretary Florante implementing rules for foreign funded projects (IRR-B) of the
Soriquez. This resolution recommended the award to China Road & procurement law If we recall the decision of the Abaya vs Ebdane was
Bridge Corporation of the contract for the implementation of civil works used by the DOJ when the DOTC Secretary was asking for an opinion
for Contract Package No. I (CP I), which consists of the from the former, during the ZTE controversy.as ruled by the Supreme
improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga Court in Abaya v. Ebdane, an exchange of notes is considered a form of
road, with the lengt of 79.818 kilometers, in the island province of an executive agreement, which becomes binding through executive action
Catanduanes. without need of a vote by the
This Loan Agreement No. PH-204 was executed by and between the Senate and that (like treaties and conventions, it is an international
JBIC and the Philippine Government pursuant to the exchange of Notes instrument binding at international law,
executed by and between Mr. Yoshihisa Ara, Ambassador Extraordinary The second issue involves an examination of the coverage of Republic
and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs Act No. 9184, otherwise known as the “Government Procurement Reform
Secretary Siazon, in behalf of their respective governments. Act”. Section 4 of the said Act provides that it shall
apply to: … the Procurement of infrastructure Projects, Goods and
ISSUE: Consulting Services, regardless of source of funds, whether local or
Whether or not the Loan Agreement No. PH-204 between the JBIC and foreign, by all branches and instrumentalities of government, its
the Philippine Government is a kind of a treaty. departments, offices and agencies, including government-owned and/or -
controlled corporations and local government units, subject to the
HELD: provisions of Commonwealth Act No. 138. Any treaty or international or
The Loan Agreement No. PH-204 taken in conjunction with the executive agreement affecting the subject matter of this Act to which the
Exchange of Notes dated December 27, 1999 between the Japanese Philippine government is a signatory shall be observed.
Government and the Philippine Government is an executive agreement.
An “exchange of notes” is a record of a routine agreement that has many
similarities with the private law contract. The agreement consists of the
exchange of two documents, each of the parties being in the possession
of the one signed by the representative of the other.
…treaties, agreements, conventions, charters, protocols, declarations,
memoranda of understanding, modus vivendi and exchange of notes all
are refer to international instruments binding at international law.
Although these instruments differ from each other by title, they all have
common features and international law has applied basically the same
rules to all these instruments. These rules are the result of long practice
among the States, which have accepted them as binding norms in their
mutual relations. Therefore, they are regarded as international customary
 THE PROVINCE OF NORTH COTABATO, et al . v . THE HELD:
GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES, et The MOA-AD subject of the present cases is of public concern, involving
al . as it does the sovereignty and territorial integrity of the State, which
President Gloria Macapagal-Arroyo, in line with the government‘s policy directly affects the lives of the public at large. Intended as a ―splendid
of pursuing peace negotiations with the Moro Islamic Liberation Front symmetry to the right to information under the Bill of Rights is the policy
(MILF), asked Prime Minister Mahathir Mohammad to convince the of public disclosure under Section 28, Article II of the Constitution which
MILF to continue negotiating with the government. MILF, thereafter, provides that subject to reasonable conditions prescribed by law, the State
convened its Central Committee and decided to meet with the adopts and implements a policy of full public disclosure of all its
Government of the Republic of the Philippines (GRP). Formal peace talks transactions involving public interest. Moreover, the policy of full public
were held in Libya which resulted to the crafting of the GRP-MILF disclosure enunciated in above-quoted Section 28 complements the right
Tripoli Agreement on Peace (Tripoli Agreement 2001) which consists of of access to information on matters of public concern found in the Bill of
three (3) aspects: a.) security aspect; b.) rehabilitation aspect; and c.) Rights. The right to information guarantees the right of the people to
ancestral domain aspect. Various negotiations were held which led to the demand information, while Section 28 recognizes the duty of officialdom
finalization of the Memorandum of Agreement on the Ancestral Domain to give information even if nobody demands. The policy of public
(MOA-AD). The said memorandum was set to be signed last August 5, disclosure establishes a concrete ethical principle for the conduct of
2008. In its body, it grants ―the authority and jurisdiction over the public affairs in a genuinely open democracy, with the people‘s right to
Ancestral Domain and Ancestral Lands of the Bangsamoro to the know as the centerpiece. It is a mandate of the State to be accountable by
Bangsamoro Juridical Entity (BJE). The latter, in addition, has the following such policy. These provisions are vital to the exercise of the
freedom to enter into any economic cooperation and trade relation with freedom of expression and essential to hold public officials at all times
foreign countries. ―The sharing between the Central Government and accountable to the people. Indubitably, the effectivity of the policy of
the BJE of total production pertaining to natural resources is to be 75:25 public disclosure need not await the passing of a statute. As Congress
in favor of the BJE. The MOA-AD further provides for the extent of the cannot revoke this principle, it is merely directed to provide for
territory of the Bangsamoro. It describes it as ―the land mass as well as ―reasonable safeguards.ǁ The complete and effective exercise of the right
the maritime, terrestrial, fluvial and alluvial domains, including to information necessitates that its complementary provision on public
the aerial domain and the atmospheric space above it, embracing the disclosure derive the same self-executory nature. Since both provisions
Mindanao-Sulu-Palawan geographic region. With regard to governance, go hand-in-hand, it is absurd to say that the broader right to information
on the other hand, a shared responsibility and authority between the on matters of public concern is already enforceable while the correlative
Central Government and BJE was provided. The relationship was duty of the State to disclose its transactions involving public interest is
described as ―associative. With the formulation of the MOA-AD, not enforceable until there is an enabling law. Respondents cannot thus
petitioners aver that the negotiation and finalization of the MOA-AD point to the absence of an implementing legislation as an excuse in not
violates constitutional and statutory provisions on public consultation, as effecting such policy. An essential element of these freedoms is to keep
mandated by Executive Order No. 3, and right to information. They open a continuing dialogue or process of communication between the
further contend that it violates the Constitution and laws. Hence, the filing government and the people. It is in the interest of the State that the
of the petition. channels for free political discussion be maintained to the end that the
ISSUES: government may perceive and be responsive to the people‘s will.
1) Whether or not the MOA-AD violates constitutional and statutory Envisioned to be corollary to the twin rights to information and disclosure
provisions on public consultation and right to information 2) Whether or is the design for feedback mechanisms. The imperative of a
not the MOA-AD violates the Constitution and the laws. public consultation, as a species of the right to information, is evident in
the ―marching ordersǁ to respondents. The mechanics for the duty to as a unifying link to the different provisions of the MOA-AD, namely, the
disclose information and to conduct public consultation regarding the international law concept of association. Significantly, the MOA-AD
peace agenda and process is manifestly provided by E.O. No. 3. The explicitly alludes to this concept, indicating that the Parties actually
preambulatory clause of E.O. No. 3 declares that there is a need to further framed its provisions with it in mind. Association is referred to in
enhance the contribution of civil society to the comprehensive peace paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and
process by institutionalizing the people‘s participation. One of the three paragraph 4 on GOVERNANCE. It is in the last mentioned provision,
underlying principles of the comprehensive peace process is that it however, that the MOA-AD most clearly uses it to describe the
―should be community-based, reflecting the sentiments, values and envisioned relationship between the BJE and the Central Government.
principles important to all Filipinos and ―shall be defined not by the 4. The relationship between the Central Government and the Bangsamoro
government alone, nor by the different contending groups only, but by all juridical entity shall be associative characterized by shared authority and
Filipinos as one community. Included as a component of the responsibility with a structure of governance based on executive,
comprehensive peace process is consensus-building and empowerment legislative, judicial and administrative institutions with defined powers
for peace, which includes ―continuing consultations on both national and functions in the comprehensive compact. A period of transition shall
and local levels to build consensus for a peace agenda and process, and be established in a comprehensive peace compact specifying the
the mobilization and facilitation of people‘s participation in the peace relationship between the Central Government and the BJE. The nature of
process.Clearly, E.O. No. 3 contemplates not just the conduct of a the ―associative relationship may have been intended to be defined more
plebiscite to effectuate “continuing” consultations, contrary to precisely in the still to be forged Comprehensive Compact. Nonetheless,
respondents’ position that plebiscite is “more than given that there is a concept of ―association in international law, and the
sufficient consultation.Further, E.O. No. 3 enumerates the functions and MOA-AD – by its inclusion of international law instruments in its TOR–
responsibilities of the PAPP, one of which is to ―conduct regular placed itself in an international legal context, that concept of association
dialogues with the National Peace Forum (NPF) and other peace partners may be brought to bear in understanding the use of the term ―associative
to seek relevant information, comments, recommendations as well as to in the MOA-AD. The MOA-AD contains many provisions which are
render appropriate and timely reports on the progress of the consistent with the international legal concept of association, specifically
comprehensive peace process. E.O. No. 3 mandates the establishment of the following: the BJE‘s capacity to enter into economic and trade
the NPF to be ―the principal forum for the Presidential Adviser on Peace relations with foreign countries, the commitment of the Central
Progress (PAPP) to consult with and seek advi[c]e from the Government to ensure the BJE‘s participation in meetings and events in
peace advocates, peace partners and concerned sectors of society on both the ASEAN and the specialized UN agencies, and the continuing
national and local levels, on the implementation of the comprehensive responsibility of the Central Government over external defense.
