BAYAN MUNA vs ROMULO

Facts:
Petitioner Bayan Muna is a duly registered party-list group
established to represent the marginalized sectors of society.
Respondent Blas F. Ople, now deceased, was the Secretary of
Foreign Affairs during the period material to this case. Respondent
Alberto Romulo was impleaded in his capacity as then Executive
Secretary.
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 dAffaires 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:
1. For purposes of this Agreement, persons are current or former
Government officials, employees (including contractors), or military
personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not,
absent the express consent of the first Party,
(a) be surrendered or transferred by any means to any international
tribunal for any purpose, unless such tribunal has been established
by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity
or third country, or expelled to a third country, for the purpose of
surrender to or transfer to any international tribunal, unless such
tribunal has been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a
person of the Philippines to a third country, the [US] will not agree
to the surrender or transfer of that person by the third country to
any international tribunal, unless such tribunal has been established
by the UN Security Council, absent the express consent of the
Government of the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a
person of the [USA] to a third country, the [GRP] will not agree to
the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by

the UN Security Council, absent the express consent of the

Government of the [US].
5. This Agreement shall remain in force until one year after the date
on which one party notifies the other of its intent to terminate the
Agreement. The provisions of this Agreement shall continue to apply
with respect to any act occurring, or any allegation arising, before
the effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo
on the status of the non-surrender agreement, Ambassador
Ricciardone replied in his letter of October 28, 2003 that the
exchange of diplomatic notes constituted a legally binding
agreement under international law; and that, under US law, the said
agreement did not require the advice and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion to
respondents in concluding and ratifying the Agreement and prays
that it be struck down as unconstitutional, or at least declared as
without force and effect.
Issue:
Whether or not the RP-US NON SURRENDER AGREEMENT is void ab
initio for contracting obligations that are either immoral or
otherwise at variance with universally recognized principles of
international law.
Ruling:
The petition is bereft of merit.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form,
its threshold posture being that E/N BFO-028-03 cannot be a valid
medium for concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain wellrecognized international doctrines, practices, and jargonsis
untenable. One of these is the doctrine of incorporation, as
expressed in Section 2, Article II of the Constitution, wherein the
Philippines adopts the generally accepted principles of international
law and international jurisprudence as part of the law of the land
and adheres to the policy of peace, cooperation, and amity with all
nations. An exchange of notes falls into the category of intergovernmental agreements, which is an internationally accepted
form of international agreement. The United Nations Treaty
Collections (Treaty Reference Guide) defines the term as follows:
An exchange of notes is a record of a routine agreement, that has
many similarities with the private law contract. The agreement
consists of the exchange of two documents, each of the parties
being in the possession of the one signed by the representative of
the other. Under the usual procedure, the accepting State repeats
the text of the offering State to record its assent. The signatories of
the letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes is
frequently resorted to, either because of its speedy procedure, or,
sometimes, to avoid the process of legislative approval.
In another perspective, the terms exchange of notes and
executive agreements have been used interchangeably, exchange
of notes being considered a form of executive agreement that
becomes binding through executive action. On the other hand,
executive agreements concluded by the President sometimes take
the form of exchange of notes and at other times that of more
formal documents denominated agreements or protocols. As
former US High Commissioner to the Philippines Francis B. Sayre
observed in his work, The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other
governments ends and agreements whether denominated

executive agreements or exchange of notes or otherwise begin,

may sometimes be difficult of ready ascertainment. x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03
be it viewed as the Non-Surrender Agreement itself, or as an
integral instrument of acceptance thereof or as consent to be
boundis a recognized mode of concluding a legally binding
international written 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 petitioners 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 countrys
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 Philippines or in the US; or with the
consent of the RP or the US, before the ICC, assuming, for the nonce,
that all the formalities necessary to bind both countries to the Rome
Statute have been met. For perspective, what the Agreement
contextually prohibits is the surrender by either party of individuals
to international tribunals, like the ICC, without the consent of the
other party, which may desire to prosecute the crime under its
existing laws. With the view we take of things, there is nothing
immoral or violative of international law concepts in the act of the
Philippines of assuming criminal jurisdiction pursuant to the nonsurrender agreement over an offense considered criminal by both
Philippine laws and the Rome Statute.

