PIMENTEL VS. EXECUTIVE SECRETARY authority to negotiate with other states.

PIMENTEL VS. EXECUTIVE SECRETARY

It should be emphasized that under the
462 SCRA 622
Constitution, the power to ratify is vested in the
G.R. No. 158088 July 06, 2005
President, subject to the concurrence of the
Senate. The role of the Senate, however, is
limited only to giving or withholding its consent,
Facts:
or concurrence, to the ratification. Hence, it is
within the authority of the President to refuse
On December 28, 2000, the Philippines through
to submit a treaty to the Senate or, having
the Charge d’ Affairs Enrique A. Manalo of the
secured its consent for its ratification, refuse to
Philippine Mission to the United Nations, signed
ratify it.
the Rome Statute which established the
International Criminal Court. Thus, herein
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.

Issue: Whether or not the Executive Secretary

and the Department of Foreign Affairs have a
ministerial duty to transmit to the Senate for
ratification the copy of the Rome Statute signed
by a member of the Philippine Mission to the
United Nations even without the signature of
the President.

Held:

The Supreme Court rule in the negative.

The President, being the head of state, is

regarded as the sole organ and authority in
external relations and is the country’s sole
representative with foreign nations. As the chief
architect of foreign policy, the President acts as
the country’s 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. In the realm of
treaty-making, the President has the sole
ARTHUR D. LIM vs. HON. EXECUTIVE Moreover, it is the VFA that gave legitimacy to
SECRETARY (G.R. No. 151445) Case Digest the current Balikatan exercise.

The constitution leaves us no doubt that US

Forces are prohibited from engaging war on
Facts:
Philippine territory. This limitation is explicitly
Arthur D. Lim and Paulino P. Ersando filed a provided for in the Terms of Reference of the
petition for certiorari and prohibition attacking Balikatan exercise. The issues that were raised
the constitutionality of “Balikatan-02-1”. They by the petitioners was only based on fear of
were subsequently joined by SANLAKAS and future violation of the Terms of Reference.
PARTIDO NG MANGGAGAWA, both party-list
Based on the facts obtaining, the Supreme court
organizations, who filed a petition-in-
find that the holding of “Balikatan-02-1” joint
intervention. Lim and Ersando filed suits in their
military exercise has not intruded into that
capacities as citizens, lawyers and taxpayers.
penumbra of error that would otherwise call for
SANLAKAS and PARTIDO on the other hand,
the correction on its part.
claimed that certain members of their
organization are residents of Zamboanga and
Sulu, and hence will be directly affected by the
The petition and the petition-in-intervention is
operations being conducted in Mindanao.
DISMISSED.
The petitioners alleged that “Balikatan-02-1” is
not covered by the Mutual Defense Treaty
(MDT) between the Philippines and the United
States. Petitioners posited that the MDT only
provides for mutual military assistance in case
of armed attack by an external aggressor
against the Philippines or the US. Petitioners
also claim that the Visiting Forces Agreement
(VFA) does not authorize American Soldiers to
engage in combat operations in Philippine
Territory.

Issue:

Is the “Balikatan-02-1” inconsistent with the

Philippine Constitution?

Ruling:

The MDT is the core of the defense relationship

between the Philippines and the US and it is the
VFA which gives continued relevance to it.
MOST REV. PEDRO ARIGO, et. al., Petitioners,
vs.
SCOTT H. SWIFT, et. al., Respondents.
G.R. No. 206510 September 16, 2014
PONENTE: Villarama
TOPIC: Writ of kalikasan, UNCLOS, Immunity
from suit
FACTS:
The USS Guardian is an Avenger-class
mine countermeasures ship of the US Navy. In
December 2012, the US Embassy in the
Philippines requested diplomatic clearance for
the said vessel “to enter and exit the territorial
waters of the Philippines and to arrive at the
port of Subic Bay for the purpose of routine ship
replenishment, maintenance, and crew liberty.”
On January 6, 2013, the ship left Sasebo, Japan
for Subic Bay, arriving on January 13, 2013 after
a brief stop for fuel in Okinawa, Japan.
On January 15, 2013, the USS Guardian
departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at
2:20 a.m. while transiting the Sulu Sea, the ship
ran aground on the northwest side of South
Shoal of the Tubbataha Reefs, about 80 miles
east-southeast of Palawan. No one was injured
in the incident, and there have been no reports
of leaking fuel or oil.
Petitioners claim that the grounding,
salvaging and post-salvaging operations of the
USS Guardian cause and continue to cause
environmental damage of such magnitude as
to affect the provinces of Palawan, Antique,
Aklan, Guimaras, Iloilo, Negros Occidental,
Negros Oriental, Zamboanga del Norte, Basilan,
Sulu, and Tawi-Tawi, which events violate their
constitutional rights to a balanced and healthful
ecology.
ISSUES:
1. Whether or not petitioners have legal
standing.
2. Whether or not US respondents may be
held liable for damages caused by USS
Guardian.
3. Whether or not the waiver of immunity
from suit under VFA applies in this case.
HELD:
First issue: YES.
Petitioners have legal standing
Locus standi is “a right of appearance
in a court of justice on a given question.”
Specifically, it is “a party’s personal and
substantial interest in a case where he has
sustained or will sustain direct injury as a
result” of the act being challenged, and “calls
for more than just a generalized grievance.”
However, the rule on standing is a procedural
matter which this Court has relaxed for non-
traditional plaintiffs like ordinary citizens,
taxpayers and legislators when the public
interest so requires, such as when the subject
matter of the controversy is of transcendental
importance, of overreaching significance to
society, or of paramount public interest.
In the landmark case of Oposa v.
Factoran, Jr., we recognized the “public right” of
citizens to “a balanced and healthful ecology
which, for the first time in our constitutional
history, is solemnly incorporated in the
fundamental law.” We declared that the right to
a balanced and healthful ecology need not be
written in the Constitution for it is assumed, like
other civil and polittcal rights guaranteed in the
Bill of Rights, to exist from the inception of
mankind and it is an issue of transcendental
importance with intergenerational implications.
Such right carries with it the correlative duty to
refrain from impairing the environment.
On the novel element in the class suit
filed by the petitioners minors in Oposa, this
Court ruled that not only do ordinary citizens
have legal standing to sue for the enforcement
of environmental rights, they can do so in
representation of their own and future
generations.
Second issue: YES.
The US respondents were sued in their
official capacity as commanding officers of the
US Navy who had control and supervision over
the USS Guardian and its crew. The alleged act
or omission resulting in the unfortunate
grounding of the USS Guardian on the TRNP
was committed while they were performing
official military duties. Considering that the
satisfaction of a judgment against said officials
will require remedial actions and appropriation
of funds by the US government, the suit is
deemed to be one against the US itself. The
principle of State immunity therefore bars the
exercise of jurisdiction by this Court over the
persons of respondents Swift, Rice and Robling.
During the deliberations, Senior
Associate Justice Antonio T. Carpio took the
position that the conduct of the US in this case,
when its warship entered a restricted area in
violation of R.A. No. 10067 and caused damage
to the TRNP reef system, brings the matter
within the ambit of Article 31 of the United
Nations Convention on the Law of the Sea
(UNCLOS). He explained that while historically,
warships enjoy sovereign immunity from suit
as extensions of their flag State, Art. 31 of the
UNCLOS creates an exception to this rule in
cases where they fail to comply with the rules
and regulations of the coastal State regarding
passage through the latter’s internal waters
and the territorial sea.
In the case of warships, as pointed out
by Justice Carpio, they continue to enjoy
sovereign immunity subject to the following
exceptions:
Article 30: Non-compliance by warships with
the laws and regulations of the coastal State
If any warship does not comply with the laws
and regulations of the coastal State concerning
passage through the territorial sea and
disregards any request for compliance
therewith which is made to it, the coastal State
may require it to leave the territorial sea
immediately.
Article 31: Responsibility of the flag State for
damage caused by a warship or other
government ship operated for non-commercial
purposes
The flag State shall bear international
responsibility for any loss or damage to the
coastal State resulting from the non-compliance
by a warship or other government ship
operated for non-commercial purposes with the
