Laguna Lake Development Authority v CA

(Environmental Law)
Laguna Lake Development Authority v CA
GR No. 110120
March 16, 1994
FACTS:
The LLDA Legal and Technical personnel found that the
City Government of Caloocan was maintaining an
open dumpsite at the Camarin area without first
securing an Environmental Compliance Certificate
(ECC) from the Environmental Management Bureau
(EMB) of the Department of Environment and
Natural Resources, as required under Presidential
Decree N o. 1586, and clearance from LLDA as
required under Republic Act N o. 4850 and issued a
CEASE and DESIST ORDER (CDO) for the City
Government of Caloocan to stop the use of the
dumpsite.
ISSUES:
1. Does the LLDA and its amendatory laws, have
the authority to entertain the complaint against the
dumping of garbage in the open dumpsite in
Barangay Camarin authorized by the City
Government of Caloocan?
2. Does the LLDA have the power and authority to
issue a "cease and desist" order?
APPLICABLE LAWS:
Executive Order N o. 927 series of 1983 which
provides, thus: Sec. 4. Additional Powers and
Functions. The authority shall have the following powers
1

and functions: (d) Make, alter or modify orders

requiring the discontinuance of pollution specifying
the conditions and the time within which such
discontinuance must be accomplished
As a general rule, the adjudication of pollution cases
generally pertains to the Pollution Adjudication Board
(PAB), except in cases w here the special law
provides for another forum
RULING:
1. YES, LLDA has authority. It must be recognized in
this regard that the LLDA, as a specialized
administrative agency, is specifically mandated
under Republic Act No. 4850 and its amendatory
law s to carry out and make effective the declared
national policy of promoting and accelerating the
development and balanced growth of the Laguna
Lake area and the surrounding provinces of Rizal
and Laguna and the cities of San Pablo, Manila,
Pasay, Quezon and Caloocan with due regard and
adequate provisions for environmental management
and control, preservation of the quality of human life
and ecological systems, and the prevention of undue
ecological disturbances, deterioration and pollution.
Under such a broad grant and power and authority, the
LLDA, by virtue of its special charter, obviously has the
responsibility to protect the inhabitants of the Laguna
Lake region from the deleterious effects of
pollutants emanating from the discharge of wastes
from the surrounding areas.
2. YES, pursuant to EO 927 Section 4. While it is a
fundamental rule that an administrative agency has
only such powers as are expressly granted to it by
law , it is likewise a settled rule that an administrative
agency has also such powers as are necessarily
2

implied in the exercise of its ex press powers. In the

exercise, therefore, of its express powers under its
charter as a regulatory and quasi-judicial body with
respect to pollution cases in the Laguna Lake
region, the authority of the LLDA to issue a "cease
and desist order" is, perforce, implied. NOTE:
HOWEVER, writs of mandamus and injunction are
beyond the power of the LLDA to issue.
G.R. No. 110120 March 16, 1994
LAGUNA LAKE DEVELOPMENT
AUTHORITY, petitioner,
vs.
COURT OF APPEALS, HON. MANUEL JN. SERAPIO,
Presiding Judge RTC, Branch 127, Caloocan City,
HON. MACARIO A. ASISTIO, JR., City Mayor of
Caloocan and/or THE CITY GOVERNMENT OF
CALOOCAN,respondents.
Alberto N. Hidalgo and Ma. Teresa T. Oledan for
petitioner.
The City Legal Officer & Chief, Law Department for
Mayor Macario A. Asistio, Jr. and the City Government
of Caloocan.

ROMERO, J.:
The clash between the responsibility of the City
Government of Caloocan to dispose off the 350 tons of
garbage it collects daily and the growing concern and
sensitivity to a pollution-free environment of the
3

residents of Barangay Camarin, Tala Estate, Caloocan

City where these tons of garbage are dumped everyday
is the hub of this controversy elevated by the
protagonists to the Laguna Lake Development Authority
(LLDA) for adjudication.
The instant case stemmed from an earlier petition filed
with this Court by Laguna Lake Development Authority
(LLDA for short) docketed as G.R.
No. 107542 against the City Government of Caloocan,
et al. In the Resolution of November 10, 1992, this
Court referred G.R. No. 107542 to the Court of Appeals
for appropriate disposition. Docketed therein as CAG.R. SP
No. 29449, the Court of Appeals, in a
decision 1 promulgated on January 29, 1993 ruled that
the LLDA has no power and authority to issue a cease
and desist order enjoining the dumping of garbage in
Barangay Camarin, Tala Estate, Caloocan City. The
LLDA now seeks, in this petition, a review of the
decision of the Court of Appeals.
The facts, as disclosed in the records, are undisputed.
On March 8, 1991, the Task Force Camarin Dumpsite of
Our Lady of Lourdes Parish, Barangay Camarin,
Caloocan City, filed a letter-complaint 2 with the Laguna
Lake Development Authority seeking to stop the
operation of the 8.6-hectare open garbage dumpsite in
Tala Estate, Barangay Camarin, Caloocan City due to
its harmful effects on the health of the residents and the
possibility of pollution of the water content of the
surrounding area.
4

On November 15, 1991, the LLDA conducted an on-site

investigation, monitoring and test sampling of the
leachate 3 that seeps from said dumpsite to the nearby
creek which is a tributary of the Marilao River. The LLDA
Legal and Technical personnel found that the City
Government of Caloocan was maintaining an open
dumpsite at the Camarin area without first securing an
Environmental Compliance Certificate (ECC) from the
Environmental Management Bureau (EMB) of the
Department of Environment and Natural Resources, as
required under Presidential Decree No. 1586, 4 and
clearance from LLDA as required under Republic Act
No. 4850, 5 as amended by Presidential Decree No. 813
and Executive Order No. 927, series of 1983. 6
After a public hearing conducted on December 4, 1991,
the LLDA, acting on the complaint of Task Force
Camarin Dumpsite, found that the water collected from
the leachate and the receiving streams could
considerably affect the quality, in turn, of the receiving
waters since it indicates the presence of bacteria, other
than coliform, which may have contaminated the sample
during collection or handling. 7 On December 5, 1991,
the LLDA issued a Cease and Desist Order 8 ordering
the City Government of Caloocan, Metropolitan Manila
Authority, their contractors, and other entities, to
completely halt, stop and desist from dumping any form
or kind of garbage and other waste matter at the
Camarin dumpsite.
The dumping operation was forthwith stopped by the
City Government of Caloocan. However, sometime in
August 1992 the dumping operation was resumed after
a meeting held in July 1992 among the City
5

Government of Caloocan, the representatives of Task

Force Camarin Dumpsite and LLDA at the Office of
Environmental Management Bureau Director Rodrigo U.
Fuentes failed to settle the problem.
After an investigation by its team of legal and technical
personnel on August 14, 1992, the LLDA issued another
order reiterating the December 5, 1991, order and
issued an Alias Cease and Desist Order enjoining the
City Government of Caloocan from continuing its
dumping operations at the Camarin area.
On September 25, 1992, the LLDA, with the assistance
of the Philippine National Police, enforced its Alias
Cease and Desist Order by prohibiting the entry of all
garbage dump trucks into the Tala Estate, Camarin area
being utilized as a dumpsite.
Pending resolution of its motion for reconsideration
earlier filed on September 17, 1992 with the LLDA, the
City Government of Caloocan filed with the Regional
Trial Court of Caloocan City an action for the declaration
of nullity of the cease and desist order with prayer for
the issuance of writ of injunction, docketed as Civil Case
No. C-15598. In its complaint, the City Government of
Caloocan sought to be declared as the sole authority
empowered to promote the health and safety and
enhance the right of the people in Caloocan City to a
balanced ecology within its territorial jurisdiction. 9
On September 25, 1992, the Executive Judge of the
Regional Trial Court of Caloocan City issued a
temporary restraining order enjoining the LLDA from
enforcing its cease and desist order. Subsequently, the
6

case was raffled to the Regional Trial Court, Branch 126

of Caloocan which, at the time, was presided over by
Judge Manuel Jn. Serapio of the Regional Trial Court,
Branch 127, the pairing judge of the recently-retired
presiding judge.
The LLDA, for its part, filed on October 2, 1992 a motion
to dismiss on the ground, among others, that under
Republic Act No. 3931, as amended by Presidential
Decree No. 984, otherwise known as the Pollution
Control Law, the cease and desist order issued by it
which is the subject matter of the complaint is
reviewable both upon the law and the facts of the case
by the Court of Appeals and not by the Regional Trial
Court. 10
On October 12, 1992 Judge Manuel Jn. Serapio issued
an order consolidating Civil Case No. C-15598 with Civil
Case No. C-15580, an earlier case filed by the Task
Force Camarin Dumpsite entitled "Fr. John Moran, et al.
vs. Hon. Macario Asistio." The LLDA, however,
maintained during the trial that the foregoing cases,
being independent of each other, should have been
treated separately.
On October 16, 1992, Judge Manuel Jn. Serapio, after
hearing the motion to dismiss, issued in the
consolidated cases an order 11 denying LLDA's motion
to dismiss and granting the issuance of a writ of
preliminary injunction enjoining the LLDA, its agent and
all persons acting for and on its behalf, from enforcing
or implementing its cease and desist order which
prevents plaintiff City of Caloocan from dumping
7

garbage at the Camarin dumpsite during the pendency

of this case and/or until further orders of the court.
On November 5, 1992, the LLDA filed a petition
for certiorari, prohibition and injunction with prayer for
restraining order with the Supreme Court, docketed as
G.R. No. 107542, seeking to nullify the aforesaid order
dated October 16, 1992 issued by the Regional Trial
Court, Branch 127 of Caloocan City denying its motion
to dismiss.
The Court, acting on the petition, issued a
Resolution 12 on November 10, 1992 referring the case
to the Court of Appeals for proper disposition and at the
same time, without giving due course to the petition,
required the respondents to comment on the petition
and file the same with the Court of Appeals within ten
(10) days from notice. In the meantime, the Court
issued a temporary restraining order, effective
immediately and continuing until further orders from it,
ordering the respondents: (1) Judge Manuel Jn.
Serapio, Presiding Judge, Regional Trial Court, Branch
127, Caloocan City to cease and desist from exercising
jurisdiction over the case for declaration of nullity of the
cease and desist order issued by the Laguna Lake
Development Authority (LLDA); and (2) City Mayor of
Caloocan and/or the City Government of Caloocan to
cease and desist from dumping its garbage at the Tala
Estate, Barangay Camarin, Caloocan City.
Respondents City Government of Caloocan and Mayor
Macario A. Asistio, Jr. filed on November 12, 1992 a
motion for reconsideration and/or to quash/recall the
temporary restraining order and an urgent motion for
8

reconsideration alleging that ". . . in view of the

calamitous situation that would arise if the respondent
city government fails to collect 350 tons of garbage daily
for lack of dumpsite (i)t is therefore, imperative that the
issue be resolved with dispatch or with sufficient leeway
to allow the respondents to find alternative solutions to
this garbage problem."
On November 17, 1992, the Court issued a
Resolution 13 directing the Court of Appeals to
immediately set the case for hearing for the purpose of
determining whether or not the temporary restraining
order issued by the Court should be lifted and what
conditions, if any, may be required if it is to be so lifted
or whether the restraining order should be maintained or
converted into a preliminary injunction.
The Court of Appeals set the case for hearing on
November 27, 1992, at 10:00 in the morning at the
Hearing Room, 3rd Floor, New Building, Court of
Appeals. 14 After the oral argument, a conference was
set on December 8, 1992 at 10:00 o'clock in the
morning where the Mayor of Caloocan City, the General
Manager of LLDA, the Secretary of DENR or his duly
authorized representative and the Secretary of DILG or
his duly authorized representative were required to
appear.
It was agreed at the conference that the LLDA had until
December 15, 1992 to finish its study and review of
respondent's technical plan with respect to the dumping
of its garbage and in the event of a rejection of
respondent's technical plan or a failure of settlement,
the parties will submit within 10 days from notice their
9

respective memoranda on the merits of the case, after

which the petition shall be deemed submitted for
resolution. 15 Notwithstanding such efforts, the parties
failed to settle the dispute.
On April 30, 1993, the Court of Appeals promulgated its
decision holding that: (1) the Regional Trial Court has
no jurisdiction on appeal to try, hear and decide the
action for annulment of LLDA's cease and desist order,
including the issuance of a temporary restraining order
and preliminary injunction in relation thereto, since
appeal therefrom is within the exclusive and appellate
jurisdiction of the Court of Appeals under Section 9, par.
(3), of Batas Pambansa Blg. 129; and (2) the Laguna
Lake Development Authority has no power and authority
to issue a cease and desist order under its enabling law,
Republic Act No. 4850, as amended by P.D. No. 813
and Executive Order
No. 927, series of 1983.
The Court of Appeals thus dismissed Civil Case No.
15598 and the preliminary injunction issued in the said
case was set aside; the cease and desist order of LLDA
was likewise set aside and the temporary restraining
order enjoining the City Mayor of Caloocan and/or the
City Government of Caloocan to cease and desist from
dumping its garbage at the Tala Estate, Barangay
Camarin, Caloocan City was lifted, subject, however, to
the condition that any future dumping of garbage in said
area, shall be in conformity with the procedure and
protective works contained in the proposal attached to
the records of this case and found on pages 152-160 of
the Rollo, which was thereby adopted by reference and
made an integral part of the decision, until the
10

corresponding restraining and/or injunctive relief is

granted by the proper Court upon LLDA's institution of
the necessary legal proceedings.
Hence, the Laguna Lake Development Authority filed
the instant petition for review on certiorari, now
docketed as G.R. No. 110120, with prayer that the
temporary restraining order lifted by the Court of
Appeals be re-issued until after final determination by
this Court of the issue on the proper interpretation of the
powers and authority of the LLDA under its enabling
law.
On July, 19, 1993, the Court issued a temporary
restraining order 16 enjoining the City Mayor of Caloocan
and/or the City Government of Caloocan to cease and
desist from dumping its garbage at the Tala Estate,
Barangay Camarin, Caloocan City, effective as of this
date and containing until otherwise ordered by the
Court.
It is significant to note that while both parties in this case
agree on the need to protect the environment and to
maintain the ecological balance of the surrounding
areas of the Camarin open dumpsite, the question as to
which agency can lawfully exercise jurisdiction over the
matter remains highly open to question.
The City Government of Caloocan claims that it is within
its power, as a local government unit, pursuant to the
general welfare provision of the Local Government
Code, 17 to determine the effects of the operation of the
dumpsite on the ecological balance and to see that such
balance is maintained. On the basis of said contention,
11

it questioned, from the inception of the dispute before

the Regional Trial Court of Caloocan City, the power
and authority of the LLDA to issue a cease and desist
order enjoining the dumping of garbage in the Barangay
Camarin over which the City Government of Caloocan
has territorial jurisdiction.
The Court of Appeals sustained the position of the City
of Caloocan on the theory that Section 7 of Presidential
Decree No. 984, otherwise known as the Pollution
Control law, authorizing the defunct National Pollution
Control Commission to issue an ex-parte cease and
desist order was not incorporated in Presidential Decree
No. 813 nor in Executive Order No. 927, series of
1983. The Court of Appeals ruled that under Section 4,
par. (d), of Republic Act No. 4850, as amended, the
LLDA is instead required "to institute the necessary
legal proceeding against any person who shall
commence to implement or continue implementation of
any project, plan or program within the Laguna de Bay
region without previous clearance from the Authority."
The LLDA now assails, in this partition for review, the
abovementioned ruling of the Court of Appeals,
contending that, as an administrative agency which was
granted regulatory and adjudicatory powers and
functions by Republic Act No. 4850 and its amendatory
laws, Presidential Decree No. 813 and Executive Order
No. 927, series of 1983, it is invested with the power
and authority to issue a cease and desist order pursuant
to Section 4 par. (c), (d), (e), (f) and (g) of Executive
Order No. 927 series of 1983 which provides, thus:

12

Sec. 4. Additional Powers and Functions.

The authority shall have the following
powers and functions:
xxx xxx xxx
(c) Issue orders or decisions to compel
compliance with the provisions of this
Executive Order and its implementing rules
and regulations only after proper notice and
hearing.
(d) Make, alter or modify orders requiring
the discontinuance of pollution specifying
the conditions and the time within which
such discontinuance must be
accomplished.
(e) Issue, renew, or deny permits, under
such conditions as it may determine to be
reasonable, for the prevention and
abatement of pollution, for the discharge of
sewage, industrial waste, or for the
installation or operation of sewage works
and industrial disposal system or parts
thereof.
(f) After due notice and hearing, the
Authority may also revoke, suspend or
modify any permit issued under this Order
whenever the same is necessary to prevent
or abate pollution.
(g) Deputize in writing or request
assistance of appropriate government
13

agencies or instrumentalities for the

purpose of enforcing this Executive Order
and its implementing rules and regulations
and the orders and decisions of the
Authority.
The LLDA claims that the appellate court deliberately
suppressed and totally disregarded the above
provisions of Executive Order No. 927, series of 1983,
which granted administrative quasi-judicial functions to
LLDA on pollution abatement cases.
In light of the relevant environmental protection laws
cited which are applicable in this case, and the
corresponding overlapping jurisdiction of government
agencies implementing these laws, the resolution of the
issue of whether or not the LLDA has the authority and
power to issue an order which, in its nature and effect
was injunctive, necessarily requires a determination of
the threshold question: Does the Laguna Lake
Development Authority, under its Charter and its
amendatory laws, have the authority to entertain the
complaint against the dumping of garbage in the open
dumpsite in Barangay Camarin authorized by the City
Government of Caloocan which is allegedly
endangering the health, safety, and welfare of the
residents therein and the sanitation and quality of the
water in the area brought about by exposure to pollution
caused by such open garbage dumpsite?
The matter of determining whether there is such
pollution of the environment that requires control, if not
prohibition, of the operation of a business establishment
is essentially addressed to the Environmental
14

Management Bureau (EMB) of the DENR which, by

virtue of Section 16 of Executive Order No. 192, series
of 1987, 18 has assumed the powers and functions of the
defunct National Pollution Control Commission created
under Republic Act No. 3931. Under said Executive
Order, a Pollution Adjudication Board (PAB) under the
Office of the DENR Secretary now assumes the powers
and functions of the National Pollution Control
Commission with respect to adjudication of pollution
cases. 19
As a general rule, the adjudication of pollution cases
generally pertains to the Pollution Adjudication Board
(PAB), except in cases where the special law provides
for another forum. It must be recognized in this regard
that the LLDA, as a specialized administrative agency,
is specifically mandated under Republic Act No. 4850
and its amendatory laws to carry out and make effective
the declared national policy 20 of promoting and
accelerating the development and balanced growth of
the Laguna Lake area and the surrounding provinces of
Rizal and Laguna and the cities of San Pablo, Manila,
Pasay, Quezon and Caloocan 21 with due regard and
adequate provisions for environmental management
and control, preservation of the quality of human life
and ecological systems, and the prevention of undue
ecological disturbances, deterioration and pollution.
Under such a broad grant and power and authority, the
LLDA, by virtue of its special charter, obviously has the
responsibility to protect the inhabitants of the Laguna
Lake region from the deleterious effects of pollutants
emanating from the discharge of wastes from the
surrounding areas. In carrying out the aforementioned
declared policy, the LLDA is mandated, among others,
15

to pass upon and approve or disapprove all plans,

programs, and projects proposed by local government
offices/agencies within the region, public corporations,
and private persons or enterprises where such plans,
programs and/or projects are related to those of the
LLDA for the development of the region. 22
In the instant case, when the complainant Task Force
Camarin Dumpsite of Our Lady of Lourdes Parish,
Barangay Camarin, Caloocan City, filed its lettercomplaint before the LLDA, the latter's jurisdiction under
its charter was validly invoked by complainant on the
basis of its allegation that the open dumpsite project of
the City Government of Caloocan in Barangay Camarin
was undertaken without a clearance from the LLDA, as
required under Section 4, par. (d), of Republic Act. No.
4850, as amended by P.D. No. 813 and Executive Order
No. 927. While there is also an allegation that the said
project was without an Environmental Compliance
Certificate from the Environmental Management Bureau
(EMB) of the DENR, the primary jurisdiction of the LLDA
over this case was recognized by the Environmental
Management Bureau of the DENR when the latter acted
as intermediary at the meeting among the
representatives of the City Government of Caloocan,
Task Force Camarin Dumpsite and LLDA sometime in
July 1992 to discuss the possibility of
re-opening the open dumpsite.
Having thus resolved the threshold question, the inquiry
then narrows down to the following issue: Does the
LLDA have the power and authority to issue a "cease
and desist" order under Republic Act No. 4850 and its
amendatory laws, on the basis of the facts presented in
16

this case, enjoining the dumping of garbage in Tala

Estate, Barangay Camarin, Caloocan City.
The irresistible answer is in the affirmative.
The cease and desist order issued by the LLDA
requiring the City Government of Caloocan to stop
dumping its garbage in the Camarin open dumpsite
found by the LLDA to have been done in violation of
Republic Act No. 4850, as amended, and other relevant
environment laws, 23 cannot be stamped as an
unauthorized exercise by the LLDA of injunctive powers.
By its express terms, Republic Act No. 4850, as
amended by P.D. No. 813 and Executive Order No. 927,
series of 1983, authorizes the LLDA to "make, alter or
modify order requiring the discontinuance or
pollution." 24(Emphasis supplied) Section 4, par. (d)
explicitly authorizes the LLDA to make whatever order
may be necessary in the exercise of its jurisdiction.
To be sure, the LLDA was not expressly conferred the
power "to issue and ex-parte cease and desist order" in
a language, as suggested by the City Government of
Caloocan, similar to the express grant to the defunct
National Pollution Control Commission under Section 7
of P.D. No. 984 which, admittedly was not reproduced in
P.D. No. 813 and E.O. No. 927, series of 1983.
However, it would be a mistake to draw therefrom the
conclusion that there is a denial of the power to issue
the order in question when the power "to make, alter or
modify orders requiring the discontinuance of pollution"
is expressly and clearly bestowed upon the LLDA by
Executive Order No. 927, series of 1983.
17

Assuming arguendo that the authority to issue a "cease

and desist order" were not expressly conferred by law,
there is jurisprudence enough to the effect that the rule
granting such authority need not necessarily be
express.25 While it is a fundamental rule that an
administrative agency has only such powers as are
expressly granted to it by law, it is likewise a settled rule
that an administrative agency has also such powers as
are necessarily implied in the exercise of its express
powers. 26 In the exercise, therefore, of its express
powers under its charter as a regulatory and quasijudicial body with respect to pollution cases in the
Laguna Lake region, the authority of the LLDA to issue
a "cease and desist order" is, perforce, implied.
Otherwise, it may well be reduced to a "toothless" paper
agency.
In this connection, it must be noted that in Pollution
Adjudication Board v. Court of Appeals, et al., 27 the
Court ruled that the Pollution Adjudication Board (PAB)
has the power to issue an ex-parte cease and desist
order when there is prima facie evidence of an
establishment exceeding the allowable standards set by
the anti-pollution laws of the country. Theponente,
Associate Justice Florentino P. Feliciano, declared:
Ex parte cease and desist orders are
permitted by law and regulations in
situations like that here presented precisely
because stopping the continuous discharge
of pollutive and untreated effluents into the
rivers and other inland waters of the
Philippines cannot be made to wait until
protracted litigation over the ultimate
18

correctness or propriety of such orders has

run its full course, including multiple and
sequential appeals such as those which
Solar has taken, which of course may take
several years. The relevant pollution control
statute and implementing regulations were
enacted and promulgated in the exercise of
that pervasive, sovereign power to protect
the safety, health, and general welfare and
comfort of the public, as well as the
protection of plant and animal life,
commonly designated as the police power.
It is a constitutional commonplace that the
ordinary requirements of procedural due
process yield to the necessities of
protecting vital public interests like those
here involved, through the exercise of
police power. . . .
The immediate response to the demands of "the
necessities of protecting vital public interests" gives
vitality to the statement on ecology embodied in the
Declaration of Principles and State Policies or the 1987
Constitution. Article II, Section 16 which provides:
The State shall protect and advance the
right of the people to a balanced and
healthful ecology in accord with the rhythm
and harmony of nature.
As a constitutionally guaranteed right of every person, it
carries the correlative duty of non-impairment. This is
but in consonance with the declared policy of the state
"to protect and promote the right to health of the people
19

and instill health consciousness among them." 28 It is to

be borne in mind that the Philippines is party to the
Universal Declaration of Human Rights and the Alma
Conference Declaration of 1978 which recognize health
as a fundamental human right. 29
The issuance, therefore, of the cease and desist order
by the LLDA, as a practical matter of procedure under
the circumstances of the case, is a proper exercise of its
power and authority under its charter and its
amendatory laws. Had the cease and desist order
issued by the LLDA been complied with by the City
Government of Caloocan as it did in the first instance,
no further legal steps would have been necessary.
The charter of LLDA, Republic Act No. 4850, as
amended, instead of conferring upon the LLDA the
means of directly enforcing such orders, has provided
under its Section 4 (d) the power to institute "necessary
legal proceeding against any person who shall
commence to implement or continue implementation of
any project, plan or program within the Laguna de Bay
region without previous clearance from the LLDA."
Clearly, said provision was designed to invest the LLDA
with sufficiently broad powers in the regulation of all
projects initiated in the Laguna Lake region, whether by
the government or the private sector, insofar as the
implementation of these projects is concerned. It was
meant to deal with cases which might possibly arise
where decisions or orders issued pursuant to the
exercise of such broad powers may not be obeyed,
resulting in the thwarting of its laudabe objective. To
meet such contingencies, then the writs
20

of mandamus and injunction which are beyond the

power of the LLDA to issue, may be sought from the
proper courts.
Insofar as the implementation of relevant anti-pollution
laws in the Laguna Lake region and its surrounding
provinces, cities and towns are concerned, the Court
will not dwell further on the related issues raised which
are more appropriately addressed to an administrative
agency with the special knowledge and expertise of the
LLDA.
WHEREFORE, the petition is GRANTED. The
temporary restraining order issued by the Court on July
19, 1993 enjoining the City Mayor of Caloocan and/or
the City Government of Caloocan from dumping their
garbage at the Tala Estate, Barangay Camarin,
Caloocan City is hereby made permanent.
SO ORDERED.