peace process, as well as for government[-]civil society dialogue and Moreover, the BJE‘s right to participate in Philippine official missions
consensus-building on peace agenda and initiatives. In fine, E.O. No. 3 bearing on negotiation of border agreements, environmental protection,
establishes petitioners’ right to be consulted on the peace agenda, as a and sharing of revenues pertaining to the bodies of water adjacent to or
corollary to the constitutional right to information and disclosure. In between the islands forming part of the ancestral domain, resembles the
general, the objections against the MOA-AD center on the extent of the right of the governments of FSM and the Marshall Islands to be consulted
powers conceded therein to the BJE. Petitioners assert that the powers by the U.S. government on any foreign affairs matter affecting
granted to the BJE exceed those granted to any local government under them. These provisions of the MOA indicate, among other things, that the
present laws, and even go beyond those of the present ARMM. Before Parties aimed to vest in the BJE the status of an associated state or, at any
assessing some of the specific powers that would have been vested in the rate, a status closely approximating it. The concept of association is not
BJE, however, it would be useful to turn first to a general idea that serves recognized under the present Constitution. No province, city, or
municipality, not even the ARMM, is recognized under our laws as that it is covered by the term ―autonomous region in the constitutional
having an ―associativeǁ relationship with the national government. provision just quoted, the MOA-AD would still be in conflict with it.
Indeed, the concept implies powers that go beyond anything ever granted Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the
by the Constitution to any local or regional government. It also implies present geographic area of the ARMM and, in addition, the municipalities
the recognition of the associated entity as a state. The Constitution, of Lanao del Norte which voted for inclusion in the ARMM during the
however, does not contemplate any state in this jurisdiction other than the 2001 plebiscite – Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal
Philippine State, much less does it provide for a transitory status that aims – are automatically part of the BJE without need of another plebiscite, in
to prepare any part of Philippine territory for independence. contrast to the areas under Categories A and B mentioned earlier in the
Even the mere concept animating many of the MOA-AD‘s provisions, overview. That the present components of the ARMM and the above-
therefore, already requires for its validity the amendment of constitutional mentioned municipalities voted for inclusion therein in 2001, however,
provisions, specifically the following provisions of Article X: does not render another plebiscite unnecessary under the Constitution,
SECTION 1. The territorial and political subdivisions of the Republic of precisely because what these areas voted for then was their inclusion in
the Philippines are the provinces, cities, municipalities, and barangays. the ARMM, not the BJE.
There shall be autonomous regions in Muslim Mindanao and the Article II, Section 22 of the Constitution must also be amended if the
Cordilleras as hereinafter provided. SECTION 15. There shall be created scheme envisioned in the MOA-AD is to be effected. That constitutional
autonomous regions in Muslim Mindanao and in the Cordilleras provision states: ―The State recognizes and promotes the rights of
consisting of provinces, cities, municipalities, and geographical areas indigenous cultural communities within the framework of national unity
sharing common and distinctive historical and cultural heritage, economic and development. An associative arrangement does not uphold national
and social structures, and other relevant characteristics within the unity. While there may be a semblance of unity because of the associative
framework of this Constitution and the national sovereignty as well as ties between the BJE and the national government, the act of placing a
territorial integrity of the Republic of the Philippines. portion of Philippine territory in a status which, in international practice,
It is not merely an expanded version of the ARMM, the status of its has generally been a preparation for independence, is certainly not
relationship with the national government being fundamentally different conducive to national unity.
from that of the ARMM. Indeed, BJE is a state in all but name as it meets The MOA-AD cannot be reconciled with the present Constitution and
the criteria of a state laid down in the Montevideo Convention, namely, a laws. Not only its specific provisions but the very concept underlying
permanent population, a defined territory, a government, and a capacity them, namely, the associative relationship envisioned between the GRP
to enter into relations with other states. and the BJE, are unconstitutional, for the concept presupposes that the
The defining concept underlying the relationship between the national associated entity is a state and implies that the same is on its way to
government and the BJE being itself contrary to the present Constitution, independence.
it is not surprising that many of the specific provisions of the M OA-AD While there is a clause in the MOA-AD stating that the provisions thereof
on the formation and powers of the BJE are in conflict with the inconsistent with the present legal framework will not be effective until
Constitution and the laws. Article X, Section 18 of the Constitution that framework is amended, the same does not cure its defect. The
provides that ―[t]he creation of the autonomous region shall be effective inclusion of provisions in the MOA-AD establishing an associative
when approved by a majority of the votes cast by the constituent units in relationship between the BJE and the Central Government is, itself, a
a plebiscite called for the purpose, provided that only provinces, cities, violation of the Memorandum of Instructions from the President dated
and geographic areas voting favorably in such plebiscite shall be included March 1, 2001, addressed to the government peace panel. Moreover, as
in the autonomous region. the clause is worded, it virtually guarantees that the necessary
The BJE is more of a state than an autonomous region. But even assuming amendments to the Constitution and the laws will eventually be put in
place. Neither the GRP Peace Panel nor the President herself is authorized Bayan Muna vs Romulo
to make such a guarantee. Upholding such an act would amount to G. R. No. 159618, February 01, 2011
authorizing a usurpation of the constituent powers vested only in Facts:
Congress, a Constitutional Convention, or the people themselves through Petitioner Bayan Muna is a duly registered party-list group established
the process of initiative, for the only way that the Executive can ensure to represent the marginalized sectors of society. Respondent Blas F.
the outcome of the amendment process is through an undue influence or Ople, now deceased, was the Secretary of Foreign Affairs during the
interference with that process. period material to this case. Respondent Alberto Romulo was impleaded
in his capacity as then Executive Secretary.
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. As of the
filing of the instant petition, only 92 out of the 139 signatory countries
appear to have completed the ratification, approval and concurrence
process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US
Embassy Note No. 0470 to the Department of Foreign Affairs (DFA)
proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N
BFO-028-03, hereinafter), the RP, represented by then DFA Secretary
Ople, agreed with and accepted the US proposals embodied under the
US Embassy Note adverted to and put in effect the Agreement with the
US government. In esse, the Agreement aims to protect what it refers to
and defines as “persons” of the RP and US from frivolous and
harassment suits that might be brought against them in international
tribunals.8 It is reflective of the increasing pace of the strategic security
and defense partnership between the two countries. As of May 2, 2003,
similar bilateral agreements have been effected by and between the US
and 33 other countries.
The Agreement pertinently provides as follows: be struck down as unconstitutional, or at least declared as without force
1. For purposes of this Agreement, “persons” are current or former and effect.
Government officials, employees (including contractors), or military Issue: Whether or not the RP-US NON SURRENDER AGREEMENT
personnel or nationals of one Party. is void ab initio for contracting obligations that are either immoral or
2. Persons of one Party present in the territory of the other shall not, otherwise at variance with universally recognized principles of
absent the express consent of the first Party, international law.
(a) be surrendered or transferred by any means to any international Ruling: The petition is bereft of merit.
tribunal for any purpose, unless such tribunal has been established by Validity of the RP-US Non-Surrender Agreement
the UN Security Council, or Petitioner’s initial challenge against the Agreement relates to form, its
(b) be surrendered or transferred by any means to any other entity or threshold posture being that E/N BFO-028-03 cannot be a valid medium
third country, or expelled to a third country, for the purpose of surrender for concluding the Agreement.
to or transfer to any international tribunal, unless such tribunal has been Petitioners’ contention––perhaps taken unaware of certain well-
established by the UN Security Council. recognized international doctrines, practices, and jargons––is untenable.