laws and regulations of the coastal State
concerning passage through the territorial sea
or with the provisions of this Convention or
other rules of international law.
Article 32: Immunities of warships and other
government ships operated for non-commercial
purposes
With such exceptions as
are contained in subsection A and in articles 30
and 31, nothing in this Convention affects the
immunities of warships and other government
ships operated for non-commercial purposes. A
foreign warship’s unauthorized entry into our
internal waters with resulting damage to
marine resources is one situation in which the
above provisions may apply.
But what if the offending warship is a non-party
to the UNCLOS, as in this case, the US?
According to Justice Carpio, although the US to
date has not ratified the UNCLOS, as a matter of
long-standing policy the US considers itself
bound by customary international rules on the
“traditional uses of the oceans” as codified in
UNCLOS.
Moreover, Justice Carpio emphasizes that “the
US refusal to join the UNCLOS was centered on
its disagreement with UNCLOS” regime of deep
seabed mining (Part XI) which considers the
oceans and deep seabed commonly owned by
mankind,” pointing out that such “has nothing
to do with its the US’ acceptance of customary
international rules on navigation.”
The Court also fully concurred with Justice
Carpio’s view that non-membership in the
UNCLOS does not mean that the US will
disregard the rights of the Philippines as a
Coastal State over its internal waters and
territorial sea. We thus expect the US
to bear “international responsibility” under Art.
31 in connection with the USS Guardian
grounding which adversely affected the
Tubbataha reefs. Indeed, it is difficult to
imagine that our long-time ally and trading
partner, which has been actively supporting the
country’s efforts to preserve our vital marine
resources, would shirk from its obligation to
compensate the damage caused by its warship
while transiting our internal waters. Much less
can we comprehend a Government exercising
leadership in international affairs, unwilling to
comply with the UNCLOS directive for all
nations to cooperate in the global task to
protect and preserve the marine environment
as provided in Article 197 of UNCLOS
Article 197: Cooperation on a global or regional
basis
States shall cooperate on a global basis and, as
appropriate, on a regional basis, directly or
through competent international organizations,
in formulating and elaborating international
rules, standards and recommended practices
and procedures consistent with this
Convention, for the protection and preservation
of the marine environment, taking into account
characteristic regional features.
In fine, the relevance of UNCLOS provisions to
the present controversy is beyond dispute.
Although the said treaty upholds the immunity
of warships from the jurisdiction of Coastal
States while navigating the latter’s territorial
sea, the flag States shall be required to leave
the territorial sea immediately if they flout the
laws and regulations of the Coastal State, and
they will be liable for damages caused by their
warships or any other government vessel
operated for non-commercial purposes under
Article 31.
Third issue: NO.
The waiver of State immunity under
the VF A pertains only to criminal jurisdiction
and not to special civil actions such as the
present petition for issuance of a writ of
Kalikasan. In fact, it can be inferred from
Section 17, Rule 7 of the Rules that a criminal
case against a person charged with a violation
of an environmental law is to be filed
separately.
The Court considered a view that a
ruling on the application or non-application of
criminal jurisdiction provisions of the VFA to US
personnel who may be found responsible for
the grounding of the USS Guardian, would be
premature and beyond the province of a
petition for a writ of Kalikasan.
The Court also found unnecessary at
this point to determine whether such waiver of
State immunity is indeed absolute. In the same
vein, we cannot grant damages which have
resulted from the violation of environmental
laws. The Rules allows the recovery of damages,
including the collection of administrative fines
under R.A. No. 10067, in a separate civil suit or
that deemed instituted with the criminal action
charging the same violation of an
environmental law.
Nicaragua v. Colombia
On 6 December 2001, Nicaragua filed in the
registry of the Court an application against
Colombia based in a legal dispute regarding the
titles of certain territories in the Western
Caribbean and the maritime delimitation.
Nicaragua understands that the Court has
compulsory jurisdiction in accordance with
article XXXI of the American Treaty on Pacific
solutions, of 30 April 1948 (Pact of Bogotá), and
with the statements made by the parties under
article 36 of the Statute of the Permanent Court
of International Justice.
The Court fixed 28 April 2003 as the deadline
for the filing of the Memorial of Nicaragua and
28 June 2004 as the deadline for the filing of the
Counter-Memorial of Colombia.
Once the Memorial of the Government of
Nicaragua was filed, Colombia presented the
Preliminary Objections on 21 July 2003, as a
result, the Court set to Nicaragua the deadline
on 26 January 2004 for the submission of
written comment on the Preliminary
Objections. Deposited these observations the
Court proceeded to hold hearings.
From 4 to 8 June 2007, there were public
hearings on the preliminary objections raised by
Colombia, and the Court concluded in its
judgment of 13 December 2007 that it had
jurisdiction under the article XXXI of the Pact of
Bogotá, to judge on the dispute concerning the
sovereignty of maritime features claimed by the