21

BAYAN v. ZAMORA
G. R. No. 138570
October 10, 2000
Facts:
The United States panel met with the Philippine panel to
discussed, among others, the possible elements of the
Visiting Forces Agreement (VFA). This resulted to a
series of conferences and negotiations which
culminated on January 12 and 13, 1998. Thereafter,
President Fidel Ramos approved the VFA, which was
respectively signed by Secretary Siazon and United
States Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5,
1998 and on May 27, 1999, the senate approved it by
(2/3) votes.
Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII
of the 1987 constitution is applicable and not Section
21, Article VII.
Following the argument of the petitioner, under they
provision cited, the foreign military bases, troops, or
facilities may be allowed in the Philippines unless the
following conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by
a majority of the votes cast in a national referendum
held for that purpose if so required by congress, and
c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21
Article VII is applicable so that, what is requires for such
treaty to be valid and effective is the concurrence in by
at least two-thirds of all the members of the senate.
ISSUE: Is the VFA governed by the provisions of
Section 21, Art VII or of Section 25, Article XVIII of the
Constitution?
HELD:
Section 25, Article XVIII, which specifically deals with
22

treaties involving foreign military bases, troops or

facilities should apply in the instant case. To a certain
extent and in a limited sense, however, the provisions of
section 21, Article VII will find applicability with regard to
the issue and for the sole purpose of determining the
number of votes required to obtain the valid
concurrence of the senate.
The Constitution, makes no distinction between
transient and permanent. We find nothing in section
25, Article XVIII that requires foreign troops or facilities
to be stationed or placed permanently in the Philippines.
It is inconsequential whether the United States treats
the VFA only as an executive agreement because,
under international law, an executive agreement is as
binding as a treaty
BAYAN vs. ZAMORA
G.R. No. 138570. October 10, 2000
Confronting the Court for resolution in the instant
consolidated petitions for certiorari and prohibition are
issues relating to, and borne by, an agreement forged in
the turn of the last century between the Republic of the
Philippines and the United States of America -the
Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United
States of America forged a Military Bases Agreement
which formalized, among others, the use of installations
in the Philippine territory by United States military
personnel. To further strengthen their defense and
security relationship, the Philippines and the United
States entered into a Mutual Defense Treaty on August
30, 1951. Under the treaty, the parties agreed to
23

respond to any external armed attack on their territory,

armed forces, public vessels, and aircraft.[1]
In view of the impending expiration of the RP-US
Military Bases Agreement in 1991, the Philippines and
the United States negotiated for a possible extension of
the military bases agreement. On September 16, 1991,
the Philippine Senate rejected the proposed RP-US
Treaty of Friendship, Cooperation and Security which, in
effect, would have extended the presence of US military
bases in the Philippines.[2] With the expiration of the RPUS Military Bases Agreement, the periodic military
exercises conducted between the two countries were
held in abeyance. Notwithstanding, the defense and
security relationship between the Philippines and the
United States of America continued pursuant to the
Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed
by US Defense Deputy Assistant Secretary for Asia
Pacific Kurt Campbell, met with the Philippine panel,
headed by Foreign Affairs Undersecretary Rodolfo
Severino Jr., to exchange notes on the complementing
strategic interests of the United States and the
Philippines in the Asia-Pacific region. Both sides
discussed, among other things, the possible elements of
the Visiting Forces Agreement (VFA for brevity).
Negotiations by both panels on the VFA led to a
consolidated draft text, which in turn resulted to a final
series of conferences and negotiations[3] that culminated
in Manila on January 12 and 13, 1998. Thereafter, then
President Fidel V. Ramos approved the VFA, which was
respectively signed by public respondent Secretary
24

Siazon and Unites States Ambassador Thomas

Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada,
through respondent Secretary of Foreign Affairs, ratified
the VFA.[4]
On October 6, 1998, the President, acting through
respondent Executive Secretary Ronaldo Zamora,
officially transmitted to the Senate of the Philippines,
[5]
the Instrument of Ratification, the letter of the
President[6]and the VFA, for concurrence pursuant to
Section 21, Article VII of the 1987 Constitution. The
Senate, in turn, referred the VFA to its Committee on
Foreign Relations, chaired by Senator Blas F. Ople, and
its Committee on National Defense and Security,
chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint
public hearings were held by the two Committees.[7]
On May 3, 1999, the Committees submitted
Proposed Senate Resolution No. 443[8] recommending
the concurrence of the Senate to the VFA and the
creation of a Legislative Oversight Committee to
oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No.
443 was approved by the Senate, by a two-thirds (2/3)
vote[9] of its members. Senate Resolution No. 443 was
then re-numbered as Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into
force after an Exchange of Notes between respondent
25

Secretary Siazon and United States Ambassador

Hubbard.
The VFA, which consists of a Preamble and nine (9)
Articles, provides for the mechanism for regulating the
circumstances and conditions under which US Armed
Forces and defense personnel may be present in the
Philippines, and is quoted in its full text, hereunder:
Article I
Definitions
As used in this Agreement, United States personnel
means United States military and civilian personnel
temporarily in the Philippines in connection with
activities approved by the Philippine Government.
Within this definition:
1. The term military personnel refers to military
members of the United States Army, Navy,
Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to
individuals who are neither nationals of, nor
ordinary residents in the Philippines and who
are employed by the United States armed
forces or who are accompanying the United
States armed forces, such as employees of
the American Red Cross and the United
Services Organization.
Article II
26

Respect for Law

It is the duty of the United States personnel to
respect the laws of the Republic of the Philippines
and to abstain from any activity inconsistent with the
spirit of this agreement, and, in particular, from any
political activity in the Philippines. The Government
of the United States shall take all measures within
its authority to ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate
the admission of United States personnel and
their departure from the Philippines in connection
with activities covered by this agreement.
2. United States military personnel shall be exempt
from passport and visa regulations upon entering
and departing the Philippines.
3. The following documents only, which shall be
presented on demand, shall be required in
respect of United States military personnel who
enter the Philippines:
(a) personal identity card issued by the
appropriate United States authority showing
full name, date of birth, rank or grade and
service number (if any), branch of service
and photograph;

27

(b) individual or collective document issued by

the appropriate United States authority,
authorizing the travel or visit and identifying
the individual or group as United States
military personnel; and
(c) the commanding officer of a military aircraft
or vessel shall present a declaration of
health, and when required by the cognizant
representative of the Government of the
Philippines, shall conduct a quarantine
inspection and will certify that the aircraft or
vessel is free from quarantinable diseases.
Any quarantine inspection of United States
aircraft or United States vessels or cargoes
thereon shall be conducted by the United
States commanding officer in accordance
with the international health regulations as
promulgated by the World Health
Organization, and mutually agreed
procedures.
4. United States civilian personnel shall be exempt
from visa requirements but shall present, upon
demand, valid passports upon entry and
departure of the Philippines.
5. If the Government of the Philippines has
requested the removal of any United States
personnel from its territory, the United States
authorities shall be responsible for receiving the
person concerned within its own territory or
otherwise disposing of said person outside of the
Philippines.
28

Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid,
without test or fee, a driving permit or license
issued by the appropriate United States authority
to United States personnel for the operation of
military or official vehicles.
2. Vehicles owned by the Government of the United
States need not be registered, but shall have
appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction
over United States personnel with respect
to offenses committed within the Philippines
and punishable under the law of the
Philippines.
(b) United States military authorities shall
have the right to exercise within the
Philippines all criminal and disciplinary
jurisdiction conferred on them by the
military law of the United States over United
States personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive
jurisdiction over United States
29

personnel with respect to offenses,

including offenses relating to the
security of the Philippines, punishable
under the laws of the Philippines, but
not under the laws of the United States.
(b) United States authorities exercise
exclusive jurisdiction over United States
personnel with respect to offenses,
including offenses relating to the
security of the United States,
punishable under the laws of the United
States, but not under the laws of the
Philippines.
(c) For the purposes of this paragraph and
paragraph 3 of this article, an offense
relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any
law relating to national defense.
3. In cases where the right to exercise
jurisdiction is concurrent, the following rules
shall apply:
(a) Philippine authorities shall have the
primary right to exercise jurisdiction over all
offenses committed by United States
personnel, except in cases provided for in
paragraphs 1(b), 2 (b), and 3 (b) of this
Article.
30

(b) United States military authorities shall

have the primary right to exercise
jurisdiction over United States personnel
subject to the military law of the United
States in relation to.
(1) offenses solely against the property or
security of the United States or offenses
solely against the property or person of
United States personnel; and
(2) offenses arising out of any act or
omission done in performance of official
duty.
(c) The authorities of either government may
request the authorities of the other
government to waive their primary right to
exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the
United States military authorities to
maintain good order and discipline among
their forces, Philippine authorities will, upon
request by the United States, waive their
primary right to exercise jurisdiction except
in cases of particular importance to the
Philippines. If the Government of the
Philippines determines that the case is of
particular importance, it shall communicate
such determination to the United States
authorities within twenty (20) days after the
Philippine authorities receive the United
States request.
31

(e) When the United States military

commander determines that an offense
charged by authorities of the Philippines
against United states personnel arises out
of an act or omission done in the
performance of official duty, the commander
will issue a certificate setting forth such
determination. This certificate will be
transmitted to the appropriate authorities of
the Philippines and will constitute sufficient
proof of performance of official duty for the
purposes of paragraph 3(b)(2) of this
Article. In those cases where the
Government of the Philippines believes the
circumstances of the case require a review
of the duty certificate, United States military
authorities and Philippine authorities shall
consult immediately. Philippine authorities
at the highest levels may also present any
information bearing on its validity. United
States military authorities shall take full
account of the Philippine position. Where
appropriate, United States military
authorities will take disciplinary or other
action against offenders in official duty
cases, and notify the Government of the
Philippines of the actions taken.
(f) If the government having the primary right
does not exercise jurisdiction, it shall notify
the authorities of the other government as
soon as possible.

32

(g) The authorities of the Philippines and the

United States shall notify each other of the
disposition of all cases in which both the
authorities of the Philippines and the United
States have the right to exercise
jurisdiction.
4. Within the scope of their legal competence,
the authorities of the Philippines and United
States shall assist each other in the arrest of
United States personnel in the Philippines and
in handling them over to authorities who are
to exercise jurisdiction in accordance with the
provisions of this article.
5. United States military authorities shall
promptly notify Philippine authorities of the
arrest or detention of United States personnel
who are subject of Philippine primary or
exclusive jurisdiction. Philippine authorities
shall promptly notify United States military
authorities of the arrest or detention of any
United States personnel.
6. The custody of any United States personnel
over whom the Philippines is to exercise
jurisdiction shall immediately reside with
United States military authorities, if they so
request, from the commission of the offense
until completion of all judicial proceedings.
United States military authorities shall, upon
formal notification by the Philippine authorities
and without delay, make such personnel
available to those authorities in time for any
33

investigative or judicial proceedings relating to

the offense with which the person has been
charged in extraordinary cases, the Philippine
Government shall present its position to the
United States Government regarding custody,
which the United States Government shall
take into full account. In the event Philippine
judicial proceedings are not completed within
one year, the United States shall be relieved
of any obligations under this paragraph. The
one-year period will not include the time
necessary to appeal. Also, the one-year
period will not include any time during which
scheduled trial procedures are delayed
because United States authorities, after timely
notification by Philippine authorities to arrange
for the presence of the accused, fail to do so.
7. Within the scope of their legal authority,
United States and Philippine authorities shall
assist each other in the carrying out of all
necessary investigation into offenses and
shall cooperate in providing for the
attendance of witnesses and in the collection
and production of evidence, including seizure
and, in proper cases, the delivery of objects
connected with an offense.
8. When United States personnel have been
tried in accordance with the provisions of this
Article and have been acquitted or have been
convicted and are serving, or have served
their sentence, or have had their sentence
remitted or suspended, or have been
34

pardoned, they may not be tried again for the

same offense in the Philippines. Nothing in
this paragraph, however, shall prevent United
States military authorities from trying United
States personnel for any violation of rules of
discipline arising from the act or omission
which constituted an offense for which they
were tried by Philippine authorities.
9. When United States personnel are detained,
taken into custody, or prosecuted by
Philippine authorities, they shall be accorded
all procedural safeguards established by the
law of the Philippines. At the minimum, United
States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the
specific charge or charges made against
them and to have reasonable time to
prepare a defense;
(c) To be confronted with witnesses against
them and to cross examine such witnesses;
(d) To present evidence in their defense and
to have compulsory process for obtaining
witnesses;
(e) To have free and assisted legal
representation of their own choice on the
same basis as nationals of the Philippines;

35

(f) To have the service of a competent

interpreter; and
(g) To communicate promptly with and to be
visited regularly by United States
authorities, and to have such authorities
present at all judicial proceedings. These
proceedings shall be public unless the
court, in accordance with Philippine laws,
excludes persons who have no role in the
proceedings.
10. The confinement or detention by Philippine
authorities of United States personnel shall be
carried out in facilities agreed on by
appropriate Philippine and United States
authorities. United States Personnel serving
sentences in the Philippines shall have the
right to visits and material assistance.
11. United States personnel shall be subject to
trial only in Philippine courts of ordinary
jurisdiction, and shall not be subject to the
jurisdiction of Philippine military or religious
courts.
Article VI
Claims
1. Except for contractual arrangements,
including United States foreign military sales
letters of offer and acceptance and leases of
military equipment, both governments waive
any and all claims against each other for
36

damage, loss or destruction to property of

each others armed forces or for death or
injury to their military and civilian personnel
arising from activities to which this agreement
applies.
2. For claims against the United States, other
than contractual claims and those to which
paragraph 1 applies, the United States
Government, in accordance with United
States law regarding foreign claims, will pay
just and reasonable compensation in
settlement of meritorious claims for damage,
loss, personal injury or death, caused by acts
or omissions of United States personnel, or
otherwise incident to the non-combat activities
of the United States forces.
Article VII
Importation and Exportation
1. United States Government equipment,
materials, supplies, and other property
imported into or acquired in the Philippines by
or on behalf of the United States armed forces
in connection with activities to which this
agreement applies, shall be free of all
Philippine duties, taxes and other similar
charges. Title to such property shall remain
with the United States, which may remove
such property from the Philippines at any
time, free from export duties, taxes, and other
similar charges. The exemptions provided in
37

this paragraph shall also extend to any duty,

tax, or other similar charges which would
otherwise be assessed upon such property
after importation into, or acquisition within, the
Philippines. Such property may be removed
from the Philippines, or disposed of therein,
provided that disposition of such property in
the Philippines to persons or entities not
entitled to exemption from applicable taxes
and duties shall be subject to payment of
such taxes, and duties and prior approval of
the Philippine Government.
2. Reasonable quantities of personal baggage,
personal effects, and other property for the
personal use of United States personnel may
be imported into and used in the Philippines
free of all duties, taxes and other similar
charges during the period of their temporary
stay in the Philippines. Transfers to persons
or entities in the Philippines not entitled to
import privileges may only be made upon
prior approval of the appropriate Philippine
authorities including payment by the recipient
of applicable duties and taxes imposed in
accordance with the laws of the Philippines.
The exportation of such property and of
property acquired in the Philippines by United
States personnel shall be free of all Philippine
duties, taxes, and other similar charges.
Article VIII
Movement of Vessels and Aircraft
38

1. Aircraft operated by or for the United States

armed forces may enter the Philippines upon
approval of the Government of the Philippines
in accordance with procedures stipulated in
implementing arrangements.
2. Vessels operated by or for the United States
armed forces may enter the Philippines upon
approval of the Government of the
Philippines. The movement of vessels shall
be in accordance with international custom
and practice governing such vessels, and
such agreed implementing arrangements as
necessary.
3. Vehicles, vessels, and aircraft operated by or
for the United States armed forces shall not
be subject to the payment of landing or port
fees, navigation or over flight charges, or tolls
or other use charges, including light and
harbor dues, while in the Philippines. Aircraft
operated by or for the United States armed
forces shall observe local air traffic control
regulations while in the Philippines. Vessels
owned or operated by the United States solely
on United States Government noncommercial service shall not be subject to
compulsory pilotage at Philippine ports.
Article IX
Duration and Termination

39

This agreement shall enter into force on the date on

which the parties have notified each other in writing
through the diplomatic channel that they have
completed their constitutional requirements for entry
into force. This agreement shall remain in force until
the expiration of 180 days from the date on which
either party gives the other party notice in writing
that it desires to terminate the agreement.
Via these consolidated[11] petitions for certiorari and
prohibition, petitioners - as legislators, nongovernmental organizations, citizens and taxpayers assail the constitutionality of the VFA and impute to
herein respondents grave abuse of discretion in ratifying
the agreement.
We have simplified the issues raised by the
petitioners into the following:
I
Do petitioners have legal standing as concerned
citizens, taxpayers, or legislators to question the
constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21,
Article VII or of Section 25, Article XVIII of the
Constitution?
III
Does the VFA constitute an abdication of Philippine
sovereignty?
40

a. Are Philippine courts deprived of their

jurisdiction to hear and try offenses committed
by US military personnel?
b. Is the Supreme Court deprived of its
jurisdiction over offenses punishable by
reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1,
Article III of the Constitution?
b. the Prohibition against nuclear weapons
under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution
granting the exemption from taxes and duties
for the equipment, materials supplies and
other properties imported into or acquired in
the Philippines by, or on behalf, of the US
Armed Forces?
LOCUS STANDI

At the outset, respondents challenge petitioners

standing to sue, on the ground that the latter have not
shown any interest in the case, and that petitioners
failed to substantiate that they have sustained, or will
sustain direct injury as a result of the operation of the
VFA.[12] Petitioners, on the other hand, counter that the
validity or invalidity of the VFA is a matter of
41

transcendental importance which justifies their standing.

[13]

A party bringing a suit challenging the

constitutionality of a law, act, or statute must show not
only that the law is invalid, but also that he has
sustained or in is in immediate, or imminent danger of
sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in
some indefinite way. He must show that he has been, or
is about to be, denied some right or privilege to which
he is lawfully entitled, or that he is about to be subjected
to some burdens or penalties by reason of the statute
complained of.[14]
In the case before us, petitioners failed to show, to
the satisfaction of this Court, that they have sustained,
or are in danger of sustaining any direct injury as a
result of the enforcement of the VFA. As taxpayers,
petitioners have not established that the VFA involves
the exercise by Congress of its taxing or spending
powers.[15] On this point, it bears stressing that a
taxpayers suit refers to a case where the act
complained of directly involves the illegal disbursement
of public funds derived from taxation.[16] Thus,
in Bugnay Const. & Development Corp. vs.
Laron[17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently
show that he would be benefited or injured by the
judgment or entitled to the avails of the suit as a real
party in interest. Before he can invoke the power of
judicial review, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure of
42

money raised by taxation and that he will sustain a

direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he
has merely a general interest common to all members
of the public.
Clearly, inasmuch as no public funds raised by
taxation are involved in this case, and in the absence of
any allegation by petitioners that public funds are being
misspent or illegally expended, petitioners, as
taxpayers, have no legal standing to assail the legality
of the VFA.
Similarly, Representatives Wigberto Taada, Agapito
Aquino and Joker Arroyo, as petitioners-legislators, do
not possess the requisite locus standi to maintain the
present suit. While this Court, in Phil. Constitution
Association vs. Hon. Salvador Enriquez,[18] sustained
the legal standing of a member of the Senate and the
House of Representatives to question the validity of a
presidential veto or a condition imposed on an item in
an appropriation bull, we cannot, at this instance,
similarly uphold petitioners standing as members of
Congress, in the absence of a clear showing of any
direct injury to their person or to the institution to which
they belong.
Beyond this, the allegations of impairment of
legislative power, such as the delegation of the power of
Congress to grant tax exemptions, are more apparent
than real. While it may be true that petitioners pointed to
provisions of the VFA which allegedly impair their
legislative powers, petitioners failed however to
43

sufficiently show that they have in fact suffered direct

injury.
In the same vein, petitioner Integrated Bar of the
Philippines (IBP) is stripped of standing in these
cases. As aptly observed by the Solicitor General, the
IBP lacks the legal capacity to bring this suit in the
absence of a board resolution from its Board of
Governors authorizing its National President to
commence the present action.[19]
Notwithstanding, in view of the paramount
importance and the constitutional significance of the
issues raised in the petitions, this Court, in the exercise
of its sound discretion, brushes aside the procedural
barrier and takes cognizance of the petitions, as we
have done in the early Emergency Powers Cases,
[20]
where we had occasion to rule:
x x x ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive orders
issued by President Quirino although they were
involving only an indirect and general interest shared in
common with the public.The Court dismissed the
objection that they were not proper parties and ruled
that transcendental importance to the public of
these cases demands that they be settled promptly
and definitely, brushing aside, if we must,
technicalities of procedure. We have since then
applied the exception in many other cases. (Association
of Small Landowners in the Philippines, Inc. v. Sec. of
Agrarian Reform, 175 SCRA 343). (Underscoring
Supplied)
44

This principle was reiterated in the subsequent

cases of Gonzales vs. COMELEC,[21] Daza vs.
Singson,[22] and Basco vs. Phil. Amusement and
Gaming Corporation,[23] where we emphatically held:
Considering however the importance to the public of the
case at bar, and in keeping with the Courts duty, under
the 1987 Constitution, to determine whether or not the
other branches of the government have kept
themselves within the limits of the Constitution and the
laws and that they have not abused the discretion given
to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of this petition. x x
x
Again, in the more recent case of Kilosbayan vs.
Guingona, Jr.,[24] thisCourt ruled that in cases of
transcendental importance, the Court may relax the
standing requirements and allow a suit to prosper
even where there is no direct injury to the party
claiming the right of judicial review.
Although courts generally avoid having to decide a
constitutional question based on the doctrine of
separation of powers, which enjoins upon the
departments of the government a becoming respect for
each others acts,[25] this Court nevertheless resolves to
take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the

determination of which provision of the Constitution
applies, with regard to the exercise by the senate of its
45

constitutional power to concur with the VFA. Petitioners

argue that Section 25, Article XVIII is applicable
considering that the VFA has for its subject the
presence of foreign military troops in the
Philippines. Respondents, on the contrary, 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 1987 Philippine Constitution contains two
provisions requiring the concurrence of the Senate on
treaties or international agreements. Section 21, Article
VII, which herein respondents invoke, reads:
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.
Section 25, Article XVIII, provides:
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.
Section 21, Article VII deals with treatise or
international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the
46

Members of the Senate is required to make the subject

treaty, or international agreement, valid and binding on
the part of the Philippines. This provision lays down the
general rule on treatise or international agreements and
applies to any form of treaty with a wide variety of
subject matter, such as, but not limited to, extradition or
tax treatise or those economic in nature. All treaties or
international agreements entered into by the
Philippines, regardless of subject matter, coverage, or
particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special
provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in
the Philippines. Under this provision, the concurrence of
the Senate is only one of the requisites to render
compliance with the constitutional requirements and to
consider the agreement binding on the
Philippines. Section 25, Article XVIII further requires that
foreign military bases, troops, or facilities may be
allowed in the Philippines only by virtue of a treaty duly
concurred in by the Senate, ratified by a majority of the
votes cast in a national referendum held for that
purpose if so required by Congress, and recognized as
such by the other contracting state.
It is our considered view that both constitutional
provisions, far from contradicting each other, actually
share some common ground. These constitutional
provisions both embody phrases in the negative and
thus, are deemed prohibitory in mandate and
character. In particular, Section 21 opens with the
clause No treaty x x x, and Section 25 contains the
47

phrase shall not be allowed. Additionally, in both

instances, the concurrence of the Senate is
indispensable to render the treaty or international
agreement valid and effective.
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.
On the whole, the VFA is an agreement which
defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the
guidelines to govern such visits of military personnel,
and further defines the rights of the United States and
the Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment, materials and
supplies.
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, as will be
further discussed hereunder.
48

It is a finely-imbedded principle in statutory

construction that a special provision or law prevails over
a general one. Lex specialis derogat generali. Thus,
where there is in the same statute a particular
enactment and also a general one which, in its most
comprehensive sense, would include what is embraced
in the former, the particular enactment must be
operative, and the general enactment must be taken to
affect only such cases within its general language which
are not within the provision of the particular enactment.
[26]

[27]

