Nuclear Tests Case (Australia v.

France) [1973] ICJ 98

FACTS: France was a signatory to the Nuclear Test Ban Treaty and thus continued to conduct
tests in the South Pacific until 1973. The tests conducted in 1972 and 1973 led to the filing of
protests by Australia and New Zealand. The case, however, was taken off the Courts list without
a decision when France announced by a series of unilateral announcements that it would
conduct no further tests after 1973. The Court nevertheless commented on the legal significance
of these announcements.
ISSUE: WON a unilateral declaration concerning legal or factual situations may create legal
obligations.
HELD: Yes. It is well-recognized that declarations made by way of unilateral acts concerning
legal or factual situations, may have the effect of creating legal obligations. Declarations of this
kind may be, and often are, very specific. When it is the intention of the State making the
declaration that it should become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State being thenceforth legally required to
follow a course of conduct consistent with the declaration. An undertaking of this kind, if given
publicly, and with an intent to be bound, even though not made within the context of international
negotiations, is binding.
France did not recognize the jurisdiction of the court in this case but the court held that
nonrecognition on the part of France could not divest it of jurisdiction to order provisional
measures.
The ICJ directed the governments of both France and Australia to ensure that no action of
any kind would be taken to exacerbate the dispute or prejudice the rights of the parties.
Parenthetically, it might be asked what good recourse to an international tribunal like the ICJ
might be when one of the parties repudiates its jurisdiction. For one, an adverse judgment on
the part of the ICJ or a similar tribunal divests the claims of the repudiating state of any color of
or claim to legality. For another, an adverse judgment provokes the prevailing state to call on the
enforcement mechanisms available in international law.
The Asylum Case (Colombia v. Peru) [1950] ICJ 276
FACTS: In 1948, a military rebellion broke out in Peru; it was suppressed the same day. On the
following day, a decree was published charging a political party, the American Peoples
Revolutionary Party, with having prepared and directed the rebellion. The head of the Party, a
Peruvian political leader, Victor Raul Haya dela Torre, was denounced as being responsible.
With other members of the party, he was prosecuted on a charge of military rebellion.
In 1949, the Columbian Ambassador in Lima informed the Peruvian Government of the
asylum granted to dela Torre. The Columbian Ambassador requested the government of Peru to
allow dela Torre to leave the country since the Columbian government characterized him as a
political refugee. The Peruvian Government disputed this qualification and refused to grant a
safe-conduct.
ISSUE: WON Colombia could validly give asylum to dela Torre that would be binding on Peru.
HELD: No. As regards American international law, Colombia had not proved the existence,
either regionally or locally, of a constant and uniform practice of unilateral qualification as a right
of the State of refuge and an obligation upon the territorial State. Colombia cannot unilaterally
make the qualification: both countries must concur on whether or not the offense involved
allowed asylum.
The court held that fluctuation and discrepancy in the exercise of diplomatic asylum
negated the claim that there was indeed customary law on diplomatic asylum. It is for the State
claiming custom that must prove it in such a way that it is established as binding on the other
state.
The Paquete Habana and the Lola, 1975 U.S. 677 (1899)
FACTS: During the Spanish American War, two fishing vessels (the Paquete Haban and the
Lola), flying the Spanish flags, owned by a Spanish subject of Cuban birth, and while regularly
engaged in fishing on the Cuban coast, were seized by the US Navy. It was discovered that until
the moment of capture, the vessels did not know that a war was being fought. It was also proved
that the vessels had neither arms nor ammunition; and that neither ship attempted to run the
blockade after its existence was made known to them. In Florida, to which they had been
brought, they were considered by a US District Court as legitimate prizes of war. They then
appealed to the US Supreme Court, alleging that under international law, and considering the
circumstances of their capture, they were exempt (with the cargoes and crews) from capture as
prizes of war.
ISSUE: WON the vessels are exempted from being prizes of war.
HELD: Yes. By an ancient usage among civilized nations, beginning centuries ago, and
gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of
catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and
crews, from capture as prize of war. This international custom began in 1403 during the reign of
King Henry IV of England, found encouragement in a treaty entered into in 1521 between
Emperor Charles V and Francis I of France, and approval in American practices from the
Declaration of American Independence in 1776.
International law is part of our law. For this purpose where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must be had to the customs and
usages of civilized nations, and, as evidence of these, to the works of jurists and commentators

