Bayan

G. R. No. 159618, February 01, 2011

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:
1.

Whether or not the petitioners have locus standi on the matter

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:
1.

Yes, the petitioners has locus standi.

Locus standi is the right of appearance in a court of justice on a given question. It is the partys personal and substantial
interest in a case where he has sustained or will sustain direct injury as a result of the act being challenged and calls for more
than general grievance.
When suing as a citizen, he must be able to show not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way.
In the case at bar, petitioners representatives have complied with the qualifying conditions or a specific requirements exacted
under the locus standi rule. As citizens their interest on the subject matter of the petition is direct and personal. At the very
least, their assertions questioning the agreement are made of a public right.

2.

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 well-recognized 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 inter-governmental
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-028-03be 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.
3.

Senate Concurrence not required

The Vienna Convention defines a treaty as an international agreement concluded between states in written form and governed
by international law. It may be in the form of (1) treaty- that requires legislative concurrence after executive ratification and (2)
executive agreements that are similar to treaties, except that they do not require legislative concurrence and are usually less
formal and deal with a narrower range of subject matters than treaties.
Petitioner partakes that it is a treaty, hence concurrence of the Senate is required. They presented several jurisprudence
supporting their contention that it is a treaty however the SC ruled that there is no hard and fast rule on the propriety of
entering on a given subject, into a treatyor an executive agreement as an instrument of international relations.
The right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has
been confirmed by long usage. The validity has never been seriously questioned by our courts.

4.

The Agreement not in contravention of the Rome Statute

-

Petitioner contended that the agreement undermines the establishment of the ICC and is null and void insofar as it
unduly restricts the ICCs jurisdiction and infringes upon the effectivity of the Rome Statute and providing immunity to
individuals of the other party.
But contrary to the petitioners pretense, the Agreement does not contravene or undermine, nor does it differ from, the
Rome Statute. Far from going against each other, one complements the other. As a matter of fact, the principle of
complementarity underpins the creation of the ICC. As aptly pointed out by respondents and admitted by
petitioners, the jurisdiction of the ICC is to "be complementary to national criminal jurisdictions [of the signatory
states.
the sixth preambular paragraph of the Rome Statute declares that "it is the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes." This provision indicates that primary jurisdiction over the socalled international crimes rests, at the first instance, with the state where the crime was committed; secondarily, with the
ICC in appropriate situations contemplated under Art. 17, par. 155 of the Rome Statute.
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional conflict between
the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of the Agreement substantially
impairing the value of the RPs undertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the
Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute expressly recognizes the
primary jurisdiction of states, like the RP, over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling or unable to
prosecute.

5.

Agreement
Not
with Principles of International Law

Immoral/Not

at

Variance

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 non-surrender agreement over an offense considered criminal by both Philippine laws and the
Rome Statute.
6.

There is no grave abuse of discretion

The petitioner faults the President for performing, through respondents a task conferred the President by the Constitution the power to
enter into international agreements.
By constitutional fiat and by the nature of his or her office, the President, as head of state and government, is the sole organ and
authority in the external affairs of the country.65 The Constitution vests in the President the power to enter into international agreements,
subject, in appropriate cases, to the required concurrence votes of the Senate. But as earlier indicated, executive agreements may be
validly entered into without such concurrence. As the President wields vast powers and influence, her conduct in the external affairs of
the nation is, as Bayan would put it, "executive altogether." The right of the President to enter into or ratify binding executive
agreements has been confirmed by long practice.66
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-Arroyo, represented by the
Secretary of Foreign Affairs, acted within the scope of the authority and discretion vested in her by the Constitution. At the end of the
day, the Presidentby ratifying, thru her deputies, the non-surrender agreementdid nothing more than discharge a constitutional
duty and exercise a prerogative that pertains to her office.
the power to ratify a treaty, the Statute in that instance, rests with the President, subject to the concurrence of the Senate, whose role
relative to the ratification of a treaty is limited merely to concurring in or withholding the ratification. And concomitant with this treatymaking power of the President is his or her prerogative to refuse to submit a treaty to the Senate; or having secured the latters consent
to the ratification of the treaty, refuse to ratify it.
Pimentel v. Executive Secretary
G.R. No. 158088 July 6, 2005
Facts:
1. The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary and the Department of Foreign Affairs to
transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippinesfor its concurrence
pursuant to Sec. 21, Art VII of the 1987 Constitution.
2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the most serious crimes as genocide, crimes
against humanity, war crimes and crimes of aggression as defined by the Statute. The Philippines through the Chargie du Affairs in UN.
The provisions of the Statute however require that it be subject to ratification, acceptance or approval of the signatory state.
3. Petitioners contend that ratification of a treaty, under both domestic and international law, is a function of the Senate, hence it is the
duty of the Executive Department to transmit the signed copy to the senate to allow it to exercise its discretion.
Issue: Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit to the Senate the copy of the
Rome Statute signed by a member of the Philippine mission to the U.N. even without the signature of the President.
The Supreme Court held NO.