In Leveriza vs. Intermediate Appellate Court,

we enunciated:

x x x that another basic principle of statutory

construction mandates that general legislation must give
way to a special legislation on the same subject, and
generally be so interpreted as to embrace only cases in
which the special provisions are not applicable (Sto.
Domingo vs. de los Angeles, 96 SCRA 139), that a
specific statute prevails over a general statute (De
Jesus vs. People, 120 SCRA 760) and that where two
statutes are of equal theoretical application to a
particular case, the one designed therefor specially
should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA
38).
Moreover, it is specious to argue that Section 25,
Article XVIII is inapplicable to mere transient
agreements for the reason that there is no permanent
placing of structure for the establishment of a military
base. On this score, the Constitution makes no
distinction between transient and permanent. Certainly,
49

we find nothing in Section 25, Article XVIII that

requires foreign troops or facilities to be stationed or
placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no
distinction is made by law, the Court should not
distinguish- Ubi lex non distinguit nec nos
distinguire debemos.
In like manner, we do not subscribe to the argument
that Section 25, Article XVIII is not controlling since no
foreign military bases, but merely foreign troops and
facilities, are involved in the VFA. Notably, a perusal of
said constitutional provision reveals that the proscription
covers foreign military bases, troops, or facilities. Stated
differently, this prohibition is not limited to the entry of
troops and facilities without any foreign bases being
established. The clause does not refer to foreign
military bases, troops, or facilities collectively but treats
them as separate and independent subjects. The use of
comma and the disjunctive word or clearly signifies
disassociation and independence of one thing from the
others included in the enumeration,[28] such that, 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.
To this end, the intention of the framers of the
Charter, as manifested during the deliberations of the
1986 Constitutional Commission, is consistent with this
interpretation:
50

MR. MAAMBONG. I just want to address a question

or two to Commissioner Bernas.
This formulation speaks of three things: foreign
military bases, troops or facilities. My first
question is: If the country does enter into such
kind of a treaty, must it cover the three-bases,
troops or facilities-or could the treaty entered
into cover only one or two?
FR. BERNAS. Definitely, it can cover only
one. Whether it covers only one or it covers
three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine
government can enter into a treaty covering
not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the
government can enter into a treaty covering only
troops.
FR. BERNAS. Why not? Probably if we stretch our
imagination a little bit more, we will find some. We
just want to cover everything.[29] (Underscoring
Supplied)
Moreover, military bases established within the
territory of another state is no longer viable because of
the alternatives offered by new means and weapons of
warfare such as nuclear weapons, guided missiles as
well as huge sea vessels that can stay afloat in the sea
even for months and years without returning to their
51

home country. These military warships are actually used

as substitutes for a land-home base not only of military
aircraft but also of military personnel and
facilities. Besides, vessels are mobile as compared to a
land-based military headquarters.
At this juncture, we shall then resolve the issue of
whether or not the requirements of Section 25 were
complied with when the Senate gave its concurrence to
the VFA.
Section 25, Article XVIII disallows foreign military
bases, troops, or facilities in the country, unless the
following conditions are sufficiently met, viz: (a) it must
be under a treaty; (b) the treaty must be duly
concurred in by the Senate and, when so required by
congress, ratified by a majority of the votes cast by the
people in a national referendum; and (c) recognized as
a treaty by the other contracting state.
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
requiring ratification by a majority of the votes cast in a
national referendum being unnecessary since Congress
has not required it.
As to the matter of voting, Section 21, Article
VII particularly requires that a treaty or international
agreement, to be valid and effective, must
52

be concurred in by at least two-thirds of all the

members of the Senate.On the other hand, Section 25,
Article XVIII simply provides that the treaty be duly
concurred in by the Senate.
Applying the foregoing constitutional provisions, a
two-thirds vote of all the members of the Senate is
clearly required so that the concurrence contemplated
by law may be validly obtained and deemed
present. While it is true that Section 25, Article XVIII
requires, among other things, that the treaty-the VFA, in
the instant case-be duly concurred in by the Senate, it is
very true however that said provision must be related
and viewed in light of the clear mandate embodied in
Section 21, Article VII, which in more specific terms,
requires that the concurrence of a treaty, or international
agreement, be made by a two -thirds vote of all the
members of the Senate.Indeed, Section 25, Article XVIII
must not be treated in isolation to section 21, Article, VII.
As noted, the concurrence requirement under
Section 25, Article XVIII must be construed in relation to
the provisions of Section 21, Article VII. In a more
particular language, the concurrence of the Senate
contemplated under Section 25, Article XVIII means that
at least two-thirds of all the members of the Senate
favorably vote to concur with the treaty-the VFA in the
instant case.
Under these circumstances, the charter provides
that the Senate shall be composed of twenty-four (24)
Senators.[30] Without a tinge of doubt, two-thirds (2/3) of
this figure, or not less than sixteen (16) members,
favorably acting on the proposal is an unquestionable
53

compliance with the requisite number of votes

mentioned in Section 21 of Article VII. The fact that
there were actually twenty-three (23) incumbent
Senators at the time the voting was made,[31] will not
alter in any significant way the circumstance that more
than two-thirds of the members of the Senate concurred
with the proposed VFA, even if the two-thirds vote
requirement is based on this figure of actual members
(23). In this regard, the fundamental law is clear that
two-thirds of the 24 Senators, or at least 16 favorable
votes, suffice so as to render compliance with the strict
constitutional mandate of giving concurrence to the
subject treaty.
Having resolved that the first two requisites
prescribed in Section 25, Article XVIII are present, we
shall now pass upon and delve on the requirement that
the VFA should be recognized as a treaty by the United
States of America.
Petitioners content 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.
In opposition, 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.
54

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.[32] 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,[33] is to accord
strict meaning to the phrase.
Well-entrenched is the principle that the words used
in the Constitution are to be given their ordinary
meaning except where technical terms are employed, in
which case the significance thus attached to them
prevails.Its language should be understood in the sense
they have in common use.[34]
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.[35] 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.[36] 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,
55

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.[37]
Article 2(2) of the Vienna Convention provides that
the provisions of paragraph 1 regarding the use of terms
in the present Convention are without prejudice to the
use of those terms, or to the meanings which may be
given to them in the internal law of the State.
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.[38]International law continues to make no
distinction between treaties and executive agreements:
they are equally binding obligations upon nations.[39]
In our jurisdiction, we have recognized the binding
effect of executive agreements even without the
concurrence of the Senate or
Congress. In Commissioner of Customs vs. Eastern
Sea Trading,[40] we had occasion to pronounce:
x x x the right of the Executive to enter into binding
agreements without the necessity of subsequent
congressional approval has been confirmed by long
usage. From the earliest days of our history we have
entered into executive agreements covering such
subjects as commercial and consular relations, mostfavored-nation rights, patent rights, trademark and
56

copyright protection, postal and navigation

arrangements and the settlement of claims. The validity
of these has never been seriously questioned by our
courts.
xxxxxxxxx
Furthermore, the United States Supreme Court has
expressly recognized the validity and constitutionality of
executive agreements entered into without Senate
approval. (39 Columbia Law Review, pp. 753-754)
(See, also, U.S. vs. Curtis Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs.
Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink,
315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d.
288; Yale Law Journal, Vol. 15 pp. 1905-1906;
California Law Review, Vol. 25, pp. 670-675; Hyde on
International Law [revised Edition], Vol. 2, pp. 1405,
1416-1418; willoughby on the U.S. Constitution Law,
Vol. I [2d ed.], pp. 537-540; Moore, International Law
Digest, Vol. V, pp. 210-218; Hackworth, International
Law Digest, Vol. V, pp. 390-407). (Italics
Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission
which drafted the 1987 Constitution is enlightening and
highly-instructive:
MR. MAAMBONG. Of course it goes without saying
that as far as ratification of the other state is
concerned, that is entirely their concern under
their own laws.

57

FR. BERNAS. Yes, but we will accept whatever they

say. If they say that we have done everything to
make it a treaty, then as far as we are concerned,
we will accept it as a treaty.[41]
The records reveal that the United States
Government, through Ambassador Thomas C. Hubbard,
has stated that the United States government has fully
committed to living up to the terms of the VFA.[42] For as
long as the united States of America accepts or
acknowledges the VFA as a treaty, and binds itself
further to comply with its obligations under the treaty,
there is indeed marked compliance with the mandate of
the Constitution.
Worth stressing too, is that the ratification, by the
President, of the VFA and the concurrence of the
Senate should be taken as a clear an unequivocal
expression of our nations consent to be bound by said
treaty, with the concomitant duty to uphold the
obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act,
undertaken by the head of the state or of the
government, as the case may be, through which the
formal acceptance of the treaty is proclaimed.[43] A State
may provide in its domestic legislation the process of
ratification of a treaty. The consent of the State to be
bound by a treaty is expressed by ratification when: (a)
the treaty provides for such ratification, (b) it is
otherwise established that the negotiating States agreed
that ratification should be required, (c) the
representative of the State has signed the treaty subject
to ratification, or (d) the intention of the State to sign the
58

treaty subject to ratification appears from the full powers

of its representative, or was expressed during the
negotiation.[44]
In our jurisdiction, the power to ratify is vested in the
President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to
giving or withholding its consent, or concurrence, to the
ratification.[45]
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,[46] 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.
As a member of the family of nations, the
Philippines agrees to be bound by generally accepted
rules for the conduct of its international relations. While
the international obligation devolves upon the state and
not upon any particular branch, institution, or individual
member of its government, the Philippines is
nonetheless responsible for violations committed by any
branch or subdivision of its government or any official
thereof. As an integral part of the community of nations,
we are responsible to assure that our government,
Constitution and laws will carry out our international
obligation.[47] Hence, we cannot readily plead the
59

Constitution as a convenient excuse for non-compliance

with our obligations, duties and responsibilities under
international law.
Beyond this, Article 13 of the Declaration of Rights
and Duties of States adopted by the International Law
Commission in 1949 provides: Every State has the duty
to carry out in good faith its obligations arising from
treaties and other sources of international law, and it
may not invoke provisions in its constitution or its laws
as an excuse for failure to perform this duty.[48]
Equally important is Article 26 of the convention
which provides that Every treaty in force is binding upon
the parties to it and must be performed by them in good
faith. This is known as the principle of pacta sunt
servanda which preserves the sanctity of treaties and
have been one of the most fundamental principles of
positive international law, supported by the
jurisprudence of international tribunals.[49]
NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is

heavily faulted for exercising a power and performing a
task conferred upon him by the Constitution-the power
to enter into and ratify treaties. Through the expediency
of Rule 65 of the Rules of Court, petitioners in these
consolidated cases impute grave abuse of
discretion on the part of the chief Executive in ratifying
the VFA, and referring the same to the Senate pursuant
to the provisions of Section 21, Article VII of the
Constitution.
60

On this particular matter, grave abuse of discretion

implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or, when
the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and it
must be so patent and gross as to amount to an evasion
of positive duty enjoined or to act at all in contemplation
of law.[50]
By constitutional fiat and by the intrinsic nature of
his office, the President, as head of State, is the sole
organ and authority in the external affairs of the
country. In many ways, the President is the chief
architect of the nations foreign policy; his dominance in
the field of foreign relations is (then) conceded.
[51]
Wielding vast powers an influence, his conduct in the
external affairs of the nation, as Jefferson describes,
is executive altogether."[52]
As regards the power to enter into treaties or
international agreements, the Constitution vests the
same in the President, subject only to the concurrence
of at least two-thirds vote of all the members of the
Senate. In this light, the negotiation of the VFA and the
subsequent ratification of the agreement are exclusive
acts which pertain solely to the President, in the lawful
exercise of his vast executive and diplomatic powers
granted him no less than by the fundamental law
itself. Into the field of negotiation the Senate cannot
intrude, and Congress itself is powerless to invade it.
[53]
Consequently, the acts or judgment calls of the
President involving the VFA-specifically the acts of
ratification and entering into a treaty and those
necessary or incidental to the exercise of such principal
61

acts - squarely fall within the sphere of his constitutional

powers and thus, may not be validly struck down, much
less calibrated by this Court, in the absence of clear
showing of grave abuse of power or discretion.
It is the Courts considered view that the President,
in ratifying the VFA and in submitting the same to the
Senate for concurrence, acted within the confines and
limits of the powers vested in him by the Constitution. It
is of no moment that the President, in the exercise of his
wide latitude of discretion and in the honest belief that
the VFA falls within the ambit of Section 21, Article VII of
the Constitution, referred the VFA to the Senate for
concurrence under the aforementioned
provision. Certainly, no abuse of discretion, much less a
grave, patent and whimsical abuse of judgment, may be
imputed to the President in his act of ratifying the VFA
and referring the same to the Senate for the purpose of
complying with the concurrence requirement embodied
in the fundamental law. In doing so, the President
merely performed a constitutional task and exercised a
prerogative that chiefly pertains to the functions of his
office. Even if he erred in submitting the VFA to the
Senate for concurrence under the provisions of Section
21 of Article VII, instead of Section 25 of Article XVIII of
the Constitution, still, the President may not be faulted
or scarred, much less be adjudged guilty of committing
an abuse of discretion in some patent, gross, and
capricious manner.
For while it is conceded that Article VIII, Section 1,
of the Constitution has broadened the scope of judicial
inquiry into areas normally left to the political
departments to decide, such as those relating to
62

national security, it has not altogether done away with

political questions such as those which arise in the field
of foreign relations.[54] The High Tribunals function, as
sanctioned by Article VIII, Section 1, is merely (to)
check whether or not the governmental branch or
agency has gone beyond the constitutional limits of its
jurisdiction, not that it erred or has a different view. In
the absence of a showing (of) grave abuse of discretion
amounting to lack of jurisdiction, there is no occasion
for the Court to exercise its corrective powerIt has no
power to look into what it thinks is apparent error.[55]
As to the power to concur with treaties, the
constitution lodges the same with the Senate
alone. Thus, once the Senate[56] performs that power, or
exercises its prerogative within the boundaries
prescribed by the Constitution, the concurrence cannot,
in like manner, be viewed to constitute an abuse of
power, much less grave abuse thereof. Corollarily, the
Senate, in the exercise of its discretion and acting within
the limits of such power, may not be similarly faulted for
having simply performed a task conferred and
sanctioned by no less than the fundamental law.
For the role of the Senate in relation to treaties is
essentially legislative in character;[57] the Senate, as an
independent body possessed of its own erudite mind,
has the prerogative to either accept or reject the
proposed agreement, and whatever action it takes in the
exercise of its wide latitude of discretion, pertains to the
wisdom rather than the legality of the act. In this sense,
the Senate partakes a principal, yet delicate, role in
keeping the principles of separation of powers and
of checks and balances alive and vigilantly ensures that
63

these cherished rudiments remain true to their form in a

democratic government such as ours. The Constitution
thus animates, through this treaty-concurring power of
the Senate, a healthy system of checks and balances
indispensable toward our nations pursuit of political
maturity and growth. True enough, rudimentary is the
principle that matters pertaining to the wisdom of a
legislative act are beyond the ambit and province of the
courts to inquire.
In fine, absent any clear showing of grave abuse of
discretion on the part of respondents, this Court- as the
final arbiter of legal controversies and staunch sentinel
of the rights of the people - is then without power to
conduct an incursion and meddle with such affairs
purely executive and legislative in character and
nature. For the Constitution no less, maps out the
distinct boundaries and limits the metes and bounds
within which each of the three political branches of
government may exercise the powers exclusively and
essentially conferred to it by law.WHEREFORE, in light
of the foregoing disquisitions, the instant petitions are
hereby DISMISSED.
SO ORDERED.
Lim v. Executive Secretary
Lessons Applicable: Locus Standi, International Law v.
Muncipal Law, Certiorari, Incorporation Clause, Treaties
Laws Applicable: Constitution
FACTS:
64

Pursuant to the Visiting Forces Agreement (VFA)

signed in 1999, personnel from the armed forces of the
United States of America started arriving in Mindanao to
take partin "Balikatan 02-1 on January 2002. The
Balikatan 02-1 exercises involves the simulation of joint
military maneuvers pursuant to the Mutual Defense
Treaty, a bilateral defense agreement entered into by
the Philippines and the United States in 1951. The
exercise is rooted from the international anti-terrorism
campaign declared by President George W. Bush in
reaction to the 3 commercial aircrafts hijacking that
smashed into twin towers of the World Trade Center in
New York City and the Pentagon building in
Washington, D.C. allegedly by the al-Qaeda headed by
the Osama bin Laden that occurred on September 11,
2001. Arthur D. Lim and Paulino P. Ersando as citizens,
lawyers and taxpayers filed a petition for certiorari and
prohibition attacking the constitutionality of the joint
exercise. Partylists Sanlakas and Partido Ng
Manggagawa as residents of Zamboanga and Sulu
directly affected by the operations filed a petition-inintervention.
The Solicitor General commented the prematurity of
the action as it is based only on a fear of future violation
of the Terms of Reference and impropriety of availing of
certiorari to ascertain a question of fact specifically
interpretation of the VFA whether it is covers "Balikatan
02-1 and no question ofconstitutionality is involved.
Moreover, there is lack of locus standi since it does not
involve tax spending and there is no proof of direct
personal injury.
65

ISSUE: W/N the petition and the petition-in-intervention

should prosper.
HELD: NO. Petition and the petition-in-intervention are
hereby DISMISSED without prejudice to the filing of a
new petition sufficient in form and substance in the
proper Regional Trial Court - Supreme Court is not a
trier of facts
Doctrine of Importance to the Public
Considering however the importance to the public of the
case at bar, and in keeping with the Court's duty, under
the 1987 Constitution, to determine whether or not the
other branches of the government have kept
themselves within the limits of the Constitution and the
laws that they have not abused the discretion given to
them, the Court has brushed aside technicalities of
procedure and has taken cognizance of this petition.
Although courts generally avoid having to decide a
constitutional question based on the doctrine of
separation of powers, which enjoins upon the
department of the government a becoming respect for
each other's act, this Court nevertheless resolves to
take cognizance of the instant petition.
Interpretation of Treaty
The VFA permits United States personnel to engage, on
an impermanent basis, in "activities," the exact meaning
of which was left undefined. The expression is
ambiguous, permitting a wide scope of undertakings
subject only to the approval of the Philippine
government. The sole encumbrance placed on its
66

definition is couched in the negative, in that United

States personnel must "abstain from any activity
inconsistent with the spirit of this agreement, and in
particular, from any political activity." All other activities,
in other words, are fair game.
To aid in this, the Vienna Convention on the Law of
Treaties Article 31 SECTION 3 and Article 32 contains
provisos governing interpretations of international
agreements. It is clear from the foregoing that the
cardinal rule of interpretation must involve an
examination of the text, which is presumed to verbalize
the parties' intentions. The Convention likewise dictates
what may be used as aids to deduce the meaning of
terms, which it refers to as the context of the treaty, as
well as other elements may be taken into account
alongside the aforesaid context. According to Professor
Briggs, writer on the Convention, the distinction
between the general rule of interpretation and the
supplementary means of interpretation is intended
rather to ensure that the supplementary means do not
constitute an alternative, autonomous method of
interpretation divorced from the general rule.
The meaning of the word activities" was deliberately
made that way to give both parties a certain leeway in
negotiation. Thus, the VFA gives legitimacy to the
current Balikatan exercises. Both the history and intent
of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities -as opposed to
combat itself -such as the one subject of the instant
petition, are indeed authorized.
The Terms of Reference are explicit enough. Paragraph
8 of section I stipulates that US exercise participants
may not engage in combat "except in self-defense." ."
67

The indirect violation is actually petitioners' worry, that in

reality, "Balikatan 02-1" is actually a war principally
conducted by the United States government, and that
the provision on self-defense serves only as camouflage
to conceal the true nature of the exercise. A clear
pronouncement on this matter thereby becomes
crucial. In our considered opinion, neither the MDT nor
the VFA allow foreign troops to engage in an offensive
war on Philippine territory. Under the salutary
proscription stated in Article 2 of the Charter of the
United Nations.
Both the Mutual Defense Treaty and the Visiting Forces
Agreement, as in all other treaties and international
agreements to which the Philippines is a party, must be
read in the context of the 1987 Constitution especially
Sec. 2, 7 and 8 of Article 2: Declaration of Principles
and State Policies in this case. The Constitution also
regulates the foreign relations powers of the
Chief Executive when it provides that "[n]o treaty or
international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the
members of the Senate." Even more pointedly Sec. 25
on Transitory Provisions which shows antipathy towards
foreign military presence in the country, or of foreign
influence in general. Hence, foreign troops are allowed
entry into the Philippines only by way of direct
exception.
International Law vs. Fundamental Law and Municipal
Laws
Conflict arises then between the fundamental law and
our obligations arising from international agreements.
Philip Morris, Inc. v. Court of Appeals: Withal, the fact
that international law has been made part of the law of
68

the land does not by any means imply the primacy of

international law over national law in the municipal
sphere. Under the doctrine of incorporation as applied in
most countries, rules of international law are given a
standing equal, not superior, to national legislation.
From the perspective of public international law, a treaty
is favored over municipal law pursuant to the principle of
pacta sunt servanda. Hence, "[e]very treaty in force is
binding upon the parties to it and must be performed by
them in good faith." Further, a party to a treaty is not
allowed to "invoke the provisions of its internal law as
justification for its failure to perform a treaty."
Our Constitution espouses the opposing view as stated
in section 5 of Article VIII: The Supreme Court shall
have the following powers: xxx
(2) Review, revise, reverse, modify, or affirm on appeal
or certiorari, as the law or the Rules of Court may
provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of
any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
Ichong v. Hernandez: provisions of a treaty are always
subject to qualification or amendment by a subsequent
law, or that it is subject to the police power of the State
Gonzales v. Hechanova: our Constitution authorizes
the nullification of a treaty, not only when it conflicts with
the fundamental law, but, also, when it runs counter to
an act of Congress.
The foregoing premises leave us no doubt that US
forces are prohibited / from engaging in an offensive
war on Philippine territory.
G.R. No. 151445

April 11, 2002

69

ARTHUR D. LIM and PAULINO R.

ERSANDO, petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY as alter ego
of HER EXCELLENCEY GLORIA MACAPAGALARROYO, and HONORABLE ANGELO REYES in his
capacity as Secretary of National
Defense,respondents.
---------------------------------------SANLAKAS and PARTIDO NG
MANGGAGAWA, petitioners-intervenors,
vs.
GLORIA MACAPAGA-ARROYO, ALBERTO
ROMULO, ANGELO REYES, respondents.
DISSENTING OPINION
SEPARATE OPINION
DE LEON, JR., J.:
This case involves a petition for certiorari and
prohibition as well as a petition-in-intervention, praying
that respondents be restrained from proceeding with the
so-called "Balikatan 02-1" and that after due notice and
hearing, that judgment be rendered issuing a permanent
writ of injunction and/or prohibition against the
deployment of U.S. troops in Basilan and Mindanao for
being illegal and in violation of the Constitution.
The facts are as follows:
Beginning January of this year 2002, personnel from the
armed forces of the United States of America started
arriving in Mindanao to take part, in conjunction with the
Philippine military, in "Balikatan 02-1." These so-called
"Balikatan" exercises are the largest combined training
70

operations involving Filipino and American troops. In

theory, they are a simulation of joint military maneuvers
pursuant to the Mutual Defense Treaty,1 a bilateral
defense agreement entered into by the Philippines and
the United States in 1951.
Prior to the year 2002, the last "Balikatan" was held in
1995. This was due to the paucity of any formal
agreement relative to the treatment of United States
personnel visiting the Philippines. In the meantime, the
respective governments of the two countries agreed to
hold joint exercises on a reduced scale. The lack of
consensus was eventually cured when the two nations
concluded the Visiting Forces Agreement (V FA) in
1999.
The entry of American troops into Philippine soil is
proximately rooted in the international anti-terrorism
campaign declared by President George W. Bush in
reaction to the tragic events that occurred on
September 11, 2001. On that day, three (3) commercial
aircrafts were hijacked, flown and smashed into the twin
towers of the World Trade Center in New York City and
the Pentagon building in Washington, D.C. by terrorists
with alleged links to the al-Qaeda ("the Base"), a Muslim
extremist organization headed by the infamous Osama
bin Laden. Of no comparable historical parallels, these
acts caused billions of dollars worth of destruction of
property and incalculable loss of hundreds of lives.
On February 1, 2002, petitioners Arthur D. Lim and
Paulino P. Ersando filed this petition for certiorari and
prohibition, attacking the constitutionality of the joint
exercise.2 They were joined subsequently by
SANLAKAS and PARTIDO NG MANGGAGAWA, both
party-Iist organizations, who filed a petition-inintervention on February 11, 2002.
71