who by years of labor, research and experience have made themselves peculiarly well
acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals,
NOT for the speculations of their authors concerning what the law ought to be but for trustworthy
evidence of what the law really is.
The courts then goes on to conclude that by the general consent of the civilized nations of
the world, and independent of any express treaty or other public act, it is an established rule of
international law, founded on considerations of humanity to a poor and industrious order of men
that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and
honestly pursuing their peaceful calling are exempt from capture as prize of war.
The Case of S.S. Lotus (France v. Turkey), PCIJ Ser. A. No. 10 (1927)
FACTS: In 1926, a collision on the high seas between a French steamer, the Lotus, on the way
to Constantinople, and a Turkish steamer, the Boz Kourt, resulted in the sinking of the Turkish
vessel and the death of eight Turkish nationals.
The Lotus subsequently arrived in Constantinople at which point Turkish authorities arrested
Lt. Demons, the French officer of watch duty at Lotus at the time, and Hassan Bey, the captain
of the Boz-Kourt. Both were charged with manslaughter.
Damons argued that the Turkish Courts had no jurisdiction. This was rejected and he was
sentenced by the courts. Hassan Bey received a slightly heavier sentence. The French
Government objected to the actions of the Turkish Court claiming that in order to have
jurisdiction, the latter should be able to point to some title to jurisdiction recognized by
international law in favor of Turkey. On the other hand, the Turkish Government takes the view
that Turkey has jurisdiction whenever such jurisdiction does not come into conflict with a
principle of international law. Both Governments submitted the dispute over to the Permanent
Court of International Justice (precursor to ICJ).
ISSUE: WON Turkey had the jurisdiction to prosecute the case under international law.
HELD: Yes and no. Though it is true that in all systems of law, the principle of territorial
character of criminal law is fundamental, it is equally true that all or nearly all these systems of
law extend their action to offenses committed outside the territory of the State which adopts
them, and they do so in ways which vary from State to State. The territoriality of criminal law,
therefore, is not an absolute principle of international law and by no means coincides with
territorial sovereignty.
International law governs relations between independent States. The rules of law binding
upon States therefore emanate from their own free will as expressed in conventions or by
usages generally accepted as expressing principles of law and established in order to regulate
relations between these co-existing independent communities or with a view to the achievement
of common aims.
The court reserves its opinion in regard to the claim of jurisdiction under the passive
personality principle, but argues that that might not be the only basis for Turkeys exercise of
jurisdiction. Rather the court finds it significant that the offence produced its effects on a Turkish
vessel and consequently in a place assimilated by the Turkish territory. This doctrine of
assimilation, the Court attributes to the freedom of the seas, so that the State exercises
authority over and on the shop that files as its flag as it does on its own territory. It follows that
what occurs on board a vessel on the high seas must be regarded as it if occurred on the
territory of the State whose flag the ship flies.
This conclusion could only be overcome if it were shown that there was a rule of customary
international law which, going further than the principle stated above, established the exclusive
jurisdiction of the State whose flag was shown. The existence of such as rule has not been
conclusively proved by the French Government.
The court rejects the argument that relies on the fact that prosecution is usually before the
courts of the state whose flag is flown. The court argues that this does not proved that the states
affected felt obligated to prosecute, only that they desisted or abstained from prosecuting.
The conclusion therefore is that there is no rule of international law in regard to collision cases to
the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag
is flown. Thus, it is only natural that each should be able to exercise jurisdiction and to do so in
respect of the incident as a whole. It is therefore a case of concurrent jurisdiction.
Case Concerning Right of Passage over Indian Territory (Portugal v. India) [1960] ICJ 6
FACTS: Portugal's territory in the Indian Peninsula included two enclaves surrounded by the
Territory of India, Dadra and Nagar-Aveli. Portugal claimed that there was a right of passage
through Indian territory to reach the enclaves. In July 1954, the Government of India prevented
Portugal from exercising that right of passage and made it impossible for Portugal to exercise
her sovereign rights over the Portuguese enclaves. India contended that the right of passage
claimed by Portugal was too vague and contradictory.
Portugal had relied on the Treaty of Poona of 1779 and on sanads (decrees) issued by the
Maratha ruler in 1783 and 1785, as having conferred on Portugal sovereignty over the enclaves
with the right of passage to them; India had objected that what was alleged to be the Treaty of
1779 was not validly entered into and never became in law a treaty binding upon the Marathas.
The Court found that there was indeed a treaty and the language employed therein was inteded
to transfer sovereignty.
Portuguese sovereignty over the villages had been recognized by the British in fact
and by implication and had subsequently been tacitly recognized by India. As a consequence
the villages had acquired the character of Portuguese enclaves within Indian territory and there
had developed between the Portuguese and the territorial sovereign with regard to passage to
the enclaves a practice upon which Portugal relied for the purpose of establishing the right of
passage claimed by it. It had been objected on behalf of India that no local custom could be
established between only two States.

ISSUE: WON customary law can arise from practice of only two States. Does this give rise to
Portugal having a customary right over Indian territory to its enclaves?
HELD: Yes. The Court found it difficult to see why the number of States between which a local
custom might be established on the basis of over a century and a quarter long practice based on
mutual rights and obligations was insufficient for local custom to arise. This local practice, thus,
prevailed over any general rules.
The court observes that with regard to private persons, civil officials and goods, there
existed during the Bristish and post-British periods a constant and uniform practice allowing free
passage of Portuguese between Daman and the enclaves. In this way, the established practice,
well understood between the parties, allowed Portugal to acquire a right of passage in respect of
private persons, civil officials and goods in general.
The findings show that Portugal had in 1954 a right of passage over intervening Indian
territory between the enclaves of Dadra and Nagar-Aveli and the coastal district of Daman and
between these enclaves, to the extent necessary for the exercise of Portuguese sovereignty
over the enclaves and subject to the regulation and control of India, in respect of private
persons, civil of officials and goods in general.
Thus, when India suspended passage, India was acting in lawful exercise of its power of
regulation and control of the Portuguese rights. This was because the events which occurred in
Dadra on July 21-22, 1954 and which had resulted in the overthrow of Portuguese authority in
that enclave had created tension in the surrounding Indian district.
Bayan vs Executive Secretary Ronaldo Zamora, G.R. No. 138570, October 10, 2000
FACTS: The Philippines and the USA forged a Military Bases Agreement on March 14, 1047
and to further strengthen it, they entered into a Mutual Defense Treaty on August 30, 1951. In
view of the impending expiration of the RP-US Military Bases Agreement in 1991, both countries
negotiated for the possible extension of the agreement but the Philippine Senate rejected the
proposed RP-US Treaty of Friendship, Cooperation and Security. In 1997, the US Panel met
with the Philippine Panel to discuss the possible elements of the Visiting Forces Agreement
(VFA) and then president Ramos approved the same. In 1998, then president Estrada ratified
the VFA and through respondent Executive Secretary Zamora, the president officially
transmitted to the Senate of the Philippines, the instrument of Ratification, the letter of the
President and the VFA, for concurrence. In 1999, the VFA was approved by the Senate and
officially entered into force after an Exchange of Notes between respondent Secretary Siazon
and US Ambassador Hubbard.
The petitioners contend that the VFA is invalid based on Section 25, Article XVIII which
states that After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred
in by the senate and, when the Congress so requires, ratified by a majority of the votes cast by
the people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting State. They contend that the phrase recognized as a treaty, embodied in
section 25, Article XVIII, means that the VFA should have the advice and consent of the United
States Senate pursuant to its own constitutional process, and that it should not be considered
merely an executive agreement by the United States.
The respondents, on the other hand, maintain that Section 21, Article VII should apply
inasmuch as the VFA is not a basing arrangement but an agreement which involves merely the
temporary visits of United States personnel engaged in joint military exercises. The pertinent
provision reads as No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate. Additionally, respondents
argue that the letter of United States Ambassador Hubbard stating that the VFA is binding on
the United States Government is conclusive, on the point that the VFA is recognized as a treaty
by the United States of America. According to respondents, the VFA, to be binding, must only be
accepted as a treaty by the United States.

