Case Digest: Vinuya, et al. v. Executive Secretary, et al.

G.R. No. 162230 : April 28, 2010

ISABELITA C. VINUYA, ET AL., Petitioners, v. THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE
HONORABLE SECRETARY OF FOREIGN AFFAIRS DELIA DOMINGO- ALBERT, THE HONORABLE SECRETARY OF
JUSTICE MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR GENERAL ALFREDO L. BENIPAYO,
Respondents.

DELCASTILLO, J.:

FACTS:

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization established for the purpose of providing
aid to the victims of rape by Japanese military forces in the Philippines during the Second World War. Petitioners narrate that
during the Second World War, the Japanese army attacked villages and systematically raped the women as part of the destruction
of the village. Their communities were bombed, houses were looted and burned, and civilians were publicly tortured, mutilated, and
slaughtered. Japanese soldiers forcibly seized the women and held them in houses or cells, where they were repeatedly raped,
beaten, and abused by Japanese soldiers. As a result of the actions of their Japanese tormentors, the petitioners have spent their
lives in misery, having endured physical injuries, pain and disability, and mental and emotional suffering. Petitioners claim that
since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG, requesting assistance in filing a
claim against the Japanese officials and military officers who ordered the establishment of the comfort women stations in the
Philippines. However, officials of the Executive Department declined to assist the petitioners, and took the position that the
individual claims of the comfort women for compensation had already been fully satisfied by Japans compliance with the Peace
Treaty between the Philippines and Japan.

ISSUE: Whether or not respondents committed grave abuse of discretion amounting to lack or excess of discretion in refusing to
espouse their claims for the crimes against humanity and war crimes committed against them.

HELD: There is no grave abuse of discretion.

POLITICAL LAW: political questions

Political questions refer "to those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." Certain types of cases
often have been found to present political questions.One such category involves questions of foreign relations.It is well-established
that "the conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative--'the
political'--departments of the government, and the propriety of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision."

Not all cases implicating foreign relations present political questions, and courts certainly possess the authority to construe or
invalidate treaties and executive agreements. However, the question whether the Philippine government should espouse claims of
its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches.In this case, the Executive Department has already decided that it is to
the best interest of the country to waive all claims of its nationals for reparations againstJapanin the Treaty of Peace of 1951.The
wisdom of such decision is not for the courts to question.Neither could petitioners herein assail the said determination by the
Executive Departmentviathe instant petition for certiorari.

The Executive Department has determined that taking up petitioners cause would be inimical to our country's foreign policy
interests, and could disrupt our relations withJapan, thereby creating serious implications for stability in this region.For the Court to
overturn the Executive Departments determination would mean an assessment of the foreign policy judgments by a coordinate
political branch to which authority to make that judgment has been constitutionally committed.

The petition is DISMISSED.

Case Digest: Bayan Muna v. Romulo
G.R. No. 159618 : February 1, 2011

BAYAN MUNA, as represented by REP. SATUR OCAMPO, ET AL., Petitioners, v. ALBERTO ROMULO, in his capacity as
Executive Secretary, et al., Respondents.

VELASCO, JR.,J.:

FACTS:

Having a key determinative bearing on this case is the Rome Statute establishing the International Criminal Court (ICC) with the
power to exercise its jurisdiction over persons for the most serious crimes of international concern and shall be complementary to
the national criminal jurisdictions. The serious crimes adverted to cover those considered grave under international law, such as
genocide, crimes against humanity, war crimes, and crimes of aggression.

On December 28, 2000, the RP, through Charge d'Affaires Enrique A. Manalo, signed the Rome Statute which, by its terms,is
subject to ratification, acceptance or approval by the signatory states. As of the filing of the instant petition,only 92 out of the 139
signatory countries appear to have completed the ratification, approval and concurrence process.The Philippines is not among the
92.

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of Foreign Affairs
(DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP.

ViaExchange of Notes No. BFO-028-03 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by then DFA
Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect
the Agreement with the US government.Inesse, theAgreementaims to protect what it refers to and defines aspersons of the RP and
US from frivolous and harassment suits that might be brought against them in international tribunals.[8]It is reflective of the
increasing pace of the strategic security and defense partnership between the two countries.As of May 2, 2003, similar bilateral
agreements have been effected by and between theUSand 33 other countries.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender agreement, Ambassador
Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a legally binding agreement
under international law; and that, under US law, the said agreement did not require the advice and consent of the US Senate.

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and
prays that it be struck down as unconstitutional, or at least declared as without force and effect.

For their part, respondents question petitioners standing to maintain a suit and counter that the Agreement, being in the nature of
an executive agreement, does not require Senate concurrence for its efficacy. And for reasons detailed in their comment,
respondents assert the constitutionality of the Agreement.

ISSUES:

1) whether or not the Agreement was contracted validly, which resolves itself into the question of whether or not respondents
gravely abused their discretion in concluding it; and

2) whether or not the Agreement,which has not been submitted to the Senate for concurrence, contravenes and undermines the
Rome Statute and other treaties.But because respondents expectedly raised it, we shall first tackle the issue of petitioners legal
standing.

HELD: This petition is bereft of merit.

POLITICAL LAW: Validity of the RP-US Non-Surrender Agreement

Petitioners initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03 cannot be a
valid medium for concluding the Agreement.

Petitioners contention perhaps taken unaware of certain well-recognized international doctrines, practices, and jargon is untenable.
One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution, wherein the Philippines
adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land and
adheres to the policy of peace, cooperation, and amity with all nations.An exchange of notes falls into the category of inter-
governmental agreements,which is an internationally accepted form of international agreement. The United Nations Treaty
Collections (Treaty Reference Guide) defines the term as follows:

An exchange of notes is a record of a routine agreement, that has many similarities with the private law contract.The agreement
consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of
the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent.The signatories
of the letters may be government Ministers, diplomats or departmental heads.The technique of exchange of notes is frequently
resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.