Lim and Ersando filed suit in their capacities as citizens,

lawyers and taxpayers. SANLAKAS and PARTIDO, on
the other hand, aver that certain members of their
organization are residents of Zamboanga and Sulu, and
hence will be directly affected by the operations being
conducted in Mindanao. They likewise pray for a
relaxation on the rules relative to locus standi citing the
unprecedented importance of the issue involved.
On February 71 2002 the Senate conducted a hearing
on the "Balikatan" exercise wherein Vice-President
Teofisto T. Guingona, Jr., who is concurrently Secretary
of Foreign. Affairs, presented the Draft Terms of
Reference (TOR).3 Five days later, he approved the
TOR, which we quote hereunder:
I. POLICY LEVEL
1. The Exercise shall be consistent with the
Philippine Constitution and all its activities shall
be in consonance with the laws of the land and
the provisions of the RP-US Visiting Forces
Agreement (VFA).
2. The conduct of this training Exercise is in
accordance with pertinent United Nations
resolutions against global terrorism as understood
by the respective parties.
3. No permanent US basing and support facilities
shall be established. Temporary structures such
as those for troop billeting, classroom instruction
and messing may be set up for use by RP and
US Forces during the Exercise.
4. The Exercise shall be implemented jointly by
RP and US Exercise Co-Directors under the
authority of the Chief of Staff, AFP. In no instance
will US Forces operate independently during field
72

training exercises (FTX). AFP and US Unit

Commanders will retain command over their
respective forces under the overall authority of
the Exercise Co-Directors. RP and US
participants shall comply with operational
instructions of the AFP during the FTX.
5. The exercise shall be conducted and
completed within a period of not more than six
months, with the projected participation of 660 US
personnel and 3,800 RP Forces. The Chief of
Staff, AFP shall direct the Exercise Co-Directors
to wind up and terminate the Exercise and other
activities within the six month Exercise period.
6. The Exercise is a mutual counter-terrorism
advising, assisting and training Exercise relative
to Philippine efforts against the ASG, and will be
conducted on the Island of Basilan. Further
advising, assisting and training exercises shall be
conducted in Malagutay and the Zamboanga
area. Related activities in Cebu will be for support
of the Exercise.
7. Only 160 US Forces organized in 12-man
Special Forces Teams shall be deployed with AFP
field, commanders. The US teams shall remain at
the Battalion Headquarters and, when approved,
Company Tactical headquarters where they can
observe and assess the performance of the AFP
Forces.
8. US exercise participants shall not engage in
combat, without prejudice to their right of selfdefense.
9. These terms of Reference are for purposes of
this Exercise only and do not create additional
73

legal obligations between the US Government

and the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of
mutual military assisting, advising and
training of RP and US Forces with the
primary objective of enhancing the
operational capabilities of both forces to
combat terrorism.
b. At no time shall US Forces operate
independently within RP territory.
c. Flight plans of all aircraft involved in the
exercise will comply with the local air traffic
regulations.
2. ADMINISTRATION & LOGISTICS
a. RP and US participants shall be given a
country and area briefing at the start of the
Exercise. This briefing shall acquaint US
Forces on the culture and sensitivities of
the Filipinos and the provisions of the VF A.
The briefing shall also promote the full
cooperation on the part of the RP and US
participants for the successful conduct of
the Exercise.
b. RP and US participating forces may
share, in accordance with their respective
laws and regulations, in the use of their
resources, equipment and other assets.
They will use their respective logistics
channels.
74

c. Medical evaluation shall be jointly

planned and executed utilizing RP and US
assets and resources.
d. Legal liaison officers from each
respective party shall be appointed by the
Exercise Directors.
3. PUBLIC AFFAIRS
a. Combined RP-US Information Bureaus
shall be established at the Exercise
Directorate in Zamboanga City and at
GHQ, AFP in Camp Aguinaldo, Quezon
City.
b. Local media relations will be the concern
of the AFP and all public affairs guidelines
shall be jointly developed by RP and US
Forces.
c. Socio-Economic Assistance Projects
shall be planned and executed jointly by
RP and US Forces in accordance with their
respective laws and regulations, and in
consultation with community and local
government officials.
Contemporaneously, Assistant Secretary for American
Affairs Minerva Jean A. Falcon and United
States Charge d' Affaires Robert Fitts signed the Agreed
Minutes of the discussion between the Vice-President
and Assistant Secretary Kelly.4
Petitioners Lim and Ersando present the following
arguments:
I
75

THE PHILIPPINES AND THE UNITED STATES

SIGNED THE MUTUAL DEFENSE TREATY
(MDT) in 1951 TO PROVIDE MUTUAL MILITARY
ASSIST ANCE IN ACCORDANCE WITH THE
'CONSTITUTIONAL PROCESSE-S' OF EACH
COUNTRY ONLY IN THE CASE OF AN ARMED
ATTACK BY AN EXTERNAL AGGRESSOR,
MEANING A THIRD COUNTRY AGAINST ONE
OF THEM.
BY NO STRETCH OF THE IMAGINA TION CAN
IT BE SAID THAT THE ABU SAYYAF BANDITS
IN BASILAN CONSTITUTE AN EXTERNAL
ARMED FORCE THAT HAS SUBJECT THE
PHILIPPINES TO AN ARMED EXTERNAL
ATTACK TO WARRANT U.S. MILITARY
ASSISTANCE UNDER THE MDT OF 1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZE
AMERICAN SOLDIERS TO ENGAGE IN
COMBAT OPERATIONS IN PHILIPPINE
TERRITORY, NOT EVEN TO FIRE BACK "IF
FIRED UPON".
Substantially the same points are advanced by
petitioners SANLAKAS and PARTIDO.
In his Comment, the Solicitor General points to
infirmities in the petitions regarding, inter alia, Lim and
Ersando's standing to file suit, the prematurity of the
action, as well as the impropriety of availing
of certiorari to ascertain a question of fact. Anent
their locus standi, the Solicitor General argues
that first, they may not file suit in their capacities as,
taxpayers inasmuch as it has not been shown that
"Balikatan 02-1 " involves the exercise of Congress'
taxing or spending powers. Second, their being lawyers
76

does not invest them with sufficient personality to initiate

the case, citing our ruling in Integrated Bar of the
Philippines v. Zamora.5 Third, Lim and Ersando have
failed to demonstrate the requisite showing of direct
personal injury. We agree.
It is also contended that the petitioners are indulging in
speculation. The Solicitor General is of the view that
since the Terms of Reference are clear as to the extent
and duration of "Balikatan 02-1," the issues raised by
petitioners are premature, as they are based only on a
fear of future violation of the Terms of Reference. Even
petitioners' resort to a special civil action for certiorari is
assailed on the ground that the writ may only issue on
the basis of established facts.
Apart from these threshold issues, the Solicitor General
claims that there is actually no question of
constitutionality involved. The true object of the instant
suit, it is said, is to obtain an interpretation of the V FA.
The Solicitor General asks that we accord due
deference to the executive determination that "Balikatan
02-1" is covered by the VFA, considering the President's
monopoly in the field of foreign relations and her role as
commander-in-chief of the Philippine armed forces.
Given the primordial importance of the issue involved, it
will suffice to reiterate our view on this point in a related
case:
Notwithstanding, in view of the paramount
importance and the constitutional
significance of the issues raised in the
petitions, this Court, in the exercise of its
sound discretion, brushes aside the
procedural barrier and takes cognizance of
the petitions, as we have done in the early
77

Emergency Powers Cases, where we had

occasion to rule:
'x x x ordinary citizens and taxpayers were
allowed to question the constitutionality of
several executive orders issued by
President Quirino although they were
involving only an indirect and general
interest shared in common with the public.
The Court dismissed the objection that they
were not proper parties and ruled
that 'transcendental importance to the
public of these cases demands that they
be settled promptly and definitely,
brushing aside, if we must,
technicalities of procedure.' We have
since then applied the exception in many
other cases. [citation omitted]
This principle was reiterated in the subsequent
cases of Gonzales vs. COMELEC, Daza vs.
Singson, and Basco vs. Phil, Amusement and
Gaming Corporation, where we emphatically
held:
Considering however the importance to the
public of the case at bar, and in keeping
with the Court's duty, under the 1987
Constitution, to determine whether or not
the other branches of the government have
kept themselves within the limits of the
Constitution and the laws that they have
not abused the discretion given to them,
the Court has brushed aside technicalities
of procedure and has taken cognizance of
this petition. xxx'

78

Again, in the more recent case of Kilosbayan vs.

Guingona, Jr., this Court ruled that in cases of
transcendental importance, the Court may relax
the standing requirements and allow a suit to
prosper even where there is no direct injury to
the party claiming the right of judicial review.
Although courts generally avoid having to decide
a constitutional question based on the doctrine of
separation of powers, which enjoins upon the
department of the government a becoming
respect for each other's act, this Court
nevertheless resolves to take cognizance of the
instant petition.6
Hence, we treat with similar dispatch the general
objection to the supposed prematurity of the action. At
any rate, petitioners' concerns on the lack of any
specific regulation on the latitude of activity US
personnel may undertake and the duration of their stay
has been addressed in the Terms of Reference.
The holding of "Balikatan 02-1" must be studied in the
framework of the treaty antecedents to which the
Philippines bound itself. The first of these is the Mutual
Defense Treaty (MDT, for brevity). The MDT has been
described as the "core" of the defense relationship
between the Philippines and its traditional ally, the
United States. Its aim is to enhance the strategic and
technological capabilities of our armed forces through
joint training with its American counterparts; the
"Balikatan" is the largest such training exercise directly
supporting the MDT's objectives. It is this treaty to which
the V FA adverts and the obligations thereunder which it
seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement in
1992 and the decision not to renew it created a vacuum
79

in US-Philippine defense relations, that is, until it was

replaced by the Visiting Forces Agreement. It should be
recalled that on October 10, 2000, by a vote of eleven to
three, this Court upheld the validity of the VFA.7 The V
FA provides the "regulatory mechanism" by which
"United States military and civilian personnel [may visit]
temporarily in the Philippines in connection with
activities approved by the Philippine Government." It
contains provisions relative to entry and departure of
American personnel, driving and vehicle registration,
criminal jurisdiction, claims, importation and exportation,
movement of vessels and aircraft, as well as the
duration of the agreement and its termination. It is the
VFA which gives continued relevance to the MDT
despite the passage of years. Its primary goal is to
facilitate the promotion of optimal cooperation between
American and Philippine military forces in the event of
an attack by a common foe.
The first question that should be addressed is whether
"Balikatan 02-1" is covered by the Visiting Forces
Agreement. To resolve this, it is necessary to refer to
the V FA itself: Not much help can be had therefrom,
unfortunately, since the terminology employed is itself
the source of the problem. The VFA permits United
States personnel to engage, on an impermanent basis,
in "activities," the exact meaning of which was left
undefined. The expression is ambiguous, permitting a
wide scope of undertakings subject only to the approval
of the Philippine government.8 The sole encumbrance
placed on its definition is couched in the negative, in
that United States personnel must "abstain from any
activity inconsistent with the spirit of this agreement,
and in particular, from any political activity."9 All other
activities, in other words, are fair game.
We are not left completely unaided, however. The
Vienna Convention on the Law of Treaties, which
80

contains provisos governing interpretations of

international agreements, state:
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill
accordance with the ordinary meaning to be given
to the tenus of the treaty in their context and in
the light of its object and purpose.
2. The context for the purpose of the
interpretation of a treaty shall comprise, in
addition to the text, including its preamble and
annexes:
(a) any agreement relating to the treaty
which was made between all the parties in
connexion with the conclusion of the treaty;
(b) any instrument which was made by one
or more parties in connexion with the
conclusion of the treaty and accepted by
the other parties as an instrument related to
the party .
3. There shall be taken into account, together with
the context:
(a) any subsequent agreement between the
parties regarding the interpretation of the
treaty or the application of its provisions;
(b) any subsequent practice in the
application of the treaty which establishes
81

the agreement of the parties regarding its

interpretation;
(c) any relevant rules of international law
applicable in the relations between the
parties.
4. A special meaning shall be given to a term if it
is established that the parties so intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of
interpretation, including the preparatory work of
the treaty and the circumstances of its conclusion,
in order to confirm the meaning resulting from the
application of article 31, or to determine the
meaning when the interpretation according to
article 31 :
(a) leaves the meaning ambiguous or
obscure; or
(b) leads to a result which is manifestly
absurd unreasonable.
It is clear from the foregoing that the cardinal rule of
interpretation must involve an examination of the text,
which is presumed to verbalize the parties' intentions.
The Convention likewise dictates what may be used as
aids to deduce the meaning of terms, which it refers to
as the context of the treaty, as well as other elements
may be taken into account alongside the aforesaid
context. As explained by a writer on the Convention ,
[t]he Commission's proposals (which were
adopted virtually without change by the
82

conference and are now reflected in Articles 31

and 32 of the Convention) were clearly based on
the view that the text of a treaty must be
presumed to be the authentic expression of the
intentions of the parties; the Commission
accordingly came down firmly in favour of the
view that 'the starting point of interpretation is the
elucidation of the meaning of the text, not an
investigation ab initio into the intentions of the
parties'. This is not to say that
the travauxpreparatoires of a treaty , or the
circumstances of its conclusion, are relegated to
a subordinate, and wholly ineffective, role. As
Professor Briggs points out, no rigid temporal
prohibition on resort to travaux preparatoires of a
treaty was intended by the use of the phrase
'supplementary means of interpretation' in what is
now Article 32 of the Vienna Convention. The
distinction between the general rule of
interpretation and the supplementary means of
interpretation is intended rather to ensure that the
supplementary means do not constitute an
alternative, autonomous method of interpretation
divorced from the general rule.10
The Terms of Reference rightly fall within the context of
the VFA.
After studied reflection, it appeared farfetched that the
ambiguity surrounding the meaning of the
word .'activities" arose from accident. In our view, it was
deliberately made that way to give both parties a certain
leeway in negotiation. In this manner, visiting US forces
may sojourn in Philippine territory for purposes other
than military. As conceived, the joint exercises may
include training on new techniques of patrol and
surveillance to protect the nation's marine resources,
sea search-and-rescue operations to assist vessels in
83

distress, disaster relief operations, civic action projects

such as the building of school houses, medical and
humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the
current Balikatan exercises. It is only logical to assume
that .'Balikatan 02-1," a "mutual anti- terrorism advising,
assisting and training exercise," falls under the umbrella
of sanctioned or allowable activities in the context of the
agreement. Both the history and intent of the Mutual
Defense Treaty and the V FA support the conclusion
that combat-related activities -as opposed
to combat itself -such as the one subject of the instant
petition, are indeed authorized.
That is not the end of the matter, though. Granted that
"Balikatan 02-1" is permitted under the terms of the
VFA, what may US forces legitimately do in furtherance
of their aim to provide advice, assistance and training in
the global effort against terrorism? Differently phrased,
may American troops actually engage in combat in
Philippine territory? The Terms of Reference are explicit
enough. Paragraph 8 of section I stipulates that US
exercise participants may not engage
in combat "except in self-defense." We wryly note
that this sentiment is admirable in the abstract but
difficult in implementation. The target of "Balikatan 02-1
I" the Abu Sayyaf, cannot reasonably be expected to sit
idly while the battle is brought to their very doorstep.
They cannot be expected to pick and choose their
targets for they will not have the luxury of doing so. We
state this point if only to signify our awareness that the
parties straddle a fine line, observing the honored legal
maxim "Nemo potest facere per alium quod non potest
facere per directum."11 The indirect violation is actually
petitioners' worry, that in reality, "Balikatan 02-1 " is
actually a war principally conducted by the United
States government, and that the provision on self84

defense serves only as camouflage to conceal the true

nature of the exercise. A clear pronouncement on this
matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the V FA
allow foreign troops to engage in an offensive war on
Philippine territory. We bear in mind the salutary
proscription stated in the Charter of the United Nations,
to wit:
Article 2
The Organization and its Members, in pursuit of
the Purposes stated in Article 1, shall act in
accordance with the following Principles.
xxx

xxx

xxx

xxx

4. All Members shall refrain in their international

relations from the threat or use of force against
the territorial integrity or political independence of
any state, or in any other manner inconsistent
with the Purposes of the United Nations.
xxx

xxx

xxx

xxx

In the same manner, both the Mutual Defense Treaty

and the Visiting Forces Agreement, as in all other
treaties and international agreements to which the
Philippines is a party, must be read in the context of the
1987 Constitution. In particular, the Mutual Defense
Treaty was concluded way before the present Charter,
though it nevertheless remains in effect as a valid
source of international obligation. The present
Constitution contains key provisions useful in
determining the extent to which foreign military troops
are allowed in Philippine territory. Thus, in the
Declaration of Principles and State Policies, it is
provided that:
85

xxx

xxx

xxx

xxx

SEC. 2. The 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 all nations.
xxx

xxx

xxx

xxx

SEC. 7. The State shall pursue an independent

foreign policy. In its relations with other states the
paramount consideration shall be national
sovereignty, territorial integrity, national interest,
and the right to self- determination.
SEC. 8. The Philippines, consistent with the
national interest, adopts and pursues a policy of
freedom from nuclear weapons in the country.
xxx

xxx

xxx

xxx

The Constitution also regulates the foreign relations

powers of the Chief Executive when it provides that
"[n]o treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all
the members of the Senate."12 Even more pointedly, the
Transitory Provisions state:
Sec. 25. 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
86

purpose, and recognized as a treaty by the other

contracting state.
The aforequoted provisions betray a marked antipathy
towards foreign military presence in the country, or of
foreign influence in general. Hence, foreign troops are
allowed entry into the Philippines only by way of direct
exception. Conflict arises then between the fundamental
law and our obligations arising from international
agreements.
A rather recent formulation of the relation of
international law vis-a-vis municipal law was expressed
in Philip Morris, Inc. v. Court of Appeals,13 to wit:
xxx Withal, the fact that international law has
been made part of the law of the land does not by
any means imply the primacy of international law
over national law in the municipal sphere. Under
the doctrine of incorporation as applied in most
countries, rules of international law are given a
standing equal, not superior, to national
legislation.
This is not exactly helpful in solving the problem at hand
since in trying to find a middle ground, it favors neither
one law nor the other, which only leaves the hapless
seeker with an unsolved dilemma. Other more
traditional approaches may offer valuable insights.
From the perspective of public international law, a treaty
is favored over municipal law pursuant to the principle
ofpacta sunt servanda. Hence, "[e]very treaty in force is
binding upon the parties to it and must be performed by
them in good faith."14 Further, a party to a treaty is not
allowed to "invoke the provisions of its internal law as
justification for its failure to perform a treaty."15
87

Our Constitution espouses the opposing view. Witness

our jurisdiction as I stated in section 5 of Article VIII:
The Supreme Court shall have the following
powers:
xxx

xxx

xxx

xxx

(2) Review, revise, reverse, modify, or affirm on

appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and order of
lower courts in:
(A) All cases in which the constitutionality or
validity of any treaty, international or executive
agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation is in question.
xxx

xxx

xxx

xxx

In Ichong v. Hernandez,16 we ruled that the provisions

of a treaty are always subject to qualification or
amendment by a subsequent law, or that it is subject to
the police power of the State. In Gonzales v.
Hechanova,17
xxx As regards the question whether an
international agreement may be invalidated by
our courts, suffice it to say that the Constitution of
the Philippines has clearly settled it in the
affirmative, by providing, in Section 2 of Article
VIII thereof, that the Supreme Court may not be
deprived "of its jurisdiction to review, revise,
reverse, modify, or affirm on appeal, certiorari, or
writ of error as the law or the rules of court may
provide, final judgments and decrees of inferior
courts in -( I) All cases in which
the constitutionality or validity of anytreaty, law,
88

ordinance, or executive order or regulation is in

question." In other words, our Constitution
authorizes the nullification of a treaty, not only
when it conflicts with the fundamental law, but,
also, when it runs counter to an act of Congress.
The foregoing premises leave us no doubt that US
forces are prohibited / from engaging in an offensive
war on Philippine territory.
Yet a nagging question remains: are American troops
actively engaged in combat alongside Filipino soldiers
under the guise of an alleged training and assistance
exercise? Contrary to what petitioners would have us
do, we cannot take judicial notice of the events
transpiring down south,18 as reported from the
saturation coverage of the media. As a rule, we do not
take cognizance of newspaper or electronic reports per
se, not because of any issue as to their truth, accuracy,
or impartiality, but for the simple reason that facts must
be established in accordance with the rules of evidence.
As a result, we cannot accept, in the absence of
concrete proof, petitioners' allegation that the Arroyo
government is engaged in "doublespeak" in trying to
pass off as a mere training exercise an offensive effort
by foreign troops on native soil. The petitions invite us to
speculate on what is really happening in Mindanao, to
issue I make factual findings on matters well beyond our
immediate perception, and this we are understandably
loath to do.
It is all too apparent that the determination thereof
involves basically a question of fact. On this point, we
must concur with the Solicitor General that the present
subject matter is not a fit topic for a special civil action
forcertiorari. We have held in too many instances that
questions of fact are not entertained in such a remedy.
The sole object of the writ is to correct errors of
89

jurisdiction or grave abuse of discretion: The phrase

"grave abuse of discretion" has a precise meaning in
law, denoting abuse of discretion "too patent and gross
as to amount to an evasion of a positive duty, or a
virtual refusal to perform the duty enjoined or act in
contemplation of law, or where the power is exercised in
an arbitrary and despotic manner by reason of passion
and personal hostility."19
In this connection, it will not be amiss to add that the
Supreme Court is not a trier of facts.20
Under the expanded concept of judicial power under the
Constitution, courts are charged with the duty "to
determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
government."21 From the facts obtaining, we find that the
holding of "Balikatan 02-1" joint military exercise has not
intruded into that penumbra of error that would
otherwise call for correction on our part. In other words,
respondents in the case at bar have not committed
grave abuse of discretion amounting to lack or excess
of jurisdiction.
WHEREFORE, the petition and the petition-inintervention are hereby DISMISSED without prejudice to
the filing of a new petition sufficient in form and
substance in the proper Regional Trial Court.
SO ORDERED.

90

Pimentel v. Executive Secretary Digest

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
91

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.
PIMENTEL VS EXEC Secretary 462 SCRA 622
92

This is a petition for mandamus filed by petitioners 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 Philippines for its
concurrence in accordance with Section 21, Article VII
of the 1987 Constitution.
The Rome Statute established the International Criminal
Court which shall have the power to exercise its
jurisdiction over persons for the most serious crimes of
international concern xxx and shall be complementary
to the national criminal jurisdictions.[1] Its jurisdiction
covers the crime of genocide, crimes against humanity,
war crimes and the crime of aggression as defined in
the Statute.[2] The Statute was opened for signature by
all states in Rome on July 17, 1998 and had remained
open for signature until December 31, 2000 at the
United Nations Headquarters in New York. The
Philippines signed the Statute on December 28, 2000
through Charge d Affairs Enrique A. Manalo of the
Philippine Mission to the United Nations.[3] Its
provisions, however, require that it be subject to
ratification, acceptance or approval of the signatory
states.[4]
Petitioners filed the instant petition to compel the
respondents the Office of the Executive Secretary and
the Department of Foreign Affairs to transmit the signed
text of the treaty to the Senate of the Philippines for
ratification.
It is the theory of the petitioners that ratification of a
treaty, under both domestic law and international law, is
a function of the Senate. Hence, it is the duty of the
executive department to transmit the signed copy of the
Rome Statute to the Senate to allow it to exercise its
discretion with respect to ratification of treaties.
93

Moreover, petitioners submit that the Philippines has a

ministerial duty to ratify the Rome Statute under treaty
law and customary international law. Petitioners invoke
the Vienna Convention on the Law of Treaties enjoining
the states to refrain from acts which would defeat the
object and purpose of a treaty when they have signed
the treaty prior to ratification unless they have made
their intention clear not to become parties to the treaty.[5]
The Office of the Solicitor General, commenting for the
respondents, questioned the standing of the petitioners
to file the instant suit. It also contended that the petition
at bar violates the rule on hierarchy of courts. On the
substantive issue raised by petitioners, respondents
argue that the executive department has no duty to
transmit the Rome Statute to the Senate for
concurrence.
A petition for mandamus may be filed when any tribunal,
corporation, board, officer or person unlawfully neglects
the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or
station.[6] We have held that to be given due course, a
petition for mandamus must have been instituted by a
party aggrieved by the alleged inaction of any tribunal,
corporation, board or person which unlawfully excludes
said party from the enjoyment of a legal right. The
petitioner in every case must therefore be an aggrieved
party in the sense that he possesses a clear legal right
to be enforced and a direct interest in the duty or act to
be performed.[7] The Court will exercise its power of
judicial review only if the case is brought before it by a
party who has the legal standing to raise the
constitutional or legal question. Legal standing means a
personal and substantial interest in the case such that
the party has sustained or will sustain direct injury as a
result of the government act that is being challenged.
The term interest is material interest, an interest in issue
and to be affected by the decree, as distinguished from
94

mere interest in the question involved, or a mere

incidental interest.[8]
The petition at bar was filed by Senator Aquilino
Pimentel, Jr. who asserts his legal standing to file the
suit as member of the Senate; Congresswoman Loretta
Ann Rosales, a member of the House of
Representatives and Chairperson of its Committee on
Human Rights; the Philippine Coalition for the
Establishment of the International Criminal Court which
is composed of individuals and corporate entities
dedicated to the Philippine ratification of the Rome
Statute; the Task Force Detainees of the Philippines, a
juridical entity with the avowed purpose of promoting the
cause of human rights and human rights victims in the
country; the Families of Victims of Involuntary
Disappearances, a juridical entity duly organized and
existing pursuant to Philippine Laws with the avowed
purpose of promoting the cause of families and victims
of human rights violations in the country; Bianca
Hacintha Roque and Harrison Jacob Roque, aged two
(2) and one (1), respectively, at the time of filing of the
instant petition, and suing under the doctrine of intergenerational rights enunciated in the case of Oposa vs.
Factoran, Jr.;[9] and a group of fifth year working law
students from the University of the Philippines College
of Law who are suing as taxpayers.
The question in standing is whether a party has alleged
such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
questions.[10]
We find that among the petitioners, only Senator
Pimentel has the legal standing to file the instant suit.
The other petitioners maintain their standing as
advocates and defenders of human rights, and as
95

citizens of the country. They have not shown, however,

that they have sustained or will sustain a direct injury
from the non-transmittal of the signed text of the Rome
Statute to the Senate. Their contention that they will be
deprived of their remedies for the protection and
enforcement of their rights does not persuade. The
Rome Statute is intended to complement national
criminal laws and courts. Sufficient remedies are
available under our national laws to protect our citizens
against human rights violations and petitioners can
always seek redress for any abuse in our domestic
courts.
As regards Senator Pimentel, it has been held
that to the extent the powers of Congress are impaired,
so is the power of each member thereof, since his office
confers a right to participate in the exercise of the
powers of that institution.[11] Thus, legislators have the
standing to maintain inviolate the prerogatives, powers
and privileges vested by the Constitution in their office
and are allowed to sue to question the validity of any
official action which they claim infringes their
prerogatives as legislators. The petition at bar invokes
the power of the Senate to grant or withhold its
concurrence to a treaty entered into by the executive
branch, in this case, the Rome Statute. The petition
seeks to order the executive branch to transmit the copy
of the treaty to the Senate to allow it to exercise such
authority. Senator Pimentel, as member of the
institution, certainly has the legal standing to assert
such authority of the Senate.
We now go to the substantive issue.
The core issue in this petition for mandamus is whether
the Executive Secretary and the Department of Foreign
Affairs have a ministerial duty to transmit to the Senate
the copy of the Rome Statute signed by a member of
96

the Philippine Mission to the United Nations even

without the signature of the President.
We rule in the negative.
In our system of government, the President, being the
head of state, is regarded as the sole organ and
authority in external relations and is the countrys sole
representative with foreign nations.[12] As the chief
architect of foreign policy, the President acts as the
countrys mouthpiece with respect to international
affairs. Hence, the President is vested with the authority
to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the business of
foreign relations.[13] In the realm of treaty-making, the
President has the sole authority to negotiate with other
states.
Nonetheless, while the President has the sole
authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by
requiring the concurrence of 2/3 of all the members of
the Senate for the validity of the treaty entered into by
him. Section 21, Article VII of the 1987 Constitution
provides that 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. The 1935
and the 1973 Constitution also required the concurrence
by the legislature to the treaties entered into by the
executive. Section 10 (7), Article VII of the 1935
Constitution provided:
Sec. 10. (7) The President shall have the
power, with the concurrence of two-thirds of
all the Members of the Senate, to make
treaties xxx.
Section 14 (1) Article VIII of the 1973 Constitution
stated:
97