requiring ratification by a majority of the votes cast in a national referendum being unnecessary
since Congress has not required it.
This Court is of the firm view that the phrase recognized as a treaty means that the
other contracting party accepts or acknowledges the agreement as a treaty. To require the other
contracting state, the United States of America in this case, to submit the VFA to the United
States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the
phrase. Moreover, it is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive agreement is as binding as
a treaty. To be sure, as long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international
instrument concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments, and whatever its
particular designation. There are many other terms used for a treaty or international agreement,
some of which are: act, protocol, agreement, compromis d arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo
Grotius onward, have pointed out that the names or titles of international agreements included
under the general term treaty have little or no legal significance. Certain terms are useful, but
they furnish little more than mere description. Thus, in international law, there is no difference
between treaties and executive agreements in their binding effect upon states concerned, as
long as the negotiating functionaries have remained within their powers. International law
continues to make no distinction between treaties and executive agreements: they are equally
binding obligations upon nations.
With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now becomes
obligatory and incumbent on our part, under the principles of international law, to be bound by
the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution, declares
that the Philippines adopts the generally accepted principles of international law as part of the
law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and
amity with all nations.
Land Bank of the Philippines v. Atlanta Industies, Inc. G.R. No.193796, July 2, 2014.
FACTS: In 2006, Land Bank of the Philippines (LBP) and the International Bank for
Reconstruction and Development (IBRD) entered into Loan Agreement No. 4833-PH for the
implementation of projects for local development. This loan was with the condition of the
participation of at least two (2) local government units by way of a Subsidiary Loan Agreement
(SLA) with LBP.
In 2007, LBP entered into an SLA with the City Government of Iligan for their water supply
system. The city, through its Bids and Awards Committee (BAC), conducted a public bidding and
respondent Atlanta Industries, Inc. (Atlanta) came up with the second to the lowest bid.
Later on, BAC informed Atlanta that the bidding was declared a failure due to the IBRD's
non-concurrence with the Bid Evaluation Report. Furthermore, the bidding failed due to noted
violations of the IBRD Procurement Guidelines. Atlanta did not pursue the matter and opted to
participate in the re-bidding of the project.
In 2009, Atlanta called the BAC's attention to its use of Bidding Documents which was not
in conformity with the prescribed Bidding Documents in accordance with RA 9184. During the
pre-bid conference, the BAC declared that the project was not covered by RA 9184 or by any of
the Government Procurement Policy Board's issuances.
Apprehensive of the BAC's use of Bidding Documents, Atlanta filed a petition for prohibition
and mandamus. RTC Manila declared the subject bidding null and void on the ground that it was
done contrary to RA 9184. RTC Manila also ruled that the City Government of Iligan cannot
claim exemption from the application of RA 9184 and its IRR by virtue of Loan Agreement No.
48~3-PH with the IBRD because it was Land Bank, and not the City Government of Iligan, which
was the party to the same. Thus this petition.
ISSUE: WON the SLA executed by Land Bank is exempt from RA 9184.

ISSUE: WON Section 25, Article XVIII applies in the VFA and thus, should comply with the fact
that the agreement must be recognized as a treaty by the US.
HELD: Yes. However, VFA is still valid. To our mind, the fact that the President referred the VFA
to the Senate under Section 21, Article VII, and that the Senate extended its concurrence under
the same provision, is immaterial. For in either case, whether under Section 21, Article VII or
Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is
mandatory to comply with the strict constitutional requirements. Undoubtedly, Section 25, Article
XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities,
should apply in the instant case. To a certain extent 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. Certainly, we
find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or
placed permanently in the Philippines. A perusal of said constitutional provision reveals that the
proscription covers foreign military bases, troops, or facilities. Thus the provision contemplates
three different situations - a military treaty the subject of which could be either (a) foreign bases,
(b) foreign troops, or (c) foreign facilities - any of the three standing alone places it under the
coverage of Section 25, Article XVIII.
There is no dispute as to the presence of the first two requisites in the case of the VFA.
The concurrence handed by the Senate through Resolution No. 18 is in accordance with the
provisions of the Constitution, whether under the general requirement in Section 21, Article VII,
or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter article

HELD: Yes. Loan Agreement No. 4833-PH is in the nature of an executive agreement. In Bayan
Muna v. Romulo (Bayan Muna) the Court defined an international agreement as one concluded
between states in written form and governed by international law, "whether embodied in a single
instrument or in two or more related instruments and whatever its particular designation," and
further expounded that it may be in the form of either (a) treaties that require legislative
concurrence after executive ratification; or ( b) executive agreements that are similar to treaties,
except that they do not require legislative concurrence and are usually less formal and deal with
a narrower range of subject matters than treaties.
Being similar to a treaty but without requiring legislative concurrence, Loan Agreement No.
4833-PH - following the definition given in the Bayan Muna case - is an executive agreement
and is, thus, governed by international law. Owing to this classification, the Government of the
Philippines is therefore obligated to observe its terms and conditions under the rule of pacta sunt
servanda, a fundamental maxim of international law that requires the parties to keep their
agreement in good faith. It bears pointing out that the pacta sunt servanda rule has become part
of the law of the land through the incorporation clause found under Section 2, Article II of the
1987 Philippine Constitution, which states that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations."
As may be palpably observed, the terms and conditions of Loan Agreement No. 4833-PH,
being a project-based and government-guaranteed loan facility, were incorporated and made
part of the SLA that was subsequently entered into by Land Bank with the City Government of
Iligan. Consequently, this means that the SLA cannot be treated as an independent and
unrelated contract but as a conjunct of, or having a joint and simultaneous occurrence with,