In another perspective, the terms exchange of notes and executive agreements have been used interchangeably, exchange of
notes being considered a form of executive agreement that becomes binding through executive action. On the other hand,
executive agreements concluded by the President sometimes take the form of exchange of notes and at other times that of more
formal documents denominated agreements or protocols. As former US High Commissioner to the Philippines Francis B. Sayre
observed in his work,The Constitutionality of Trade Agreement Acts:

The point where ordinary correspondence between this and other governments ends and agreements whether denominated
executive agreements or exchange of notes or otherwise begin, may sometimes be difficult of ready ascertainment. It is fairly clear
from the foregoing disquisition that E/NBFO-028-03be it viewed as the Non-Surrender Agreement itself, or as an integral
instrument of acceptance thereof or as consent to be bound is a recognized mode of concluding a legally binding international
written contract among nations.

POLITICAL LAW: Senate Concurrence Not Required; treaties

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an international agreement concluded between states
in written form and governed by international law,whether embodied in a single instrument or in two or more related instrumentsand
whatever its particular designation.International agreements may be in the form of (1) treaties that require legislative concurrence
after executive ratification; or (2) executive agreements that are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of subject matters than treaties.

Under international law, there is no difference between treaties and executive agreements in terms of their binding effects on the
contracting states concerned,as long as the negotiating functionaries have remained within their powers.Neither,on the domestic
sphere, can one be held valid if it violates the Constitution.Authorities are, however, agreed that one is distinct from another for
accepted reasons apart from the concurrence-requirement aspect. As has been observed by US constitutional scholars, a treaty
has greater dignity than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the
authority of the President, the Senate, and the people;a ratified treaty, unlike an executive agreement, takes precedence over any
prior statutory enactment.

POLITICAL LAW: The Agreement Not in Contravention of the Rome Statute

Contrary to petitioners pretense, theAgreementdoes not contravene or undermine, nor does it differ from, the Rome Statute.Far
from going against each other, one complements the other.As a matter of fact, the principle of complementarity underpins the
creation of the ICC.As aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the ICC is to be
complementary to national criminal jurisdictions of the signatory states. Art. 1 of the Rome Statute pertinently provides:

Article 1

The Court

AnInternational Crimininal Court(the Court) is hereby established.It x x xshall have the power to exercise its jurisdictionover
persons for the most serious crimes of international concern, as referred to in this Statute, andshall be complementary to national
criminal jurisdictions.The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.

Significantly, the sixth preambular paragraph of the Rome Statute declares that it is the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes.This provision indicates that primary jurisdiction over the so-called
international crimes rests, at the first instance, with the state where the crime was committed; secondarily, with the ICC in
appropriate situations contemplated under Art. 17, par. 1of theRomeStatute.

Of particular note is the application of the principle ofne bis in idemunder par. 3 of Art. 20, Rome Statute, which again underscores
the primacy of the jurisdiction of a state vis-a-vis that of the ICC.As far as relevant, the provision states that no person who has
been tried by another court for conduct [constituting crimes within its jurisdiction] shall be tried by the [International Criminal] Court
with respect to the same conduct.
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional conflict between the
Philippines, as party to the non-surrender agreement, and the ICC; or the idea of theAgreementsubstantially impairing the value of
the RPs undertaking under the Rome Statute.Ignoring for a while the fact that the RP signed the Rome Statute ahead of the
Agreement, it is abundantly clear to us that the Rome Statute expressly recognizes the primary jurisdiction of states, like the RP,
over serious crimes committed within their respective borders, the complementary jurisdiction of the ICC coming into play only
when the signatory states are unwilling or unable to prosecute.

Given the above consideration, petitioners suggestionthat the RP, by entering into theAgreement, violated its duty required by the
imperatives of good faith and breached its commitment under the Vienna Conventionto refrain from performing any act tending to
impair the value of a treaty, e.g., the Rome Statutehas to be rejected outright.For nothing in the provisions of the Agreement,in
relation to the Rome Statute, tends to diminish the efficacy of the Statute, let alone defeats the purpose of the ICC.Lest it be
overlooked, the Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring person, should the
process require the requested state to perform an act that would violate some international agreement it has entered into.We refer
to Art. 98(2) of the Rome Statute, which reads:

Article 98

Cooperation with respect to waiver of immunity and consent to surrender

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its
obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of
that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the
surrender.

Moreover, under international law, there is a considerable difference between a State-Party and a signatory to a treaty. Under the
Vienna Convention on the Law of Treaties, a signatory state is only obliged to refrain from acts which would defeat the object and
purpose of a treaty;whereas a State-Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not a State-Party for lack of
ratification by the Senate. Thus, it is only obliged to refrain from acts which would defeat the object and purpose of the Rome
Statute. Any argument obliging the Philippines to follow any provision in the treaty would be premature.

As a result, petitioners argument that State-Parties with non-surrender agreements are prevented from meeting their obligations
under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only legally binding upon State-Parties,
not signatories.

Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with the Rome Statute.
Specifically, Art. 90(4) provides that if the requesting State is a State not Party to this Statute the requested State, if it is not under
an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the
Court In applying the provision, certain undisputed facts should be pointed out:first, the US is neither a State-Party nor a signatory
to the Rome Statute; and second, there is an international agreement between the US and the Philippines regarding extradition or
surrender of persons, i.e., the Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still
recognizes the primacy of international agreements entered into between States, even when one of the States is not a State-Party
to the Rome Statute.

POLITICAL LAW: Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by bargaining away the jurisdiction of the
ICC to prosecute US nationals, government officials/employees or military personnel who commit serious crimes of international
concerns in the Philippines.Formulating petitioners argument a bit differently, the RP,by entering into the Agreement, does thereby
abdicate its sovereignty, abdication being done by its waiving or abandoning its right to seek recourse through the Rome Statute of
the ICC for erring Americans committing international crimes in the country.