parties other than the islands of San Andrés,
Providencia and Santa Catalina and the dispute
concerning the maritime delimitation.[20]
Thus, the Court considered that, in the light of
the article I of the Esguerra – Bárcenas Treaty it
was clear that sovereignty over the islands of
San Andrés, Providencia and Santa Catalina had
been resolved, discrediting the Nicaraguan
argumentation with regards to the invalidity of
the Treaty based on the circumstances existing
at the moment of its conclusion (signature in
1928 and the ratification in 1930).[21]
In turn, based on the validity of the Esguerra
Bárcenas Treaty it also will undermine the
Colombian argument due to the fact that
everything relative to the entire maritime
features claimed by the parties and the
maritime delimitation had already been solved.
The Court was explicit in its judgment, noting
that in the light of articles VI and XXXIV of the
Pact of Bogota only was closed “forever” the
matter relating to the territories of the islands
of San Andrés, Providencia and Santa
Catalina.[22]
As far as the above mentioned is concerned, the
Court emphasizes that the meaning of the
second paragraph of article I of the 1928 Treaty
is clear, since this Treaty expressly exclude the
issue of sovereignty over Roncador,
Quitasueño, and Serrana. Therefore, the
limitations contained in article VI of the Pact of
Bogota do not apply to the question of
sovereignty over those territories. Similarly, the
Court concludes that the 1928 Treaty and its
1930 Protocol did not carry out a general
delimitation of the maritime boundary between
Colombia and Nicaragua.
Thus, based on the Pact of Bogotá, the Court
ties the resolution of the Preliminary Objections
to the merits of the case, without ruling by the
sudden and naive withdrawal made by
Colombia a day before the presentation of
Nicaragua’s Application of the unilateral
declaration of competence issued in 1937.[23]
Resolved the exceptions, a new deadline for the
filing of the Counter-Memory of Colombia, was
fixed on 11 November 2008 request that was
attended in due term. The rejoinders of
Nicaragua and Colombia were filed within the
fixed time, that is, on 18 September 2009 and
on 18 June, 2010 respectively. For
connoisseurs, it was clear that from this
procedural stage, there was little more that
Colombia could win . The recognition of
sovereignty over San Andres, Providencia and
Santa Catalina would be added based on the
same principles of the ruling in the case of
Nicaragua vs. Honduras; the recognition of
sovereignty over Roncador, Serrana,
Albuquerque and the East cays, to which the
Court will fix them a portion of the territorial
sea, and as the Court had already warned, in
any case it would be no more than 12 nautical
miles, and the fate of Quitasueño, would
depend to be considered landmass. [24]
On 25 February 2010 and 10 June 2010,
respectively Costa Rica and Honduras filed
applications to be allowed to participate in the
case as intervening party, based on the article
62 of the Statute of the Court. However, in
separate statements issued on 4 May 2011, the
Court denied such claims.[25]
Public hearings were held between 23 April and
4 May 2012, in which the Court heard
arguments and responses of the parties.
In its judgment of 19 November 2012, the
International Court of Justice, makes an analysis
of the maritime features in dispute, to
determine if they are capable of appropriation,
the Court recalls the regime of the Islands, it
refers to the low-tide elevations, it stops in the
matter of Quitasueño, discussing the Smith
report, the tide models, and based on these,
states that the point QS32 in Quitasueño is the
only outstanding formation at high-tide.[26]
Moreover, it resumes the debate of the 1928
Treaty between Nicaragua and Colombia and
the 1930 Protocol, referring to what has already
been pronounced in its judgment on the
Preliminary Objections in 2007. In turn, states
that the full composition of the Archipelago
cannot be established according to the basis of
the 1928 Treaty.[27]
With regard to the Uti Possidetis Juris,
emphasizes that the maritime features were
not clearly attributed to the provinces of
Nicaragua or of Colombia prior to or upon its
independence, and therefore, neither
Nicaragua nor Colombia has established a title
by virtue of this principle.[28]
In terms of Effectivités, it points out the
absence of these by Nicaragua and the different
categories presented by Colombia. In addition,
it refers to the continuous and consistent
acts “au titre de souverain” carried out by
Colombia, the absence of objection
from Nicaragua; prior to the critical
date; Nicaragua’s reaction to the Loubet
Award, and its absence of claim of sovereignty
with regards to Roncador, Quitasueño, and
Serrana in the time of the 1928 Treaty. It even
mentions the practices of third States and that
the maps tend to strengthen the position of
Colombia. Hence, the Court will not hesitate to
point out that Colombia has sovereignty over
the maritime features in dispute.[29]
It accepts, the claim of Nicaragua for
delimitation of a continental shelf extending
beyond 200 nautical miles as a new application,
whenever the original complaint concerned to
the delimitation of the exclusive economic zone
and the continental shelf, hence it considers
that this new claim, arises directly from the
dispute by the maritime delimitation and do not
transforms the subject-matter in dispute.[30]
Notwithstanding the foregoing, the pretension
of Nicaragua for a delimitation of the
continental shelf extending beyond 200 nautical
miles, cannot be proceeded since, the claim for
an extended continental shelf by a State
Member of the United Nations Convention on