Sec. 14. (1) Except as otherwise provided

in this Constitution, no treaty shall be valid
and effective unless concurred in by a
majority of all the Members of the Batasang
Pambansa.
The participation of the legislative branch in the treatymaking process was deemed essential to provide a
check on the executive in the field of foreign relations.
[14]
By requiring the concurrence of the legislature in the
treaties entered into by the President, the Constitution
ensures a healthy system of checks and balance
necessary in the nations pursuit of political maturity and
growth.[15]
In filing this petition, the petitioners interpret Section 21,
Article VII of the 1987 Constitution to mean that the
power to ratify treaties belongs to the Senate.
We disagree.
Justice Isagani Cruz, in his book on International Law,
describes the treaty-making process in this wise:
The usual steps in the treaty-making
process are: negotiation, signature,
ratification, and exchange of the
instruments of ratification. The treaty may
then be submitted for registration and
publication under the U.N. Charter,
although this step is not essential to the
validity of the agreement as between the
parties.
Negotiation may be undertaken directly by
the head of state but he now usually
assigns this task to his authorized
representatives. These representatives are
provided with credentials known as full
powers, which they exhibit to the other
98

negotiators at the start of the formal

discussions. It is standard practice for one
of the parties to submit a draft of the
proposed treaty which, together with the
counter-proposals, becomes the basis of
the subsequent negotiations. The
negotiations may be brief or protracted,
depending on the issues involved, and may
even collapse in case the parties are
unable to come to an agreement on the
points under consideration.
If and when the negotiators finally decide
on the terms of the treaty, the same is
opened for signature. This step is primarily
intended as a means of authenticating the
instrument and for the purpose of
symbolizing the good faith of the parties;
but, significantly, it does not indicate the
final consent of the state in cases where
ratification of the treaty is required. The
document is ordinarily signed in
accordance with the alternat, that is, each
of the several negotiators is allowed to sign
first on the copy which he will bring home to
his own state.
Ratification, which is the next step, is the
formal act by which a state confirms and
accepts the provisions of a treaty
concluded by its representatives. The
purpose of ratification is to enable the
contracting states to examine the treaty
more closely and to give them an
opportunity to refuse to be bound by it
should they find it inimical to their
interests. It is for this reason that most
treaties are made subject to the scrutiny
99

and consent of a department of the

government other than that which
negotiated them.
xxx
The last step in the treaty-making
process is the exchange of the instruments
of ratification, which usually also signifies
the effectivity of the treaty unless a different
date has been agreed upon by the parties.
Where ratification is dispensed with and no
effectivity clause is embodied in the treaty,
the instrument is deemed effective upon its
signature.[16] [emphasis supplied]
Petitioners arguments equate the signing of the
treaty by the Philippine representative with ratification. It
should be underscored that the signing of the treaty and
the ratification are two separate and distinct steps in the
treaty-making process. As earlier discussed, the
signature is primarily intended as a means of
authenticating the instrument and as a symbol of the
good faith of the parties. It is usually performed by the
states authorized representative in the diplomatic
mission. Ratification, on the other hand, is the formal act
by which a state confirms and accepts the provisions of
a treaty concluded by its representative. It is generally
held to be an executive act, undertaken by the head of
the state or of the government.[17] Thus, Executive Order
No. 459 issued by President Fidel V. Ramos on
November 25, 1997 provides the guidelines in the
negotiation of international agreements and its
ratification. It mandates that after the treaty has been
signed by the Philippine representative, the same shall
be transmitted to the Department of Foreign Affairs. The
Department of Foreign Affairs shall then prepare the
ratification papers and forward the signed copy of the
100

treaty to the President for ratification. After the President

has ratified the treaty, the Department of Foreign Affairs
shall submit the same to the Senate for concurrence.
Upon receipt of the concurrence of the Senate, the
Department of Foreign Affairs shall comply with the
provisions of the treaty to render it effective. Section 7
of Executive Order No. 459 reads:
Sec. 7. Domestic Requirements for
the Entry into Force of a Treaty or an
Executive Agreement. The domestic
requirements for the entry into force of a
treaty or an executive agreement, or any
amendment thereto, shall be as follows:
A. Executive Agreements.
i. All executive
agreements shall be
transmitted to the
Department of Foreign
Affairs after their signing
for the preparation of the
ratification papers. The
transmittal shall include
the highlights of the
agreements and the
benefits which will
accrue to the Philippines
arising from them.
ii. The Department of
Foreign Affairs, pursuant
to the endorsement by
the concerned agency,
shall transmit the
agreements to the
President of the
Philippines for his
101

ratification. The original

signed instrument of
ratification shall then be
returned to the
Department of Foreign
Affairs for appropriate
action.
B. Treaties.
i. All treaties, regardless
of their designation, shall
comply with the
requirements provided in
sub-paragraph[s] 1 and
2, item A (Executive
Agreements) of this
Section. In addition, the
Department of Foreign
Affairs shall submit the
treaties to the Senate of
the Philippines for
concurrence in the
ratification by the
President. A certified
true copy of the treaties,
in such numbers as may
be required by the
Senate, together with a
certified true copy of the
ratification instrument,
shall accompany the
submission of the
treaties to the Senate.
ii. Upon receipt of the
concurrence by the
Senate, the Department
102

of Foreign Affairs shall

comply with the
provision of the treaties
in effecting their entry
into force.
Petitioners submission that the Philippines is bound
under treaty law and international law to ratify the treaty
which it has signed is without basis. The signature does
not signify the final consent of the state to the treaty. It is
the ratification that binds the state to the provisions
thereof. In fact, the Rome Statute itself requires that the
signature of the representatives of the states be subject
to ratification, acceptance or approval of the signatory
states. Ratification is the act by which the provisions of
a treaty are formally confirmed and approved by a
State. By ratifying a treaty signed in its behalf, a state
expresses its willingness to be bound by the provisions
of such treaty. After the treaty is signed by the states
representative, the President, being accountable to the
people, is burdened with the responsibility and the duty
to carefully study the contents of the treaty and ensure
that they are not inimical to the interest of the state and
its people. Thus, the President has the discretion even
after the signing of the treaty by the Philippine
representative whether or not to ratify the same. The
Vienna Convention on the Law of Treaties does not
contemplate to defeat or even restrain this power of the
head of states. If that were so, the requirement of
ratification of treaties would be pointless and futile. It
has been held that a state has no legal or even moral
duty to ratify a treaty which has been signed by its
plenipotentiaries.[18] There is no legal obligation to ratify
a treaty, but it goes without saying that the refusal must
be based on substantial grounds and not on superficial
or whimsical reasons. Otherwise, the other state would
be justified in taking offense.[19]
103

It should be emphasized that under our Constitution, the

power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate,
however, is limited only to giving or withholding its
consent, or concurrence, to the ratification.[20] Hence, it
is within the authority of the President to refuse to
submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it.[21] Although
the refusal of a state to ratify a treaty which has been
signed in its behalf is a serious step that should not be
taken lightly,[22] such decision is within the competence
of the President alone, which cannot be encroached by
this Court via a writ of mandamus. This Court has no
jurisdiction over actions seeking to enjoin the President
in the performance of his official duties.[23] The Court,
therefore, cannot issue the writ of mandamus prayed for
by the petitioners as it is beyond its jurisdiction to
compel the executive branch of the government to
transmit the signed text of Rome Statute to the Senate.
IN VIEW WHEREOF, the petition is DISMISSED.
SO ORDERED.

104

NICARAGUA VS US ICJ REP 1986

OPERATIVE PART OF THE COURT'S JUDGMENT
THE COURT
(1) By eleven votes to four,
Decides that in adjudicating the dispute brought before
it by the Application filed by the Republic of Nicaragua
on 9 April 1984, the Court is required to apply the
"multilateral treaty reservation"contained in
proviso (c) to the declaration of acceptance of
jurisdiction made under Article 36, paragraph 2, of the
Statute of the Court by the Government of the Untied
States of America deposited on 26 August 1946;

105

(3) By twelve votes to three,

Decides that the United States of America, by training,
arming, equipping, financing and supplying
the contra forces or otherwise encouraging, supporting
and aiding military and paramilitary activities in and
against Nicaragua, has acted, against the Republic of
Nicaragua, in breach of its obligation under customary
international law not to intervene in the affairs of another
State;

(4) By twelve votes to three,

Decides that the United States of America, by certain
attacks on Nicaraguan territory in 1983-1984, namely
attacks on Puerto Sandino on 13 September and 14
October 1983, an attack on Corinto on 10 October
1983; an attack on Potosi Naval Base on 4/5 January
1984, an attack on San Juan del Sur on 7 March 1984;
attacks on patrol boats at Puerto Sandino on 28 and 30
March 1984; and an attack on San Juan del Norte on 9
April 1984; and further by those acts of intervention
referred to in subparagraph (3) hereof which involve the
use of force, has acted, against the Republic of
Nicaragua, in breach of its obligation under customary
international law not to use force against another State;

(5) By twelve votes to three,

Decides that the United States of America, by directing
or authorizing over Rights of Nicaraguan territory, and
106

by the acts imputable to the United States referred to in

subparagraph (4) hereof, has acted, against the
Republic of Nicaragua, in breach of its obligation under
customary international law not to violate the
sovereignty of another State;

(6) By twelve votes to three,

Decides that, by laying mines in the internal or territorial
waters of the Republic of Nicaragua during the first
months of 1984, the United States of America has
acted, against the Republic of Nicaragua, in breach of
its obligations under customary international law not to
use force against another State, not to intervene in its
affairs, not to violate its sovereignty and not to interrupt
peaceful maritime commerce;

(7) By fourteen votes to one,

Decides that, by the acts referred to in subparagraph (6)
hereof the United States of America has acted, against
the Republic of Nicaragua, in breach of its obligations
under Article XIX of the Treaty of Friendship, Commerce
and Navigation between the United States of America
and the Republic of Nicaragua signed at Managua on
21 January 1956;

(8) By fourteen votes to one,

107

Decides that the United States of America, by failing to

make known the existence and location of the mines
laid by it, referred to in subparagraph (6) hereof, has
acted in breach of its obligations under customary
international law in this respect;

(9) By fourteen votes to one,

Finds that the United States of America, by producing in
1983 a manual entitled "Operaciones sicolgicas en
guerra de guerrillas", and disseminating it
to contra forces, has encouraged the commission by
them of acts contrary to general principles of
humanitarian law; but does not find a basis for
concluding that any such acts which may have been
committed are imputable to the United States of
America as acts of the United States of America;

(10) By twelve votes to three,

Decides that the United States of America, by the
attacks on Nicaraguan territory referred to in
subparagraph (4) hereof, and by declaring a general
embargo on trade with Nicaragua on 1 May 1985, has
committed acts calculated to deprive of its object and
108

purpose the Treaty of Friendship, Commerce and

Navigation between the Parties signed at Managua on
21 January 1956;

(11) By twelve votes to three,

Decides that the United States of America, by the
attacks on Nicaraguan territory referred to in
subparagraph (4) hereof, and by declaring a general
embargo on trade with Nicaragua on 1 May 1985, has
acted in breach of its obligations under Article XIX of the
Treaty of Friendship, Commerce and Navigation
between the Parties signed at Managua on 21 January
1956;

(12) By twelve votes to three,

Decides that the United States of America is under a
duty immediately to cease and to refrain from all such
acts as may constitute breaches of the foregoing legal
obligations;

(13) By twelve votes to three,

Decides that the United States of America is under an
obligation to make reparation to the Republic of
Nicaragua for all injury caused to Nicaragua by the
109

breaches of obligations under customary international

law enumerated above;

(14) By fourteen votes to one,

Decides that the United States of America is under an
obligation to make reparation to the Republic of
Nicaragua for all injury caused to Nicaragua by the
breaches of the Treaty of Friendship, Commerce and
Navigation between the Parties signed at Managua on
21 January 1956;

(15) By fourteen votes to one,

Decides that the form and amount of such reparation,
failing agreement between the Parties, will be settled by
the Court, and reserves for this purpose the subsequent
procedure in the case;

(16) Unanimously,
Recalls to both Parties their obligation to seek a solution
to their disputes by peaceful means in accordance with
international law.
SUMMARY OF THE JUDGMENT
I. Qualits (paras. 1 to 17)
II. Background to the dispute (paras. 18-25)
110

III. The non-appearance of the Respondent and Article

53 of the Statute (paras. 26-31)
The Court recalls that subsequent to the delivery of its
Judgment of 26 November 1984 on the jurisdiction of
the Court and the admissibility of Nicaragua's
Application, the United States decided not to take part in
the present phase of the proceedings. This however
does not prevent the Court from giving a decision in the
case, but it has to do so while respecting the
requirements of Article 53 of the Statute, which provides
for the situation when one of the parties does not
appear. The Court's jurisdiction being established, it has
in accordance with Article 53 to satisfy itself that the
claim of the party appearing is well founded in fact and
law. In this respect the Court recalls certain guiding
principles brought out in a number of previous cases,
one of which excludes any possibility of a judgment
automatically in favour of the party appearing. It also
observes that it is valuable for the Court to know the
views of the non-appearing party, even if those views
are expressed in ways not provided for in the Rules of
Court. The principle of the equality of the parties has to
remain the basic principle, and the Court has to ensure
that the party which declines to appear should not be
permitted to profit from its absence.
IV. Justiciability of the dispute (paras. 32-35)
The Court considers it appropriate to deal with a
preliminary question. It has been suggested that the
questions of the use of force and collective self-defence
raised in the case fall outside the limits of the kind of
questions the Court can deal with, in other words that
111

they are not justiciable. However, in the first place the

Parties have not argued that the present dispute is not a
"legal dispute" within the meaning of Article 36,
paragraph 2, of the Statute, and secondly, the Court
considers that the case does not necessarily involve it in
evaluation of political or military matters, which would be
to overstep proper judicial bounds. Consequently, it is
equipped to determine these problems.
V. The significance of the multilateral treaty
reservation (paras. 36-56)
The United States declaration of acceptance of the
compulsory jurisdiction of the Court under Article 36,
paragraph 2, of the Statute contained a reservation
excluding from operation of the declaration
"disputes arising under a multilateral treaty, unless (1)
all parties to the treaty affected by the decision are also
parties to the case before the Court, or (2) the United
States of America specially agrees to jurisdiction".
In its Judgment of 26 November 1984 the Court found,
on the basis of Article 79, paragraph 7, of the Rules of
Court, that the objection to jurisdiction based on the
reservation raised "a question concerning matters of
substance relating to the merits of the case" and that
the objection did "not possess, in the circumstances of
the case, an exclusively preliminary character". Since it
contained both preliminary aspects and other aspects
relating to the merits, it had to be dealt with at the stage
of the merits.

112

In order to establish whether its jurisdiction were limited

by the effect of the reservation in question, the Court
has to ascertain whether any third States, parties to the
four multilateral treaties invoked by Nicaragua, and not
parties to the proceedings, would be "affected" by the
Judgment. Of these treaties, the Court considers it
sufficient to examine the position under the United
Nations Charter and the Charter of the Organization of
American States.
The Court examines the impact of the multilateral treaty
reservation on Nicaragua's claim that the United States
has used force in breach of the two Charters. The Court
examines in particular the case of El Salvador, for
whose benefit primarily the United States claims to be
exercising the right of collective self-defence which it
regards as a justification of its own conduct towards
Nicaragua, that right being endorsed by the United
Nations Charter (Art. 51) and the OAS Charter (Art. 21).
The dispute is to this extent a dispute "arising under"
multilateral treaties to which the United States,
Nicaragua and El Salvador are Parties. It appears clear
to the Court that El Salvador would be "affected" by the
Court's decision on the lawfulness of resort by the
United States to collective self-defence.
As to Nicaragua's claim that the United States has
intervened in its affairs contrary to the OAS Charter (Art.
18) the Court observes that it is impossible to say that a
ruling on the alleged breach of the Charter by the United
States would not "affect" El Salvador.
Having thus found that El Salvador would be "affected"
by the decision that the Court would have to take on the
113

claims of Nicaragua based on violation of the two

Charters by the United States, the Court concludes that
the jurisdiction conferred on it by the United States
declaration does not permit it to entertain these claims.
It makes it clear that the effect of the reservation is
confined to barring the applicability of these two
multilateral treaties as multilateral treaty law, and has no
further impact on the sources of international law which
Article 38 of the Statute requires the Court to apply,
including customary international law.
VI. Establishment of the facts: evidence and methods
employed by the Court (paras. 57-74)
The Court has had to determine the facts relevant to the
dispute. The difficulty of its task derived from the
marked disagreement between the Parties, the nonappearance of the Respondent, the secrecy
surrounding certain conduct, and the fact that the
conflict is continuing. On this last point, the Court takes
the view, in accordance with the general principles as to
the judicial process, that the facts to be taken into
account should be those occurring up to the close of the
oral proceedings on the merits of the case (end of
September 1985).
With regard to the production of evidence, the Court
indicates how the requirements of its Statute - in
particular Article 53 - and the Rules of Court have to be
met in the case, on the basis that the Court has freedom
in estimating the value of the various elements of
evidence. It has not seen fit to order an enquiry under
Article 50 of the Statute. With regard to
certain documentary material (press articles and various
114

books), the Court has treated these with caution. It

regards than not as evidence capable of proving facts,
but as material which can nevertheless contribute to
corroborating the existence of a fact and be taken into
account to show whether certain facts are matters of
public knowledge. With regard tostatements by
representatives of States, sometimes at the highest
level, the Court takes the view that such statements are
of particular probative value when they acknowledge
facts or conduct unfavourable to the State represented
by the person who made them. With regard to
the evidence of witnesses presented by Nicaragua - five
witnesses gave oral evidence and another a written
affidavit-one consequence of the absence of the
Respondent was that the evidence of the witnesses was
not tested by cross-examination. The Court has not
treated as evidence any part of the testimony which was
a mere expression of opinion as to the probability or
otherwise of the existence of a fact not directly known to
the witness. With regard in particular to affidavits and
sworn statements made by members of a Government,
the Court considers that it can certainly retain such
parts of this evidence as may be regarded as contrary
to the interests or contentions of the State to which the
witness has allegiance; for the rest such evidence has
to be treated with great reserve.
The Court is also aware of a publication of the United
States State Department entitled "Revolution Beyond
Our Borders, Sandinista Intervention in Central
America" which was not submitted to the Court in any
form or manner contemplated by the Statute and Rules
of Court. The Court considers that, in view of the special
115

circumstances of this case, it may, within limits, make

use of information in that publication.
VII. The facts imputable to the United States (paras. 75
to 125)
1. The Court examines the allegations of Nicaragua that
the mining of Nicaraguan ports or waters was carried
out by United States military personnel or persons of the
nationality of Latin American countries in the pay of the
United States. After examining the facts, the Court finds
it established that, on a date in late 1983 or early 1984,
the President of the United States authorized a United
States Government agency to lay mines in Nicaraguan
ports, that in early 1984 mines were laid in or close to
the ports of El Bluff, Corinto and Puerto Sandino, either
in Nicaraguan internal waters or in its territorial sea or
both, by persons in the pay and acting on the
instructions of that agency, under the supervision and
with the logistic support of United States agents; that
neither before the laying of the mines, nor subsequently,
did the United States Government issue any public and
official warning to international shipping of the existence
and location of the mines; and that personal and
material injury was caused by the explosion of the
mines, which also created risks causing a rise in marine
insurance rates.
2. Nicaragua attributes to the direct action of United
States personnel, or persons in its pay, operations
against oil installations, a naval base, etc.,listed in
paragraph 81 of the Judgment. The Court finds all these
incidents, except three, to be established. Although it is
not proved that any United States military personnel
116

took a direct part in the operations, United States

agents participated in the planning, direction and
support. The imputability to the United States of these
attacks appears therefore to the Court to be
established.
3. Nicaragua complains of infringement of its air
space by United States military aircraft. After indicating
the evidence available, the Court finds that the only
violations of Nicaraguan air space imputable to the
United States on the basis of the evidence are high
altitude reconnaissance flights and low altitude flights on
7 to 11 November 1984 causing "sonic booms".
With regard to joint military manoeuvres with Honduras
carried out by the United States on Honduran territory
near the Honduras/Nicaragua frontier, the Court
considers that they may be treated as public knowledge
and thus sufficiently established.
4. The Court then examines the genesis, development
and activities of the contra force, and the role of the
United States in relation to it. According to Nicaragua,
the United States "conceived, created and organized a
mercenary army, the contra force". On the basis of the
available information, the Court is not able to satisfy
itself that the Respondent State "created"
the contra force in Nicaragua, but holds it established
that it largely financed, trained, equipped, armed and
organized the FDN, one element of the force.
It is claimed by Nicaragua that the United States
Government devised the strategy and directed the
tactics of the contra force, and provided direct combat
117

support for its military operations. In the light of the

evidence and material available to it, the Court is not
satisfied that all the operations launched by
the contra force, at every stage of the conflict, reflected
strategy and tactics solely devised by the United States.
It therefore cannot uphold the contention of Nicaragua
on this point. The Court however finds it clear that a
number of operations were decided and planned, if not
actually by the United States advisers, then at least in
close collaboration with them, and on the basis of the
intelligence and logistic support which the United States
was able to offer. It is also established in the Court's
view that the support of the United States for the
activities of the contras took various forms over the
years, such as logistic support the supply of information
on the location and movements of the Sandinista
troops, the use of sophisticated methods of
communication, etc. The evidence does not however
warrant a finding that the United States gave direct
combat support, if that is taken to mean direct
intervention by United States combat forces.
The Court has to determine whether the relationship of
the contras to the United States Government was such
that it would be right to equate thecontras, for legal
purposes, with an organ of the United States
Government, or as acting on behalf of that Government.
The Court considers that the evidence available to it is
insufficient to demonstrate the total dependence of
the contras on United States aid. A partial dependency,
the exact extent of which the Court cannot establish,
may be inferred from the fact that the leaders were
selected by the United States, and from other factors
such as the organisation, training and equipping of the
118

force, planning of operations, the choosing of targets

and the operational support provided. There is no clear
evidence that the United States actually exercised such
a degree of control as to justify treating the contras as
acting on its behalf.
5. Having reached the above conclusion, the Court
takes the view that the contras remain responsible for
their acts, in particular the alleged violations by them
of humanitarian law. For the United States to be legally
responsible, it would have to be proved that that State
had effective control of the operations in the course of
which the alleged violations were committed.
6. Nicaragua has complained of certain measures of an
economic nature taken against it by the Government of
the United States, which it regards as an indirect form of
intervention in its internal affairs. Economic aid was
suspended in January 1981, and terminated in April
1981; the United States acted to oppose or block loans
to Nicaragua by international financial bodies; the sugar
import quota from Nicaragua was reduced by 90
percent in September 1983; and a total trade embargo
on Nicaragua was declared by an executive order of the
President of the United States on 1 May 1985.
VIII. The conduct of Nicaragua (paras. 126-171)
The Court has to ascertain, so far as possible, whether
the activities of the United States complained of,
claimed to have been the exercise of collective selfdefence, may be justified by certain facts attributable to
Nicaragua.
119

1. The United States has contended that Nicaragua

was actively supporting armed groups operating in
certain of the neighbouring countries,particularly in El
Salvador, and specifically in the form of the supply of
arms, an accusation which Nicaragua has repudiated.
The Court first examines the activity of Nicaragua with
regard to El Salvador.
Having examined various evidence, and taking account
of a number of concordant indications, many of which
were provided by Nicaragua itself, from which the Court
can reasonably infer the provision of a certain amount of
aid from Nicaraguan territory, the Court concludes that
support for the armed opposition in El Salvador from
Nicaraguan territory was a fact up to the early months of
1981. Subsequently, evidence of military aid from or
through Nicaragua remains very weak, despite the
deployment by the United States in the region of
extensive technical monitoring resources. The Court
cannot however conclude that no transport of or traffic
in arms existed. It merely takes note that the allegations
of arms traffic are not solidly established, and has not
been able to satisfy itself that any continuing flow on a
significant scale took place after the early months of
1981.
Even supposing it were established that military aid was
reaching the armed opposition in El Salvador from the
territory of Nicaragua, it skill remains to be proved that
such aid is imputable to the authorities of Nicaragua,
which has not sought to conceal the possibility of
weapons crossing its territory, but denies that this is the
result of any deliberate official policy on its part. Having
regard to the circumstances characterizing this part of
120

Central America, the Court considers that it is scarcely

possible for Nicaragua's responsibility for arms traffic on
its territory to be automatically assumed. The Court
considers it more consistent with the probabilities to
recognize that an activity of that nature, if on a limited
scale, may very well be pursued unknown to the
territorial government. In any event the evidence is
insufficient to satisfy the Court that the Government of
Nicaragua was responsible for any flow of arms at either
period.
2. The United States has also accused Nicaragua of
being responsible for cross-border military attacks on
Honduras and Costa Rica. While not as fully informed
on the question as it would wish to be, the Court
considers as established the fact that certain transborder military incursions are imputable to the
Government of Nicaragua.
3. The Judgment recalls certain events which occurred
at the time of the fall of President Somoza, since
reliance has been placed on them by the United States
to contend that the present Government of Nicaragua is
in violation of certain alleged assurances given by its
immediate predecessor. The Judgment refers in
particular to the "Plan to secure peace" sent on 12 July
1979 by the "Junta of the Government of National
Reconstruction" of Nicaragua to the Secretary-General
of the OAS, mentioning, inter alia, its "firm intention to
establish full observance of human rights in our country"
and "to call the first free elections our country has
known in this century". The United States considers that
it has a special responsibility regarding the
implementation of these commitments.
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IX. The applicable law: customary international

law (paras. 172-182)
The Court has reached the conclusion (section V, in
fine) that it has to apply the multilateral treaty
reservation in the United States declaration, the
consequential exclusion of multilateral treaties being
without prejudice either to other treaties or other
sources of law enumerated in Article 38 of the Statute.
In order to determine the law actually to be applied to
the dispute, it has to ascertain the consequences of the
exclusion of the applicability of the multilateral treaties
for the definition of the content of the customary
international law which remains applicable.
The Court, which has already commented briefly on this
subject in the jurisdiction phase (I.C.J. Reports 1984,
pp. 424 and 425, para. 73), develops its initial remarks.
It does not consider that it can be claimed, as the United
States does, that all the customary rules which may be
invoked have a content exactly identical to that of the
rules contained in the treaties which cannot be applied
by virtue of the United States reservation. Even if a
treaty norm and a customary norm relevant to the
present dispute were to have exactly the same content,
this would not be a reason for the Court to take the view
that the operation of the treaty process must necessarily
deprive the customary norm of its separate applicability.
Consequently, the Court is in no way bound to uphold
customary rules only in so far as they differ from the
treaty rules which it is prevented by the United States
reservation from applying.