We are not persuaded.As it were, theAgreementis but a form of affirmance and confirmance of thePhilippines national criminal
jurisdiction.National criminal jurisdiction being primary, as explained above, it is always the responsibility and within the prerogative
of the RP either to prosecute criminal offenses equally covered by the Rome Statute or to accede to the jurisdiction of the
ICC.Thus, thePhilippinesmay decide to try persons of theUS, as the term is understood in theAgreement, under our national
criminal justice system.Or it may opt not to exercise its criminal jurisdiction over its erring citizens or overUSpersons committing
high crimes in the country and defer to the secondary criminal jurisdiction of the ICC over them.As to persons of the US whom the
Philippines refuses to prosecute, the country would, in effect, accorddiscretion to the US to exercise either its national criminal
jurisdiction over the person concerned or to give its consent to the referral of the matter to the ICC for trial.In the same breath,
theUSmust extend the same privilege to thePhilippineswith respect to persons of the RP committing high crimes withinUSterritorial
jurisdiction.

To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate that some of its provisions
constitute a virtual abdication of its sovereignty.Almost every time a state enters into an international agreement, it voluntarily
sheds off part of its sovereignty.The Constitution, as drafted, did not envision a reclusivePhilippinesisolated from the rest of the
world.It even adheres, as earlier stated, to the policy of cooperation and amity with all nations.

By their nature, treaties and international agreements actually have a limiting effect on the otherwise encompassing and absolute
nature of sovereignty.By their voluntary act, nations may decide to surrender or waive some aspects of their state power or agree
to limit the exercise of their otherwise exclusive and absolute jurisdiction.The usual underlying consideration in this partial
surrender may be the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to grant the same
privileges or immunities to the other.On the rationale that the Philippines has adopted the generally accepted principles of
international law aspart of the law of the land, a portion of sovereignty may be waived without violating the Constitution. Such
waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts.

POLITICAL LAW: Agreement Not Immoral/Not at Variance with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with
allegedly universally recognized principles of international law.The immoral aspect proceeds from the fact that the Agreement, as
petitioner would put it, leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of
humanity; it precludes our country from delivering an American criminal to the ICC.

The above argument is a kind of recycling of petitioner's earlier position, which, as already discussed, contends that the RP, by
entering into the Agreement,virtually abdicated its sovereignty and in the process undermined its treaty obligations under the Rome
Statute, contrary to international law principles.

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor
General, is an assertion by the Philippines of its desire to try and punish crimes under its national law. The agreement is a
recognition of the primacy and competence of the country's judiciary to try offenses under its national criminal laws and dispense
justice fairly and judiciously.

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing
high crimes of international concern to escape criminal trial and punishment.This is manifestly incorrect.Persons who may have
committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the
consent of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to
the Rome Statute have been met.For perspective, what the Agreement contextually prohibits is the surrender by either party of
individuals to international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime
under its existing laws.With the view we take of things, there is nothing immoral or violative of international law concepts in the act
of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by
both Philippine laws and the Rome Statute.

POLITICAL LAW: Agreement Need Not Be in the Form of a Treaty

A view is advanced that the Agreement amends existing municipal laws on the States obligation in relation to grave crimes against
the law of nations,i.e., genocide, crimes against humanity and war crimes.Relying on the above-quoted statutory proviso, the view
posits that the Philippine is required to surrender to the proper international tribunal those persons accused of the grave crimes
defined under RA 9851, if it does not exercise its primary jurisdiction to prosecute them.

The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for violations of RA 9851, the
Philippines has only two options, to wit: (1) surrender the accused to the proper international tribunal; or (2) surrender the accused
to another State if such surrender is pursuant to the applicable extradition laws and treaties.But the Philippines may exercise these
options only in cases where another court or international tribunal is already conducting the investigation or undertaking the
prosecution of such crime; otherwise, the Philippines must prosecute the crime before its own courts pursuant to RA 9851.

Posing the situation of a US national under prosecution by an international tribunal for any crime under RA 9851, the Philippines
has the option to surrender such US national to the international tribunal if it decides not to prosecute such US national here.The
view asserts that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of theUS, and any derogation
of Sec. 17 of RA 9851, such as requiring the consent of the US before the Philippines can exercise such option, requires an
amendatory law.In line with this scenario, the view strongly argues that theAgreementprevents thePhilippineswithout the consent of
theUSfrom surrendering to any international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect
amends Sec. 17 of RA 9851.Consequently, the view is strongly impressed that the Agreement cannot be embodied in a simple
executive agreement in the form of an exchange of notes but must be implemented through an extradition law or a treaty with the
corresponding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where thePhilippinesadopts, as a national
policy, the generally accepted principles of international law as part of the law of the land, the Court is further impressed to
perceivethe Rome Statute as declaratory of customary international law.In other words, the Statute embodies principles of law
which constitute customary international law or custom and for which reason it assumes the status of an enforceable domestic law
in the context of the aforecited constitutional provision.As a corollary, it is argued that any derogation from the Rome Statute
principles cannot be undertaken via a mere executive agreement, which, as an exclusive act of the executive branch, can only
implement, but cannot amend or repeal, an existing law.TheAgreement, so the argument goes, seeks to frustrate the objects of the
principles of law or alters customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious, unless it is embodied in a
treaty duly ratified with the concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of the nature of a
municipal law that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the status of the Rome Statute as
constitutive of enforceable domestic law under Sec. 2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not amend or is repugnant to RA
9851.For another, the view does not clearly state what precise principles of law, if any, the Agreement alters.And for a third, it does
not demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the principles of law subsumed in the
Rome Statute.

Nonetheless, despite the lack of actual domestic legislation, theUSnotably follows the doctrine of incorporation.As early as 1900,
the esteemed Justice Gray inThe Paquete Habana case already held international law as part of the law of theUS, to wit:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as
often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty
and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized
nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have
made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals,
not for the speculations of their authors concerning what the law ought to be, but for the trustworthy evidence of what the law really
is.