3. When the [US] extradites, surrenders, or otherwise transfers a person One of these is the doctrine of incorporation, as expressed in Section 2,
of the Philippines to a third country, the [US] will not agree to the Article II of the Constitution, wherein the Philippines adopts the
surrender or transfer of that person by the third country to any generally accepted principles of international law and international
international tribunal, unless such tribunal has been established by the jurisprudence as part of the law of the land and adheres to the policy of
UN Security Council, absent the express consent of the Government of peace, cooperation, and amity with all nations. An exchange of notes
the Republic of the Philippines [GRP]. falls “into the category of inter-governmental agreements,” which is an
4. When the [GRP] extradites, surrenders, or otherwise transfers a internationally accepted form of international agreement. The United
person of the [USA] to a third country, the [GRP] will not agree to the Nations Treaty Collections (Treaty Reference Guide) defines the term as
surrender or transfer of that person by the third country to any follows:
international tribunal, unless such tribunal has been established by the An “exchange of notes” is a record of a routine agreement, that has
UN Security Council, absent the express consent of the Government of many similarities with the private law contract. The agreement consists
the [US]. of the exchange of two documents, each of the parties being in the
5. This Agreement shall remain in force until one year after the date on possession of the one signed by the representative of the other. Under
which one party notifies the other of its intent to terminate the the usual procedure, the accepting State repeats the text of the offering
Agreement. The provisions of this Agreement shall continue to apply State to record its assent. The signatories of the letters may be
with respect to any act occurring, or any allegation arising, before the government Ministers, diplomats or departmental heads. The technique
effective date of termination. of exchange of notes is frequently resorted to, either because of its
In response to a query of then Solicitor General Alfredo L. Benipayo on speedy procedure, or, sometimes, to avoid the process of legislative
the status of the non-surrender agreement, Ambassador Ricciardone approval.
replied in his letter of October 28, 2003 that the exchange of diplomatic In another perspective, the terms “exchange of notes” and “executive
notes constituted a legally binding agreement under international law; agreements” have been used interchangeably, exchange of notes being
and that, under US law, the said agreement did not require the advice considered a form of executive agreement that becomes binding through
and consent of the US Senate. executive action. On the other hand, executive agreements concluded by
In this proceeding, petitioner imputes grave abuse of discretion to the President “sometimes take the form of exchange of notes and at
respondents in concluding and ratifying the Agreement and prays that it other times that of more formal documents denominated ‘agreements’ or
‘protocols.’” As former US High Commissioner to the Philippines Philippines or in the US; or with the consent of the RP or the US, before
Francis B. Sayre observed in his work, The Constitutionality of Trade the ICC, assuming, for the nonce, that all the formalities necessary to
Agreement Acts: bind both countries to the Rome Statute have been met. For perspective,
The point where ordinary correspondence between this and other what the Agreement contextually prohibits is the surrender by either
governments ends and agreements – whether denominated executive party of individuals to international tribunals, like the ICC, without the
agreements or exchange of notes or otherwise – begin, may sometimes consent of the other party, which may desire to prosecute the crime
be difficult of ready ascertainment. x x x under its existing laws. With the view we take of things, there is nothing
It is fairly clear from the foregoing disquisition that E/N BFO-028-03–– immoral or violative of international law concepts in the act of the
be it viewed as the Non-Surrender Agreement itself, or as an integral Philippines of assuming criminal jurisdiction pursuant to the non-
instrument of acceptance thereof or as consent to be bound––is a surrender agreement over an offense considered criminal by both
recognized mode of concluding a legally binding international written Philippine laws and the Rome Statute.
contract among nations.
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.”63
The above argument is a kind of recycling of petitioner’s earlier
position, which, as already discussed, contends that the RP, by entering
into the Agreement, virtually abdicated its sovereignty and in the
process undermined its treaty obligations under the Rome Statute,
contrary to international law principles.
The Court is not persuaded. Suffice it to state in this regard that the non-
surrender 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.”
Petitioner, we believe, labors under the erroneous impression that the
Agreement would allow Filipinos and Americans committing high
crimes of international concern to escape criminal trial and punishment.
This is manifestly incorrect. Persons who may have committed acts
penalized under the Rome Statute can be prosecuted and punished in the
 CHINA NATIONAL MACHINERY & EQUIPMENT CORP. On 13 February 2006, respondents filed a Complaint for Annulment of
(GROUP), Petitioner, Contract and Injunction with Urgent Motion for Summary Hearing to
vs. Determine the Existence of Facts and Circumstances Justifying the
HON. CESAR D. SANTAMARIA, in his official capacity as Presiding Issuance of Writs of Preliminary Prohibitory and Mandatory Injunction
Judge of Branch 145, Regional Trial Court of Makati City, et and/or TRO against CNMEG, the Office of the Executive Secretary, the
al., Respondents DOF, the Department of Budget and Management, the National
Facts Economic Development Authority and Northrail. RTC Br. 145 issued an
On 14 September 2002, petitioner China National Machinery & Order dated 17 March 2006 setting the case for hearing on the issuance
Equipment Corp. (Group) (CNMEG), represented by its chairperson, Ren of injunctive reliefs. On 29 March 2006, CNMEG filed an Urgent Motion
Hongbin, entered into a Memorandum of Understanding with the North for Reconsideration of this Order. Before RTC Br. 145 could rule thereon,
Luzon Railways Corporation (Northrail), represented by its president, CNMEG filed a Motion to Dismiss dated 12 April 2006, arguing that the
Jose L. Cortes, Jr. for the conduct of a feasibility study on a possible trial court did not have jurisdiction over (a) its person, as it was an agent
railway line from Manila to San Fernando, La Union (the Northrail of the Chinese government, making it immune from suit, and (b) the
Project). subject matter, as the Northrail Project was a product of an executive
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and agreement.
the Department of Finance of the Philippines (DOF) entered into a On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying
Memorandum of Understanding (Aug 30 MOU), wherein China agreed CNMEG’s Motion to Dismiss and setting the case for summary hearing
to extend Preferential Buyer’s Credit to the Philippine government to to determine whether the injunctive reliefs prayed for should be
finance the Northrail Project. The Chinese government designated EXIM issued. CNMEG then filed a Motion for Reconsideration, which was
Bank as the lender, while the Philippine government named the DOF as denied by the trial court in an Order dated 10 March 2008. Thus, CNMEG
the borrower. Under the Aug 30 MOU, EXIM Bank agreed to extend an filed before the CA a Petition for Certiorari with Prayer for the Issuance
amount not exceeding USD 400,000,000 in favor of the DOF, payable in of TRO and/or Writ of Preliminary Injunction dated 4 April 2008.
20 years, with a 5-year grace period, and at the rate of 3% per annum. In the assailed Decision dated 30 September 2008, the appellate court
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang dismissed the Petition for Certiorari. Subsequently, CNMEG filed a
Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose Isidro Motion for Reconsideration, which was denied by the CA in a Resolution
Camacho (Sec. Camacho) informing him of CNMEG’s designation as the dated 5 December 2008.
Prime Contractor for the Northrail Project. Issue
On 30 December 2003, Northrail and CNMEG executed a Contract Whether CNMEG is entitled to immunity, precluding it from being sued
Agreement for the construction of Section I, Phase I of the North Luzon before a local court.
Railway System from Caloocan to Malolos on a turnkey basis (the Ruling
Contract Agreement). The contract price for the Northrail Project was There are two conflicting concepts of sovereign immunity, each widely
pegged at USD 421,050,000. held and firmly established. According to the classical or absolute
On 26 February 2004, the Philippine government and EXIM Bank entered theory, a sovereign cannot, without its consent, be made a respondent in
into a counterpart financial agreement – Buyer Credit Loan Agreement the courts of another sovereign. According to the newer or restrictive
No. BLA 04055 (the Loan Agreement). In the Loan Agreement, EXIM theory, the immunity of the sovereign is recognized only with regard to
Bank agreed to extend Preferential Buyer’s Credit in the amount of USD public acts or acts jure imperii of a state, but not with regard to private
400,000,000 in favor of the Philippine government in order to finance the acts or acts jure gestionis.
construction of Phase I of the Northrail Project.
Since the Philippines adheres to the restrictive theory, it is crucial to an original charter. As a result, it has the capacity to sue and be sued under
ascertain the legal nature of the act involved – whether the entity claiming Section 36 of the Corporation Code.
immunity performs governmental, as opposed to proprietary, functions. An agreement to submit any dispute to arbitration may be construed as
The restrictive application of State immunity is proper only when the an implicit waiver of immunity from suit.
proceedings arise out of commercial transactions of the foreign sovereign, In the United States, the Foreign Sovereign Immunities Act of 1976
its commercial activities or economic affairs. Stated differently, a State provides for a waiver by implication of state immunity. In the said law,
may be said to have descended to the level of an individual and can thus the agreement to submit disputes to arbitration in a foreign country is
be deemed to have tacitly given its consent to be sued only when it enters construed as an implicit waiver of immunity from suit. Although there is
into business contracts. It does not apply where the contract relates to the no similar law in the Philippines, there is a reason to apply the legal
exercise of its sovereign functions. reasoning behind the waiver in this case.
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.
The use of the term “state corporation” to refer to CNMEG was only
descriptive of its nature as a government-owned and/or -controlled
corporation, and its assignment as the Primary Contractor did not imply
that it was acting on behalf of China in the performance of the latter’s
sovereign functions. To imply otherwise would result in an absurd
situation, in which all Chinese corporations owned by the state would be
automatically considered as performing governmental activities, even if
they are clearly engaged in commercial or proprietary pursuits.
Even assuming arguendo that CNMEG performs governmental
functions, such claim does not automatically vest it with immunity. This
view finds support in Malong v. Philippine National Railways, in which
this Court held that “immunity from suit is determined by the character of
the objects for which the entity was organized.”