1. The President as the head of state is the sole organ and authorized in the external relations and he is also the country's sole
representative with foreign nations, He is the mouthpiece with respect to the country's foreign affairs.
2. In treaty-making, the President has the sole authority to negotiate with other states and enter into treaties but this power is limited by
the Constitution with the 2/3 required vote of all the members of the Senate for the treaty to be valid. (Sec. 21, Art VII).
3. The legislative branch part is essential to provide a check on the executive in the field of foreign relations, to ensure the nation's
pursuit of political maturity and growth.

NICOLAS vs. ROMULO

FACTS:
Herein respondent, Lance Corporal Daniel Smith, is a member of the United States Armed Forces. He was charged with the crime of
rape committed against a Filipina, Suzette S. Nicolas.
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, the United States, at
its request, was granted custody of defendant Smith pending the proceedings.
During the trial, the US Government faithfully complied with its undertaking to bring defendant Smith to the trial court every time his
presence was required.
Eventually, the Regional Trial Court rendered its Decision, finding defendant Smith guilty. He shall serve his sentence in the facilities
that shall be agreed upon by appropriate Philippine and United States pursuant to the VFA. Pending agreement on such facilities,
accused is hereby temporarily committed to the Makati City Jail.
However, defendant was taken out of the Makati jail by a contingent of Philippine law enforcement agents, and brought to a facility for
detention under the control of the United States government, provided for under new agreements between the Philippines and the
United States, referred to as the Romulo-Kenney Agreement. This agreement provides that in accordance with the Visiting Forces
Agreement signed, Smith, United States Marine Corps, be returned to United States military custody at the U.S. Embassy in Manila.
Petitioners contend that the Philippines should have custody of Smith because if they would allow such transfer of custody of an
accused to a foreign power is to provide for a different rule of procedure for that accused. The equal protection clause of the
Constitution is also violated.
ISSUE:
Whether or Not there is a violation of the equal protection clause.
HELD:
The equal protection clause is not violated, because there is a substantial basis for a different treatment of a member of a foreign
military armed forces allowed to enter our territory and all other accused.
The rule in international law is that a foreign armed forces allowed to enter ones territory is immune from local jurisdiction, except to the
extent agreed upon. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions,
according to the situation of the parties involved, and reflect their bargaining power. But the principle remains, i.e., the receiving State
can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties.
As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated, but
rather one in which, as is normally encountered around the world, the laws (including rules of procedure) of one State do not extend or
apply except to the extent agreed upon to subjects of another State due to the recognition of extraterritorial immunity given to such
bodies as visiting foreign armed forces.
Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to detention as against
custody.
It is clear that the parties to the VFA recognized the difference between custody during the trial and detention after conviction, because
they provided for a specific arrangement to cover detention. And this specific arrangement clearly states not only that the detention
shall be carried out in facilities agreed on by authorities of both parties, but also that the detention shall be "by Philippine authorities."
Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on the detention of the accused in
the United States Embassy, are not in accord with the VFA itself because such detention is not "by Philippine authorities."
Respondents should therefore comply with the VFA and negotiate with representatives of the United States towards an agreement on
detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.
The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, is UPHELD as constitutional, but
the Romulo-Kenney Agreements are DECLARED not in accordance with the VFA

Pharmaceutical and Health Care Association of the Philippines vs. Duque III
(Austria-Martinez, October 9, 2007)

Nature: Special Civil Action in the Supreme Court. Certiorari

Petitioner: Pharmaceutical and Healthcare Association of the Philippines
Respondents: DOH Sec. Francisco Duque III, DOH Undersecretaries Dr. Ethelyn Nieto, Dr. Margarita Galon, Atty. Alexander Padilla
and Dr. Jade Del Mundo; and Asst. Secretaries Dr. Mario Villaverde, Dr. David Lozada and Dr. Nemesio Gako