Thus, a person can be tried in the US for an international crime despite the lack of domestic legislation.The cited ruling in U.S. v.
Coolidge,which in turn is based on the holding inU.S. v. Hudson, only applies to common law and not to the law of nations or
international law.Indeed, the Court inU.S. v. Hudson only considered the question, whether the Circuit Courts of the United States
can exercise a common law jurisdiction in criminal cases.Stated otherwise, there is no common law crime in the US but this is
considerably different from international law.

TheUSdoubtless recognizes international law as part of the law of the land, necessarily including international crimes, even without
any local statute.In fact, years later, US courts would apply international law as a source of criminal liability despite the lack of a
local statute criminalizing it as such. So it was that in Ex Parte Quir in the US Supreme Court noted that from the very beginning of
its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the
conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. It went on further to explain that
Congress had not undertaken the task of codifying the specific offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of
international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns. An
Act of Congress punishing the crime of piracy as defined by the law of nations is an appropriate exercise of its constitutional
authority, Art. I, s 8, cl. 10, to define and punish the offense since it has adopted by reference the sufficiently precise definition of
international law. Similarly by the reference in the 15th Article of War to offenders or offenses that by the law of war may be triable
by such military commissions. Congress has incorporated by reference, as within the jurisdiction of military commissions, all
offenses which are defined as such by the law of war, and which may constitutionally be included within that jurisdiction.

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that genocide, war crimes and crimes
against humanity have attained the status of customary international law.Some even go so far as to state that these crimes have
attained the status of jus cogens.

Customary international law or international custom is a source of international law as stated in the Statute of the ICJ. It is defined
as the general and consistent practice of states recognized and followed by them from a sense of legal obligation.In order to
establish the customary status of a particular norm, two elements must concur: State practice, the objective element; andopinio
juris sive necessitates, the subjective element.

State practice refers to the continuous repetition of the same or similar kind of acts or norms by States.It is demonstrated upon the
existence of the following elements: (1) generality; (2) uniformity and consistency; and (3) duration. While,opinio juris, the
psychological element, requires that the state practice or norm be carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it.

The term jus cogens means the compelling law.Corollary, ajus cogensnorm holds the highest hierarchical position among all other
customary norms and principles.As a result,jus cogensnorms are deemed peremptory and non-derogable.When applied to
international crimes, jus cogens crimes have been deemed so fundamental to the existence of a just international legal order that
states cannot derogate from them, even by agreement.

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any state may exercise jurisdiction over an individual
who commits certain heinous and widely condemned offenses, even when no other recognized basis for jurisdiction exists.The
rationale behind this principle is that the crime committed is so egregious that it is considered to be committed against all members
of the international community and thus granting every State jurisdiction over the crime.

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the doctrine of incorporation and
universal jurisdiction to try these crimes.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of merit.
Case Digest: Liban v. Gordon (2011)
G. R. No.175352: January 18, 2011

DANTE V. LIBAN, REYNALDO M. BERNARDO and SALVADOR M. VIARI, Petitioners vs. RICHARD J.
GORDON,Respondent. PHILIPPINE NATIONAL RED CROSS, Intervenor.

LEONARDO-DE CASTRO, J.:

FACTS: Respondent filed a motion for partial recommendation on a Supreme Court decision which ruled that being chairman of
the Philippine National Red Cross (PNRC) did not disqualify him from being a Senator, and that the charter creating PNRC is
unconstitutional as the PNRC is a private corporation and the Congress is precluded by the Constitution to create such.The Court
then ordered the PNRC to incorporate itself with the SEC as a private corporation. Respondent takes exception to the second part
of the ruling, which addressed the constitutionality of the statute creating the PNRC as a private corporation. Respondent avers
that the issue of constitutionality was only touched upon in the issue of locus standi. It is a rule that the constitutionality will not be
touched upon if it is not the lis mota of the case.

ISSUE: Whether or not it was proper for the Court to have ruled on the constitutionality of the PNRC statute.

HELD: Petition has merit.

Political Law: It has been consistently held in Jurisprudence that the Court should exercise judicial restraint when it comes to
issues of constitutionality where it is not the lis mota of the case.

In the case at bar, the constitutionality of the PNRC statute was raised in the issue of standing. As such, the Court should not have
declared certain provisions of such as unconstitutional. On the substantive issue, the PNRC is sui generis. It is unlike the private
corporations that the Constitution wants to prevent Congress from creating. First, the PNRC is not organized for profit. It is an
organization dedicated to assist victims of war and administer relief to those who have been devastated by calamities, among
others. It is entirely devoted to public service. It is not covered by the prohibition since the Constitution aims to eliminate abuse by
the Congress, which tend to favor personal gain. Secondly, the PNRC was created in order to participate in the mitigation of the
effects of war, as embodied in the Geneva Convention. The creation of the PNRC is compliance with international treaty
obligations. Lastly, the PNRC is a National Society, an auxiliary of the government. It is not like government instrumentalities and
GOCC. The PNRC is regulated directly by international humanitarian law, as opposed to local law regulating the other mentioned
entities. As such, it was improper for the Court to have declared certain portions of the PNRC statute as unconstitutional. However,
it is the stand of Justice Carpio that there is no mandate for the Government to create a National Society to this effect. He also
raises the fact that the PNRC is not sui generis in being a private corporation organized for public needs. Justice Abad is of the
opinion that the PNRC is neither private or governmental, hence it was within the power of Congress to create.
In the matter of the charges of plagiarism, etc., against Associate Justice Mariano C. Del Castillo. [A.M. No. 10-7-17-SC]

FACTS:

On April 28, 2010, the Supreme Court issued a decision which dismissed a petition filed by the Malaya Lolas Organization in the
case of Vinuya vs Romulo. Atty. Herminio Harry Roque Jr., counsel for Vinuya et al, questioned the said decision. He raised,
among others, that the ponente in said case, Justice Mariano del Castillo, plagiarized three books when the honorable Justice
twisted the true intents of these books to support the assailed decision. These books were: a. A Fiduciary Theory of Jus Cogens
by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009); b. Breaking the Silence: Rape as an
International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and c. Enforcing Erga Omnes
Obligations by Christian J. Tams, Cambridge University Press (2005).