Loan Agreement No. 4833-PH. Its nature and consideration, being a mere accessory contract of
Loan Agreement No. 4833-PH, are thus the same as that of its principal contract from which it
receives life and without which it cannot exist as an independent contract. Indeed, the accessory
follows the principal; and, concomitantly, accessory contracts should not be read independently
of the main contract. Hence, as Land Bank correctly puts it, the SLA has attained indivisibility
with the Loan Agreement and the Guarantee Agreement through the incorporation of each
other's terms and conditions such that the character of one has likewise become the character
of the other.
Abaya vs Ebdane, G.R. No. 167919, February 14, 2007
FACTS: The Government of Japan and the Government of the Philippines reached an
understanding concerning Japanese loans to be extended to the Philippines. The Exchange of
Notes dated December 27, 1999 consisted of two documents: (1) a letter confirming the
understanding; and (2) the records of discussion of the terms of the loans. The Exchange of
Notes provided that the Philippines will ensure that the products and/or services to be financed
by the loans for the projects of the government are procured in accordance with the guidelines
for procurement of the Bank.
DPWH, caused the publication of the bidding for the implementation of the CP I project.
The Approved Budget for the Contract (ABC) was in the amount of ~P738m. China Road and
Bridge Corporation provided the lowest bid of ~P952m, thus was awarded the contract.
Petitioner Plaridel Abaya contested the award and sought to annul the contract of
agreement entered into by and between the DPWH and CR&BC. Their primary contention is on
the ground that the contract violates RA 9184 which states the ceiling for bid prices. Section 31
of the statute states that bid prices exceeding the ABC shall be disqualified outright, thus
rendering said contract void and inexistent.
Furthermore, they insist that Loan Agreement No. PH-P204 between the JBIC and the
Philippine Government is neither a treaty, 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.
ISSUE: WON Loan Agreement No. PH-P204 applies to the awarding of contract of CP I project.
HELD: Yes. EO 40, not RA 9184, is applicable to the procurement. EO 40 was issued on Oct 8,
2001 by then President Macapagal-Arroyo while RA 9184 took effect on January 26, 2004. The
invitation to bid was published in 2002, before RA 9184 took effect, thus cannot be given
retroactive application.
Moreover, this holds that Loan Agreement No. PH-P204 taken in conjunction with the
Exchange of Notes dated December 27, 1999 between the Japanese Government and the
Philippine Government is an executive agreement. Despite the arguments of petitioners that the
Loan Agreement does not fall under EO 459 which defined Treaties, International Agreements
and Executive Agreements, this Court is not persuaded.
To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and the
Philippine Government pursuant to the Exchange of Notes executed by and between Mr.
Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and
then Foreign Affairs Secretary Siazon, in behalf of their respective governments. The Exchange
of Notes expressed that the two governments have reached an understanding concerning
Japanese loans to be extended to the Philippines and that these loans were aimed at promoting
our countrys economic stabilization and development efforts.
Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so
entered by the parties "[i]n the light of the contents of the Exchange of Notes between the
Government of Japan and the Government of the Republic of the Philippines dated December
27, 1999, concerning Japanese loans to be extended with a view to promoting the economic
stabilization and development efforts of the Republic of the Philippines." Under the
circumstances, the JBIC may well be considered an adjunct of the Japanese Government.
Further, Loan Agreement No. PH-P204 is indubitably an integral part of the Exchange of Notes.
It forms part of the Exchange of Notes such that it cannot be properly taken independent
thereof.
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. Agreements concluded by the President which fall short of treaties are commonly
referred to as executive agreements and are no less common in our scheme of government
than are the more formal instruments treaties and conventions. They sometimes take the form
of exchange of notes and at other times that of more formal documents denominated
"agreements" or "protocols".
Under 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.
The Commissioner of Customs vs Eastern Sea Trading, G.R. No. L-14279, Oct 31, 1961
FACTS: Eastern Sea Trading was the consignee of several shipments of onion and garlic which
arrived at the Port of Manila from August 25 to September 7, 1954. None of the shipments had
the certificate required by Central Bank Circulars Nos. 44 and 45 for the release thereof. Thus,
the goods were seized and subjected to forfeiture proceedings.

The respondents contend that the Central Bank has no authority to regulate transactions
not involving foreign exchange; that the shipments are in the nature of "no-dollar" imports and as
such, they do not involve foreign exchange; that the cerficiates required by Central Bank
Circulars Nos. 44 and 45 are null and void. The same Circulars were created in pursuant to
Executive Order No. 328 which sought to extend the effectivity of our Trades and Financial
Agreements with Japan. The legality of the EO 328 was questioned on the ground that our
Senate had not concurred in the making of the said executive agreement.
The Collector of Customs of Manila rendered a decision declaring the goods forfeited to
the Government and the goods having been, in the meantime, released to the consignees on
surety bonds. On appeal, said decision was affirmed by the Commissioner of Customs.
Subsequently, the consignee sought a review of the decision of said two (2) officers by the Court
of Tax Appeals, which reversed the decision of the Commissioner of Customs and ordered that
the aforementioned bonds be cancelled and withdrawn. Hence, the present petition of the
Commissioner of Customs for review of the decision of the Court of Tax Appeals.
ISSUE: WON EO 328 needs the concurrence of at least 2/3 of the Senate to be valid.
HELD: No. The concurrence of said House of Congress is required by our fundamental law in
the making of "treaties" (Constitution of the Philippines, Article VII, Section 10[7]), which are,
however, distinct and different from "executive agreements," which may be validly entered into
without such concurrence.
Treaties are formal documents which require ratification with the approval of two thirds of
the Senate. Executive agreements become binding through executive action without the need of
a vote by the Senate or by Congress.
International agreements involving political issues or changes of national policy and those
involving international arrangements of a permanent character usually take the form of treaties.
But international agreements embodying adjustments of detail carrying out well-established
national policies and traditions and those involving arrangements of a more or less temporary
nature usually take the form of executive agreements.
Secretary of Justice vs Lantion, G.R. No. 139465, January 18, 2000
FACTS: In 1977, then President Marcos issued PD No. 1069 "Prescribing the Procedure for the
Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is
founded on several things including the extradition treaty with Indonesia and the intention of the
Philippines to enter into similar treaties with other interested countries.
In 1994, then Secretary of Justice Franklin Drilon, signed the "Extradition Treaty Between
the Government of the Republic of the Philippines and the Government of the United States of
America" (RP-US Extradition Treaty). The Senate concurred with the ratification of said treaty.
In 1999, the DOJ received from US DFA a request for the extradition of Mark Jimenez. On
the same day, petitioner authorized a panel of attorneys to take charge of and to handle the
case pursuant to PD No. 1069. Pending evaluation of the extradition documents, private
respondent Jimenez wrote a letter requesting copies of the official extradition request and that
he be given ample time to comment on the extradition request. However, petitioner denied the
letter of Jimenez, citing Article 7 of the RP-US Extradition Treaty which provides that the
Philippine Government must represent the interests of the United States in any proceedings
arising out of a request for extradition. According to the denial of the DOJ, the particular
extradition request the United States Government requested the Philippine Government to
prevent unauthorized disclosure of the subject information, thus said denial is consistent with
the treaty.
Thereafter, private respondent filed for mandamus with RTC Manila compelling herein
petitioner to furnish private respondents the extradition documents and to afford him an
opportunity to comment on them. Respondent Judge Lantion granted the petition of Jimenez.
Forthwith, the petitioner initiated the instant proceedings.
ISSUE: WON private respondent is adjudged entitled to basic due process rights as opposed to
upholding the legal commitments and obligations of the Philippine Government under the RPUS Extradition Treaty.
HELD: Yes. We see a void in the provisions of the RP-US Extradition Treaty, as implemented by
Presidential Decree No. 1069, as regards the basic due process rights of a prospective
extraditee at the evaluation stage of extradition proceedings. In the absence of a law or a
principle of law, we apply the rules of fair play. An application of the basic twin due process
rights of notice and hearing will not go against the treaty or the implementing law. Neither the
Treaty nor the Extradition Law precludes these rights from a prospective extraditee.
The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of
international law, requires the parties to a treaty to keep their agreement therein in good faith.
The observance of our country's legal duties under a treaty is also compelled by Section 2,
Article II of the Constitution which provides that "[t]he Philippines renounces war as an
instrument of national policy, adopts the generally accepted principles of international law as
part of the law of the land, and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with nations." Under the doctrine of incorporation, rules of international
law form part of the law of the and land no further legislative action is needed to make such
rules applicable in the domestic sphere.
The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are
confronted with situations in which there appears to be a conflict between a rule of international
law and the provisions of the constitution or statute of the local state. Efforts should first be
exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal
law was enacted with proper regard for the generally accepted principles of international law in
observance of the observance of the Incorporation Clause in the above-cited constitutional
provision. In a situation, however, where the conflict is irreconcilable and a choice has to be