BAYAN v. ZAMORA
G. R. No. 138570
October 10, 2000
Facts:
The United States panel met with the Philippine panel to discussed,
among others, the possible elements of the Visiting Forces
Agreement (VFA). This resulted to a series of conferences and
negotiations which culminated on January 12 and 13, 1998.
Thereafter, President Fidel Ramos approved the VFA, which was
respectively signed by Secretary Siazon and United States
Ambassador Thomas Hubbard.

Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May
27, 1999, the senate approved it by (2/3) votes.
Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987
constitution is applicable and not Section 21, Article VII.
Following the argument of the petitioner, under they provision
cited, the foreign military bases, troops, or facilities may be
allowed in the Philippines unless the following conditions are
sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority
of the votes cast in a national referendum held for that purpose if so
required by congress, and
c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is
applicable so that, what is requires for such treaty to be valid and
effective is the concurrence in by at least two-thirds of all the
members of the senate.
ISSUE: Is the VFA governed by the provisions of Section 21, Art VII or
of Section 25, Article XVIII of the Constitution?
HELD:
Section 25, Article XVIII, which specifically deals with treaties
involving foreign military bases, troops or facilities should apply in
the instant case. To a certain extent and in a limited sense, however,
the provisions of section 21, Article VII will find applicability with
regard to the issue and for the sole purpose of determining the
number of votes required to obtain the valid concurrence of the
senate.
The Constitution, makes no distinction between transient and
permanent. We find nothing in section 25, Article XVIII that
requires foreign troops or facilities to be stationed or placed
permanently in the Philippines.
It is inconsequential whether the United States treats the VFA only
as an executive agreement because, under international law, an
executive agreement is as binding as a treaty.
BAYAN vs. ZAMORA
Facts:
The Philippines and the United States entered into a Mutual Defense
Treaty on August 30, 1951, To further strengthen their defense and
security relationship. Under the treaty, the parties agreed to
respond to any external armed attack on their territory, armed
forces, public vessels, and aircraft.
On September 16, 1991, the Philippine Senate rejected the
proposed RP-US Treaty of Friendship, Cooperation and Security
which, in effect, would have extended the presence of US military
bases in the Philippines.
On July 18, 1997 RP and US exchanged notes and discussed, among
other things, the possible elements of the Visiting Forces Agreement

(VFA).This resulted to a series of conferences and negotiations which

culminated on January 12 and 13, 1998. Thereafter, President Fidel
Ramos approved the VFA, which was respectively signed by
Secretary Siazon and United States Ambassador Thomas Hubbard.
On October 5, 1998, President Joseph E. Estrada, through
respondent Secretary of Foreign Affairs, ratified the VFA. On
October 6, 1998, the President, acting through respondent Executive
Secretary Ronaldo Zamora, officially transmitted to the Senate of the
Philippines,the Instrument of Ratification, the letter of the President
and the VFA, for concurrence pursuant to Section 21, Article VII of
the 1987 Constitution.
Petitions for certiorari and prohibition, petitioners as legislators,
non-governmental organizations, citizens and taxpayers assail the
constitutionality of the VFA and impute to herein respondents grave
abuse of discretion in ratifying the agreement.
Petitioner contends, under they provision cited, the foreign military
bases, troops, or facilities may be allowed in the Philippines unless
the following conditions are sufficiently met: a) it must be a treaty,b)
it must be duly concurred in by the senate, ratified by a majority of
the votes cast in a national referendum held for that purpose if so
required by congress, and c) recognized as such by the other
contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is
applicable so that, what is requires for such treaty to be valid and
effective is the concurrence in by at least two-thirds of all the
members of the senate.

Issue:
Is the VFA governed by the provisions of Section 21, Art VII or of
Section 25, Article XVIII of the Constitution?

Ruling:
Section 25, Article XVIII, which specifically deals with treaties
involving foreign military bases, troops or facilities should apply in
the instant case.
The 1987 Philippine Constitution contains two provisions requiring
the concurrence of the Senate on treaties or international
agreements. Sec. 21 Art. VII, which respondent invokes, reads: No
treaty or international agreement shall be valid and effective unless
concurred in by at least 2/3 of all the Members of the Senate. Sec.
25 Art. XVIII provides : After the expiration in 1991 of the
Agreement between the RP and the US concerning Military Bases,
foreign military bases, troops or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in and when the
Congress so requires, ratified by a majority of votes cast by the
people in a national referendum held for that purpose, and
recognized as a treaty by the Senate by the other contracting state.
The first cited provision applies to any form of treaties and
international agreements in general with a wide variety of subject
matter. All treaties and international agreements entered into by
the Philippines, regardless of subject matter, coverage or particular
designation requires the concurrence of the Senate to be valid and
effective.