In the case at bar, it is readily apparent that CNMEG cannot claim
immunity from suit, even if it contends that it performs governmental
functions. Its designation as the Primary Contractor does not
automatically grant it immunity, just as the term “implementing agency”
has no precise definition for purposes of ascertaining whether GTZ was
immune from suit. Although CNMEG claims to be a government-owned
corporation, it failed to adduce evidence that it has not consented to be
sued under Chinese law. Thus, following this Court’s ruling in Deutsche
Gesellschaft, in the absence of evidence to the contrary, CNMEG is to be
presumed to be a government-owned and -controlled corporation without
 Discussion. Chief Justice Fuller who had a dissenting opinion which was
not published in this casebook argued that the captured vessels were of
The Paquete Habana such a size and range as to not fall within the exemption. He further
argued that the exemption in any case had not become a customary rule
Citation. The Paquete Habana, 175 U.S. 677, 20 S. Ct. 290, 44 L. Ed. of international law, but was only an act of grace that had not been
320, 1900 U.S. LEXIS 1714 (U.S. Jan. 8, 1900) authorized by the President.
Brief Fact Summary. The argument of the fishermen whose vessels was
seized by the U.S (P) officials was that international law exempted coastal
fishermen from capture as prizes of war.
Synopsis of Rule of Law. The argument of the fishermen whose vessels
was seized by the U.S (P) officials was that international law exempted
coastal fishermen from capture as prizes of war.
Facts. This appeal of a district court decree, which condemned two
fishing vessels and their cargoes as prizes of war, was brought by the
owners (D) of two separate fishing vessels. Each of the vessel running in
and out of Havana and sailing under the Spanish flag was a fishing smack
which regularly engaged in fishing on the coast of Cuba. Inside the vessels
were fresh fish which the crew had caught.
The owners of the vessels were not aware of the existence of a war until
they were stopped by U.S. (P) squadron. No incriminating material like
arms were found on the fishermen and they did not make any attempt to
run the blockade after learning of its existence not did they resist their
arrest. When the owners (D) appealed, they argued that both customary
international law and writings of leading international scholars
recognized an exemption from seizure at wartime of coastal fishing
vessels.
Issue. Are coastal fishing vessels with their cargoes and crews excluded
from prizes of war?
Held. (Gray, J.). Yes. Coastal fishing vessels with their cargoes and crews
are excluded from prizes of war. The doctrine that exempts coastal
fishermen with their vessels and crews from capture as prizes of war has
been known by the U.S. (P) from the time of the War of Independence
and has been recognized explicitly by the French and British
governments. It is an established rule of international law that coastal
fishing vessels with their equipment and supplies, cargoes and crews,
unarmed and honestly pursuing their peaceful calling of catching and
bringing in fish are exempt from capture as prizes of war. Reversed.
NORTH SEA CONTINENTAL SHELF CASES (SUMMARY) their countries, by agreement, after the determination of the Court on the
International Court of Justice Contentious Case: The North Sea applicable principles.
Continental Shelf Cases (Germany/Denmark; Germany/Netherlands). Facts of the Case:
Year of Decision: 1969. Netherlands and Denmark had drawn partial boundary lines based on the
Note: This post discusses only aspects of the case related to treaty equidistance principle (A-B and C-D). An agreement on further
and customary international law. prolongation of the boundary proved difficult because Denmark and
Overview: The jurisprudence of the North Sea Continental Shelf Cases Netherlands wanted this prolongation to take place based on the
sets out the dual requirement for the formation of customary international equidistance principle (B-E and D-E) where as Germany was of the view
law: (1) State practice (the objective element) and (2) opinio juris (the that, together, these two boundaries would produce an inequitable result
subjective element). In these cases, the Court explained the criteria for her. Germany stated that due to its concave coastline, such a line
necessary to establish State practice – widespread and representative would result in her loosing out on her share of the continental shelf based
participation. It highlighted that the practices of those States whose on proportionality to the length of its North Sea coastline. The Court had
interests were specially affected by the custom were especially relevant to decide the principles and rules of international law applicable to this
in the formation of customary law. It also held that uniform delimitation. In doing so, the Court had to decide if the principles
and consistent practice was necessary to demonstrate opinio juris – espoused by the parties were binding on the parties either through treaty
opinio juris is the belief that State practice amounts to a legal obligation. law or customary international law.
The North Sea Continental Self Cases also dispelled the myth that Questions before the Court (as relevant to this post):
duration of the practice (i.e. the number of years) was an essential factor Is Germany under a legal obligation to accept the equidistance-special
in forming customary international law. circumstances principle, contained in Article 6 of the Geneva Convention
The case involved the delimitation of the continental shelf areas in the on the Continental Shelf of 1958, either as a customary international law
North Sea between Germany and Denmark and Germany and rule or on the basis of the Geneva Convention?
Netherlands beyond the partial boundaries previously agreed upon by The Court’s Decision:
these States. The parties requested the Court to decide the principles and The use of the equidistance method had not crystallised into customary
rules of international law that are applicable to the above delimitation law and the method was not obligatory for the delimitation of the areas in
because the parties disagreed on the applicable principles or rules of the North Sea related to the present proceedings.
delimitation. Netherlands and Denmark relied on the principle of Relevant Findings of the Court:
equidistance (the method of determining the boundaries in such a way 1. Nature of the treaty obligation: Is the 1958 Geneva Convention, and in
that every point in the boundary is equidistant from the nearest points of particular Article 6, binding on Germany?
the baselines from which the breath of the territorial sea of each State is 1. Article 6 of the Geneva Convention stated that unless the parties had
measured). Germany sought to get a decision in favour of the notion that already agreed on a method for delimitation or unless special
the delimitation of the relevant continental shelf was governed by the circumstances exist, the equidistance method would apply. Germany had
principle that each coastal state is entitled to a just and equitable share signed, but not ratified, the Geneva Convention, while Netherlands and
(hereinafter called just and equitable principle/method). Contrary to Denmark were parties to the Convention. The latter two States argued that
Denmark and Netherlands, Germany argued that the principle of while Germany is not a party to the Convention (not having ratified it),
equidistance was neither a mandatory rule in delimitation of the she was still bound by Article 6 of the Convention because:
continental shelf nor a rule of customary international law that was “…(1) by conduct, by public statements and proclamations, and in
binding on Germany. The Court was not asked to delimit because the other ways, the Republic has unilaterally assumed the obligations of the
parties had already agreed to delimit the continental shelf as between Convention; or has manifested its acceptance of the conventional
regime; or has recognized it as being generally applicable to the Convention. The equidistance–special circumstances rule was not binding
delimitation of continental shelf areas… on Germany by way of treaty law.
(2) the Federal Republic had held itself out as so assuming, accepting or 2. Nature of the customary international law obligation: Is Germany
recognizing, in such a manner as to cause other States, and in particular bound by the provisions of Article 6 of the Geneva Convention in so far
Denmark and the Netherlands, to rely on the attitude thus taken up” (the as they reflect customary international law?
latter is called the principle of estoppel). 6. Netherlands and Denmark argued that Article 6 also reflected ‘the
2. The Court rejected the first argument. It said that only a ‘very definite accepted rule of general international law on the subject of continental
very consistent course of conduct on the part of a State would allow the shelf delimitation’ and that it existed independently of the Convention.
Court to presume that the State had somehow become bound by a treaty Therefore, they argued, Germany is bound by the subject matter of Article
(by a means other than in the formal manner: i.e. ratification) when the 6 by way of customary international law.
State was ‘at all times fully able and entitled to…’ accept the treaty 7. To decide if the equidistance principle bound Germany by way of
commitments in a formal manner. The Court held that Germany had not customary international law, the Court examined (1) the status of the
unilaterally assumed obligations under the Convention. The court also principle contained in Article 6 as it stood when the Convention was being
took notice of the fact that even if Germany ratified the treaty, she had the drawn up; and (2) its status after the Convention came into force.
option of entering into a reservation on Article 6, following which that (a) What was the customary law status of Article 6 at the time of drafting
particular article would no longer be applicable to Germany (in other the Convention?
words, even if one were to assume that Germany had intended to become 8. The Court held that the principle of equidistance, as contained in
a party to the Convention, it does not presuppose that it would have also Article 6 did not form a part of existing or emerging customary
undertaken those obligations contained in Article 6). international law at the time of drafting the Convention. The Court
3. Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), supported this finding based on (1) the hesitation expressed by the drafters
which came into force in 1980, discusses in more detail treaty obligations of the Convention, the International Law Commission, on the inclusion
of third States (those States who are not parties to the treaty). It clearly of Article 6 into the Convention and (2) the fact that reservations to
stipulates that obligations arise for third States from a provision of a treaty Article 6 was permissible under the Convention. The Court held:
only if (1) the actual parties to the treaty intended the provision to create “… Article 6 is one of those in respect of which, under the reservations
obligations for third States; and (2) third State expressly accept article of the Convention (Article 12) reservations may be made by any
those obligations in writing (Article 35 of the VCLT). The VCLT was not State on signing, ratifying or acceding, – for speaking generally, it is a
in force when the Court deliberated on this case. However, as seen above, characteristic of purely conventional rules and obligations that, in
the Court’s position is consistent the VCLT. (See the relevant provisions regard to them, some faculty of making unilateral reservations may,
of the Vienna Convention on the Law of Treaties). within certain limits, be admitted; whereas this cannot be so in the case
4. The Court held that the existence of a situation of estoppel would have of general or customary law rules and obligations which, by their very
allowed Article 6 to become binding on Germany – but held that nature, must have equal force for all members of the international
Germany’s action did not support an argument for estoppel. The Court community, and cannot therefore be the subject of any right of unilateral
also held that the mere fact that Germany may not have specifically exclusion exercisable at will by any one of them in its own favor…. The
objected to the equidistance principle as contained in Article 6, is not normal inference would therefore be that any articles that do not figure
sufficient to state that the principle is now binding upon it. among those excluded from the faculty of reservation under Article 12,
5. In conclusion, the Court held that Germany had not acted in any manner were not regarded as declaratory of previously existing or emergent
so as to incur obligations contained in Article 6 of the Geneva rules of law …” (see para 65 for a counter argument and the Court’s
careful differentiation)
(b) Did the provisions in Article 6 on the equidistance principle attain the to show a general recognition that a rule of law or legal obligation is
customary law status after the Convention came into force? involved.”