made between a rule of international law and municipal law, jurisprudence dictates that
municipal law should be upheld by the municipal courts for the reason that such courts are
organs of municipal law and are accordingly bound by it in all circumstances. The fact that
international law has been made part of the law of the land does not pertain to or imply the
primacy of international law over national or municipal law in the municipal sphere. The doctrine
of incorporation, as applied in most countries, decrees that rules of international law are given
equal standing with, but are not superior to, national legislative enactments. Accordingly, the
principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute
may repeal a treaty. In states where the constitution is the highest law of the land, such as the
Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict
with the constitution.
The human rights of person, whether citizen or alien, and the rights of the accused
guaranteed in our Constitution should take precedence over treaty rights claimed by a
contracting state. Stated otherwise, the constitutionally mandated duties of our government to
the individual deserve preferential consideration when they collide with its treaty obligations to
the government of another state. This is so although we recognize treaties as a source of
binding obligations under generally accepted principles of international law incorporated in our
Constitution as part of the law of the land.
Department of Budget and Management Procurement Service v. Kolonwel Trading, G.R.
Nos. 175608, 175659 and 175616,June 8, 2007.
FACTS: In the middle of 2005, the DepED requested a procurement project for the supply and
delivery of 17.5 million copies of Makabayan textbooks and teachers manuals, which is to be
jointly funded by the World Bank (WB) through the Philippines (RP) International Bank for
Reconstruction and Development (IBRD) Loan Agreement No. 7118-PH and the Asian
Development Bank (ADB), through SEDIP Loan No. 1654-PHI.
On Oct 27, 2005, the Department of Budget and Management Procurement Service InterAgency Bids and Awards Committee (IABAC) divided the project into three lots and called for
the three biddings of which foreign and local bidders procured Bidding Documents. Kolonwel's
tender appeared appeared to cover all three lots.
Through a series of events, the WB and IABAC reviewed and disqualified certain bidders
including respondent Kolonwel. Kolonwel raised several issues and requested that its
disqualification be reconsidered and set aside. However, the DBM-PS IABAC chairman informed
Kolonwel of the denial of its request for reconsideration and of the WBs concurrence with the
denial. The three contracts were then awarded to Vibal, Watana and Daewoo respectively and
upon review, WB offered "no objection" to the recommended award.
Kolonwel filed with the RTC of Manila a special civil action for certiorari and prohibition
with a prayer for a temporary restraining order (TRO) and/or writ of preliminary injunction. In
support of its TRO application, Kolonwel alleged, among other things, that the supply-awardees
were rushing with the implementation of the void supply contracts to beat the loan closing-date
deadline. The Manila RTC granted Kolonwel's petition and held that the WB Guidelines on
Procurement under IBRD Loans is in no way superior over local laws.
ISSUE: WON IBRD Loan Agreement No. 7118-PH is superior over local laws on procurement.
HELD: Yes. In this regard, the stipulation of the Loan states that the Guidelines for Procurement
to be followed must be under IBRD Loans. Section 4 of RA 9184 expressly recognized that in
Procurement, any 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 question as to whether or not foreign loan agreements with international financial
institutions, such as Loan No. 7118-PH, partake of an executive or international agreement
within the purview of the Section 4 of R.A. No. 9184, has been answered by the Court in the
affirmative in Abaya, supra. Significantly, Abaya declared that the RP-JBIC loan agreement was
to be of governing application over the CP I project and that the JBIC Procurement Guidelines,
as stipulated in the loan agreement, shall primarily govern the procurement of goods necessary
to implement the main project.
Under the fundamental international law principle of pacta sunt servanda, which is in fact
embodied in the afore-quoted Section 4 of R.A. No. 9184, the RP, as borrower, bound itself to
perform in good faith its duties and obligation under Loan No. 7118- PH. Applying this postulate
in the concrete to this case, the IABAC was legally obliged to comply with, or accord primacy to,
the WB Guidelines on the conduct and implementation of the bidding/procurement process in
question.
Pharmaceutical & Health Care Assoc. of the Phil v. Duque III, GR No 173034, Oct 9, 2007.
FACTS: President Corazon Aquino issued Executive Order No. 51 (Milk Code) in which one of
its preambular clauses of the Milk Code states that the law seeks to give effect to Article 11 of
the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the
World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several
Resolutions to the effect that breastfeeding should be supported, promoted and protected,
hence, it should be ensured that nutrition and health claims are not permitted for breastmilk
substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child. On
May 15, 2006, the DOH issued Administrative Order (A.O.) No. 2006-0012 entitled, Revised
Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known as The "Milk
Code," Relevant International Agreements, Penalizing Violations Thereof, and for Other
Purposes (RIRR) which was to take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of
breastmilk substitutes, filed the present Petition for Certiorari under Rule 65 seeking to nullify the