In contrast, the second cited provision applies to treaties which

involve presence of foreign military bases, troops and facilities in the
Philippines. Both constitutional provisions share some common
ground. The fact that the President referred the VFA to the Senate
under Sec. 21 Art. VII, and that Senate extended its concurrence
under the same provision is immaterial

China National Machinery v. Santamaria

Facts: On 14 September 2002, petitioner China National Machinery
& Equipment Corp. (Group) (CNMEG), represented by its
chairperson, Ren Hongbin, entered into a Memorandum of
Understanding with the North Luzon Railways Corporation
(Northrail), represented by its president, Jose L. Cortes, Jr. for the
conduct of a feasibility study on a possible railway line from Manila
to San Fernando, La Union (the Northrail Project).
On 30 August 2003, the Export Import Bank of China (EXIM Bank)
and the Department of Finance of the Philippines (DOF) entered into
a Memorandum of Understanding (Aug 30 MOU), wherein China
agreed to extend Preferential Buyers Credit to the Philippine
3
government to finance the Northrail Project. The Chinese
government designated EXIM Bank as the lender, while the
Philippine government named the DOF as the borrower. Under the
Aug 30 MOU, EXIM Bank agreed to extend an amount not exceeding
USD 400,000,000 in favor of the DOF, payable in 20 years, with a 5year grace period, and at the rate of 3% per annum.
On 1 October 2003, the Chinese Ambassador to the Philippines,
Wang Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose
Isidro Camacho (Sec. Camacho) informing him of CNMEGs
designation as the Prime Contractor for the Northrail Project.
On 30 December 2003, Northrail and CNMEG executed a Contract
Agreement for the construction of Section I, Phase I of the North
Luzon Railway System from Caloocan to Malolos on a turnkey basis
7
(the Contract Agreement). The contract price for the Northrail
Project was pegged at USD 421,050,000.
On 26 February 2004, the Philippine government and EXIM Bank
entered into a counterpart financial agreement Buyer Credit Loan
Agreement No. BLA 04055 (the Loan Agreement). In the Loan
Agreement, EXIM Bank agreed to extend Preferential Buyers Credit
in the amount of USD 400,000,000 in favor of the Philippine
government in order to finance the construction of Phase I of the
Northrail Project.
On 13 February 2006, respondents filed a Complaint for Annulment
of Contract and Injunction with Urgent Motion for Summary Hearing
to Determine the Existence of Facts and Circumstances Justifying the
Issuance of Writs of Preliminary Prohibitory and Mandatory
Injunction and/or TRO against CNMEG, the Office of the Executive
Secretary, the DOF, the Department of Budget and Management,
the National Economic Development Authority and Northrail. The
case was filed before the Regional Trial Court, National Capital
Judicial Region, Makati City, Branch 145 (RTC Br. 145). In the
Complaint, respondents alleged that the Contract Agreement and
the Loan Agreement were void for being contrary to (a) the
Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise
known as the Government Procurement Reform Act; (c) Presidential
Decree No. 1445, otherwise known as the Government Auditing
Code; and (d) Executive Order No. 292, otherwise known as the
Administrative Code.
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying
CNMEGs Motion to Dismiss and setting the case for summary