Facts:
-

Executive Order No. 51 (The Milk Code - TMC) was issued by Pres. Aquino on Oct. 28, 1986 by virtue of the legislative powers
granted to her under the Freedom Constitution.
(1) One of the preambular clauses of TMC the law seeks to give effect to Article 11 of the International Code of Marketing of
Breastmilk Substituttes (ICMBS), a code adopted by the WHA (World Health Assembly) in 1981.
In 1990, the Philippine ratified the International Convention on the Rights of the Child. Art. 24 of the instrument mandates that
States should take measure to diminish infant mortality and should ensure that all segments of society are informed of the
advantages of breastfeeding.
From 1982 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.
May 15, 2006 DOH issues the assailed RIRR (Revised Implementing Rules and Regulations of E.O. 51 or A.O. No. 2006-0012)
which was to take effect on July 7, 2006. The RIRR imposes a ban on all advertisements of breastmilk substitutes
June 28, 2006 Petitioner filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of a TRO or Writ of
Preliminary injunction.
August 15, 2006 the Court issued a Resolution granting the TRO, enjoining the respondents from implementing the assailed
RIRR.
Petitioner assails the RIRR for going beyond the provisions of TMC thereby amending and expanding the coverage of the said
law.
DOH meanwhile contends that the RIRR implements not only TMC but also various international instruments regarding infant and
young child nutrition. They posit that the said international instruments are deemed part of the law of the land and therefore may
be implemented by the DOH in the RIRR.

Issue: W/n the RIRR is unconstitutional?

Sub-issue(s): W/n the RIRR is in accord with TMC? W/n pertinent international agreements entered into by the Philippines are part of
the law of the land and may thus be implemented through an RIRR, if so, is the RIRR in accord with such international agreements?
Held: No. However what may be implemented is the RIRR based on the Milk Code which in turn is based on the ICMBS as this is
deemed part of the law of the land. The other WHA Resolutions however cannot be imposed as they are not deemed part of the law of
the land.
Ratio:
1. Are the international instruments referred to by the respondents part of the law of the land?
The various international instruments invoked by respondents are:
(1) The UN Conventions on the Rights of the Child
(2) The International Convenant on Economic, Social, and Cultural Rights
(3) Convention on the Elimination of All Forms of Discrimination Against Women
These instruments only provide general terms of the steps that States must take to prevent child mortality. Hence, they do not
have anything about the use and marketing of breastmilk substitutes
-

The ICMBS and other WHA Resolutions however, are the international instruments which have specific provisions on breastmilk
substitutes
Under the 1987 Constitution, international law can become part of domestic law in 2 ways:

(1) Transformation an international law is transformed into a domestic law through a constitutional mechanism such as local
legislation

Treaties become part of law of the land through this method, pursuant to Art 7, Sec 21 wherein no treaty or
international agreement shall be valid.. unless concurred by at least 2/3 of Senate

The ICMBS and WHA Resolutions are NOT treaties as they havent been concurred in by the required 2/3 vote.

HOWEVER, the ICMBS has been transformed into domestic law through local legislation that is TMC.

Therefore, it is not the ICMBS per se that has the force of law but its TMC.
o While TMC is almost a verbatim reproduction of the ICMBS, it did not adopt the latters provision on the
absolute prohibition on advertising of products within the scope of the ICMBS. Instead the MC provides that
advertising promotion or other marketing materials may be allowed if such materials are approved by a
committee.
(2) Incorporation by mere constitutional declaration, international law is deemed to have the force of domestic law

This is found under Art 2, Sec 2 The Philippines adopts generally accepted principles of international law as part of
the law of the land

In Mihares v. Ranada: International law becomes customary rules accepted as binding as a result of two elements:
1.) Established, widespread, and consistent practice on part of the state
2.) Opinion juris sive necessitates (opinion as to law or necessity.