the Law of the Sea (UNCLOS) should be in
accordance with the article 76, and Nicaragua
is not relieved of its obligation of having the
preliminary report of the Commission on the
limits of the continental shelf.[31]
Then, the Court proceeds to the delimitation of
the maritime boundary, delimiting the
continental shelf and the Nicaraguan exclusive
economic zone, as well as the continental shelf
and the exclusive economic zone generated by
the Colombian Islands, based on the customary
International Law applicable and reflected in
the articles 74 and 83 (maritime delimitation)
and article 121 (legal regime of Islands) of the
UNCLOS.[32]
In its task of delimitation, the Court refers to
the relevant coasts: the continental coast of
Nicaragua and the entire coastline of the
Colombian islands, pointing out that in the case
of the latter, the coastal line of Serranilla, Bajo
Nuevo and Quitasueño are not part of the
relevant coast[33]. Thus, the lengths of the
relevant coasts totalling therefore, 531 km
(Nicaragua) and 65 km (Colombia) in a ratio of
approximately 1:8.2 in favour of Nicaragua.[34]
To determine the relevant maritime area it
takes into account the entitlements generated
by the maritime features of San Andrés,
Providencia and Santa Catalina, considering that
they are entitled to a territorial sea, exclusive
economic zone and continental shelf; and with
regards to Roncador, Serrana, Alburquerque
and the East and Southeast cays these ones are
each entitled to a territorial sea of 12 nautical
miles, in the same way as Quitasueño. It
excludes to mention Serranilla and Bajo Nuevo
for not being relevant in the delimitation.[35]
Based on the foregoing, and in accordance with
the relevant maritime area, it extends 200 miles
from Nicaragua, North of Providence and
Roncador, doing the same to the South of
Albuquerque and the East and Southeast cays.
In the Northern Corridor, the exploitation rights
of Nicaragua, are limited by the enclave of
Quitasueño and Serrana featuring around with
their respective 12 nautical miles of territorial
sea.[36]
The method of delimitation used by the Court,
was to construct a provisional equidistance/
median line between the Nicaraguan coast and
the west-facing coasts of the relevant
Colombian Islands, which was then adjusted or
shifted under relevant circumstances so
required due to the substantial disparity in
length of the coastline. At last, it carried out a
disproportionality test, which concluded that
there was no need to apply a principle of strict
proportionality so that it does not create an
inequitable result.[37]
Finally, with regards to the request of Nicaragua
in an statement on Colombia’s illegal conduct,
the Court found it baseless, since the stipulated
maritime delimitation does not grant to
Nicaragua the whole of area which it claims.[38]
Conclusions:
The controversy is established in 1969, by virtue
of the claim through a Verbal Note from
Colombia on June 4, which considered the fact
that the Meridian 82° West is the maritime
boundary on the basis of the 1928 Treaty and
its 1930 Notes of Exchange. For its part,
Nicaragua replied on June 19, rejecting that
argument and alleging that four decades after
the 1928 Treaty and its Notes of Exchange the
Colombian thesis arises.
Established the dispute, Colombia begins to
negotiate treaties of maritime delimitation with
third parties based on the Meridian 82º as
intangible boundary in front of Nicaragua. For
its part, Nicaragua in 1980 declared null and
void the 1928 Treaty, and based on this, not
only claims the absence of maritime
delimitation with Colombia, but also the
allocation of territories.
Few attempts of negotiation, with limited
political disposition – especially from Colombia
– lead Nicaragua to file the application against
Colombia at the International Court in 2001.
Colombia refutes the competition of the Court,
and so in the process that resolved these
preliminary objections, the Nicaraguan thesis of
nullity of the 1928 Treaty was rejected as well
as the arguments of Colombia that the Treaty
had resolved the allocation of territories and
the maritime delimitation. In its judgment of
2007; the Court pointed out that in view of the
articles VI and XXXIV of the Pact of Bogotá only
left settled the matter relating to the territories
of the islands of San Andrés, Providence and
Santa Catalina, and hence under the same Pact
of Bogotá was competent.
The procedure and judgment on the merits
passing through the debate of the maritime
features to know if they are capable of
appropriation, concluding that they are, that it
is not feasible to decide on the basis of Uti
Possidetis Juris since they were not attributed
prior to the independence of Nicaragua and
Colombia, and therefore it is based on
the Effectivités. Thus, it refers to the continuous
and consistent acts “au titre de
souverain” carried out by Colombia, moreover,
the absence of objection of Nicaragua.
It extends 200 miles from Nicaragua to the
North of Providence and Roncador and South of
Albuquerque and the East and Southeast cays.
In the Northern Corridor, the exploitation rights
of Nicaragua, are limited by the enclave of
Quitasueño and Serrana featuring around with
their respective 12 nautical miles of territorial
sea.
A significant majority in Colombia has been
interpreted, as a defeat -even unlawful – the
resolution of this dispute with Nicaragua,
despite the failure – in our view – it is in law and
the Colombian thesis do not succeed because
the treaties do not bind in accordance to the
will of the parties but to its content and -the
most obvious thing – to conclude treaties, such
as those made by Colombia with other
countries in the Western Caribbean, could not
affect the rights of Nicaragua.