hearing to determine whether the injunctive reliefs prayed for

should be issued. CNMEG then filed a Motion for Reconsideration,
which was denied by the trial court in an Order dated 10 March
2008. Thus, CNMEG filed before the CA a Petition for Certiorari with
Prayer for the Issuance of TRO and/or Writ of Preliminary Injunction
dated 4 April 2008.
the appellate court dismissed the Petition for Certiorari.
Subsequently, CNMEG filed a Motion for Reconsideration, which was
denied by the CA in a Resolution dated 5 December 2008.
Petitioners Argument: Petitioner claims that the EXIM Bank
extended financial assistance to Northrail because the bank was
mandated by the Chinese government, and not because of any
motivation to do business in the Philippines, it is clear from the
foregoing provisions that the Northrail Project was a purely
commercial transaction.
Respondents Argument: respondents alleged that the Contract
Agreement and the Loan Agreement were void for being contrary to
(a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184),
otherwise known as the Government Procurement Reform Act; (c)
Presidential Decree No. 1445, otherwise known as the Government
Auditing Code; and (d) Executive Order No. 292, otherwise known as
the Administrative Code.
Issues: Whether or not petitioner CNMEG is an agent of the
sovereign Peoples Republic of China.
Whether or not the Northrail contracts are products of an executive
agreement between two sovereign states.
Ruling: The instant Petition is DENIED. Petitioner China National
Machinery & Equipment Corp. (Group) is not entitled to immunity
from suit, and the Contract Agreement is not an executive agreement.
CNMEGs prayer for the issuance of a TRO and/or Writ of Preliminary
Injunction is DENIED for being moot and academic.
The Court explained the doctrine of sovereign immunity in
Holy See v. Rosario, to wit:
There are two conflicting concepts of sovereign immunity, each
widely held and firmly established. According to the classical or
absolute theory, a sovereign cannot, without its consent, be made
a respondent in the courts of another sovereign. According to the
newer or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a
state, but not with regard to private acts or acts jure gestionis.
(Emphasis supplied; citations omitted.)
As it stands now, the application of the doctrine of immunity from
suit has been restricted to sovereign or governmental activities (jure
imperii). The mantle of state immunity cannot be extended to
commercial, private and proprietary acts (jure gestionis).

Thus, piecing together the content and tenor of the

Contract Agreement, the Memorandum of Understanding dated 14
September 2002, Amb. Wangs letter dated 1 October 2003, and the
Loan Agreement would reveal the desire of CNMEG to construct the
Luzon Railways in pursuit of a purely commercial activity performed
in the ordinary course of its business.

ABAYA vs. EBDANE

Facts:
The Government of Japan and the Government of the Philippines,
through their respective representatives, namely, Mr. Yoshihisa Ara,
Ambassador Extraordinary and Plenipotentiary of Japan to the
Republic of the Philippines, and then Secretary of Foreign Affairs
Domingo L. Siazon, have reached an understanding concerning
Japanese loans to be extended to the Philippines. These loans were
aimed at promoting our countrys economic stabilization and
development efforts.
The assailed resolution recommended the award to private
respondent China Road & Bridge Corporation of the contract for the
implementation of civil works for Contract Package No. I (CP I),
which consists of the improvement/rehabilitation of the San Andres
(Codon)-Virac-Jct. Bago-Viga road, with the length of 79.818
kilometers, in the island province of Catanduanes.The DPWH caused
the publication of the Invitation to Prequalify and to Bid for the
implementation of the CP I project, in two leading national
newspapers, namely, the Manila Times and Manila Standard on
November 22 and 29, and December 5, 2002.
A total of twenty-three (23) foreign and local contractors responded
to the invitation by submitting their accomplished prequalification
documents on January 23, 2003. In accordance with the established
prequalification criteria, eight contractors were evaluated or
considered eligible to bid as concurred by the JBIC. Prior to the
opening of the respective bid proposals, it was announced that the
Approved Budget for the Contract (ABC) was in the amount of
P738,710,563.67.
The bid goes to private respondent China Road & Bridge Corporation
was corrected from the original P993,183,904.98 (with variance of
34.45% from the ABC) to P952,564,821.71 (with variance of 28.95%
from the ABC) based on their letter clarification dated April 21,
2004.
The petitioners anchor the instant petition on the contention that
the award of the contract to private respondent China Road &
Bridge Corporation violates RA 9184, particularly Section 31 thereof
which reads:

Since the Philippines adheres to the restrictive theory, it is

crucial to ascertain the legal nature of the act involved whether
the entity claiming immunity performs governmental, as opposed to
proprietary, functions. As held in United States of America v. Ruiz

SEC. 31. Ceiling for Bid Prices. The ABC shall be the upper limit or
ceiling for the Bid prices. Bid prices that exceed this ceiling shall be
disqualified outright from further participating in the bidding. There
shall be no lower limit to the amount of the award.

Admittedly, the Loan Agreement was entered into between

EXIM Bank and the Philippine government, while the Contract
Agreement was between Northrail and CNMEG. Although the
Contract Agreement is silent on the classification of the legal nature of
the transaction, the foregoing provisions of the Loan Agreement,
which is an inextricable part of the entire undertaking, nonetheless
reveal the intention of the parties to the Northrail Project to classify
the whole venture as commercial or proprietary in character.

The petitioners insist that Loan Agreement is neither an

international nor an executive agreement that would bar the
application of RA 9184. They point out that to be considered a
treaty, an international or an executive agreement, the parties must
be two sovereigns or States whereas in the case of Loan Agreement
No. PH-P204, the parties are the Philippine Government and the
JBIC, a banking agency of Japan, which has a separate juridical
personality from the Japanese Government.