Generally accepted principles of international law refer to norms of general or customary international law which are
binding on all states, valid through all kinds of human societies, and basic to legal systems generally

Fr. Bernas has a definition similar to the one above. Customary international law has two factors:
1.) Material factor how states behave

The consistency and the generality of the practice

2.) Psychological or subjective factor why they behave the way they do

Once state practice has been established, now determine why they behave they do. Is it ouor of courtesy or
opinio juris (the belief that a certain type of behavior is obligatory)

When a law satisfies the two factors it becomes part of customary international law which is then incorporated into our
domestic system
2.
-

Since the WHA Resolutions have not been embodied in any local legislation, have they attained the status of customary law and
hence part of our law of the land?
The World Health Organization (WHO) is one of the international specialized agencies of the UN.
According to the WHO Constitution, its the WHA which determines the policies of the WHO, the former also has the power to
adopt regulations concerning advertising and labeling of pharmaceutical and similar products and to make recommendations to
members on any matter within the Organizations competence
Note that the legal effect of a regulation as opposed to recommendation is quite different
(1) Regulations which are duly adopted by the WHA are binding on member states
(2) On the other hand, recommendations of the WHA do not come into force for its members unlike regulations. Rather, they
carry moral and political weight as they constitute the judgment on a health issue of the collective membership of the highest
body in the field of health.
The WHA resolution adopting the ICMBS and the subsequent WHA resolutions urging states to implement the ICMBS are merely
recommendatory and legally non-binding.
Hence, unlike the ICMBS which has become TMC through legislative enactment, the subsequent WHA Resolutions, which
provide for exclusive breastfeeding and prohibition on advertisements and promotions of breastmilk have not been adopted as
domestic law.
WHA Resolutions have been viewed to constitute soft law or non-binding norms, which influence state behavior. Soft law has
been noted to be a rapid means of norm creation, in order to reflect and respond to the changing needs and demands of
constituents (of the UN.)
As previously discussed, for an international rule to be considered customary law, it must be established that such rule is followed
by states because it is considered obligatory (opinio juris).
In the case at bar, respondents have not presented any evidence to prove that the WHA Resolutions are in fact enforced or
practice by member states. Further, they failed to establish that provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of law of the land.
Hence, legislation is necessary to transform the WHA resolutions into domestic law. They cannot thus be implemented by
executive agencies without the need of a law to be enacted by legislature.

On other issues:
W/n the petitioner is the real party in interest? Yes.
-

An association has standing to file suit for its workers despite its lack of direct interest of its members are affected by the action.
An organization has standing to assert the concerns of its constituents. (Exec Sec vs CA)

- The Court has rules that an association has the legal personality to represent its members because the results of the case will
affect their vital interests. (Purok Bagong Silang Association Inc. vs. Yuipco)
- In the petitioners Amended Articles of Incorporation, it states that the association is formed to represent directly or through
approved representatives the pharmaceutical and health care industry before the Philippine Government and any of its agencies,
the medical professions and the general public.
- Therefore, the petitioner, as an organization, has an interest in fulfilling its avowed purpose of representing members who are part
of the pharmaceutical and health care industry. Petitioner is duly authorized to bring to the attention of the government agencies
and courts any grievance suffered by its members which are directly affected by the assailed RIRR.
- The petitioner, whose legal identity is deemed fused with its members, should be considered as a legal party-in-interest which
stands to be benefited or injured by any judgment in the case.

W/n the DOH has the power to implement the WHA Resolutions under the Revised Administrative Code even in the absence of a
domestic law? Only the provisions of the Milk Code. (as per the discussion above)
-

Section 3, Chapter 1, Title IX of the RAC of 1987 provides that the DOH shall define the national health policy and can issue
orders and regulations concerning the implementation of established health policies.
A.O. No 2005 -0014 which provides the national policy on infant and young child feeding, does not declare that as part of its
policy, the advertisement or promotion of breastmilk substitutes should be absolutely prohibited.
Only the provisions of the Milk Code, but not those of the subsequent WHA Resolutions, can be validly implemented by the DOH
through the subject RIRR.

W/n the provisions of the RIRR being in accordance with the Milk Code? Not all of them
-

Assailed provisions: [1] extending the coverage to young children; [2] imposing exclusive breastfeeding for infants from 0-6
months; [3] imposes an absolute ban on advertising and promotion for breastmilk substitutes; [4] requiring additional labeling
requirements; [5] prohibits the dissemination of information on infant formula; [6] forbids milk manufacturers and distributors to
extend assistance in research and continuing education Although the DOH has the power under the Milk Code to control
information regarding breastmilk vis--vis breastmilk substitutes, this power is not absolute because it has no power to impose an
absolute prohibition in the marketing, promotion and advertising of breastmilk substitutes. Several provisions of the Milk Code
attest to the fact that such power to control information is not absolute.
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code because such provisions impose an absolute prohibition on
advertising, promotion and marketing of breastmilk substitutes, which is not provided for in the Milk Code. Section 46 is violative
of the Milk Code because the DOH has exceeded its authority in imposing such fines or sanctions when the Milk Code does not
do so. Other assailed provisions are in accordance with the Milk Code.