As such, Justice del Castillo is guilty of plagiarism, misconduct, and at least inexcusable negligence. Interestingly, even the three
foreign authors mentioned above, stated that their works were used inappropriately by Justice Del Castillo and that the assailed
decision is different from what their works advocated.

ISSUE: Whether or not there is plagiarism in the case at bar.

HELD: No. There is no plagiarism. Even if there is (as emphasized by the Supreme Court in its ruling on the Motion for
Reconsideration filed by Vinuya et al in 2011), the rule on plagiarism cannot be applied to judicial bodies.

No Plagiarism

At its most basic, plagiarism means the theft of another persons language, thoughts, or ideas. To plagiarize, as it is commonly
understood according to Webster, is to take (ideas, writings, etc.) from (another) and pass them off as ones own.The passing off of
the work of another as ones own is thus an indispensable element of plagiarism.

According to Blacks Law Dictionary: Plagiarism is the deliberate and knowing presentation of another persons original ideas or
creative expressions as ones own.

This cannot be the case here because as proved by evidence, in the original drafts of the assailed decision, there was attribution to
the three authors but due to errors made by Justice del Castillos researcher, the attributions were inadvertently deleted. There is
therefore no intent by Justice del Castillo to take these foreign works as his own.

But in plagiarism, intent is immaterial.

On this note, the Supreme Court stated that in its past decisions, (i.e. U.P Board of Regents vs CA, 313 SCRA 404), the Supreme
Court never indicated that intent is not material in plagiarism. To adopt a strict rule in applying plagiarism in all cases leaves no
room for errors. This would be very disadvantageous in cases, like this, where there are reasonable and logical explanations.

On the foreign authors claim that their works were used inappropriately

According to the Supreme Court, the passages lifted from their works were merely used as background facts in establishing the
state on international law at various stages of its development. The Supreme Court went on to state that the foreign authors works
can support conflicting theories. The Supreme Court also stated that since the attributions to said authors were accidentally
deleted, it is impossible to conclude that Justice del Castillo twisted the advocacies that the works espouse.

No Misconduct

Justice del Castillo is not guilty of misconduct. The error here is in good faith. There was no malice, fraud or corruption.

No Inexcusable Negligence (explanation of Justice Del Castillo)

The error of Justice del Castillos researcher is not reflective of his gross negligence. The researcher is a highly competent one.
The researcher earned scholarly degrees here and abroad from reputable educational institutions. The researcher finished third in
her class and 4th in the bar examinations. Her error was merely due to the fact that the software she used, Microsoft Word, lacked
features to apprise her that certain important portions of her drafts are being deleted inadvertently. Such error on her part cannot
be said to be constitutive of gross negligence nor can it be said that Justice del Castillo was grossly negligent when he assigned
the case to her. Further, assigning cases to researchers has been a long standing practice to assist justices in drafting decisions. It
must be emphasized though that prior to assignment, the justice has already spelled out his position to the researcher and in every
sense, the justice is in control in the writing of the draft.

With the advent of computers, however, as Justice Del Castillos researcher also explained, most legal references, including the
collection of decisions of the Court, are found in electronic diskettes or in internet websites that offer virtual libraries of books and
articles. Here, as the researcher found items that were relevant to her assignment, she downloaded or copied them into her main
manuscript, a smorgasbord plate of materials that she thought she might need.

She electronically cut relevant materials from books and journals in the Westlaw website and pasted these to a main manuscript in
her computer that contained the issues for discussion in her proposed report to the Justice. She used the Microsoft Word program.
Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials
that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs,
sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded. Parenthetically, this is
the standard scheme that computer-literate court researchers use everyday in their work.
Pharmaceutical and Health Care Association of the Philippines v Duque III

Facts:
Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) of E.O. 51 (Milk Code). Petitioner
claims that the RIRR is not valid as it contains provisions that are not constitutional and go beyond what it is supposed to
implement. Milk Code was issued by President Cory Aquino under the Freedom Constitution on Oct.1986. One of the preambular
clauses of the Milk Code states that the law seeks to give effect to Art 11 of the Intl Code of Marketing and Breastmilk
Substitutes(ICBMS), a code adopted by the World Health Assembly(WHA). From 1982-2006, The WHA also adopted severe
resolutions to the effect that breastfeeding should be supported, hence, it should be ensured that nutrition and health claims are
not permitted for breastmilk substitutes. In 2006, the DOH issued the assailed RIRR.

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

MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of discretion amounting to lack of excess of
jurisdiction and in violation of the Constitution by promulgating the RIRR.

Held:
Sub-issue:
Yes for ICBMS. Under 1987 Consti, intl law can become domestic law by transformation (thru constitutional mechanism such as
local legislation) or incorporation (mere constitutional declaration i.e treaties) The ICBMS and WHA resolutions were not treaties as
they have not been concurred by 2/3 of all members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had
been transformed into domestic law through a local legislation such as the Milk Code. The Milk Code is almost a verbatim
reproduction of ICBMS.

No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions pertinent WHA resolutions are customary
intl law that may be deemed part of the law of the land. For an intl rule to be considered as customary law, it must be established
that such rule is being followed by states because they consider it as obligatory to comply with such rules (opinion juris). The WHO
resolutions, although signed by most of the member states, were enforced or practiced by at least a majority of member states.
Unlike the ICBMS whereby legislature enacted most of the provisions into the law via the Milk Code, the WHA Resolutions
(specifically providing for exclusive breastfeeding from 0-6 months, breastfeeding up to 24 Months and absolutely prohibiting ads
for breastmilk substitutes) have not been adopted as domestic law nor are they followed in our country as well. The Filipinos have
the option of how to take care of their babies as they see fit. WHA Resolutions may be classified as SOFT LAW non-binding
norms, principles and practices that influence state behavior. Soft law is not part of intl law.