RIRR claiming that it is not valid as it contains provisions that are not constitutional and go
beyond the law it is supposed to implement.
The Court granted a TRO preventing the implementation of the RIRR.
ISSUE: WON the RIRR issued by the Department of Health (DOH) is not constitutional.
HELD: Partly Yes. The Court notes that the following international instruments invoked by
respondents, namely: (1) The United Nations Convention on the Rights of the Child; (2) The
International Covenant on Economic, Social and Cultural Rights; and (3) the Convention on the
Elimination of All Forms of Discrimination Against Women, only provide in general terms that
steps must be taken by State Parties to diminish infant and child mortality and inform society of
the advantages of breastfeeding, ensure the health and well-being of families, and ensure that
women are provided with services and nutrition in connection with pregnancy and lactation. Said
instruments do not contain specific provisions regarding the use or marketing of breastmilk
substitutes.
The international instruments that do have specific provisions regarding breastmilk
substitutes are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic
law either by transformation or incorporation. The transformation method requires that an
international law be transformed into a domestic law through a constitutional mechanism such
as local legislation. The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law.
Treaties become part of the law of the land through transformation pursuant to Article VII,
Section 21 of the Constitution which 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." Thus, treaties or conventional international law must go through a process prescribed
by the Constitution for it to be transformed into municipal law that can be applied to domestic
conflicts.
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at
least two-thirds of all members of the Senate as required under Section 21, Article VII of the
1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into
domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that has
the force and effect of law in this jurisdiction and not the ICMBS per se.
On the other hand, Section 2, Article II of the 1987 Constitution embodies the incorporation
method. Generally accepted principles of international law" refers to norms of general or
customary international law which are binding on all states.
Clearly, customary international law is deemed incorporated into our domestic system.
Apparently WHA Resolutions urging member states to implement the ICMBS are merely
recommendatory and legally non-binding. Thus, it is propounded that WHA Resolutions may
constitute "soft law" or non-binding norms, principles and practices that influence state behavior.
"Soft law" does not fall into any of the categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International Court of Justice. It is, however, an expression
of non-binding norms, principles, and practices that influence state behavior (usus).
However, for an international rule to be considered as customary law, it must be
established that such rule is being followed by states because they consider it obligatory to
comply with such rules (opinio juris). But WHA Resolutions have not been embodied in any local
legislation. Respondents failed to establish that the provisions of pertinent WHA Resolutions are
customary international law that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions
into domestic law. The provisions of the WHA Resolutions cannot be considered as part of the
law of the land that can be implemented by executive agencies without the need of a law
enacted by the legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions,
can be validly implemented by the DOH through the subject RIRR.
Razon Jr. v. Tagitis, G.R. No. 182498, December 3, 2009.
FACTS: On Oct 31, 2007, Engineer Morced Tagitis together with Arsimin Kunnong arrived in
Jolo by boat from a serminar in Zamboanga City. Tagitis asked Kunnong to buy him a boat ticket
for his return trip to Zamboanga but when Kunnong returned from his errard, Tagitis was no
longer around.
On Nov 4, 20017 Kunnong and Muhammad Abdulnazeir N. Matli reported Tagitis'
disappearance to the Jolo Police Station. More than a month later, on December 28, Tagitis'
wife, Mary Jean B. Tagitis (respondent herein) filed a Petition for the Writ of Amparo with the CA.
The facts presented states that Engr Tagitis went out of the pension house to take his early
lunch but while out on the street, a couple of burly men believed to be police intelligence
operatives, forcibly took him and boarded the latter on a motor vehicle then sped away without
the knowledge of his student, Arsimin Kunnong. However, Kunnong and his friends were
fruitless in their efforts to locate Engr. Tagitis which lead to Kunnong reporting the matter to the
respondent. According to a reliable information received by the respondent, Engr Tagitis is in the
custody of police intelligence operatives. Respondent filed her complaint with the PUP Police
Station in the ARMM in Cotabato and in Jolo and was told of an intriguing tale by the police that
her husband was not missing but was with another woman having good time somewhere. The
police even suggested that she report the matter to different Police Headquarters out of her own
expense fares and eventually informed her that they are not the proper persons that she should
approach, but assured her not to worry because her husband is in good hands. Out of
administrative avenues and remedies, the respondent turned to the courts for help.
The CA immediately issued the Writ of Amparo. The petitioners claimed innocence and
expressed that they have exerted necessary efforts in locating Engr. Tagitis. The CA directed
Gen. Goltiao as the officer in command of the area of disappearance to form TASK FORCE

TAGITIS. However, even TASK FORCE TAGITIS was not successful and reports even
recommended that the Writ of Amparo be dropped. The CA issued a warning against TASK
FORCE TAGITIS for not exerting an extraordinary efforts in resolving Tagitis' disappearance.
On March 7, 2008, the CA issued its decision confirming that the disappearance of Tagitis
was an enforced disappearance under the United Nations (UN) Declaration on the Protection
of All Persons from Enforced Disappearances. The CA ruled that when military intelligence
pinpointed the investigative arm of the PNP (CIDG) to be involved in the abduction, the missingperson case qualified as an enforced disappearance. The CA thus extended the privilege of the
writ to Tagitis and his family. Thus this petition.

These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo, which
the Court made effective on October 24, 2007. Although the Amparo Rule still has gaps waiting
to be filled through substantive law, as evidenced primarily by the lack of a concrete definition of
enforced disappearance, the materials cited above, among others, provide ample guidance
and standards on how, through the medium of the Amparo Rule, the Court can provide remedies
and protect the constitutional rights to life, liberty and security that underlie every enforced
disappearance.

ISSUE: WON the disappearance of Tagitis is an enforced disappearance that would apply the
Rule on the Writ of Amparo.

FACTS: On 14 September 2002, petitioner China National Machinery & Equipment Corp.
(Group) (CNMEG) entered into a Memorandum of Understanding with the North Luzon Railways
Corporation (Northrail) 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 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.
On 13 February 2006, private respondents filed a Complaint for Annulment of Contract.
They 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.
CNMEG filed a Motion to Dismiss, arguing that the trial court did not have jurisdiction over
(a) its person, as it was an agent of the Chinese government, making it immune from suit, and
(b) the subject matter, as the Northrail Project was a product of an executive agreement. The
trial court denied CNMEG's motion and also denied the Motion for Reconsideration. Thereafter,
CA dismissed the petition for certiorari and denied the Motion for Reconsideration. Thus this
petition.