W/n Section 13 of the RIRR providing a sufficient standard? Yes.

-

Questioned provision, in addition to Section 26 of Rule VII provide labeling requirements for breastmilk substitutes found to be
in consonance with the Milk Code
The provisions in question provide reasonable means of enforcing related provisions in the Milk Code.

W/n Section 57 of the RIRR repeals existing laws?

-

Section in question only repeals orders, issuances and rules and regulations, not laws. The provision is valid as it is within the
DOHs rule-making power.
An administrative agency has quasi-legislative or rule-making power. However, such power is limited to making rules and
regulation subjected to the boundaries set by the granting statute and the Constitution. The power is also subject to the doctrine
of non-delegability and separability of powers. The power, which includes amending, revising, altering or repealing, is granted to
allow for flexibility in the implementation of the laws.

W/n On Section 4, 5(w), 11, 22, 32, 47 and 52 violates the due process clause of the Constitution (Article III Section 1)?
-

Despite the fact that the present Constitution enshrines free enterprise as a policy, it nonetheless reserves to the government the
power to intervene whenever necessary to promote the general welfare free enterprise does not call for the removal of
protective regulations. It must be clearly explained and proven by competent evidence just exactly how such protective regulation
would result in the restraint of trade.

Section 4 proscription of milk manufacturers participation in any policymaking body; Section 22 classes and seminars for
women and children; Section 32 giving of assistance, support and logistics or training; Section 52 giving of donations
In the instant case, petitioner failed to show how the aforementioned sections hamper the trade of breastmilk substitutes. They
also failed to establish that these activities are essential and indispensable to their trade.

Disposition: The Petition is Partially Granted. Only sections 4(f), 11 and 46 of A.O. 2006-0014 are declared null and void for
being ultra vires. The TRO is lifted insofar as the rest of the provisions of A.O. 2006-0012 is concerned.

SECRETARY OF JUSTICE v. LANTION

FACTS:
Secretary Of Justice Franklin Drilon, representing the Government of the Republic of the Philippines, signed in Manila the extradition
Treaty Between the Government of the Philippines and the Government of the U.S.A. The Philippine Senate ratified the said Treaty.
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S Note Verbale No. 0522 containing a
request
for
the
extradition
of
private
respondent
Mark
Jiminez
to
the
United
States.
On the same day petitioner designate and authorizing a panel of attorneys to take charge of and to handle the case. Pending
evaluation of the aforestated extradition documents, Mark Jiminez through counsel, wrote a letter to Justice Secretary requesting
copies of the official extradition request from the U.S Government and that he be given ample time to comment on the request after he
shall have received copies of the requested papers but the petitioner denied the request for the consistency of Article 7 of the RP-US
Extradition Treaty stated in Article 7 that the Philippine Government must present the interests of the United States in any proceedings
arising
out
of
a
request
for
extradition.
ISSUE: Whether or not to uphold a citizens basic due process rights or the governments ironclad duties under a treaty.

RULING:

Petition

dismissed.

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. The duties of the 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.

The doctrine of incorporation is applied whenever municipal tribunals are confronted with situation in which there appears to be a
conflict between a rule of international law and the provision of the constitution or statute of the local state.

Petitioner (Secretary of Justice) is ordered to furnish Mark Jimenez copies of the extradition request and its supporting papers, and to
grant him (Mark Jimenez) a reasonable period within which to file his comment with supporting evidence.

Under the Doctrine of Incorporation, rules of international law form part of the law of the land and no further legislative action is needed
to make such rules applicable in the domestic sphere.

The doctrine of incorporation is applied whenever municipal tribunals 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 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 a
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 derogate 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

ANG LADLAD VS. COMELEC

Facts:
Petitioner is a national organization which represents the lesbians, gays, bisexuals, and trans-genders. It filed a petition for
accreditation as a party-list organization to public respondent. However, due to moral grounds, the latter denied the said petition. To
buttress their denial, COMELEC cited certain biblical and quranic passages in their decision. It also stated that since their ways are
immoral and contrary to public policy, they are considered nuissance. In fact, their acts are even punishable under the Revised Penal
Code in its Article 201.