Main issue:
Yes. Some parts of the RIRR were not in consonance with the Milk Code such as Sec. 4(f) ->advertising, promotions of formula are
prohibited,
Sec 11 -> prohibitions for advertising breastmilk substitutes intended for infants and young children uo to 24 months
And Sec 46 -> sanctions for advertising .
These provisions are declared null and void. The DOH and respondents are prohibited from implementing said provisions.
Province of North Cotabato vs GRP Peace Panel on Ancestral Domain
G.R. No. 1833591, October 14, 2008

The Government and the MILF were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) aspect of the
GRP-MILF TripoliAgreement on Peace of 2001 in Kuala Lumpur, Malaysia. The GRP-MILF agreement is the result of a formal peace talks between the
parties in Tripoli, Libya in 2001. The pertinent provisions in the MOA-AD provides for the establishment of an associative relationship between the
Bangsamoro Juridical Entity (BJE) and the Central Government. It speaks of the relationship between the BJE and the Philippine government as
associative, thus implying an international relationship and therefore suggesting an autonomous state. Furthermore, under the MOA-AD, the GRP
Peace Panel guarantees that necessary amendments to the Constitution and the laws will eventually be put in place. Is the said MOA-AD constitutional?

ANSWER:
No. The SC ruled that the MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept
underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way to independence, it said. Moreover, as the clause is worded, it virtuallyguarantees that the
necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to
make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process
is through an undue influence or interference with that process. While the MOA-AD would not amount to an international agreement or unilateral declaration
binding on the Philippines under international law, respondents act of guaranteeing amendments is, by itself, already a constitutional violation that renders the
MOA-AD fatally defective.

Justice Santiago said, among others, that the MOA-AD contains provisions which are repugnant to the Constitution and which will result in
the virtual surrender of part of the Philippines territorial sovereignty. She further said that had the MOA-AD been signed by parties, would have bound the
government to the creation of a separate Bangsamoro state having its own territory, government, civil institutions, and armed forcesThe sovereignty and
territorial integrity of the Philippines would have been compromised. (GR No. 183591, Province of North Cotabato v. Republic, October 14, 2008)

On matters of the Constitution. Association as the type of relationship governing between the parties. The parties manifested
that in crafting the MOA-AD, the term association was adapted from the international law. In international law, association happens
when two states of equal power voluntarily establish durable links i.e. the one state, the associate, delegates certain
responsibilities to the other, principal, while maintaining its international status as state; free association is a middle ground
between integration and independence. The MOA-AD contains many provisions that are consistent with the international definition
of association which fairly would deduced that the agreement vest into the BJE a status of an associated state, or at any rate, a
status closely approximating it. The court vehemently objects because the principle of association is not recognized under the
present Constitution.

On matters of international law. The Philippines adopts the generally accepted principle of international law as part of the law of
the land. In international law, the right to self-determination has long been recognized which states that people can freely
determine their political status and freely pursue their economic, social, and cultural development. There are the internal and
external self-determinationinternal, meaning the self-pursuit of man and the external which takes the form of the assertion of the
right to unilateral secession. This principle of self-determination is viewed with respect accorded to the territorial integrity of existing
states. External self-determination is only afforded in exceptional cases when there is an actual block in the meaningful exercise of
the right to internal self-determination. International law, as a general rule, subject only to limited and exceptional cases,
recognizes that the right of disposing national territory is essentially an attribute of the sovereignty of every state.

On matters relative to indigenous people, international law states that indigenous peoples situated within states do not have a
general right to independence or secession from those states under international law, but they do have rights amounting to what
was discussed above as the right to internal self-determination; have the right to autonomy or self-government in matters relating to
their internal and local affairs, as well as ways and means for financing their autonomous functions; have the right to the lands,
territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
Clearly, there is nothing in the law that required the State to guarantee the indigenous people their own police and security force;
but rather, it shall be the State, through police officers, that will provide for the protection of the people. With regards to the
autonomy of the indigenous people, the law does not obligate States to grant indigenous peoples the near-independent status of a
state; since it would impair the territorial integrity or political unity of sovereign and independent states.

On the concept underlying the MOA-AD. While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents' act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective. The MOA-AD not being a document that can bind the Philippines
under international law notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal
framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in the fact that they considered,
as a solution to the Moro Problem, the creation of a state within a state, but in their brazen willingness to guarantee that Congress
and the sovereign Filipino people would give their imprimatur to their solution. Upholding such an act would amount to authorizing
a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue
influence or interference with that process.

G.R. No. 153675

Gov. of Hongkong Special Administrative Region vs. Hon. Felixberto Olalia

FACTS:

Juan Antonio Munoz, who was charged before the Hongkong Court with three (3) counts of the offense of accepting an advantage
as an agent, conspiracy to defraud, was penalized by a common law of Hongkong. A warrant of arrest was issued and if
convicted, he may face jail terms.

On September 23, 1999, He was arrested and detained. On November 22, 1999, Hongkong Special Administrative Region filed
with the RTC of Manila a petition for his extradition. Juan Antonio Munoz filed a petition for bail, which Judge Felixberto Olalia
granted. Petitioner (Hongkong Administrative), filed a petition to vacate such order, but it was denied by the same judge.

ISSUE:

Whether or not Juan Antonio Munoz has the right to post bail when there is nothing in the Constitution or Statutory law providing a
potential extradite a right to bail.

HELD:

The Philippines committed to uphold the fundamental human rights as well as value the worth and dignity of every person (Sec. 2
Art II 1987 Constitution) have the obligation to make available to every person under detention such remedies which safeguard
their fundamental right to liberty.