HELD: Yes. The phenomenon of enforced disappearance arising from State action first started
in Adolt Hitler's Decree where persons were transported secretly to Germany where they
disappeared without a trace and prohibiting government officials from providing information
about the fate of these targeted persons.
The enforced disappearance proceeded during the military regime in Argentina, Latin
America , and the issue became an international concern when the world noted its widespread
and systematic use by State security forces in that continent under Operation Condor and during
the Dirty War in the 1970s and 1980s. As this fom of political brutality became routine, the
victims of enforced disappearances were called the desaparecidos, which literally means the
disappeared ones. In general, there are three different kinds of disappearance cases:
1) those of people arrested without witnesses or without positive identification of
the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate warrant
and held in complete isolation for weeks or months while their families are unable to
discover their whereabouts and the military authorities deny having them in custody
until they eventually reappear in one detention center or another; and
3) those of victims of salvaging who have disappeared until their lifeless
bodies are later discovered.
In the Philippines, enforced disappearances generally fall within the first two categories. The
Amparo Rule expressly provides that the writ shall cover extralegal killings and enforced
disappearances or threats thereof. We note that although the writ specifically covers enforced
disappearances, this concept is neither defined nor penalized in this jurisdiction. The simple
reason is that the Legislature has not spoken on the matter; the determination of what acts are
criminal and what the corresponding penalty these criminal acts should carry are matters of
substantive law that only the Legislature has the power to enact under the countrys
constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on extra-judicial killings and
enforced disappearances, however, the Supreme Court is not powerless to act under its own
constitutional mandate to promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts, since extrajudicial killings
and enforced disappearances, by their nature and purpose, constitute State or private party
violation of the constitutional rights of individuals to life, liberty and security.
From the International Law perspective, involuntary or enforced disappearance is
considered a flagrant violation of human rights. It does not only violate the right to life, liberty
and security of the desaparecido; it affects their families as well through the denial of their right
to information regarding the circumstances of the disappeared family member.
The UN General Assembly first considered the issue of Disappeared Persons in December
1978 under Resolution 33/173. In 1992, the UN General Assembly adopted the Declaration on
the Protection of All Persons from Enforced Disappearance (Declaration). This Declaration, for
the first time, provided in its third preambular clause a working description of enforced
disappearance. Fourteen years after (or on December 20, 2006), the UN General Assembly
adopted the International Convention for the Protection of All Persons from Enforced
Disappearance (Convention). The Convention is the first universal human rights instrument to
assert that there is a right not to be subject to enforced disappearance and that this right is nonderogable.
To date, the Philippines has neither signed nor ratified the Convention, so that the country
is not yet committed to enact any law penalizing enforced disappearance as a crime. The
absence of a specific penal law, however, is not a stumbling block for action from this Court, as
heretofore mentioned; underlying every enforced disappearance is a violation of the
constitutional rights to life, liberty and security that the Supreme Court is mandated by the
Constitution to protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is guided, in
acting on Amparo cases, by the reality that the Philippines is a member of the UN, bound by its
Charter and by the various conventions we signed and ratified, particularly the conventions
touching on humans rights. As a matter of human right and fundamental freedom and as a policy
matter made in a UN Declaration, the ban on enforced disappearance cannot but have its
effects on the country, given our own adherence to generally accepted principles of
international law as part of the law of the land.
The International Court of Justice deemed an international custom, as evidencee of a
general practice accepted as law. This requires the "State practice" and "opinio juris". To this,
certain states of Europe, the Organization of American States, United States, Rome, and in
interpreting Article 2 of the International Convention on Civil and Political Rights (ICCPR), to
which the Philippines is both a signatory and a State Party, show that enforced disappearance
as a State practice has been repudiated by the international community, so that the ban on it is
now a generally accepted principle of international law, which we should consider a part of the
law of the land, and which we should act upon to the extent already allowed under our laws and
the international conventions that bind us.

China National Machinery and Equip Corp v. Santamaria, G.R. No. 185572, Feb 7, 2012.

ISSUE: WON the Contract Agreement is an executive agreement, such that it cannot be
questioned by or before a local court.
HELD: No. A treaty is a[ny] international agreement concluded between States in written form
and governed by international law, whether embodied in a single instrument or in two or more
relate instruments and whatever its particular designation.
The Contract Agreement was not concluded between the States of Philippines and China, but
between Northrail and CNMEG. By the terms of the Contract Agreement, Northrail is a
government-owned or controlled corporation, while CNMEG is a corporation duly organized and
created under the laws of the Peoples Republic of China. Thus, both Northrail and CNMEG
entered into the Contract Agreement as entities with personalities distinct and separate from the
Philippine and Chinese governments respectively.
Neither can it be said that CNMEG acted as agent of the Chinese government. As
Ambassador Wang described CNMEG as a State corporation, it did not mean that it was to
perform sovereign functions on behalf of China. Article 2 of the Conditions of Contract explicitly
provides that Philippine law shall be applicable, the parties have effectively conceded that their
rights and obligations thereunder are not governed by international law.
It is therefore clear from the foregoing reasons that the Contract Agreement does not partake
of the nature of an executive agreement. It is merely an ordinary commercial contract that can
be questioned before the local courts.
PCGG v. Sandiganbayan, G.R. No. 124772, August 14, 2007.
FACTS: The case at bar emanates from a letter of the Office of the Solicitor General to the
Federal Office for Police Matters in Berne, Switzerland regarding the sequestration and
restitution of the alleged ill-gotten wealth of the Marcoses. The Office of the District Attorney in
Zurich responded to such request and as an effect, the Banker's Trust A.G. (BTAG) of Zurich
forze the accounts of the Officeco Holdings, N.V. (Officeco). Officeco appealed but such was
dismissed by the Zurich court. It then made representation before the Office of the Solicitor
General (OSG) and Presidential Commission on Good Government (PCGG) for them to officially
advise the Swiss Federal Office to unfreeze their assets. The PCGG required Officeco to
present evidence to support their petition. Instead of complying with the requirement, Officeco
instituted a civil case before public respondent Sandiganbayan with a prayer that Officecos
account be unfreeze and excluded from sequestration. The PCGG and OSG appealed before
the Sandiganbayan but such was denied. Hence, the filing of this petition.
ISSUE: WON the Act of State Doctrine may be invoked by PCGG.
HELD: No. The act of state doctrine is one of the methods by which States prevent their national
courts from deciding disputes which relate to the internal affairs of another State, the other two
being immunity and non-justiciability. It is an avoidance technique that is directly related to a
States obligation to respect the independence and equality of other States by not requiring them
to submit to adjudication in a national court or to settlement of their disputes without their
consent. It requires the forum court to exercise restraint in the adjudication of disputes relating to
legislative or other governmental acts which a foreign State has performed within its territorial
limits.
Even sovereign state is bound to respect the independence of every other state, and the
courts of one country will not sit in judgment on the acts of the government of another, done