9. The Court then examined whether the rule contained in Article 6 had Opinio juris
become customary international law after the Convention entered into 13. Opinio juris is reflected in acts of States (Nicaragua Case) or in
force – either due the Convention itself (i.e., if enough States had ratified omissions (Lotus case), in so far as those acts or omissions
the Convention in a manner so as to fulfil the criteria specified below), or were done following a belief that the said State is obligated by law to act
because of subsequent State practice (i.e. even if an adequate number of or refrain from acting in a particular way. (For more on opinio
States had not ratified the Convention, one could find sufficient State juris click here).
practice to meet the criteria below). The Court held that Article 6 of the 14. The Court examined 15 cases where States had delimited their
Convention had not attained a customary law status. (Compare the 1958 boundaries using the equidistance method, after the Convention came into
Geneva Convention with the four Geneva Conventions on 1949 relating force (paras. 75 -77). The Court concluded that even if there were some
to international humanitarian law in terms of the latter’s authority as a State practice in favour of the equidistance principle, the Court could not
pronouncement of customary international law). deduct the necessary opinio juris from this State practice. The North Sea
10. For a customary rule to emerge the Court held that it needed: (1) very Continental Shelf Cases confirmed that both State practice (the objective
widespread and representative participation in the Convention, including element) and opinio juris (the subjective element) are essential pre-
States whose interests were specially affected (in this case, they were requisites for the formation of a customary law rule. This is consistent
coastal States) (i.e. generality); and (2) virtually uniform practice (i.e. with Article 38 (1) (b) of the Statute of the ICJ. The Court explained the
consistent and uniform usage) undertaken in a manner that concept of opinio jurisand the difference between customs (i.e. habits)
demonstrates (3) a general recognition of the rule of law or legal and customary law:
obligation (i.e. opinio juries). In the North Sea Continental Shelf cases the “Not only must the acts concerned amount to a settled practice, but they
court held that the passage of a considerable period of time was must also be such, or be carried out in such a way, as to be evidence of
unnecessary (i.e. duration) for the formation of a customary law. a belief that this practice is rendered obligatory by the existence of a
Widespread and representative participation rule of law requiring it. The need for such a belief, i.e, the existence of a
11. The Court held that the first criteria was not met. The number of subjective element, is implicit in the very notion of the opinio juris sive
ratifications and accessions to the Convention (39 States) were not necessitatis. The States concerned must therefore feel that they are
adequately representative or widespread. conforming to what amounts to a legal obligation. The frequency, or
Duration even habitual character of the acts is not in itself enough. There are
12. The Court held that the duration taken for a customary law rule to many international acts, e.g., in the field of ceremonial and protocol,
emerge is not as important as widespread and representative participation, which are performed almost invariably, but which are motivated only by
uniform usage, and the existence of an opinio juris. It held that: considerations of courtesy, convenience or tradition, and not by any
“Although the passage of only a short period of time (in this case, 3 – 5 sense of legal duty.” (Para 77).
years) is not necessarily, or of itself, a bar to the formation of a new rule 15. The Court concluded that the equidistance principle was not binding
of customary international law on the basis of what was originally a on Germany by way of treaty or customary international law. In the case
purely conventional rule, an indispensable requirement would be that of the latter, the principle had not attained a customary international law
within the period in question, short though it might be, State practice, status at the time of the entry into force of the Geneva Convention or
including that of States whose interests are specially affected, should thereafter. As such, the Court held that the use of the equidistance method
have been both extensive and virtually uniform in the sense of the is not obligatory for the delimitation of the areas concerned in the present
provision invoked and should moreover have occurred in such a way as proceedings.
© Ruwanthika Gunaratne at https://ruwanthikagunaratne.wordpress.com,
2008 – 2017. Unauthorized use and/or duplication of this material without NICARAGUA VS THE UNITED STATES: USE OF FORCE AND
express and written permission from this blog’s author and/or owner, SELF-DEFENSE (1 OF 3)
or without attribution, is strictly prohibited. Excerpts and links may be
used, provided that full and clear credit is given to Ruwanthika Gunaratne International Court of Justice Contentious Case: Case Concerning
with appropriate and specific direction to the original content. the Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua vs United States)
Year of Decision: 1986.
Note: This post will discuss the International Court of Justice’s (ICJ)
discussions on the use of force and self-defence. If you would like to read
about the ICJ’s discussions on jurisdictional issues relating to the
multilateral treaty reservation of the United States and the ICJ’s reliance
on customary law, please click here.
For a diagram on some of the points discussed here, click here. It is
recommended to use the diagram alongside this blog post.
Overview:
The case involved military and paramilitary activities carried out by the
United States against Nicaragua from 1981 to 1984. Nicaragua asked
the Court to find that these activities violated international law.
Facts of the Case:
In July 1979, the Government of President Somoza was replaced by a
government installed by Frente Sandinista de
Liberacion Nacional (FSLN). Supporters of the former Somoza
Government and former members of the National Guard opposed
the new government. The US – initially supportive of the new
government – changed its attitude when, according to the United States,
it found that Nicaragua was providing logistical support and weapons to
guerrillas in El Salvador. In April 1981 the United States stopped its aid
to Nicaragua and in September 1981, according to Nicaragua, the United
States “decided to plan and undertake activities directed against
Nicaragua”.
The armed activities against the new Government was carried out mainly
by (1) Fuerza Democratica Nicaragüense (FDN), which operated along
the border with Honduras, and
(2) Alianza Revolucionaria Democratica (ARDE), which operated along
the border with Costa Rica. Initial US support to these groups fighting
against the Nicaraguan Government (called “contras”) was covert. Later,
the United States officially acknowledged its support (for example: In
1983 budgetary legislation enacted by the United States Congress made it directed or authorized its aircrafts to fly over the territory of
specific provision for funds to be used by United States intelligence Nicaragua and because of acts referred to in (2) above?
agencies for supporting “directly or indirectly military or paramilitary 5. Did the United States breach its customary international law
operations in Nicaragua”). obligations not to violate the sovereignty of another State, not
Nicaragua also alleged that the United States is effectively in control of to intervene in its affairs, not to use force against another State
the contras, the United States devised their strategy and directed their and not to interrupt peaceful maritime commerce, when it laid
tactics, and that the contras were paid for and directly controlled by the mines in the internal waters and in the territorial sea of
United States. Nicaragua also alleged that some attacks against Nicaragua Nicaragua?
were carried out, directly, by the United States military – with the aim to The Court’s Decision:
overthrow the Government of Nicaragua. Attacks against Nicaragua The United States violated customary international law in relation to (1),
included the mining of Nicaraguan ports, and other attacks on ports, oil (2), (4) and (5) above. On (3), the Court found that the United States could
installations, and a naval base. Nicaragua alleged that aircrafts belonging not rely on collective self-defence to justify its use of force against
to the United States flew over Nicaraguan territory to gather intelligence, Nicaragua.
supply to the contras in the field, and to intimidate the population. Relevant Findings of the Court:
The United States did not appear before the ICJ at the merit stages, after 1. The Court held that the United States violated its customary
refusing to accept the ICJ’s jurisdiction to decide the case. The United international law obligation not to use force against another State
States at the jurisdictional phase of the hearing, however, stated that it when its activities with the contras resulted in the threat or use of
relied on an inherent right of collective self-defence guaranteed in A. 51 force (see paras 191-201).
of the UN Charter when it provided “upon request proportionate and The Court held that:
appropriate assistance…” to Costa Rica, Honduras, and El Salvador in § The prohibition on the use of force is found both in Article 2(4)
response to Nicaragua’s acts of aggression against those countries (paras of the Charter of the United Nations (UN Charter) and in
126, 128). customary international law.