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In response to an argument of the United States, the

Court considers that the divergence between the
content of the customary norms and that of the treaty
law norms is not such that a judgment confined to the
field of customary international law would not be
susceptible of compliance or execution by the parties.
X. The content of the applicable law (paras. 183 to 225)
1. Introduction: general observations (paras. 183-186)
The Court has next to consider what are the rules of
customary law applicable to the present dispute. For
this purpose it has to consider whether a customary rule
exists in the opinio juris of States,and satisfy itself that it
is confirmed by practice.
2. The prohibition of the use of force, and the right of
self-defence (paras. 187 to 201)
The Court finds that both Parties take the view that the
principles as to the use of force incorporated in the
United Nations Charter correspond, in essentials, to
those found in customary international law. They
therefore accept a treaty-law obligation to refrain in their
international relations from the threat or use of force
against the territorial integrity or political independence
of any State, or in any other manner inconsistent with
the purposes of the United Nations (Art. 2, para. 4, of
the Charter). The Court has however to be satisfied that
there exists in customary law an opinio juris as to the
binding character of such abstention. It considers that
this opinio juris may be deduced from, inter alia, the
attitude of the Parties and of States towards certain
123

General Assembly resolutions, and particularly

resolution 2625 (XXV) entitled "Declaration on
Principles of International Law concerning Friendly
Relations and Co-operation among States in
Accordance with the Charter of the United Nations".
Consent to such resolutions is one of the forms of
expression of an opinio juris with regard to the principle
of non-use of force, regarded as a principle of
customary international law, independently of the
provisions, especially those of an institutional kind, to
which it is subject on the treaty-law plane of the Charter.
The general rule prohibiting force established in
customary law allows for certain exceptions. The
exception of the right of individual or collective selfdefence is also, in the view of States, established in
customary law, as is apparent for example from the
terms of Article 51 of the United Nations Charter, which
refers to an "inherent right", and from the declaration in
resolution 2625 (XXV). The Parties, who consider the
existence of this right to be established as a matter of
customary international law, agree in holding that
whether the response to an attack is lawful depends on
the observance of the criteria of the necessity and the
proportionality of the measures taken in self-defence.
Whether self-defence be individual or collective, it can
only be exercised in response to an "armed attack". In
the view of the Court, this is to be understood as
meaning not merely action by regular armed forces
across an international border, but also the sending by a
State of armed bands on to the territory of another
State, if such an operation, because of its scale and
effects, would have been classified as an armed attack
124

had it been carried out by regular armed forces. The

Court quotes the definition of aggression annexed to
General Assembly resolution 3314 (XXIX) as expressing
customary law in this respect.
The Court does not believe that the concept of "armed
attack" includes assistance to rebels in the form of the
provision of weapons or logistical or other support.
Furthermore, the Court finds that in customary
international law, whether of a general kind or that
particular to the inter-American legal system, there is no
rule permitting the exercise of collective self-defence in
the absence of a request by the State which is a victim
of the alleged attack, this being additional to the
requirement that the State in question should have
declared itself to have been attacked.
3. The principle of non-intervention (paras. 202 to 209)
The principle of non-intervention involves the right of
every sovereign State to conduct its affairs without
outside interference. Expressions of anopinio juris of
States regarding the existence of this principle are
numerous. The Court notes that this principle, stated in
its own jurisprudence, has been reflected in numerous
declarations and resolutions adopted by international
organizations and conferences in which the United
States and Nicaragua have participated. The text
thereof testifies to the acceptance by the United States
and Nicaragua of a customary principle which has
universal application. As to the content of the principle in
customary law, the Court defines the constitutive
elements which appear relevant in this case: a
prohibited intervention must be one bearing on matters
125

in which each State is permitted, by the principle of

State sovereignty, to decide freely (for example the
choice of a political, economic, social and cultural
system, and formulation of foreign policy). Intervention
is wrongful when it uses, in regard to such choices,
methods of coercion, particularly force, either in the
direct form of military action or in the indirect form of
support for subversive activities in another State.
With regard to the practice of States, the Court notes
that there have been in recent years a number of
instances of foreign intervention in one State for the
benefit of forces opposed to the government of that
State. It concludes that the practice of States does not
justify the view that any general right of intervention in
support of an opposition within another State exists in
contemporary international law; and this is in fact not
asserted either by the United States or by Nicaragua.
4. Collective counter-measures in response to conduct
not amounting to armed attack (paras. 210 and 211)
The Court then considers the question whether, if one
State acts towards another in breach of the principle of
non-intervention, a third State may lawfully take action
by way of counter-measures which would amount to an
intervention in the first State's internal affairs. This
would be analogous to the right of self-defence in the
case of armed attack, but the act giving rise to the
reaction would be less grave, not amounting to armed
attack. In the view of the Court, under international law
in force today, States do not have a right of "collective"
armed response to acts which do not constitute an
"armed attack".
126

5. State sovereignty (paras. 212 to 214)

Turning to the principle of respect for State sovereignty,
the Court recalls that the concept of sovereignty, both in
treaty-law and in customary international law, extends to
the internal waters and territorial sea of every State and
to the airspace above its territory. It notes that the laying
of mines necessarily affects the sovereignty of the
coastal State, and that if the right of access to ports is
hindered by the laying of mines by another State, what
is infringed is the freedom of communications and of
maritime commerce.
6. Humanitarian law (paras. 215 to 220)
The Court observes that the laying of mines in the
waters of another State without any warning or
notification is not only an unlawful act but also a breach
of the principles of humanitarian law underlying the
Hague Convention No. VIII of 1907. This consideration
leads the Court on to examination of the international
humanitarian law applicable to the dispute. Nicaragua
has not expressly invoked the provisions of international
humanitarian law as such, but has complained of acts
committed on its territory which would appear to be
breaches thereof. In its submissions it has accused the
United States of having killed, wounded and kidnapped
citizens of Nicaragua. Since the evidence available is
insufficient for the purpose of attributing to the United
States the acts committed by the contras, the Court
rejects this submission.
The question however remains of the law applicable to
the acts of the United States in relation to the activities
127

of the contrast Although Nicaragua has refrained from

referring to the four Geneva Conventions of 12 August
1949, to which Nicaragua and the United States are
parties, the Court considers that the rules stated in
Article 3, which is common to the four Conventions,
applying to armed conflicts of a non-international
character, should be applied. The United States is under
an obligation to "respect" the Conventions and even to
"ensure respect" for them, and thus not to encourage
persons or groups engaged in the conflict in Nicaragua
to act in violation of the provisions of Article 3. This
obligation derives from the general principles of
humanitarian law to which the Conventions merely give
specific expression.
7. The 1956 treaty (paras. 221 to 225)
In its Judgment of 26 November 1984, the Court
concluded that it had jurisdiction to entertain claims
concerning the existence of a dispute between the
United States and Nicaragua as to the interpretation or
application of a number of articles of the treaty of
Friendship, Commerce and Navigation signed at
Managua on 21 January 1956. It has to determine the
meaning of the various relevant provisions, and in
particular of Article XXI, paragraphs I (c) and I (d), by
which the parties reserved the power to derogate from
the other provisions.
XI. Application of the law to the facts (paras. 226 to 282)
Having set out the facts of the case and the rules of
international law which appear to be in issue as a result
of those facts, the Court has now to appraise the facts
128

in relation to the legal rules applicable, and determine

whether there are present any circumstances excluding
the unlawfulness of particular acts.
1. The prohibition of the use of force and the right of
self-defence (paras. 227 to 238)
Appraising the facts first in the light of the principle of
the non-use of force, the Court considers that the laying
of mines in early 1984 and certain attacks on
Nicaraguan ports, oil installations and naval bases,
imputable to the United States constitute infringements
of this principle, unless justified by circumstances which
exclude their unlawfulness. It also considers that the
United States has committed a prima facie violation of
the principle by arming and training the contras, unless
this can be justified as an exercise of the right of selfdefence.
On the other hand, it does not consider that military
manoeuvres held by the United States near the
Nicaraguan borders, or the supply of funds to
the contras, amounts to a use of force.
The Court has to consider whether the acts which it
regards as breaches of the principle may be justified by
the exercise of the right of collective self-defence, and
has therefore to establish whether the circumstances
required are present. For this, it would first have to find
that Nicaragua engaged in an armed attack against El
Salvador, Honduras or Costa Rica, since only such an
attack could justify reliance on the right of self-defence.
As regards El Salvador, the Court considers that in
customary international law the provision of arms to the
129

opposition in another State does not constitute an

armed attack on that State. As regards Honduras and
Costa Rica, the Court states that, in the absence of
sufficient information as to the transborder incursions
into the territory of those two States from Nicaragua, it is
difficult to decide whether they amount, singly or
collectively, to an armed attack by Nicaragua. The Court
finds that neither these incursions nor the alleged
supply of arms may be relied on as justifying the
exercise of the right of collective self-defence.
Secondly, in order to determine whether the United
States was justified in exercising self-defence, the Court
has to ascertain whether the circumstances required for
the exercise of this right of collective self-defence were
present, and therefore considers whether the States in
question believed that they were the victims of an
armed attack by Nicaragua, and requested the
assistance of the United States in the exercise of
collective self-defence. The Court has seen no evidence
that the conduct of those States was consistent with
such a situation.
Finally, appraising the United States activity in relation
to the criteria of necessity and proportionality, the Court
cannot find that the activities in question were
undertaken in the light of necessity, and finds that some
of them cannot be regarded as satisfying the criterion of
proportionality.
Since the plea of collective self-defence advanced by
the United States cannot be upheld, it follows that the
United States has violated the principle prohibiting
130

recourse to the threat or use of force by the acts

referred to in the first paragraph of this section.
2. The principle of non-intervention (paras. 239 to 245)
The Court finds it clearly established that the United
States intended, by its support of the contras, to coerce
Nicaragua in respect of matters in which each State is
permitted to decide freely, and that the intention of
the contras themselves was to overthrow the present
Government of Nicaragua. It considers that if one State,
with a view to the coercion of another State, supports
and assists armed bands in that State whose purpose is
to overthrow its government, that amounts to an
intervention in its internal affairs, whatever the political
objective of the State giving support. It therefore finds
that the support given by the United States to the
military and paramilitary activities of the contras in
Nicaragua, by financial support, training, supply of
weapons, intelligence and logistic support, constitutes a
clear breach of the principle of non-intervention.
Humanitarian aid on the other hand cannot be regarded
as unlawful intervention. With effect from 1 October
1984, the United States Congress has restricted the use
of funds to "humanitarian assistance" to
the contrast The Court recalls that if the provision of
"humanitarian assistance" is to escape condemnation
as an intervention in the internal affairs of another State,
it must be limited to the purposes hallowed in the
practice of the Red Cross, and above all be given
without discrimination.
With regard to the form of indirect intervention which
Nicaragua sees in the taking of certain action of an
131

economic nature against it by the United States, the

Court is unable to regard such action in the present
case as a breach of the customary law principle of nonintervention.
3. Collective counter-measures in response to conduct
not amounting to armed attack (paras. 246 to 249)
Having found that intervention in the internal affairs of
another State does not produce an entitlement to take
collective counter-measures involving the use of force,
the Court finds that the acts of which Nicaragua is
accused, even assuming them to have been established
and imputable to that State, could not justify countermeasures taken by a third State, the United States, and
particularly could not justify intervention involving the
use of force.
4. State sovereignty (paras. 250 to 253)
The Court finds that the assistance to the contras, the
direct attacks on Nicaraguan ports, oil installations, etc.,
the mining operations in Nicaraguan ports, and the acts
of intervention involving the use of force referred to in
the Judgment, which are already a breach of the
principle of non-use of force, are also an infringement of
the principle of respect for territorial sovereignty. This
principle is also directly infringed by the unauthorized
overflight of Nicaraguan territory. These acts cannot be
justified by the activities in El Salvador attributed to
Nicaragua; assuming that such activities did in fact
occur, they do not bring into effect any right belonging to
the United States. The Court also concludes that, in the
context of the present proceedings, the laying of mines
132

in or near Nicaraguan ports constitutes an infringement,

to Nicaragua's detriment, of the freedom of
communications and of maritime commerce.
5. Humanitarian law (paras. 254 to 256)
The Court has found the United States responsible for
the failure to give notice of the mining of Nicaraguan
ports.
It has also found that, under general principles of
humanitarian law, the United States was bound to
refrain from encouragement of persons or groups
engaged in the conflict in Nicaragua to commit
violations of common Article 3 of the four Geneva
Conventions of 12 August 1949. The manual on
"Psychological Operations in Guerrilla Warfare", for the
publication and dissemination of which the United
States is responsible, advises certain acts which cannot
but be regarded as contrary to that article.
6. Other grounds mentioned in justification of the acts of
the United States (paras. 257 to 269)
The United States has linked its support to
the contras with alleged breaches by the Government of
Nicaragua of certain solemn commitments to the
Nicaraguan people, the United States and the OAS. The
Court considers whether there is anything in the
conduct of Nicaragua which might legally warrant
counter-measures by the United States in response to
the alleged violations. With reference to the "Plan to
secure peace" put forward by the Junta of the
Government of National Reconstruction (12 July 1979),
133

the Court is unable to find anything in the documents

and communications transmitting the plan from which it
can be inferred that any legal undertaking was intended
to exist. The Court cannot contemplate the creation of a
new rule opening up a right of intervention by one State
against another on the ground that the latter has opted
for some particular ideology or political system.
Furthermore the Respondent has not advanced a legal
argument based on an alleged new principle of
"ideological intervention".
With regard more specifically to alleged violations of
human rights relied on by the United States, the Court
considers that the use of force by the United States
could not be the appropriate method to monitor or
ensure respect for such rights, normally provided for in
the applicable conventions. With regard to the alleged
militarization of Nicaragua, also referred to by the
United States to justify its activities, the Court observes
that in international law there are no rules, other than
such rules as may be accepted by the State concerned,
by treaty or otherwise, whereby the level of armaments
of a sovereign State can be limited, and this principle is
valid for all States without exception.
7. The 1956 Treaty (paras. 270 to 282)
The Court turns to the claims of Nicaragua based on the
Treaty of Friendship, Commerce and Navigation of
1956, and the claim that the United States has deprived
the Treaty of its object and purpose and emptied it of
real content. The Court cannot however entertain these
claims unless the conduct complained of is not
"measures . . . necessary to protect the essential
134

security interests" of the United States, since Article XXI

of the Treaty provides that the Treaty shall not preclude
the application of such measures. With regard to the
question what activities of the United States might have
been such as to deprive the Treaty of its object and
purpose, the Court makes a distinction. It is unable to
regard all the acts complained of in that light, but
considers that there are certain activities which
undermine the whole spirit of the agreement. These are
the mining of Nicaraguan ports, the direct attacks on
ports, oil installations, etc., and the general trade
embargo.
The Court also upholds the contention that the mining of
the ports is in manifest contradiction with the freedom of
navigation and commerce guaranteed by Article XIX of
the Treaty. It also concludes that the trade embargo
proclaimed on 1 May 1985 is contrary to that article.
The Court therefore finds that the United States is prima
facie in breach of an obligation not to deprive the 1956
Treaty of its object and purpose(pacta sunt
servanda), and has committed acts in contradiction with
the terms of the Treaty. The Court has however to
consider whether the exception in Article XXI
concerning "measures . . . necessary to protect the
essential security interests" of a Party may be invoked
to justify the acts complained of. After examining the
available material, particularly the Executive Order of
President Reagan of 1 May 1985, the Court finds that
the mining of Nicaraguan ports, and the direct attacks
on ports and oil installations, and the general trade
embargo of 1 May 1985, cannot be justified as
135

necessary to protect the essential security interests of

the United States.
XII. The claim for reparation (paras. 283 to 285)
The Court is requested to adjudge and declare that
compensation is due to Nicaragua, the quantum thereof
to be fixed subsequently, and to award to Nicaragua the
sum of 370.2 million US dollars as an interim award.
After satisfying itself that it has jurisdiction to order
reparation, the Court considers appropriate the request
of Nicaragua for the nature and amount of the
reparation to be determined in a subsequent phase of
the proceedings. It also considers that there is no
provision in the Statute of the Court either specifically
empowering it or debarring it from making an interim
award of the kind requested. In a cases in which one
Party is not appearing, the Court should refrain from any
unnecessary act which might prove an obstacle to a
negotiated settlement. The Court therefore does not
consider that it can accede at this stage to this request
by Nicaragua.
XIII. The provisional measures (paras. 286 to 289)
After recalling certain passages in its Order of 10 May
1984, the Court concludes that it is incumbent on each
Party not to direct its conduct solely by reference to
what it believes to be its rights. Particularly is this so in a
situation of armed conflict where no reparation can
efface the results of conduct which the Court may rule
to have been contrary to international law

136

XIV. Peaceful settlement of disputes; the Contadora

process (paras. 290 to 291)
In the present case the Court has already taken note of
the Contadora process, and of the fact that it had been
endorsed by the United Nations Security Council and
General Assembly, as well as by Nicaragua and the
United States. It recalls to both Parties to the present
case the need to co-operate with the Contadora efforts
in seeking a definitive and lasting peace in Central
America, in accordance with the principle of customary
international law that prescribes the peaceful settlement
of international disputes, also endorsed by Article 33 of
the United Nations Charter.

137

NORTH SEA CONTINENTAL SHELF CASES

Judgment of 20 February 1969
The Court delivered judgment, by 11 votes to 6, in the
North Sea Continental Shelf cases.
The dispute, which was submitted to the Court on 20
February 1967, related to the delimitation of the
continental shelf between the Federal Republic of
Germany and Denmark on the one hand, and between
the Federal Republic of Germany and the Netherlands
on the other. The Parties asked the Court to state the
principles and rules of international law applicable, and
undertook thereafter to carry out the delimitations on
that basis.
The Court rejected the contention of Denmark and the
Netherlands to the effect that the delimitations in
question had to be carried out in accordance with the
principle of equidistance as defined in Article 6 of the
138

1958 Geneva Convention on the Continental Shelf,

holding:
- that the Federal Republic, which had not ratified the
Convention, was not legally bound by the provisions of
Article 6;
- that the equidistance principle was not a necessary
consequence of the general concept of continental shelf
rights, and was not a rule of customary international law.
The Court also rejected the contentions of the Federal
Republic in so far as these sought acceptance of the
principle of an apportionment of the continental shelf
into just and equitable shares. It held that each Party
had an original right to those areas of the continental
shelf which constituted the natural prolongation of its
land territory into and under the sea. It was not a
question of apportioning or sharing out those areas, but
of delimiting them.
The Court found that the boundary lines in question
were to be drawn by agreement between the Parties
and in accordance with equitable principles, and it
indicated certain factors to be taken into consideration
for that purpose. It was now for the Parties to negotiate
on the basis of such principles, as they have agreed to
do.
The proceedings, relating to the delimitation as between
the Parties of the areas of the North Sea continental
shelf appertaining to each of them, were instituted on 20
February 1967 by the communication to the Registry of
the Court of two Special Agreements, between Denmark
139

and the Federal Republic and the Federal Republic and

the Netherlands respectively. By an Order of 26 April
1968, the Court joined the proceedings in the two
cases.
The Court decided the two cases in a single Judgment,
which it adopted by eleven votes to six. Amongst the
Members of the Court concurring in the Judgment,
Judge Sir Muhammad Zafrulla Khan appended a
declaration; and President Bustamante y Rivero and
Judges Jessup, Padilla Nervo and Ammoun appended
separate opinions. In the case of the non-concurring
Judges, a declaration of his dissent was appended by
Judge Bengzon; and Vice-President Koretsky, together
with Judges Tanaka, Morelli and Lachs, and Judge ad
hoc Sorensen, appended dissenting opinions.
In its Judgment, the Court examined in the context of
the delimitations concerned the problems relating to the
legal rgime of the continental shelf raised by the
contentions of the Parties.
The Facts and the Contentions of the Parties (paras. 117 of the Judgment)
The two Special Agreements had asked the Court to
declare the principles and rules of international law
applicable to the delimitation as between the Parties of
the areas of the North Sea continental shelf
appertaining to each of them beyond the partial
boundaries in the immediate vicinity of the coast already
determined between the Federal Republic and the
Netherlands by an agreement of 1 December 1964 and
between the Federal Republic and Denmark by an
140

agreement of 9 June 1965.The Court was not asked

actually to delimit the further boundaries involved, the
Parties undertaking in their respective Special
Agreements to effect such delimitation by agreement in
pursuance of the Court's decision.
The waters of the North Sea were shallow, the whole
seabed, except for the Norwegian Trough, consisting of
continental shelf at a depth of less than 200 metres.
Most of it had already been delimited between the
coastal States concerned. The Federal Republic and
Denmark and the Netherlands, respectively, had,
however, been unable to agree on the prolongation of
the partial boundaries referred to above, mainly
because Denmark and the Netherlands had wished this
prolongation to be effected on the basis of the
equidistance principle, whereas the Federal Republic
had considered that it would unduly curtail what the
Federal Republic believed should be its proper share of
continental shelf area, on the basis of proportionality to
the length of its North Sea coastline. Neither of the
boundaries in question would by itself produce this
effect, but only both of them together - an element
regarded by Denmark and the Netherlands as irrelevant
to what they viewed as being two separate
delimitations, to be carried out without reference to the
other.
A boundary based on the equidistance principle, i.e., an
"equidistance line", left to each of the Parties concerned
all those portions of the continental shelf that were
nearer to a point on its own coast than they were to any
point on the coast of the other Party. In the case of a
concave or recessing coast such as that of the Federal
141

Republic on the North Sea, the effect of the

equidistance method was to pull the line of the
boundary inwards, in the direction of the concavity.
Consequently, where two equidistance lines were
drawn, they would, if the curvature were pronounced,
inevitably meet at a relatively short distance from the
coast, thus "cutting off" the coastal State from the area
of the continental shelf outside. In contrast, the effect of
convex or outwardly curving coasts, such as were, to a
moderate extent, those of Denmark and the
Netherlands, was to cause the equidistance lines to
leave the coasts on divergent courses, thus having a
widening tendency on the area of continental shelf off
that coast.
It had been contended on behalf of Denmark and the
Netherlands that the whole matter was governed by a
mandatory rule of law which, reflecting the language of
Article 6 of the Geneva Convention on the Continental
Shelf of 29 April 1958, was designated by them as the
"equidistance-special circumstances" rule. That rule
was to the effect that in the absence of agreement by
the parties to employ another method, all continental
shelf boundaries had to be drawn by means of an
equidistance line unless "special circumstances" were
recognized to exist. According to Denmark and the
Netherlands, the configuration of the German North Sea
coast did not of itself constitute, for either of the two
boundary lines concerned, a special circumstance.
The Federal Republic, for its part, had contended that
the correct rule, at any rate in such circumstances as
those of the North Sea, was one according to which
each of the States concerned should have a "just and
142

equitable share" of the available continental shelf, in

proportion to the length of its sea-frontage. It had also
contended that in a sea shaped as is the North Sea,
each of the States concerned was entitled to a
continental shelf area extending up to the central point
of that sea, or at least extending to its median line.
Alternatively, the Federal Republic had claimed that if
the equidistance method were held to bc applicable, the
configuration of the German North Sea coast
constituted a special circumstance such as to justify a
departure from that method of delimitation in this
particular case.
The Apportionment Theory Rejected (paras. 18-20 of
the Judgment)
The Court felt unable to accept, in the particular form it
had taken, the first contention put forward on behalf of
the Federal Republic. Its task was to delimit, not to
apportion the areas concerned. The process of
delimitation involved establishing the boundaries of an
area already, in principle, appertaining to the coastal
State and not the determination de novo of such an
area. The doctrine of the just and equitable share was
wholly at variance with the most fundamental of all the
rules of law relating to the continental shelf, namely, that
the rights of the coastal State in respect of the area of
continental shelf constituting a natural prolongation of its
land territory under the sea existed ipso facto and ab
initio, by virtue of its sovereignty over the land. That
right was inherent. In order to exercise it, no special
legal acts had to be performed. It followed that the
notion of apportioning an as yet undelimited area
considered as a whole (which underlay the doctrine of
143

the just and equitable share) was inconsistent with the

basic concept of continental shelf entitlement.
Non-Applicability of Article 6 of the 1958 Continental
Shelf Convention (paras. 21-36 of the Judgment)
The Court then turned to the question whether in
delimiting those areas the Federal Republic was under
a legal obligation to accept the application of the
equidistance principle. While it was probably true that
no other method of delimitation had the same
combination of practical convenience and certainty of
application, those factors did not suffice of themselves
to convert what was a method into a rule of law. Such a
method would have to draw its legal force from other
factors than the existence of those advantages.
The first question to be considered was whether the
1958 Geneva Convention on the Continental Shelf was
binding for all the Parties in the case. Under the formal
provisions of the Convention, it was in force for any
individual State that had signed it within the time-limit
provided, only if that State had also subsequently
ratified it. Denmark and the Netherlands had both
signed and ratified the Convention and were parties to
it, but the Federal Republic, although one of the
signatories of the Convention, had never ratified it, and
was consequently not a party. It was admitted on behalf
of Denmark and the Netherlands that in the
circumstances the Convention could not, as such, be
binding on the Federal Republic. But it was contended
that the rgime of Article 6 of the Convention had
become binding on the Federal Republic, because, by
conduct, by public statements and proclamations, and in
144

other ways, the Republic had assumed the obligations

of the Convention.
It was clear that only a very definite, very consistent
course of conduct on the part of a State in the situation
of the Federal Republic could justify upholding those
contentions. When a number of States drew up a
convention specifically providing for a particular method
by which the intention to become bound by the rgime
of the convention was to be manifested, it was not
lightly to be presumed that a State which had not
carried out those formalities had nevertheless somehow
become bound in another way. Furthermore, had the
Federal Republic ratified the Geneva Convention, it
could have entered a reservation to Article 6, by reason
of the faculty to do so conferred by Article 12 of the
Convention.
Only the existence of a situation of estoppel could lend
substance to the contention of Denmark and the
Netherlands - i.e., if the Federal Republic were now
precluded from denying the applicability of the
conventional rgime, by reason of past conduct,
declarations, etc., which not only clearly and
consistently evinced acceptance of that rgime, but
also had caused Denmark or the Netherlands, in
reliance on such conduct, detrimentally to change
position or suffer some prejudice. Of this there was no
evidence. Accordingly, Article 6 of the Geneva
Convention was not, as such, applicable to the
delimitations involved in the present proceedings.