The respondents however contend that foreign loan agreements,

including Loan Agreement No. PH-P204, as executive agreements
and, as such, should be observed pursuant to the fundamental
principle in international law of pacta sunt servanda. The
Constitution, the public respondents emphasize, recognizes the
enforceability of executive agreements in the same way that it
recognizes generally accepted principles of international law as
forming part of the law of the land.34 This recognition allegedly
buttresses the binding effect of executive agreements to which the
Philippine Government is a signatory. It is pointed out by the public
respondents that executive agreements are essentially contracts
governing the rights and obligations of the parties. A contract, being
the law between the parties, must be faithfully adhered to by them.
Guided by the fundamental rule of pacta sunt servanda, the
Philippine Government bound itself to perform in good faith its
duties and obligations under Loan Agreement.

Issue :
Whether or not the the loan agreement violates RA 9184.

Ruling:
The court ruled in favor of the respondents.
Significantly, an exchange of notes is considered a form of an
executive agreement, which becomes binding through executive
action without the need of a vote by the Senate or Congress.
executive agreements, They sometimes take the form of exchange
of notes and at other times that of more formal documents
denominated agreements or protocols.
The fundamental principle of international law of pacta sunt
servanda, which is, in fact, embodied in Section 4 of RA 9184 as it
provides that *a+ny treaty or international or executive agreement
affecting the subject matter of this Act to which the Philippine
government is a signatory shall be observed, the DPWH, as the
executing agency of the projects financed by Loan Agreement No.
PH-P204, rightfully awarded the contract for the implementation of
civil works for the CP I project to private respondent China Road &
Bridge Corporation.
Pharmaceutical and Health Care Association of the Philippines v
Duque III
Facts:
Petition for certiorari seeking to nullify the Revised Implementing
Rules and Regulations (RIRR) of E.O. 51 (Milk Code). Petitioner
claims that the RIRR is not valid as it contains provisions that are not
constitutional and go beyond what it is supposed to implement. Milk
Code was issued by President Cory Aquino under the Freedom
Constitution on Oct.1986. One of the preambular clauses of the
Milk Code states that the law seeks to give effect to Art 11 of the
Intl Code of Marketing and Breastmilk Substitutes(ICBMS), a code
adopted by the World Health Assembly(WHA). From 1982-2006, The
WHA also adopted severe resolutions to the effect that
breastfeeding should be supported, hence, it should be ensured that
nutrition and health claims are not permitted for breastmilk
substitutes. In 2006, the DOH issued the assailed RIRR.

Issue:
Sub-Issue: W/N the pertinent intl agreements entered into by the
Phil are part of the law of the land and may be implemented by DOH
through the RIRR. If yes, W/N the RIRR is in accord with intl
agreements

MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or

with grave abuse of discretion amounting to lack of excess of
jurisdiction and in violation of the Constitution by promulgating the
RIRR.

Held:
Sub-issue:
Yes for ICBMS. Under 1987 Consti, intl law can become domestic
law by transformation (thru constitutional mechanism such as local
legislation) or incorporation (mere constitutional declaration i.e
treaties) The ICBMS and WHA resolutions were not treaties as they
have not been concurred by 2/3 of all members of the Senate as
required under Sec, 21, Art 8. However, the ICBMS had been
transformed into domestic law through a local legislation such as the
Milk Code. The Milk Code is almost a verbatim reproduction of
ICBMS.
No for WHA Resolutions. The Court ruled that DOH failed to
establish that the provisions pertinent WHA resolutions are
customary intl law that may be deemed part of the law of the land.
For an intl rule to be considered as customary law, it must be
established that such rule is being followed by states because they
consider it as obligatory to comply with such rules (opinion juris).
The WHO resolutions, although signed by most of the member
states, were enforced or practiced by at least a majority of member
states. Unlike the ICBMS whereby legislature enacted most of the
provisions into the law via the Milk Code, the WHA Resolutions
(specifically providing for exclusive breastfeeding from 0-6 months,
breastfeeding up to 24 Months and absolutely prohibiting ads for
breastmilk substitutes) have not been adopted as domestic law nor
are they followed in our country as well. The Filipinos have the
option of how to take care of their babies as they see fit. WHA
Resolutions may be classified as SOFT LAW non-binding norms,
principles and practices that influence state behavior. Soft law is not
part of intl law.