Questions before the Court: § In a controversial finding the Court sub-classified the use of force
1. Did the United States violate its customary international law as:
obligation not to intervene in the affairs of another State, when (1) “most grave forms of the use of force” (i.e. those that constitute an
it trained, armed, equipped, and financed the contra forces or armed attack); and
when it encouraged, supported, and aided the military and (2) “other less grave forms” of the use of force (i.e. organizing,
paramilitary activities against Nicaragua? instigating, assisting, or participating in acts of civil strife and terrorist
2. Did the United States violate its customary international law acts in another State – when the acts referred to involve a threat or use
obligation not to use force against another State, when it of force, but not amounting to an armed attack). (Para 191),
directly attacked Nicaragua in 1983 and 1984 and when its § The United States violated the customary international law
activities in point (1) above resulted in the use of force? prohibition on the use of force when it laid mines in Nicaraguan
3. Can the military and paramilitary activities that the United ports. It also violated this prohibition when it attacked
States undertook in and against Nicaragua be justified as Nicaraguan ports, oil installations, and a naval base (see below).
collective self-defence? The United States could only justify its action on the basis of
4. Did the United States breach its customary international law collective self-defence, if certain criteria were met
obligation not to violate the sovereignty of another State, when (these criteria are discussed below).
 § The United States violated the customary international law classified as an armed attack had it been carried out by regular
prohibition on the use of force when it assisted the contras by forces.
“organizing or encouraging the organization of irregular forces § Assistance to rebels by providing weapons or logistical support
and armed bands… for incursion into the territory of another did not constitute an armed attack. Instead, it can be regarded as
state” and participated “in acts of civil strife…in another a threat or use of force or an intervention in the internal or
State” and when these acts involved the threat or use of force. external affairs of other States (see paras 195, 230).
§ The supply of funds to the contras did not violate the prohibition § Under Article 51 of the UN Charter and under CIL – self-defence
on the use of force. On the contrary, Nicaragua had previously is only available against a use of force that amounts to an armed
argued before the Court that the United States determined the attack (para 211).
timing of offensives against Nicaragua when it provided funds to
the contras. The Court held that “…it does not follow that each Note: In in the ICJ’s Case Concerning Oil Platforms and the ICJ’s
provision of funds by the United States was made to set in motion Advisory Opinion on the Legal Consequences of of the Construction of a
a particular offensive, and that that offensive was planned by the Wall in the Occupied Palestinian Territory (hereinafter called the
United States.” The Court held further that the arming and Palestine wall case) the ICJ confirmed the definition of an “armed
training of the contras and the supply of funds, in itself, only attack” as proposed in the Nicaragua case. Draft Articles on State
amounted to acts of intervention in the internal affairs of Responsibility, prepared by the International Law Commission, provides
Nicaragua and did not violate the prohibition on the use of significant guidance as to when acts of non-State actors may be
force (para 227) (again, this aspect will be discussed in detail attributed to States. These articles, together with recent State practice
below). relating attacks on terrorists operating from other countries may have
2. The Court held that the United States violated its customary widened the scope of an armed attack, and consequently, the right of self
international law obligation not to use force against another State defence, envisaged by the ICJ. (for example, see discussion surrounding
when it directly attacked Nicaragua in 1983 and 1984 (see paras 187 the United States’ attacks in Afghanistan and Iraq) See also a paper
– 201). by Max Plank Institute on this topic (2017).
Note: A controversial but interesting aspect of the Court’s judgement was
its definition of an armed attack. The Court held that an armed attack 3. The Court held that the United States could not justify its military and
included: paramilitary activities on the basis of collective self-defence.
(1) action by regular armed forces across an international border; and Note that Article 51 of the UN Charter sets out the treaty based
(2) “the sending by or on behalf of a State of armed bands, groups, requirements on the exercise of the right of self-defense. It states:
irregulars or mercenaries, which carry out acts of (sic) armed force “Nothing in the present Charter shall impair the inherent
against another State of such gravity as to amount to (inter alia) an right of individual or collectiveself-defence if an armed attack occurs
actual armed attack conducted by regular forces, or its (the State’s) against a Member of the United Nations, until the Security Council has
substantial involvement therein”. taken measures necessary to maintain international peace and security.
Note also that that he second point somewhat resembles Article 3(g) of Measures taken by Members in the exercise of this right of self-
the UNGA Resolution 3314 (XXIX) on the Definition of Aggression. defence shall be immediately reported to the Security Council.”
The Court further held that: The Court held that:
§ Mere frontier incidents will not considered as armed attacks, § Customary international law allows for exceptions to the
unless, because of its scale and effects, it would have been prohibition on the use of force, which includes the right to
individual or collective self-defence (see here for a difference
 between individual and collective self defense). The United Charter, it is to be expected that the conditions of the Charter should
States, at an earlier stage of the proceedings, had also agreed that be respected. Thus for the purpose of enquiry into the customary law
the UN Charter acknowledges the existence of this customary position, the absence of a report may be one of the factors indicating
international law right when it talks of the “inherent” right under whether the State in question was itself convinced that it was acting in
Article 51 of the Charter (para.193). self-defence (See paras 200, 232 -236)”.
§ When a State claims that it used force in collective self-defence, § The Court, then, looked extensively into the conduct of
the Court would examine the following: Nicaragua, El Salvador, Costa Rica, and Honduras to
(1) Whether the circumstances required for the exercise of self-defence determine if (1) an armed attack was undertaken by Nicaragua
existed; and against the three countries, which in turn would (2) necessitate
(2) Whether the steps taken by the State, which was acting in self- those countries to act in self-defence against Nicaragua (paras
defence, corresponds to the requirements of international law. 230 – 236). The Court noted that (1) none of the countries who
§ Under international law, several requirements must be met for a were allegedly subject to an armed attack by Nicaragua declared
State to exercise the right of individual or collective self- themselves as victims of an armed attack; (2) they did not request
defence: assistance from the United States to exercise its right of self-
(1) A State must have been the victim of an armed attack; defence; (3) the United States did not claim that when it used
(2) That State must declare itself as a victim of an armed attack. The force, it was acting under Article 51 of the UN Charter; and (4)
assessment on whether an armed attack had taken place or not, is done the United States did not report that it was acting in self-defense
by the State who was subjected to the attack. A third State cannot to the Security Council. The Court concluded that, based on the
exercise a right of collective self-defence based that third State’s own above, the United States cannot justify its use of force as
assessment; collective self-defence.
(3) In the case of collective self-defence, the victim State must § In any event, the Court held that the criteria relating to necessity
request for assistance. The Court held that “there is no rule permitting and proportionality, that is required to be met when using force
the exercise of collective self-defence in the absence of a request by the in self-defence – were also not fulfilled (para 237).
State which regards itself as the victim of an armed attack”; 4. The Court held that the United States breached its CIL obligation not
(4) A State that is attacked, does not, under customary international to intervene in the affairs of another State, when it trained, armed,
law, have the same obligation as under Article 51 of the UN Charter to equipped and financed the contra forces or encouraged, supported and
report to the Security Council that an armed attack happened – but the aided the military and paramilitary activities against Nicaragua.
Court held that “the absence of a report may be one of the factors The Court held that:
indicating whether the State in question was itself convinced that it was § The principle of non-intervention requires that every State has a
acting in self-defence” (see paras 200, 232 -236). right to conduct its affairs without outside interference. In other
“…Whatever influence the Charter may have had on customary words, the principle “…forbids States or groups of States to
international law in these matters, it is clear that in customary intervene directly or indirectly in internal or external affairs of
international law it is not a condition of the lawfulness of the use of force other States.” This is a corollary of the principle of sovereign
in self-defence that a procedure so closely dependent on the content of a equality of States. The Court held that:
treaty commitment and of the institutions established by it, should have “A prohibited intervention must accordingly be one bearing on matters
been followed. On the other hand, if self-defence is advanced as a in which each State is permitted, by the principle of State sovereignty to
justification for measures which would otherwise be in breach both of the decide freely. One of these is the choice of a political, economic, social
principle of customary international law and of that contained in the and cultural system, and the formulation of foreign policy. Intervention
is wrongful when it uses methods of coercion in regard to such choices, AMJIL 86). The Court concluded that “a number of military and
which must remain free ones. The element of coercion, which defines, paramilitary operations of the contras were decided and planned,
and indeed forms the very essence of, prohibited intervention, is if not actually by United States advisers, then at least in close
particularly obvious in the case of an intervention which uses force, collaboration with them, and on the basis of the intelligence and
either in the direct form of military action, or in the indirect form of logistic support which the United States was able to offer,
support for subversive or terrorist armed activities within another State particularly the supply aircraft provided to the contras by the
(para 205).” United States” but not all contra operations reflected strategy and
§ Nicaragua stated that the activities of the United States were tactics wholly devised by the United States.
aimed to overthrow the government of Nicaragua, to § Interesting, however, the Court also held that providing
substantially damage the economy and to weaken the political “…humanitarian aid to persons or forces in another country,
system with the aim to coerce the Government of Nicaragua to whatever their political affiliations or objectives, cannot be
accept various political demands of the United States. The regarded as unlawful intervention, or as in any other way
Court concluded that: contrary to international law” (para 242).
“…first, that the United States intended, by its support of the contras, to § In the event one State intervenes in the affairs of another State,
coerce the Government of Nicaragua in respect of matters in which each the victim State has a right to intervene in a manner that is short
State is permitted, by the principle of State sovereignty, to decide freely of an armed attack (210).