145

The Equidistance Principle Not Inherent in the Basic

Doctrine of the Continental Shelf (paras. 37-59 of the
Judgment)
It had been maintained by Denmark and the
Netherlands that the Federal Republic was in any event,
and quite apart from the Geneva Convention, bound to
accept delimitation on an equidistance basis, since the
use of that method was a rule of general or customary
international law, automatically binding on the Federal
Republic.
One argument advanced by them in support of this
contention, which might be termed the a
priori argument, started from the position that the rights
of the coastal State to its continental shelf areas were
based on its sovereignty over the land domain, of which
the shelf area was the natural prolongation under the
sea. From this notion of appurtenance was derived the
view, which the Court accepted, that the coastal State's
rights existedipso facto and ab initio. Denmark and the
Netherlands claimed that the test of appurtenance must
be "proximity": all those parts of the shelf being
considered as appurtenant to a particular coastal State
which were closer to it than they were to any point on
the coast of another State. Hence, delimitation had to
be effected by a method which would leave to each one
of the States concerned all those areas that were
nearest to its own coast. As only an equidistance line
would do this, only such a line could be valid, it was
contended.
This view had much force; the greater part of a State's
continental shelf areas would normally in fact be nearer
146

to its coasts than to any other. But the real issue was
whether it followed that every part of the area
concerned must be placed in that way. The Court did
not consider this to follow from the notion of proximity,
which was a somewhat fluid one. More fundamental
was the concept of the continental shelf as being the
natural prolongation of the land domain. Even if
proximity might afford one of the tests to be applied, and
an important one in the right conditions, it might not
necessarily be the only, nor in all circumstances the
most appropriate, one. Submarine areas did not
appertain to the coastal State merely because they
were near it, nor did their appurtenance depend on any
certainty of delimitation as to their boundaries. What
conferred the ipso jure title was the fact that the
submarine areas concerned might be deemed to be
actually part of its territory in the sense that they were a
prolongation of its land territory under the sea.
Equidistance clearly could not be identified with the
notion of natural prolongation, since the use of the
equidistance method would frequently cause areas
which were the natural prolongation of the territory of
one State to be attributed to another. Hence, the notion
of equidistance was not an inescapable
a priori accompaniment of basic continental shelf
doctrine.
A review of the genesis of the equidistance method of
delimitation confirmed the foregoing conclusion. The
"Truman Proclamation" issued by the Government of
the United States on 28 September 1945 could be
regarded as a starting point of the positive law on the
subject, and the chief doctrine it enunciated, that the
coastal State had an original, natural and exclusive right
147

to the continental shelf off its shores, had come to

prevail over all others and was now reflected in
the1958 Geneva Convention. With regard to the
delimitation of boundaries between the continental
shelves of adjacent States, the Truman Proclamation
had stated that such boundaries "shall be determined
by the United States and the State concerned in
accordance with equitable principles". These two
concepts, of delimitation by mutual agreement and
delimitation in accordance with equitable principles, had
underlain all the subsequent history of the subject. It
had been largely on the recommendation of a
committee of experts that the principle of equidistance
for the delimitation of continental shelf boundaries had
been accepted by the United Nations International Law
Commission in the text it had laid before the Geneva
Conference of 1958 on the Law of the Sea which had
adopted the Continental Shelf Convention. It could
legitimately be assumed that the experts had been
actuated by considerations not of legal theory but of
practical convenience and cartography. Moreover, the
article adopted by the Commission had given priority to
delimitation by agreement and had contained an
exception in favour of "special circumstances".
The Court consequently considered that Denmark and
the Netherlands inverted the true order of things and
that, far from an equidistance rule having been
generated by an antecedent principle of proximity
inherent in the whole concept of continental shelf
appurtenance, the latter was rather a rationalization of
the former

148

The Equidistance Principle Not a Rule of Customary

International Law (paras. 60-82 of the Judgment)
The question remained whether through positive law
processes the equidistance principle must now be
regarded as a rule of customary international law.
Rejecting the contentions of Denmark and the
Netherlands, the Court considered that the principle of
equidistance, as it figured in Article 6 of the Geneva
Convention, had not been proposed by the International
Law Commission as an emerging rule of customary
international law. This Article could not be said to have
reflected or crystallized such a rule. This was confirmed
by the fact that any State might make reservations in
respect of Article 6, unlike Articles 1, 2 and 3, on
signing, ratifying or acceding to the Convention. While
certain other provisions of the Convention, although
relating to matters that lay within the field of received
customary law, were also not excluded from the faculty
of reservation, they all related to rules of general
maritime law very considerably antedating the
Convention which were only incidental to continental
shelf rights as such, and had been mentioned in the
Convention simply to ensure that they were not
prejudiced by the exercise of continental shelf rights.
Article 6, however, related directly to continental shelf
rights as such, and since it was not excluded from the
faculty of reservation, it was a legitimate inference that it
was not considered to reflect emergent customary law.
It had been argued on behalf of Denmark and the
Netherlands that even if at the date of the Geneva
Convention no rule of customary international law
149

existed in favour of the equidistance principle, such a

rule had nevertheless come into being since the
Convention, partly because of its own impact, and partly
on the basis of subsequent State practice. In order for
this process to occur it was necessary that Article 6 of
the Convention should, at all events potentially, be of a
norm-creating character. Article 6 was so framed,
however, as to put the obligation to make use of the
equidistance method after a primary obligation to effect
delimitation by agreement. Furthermore, the part played
by the notion of special circumstances in relation to the
principle of equidistance, the controversies as to the
exact meaning and scope of that notion, and the faculty
of making reservations to Article 6 must all raise doubts
as to the potentially norm-creating character of that
Article.
Furthermore, while a very widespread and
representative participation in a convention might show
that a conventional rule had become a general rule of
international law, in the present case the number of
ratifications and accessions so far was hardly sufficient.
As regards the time element, although the passage of
only a short period of time was not necessarily a bar to
the formation of a new rule of customary international
law on the basis of what was originally a purely
conventional rule, it was indispensable that State
practice during that period, including that of States
whose interests were specially affected, should have
been both extensive and virtually uniform in the sense
of the provision invoked and should have occurred in
such a way as to show a general recognition that a rule
of law was involved. Some 15 cases had been cited in
which the States concerned had agreed to draw or had
150

drawn the boundaries concerned according to the

principle of equidistance, but there was no evidence that
they had so acted because they had felt legally
compelled to draw them in that way by reason of a rule
of customary law. The cases cited were inconclusive
and insufficient evidence of a settled practice.
The Court consequently concluded that the Geneva
Convention was not in its origins or inception
declaratory of a mandatory rule of customary
international law enjoining the use of the equidistance
principle, its subsequent effect had not been constitutive
of such a rule, and State practice up to date had equally
been insufficient for the purpose.
The Principles and Rules of Law Applicable (paras. 83101 of the Judgment)
The legal situation was that the Parties were under no
obligation to apply the equidistance principle either
under the 1958 Convention or as a rule of general or
customary international law. It consequently became
unnecessary for the Court to consider whether or not
the configuration of the German North Sea coast
constituted a "special circumstance". It remained for the
Court, however, to indicate to the Parties the principles
and rules of law in the light of which delimitation was to
be effected.
The basic principles in the matter of delimitation,
deriving from the Truman Proclamation, were that it
must be the object of agreement between the States
concerned and that such agreement must be arrived at
in accordance with equitable principles. The Parties
151

were under an obligation to enter into negotiations with

a view to arriving at an agreement and not merely to go
through a formal process of negotiation as a sort of prior
condition for the automatic application of a certain
method of delimitation in the absence of agreement;
they were so to conduct themselves that the
negotiations were meaningful, which would not be the
case when one of them insisted upon its own position
without contemplating any modification of it. This
obligation was merely a special application of a principle
underlying all international relations, which was
moreover recognized in Article 33 of the Charter of the
United Nations as one of the methods for the peaceful
settlement of international disputes.
The Parties were under an obligation to act in such a
way that in the particular case, and taking all the
circumstances into account, equitable principles were
applied. There was no question of the Court's decision
being ex aequo et bono. It was precisely a rule of law
that called for the application of equitable principles, and
in such cases as the present ones the equidistance
method could unquestionably lead to inequity. Other
methods existed and might be employed, alone or in
combination, according to the areas involved. Although
the Parties intended themselves to apply the principles
and rules laid down by the Court some indication was
called for of the possible ways in which they might apply
them.
For all the foregoing reasons, the Court found in each
case that the use of the equidistance method of
delimitation was not obligatory as between the Parties;
that no other single method of delimitation was in all
152

circumstances obligatory; that delimitation was to be

effected by agreement in accordance with equitable
principles and taking account of all relevant
circumstances, in such a way as to leave as much as
possible to each Party all those parts of the continental
shelf that constituted a natural prolongation of its land
territory, without encroachment on the natural
prolongation of the land territory of the other; and that, if
such delimitation produced overlapping areas, they
were to be divided between the Parties in agreed
proportions, or, failing agreement, equally, unless they
decided on a regime of joint jurisdiction, user, or
exploitation.
In the course of negotiations, the factors to be taken into
account were to include: the general configuration of the
coasts of the Parties, as well as the presence of any
special or unusual features; so far as known or readily
ascertainable, the physical and geological structure and
natural resources of the continental shelf areas
involved, the element of a reasonable degree of
proportionality between the extent of the continental
shelf areas appertaining to each State and the length of
its coast measured in the general direction of the
coastline, taking into account the effects, actual or
prospective, of any other continental shelf delimitations
in the same region.

153

NORTH SEA CONTINENTAL SHELF CASES

Judgment of 20 February 1969
The Court delivered judgment, by 11 votes to 6, in the
North Sea Continental Shelf cases.
The dispute, which was submitted to the Court on 20
February 1967, related to the delimitation of the
continental shelf between the Federal Republic of
Germany and Denmark on the one hand, and between
the Federal Republic of Germany and the Netherlands
on the other. The Parties asked the Court to state the
principles and rules of international law applicable, and
undertook thereafter to carry out the delimitations on
that basis.
The Court rejected the contention of Denmark and the
Netherlands to the effect that the delimitations in
question had to be carried out in accordance with the
principle of equidistance as defined in Article 6 of the
1958 Geneva Convention on the Continental Shelf,
holding:
- that the Federal Republic, which had not ratified the
Convention, was not legally bound by the provisions of
Article 6;

154

- that the equidistance principle was not a necessary

consequence of the general concept of continental shelf
rights, and was not a rule of customary international law.
The Court also rejected the contentions of the Federal
Republic in so far as these sought acceptance of the
principle of an apportionment of the continental shelf
into just and equitable shares. It held that each Party
had an original right to those areas of the continental
shelf which constituted the natural prolongation of its
land territory into and under the sea. It was not a
question of apportioning or sharing out those areas, but
of delimiting them.
The Court found that the boundary lines in question
were to be drawn by agreement between the Parties
and in accordance with equitable principles, and it
indicated certain factors to be taken into consideration
for that purpose. It was now for the Parties to negotiate
on the basis of such principles, as they have agreed to
do.
The proceedings, relating to the delimitation as between
the Parties of the areas of the North Sea continental
shelf appertaining to each of them, were instituted on 20
February 1967 by the communication to the Registry of
the Court of two Special Agreements, between Denmark
and the Federal Republic and the Federal Republic and
the Netherlands respectively. By an Order of 26 April
1968, the Court joined the proceedings in the two
cases.
The Court decided the two cases in a single Judgment,
which it adopted by eleven votes to six. Amongst the
155

Members of the Court concurring in the Judgment,

Judge Sir Muhammad Zafrulla Khan appended a
declaration; and President Bustamante y Rivero and
Judges Jessup, Padilla Nervo and Ammoun appended
separate opinions. In the case of the non-concurring
Judges, a declaration of his dissent was appended by
Judge Bengzon; and Vice-President Koretsky, together
with Judges Tanaka, Morelli and Lachs, and Judge ad
hoc Sorensen, appended dissenting opinions.
In its Judgment, the Court examined in the context of
the delimitations concerned the problems relating to the
legal regime of the continental shelf raised by the
contentions of the Parties.
The Facts and the Contentions of the Parties (paras. 117 of the Judgment)
The two Special Agreements had asked the Court to
declare the principles and rules of international law
applicable to the delimitation as between the Parties of
the areas of the North Sea continental shelf
appertaining to each of them beyond the partial
boundaries in the immediate vicinity of the coast already
determined between the Federal Republic and the
Netherlands by an agreement of 1 December 1964 and
between the Federal Republic and Denmark by an
agreement of 9 June 1965.The Court was not asked
actually to delimit the further boundaries involved, the
Parties undertaking in their respective Special
Agreements to effect such delimitation by agreement in
pursuance of the Court's decision.

156

The waters of the North Sea were shallow, the whole

seabed, except for the Norwegian Trough, consisting of
continental shelf at a depth of less than 200 metres.
Most of it had already been delimited between the
coastal States concerned. The Federal Republic and
Denmark and the Netherlands, respectively, had,
however, been unable to agree on the prolongation of
the partial boundaries referred to above, mainly
because Denmark and the Netherlands had wished this
prolongation to be effected on the basis of the
equidistance principle, whereas the Federal Republic
had considered that it would unduly curtail what the
Federal Republic believed should be its proper share of
continental shelf area, on the basis of proportionality to
the length of its North Sea coastline. Neither of the
boundaries in question would by itself produce this
effect, but only both of them together - an element
regarded by Denmark and the Netherlands as irrelevant
to what they viewed as being two separate
delimitations, to be carried out without reference to the
other.
A boundary based on the equidistance principle, i.e., an
"equidistance line", left to each of the Parties concerned
all those portions of the continental shelf that were
nearer to a point on its own coast than they were to any
point on the coast of the other Party. In the case of a
concave or recessing coast such as that of the Federal
Republic on the North Sea, the effect of the
equidistance method was to pull the line of the
boundary inwards, in the direction of the concavity.
Consequently, where two equidistance lines were
drawn, they would, if the curvature were pronounced,
inevitably meet at a relatively short distance from the
157

coast, thus "cutting off" the coastal State from the area
of the continental shelf outside. In contrast, the effect of
convex or outwardly curving coasts, such as were, to a
moderate extent, those of Denmark and the
Netherlands, was to cause the equidistance lines to
leave the coasts on divergent courses, thus having a
widening tendency on the area of continental shelf off
that coast.
It had been contended on behalf of Denmark and the
Netherlands that the whole matter was governed by a
mandatory rule of law which, reflecting the language of
Article 6 of the Geneva Convention on the Continental
Shelf of 29 April 1958, was designated by them as the
"equidistance-special circumstances" rule. That rule
was to the effect that in the absence of agreement by
the parties to employ another method, all continental
shelf boundaries had to be drawn by means of an
equidistance line unless "special circumstances" were
recognized to exist. According to Denmark and the
Netherlands, the configuration of the German North Sea
coast did not of itself constitute, for either of the two
boundary lines concerned, a special circumstance.
The Federal Republic, for its part, had contended that
the correct rule, at any rate in such circumstances as
those of the North Sea, was one according to which
each of the States concerned should have a "just and
equitable share" of the available continental shelf, in
proportion to the length of its sea-frontage. It had also
contended that in a sea shaped as is the North Sea,
each of the States concerned was entitled to a
continental shelf area extending up to the central point
of that sea, or at least extending to its median line.
158

Alternatively, the Federal Republic had claimed that if

the equidistance method were held to bc applicable, the
configuration of the German North Sea coast
constituted a special circumstance such as to justify a
departure from that method of delimitation in this
particular case.
The Apportionment Theory Rejected (paras. 18-20 of
the Judgment)
The Court felt unable to accept, in the particular form it
had taken, the first contention put forward on behalf of
the Federal Republic. Its task was to delimit, not to
apportion the areas concerned. The process of
delimitation involved establishing the boundaries of an
area already, in principle, appertaining to the coastal
State and not the determination de novo of such an
area. The doctrine of the just and equitable share was
wholly at variance with the most fundamental of all the
rules of law relating to the continental shelf, namely, that
the rights of the coastal State in respect of the area of
continental shelf constituting a natural prolongation of its
land territory under the sea existed ipso facto and ab
initio, by virtue of its sovereignty over the land. That
right was inherent. In order to exercise it, no special
legal acts had to be performed. It followed that the
notion of apportioning an as yet undelimited area
considered as a whole (which underlay the doctrine of
the just and equitable share) was inconsistent with the
basic concept of continental shelf entitlement.
Non-Applicability of Article 6 of the 1958 Continental
Shelf Convention (paras. 21-36 of the Judgment)
159

The Court then turned to the question whether in

delimiting those areas the Federal Republic was under
a legal obligation to accept the application of the
equidistance principle. While it was probably true that
no other method of delimitation had the same
combination of practical convenience and certainty of
application, those factors did not suffice of themselves
to convert what was a method into a rule of law. Such a
method would have to draw its legal force from other
factors than the existence of those advantages.
The first question to be considered was whether the
1958 Geneva Convention on the Continental Shelf was
binding for all the Parties in the case. Under the formal
provisions of the Convention, it was in force for any
individual State that had signed it within the time-limit
provided, only if that State had also subsequently
ratified it. Denmark and the Netherlands had both
signed and ratified the Convention and were parties to
it, but the Federal Republic, although one of the
signatories of the Convention, had never ratified it, and
was consequently not a party. It was admitted on behalf
of Denmark and the Netherlands that in the
circumstances the Convention could not, as such, be
binding on the Federal Republic. But it was contended
that the rgime of Article 6 of the Convention had
become binding on the Federal Republic, because, by
conduct, by public statements and proclamations, and in
other ways, the Republic had assumed the obligations
of the Convention.
It was clear that only a very definite, very consistent
course of conduct on the part of a State in the situation
of the Federal Republic could justify upholding those
160

contentions. When a number of States drew up a

convention specifically providing for a particular method
by which the intention to become bound by the rgime
of the convention was to be manifested, it was not
lightly to be presumed that a State which had not
carried out those formalities had nevertheless somehow
become bound in another way. Furthermore, had the
Federal Republic ratified the Geneva Convention, it
could have entered a reservation to Article 6, by reason
of the faculty to do so conferred by Article 12 of the
Convention.
Only the existence of a situation of estoppel could lend
substance to the contention of Denmark and the
Netherlands - i.e., if the Federal Republic were now
precluded from denying the applicability of the
conventional rgime, by reason of past conduct,
declarations, etc., which not only clearly and
consistently evinced acceptance of that rgime, but
also had caused Denmark or the Netherlands, in
reliance on such conduct, detrimentally to change
position or suffer some prejudice. Of this there was no
evidence. Accordingly, Article 6 of the Geneva
Convention was not, as such, applicable to the
delimitations involved in the present proceedings.
The Equidistance Principle Not Inherent in the Basic
Doctrine of the Continental Shelf (paras. 37-59 of the
Judgment)
It had been maintained by Denmark and the
Netherlands that the Federal Republic was in any event,
and quite apart from the Geneva Convention, bound to
accept delimitation on an equidistance basis, since the
161

use of that method was a rule of general or customary

international law, automatically binding on the Federal
Republic.
One argument advanced by them in support of this
contention, which might be termed the a
priori argument, started from the position that the rights
of the coastal State to its continental shelf areas were
based on its sovereignty over the land domain, of which
the shelf area was the natural prolongation under the
sea. From this notion of appurtenance was derived the
view, which the Court accepted, that the coastal State's
rights existedipso facto and ab initio. Denmark and the
Netherlands claimed that the test of appurtenance must
be "proximity": all those parts of the shelf being
considered as appurtenant to a particular coastal State
which were closer to it than they were to any point on
the coast of another State. Hence, delimitation had to
be effected by a method which would leave to each one
of the States concerned all those areas that were
nearest to its own coast. As only an equidistance line
would do this, only such a line could be valid, it was
contended.
This view had much force; the greater part of a State's
continental shelf areas would normally in fact be nearer
to its coasts than to any other. But the real issue was
whether it followed that every part of the area
concerned must be placed in that way. The Court did
not consider this to follow from the notion of proximity,
which was a somewhat fluid one. More fundamental
was the concept of the continental shelf as being the
natural prolongation of the land domain. Even if
proximity might afford one of the tests to be applied, and
162

an important one in the right conditions, it might not

necessarily be the only, nor in all circumstances the
most appropriate, one. Submarine areas did not
appertain to the coastal State merely because they
were near it, nor did their appurtenance depend on any
certainty of delimitation as to their boundaries. What
conferred the ipso jure title was the fact that the
submarine areas concerned might be deemed to be
actually part of its territory in the sense that they were a
prolongation of its land territory under the sea.
Equidistance clearly could not be identified with the
notion of natural prolongation, since the use of the
equidistance method would frequently cause areas
which were the natural prolongation of the territory of
one State to be attributed to another. Hence, the notion
of equidistance was not an inescapable
a priori accompaniment of basic continental shelf
doctrine.
A review of the genesis of the equidistance method of
delimitation confirmed the foregoing conclusion. The
"Truman Proclamation" issued by the Government of
the United States on 28 September 1945 could be
regarded as a starting point of the positive law on the
subject, and the chief doctrine it enunciated, that the
coastal State had an original, natural and exclusive right
to the continental shelf off its shores, had come to
prevail over all others and was now reflected in
the1958 Geneva Convention. With regard to the
delimitation of boundaries between the continental
shelves of adjacent States, the Truman Proclamation
had stated that such boundaries "shall be determined
by the United States and the State concerned in
accordance with equitable principles". These two
163

concepts, of delimitation by mutual agreement and

delimitation in accordance with equitable principles, had
underlain all the subsequent history of the subject. It
had been largely on the recommendation of a
committee of experts that the principle of equidistance
for the delimitation of continental shelf boundaries had
been accepted by the United Nations International Law
Commission in the text it had laid before the Geneva
Conference of 1958 on the Law of the Sea which had
adopted the Continental Shelf Convention. It could
legitimately be assumed that the experts had been
actuated by considerations not of legal theory but of
practical convenience and cartography. Moreover, the
article adopted by the Commission had given priority to
delimitation by agreement and had contained an
exception in favour of "special circumstances".
The Court consequently considered that Denmark and
the Netherlands inverted the true order of things and
that, far from an equidistance rule having been
generated by an antecedent principle of proximity
inherent in the whole concept of continental shelf
appurtenance, the latter was rather a rationalization of
the former
The Equidistance Principle Not a Rule of Customary
International Law (paras. 60-82 of the Judgment)
The question remained whether through positive law
processes the equidistance principle must now be
regarded as a rule of customary international law.
Rejecting the contentions of Denmark and the
Netherlands, the Court considered that the principle of
164