A motion for reconsideration being denied, Petitioner filed this instant Petition on Certiorari under Rule 65 of the ROC.
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated the
constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed Resolutions contravened its
constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as constituted violations of the
Philippines international obligations against discrimination based on sexual orientation.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the
nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among

the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged
its national existence contrary to actual verification reports by COMELECs field personnel.

Issue:
WON

Respondent

violated

the

Non-establishment

clause

of

the

Constitution;

WON Respondent erred in denying Petitioners application on moral and legal grounds.
Held:
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically
enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. As we
explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, the enumeration of marginalized and underrepresented sectors is not exclusive. The crucial element is not whether a sector is specifically enumerated, but whether a particular
organization complies with the requirements of the Constitution and RA 7941.

Our Constitution provides in Article III, Section 5 that [n]o law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof. At bottom, what our non-establishment clause calls for is government neutrality in religious matters. Clearly,
governmental reliance on religious justification is inconsistent with this policy of neutrality. We thus find that it was grave violation of
the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. Be it noted that
government action must have a secular purpose.

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth.
Neither has the COMELEC condescended to justify its position that petitioners admission into the party-list system would be so harmful
as to irreparably damage the moral fabric of society.

We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article
694 of the Civil Code defines a nuisance as any act, omission, establishment, condition of property, or anything else which shocks,
defies, or disregards decency or morality, the remedies for which are a prosecution under the Revised Penal Code or any local
ordinance, a civil action, or abatement without judicial proceedings. A violation of Article 201 of the Revised Penal Code, on the other
hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation
of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal
proceedings and a judicial determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from
participation in the party-list system. The denial of Ang Ladlads registration on purely moral grounds amounts more to a statement of
dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest.
At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There
are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not
find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice.
Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true
status.
The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender
Identity is a set of principles relating tosexual orientation and gender identity, intended to apply international human rights
law standards to address the abuse of the human rights of lesbian, gay, bisexual andtransgender (LGBT) people, and
(briefly) intersex people. The Principles were developed to enhance the individual sovereignty of subjective identity, a principal
articulated in a host of international human rights laws that protect the authentic reality of individual identity and sovereignty from the
legal fictions and social constructs of national or state collectivist ideologies. The issue is further articulated by the struggles of
indigenous peoples, gender and religious identity communitys worldwide.
Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) was a case concerning the extent of state
immunity before the International Court of Justice. The case was brought by Germany after various decisions by Italian courts to ignore
the state immunity of Germany when confronted with claims against Germany by victims of Nazi-era war crimes. The court found that
Italy was wrong to ignore German immunity, and found that Italy was obligated to render the decisions of its courts against Germany
without effect.
Facts

The original claims were based on a number of war crimes committed by German troops during World War II. The substance of the
facts were not disputed by Germany. A number of international agreements and measures had been passed which purported to waive
the claims of the victims involved, or make reparations. [1] For instance, a 1947 peace treaty between Italy and the Alliespurported to
waive claims by Italian nationals; a 1963 agreement between Germany and Italy again purported to waive claims of Italian nationals for
40m Deutsche marks in compensation. Germany had also passed various laws to effect individual compensation to victims of Nazi era
atrocities. However, it is undisputed that the international agreements and the sometimes restrictive language of the compensation laws
collectively failed to compensate many victims individually.
Luigi Ferrini
Luigi Ferrini was an Italian who was deported from occupied Italy and forced to work in a munitions plant in Germany. During 1998 he
instituted proceedings against Germany in lower court at Arezzo. The lower court and then the appeals court denied his claim, on the
basis that Germany was entitled to state immunity. However, during 2004 the Italian Court of Cassation reversed this judgment on the
grounds that state immunity is lost when international crimes are alleged. On remand, the lower courts entered judgment in favor of
Ferrini.[2]
Max Josef Milde[edit]
Max Josef Milde was a German soldier, member of the Herman Goering Division, who during 2004 was convicted in absentia for war
crimes involving a massacre of civilians in the Italian towns of Civitella in Val di Chiana and San Pancazio. In connection with this
conviction, Germany was held jointly and severally liable for damages resulting from this act. The Court of Cassation reaffirmed its
reasoning in the Ferrini case by affirming this judgment during 2008.[3]