(see paragraph 205 above) ; and secondly that the intention of the contras 5. The United States violated its customary international law obligation
themselves was to overthrow the present Government of Nicaragua… not to violate the sovereignty of another State, when it directed or
The Court considers that in international law, if one State, with a view authorized its aircrafts to fly over Nicaraguan territory and when it laid
to the coercion of another State, supports and assists armed bands in that mines in the internal waters of Nicaragua and its territorial sea.
State whose purpose is to overthrow the government of that State, that § The Court examined evidence and found that in early 1984
amounts to an intervention by the one State in the internal affairs of the mines were laid in or close to ports of the territorial sea or internal
other, whether or not the political objective of the State giving such waters of Nicaragua “by persons in the pay or acting ion the
support and assistance is equally far reaching.” instructions” of the United States and acting under its
§ The financial support, training, supply of weapons, intelligence supervision with its logistical support. The United States did not
and logistic support given by the United States to the contras issue any warning on the location or existence of mines and this
violated the principle of non-interference. “…(N)o such general resulted in injuries and increases in maritime insurance rates.
right of intervention, in support of an opposition within another § The Court found that the United States also carried out high-
State, exists in contemporary international law”, even if such a altitude reconnaissance flights over Nicaraguan
request for assistance is made by an opposition group of that territory and certain low-altitude flights, complained of as
State (see para 246 for more). causing sonic booms. It held that a State’s sovereignty extends
to its internal waters, its territorial sea, and the airspace above its
§ However, in a controversial finding, the Court held that the territory. The United States violated customary international law
United States did not devise the strategy, direct the tactics of when it laid mines in the territorial sea and internal waters of
the contras or exercise control on them in manner so as to make Nicaragua and when it carried out unauthorised overflights over
their acts committed in violation of international law imputable Nicaraguan airspace by aircrafts that belong to or was under the
to the United States (see in this respect “Determining US control of the United States..
responsibility for contra operations under international law” 81
Diversion of the Water From the Meuse The Netherlands ask the Court in the main to adjudge and declare that
the works already carried out by Belgium were contrary to the Treaty of
Facts 1863, that the proposed works would be contrary to it and, consequently,
On May l2th, 1863, Belgium and the Netherlands concluded a Treaty to "order Belgium a) to discontinue all the works" listed in the
the purpose of which was "to settle permanently and definitively the Netherlands' submissions and "to restore to a condition consistent with
regime governing diversions of water from the Meuse for the feeding of the Treaty of 1863 all works constructed in breach of that Treaty; b) to
navigation canals and irrigation channels.(1) Article I of this Treaty discontinue any feeding held to be contrary to the said Treaty and to
provided for the construction below Maestricht, in Netherlands territory, refrain from any further such feeding.(3)
of a new intake which would constitute "the feeding conduit for all On its part, Belgium asks the Court to declare the Netherlands'
canals situated below that town and for irrigation in the Campine and in submissions ill-founded, as well as to adjudge and declare, in respect of
the Netherlands.(2) the counter-claim, that the Borgharen barrage was constructed in breach
The Belgian Government accepted the Treaty not without reluctance, in of the stipulations of the Treaty of 1863, that the Juliana Canal is subject
view of the fact that it provided for only one intake and that to be to the provisions of the Treaty and, finally, to reserve the rights accruing
situated in foreign territory. to Belgium from the breaches so committed.
When the economic development of the Belgian and Netherlands
provinces of Limburg necessitated the enlargement of certain canals and Summary of the Judgment
the construction of new works, the two States signed in 1925 a new Since the questions at issue are governed by the Treaty of 1863, the
agreement designed to settle the differences which had arisen in respect Court at the outset discards the application to the dispute of the general
of the construction programmes. After the rejection of this agreement by rules of international river law in favour of the interpretation and
the Netherlands First Chamber, the Netherlands proceeded to construct application of the Treaty.
and complete the Juliana Canal, the Bosscheveld Lock and the The Netherlands maintain that Article I of the Treaty,(4) which provides
Borgharen barrage. On its part, Belgium began the construction of the for a single feeder, situated in Netherlands territory, gives them the right
Albert Canal, unfinished at the time of the judgment, a barrage at to supervise and control all the intakes, situated not only in their own
Monsin and a lock at Neerhaeren. territory, but also in Belgian territory. This contention necessarily
As no further progress could be made in the settlement of the points at implies that "the Treaty of 1863 intended to place the Parties in a
issue between the two States, the Netherlands initiated proceedings in situation of legal inequality by conferring on the Nether-lands a right of
the Court by means of a unilateral application, based on the declarations control to which Belgium could not lay claim.(5) But, in order to allow
made by both the Netherlands and Belgium in which they accepted the the existence of such inequality between the Parties to a treaty freely
compulsory jurisdiction of the Court under Article 36 (a) of the Statute. concluded, the text of the treaty must say so in precise terms. In the
Belgium, on its part, made a counter-claim. absence of such terms, the Court rejects the Netherlands' submission.
In the course of the proceedings and at the suggestion of the Belgian While criticizing the construction by Belgium of the Neerhaeren Lock,
Agent, which the Netherlands Agent did not oppose, the Court visited the Netherlands do not invoke a specific provision of the Treaty. The
the locality in order to see on the spot the installations, canals and Court grants that the Treaty has brought into existence a certain régime
waterways to which the dispute related and to witness practical which results from all its provisions taken together and that,
demonstrations of the operations of locks and installations connected accordingly, it forms a complete whole, the different provisions of
therewith. which cannot be dissociated from the others and considered in isolation.
This is equally the case with Article I which must be interpreted together
Submissions of the Parties with the other Articles. In the light of this Article, thus interpreted,
neither the Netherlands' contention regarding the Neerhaeren Lock, nor For these reasons, the Court rejects both the Netherlands' submissions
the Belgian reply, can be accepted in its entirety. Furthermore, the and the submissions contained in the Belgian counter-claim.
Court, after mentioning the construction by the Netherlands of the
Bosscheveld Lock, refuses to admit the Netherlands' complaint about
the construction and operation of a lock of which they themselves set an
example in the past.
With regard to the supply by Belgium to a section of the Albert Canal of
water taken from the Meuse elsewhere than at Maestricht, the Court
considers that the origin of the water is irrelevant. Nothing prevents
either Belgium or the Netherlands from making such use as they may
see fit of the canals covered by the Treaty, when the canals do not leave
their own territory. Each of the two States is at liberty in its own
territory to modify such canals, to enlarge them, to trans-form them, to
fill them in and even to increase the volume of water in them, provided
that the diversion of water at the feeder mentioned in the Treaty and the
volume of water to be discharged therefrom is not affected. The same
reasoning applies to the Netherlands' criticism of the proposed supply by
Belgium to a section of another canal of water taken from the Meuse
elsewhere than at Maestricht.
Having thus rejected all the Netherlands' submissions, the Court
proceeds to deal with the Belgian counter-claims, the first of which
concerns the Borgharen barrage. The Court finds that the Treaty does
not forbid the Netherlands from altering the depth of water in the Meuse
at Maestricht without the consent of Belgium, provided that neither the
discharge of water through the feeder, nor the volume of water which it
must supply, nor the current in the Zuid-Willemsvaart is thereby
affected. It is subject to this condition, and not at their arbitrary
discretion, that the Netherlands are entitled, under the Treaty, to dispose
of the waters of the Meuse at Maestricht. With regard to the alleged
interference, by the criticized construction, with the navigability of that
part of the Meuse common to both States, the Court considers that
Belgium has not produced any proof of it. In reply to the second Belgian
submission, which relates to the Juliana Canal, the Court finds that the
Treaty was designed to regulate the supply of water to the canals
situated on the left bank of the Meuse only. Thus, canals situated on the
right bank, such as the Juliana Canal, do not come under the regime of
water supply provided for by the Treaty.
TANADA VS ANGARA 4. Whether or not certain provisions of the Agreement impair the
G.R. No. 118295 May 2, 1997 exercise of judicial power by this Honorable Court in promulgating
the rules of evidence.
Wigberto E. Tanada et al, in representation of various taxpayers and as 5. Whether or not the concurrence of the Senate ‘in the ratification by
non-governmental organizations, petitioners, the President of the Philippines of the Agreement establishing the
vs. World Trade Organization’ implied rejection of the treaty embodied
EDGARDO ANGARA, et al, respondents. in the Final Act.
Facts:
This is a case petition by Sen. Wigberto Tanada, together with other Discussions:
lawmakers, taxpayers, and various NGO’s to nullify the Philippine • 1987 Constitution states that Judicial power includes the duty of the
ratification of the World Trade Organization (WTO) Agreement. courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether
Petitioners believe that this will be detrimental to the growth of our or not there has been a grave abuse of discretion amounting to lack
National Economy and against to the “Filipino First” policy. The WTO or excess of jurisdiction on the part of any branch or instrumentality
opens access to foreign markets, especially its major trading partners, of the government.
through the reduction of tariffs on its exports, particularly agricultural • Although the Constitution mandates to develop a self-reliant and
and industrial products. Thus, provides new opportunities for the service independent national economy controlled by Filipinos, does not
sector cost and uncertainty associated with exporting and more necessarily rule out the entry of foreign investments, goods and
investment in the country. These are the predicted benefits as reflected services. It contemplates neither “economic seclusion” nor
in the agreement and as viewed by the signatory Senators, a “free “mendicancy in the international community.” The WTO itself has
market” espoused by WTO. some built-in advantages to protect weak and developing
economies, which comprise the vast majority of its members.