The Court also considers that San Andres,

Providencia and Santa Catalina are entitled
generators to a territorial sea, exclusive
economic zone and continental shelf, and with
regards to Roncador, Serrana, Alburquerque
and the East and Southeast cays these ones are
each entitled to a territorial sea of 12 nautical
miles, in the same way as Quitasueño. The
Court excludes to mention Serranilla and Bajo
Nuevo for not been relevant in the delimitation.

It delimits, constructing a provisional median

line between the Nicaraguan coast and the
west-facing coasts of the relevant Colombian
Islands, which was then adjusted or shifted
under relevant circumstances due to the
substantial disparity in length of the coastline,
without applying a principle of strict
proportionality so that it does not create an
inequitable result.
Republic of the Philippines Vs. Provincial
government of Palawan
This is a petition for review on certiorari under
Rule 45 of the Rules of Court assailing the
Decision of the Regional Trial Court (RTC) of
Palawan
On December 11, 1990, the Republic of the
Philippines (Republic or National Government),
through the Department of Energy (DoE),
entered into Service Contract No. 38 with Shell
Philippines Exploration B.V. and Occidental
Philippines, Incorporated (collectively
SPEX/OXY), as Contractor, for the exclusive
conduct of petroleum operations in the area
known as "Camago-Malampaya" located
offshore northwest of Palawan. Exploration of
the area led to the drilling of the Camago-
Malampaya natural gas reservoir about 80
kilometers from the main island of Palawan and
30 kms from the platform.
The Provincial Government of Palawan asserted
its claim over forty percent (40%) of the
National Government's share in the proceeds of
the project. It argued that since the reservoir is
located within its territorial jurisdiction, it is
entitled to said share under Section 290[18] of
the Local Government Code. The National
Government disputed the claim, arguing that
since the gas fields were approximately 80 k.ms
from Palawan's coastline, they are outside the
territorial jurisdiction of the province and is
within the national territory of the Philippines.
Ruling:
The Supreme Court has declared that the
Province of Palawan is not entitled to share in
the proceeds of the Camago-Malampaya
natural gas project. Palawan premised its claim
on the ground that it has territorial jurisdiction
over the Camago-Malampaya reservoir.
The Court held that there is no debate that the
natural resource in the Camago-Malampaya
reservoir belongs to the State, noting that
Palawan’s claim is anchored not on ownership
of the reservoir but on a revenue-sharing
scheme, under Section 7, Article X of the 1986
Constitution and Section 290 of the LGC, that
allows local government units (LGUs) to share in
the proceeds of the utilization of national
wealth provided they are found within their
respective areas.
The Court, however, found that existing laws do
not include the Camago-Malampaya reservoir
within the area or territorial jurisdiction of the
Province of Palawan. It stressed that “As
defined in its organic law, the province of
Palawan comprises merely of islands. The
continental shelf, where the Camago-
Malamapaya reservoir is loated, was clearly not
included in its territory.
The Court also held that Presidential Decree No.
1596, which constituted Kalayaan as a separate
municipality of the Province of Palawan, cannot
be the basis for holding that the Camago-
Malampaya reservoir forms part of Palawan’s
territory. It declared that the delineation of
territory in PD 1596 refers to Kalayaan alone
and that the inclusion of the seabed, subsoil,
and continental margin in Kalayaan’s territory
cannot by simple analogy be applied to
Palawan. Likewise, it held that the definition of
“Palawan” under Republic Act No. 7611 should
not be taken as a statement of territorial limits
for purposes of Section 7, Article X of the 1987
Constitution, but in the context of RA 7611
which is aimed at environmental monitoring,
research, and education.
The Court also did not subscribe to Palawan’s
argument posited by the Province of Palawan
that the national wealth, the proceeds from
which the State is mandated to share with the
LGUs, shall be wherever the local government
exercises any degree of jurisdiction. “An LGU’s
territorial jurisdiction is not necessarily co-
extensive with its exercise or assertion of
powers. To hold otherwise may result in
condoning acts that are clearly ultra vires. It
may lead to, the words of the Republic, LGUs
‘rush(ing) to exercise its powers and functions
in areas rich in natural resources even if outside
its boundaries) with the intention of seeking a
share in the proceeds of its exploration’ – a
situation that ‘would sow conflict not only
among the local government units and the
national government but worse, between and
among local government units.’”

The Court pointed out also that Palawan never

alleged in which of its municipalities or
component cities and barangays the Camago-
Malampay reservoir is located, militating
against its claim that the area form part of its
territory.

The Court further held that 1) estoppel does not

lie against the Republic as previous
acknowledgments of Palawan’s share were
based on the mistaken assumption that it it is
entitled to the said allocation, 2) Section1,
Article X of the 1987 Constitution did not
apportion the entire Philippine territory among
the LGUs such that at any one time, a body of
water or a piece of land should belong to some
province or city, 3) the United Nations
Convention on the Law of the Seas (UNCLOS)
did not confer on LGUs their own continental
shelf as this pertains to the coastal state.