The right of a prospective extraditee to apply for bail must be viewed in the light of the various treaty obligations of the Philippines
concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human
liberty.

While our extradition law does not provide for the grant of bail to an extradite, however, there is no provision prohibiting him or her
from filing a motion for bail, aright to due process under the Constitution.

The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it
entered into with the Hongkong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign
relations and defeats the purpose of extradition.

Honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered
into with the Hong Kong Special Administrative Region, Failure to comply with these obligations is a setback in our foreign relations
and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the
Philippines should diminish a potential extradites rights to life, liberty, and due process. Where these rights are guaranteed, not
only by our Constitution, but also by international conventions, to which the Philippines is a party.

We should not deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof
beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While
administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the
object of extradition law which is to prevent the prospective extradite from fleeing our jurisdiction.

clear and convincing evidence should be used in granting bail in extradition cases

The potential extradite must prove by clear and convincing evidence that he is not a flight risk and will abide with all the orders
and processes of the extradition court.
Government of the USA v. Hon. Purganan
GR. NO. 148571 Sept. 24 2002
PANGANIBAN, J.

Petition is a sequel to the case Sec. of Justice v. Hon. Lantion. The Secretary was ordered to furnish Mr. Jimenez copies of the
extradition request and its supporting papers and to grant the latter a reasonable period within which to file a comment and
supporting evidence. But, on motion for reconsideration by the Sec. of Justice, it reversed its decision but held that the Mr.
Jimenez was bereft of the right to notice and hearing during the evaluation stage of the extradition process. On May 18, 2001, the
Government of the USA, represented by the Philippine Department of Justice, filed with the RTC, the Petition for Extradition
praying for the issuance of an order for his immediate arrest pursuant to Sec. 6 of PD 1069 in order to prevent the flight of
Jimenez. Before the RTC could act on the petition, Mr. Jimenez filed before it an Urgent Manifestation/Ex-Parte Motion praying
for his application for an arrest warrant be set for hearing. After the hearing, as required by the court, Mr. Jimenez submitted his
Memorandum. Therein seeking an alternative prayer that in case a warrant should issue, he be allowed to post bail in the amount
of P100,000. The court ordered the issuance of a warrant for his arrest and fixing bail for his temporary liberty at P1M in cash.
After he had surrendered his passport and posted the required cash bond, Jimenez was granted provisional liberty.

Government of the USA filed a petition for Certiorari under Rule 65 of the Rules of Court to set aside the order for the issuance of a
warrant for his arrest and fixing bail for his temporary liberty at P1M in cash which the court deems best to take cognizance as
there is still no local jurisprudence to guide lower court.

ISSUES:
i. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an arrest warrant under Section 6
of PD No. 1069
ii. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack
or excess of jurisdiction in granting the prayer for bail
iii. Whether or NOT there is a violation of due process

HELD: Petition is GRANTED. Bail bond posted is CANCELLED. Regional Trial Court of Manila is directed to conduct the
extradition proceedings before it.

In Government of United States of America v. Judge Purganan, September 24, 2002, The SC ruled that Mark Jimenez is not
entitled to the right to bail and provisional liberty while the extradition proceedings are pending except upon a clear and convincing
showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist
special, humanitarian and compelling circumstances.
Merlin Magallona vs Secretary Eduardo Ermita
In March 2009, Republic Act 9522, an act defining the archipelagic baselines of the Philippines was enacted the law is also
known as the Baselines Law. This law was meant to comply with the terms of the third United Nations Convention on the Law of
the Sea (UNCLOS III), ratified by the Philippines in February 1984.
Professor Merlin Magallona et al questioned the validity of RA 9522 as they contend, among others, that the law decreased the
national territory of the Philippines hence the law is unconstitutional. Some of their particular arguments are as follows:
a. the law abandoned the demarcation set by the Treaty of Paris and other ancillary treaties this also resulted to the exclusion of
our claim over Sabah;
b. the law, as well as UNCLOS itself, describes the Philippine waters as archipelagic waters which, in international law, opens our
waters landward of the baselines to maritime passage by all vessels (innocent passage) and aircrafts (overflight), undermining
Philippine sovereignty and national security, contravening the countrys nuclear-free policy, and damaging marine resources, in
violation of relevant constitutional provisions;
c. the classification of the Kalayaan Island Group (KIG), as well as the Scarborough Shoal (bajo de masinloc), as a regime of
islands pursuant to UNCLOS results in the loss of a large maritime area but also prejudices the livelihood of subsistence
fishermen.
ISSUE: Whether or not the contentions of Magallona et al are tenable.
HELD: No. The Supreme Court emphasized that RA 9522, or UNCLOS, itself is not a means to acquire, or lose, territory. The
treaty and the baseline law has nothing to do with the acquisition, enlargement, or diminution of the Philippine territory. What
controls when it comes to acquisition or loss of territory is the international law principle on occupation, accretion, cession and
prescription and NOT the execution of multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with
the treatys terms to delimit maritime zones and continental shelves.
The law did not decrease the demarcation of our territory. In fact it increased it. Under the old law amended by RA 9522 (RA 3046),
we adhered with the rectangular lines enclosing the Philippines. The area that it covered was 440,994 square nautical miles (sq.
na. mi.). But under 9522, and with the inclusion of the exclusive economic zone, the extent of our maritime was increased to
586,210 sq. na. mi. (See image below for comparison)
If any, the baselines law is a notice to the international community of the scope of the maritime space and submarine areas within
which States parties exercise treaty-based rights.
Anent their particular contentions:
a. The law did not abandon the Sabah claim. This is evident on the provision of Section 2 of RA 9522:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without
prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo,
over which the Republic of the Philippines has acquired dominion and sovereignty.
b. UNCLOS may term our waters as archipelagic waters and that we may term it as our internal waters, but the bottom line is
that our country exercises sovereignty over these waters and UNCLOS itself recognizes that. However, due to our observance of
international law, we allow the exercise of others of their right of innocent passage. No modern State can validly invoke its
sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking
retaliatory measures from the international community.
c. The classification of the KIG (or the Spratlys), as well as the Scarborough Shoal, as a regime of islands did not diminish our
maritime area. Under UNCLOS and under the baselines law, since they are regimes of islands, they generate their own maritime
zones in short, they are not to be enclosed within the baselines of the main archipelago (which is the Philippine Island group).
This is because if we do that, then we will be enclosing a larger area which would already depart from the provisions of UNCLOS
that the demarcation should follow the natural contour of the archipelago.
Nevertheless, we still continue to lay claim over the KIG and the Scarborough Shoal through effective occupation.
NOTES:
Under UNCLOS and the baselines law, we have three levels of maritime zones where we exercise treaty-based rights:
a. territorial waters 12 nautical miles from the baselines; where we exercise sovereignty
b. contiguous zone 24 nautical miles from the baselines; jurisdiction where we can enforce customs, fiscal, immigration, and
sanitation laws (CFIS).
c. exclusive economic zone 200 nautical miles from the baselines; where we have the right to exploit the living and non-living
resources in the exclusive economic zone
Note: a fourth zone may be added which is the continental shelf this is covered by Article 77 of the UNCLOS.
Bayan v Zamora (Public International Law)