Petitioners also contends that it is in conflict with the provisions of our Unlike in the UN where major states have permanent seats and veto
constitution, since the said Agreement is an assault on the sovereign powers in the Security Council, in the WTO, decisions are made on
powers of the Philippines because it meant that Congress could not pass the basis of sovereign equality, with each member’s vote equal in
legislation that would be good for national interest and general welfare weight to that of any other. Hence, poor countries can protect their
if such legislation would not conform to the WTO Agreement. common interests more effectively through the WTO than through
one-on-one negotiations with developed countries. Within the
Issues: WTO, developing countries can form powerful blocs to push their
1. Whether or not the petition present a justiciable controversy. economic agenda more decisively than outside the Organization.
2. Whether or not the provisions of the ‘Agreement Establishing the Which is not merely a matter of practical alliances but a negotiating
World Trade Organization and the Agreements and Associated strategy rooted in law. Thus, the basic principles underlying the
Legal Instruments included in Annexes one (1), two (2) and three WTO Agreement recognize the need of developing countries like
(3) of that agreement’ cited by petitioners directly contravene or the Philippines to “share in the growth in international trade
undermine the letter, spirit and intent of Section 19, Article II and commensurate with the needs of their economic development.”
Sections 10 and 12, Article XII of the 1987 Constitution. • In its Declaration of Principles and State Policies, the Constitution
3. Whether or not certain provisions of the Agreement unduly limit, “adopts the generally accepted principles of international law as
restrict or impair the exercise of legislative power by Congress. part of the law of the land, and adheres to the policy of peace,
 equality, justice, freedom, cooperation and amity, with all nations. recognizes the need for business exchange with the rest of the world
By the doctrine of incorporation, the country is bound by generally on the bases of equality and reciprocity and limits protection of
accepted principles of international law, which are considered to be Filipino enterprises only against foreign competition and trade
automatically part of our own laws. A state which has contracted practices that are unfair. In other words, the Constitution did not
valid international obligations is bound to make in its legislations intend to pursue an isolationist policy. It did not shut out foreign
such modifications as may be necessary to ensure the fulfillment of investments, goods and services in the development of the
the obligations undertaken. Paragraph 1, Article 34 of the General Philippine economy. While the Constitution does not encourage the
Provisions and Basic Principles of the Agreement on Trade-Related unlimited entry of foreign goods, services and investments into the
Aspects of Intellectual Property Rights (TRIPS) may intrudes on the country, it does not prohibit them either. In fact, it allows an
power of the Supreme Court to promulgate rules concerning exchange on the basis of equality and reciprocity, frowning only on
pleading, practice and procedures. With regard to Infringement of a foreign competition that is unfair.
design patent, WTO members shall be free to determine the 3. By their inherent nature, treaties really limit or restrict the
appropriate method of implementing the provisions of TRIPS absoluteness of sovereignty. By their voluntary act, nations may
within their own internal systems and processes. surrender some aspects of their state power in exchange for greater
• The alleged impairment of sovereignty in the exercise of legislative benefits granted by or derived from a convention or pact. After all,
and judicial powers is balanced by the adoption of the generally states, like individuals, live with coequals, and in pursuit of
accepted principles of international law as part of the law of the mutually covenanted objectives and benefits, they also commonly
land and the adherence of the Constitution to the policy of agree to limit the exercise of their otherwise absolute rights. As
cooperation and amity with all nations. The Senate, after shown by the foregoing treaties Philippines has entered, a portion of
deliberation and voting, voluntarily and overwhelmingly gave its sovereignty may be waived without violating the Constitution,
consent to the WTO Agreement thereby making it “a part of the law based on the rationale that the Philippines “adopts the generally
of the land” is a legitimate exercise of its sovereign duty and power. accepted principles of international law as part of the law of the
land and adheres to the policy of cooperation and amity with all
Rulings: nations.”
1. In seeking to nullify an act of the Philippine Senate on the ground 4. The provision in Article 34 of WTO agreement does not contain an
that it contravenes the Constitution, the petition no doubt raises a unreasonable burden, consistent as it is with due process and the
justiciable controversy. Where an action of the legislative branch is concept of adversarial dispute settlement inherent in our judicial
seriously alleged to have infringed the Constitution, it becomes not system.
only the right but in fact the duty of the judiciary to settle the 5. The assailed Senate Resolution No. 97 expressed concurrence in
dispute. As explained by former Chief Justice Roberto Concepcion, exactly what the Final Act required from its signatories, namely,
“the judiciary is the final arbiter on the question of whether or not a concurrence of the Senate in the WTO Agreement. Moreover, the
branch of government or any of its officials has acted without Senate was well-aware of what it was concurring in as shown by the
jurisdiction or in excess of jurisdiction or so capriciously as to members’ deliberation on August 25, 1994. After reading the letter
constitute an abuse of discretion amounting to excess of of President Ramos dated August 11, 1994, the senators of the
jurisdiction. This is not only a judicial power but a duty to pass Republic minutely dissected what the Senate was concurring in.
judgment on matters of this nature.”
2. While the Constitution indeed mandates a bias in favor of Filipino
goods, services, labor and enterprises, at the same time, it
 Mijares v. Ranada Recognition of Foreign Judgments Section 7(a), as the action involved pertains to a claim against an estate
SEPTEMBER 3, 2018 based on judgment.
FACTS: A proper understanding is required on the nature and effects of a foreign
Ten Filipino citizens who each alleged having suffered human rights judgment in this jurisdiction.
abuses such as arbitrary detention, torture and rape in the hands of The rules of comity, utility and convenience of nations have established
police or military forces during the Marcos regime, filed with the US a usage among civilized states by which final judgments of foreign
District Court, Hawaii, against the Estate Ferdinand E. Marcos. courts of competent jurisdiction are reciprocally respected and rendered
Trial ensued, and subsequently a jury rendered a Final Judgment and an efficacious under certain conditions that may vary in different countries.
award of compensatory and exemplary damages in favor of the plaintiff The conditions required by the Philippines for recognition and
class with an award of a total of One Billion Nine Hundred Sixty Four enforcement of a foreign judgment has remained unchanged.
Million Five Thousand Eight Hundred Fifty Nine Dollars and Ninety SEC. 48. Effect of foreign judgments. The effect of a judgment of a
Cents ($1,964,005,859.90) tribunal of a foreign country, having jurisdiction to pronounce the
The present petitioners filed Complaint with the Makati RTC for the judgment is as follows:
enforcement of the Final Judgment. (a) In case of a judgment upon a specific thing, the judgment is
Respondent Judge Ranada of the Makati RTC issued the conclusive upon the title to the thing;
subject Orderdismissing the complaint without prejudice. He opined (b) In case of a judgment against a person, the judgment is presumptive
that the subject matter of the complaint was capable of pecuniary evidence of a right as between the parties and their successors in interest
estimation, as it involved a judgment rendered by a foreign court by a subsequent title;
ordering the payment of definite sums of money, allowing for easy In either case, the judgment or final order may be repelled by evidence
determination of the value of the foreign judgment. of a want of jurisdiction, want of notice to the party, collusion, fraud, or
The RTC estimated the proper amount of filing fees was approximately clear mistake of law or fact.
Four Hundred Seventy Two Million Pesos, which obviously had not There is an evident distinction between a foreign judgment in an
been paid. action in rem and one in personam. For an action in rem, the foreign
Petitioners submit that their action is incapable of pecuniary estimation judgment is deemed conclusive upon the title to the thing, while in an
as the subject matter of the suit is the enforcement of a foreign action inpersonam, the foreign judgment is presumptive, and not
judgment, and not an action for the collection of a sum of money or conclusive, of a right as between the parties and their successors in
recovery of damages. They also point out that to require the class interest by a subsequent title.
plaintiffs to pay Four Hundred Seventy Two Million Pesos Thus, the party aggrieved by the foreign judgment is entitled to defend
(P472,000,000.00) in filing fees would negate and render inutile the against the enforcement of such decision in the local forum. It is
liberal construction ordained by the Rules of Court, particularly the essential that there should be an opportunity to challenge the foreign
inexpensive disposition of every action. judgment, in order for the court in this jurisdiction to properly determine
ISSUE: its efficacy.
What provision, if any, then should apply in determining the filing fees Consequently, the party attacking a foreign judgment has the burden of
for an action to enforce a foreign judgment? overcoming the presumption of its validity.
RULING: Petition is GRANTED.
Respondent judge was in clear and serious error when he concluded that
the filing fees should be computed on the basis of the schematic table of