Distomo Massacre[edit]
On June 10, 1944 hundreds of people in the Greek village of Distomo were massacred by German troops in retaliation
for Resistance activities nearby. Survivors and relatives of victims of this Distomo massacre sued Germany in Greek courts during
1995. Germany did not appear and the trial court entered a default judgment, upheld on appeal by the Greek Court of Cassation.
However, the Greek Justice Minister refused to grant the required permission to enforce the judgment in Greece. In response, the
plaintiffs attempted to enforce the judgment at the European Court of Human Rights and in the German courts, but were denied on
grounds of state immunity. Finally, after the Ferrini decision, the plaintiffs petitioned for enforcement in Italy; the Italian courts agreed to
enforce the judgment and during 2007 the plaintiffs placed a legal charge on Villa Vigoni, a property in Italy owned by the German state.
[4]

Procedural History[edit]

Germany filed its application to institute proceedings on December 23, 2008. [5] The basis of the Court's jurisdiction was the European
Convention for the Peaceful Settlement of Disputes, which during 1961 bound both Germany and Italy to submit subsequent disputes
to the ICJ. Italy responded with a counterclaim that Germany should pay reparations for the original events. [6] This counter-claim was
rejected on the basis that atrocities pre-dated the European Convention for the Peaceful Settlement of Disputes, and therefore the
Court did not have jurisdiction.[7] During 2011, Greece petitioned and was allowed to intervene in the case on the side of Italy.[8]
Court Opinion[edit]

By a vote of 12 to 3, the court rejected both alleged exceptions to the doctrine of state immunity proposed by Italy.[9]
First, the court rejected a theory of "territorial tort," in which Italy would be entitled to ignore immunity because torts were committed on
Italian territory.[10] The court analyzed this exception within the narrow confines of the facts of the case: here the torts were committed by
an armed force during armed hostilities. The court noted that while the general territorial tort certainly has support for jure gestionus, or
commercial activities of state, it is clear that such a tort is not meant to apply to armed forces engaged in an armed conflict. The court
cited the European Convention on State Immunity, the United Nations Convention on Jurisdictional Immunities of States and Their
Property, and the state practice of a number of countries to establish that there was little support for extending the territorial tort as
much as Italy proposed.
Second, the court rejected a more expansive exception to state immunity, by which immunity would be lost if serious human rights
violations were alleged and no reparations were forthcoming. Italy advanced three "strands" to this argument: first, Italy argued that the
gravity of the violations required elimination of state immunity; second, that not to eliminate state immunity would effectively derogate
from a peremptory, or jus cogens norm; and third, that immunity was lost because the claimants had no other means of redress. [11] Italy
also argued that these three strands, if not each independently sufficient to warrant a loss of immunity, were sufficient when combined
together.
Addressing the first strand, the court noted that allowing an judicial enquiry into the gravity of the crime would defeat the purpose of
immunity, which is to avoid the trial process. [12] Additionally, that there is little support in international conventions and state practice for
the idea that severity of a crime could eliminate state immunity.[13] The court distinguished the Pinochet case- in which Augusto
Pinochet was arrested despite immunity as a head of state- by stating that Pinochet was a criminal case against an individual, not a
civil case against a state itself.[14]

Addressing the second strand, the court distinguished between procedural and substantive rules and found that there was no conflict
between substantive jus cogens prohibitions on enslavement, for instance, and procedural state immunity.[15] The court noted that this
was consistent with the ICJ's rulings in Armed Activities in the Congo and Arrest Warrant of 11 April 2000, in which jus cogens rules did
not confer jurisdiction or abrogate immunities of officials.[16] The court further noted that no state practice supported the argument
that jus cogens rules displace immunity.[17]
Addressing the third strand, the Court distinguished between immunity and the substantive rules of international law, by which Germany
might still owe reparations.[18] A finding of immunity does not equal a finding that Germany did not owe reparations.[19] The Court
indicated that, by this theory, the existence of immunity would depend on the final failure of a diplomatic solution, but that this failure
would be exceptionally difficult to identify.[20]
Finally, having rejected the strands of Italy's argument individually, the Court rejected their aggregate as well, specifying that immunity
could not be based on a substantive balancing test applied by national courts. [21] After finding that Italy was obliged to grant Germany
immunity before Italian courts, the Court found that the petition for enforcement of a Greek judgment (application for exequatur) was
subject to the same rules and should likewise have been denied due to immunity.[22]
By a vote of 14 to 1, the court found that Italy was obliged, by a means of its own choosing, to render void the decisions of its courts
infringing the state immunity due to Germany.[23]