INTERNATIONAL COURT OF JUSTICE
Application of the Convention on the
Prevention and
Punishment of the Crime of Genocide
(CROATIA v. SERBIA)
- KEY ISSUES OF THE JUDGMENT - remaining 2 judges deemed that
The International Court of Justice (ICJ) delivered
on 3 February 2015 its Judgment in the case
concerning the Application of the Convention on
the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia). The Court
delivering the Judgment was composed of 17
judges of which 15 are permanent judges of the
ICJ elected for a nine-year term by the General
Assembly and the Security Council of the United
Nations and 2 ad hoc judges (Croatia nominated
Judge Budislav Vukas and Serbia Judge Milenko
Kreća).
Key issues on which the Court had to make a
decision:
1. Does the Court’s jurisdiction extend to
events prior to 27 April 1992?
2. Does the Court deem that genocide has
been committed by Serbia against
Croats in the Republic of Croatia?
3. Does the Court deem that Serbia’s
counter-claim sustains claims of
genocide against Serbs in the Republic of
Croatia during and after Operation
“Storm”?
Conclusions of the Court to these issues:
1. The Court rejected Serbia’s objection
that the jurisdiction of the Court does
not extend to events prior to 27 April
1992, by eleven votes to six. By this
decision the Court confirmed its
jurisdiction to examine all events and
evidence presented by Croatia. Hence,
this confirmed the jurisdiction of the
Court for events prior to 27 April 1992.
2. The Court rejected Croatia’s claim, with
a majority of 15 votes, while the
genocide against Croats has been
proven (Judge Vukas and Judge Cançado
Trindade).
3. The Court unanimously rejected Serbia’s
counter-claim.
Examination of Croatia’s claim
Considering Croatia’s claim, the Court
underlined that the following two constituent
elements had to be established to prove
genocide:
 ACTUS REUS – physical element of
genocide, hence specific events that
constitute the elements of genocide
pursuant the definition contained in the
Convention, and those are (a) killing
members of the group, (b) causing
serious bodily or mental harm to
members of the group, (c) deliberately
inflicting on the group conditions of life
calculated to bring about its physical
destruction in whole or in part, (d)
imposing measures intended to prevent
births within the group and (e) forcibly
transferring children of the group to
another group
 MENS REA - mental element of
genocide, second element necessary to
prove genocide requires the intent to
destroy, in whole or in part, a specific
 group (national, ethnical, racial or
religious group) as such. Thus in order to
prove genocide it is necessary to
establish the dolus specialis, the special
intent to destroy, in whole or in part, a
protected group. The Court set the
criteria that special intent will only be
considered in the presence of direct
proof of such intent (a State plan which
contains the intent to commit genocide)
or if the intent can be indirectly inferred
from a pattern of conduct. However, in
reference to indirect inference of
genocidal intent, in its 2007 Judgment
the Court already held that a pattern of
conduct can be accepted as evidence of
the existence of genocidal intent, and
that it is necessary and sufficient that
this is the only inference that could
reasonably be drawn from the acts in
question, not leaving room for
alternative interpretations.
CONCLUSION: Based on the evidence, the Court
concluded that the JNA and Serb forces
committed a large number of killings in several
locations in Croatia. The Court also concluded
that the large majority of victims were members
of the protected group, from which can be
deduced that they were systematically targeted.
In addition the Court concluded that Serbia did
not dispute the fact of the killings, although it
contested the number of the persons killed and
other circumstances. The Court found that
conclusive evidence supports the claims that
killings of members of the protected group were
committed and that the actus reus of genocide
has been established as specified in Article II (a)
of the Genocide Convention.
The Court then examined Croatia’s evidence on
physical injuries, ill-treatments and acts of
torture, rape and sexual violence within the
meaning of Article II (b) causing serious bodily
or mental harm to members of the group of the
Genocide Convention. The Court focused on the
evidence for numerous locations and
established such violations in: Vukovar (with
emphasis on events at the Vukovar Hospital and
transfer of prisoners to Ovčara and Velepromet,
the Court gave particular weight to the
statement of the witness who testified about
these events before the Court), Bapska,
Tovarnik, Berak, Lovas, Dalj, Voćin, Đulovac.
Knin (with special emphasis on the detention of
prisoners at the hospital in Knin and the JNA
barracks). In the aforementioned locations the
Court concluded that Croatia has proven that
acts of torture and sexual violence were
perpetrated.
CONCLUSION: The Court concluded that during
the war in many locations in Eastern and
Western Slavonia, and Dalmatia, the JNA and
Serb forces injured members of the protected
group, committing acts of ill-treatment, torture,
sexual violence and rape, which contributed to
the physical and biological destruction of the
protected group, as a whole or in part, which
establish the actus reus of genocide.
The Court also examined evidence of the
deliberate infliction on the group conditions of
life calculated to bring about its physical
destruction in whole or in part, as well as
evidence of imposed measures intended to
prevent births within the group. Although the
Court established that numerous committed
crimes fall within this definition, it nonetheless
concluded that they did not contribute to the
physical or biological destruction of the group, in
whole or in part, hence the actus reus of
genocide could not be established.
In the conclusion of the Court on the actus reus
of genocide, the Court states that it is fully
convinced that, in various localities in Eastern
Slavonia, Western Slavonia, Banovina/Banija,
Kordun, Lika and Dalmatia, the JNA and Serb
forces perpetrated crimes against Croats (as
members of the protected group), and that the
actus reus of genocide has been established.
Examination of Croatia’s claims on
genocidal intent (dolus specialis)
With a view to the fact that the Court
established the actus reus, it examined the
evidence in support of the claim of the special
intent to commit genocide. To this effect, the
Court found that the Croats who lived in the
targeted regions constitute a substantial part
of the protected group and represented a
substantial part of the Croats living in these