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT v EXECUTIVE SECRETARY RONALDO ZAMORA
G.R. No. 138570
October 10, 2000

FACTS:

The Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951, To further strengthen their
defense and security relationship. Under the treaty, the parties agreed to respond to any external armed attack on their territory,
armed forces, public vessels, and aircraft.

On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security
which, in effect, would have extended the presence of US military bases in the Philippines.

On July 18, 1997 RP and US exchanged notes and discussed, among other things, the possible elements of the Visiting Forces
Agreement (VFA).This resulted to a series of conferences and negotiations which culminated on January 12 and 13, 1998.
Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United States
Ambassador Thomas Hubbard.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA. On October 6,
1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted to the Senate of the
Philippines,the Instrument of Ratification, the letter of the President and the VFA, for concurrence pursuant to Section 21, Article
VII of the 1987 Constitution.

Petitions for certiorari and prohibition, petitioners as legislators, non-governmental organizations, citizens and taxpayers assail
the constitutionality of the VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement.

Petitioner contends, under they provision cited, the foreign military bases, troops, or facilities may be allowed in the Philippines
unless the following conditions are sufficiently met: a) it must be a treaty,b) it must be duly concurred in by the senate, ratified by a
majority of the votes cast in a national referendum held for that purpose if so required by congress, and c) recognized as such by
the other contracting state.

Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to be valid
and effective is the concurrence in by at least two-thirds of all the members of the senate.

ISSUES AND RULING:

1. Issue 1: Do the Petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality
of the VFA?

NO. Petitioners Bayan Muna, etc. have no standing. A party bringing a suit challenging the Constitutionality of a law must show
not only that the law is invalid, but that he has sustained or is in immediate danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite way. Petitioners have failed to show that they are in any
danger of direct injury as a result of the VFA.

As taxpayers, they have failed to establish that the VFA involves the exercise by Congress of its taxing or spending powers. A
taxpayer's suit refers to a case where the act complained of directly involves the illegal disbursement of public funds derived from
taxation. Before he can invoke the power of judicial review, he must specifically prove that he has sufficient interest in preventing
the illegal expenditure of 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, the petitioner-legislators (Tanada, Arroyo, etc.) do not possess the requisite locus standi to sue. In the absence of a clear
showing of any direct injury to their person or to the institution to which they belong, they cannot sue. The Integrated Bar of the
Philippines (IBP) is also stripped of standing in these cases. 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.
Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised, the Court may brush
aside the procedural barrier and takes cognizance of the petitions.

2. Issue 2: Is the VFA governed by section 21, Art. VII, or section 25, Art. XVIII of the Constitution?

Section 25, Art XVIII, not section 21, Art. VII, applies, as the VFA involves the presence of foreign military troops in the Philippines.

The Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements.

Section 21, Article VII reads: [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.

Section 25, Article XVIII, provides:[a]fter 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 treaties or international agreements in general, in which case, the concurrence of at least two-
thirds (2/3) of all the Members of the Senate is required to make the treaty valid and binding to the Philippines. This provision lays
down the general rule on treaties. All treaties, 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. Sec 25 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.

On the whole, the VFA is an agreement which defines the treatment of US troops visiting the Philippines. It provides for the
guidelines to govern such visits of military personnel, and further defines the rights of the US and RP government in the matter of
criminal jurisdiction, movement of vessel and aircraft, import and export 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, however, the provisions of Section 21, Article VII will find applicability with regard to
determining the number of votes required to obtain the valid concurrence of the Senate.

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. 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. When no distinction is made by law; the Court should not distinguish. 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. 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, such that three different situations
are contemplated 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.

3. Issue 3: Was Sec 25 Art XVIII's requisites satisfied to make the VFA effective?

YES

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are
sufficiently met:
(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 Constitution, as there were at least 16 Senators that concurred.

As to condition (c), the Court held that the phrase recognized as a treaty means that the other contracting party accepts or
acknowledges the agreement as a treaty. To require the US to submit the VFA to the US Senate for concurrence pursuant to its
Constitution, 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.

The records reveal that the US Government, through Ambassador Hubbard, has stated that the US has fully committed to living up
to the terms of the VFA. For as long as the US accepts or acknowledges the VFA as a treaty, and binds itself further to comply with
its treaty obligations, there is indeed 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 and unequivocal expression of our nation's 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, through which the formal acceptance of the treaty is proclaimed. A State may provide in its domestic legislation the
process of ratification of a treaty. 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.

With the ratification of the VFA it now becomes obligatory and incumbent on our part, under principles of international law (pacta
sunt servanda), to be bound by the terms of the agreement. Thus, no less than Section 2, Article II 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.