within its territory. Redress of grievances by reason of such acts must be obtained through the
means open to be availed of by sovereign powers as between themselves.
Even assuming that international law requires the application of the act of state doctrine, it
bears stressing that the Sandiganbayan will not examine and review the freeze orders of the
concerned Swiss officials. The Sandiganbayan will not require the Swiss officials to submit to its
adjudication nor will it settle a dispute involving said officials. In fact, as prayed for in the
complaint, the Sandiganbayan will only review and examine the propriety of maintaining the
PCGGs position with respect to Officecos accounts with BTAG for the purpose of further
determining the propriety of issuing a writ against the PCGG and the OSG. Everything
considered, the act of state doctrine finds no application in this case and petitioners resort to it
is utterly mislaid.
Vinuya v. Romulo, G.R. No. 162230, April 28, 2010
FACTS: This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an
application for the issuance of a writ of preliminary mandatory injunction against the Office of the
Executive Secretary, the Secretary of the DFA, the Secretary of the DOJ, and the OSG.
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization
registered with the SEC, established for the purpose of providing aid to the victims of rape by
Japanese military forces in the Philippines during the Second World War.
Petitioners claim that since 1998, they have approached the Executive Department through
the DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials
and military officers who ordered the establishment of the comfort women stations in the
Philippines. But officials of the Executive Department declined to assist the petitioners, and took
the position that the individual claims of the comfort women for compensation had already been
fully satisfied by Japans compliance with the Peace Treaty between the Philippines and Japan.
Hence, this petition where petitioners pray for this court to (a) declare that respondents
committed grave abuse of discretion amounting to lack or excess of discretion in refusing to
espouse their claims for the crimes against humanity and war crimes committed against them;
and (b) compel the respondents to espouse their claims for official apology and other forms of
reparations against Japan before the International Court of Justice (ICJ) and other international
tribunals.
Respondents maintain that all claims of the Philippines and its nationals relative to the war
were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations
Agreement of 1956.
On January 15, 1997, the Asian Womens Fund and the Philippine government signed a
Memorandum of Understanding for medical and welfare support programs for former comfort
women. Over the next five years, these were implemented by the Department of Social Welfare
and Development.
ISSUE: WON the Executive Department committed grave abuse of discretion in not espousing
petitioners claims for official apology and other forms of reparations against Japan.
HELD: No. From a Domestic Law Perspective, the Executive Department has the exclusive
prerogative to determine whether to espouse petitioners claims against Japan.
Political questions refer to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom, not legality of a particular measure.
One type of case of political questions involves questions of foreign relations. It is wellestablished that the conduct of the foreign relations of our government is committed by the
Constitution to the executive and legislativethe politicaldepartments of the government, and
the propriety of what may be done in the exercise of this political power is not subject to judicial
inquiry or decision. are delicate, complex, and involve large elements of prophecy. They are
and should be undertaken only by those directly responsible to the people whose welfare they
advance or imperil.
But not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive agreements.
However, the question whether the Philippine government should espouse claims of its nationals
against a foreign government is a foreign relations matter, the authority for which is
demonstrably committed by our Constitution not to the courts but to the political branches. In this
case, the Executive Department has already decided that it is to the best interest of the country
to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951.
The wisdom of such decision is not for the courts to question.
The President, not Congress, has the better opportunity of knowing the conditions which
prevail in foreign countries, and especially is this true in time of war. He has his confidential
sources of information. He has his agents in the form of diplomatic, consular and other officials.
The Executive Department has determined that taking up petitioners cause would be
inimical to our countrys foreign policy interests, and could disrupt our relations with Japan,
thereby creating serious implications for stability in this region. For the to overturn the Executive
Departments determination would mean an assessment of the foreign policy judgments by a
coordinate political branch to which authority to make that judgment has been constitutionally
committed.
From a municipal law perspective, certiorari will not lie. As a general principle, where such
an extraordinary length of time has lapsed between the treatys conclusion and our
consideration the Executive must be given ample discretion to assess the foreign policy
considerations of espousing a claim against Japan, from the standpoint of both the interests of
the petitioners and those of the Republic, and decide on that basis if apologies are sufficient,
and whether further steps are appropriate or necessary.

In the international sphere, traditionally, the only means available for individuals to bring a
claim within the international legal system has been when the individual is able to persuade a
government to bring a claim on the individuals behalf. By taking up the case of one of its
subjects and by resorting to diplomatic action or international judicial proceedings on his behalf,
a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the
rules of international law.
Within the limits prescribed by international law, a State may exercise diplomatic protection
by whatever means and to whatever extent it thinks fit, for it is its own right that the State is
asserting. Should the natural or legal person on whose behalf it is acting consider that their
rights are not adequately protected, they have no remedy in international law. All they can do is
resort to national law, if means are available, with a view to furthering their cause or obtaining
redress. All these questions remain within the province of municipal law and do not affect the
position internationally.
Even the invocation of jus cogens norms and erga omnes obligations will not alter this
analysis. Petitioners have not shown that the crimes committed by the Japanese army violated
jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute
perpetrators of international crimes is an erga omnes obligation or has attained the status of jus
cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been used as
a legal term describing obligations owed by States towards the community of states as a whole.
Essential distinction should be drawn between the obligations of a State towards the
international community as a whole, and those arising vis--vis another State in the field of
diplomatic protection. By their very nature, the former are the concern of all States. In view of
the importance of the rights involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.
The term jus cogens (literally, compelling law) refers to norms that command
peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are
considered peremptory in the sense that they are mandatory, do not admit derogation, and can
be modified only by general international norms of equivalent authority