regions. In addition, the Court established a
pattern of conduct during the commission of
the crimes and concluded that a similar modus
operandi is evident in various regions of Croatia.
The Court also considered the context in which
the crimes were committed, for which Croatia
claimed that they occurred in the areas
intended by Serbia for the creation of a
“Greater Serbia”. It is of great importance that
the Court considered and explicitly agreed with
ICTY findings, that the leadership of Serbia and
that of the Serbs in Croatia, inter alia, shared
the objective of creating an ethnically
homogeneous Serb State, and that this was the
context in which acts were committed that
constitute the actus reus of genocide within
the meaning of Article II (a) and (b) of the
Convention. However, according to the
conclusions of the ICTY, those acts constituting
the actus reus of genocide were not committed
with intent to destroy the Croats, but rather
with that of forcing them to leave the regions
concerned so that an ethnically homogeneous
Serb State could be created. The Court
therefore could not conclude that genocidal
intent is the only reasonable inference to be
drawn from this context. The Court also
considered the use of opportunities to commit
acts of genocide against persons detained in
camps and took into account the total number
of persons killed. The Court drew the conclusion
that the JNA and Serb forces did not kill all
captured Croats and that 12500 Croat deaths
represent a relatively small number of victims in
relation to the size of the targeted part of the
group. Although the Court established a
pattern of conduct during the commission of
acts of genocide against the protected group, it
is of the opinion that it cannot be concluded
that the only reasonable inference that can be
drawn from the pattern of conduct was the
intent to destroy, in whole or in part, the Croat
group from the commission of these genocidal
acts. Acts constituting the elements of genocide
were not committed with the special intent
required for them to be characterized as acts of
genocide.
Pursuant to the Court’s conclusion that special
intent has not been established by Croatia, an
essential element of genocide, Croatia’s claim
must be dismissed in its entirety.
International Court of Justice Decides Costa
Rica–Nicaragua Cases (December 16, 2015)
On December 16, 2015, the International Court
of Justice (Court) issued its decision in the
joined cases concerning Certain Activities
carried out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua) and Construction of a
Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica). According to
the press release, Costa Rica alleged “that
Nicaragua invaded and occupied Costa Rican
territory, that it dug a channel thereon, and that
it conducted works (notably dredging of the San
Juan River) in violation of its international
obligations,” while Nicaragua instituted
proceedings against Costa Rica for the alleged
breach of procedural and substantive
obligations relating to the construction of a
road along the San Juan river. Regarding Costa
Rica’s argument, the Court found that “the
activities carried out by Nicaragua in the
disputed territory since 2010, including the
excavation of three caños [channels] and
establishment of a military presence in parts of
that territory, were in breach of Costa Rica’s
territorial sovereignty, and that Nicaragua
consequently incurs the obligation to make
reparation for the damage caused by its
unlawful activities on Costa Rican territory.” In
order to determine the parties’ claims to the
area in questions, the Court “recall[ed] that the
Parties concluded a Treaty of Limits in 1858
(hereinafter the ‘1858 Treaty’), which fixed the
course of the boundary” and was affirmed by
“the 1888 Arbitral Award of United States
President Grover Cleveland.” Regarding
Nicaragua’s alleged breach of its procedural
obligations, the Court found that no
environmental impact assessment (EIA) was
necessary, since the “the dredging programme
was of a limited scope and [did not] give rise to
a risk of significant transboundary harm.” Since
no assessment was required, Nicaragua had no
duty to notify and consult with Costa Rica. The
Court further found that since Costa Rica had
produced no evidence that “the dredging
programme caused harm to its wetland or
resulted in a significant reduction in the flow of
the Colorado River,” Nicaragua “had not
breached its obligations concerning prevention
of transboundary harm.”
Turning to Nicaragua’s claims, the Court found
that “the construction of the road by Costa Rica
carried a risk of significant transboundary harm
[and] [t]herefore, the threshold for triggering
the obligation to evaluate the environmental
impact of the road project was met.” The Court
determined that Costa Rica had “not shown the
existence of an emergency that could
potentially justify constructing the road without
undertaking an environmental impact
assessment.” The Court noted that “the studies
carried out by Costa Rica were post hoc
assessments which evaluated the
environmental impact of stretches of the road
already built, not the risk of future harm” and
were thus not in compliance with EIA
requirements. Further, “since Costa Rica has not
complied with its obligation to perform an
environmental impact assessment prior to the
construction of the road, the Court cannot
determine whether Costa Rica was required
under general international law to notify, and
consult with, Nicaragua.” Turning to the
“obligation to exercise due diligence to prevent
causing significant transboundary harm,” the
Court “note[d] that the amount of sediment
due to the construction of the road which is
delivered to the river is at most 2 per cent of
the river’s total load,” which could not be
characterized as “significant harm.” It further
found that “Nicaragua has not shown that
sediment due to the construction of the road
has caused significant harm to the morphology
and navigability of the San Juan River and the
Lower San Juan, that such sediment significantly
increased Nicaragua’s dredging burden, or that
the construction of the road has caused
significant harm to the river’s ecosystem, its
water quality or caused any other harm,”
therefore concluding that “Nicaragua has not
proved that the construction of the road caused
significant transboundary harm.” Finally, the
Court addressed “Nicaragua’s claim that the
dumping of sediment and creation of sediment
deltas constituted a violation of its territorial
integrity and sovereignty over the San Juan
River” and decided that “Costa Rica did not
exercise any authority on Nicaragua’s territory
and did not carry out any activity thereon.”