equidistance, as it figured in Article 6 of the Geneva

Convention, had not been proposed by the International
Law Commission as an emerging rule of customary
international law. This Article could not be said to have
reflected or crystallized such a rule. This was confirmed
by the fact that any State might make reservations in
respect of Article 6, unlike Articles 1, 2 and 3, on
signing, ratifying or acceding to the Convention. While
certain other provisions of the Convention, although
relating to matters that lay within the field of received
customary law, were also not excluded from the faculty
of reservation, they all related to rules of general
maritime law very considerably antedating the
Convention which were only incidental to continental
shelf rights as such, and had been mentioned in the
Convention simply to ensure that they were not
prejudiced by the exercise of continental shelf rights.
Article 6, however, related directly to continental shelf
rights as such, and since it was not excluded from the
faculty of reservation, it was a legitimate inference that it
was not considered to reflect emergent customary law.
It had been argued on behalf of Denmark and the
Netherlands that even if at the date of the Geneva
Convention no rule of customary international law
existed in favour of the equidistance principle, such a
rule had nevertheless come into being since the
Convention, partly because of its own impact, and partly
on the basis of subsequent State practice. In order for
this process to occur it was necessary that Article 6 of
the Convention should, at all events potentially, be of a
norm-creating character. Article 6 was so framed,
however, as to put the obligation to make use of the
equidistance method after a primary obligation to effect
165

delimitation by agreement. Furthermore, the part played

by the notion of special circumstances in relation to the
principle of equidistance, the controversies as to the
exact meaning and scope of that notion, and the faculty
of making reservations to Article 6 must all raise doubts
as to the potentially norm-creating character of that
Article.
Furthermore, while a very widespread and
representative participation in a convention might show
that a conventional rule had become a general rule of
international law, in the present case the number of
ratifications and accessions so far was hardly sufficient.
As regards the time element, although the passage of
only a short period of time was not necessarily a bar to
the formation of a new rule of customary international
law on the basis of what was originally a purely
conventional rule, it was indispensable that State
practice during that period, including that of States
whose interests were specially affected, should have
been both extensive and virtually uniform in the sense
of the provision invoked and should have occurred in
such a way as to show a general recognition that a rule
of law was involved. Some 15 cases had been cited in
which the States concerned had agreed to draw or had
drawn the boundaries concerned according to the
principle of equidistance, but there was no evidence that
they had so acted because they had felt legally
compelled to draw them in that way by reason of a rule
of customary law. The cases cited were inconclusive
and insufficient evidence of a settled practice.
The Court consequently concluded that the Geneva
Convention was not in its origins or inception
166

declaratory of a mandatory rule of customary

international law enjoining the use of the equidistance
principle, its subsequent effect had not been constitutive
of such a rule, and State practice up to date had equally
been insufficient for the purpose.
The Principles and Rules of Law Applicable (paras. 83101 of the Judgment)
The legal situation was that the Parties were under no
obligation to apply the equidistance principle either
under the 1958 Convention or as a rule of general or
customary international law. It consequently became
unnecessary for the Court to consider whether or not
the configuration of the German North Sea coast
constituted a "special circumstance". It remained for the
Court, however, to indicate to the Parties the principles
and rules of law in the light of which delimitation was to
be effected.
The basic principles in the matter of delimitation,
deriving from the Truman Proclamation, were that it
must be the object of agreement between the States
concerned and that such agreement must be arrived at
in accordance with equitable principles. The Parties
were under an obligation to enter into negotiations with
a view to arriving at an agreement and not merely to go
through a formal process of negotiation as a sort of prior
condition for the automatic application of a certain
method of delimitation in the absence of agreement;
they were so to conduct themselves that the
negotiations were meaningful, which would not be the
case when one of them insisted upon its own position
without contemplating any modification of it. This
167

obligation was merely a special application of a principle

underlying all international relations, which was
moreover recognized in Article 33 of the Charter of the
United Nations as one of the methods for the peaceful
settlement of international disputes.
The Parties were under an obligation to act in such a
way that in the particular case, and taking all the
circumstances into account, equitable principles were
applied. There was no question of the Court's decision
being ex aequo et bono. It was precisely a rule of law
that called for the application of equitable principles, and
in such cases as the present ones the equidistance
method could unquestionably lead to inequity. Other
methods existed and might be employed, alone or in
combination, according to the areas involved. Although
the Parties intended themselves to apply the principles
and rules laid down by the Court some indication was
called for of the possible ways in which they might apply
them.
For all the foregoing reasons, the Court found in each
case that the use of the equidistance method of
delimitation was not obligatory as between the Parties;
that no other single method of delimitation was in all
circumstances obligatory; that delimitation was to be
effected by agreement in accordance with equitable
principles and taking account of all relevant
circumstances, in such a way as to leave as much as
possible to each Party all those parts of the continental
shelf that constituted a natural prolongation of its land
territory, without encroachment on the natural
prolongation of the land territory of the other; and that, if
such delimitation produced overlapping areas, they
168

were to be divided between the Parties in agreed

proportions, or, failing agreement, equally, unless they
decided on a rgime of joint jurisdiction, user, or
exploitation.
In the course of negotiations, the factors to be taken into
account were to include: the general configuration of the
coasts of the Parties, as well as the presence of any
special or unusual features; so far as known or readily
ascertainable, the physical and geological structure and
natural resources of the continental shelf areas
involved, the element of a reasonable degree of
proportionality between the extent of the continental
shelf areas appertaining to each State and the length of
its coast measured in the general direction of the
coastline, taking into account the effects, actual or
prospective, of any other continental shelf delimitations
in the same region.

169

NUCLEAR TESTS CASE (NEW ZEALAND v. FRANCE)

Judgment of 20 December 1974
In its judgment in the case concerning Nuclear Tests
(New Zealand v. France), the Court, by 9 votes to 6, has
found that the claim of New Zealand no longer had any
object and that the Court was therefore not called upon
to give a decision thereon.
In the reasoning of its Judgment, the Court
adduces inter alia the following considerations: Even
before turning to the questions of jurisdiction and
admissibility, the Court has first to consider the
essentially preliminary question as to whether a dispute
exists and to analyse the claim submitted to it (paras.
22-24 of Judgment); the proceedings instituted before
the Court on 9 May 1973 concerned the legality of
atmospheric nuclear tests conducted by France in the
South Pacific (para. 16 of Judgment); the original and
ultimate objective of New Zealand is to obtain a
termination of those tests (paras. 25-31 of Judgment);
France, by various public statements made in 1974, has
announced its intention, following the completion of the
1974 series of atmospheric tests, to cease the conduct
of such tests (paras. 33-44 of Judgment); the Court
finds that the objective of New Zealand has in effect
been accomplished, inasmuch as France has
undertaken the obligation to hold no further nuclear
tests in the atmosphere in the South Pacific (paras. 5055 of Judgment); the dispute having thus disappeared,
the claim no longer has any object and there is nothing
on which to give judgment (paras. 58-62 of Judgment).

170

Upon the delivery of the Judgment, the Order of 22

June 1973 indicating interim measures of protection
ceases to be operative and the measures in question
lapse (para. 64 of Judgment).
*
**
For the purposes of the Judgment the Court was
composed as follows: President Lachs; Judges Forster,
Gros, Bengzon, Petrn, Onyeama, Dillard, IgnacioPinto, de Castro, Morozov, Jimnez de Archaga, Sir
Humphrey Waldock, Nagendra Singh and Ruda;
Judge ad hoc Sir Garfield Barwick.
Of the nine Members of the Court who voted for the
decision, Judges Forster, Gros, Petrn and IgnacioPinto appended separate opinions.
Of the six judges who voted against the decision,
Judges Onyeama, Dillard, Jimnez de Archaga and
Sir Humphrey Waldock appended a joint dissenting
opinion, and Judges de Castro and Sir Garfield Barwick
dissenting opinions.
These opinions make known and substantiate the
positions adopted by the judges in question.
*
**
Also on 20 December 1974, the Court made two Orders
regarding applications submitted by the Government of
171

Fiji for permission to intervene in the two cases

concerning Nuclear Tests (Australia v. France; New
Zealand v. France). In these Orders, which were not
read in public, the Court found, following the abovementioned Judgments, that these applications lapsed
and that no further action thereon was called for. These
Orders were voted unanimously by the Court in the
same composition as for the Judgments. Judges Gros,
Onyeama, Jimnez de Archaga and Sir Garfield
Barwick appended declarations to them, and Judges
Dillard and Sir Humphrey Waldock a joint declaration.
Although the Court delivered a separate Judgment for
each of the two Nuclear Tests cases referred to above,
they are analysed together in the summary which
follows.
*
**
Procedure (paras. 1-20 of each Judgment)
In its Judgment, the Court recalls that on 9 May 1973
the Applicant instituted proceedings against France in
respect of French atmospheric nuclear tests in the
South Pacific. To found the jurisdiction of the Court, the
Application relied on the General Act for the Pacific
Settlement of International Disputes concluded at
Geneva in 1928 and Articles 36 and 37 of the Statute of
the Court. By a letter of 16 May 1973 France stated that
it considered that the Court was manifestly not
competent in the case, that it could not accept its
172

jurisdiction and that it requested the removal of the case

from the Court's list.
The Applicant having requested the Court to indicate
interim measures of protection, the Court, by an Order
of 22 June 1973, indicated inter alia that, pending its
final decision, France should avoid nuclear tests
causing the deposit of radio-active fall-out on the
territory of the Applicant. By various communications the
Applicant has informed the Court that further series of
atmospheric tests took place in July-August 1973 and
June-September 1974.
By the same Order of 22 June 1973, the Court,
considering that it was necessary to begin by resolving
the questions of the Court's jurisdiction and of the
admissibility of the Application, decided that the
proceedings should first be addressed to these
questions. The Applicant filed a Memorial and presented
argument at public hearings. It submitted that the Court
had jurisdiction and that the Application was admissible.
France did not file any Counter-Memorial and was not
represented at the hearings; its attitude was defined in
the above-mentioned letter of 16 May 1973.
With regard to the French request that the case be
removed from the list - a request which the Court, in its
Order of 22 June 1973, had duly noted while feeling
unable to accede to it at that stage - the Court observes
that it has had the opportunity of examining the request
in the light of the subsequent proceedings. It finds that
the present case is not one in which the procedure of
summary removal from the list would be appropriate. It
is to be regretted that France has failed to appear in
173

order to put forward its arguments, but the Court

nevertheless has to proceed and reach a conclusion,
having regard to the evidence brought before it and the
arguments addressed to it by the Applicant, and also to
any documentary or other evidence which might be
relevant.
Object of the Claim (paras. 21-41 of the Judgment in the
Australian case, and 21-44 in the New Zealand case)
The present phase of the proceedings concerns the
jurisdiction of the Court and admissibility of the
Application. In examining such questions, the Court is
entitled, and in some circumstances may be required, to
go into other questions which may not be strictly
capable of classification as matters of jurisdiction or
admissibility but are of such a nature as to require
examination in priority to those matters. By virtue of an
inherent jurisdiction which the Court
possesses qua judicial organ, it has first to examine a
question which it finds to be essentially preliminary,
namely the existence of a dispute for, whether or not the
Court has jurisdiction in the present case, the resolution
of that question could exert a decisive influence on the
continuation of the proceedings. It is therefore
necessary for it to make a detailed analysis of the claim
submitted in the Application, which is required by Article
40 of the Statute to indicate the subject of the dispute.
In its Application, Australia asks the Court:
- to adjudge and declare that "the carrying out of further
atmospheric nuclear weapon tests in the South Pacific
Ocean is not consistent with applicable rules of
174

international law" and to order "that the French Republic

shall not carry out any further such tests".
New Zealand, in its Application, asks the Court:
- "to adjudge and declare: That the conduct by the
French Government of nuclear tests in the South Pacific
region that give rise to radio-active fall-out constitutes a
violation of New Zealand's rights under international
law, and that these rights will be violated by any further
such tests".
It is essential to consider whether the Applicant requests
a judgment which would only state the legal relationship
between the Parties or a judgment requiring one of the
Parties to take, or refrain from taking, some action. The
Court has the power to interpret the submissions of the
Parties and to exclude, when necessary, certain
elements which are to be viewed, not as indications of
what the Party is asking the Court to decide, but as
reasons advanced why it should decide in the sense
contended for. In the present case, if account is taken of
the Application as a whole, the diplomatic exchanges
between the Parties in recent years, the arguments of
the Applicant before the Court and the public statements
made on its behalf during and after the oral
proceedings, it becomes evident that the Applicant's
original and ultimate objective was and has remained to
obtain a termination of French atmospheric nuclear
tests in the South Pacific.
In these circumstances, the Court is bound to take note
of further developments, both prior to and subsequent to
the close of the oral proceedings, namely certain public
175

statements by French authorities, of which some were

mentioned before the Court at public hearings and
others were made subsequently. It would have been
possible for the Court, had it considered that the
interests of justice so required, to have afforded the
Parties the opportunity, e.g., by reopening the oral
proceedings, of addressing to the Court comments on
the statements made since the close of those
proceedings. Such a course, however, would have been
justified only if the matter dealt with in those statements
had been completely new or had not been raised during
the proceedings, which is manifestly not the case. The
Court is in possession not only of the statements made
by the French authorities in question but also of the
views of the Applicant on them.
The first of these statements is contained in a
communiqu which was issued by the Office of the
President of the French Republic on 8 June 1974 and
transmitted in particular to the Applicant: ". . . in view of
the stage reached in carrying out the French nuclear
defence programme France will be in a position to pass
on to the stage of underground explosions as soon as
the series of tests planned for this summer is
completed". Further statements are contained in a Note
from the French Embassy in Wellington (10 June), a
letter from the President of France to the Prime Minister
of New Zealand (1 July), a press conference given by
the President of the Republic (25 July), a speech made
by the Minister for Foreign Affairs in the United Nations
General Assembly (25 September) and a television
interview and press conference by the Minister for
Defence (16 August and 11 October). The Court
considers that these statements convey an
176

announcement by France of its intention to cease the

conduct of atmospheric nuclear tests following the
conclusion of the 1974 series.
Status and Scope of the French Statements (paras. 4260 of the Judgment in the Australian case, and 45-63 of
the Judgment in the New Zealand case)
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.
Nothing in the nature of a quid pro quo, nor any
subsequent acceptance, nor even any reaction from
other States is required for such declaration to take
effect. Neither is the question of form decisive. The
intention of being bound is to be ascertained by an
interpretation of the act. The binding character of the
undertaking results from the terms of the act and is
based on good faith interested States are entitled to
require that the obligation be respected.
In the present case, the Applicant, while recognizing the
possibility of the dispute being resolved by a unilateral
declaration on the part of France, has stated that, in its
view, the possibility of further atmospheric tests has
been left open, even after the French statements
mentioned above. The Court must, however, form its
own view of the meaning and scope intended to be
given to these unilateral declarations. Having regard to
their intention and to the circumstances in which they
were made, they must be held to constitute an
engagement of the French State. France has conveyed
to the world at large, including the Applicant, its intention
effectively to terminate its atmospheric tests. It was
177

bound to assume that other States might take note of

these statements and rely on their being effective. It is
true that France has not recognized that it is bound by
any rule of international law to terminate its tests, but
this does not affect the legal consequences of the
statements in question, the unilateral undertaking
resulting from them cannot be interpreted as having
been made in implicit reliance on an arbitrary power of
reconsideration.
Thus the Court faces a situation in which the objective
of the Applicant has in effect been accomplished,
inasmuch as the Court finds that France has undertaken
the obligation to hold no further nuclear tests in the
atmosphere in the South Pacific. The Applicant has
sought an assurance from France that the tests would
cease and France, on its own initiative, has made a
series of statements to the effect that they will cease.
The Court concludes that France has assumed an
obligation as to conduct, concerning the effective
cessation of the tests, and the fact that the Applicant
has not exercised its right to discontinue the
proceedings does not prevent the Court from making its
own independent finding on the subject. As a court of
law, it is called upon to resolve existing disputes
between States: these disputes must continue to exist
at the time when the Court makes its decision. In the
present case, the dispute having disappeared, the claim
no longer has any object and there is nothing on which
to give judgment.
Once the Court has found that a State has entered into
a commitment concerning its future conduct, it is not the
Court's function to contemplate that it will not comply
178

with it. However, if the basis of the Judgment were to be

affected, the Applicant could request an examination of
the situation in accordance with the provisions of the
Statute.
*
**
For these reasons, the Court finds that the claim no
longer has any object and that it is therefore not called
upon to give a decision thereon (para. 62 of the
Judgment in the Australian case, and para. 65 of the
Judgment in the New Zealand case).

179

Trendtex Trading Corporation -v- Central Bank of

Nigeria; CA 1977
The court considered the developing international
jurisdiction over commercial activities of state bodies
which might enjoy state immunity, and sought to
ascertain whether or not the Central Bank of Nigeria
was entitled to immunity from suit.
Held: The key questions are those of governmental
control and governmental functions and that these are
to be determined as a matter of English law, although
the English courts may have regard to the position
under the law where the body is incorporated and
account can be taken of the view of the government
concerned.
International law was incorporated into domestic law
unless it was in conflict with statutory provision. This
enabled domestic law to respond to changes in
international law rather than it being bound by the
interpretation of international law upon a particular point
when it was first decided, if international law had later
evolved. Domestic law could evolve as the incorporated
international law evolved.
Lord Denning MR said: Seeing that the rules of
international law have changed and do change and
that the courts have given effect to the changes without
any Act of Parliament, it follows to my mind inexorably
that the rules of international law, as existing from time
to time, do form part of our English law. and we should
give effect to those changes and not be bound by any
idea of stare decisis in international law and
Governments everywhere engage in activities which
although incidental in one way or another to the
business of government are in themselves essentially
commercial in their nature.
Lord Denning MR said that it was necessary to look to
all the evidence to see whether the organisation in
question was under government control and exercised
180

governmental functions in order to determine whether it

was part of the State.
Shaw LJ stated that whether a particular organisation is
to be accorded the status of a department of
government or not must depend upon its constitution, its
powers and duties and its activities. There could be no
intermediate hybrid status occupied by the bank where
it was regarded as a government department for certain
purposes and as an ordinary commercial or financial
institution for different purposes.

181

TANADA v. ANGARA
272 SCRA 18, May 2, 1997
Facts :
This is a petition seeking to nullify the Philippine
ratification of the World Trade Organization (WTO)
Agreement. Petitioners question the concurrence of
herein respondents acting in their capacities as
Senators via signing the said agreement.
The WTO opens access to foreign markets, especially
its major trading partners, through the reduction of tariffs
on its exports, particularly agricultural and industrial
products. Thus, provides new opportunities for the
service sector cost and uncertainty associated with
exporting and more investment in the country. These
are the predicted benefits as reflected in the agreement
and as viewed by the signatory Senators, a free
market espoused by WTO.
Petitioners on the other hand viewed the WTO
agreement as one that limits, restricts and impair
Philippine economic sovereignty and legislative power.
That the Filipino First policy of the Constitution was
taken for granted as it gives foreign trading intervention.
Issue : Whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of the Senate in giving its concurrence of the
said WTO agreement.
Held:
In its Declaration of Principles and state policies, the
Constitution 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. By the
doctrine of incorporation, the country is bound by
generally accepted principles of international law, which
are considered automatically part of our own laws.
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Pacta sunt servanda international agreements must

be performed in good faith. A treaty is not a mere moral
obligation but creates a legally binding obligation on the
parties.
Through WTO the sovereignty of the state cannot in fact
and reality be considered as absolute because it is a
regulation of commercial relations among nations. Such
as when Philippines joined the United Nations (UN) it
consented to restrict its sovereignty right under the
concept of sovereignty as autolimitation. What Senate
did was a valid exercise of authority. As to determine
whether such exercise is wise, beneficial or viable is
outside the realm of judicial inquiry and review. The act
of signing the said agreement is not a legislative
restriction as WTO allows withdrawal of membership
should this be the political desire of a member. Also, it
should not be viewed as a limitation of economic
sovereignty. WTO remains as the only viable structure
for multilateral trading and the veritable forum for the
development of international trade law. Its alternative is
isolation, stagnation if not economic self-destruction.
Thus, the people be allowed, through their duly elected
officers, make their free choice.
Petition is DISMISSED for lack of merit.
DECISION
(En Banc)
PANGANIBAN, J.:
I.

THE FACTS

Petitioners Senators Taada, et al. questioned

the constitutionality of the concurrence by the Philippine
Senate of the Presidents ratification of the international
Agreement establishing the World Trade Organization
(WTO). They argued that the WTO Agreement violates
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the mandate of the 1987 Constitution to develop a selfreliant and independent national economy effectively
controlled by Filipinos . . . (to) give preference to
qualified Filipinos (and to) promote the preferential use
of Filipino labor, domestic materials and locally
produced goods. Further, they contended that the
national treatment and parity provisions of the WTO
Agreement place nationals and products of member
countries on the same footing as Filipinos and local
products, in contravention of the Filipino First policy of
our Constitution, and render meaningless the phrase
effectively controlled by Filipinos.
II.

THE ISSUE

Does the 1987 Constitution prohibit our country

from participating in worldwide trade liberalization and
economic globalization and from integrating into a
global economy that is liberalized, deregulated and
privatized?
III. THE RULING
[The Court DISMISSED the petition. It sustained
the concurrence of the Philippine Senate of the
Presidents ratification of the Agreement establishing
the WTO.]
NO, the 1987 Constitution DOES NOT prohibit
our country from participating in worldwide trade
liberalization and economic globalization and from
integrating into a global economy that is liberalized,
deregulated and privatized.
There are enough balancing provisions in the
Constitution to allow the Senate to ratify the Philippine
concurrence in the WTO Agreement.
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[W]hile the Constitution indeed mandates a bias

in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for
business exchange with the rest of the world on the
bases of equality and reciprocity and limits protection of
Filipino enterprises only against foreign competition and
trade practices that are unfair. In other words, the
Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and
services in the development of the Philippine economy.
While the Constitution does not encourage the unlimited
entry of foreign goods, services and investments into
the country, it does not prohibit them either.In fact, it
allows an exchange on the basis of equality and
reciprocity, frowning only on foreign competition that
is unfair.
xxx

xxx

xxx

[T]he constitutional policy of a self-reliant and

independent national economy does not necessarily
rule out the entry of foreign investments, goods and
services. It contemplates neither economic seclusion
nor mendicancy in the international community. As
explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a
developing country that is keenly aware of
overdependence on external assistance for even its
most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding
mendicancy
in
the
international
community.
Independence refers to the freedom from undue foreign
control of the national economy, especially in such
strategic industries as in the development of natural
resources and public utilities.
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The WTO reliance on most favored nation,

national treatment, and trade without discrimination
cannot be struck down as unconstitutional as in fact
they are rules of equality and reciprocity that apply to all
WTO members. Aside from envisioning a trade policy
based on equality and reciprocity, the fundamental law
encourages industries that are competitive in both
domestic and foreign markets, thereby demonstrating a
clear policy against a sheltered domestic trade
environment, but one in favor of the gradual
development of robust industries that can compete with
the best in the foreign markets. Indeed, Filipino
managers and Filipino enterprises have shown
capability and tenacity to compete internationally. And
given a free trade environment, Filipino entrepreneurs
and managers in Hongkong have demonstrated the
Filipino capacity to grow and to prosper against the best
offered under a policy of laissez faire.
xxx

xxx

xxx

It is true, as alleged by petitioners, that broad

constitutional principles require the State to develop an
independent national economy effectively controlled by
Filipinos; and to protect and/or prefer Filipino labor,
products, domestic materials and locally produced
goods. But it is equally true that such principles while
serving as judicial and legislative guides are not in
themselves
sources
of
causes
of
action.
Moreover, there are other equally fundamental
constitutional principles relied upon by the Senate which
mandate the pursuit of a trade policy that serves the
general welfare and utilizes all forms and arrangements
of exchange on the basis of equality and reciprocity
and the promotion of industries which are competitive
in both domestic and foreign markets, thereby justifying
its acceptance of said treaty. So too, the alleged
impairment of sovereignty in the exercise of legislative
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and judicial powers is balanced by the adoption of the

generally accepted principles of international law as part
of the law of the land and the adherence of the
Constitution to the policy of cooperation and amity with
all nations.
That the Senate, after deliberation and voting,
voluntarily and overwhelmingly gave its consent to the
WTO Agreement thereby making it a part of the law of
the land is a legitimate exercise of its sovereign duty
and power. We find no patent and gross arbitrariness
or despotism by reason of passion or personal hostility
in such exercise. It is not impossible to surmise that this
Court, or at least some of its members, may even agree
with petitioners that it is more advantageous to the
national interest to strike down Senate Resolution No.
97. But that is not a legal reason to attribute grave
abuse of discretion to the Senate and to nullify its
decision. To do so would constitute grave abuse in the
exercise of our own judicial power and duty.
Ineludibly, what the Senate did was a valid exercise of
its authority. As to whether such exercise was wise,
beneficial or viable is outside the realm of judicial inquiry
and review. That is a matter between the elected policy
makers and the people. As to whether the nation should
join the worldwide march toward trade liberalization and
economic globalization is a matter that our people
should determine in electing their policy makers. After
all, the WTO Agreement allows withdrawal of
membership, should this be the political desire of a
member.

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