G.R. No.

212426 ASSESSMENTS RAYMUND JOSE QUILOP AS

CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, NEGOTIATING PANEL FOR THE PHILIPPINES ON
FRANCISCO "DODONG" NEMENZO, JR., SR. MARY JOHN EDCA, Respondents.
MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE"
SALONGA, H. HARRY L. ROQUE, JR., EVALYN G. URSUA, x-----------------------x
EDRE U. OLALIA, DR. CAROL PAGADUAN-ARAULLO, DR.
ROLAND SIMBULAN, AND TEDDY CASIÑO, Petitioners, KILUSANG MAYO UNO, REPRESENTED BY ITS
vs. CHAIRPERSON, ELMER LABOG, CONFEDERATION FOR
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., UNITY, RECOGNITION AND ADVANCEMENT OF
DEPARTMENT OF NATIONAL DEFENSE SECRETARY GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED
VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS BY ITS NATIONAL PRESIDENT FERDINAND GAITE,
SECRETARY ALBERT DEL ROSARIO, JR., DEPARTMENT NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG
OF BUDGET AND MANAGEMENT SECRETARY MAYO UNO, REPRESENTED BY ITS NATIONAL
FLORENCIO ABAD, AND ARMED FORCES OF THE PRESIDENT JOSELITO USTAREZ, NENITA GONZAGA,
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. VIOLETA ESPIRITU, VIRGINIA FLORES, AND ARMANDO
BAUTISTA, Respondents. TEODORO, JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.
x-----------------------x
FACTS:
G.R. No. 212444

BAGONG ALYANSANG MAKABAYAN (BAYAN), Petitioners claim the Court erred when it ruled that the Enhanced
REPRESENTED BY ITS SECRETARY GENERAL RENATO M. Defense Cooperation Agreement (EDCA) between the Philippines
REYES, JR., BAYAN MUNA PARTY-LIST and the US was not a treaty. In connection to this, petitioners move
REPRESENTATIVES NERI J. COLMENARES AND CARLOS that EDCA must be in the form of a treaty in order to comply with
ZARATE, GABRIELA WOMEN'S PARTY-LIST the constitutional restriction under Section 25, Article· XVIII of
REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE the 1987 Constitution on foreign military bases, troops, and
JESUS, ACT TEACHERS PARTY-LIST REPRESENTATIVE facilities. Additionally, they reiterate their arguments on the issues
ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST of telecommunications, taxation, and nuclear weapons.
REPRESENTATIVE FERNANDO HICAP, KABATAAN
PARTY-LIST REPRESENTATIVE TERRY RIDON, The principal reason for the Motion for Reconsideration is
MAKABAYANG KOALISYON NG MAMAMAYAN evidently petitioners’ disagreement with the Decision that EDCA
(MAKABAYAN), REPRESENTED BY SATURNINO OCAMPO implements the VFA and Mutual Defense Treaty (MDT).
AND LIZA MAZA, BIENVENIDO LUMBERA, JOEL C.
LAMANGAN, RAFAEL MARIANO, SALVADOR FRANCE,
Petitioners argue that EDCA’s provisions fall outside the allegedly
ROGELIO M. SOLUTA, AND CLEMENTE G.
limited scope of the VFA and MDT because it provides a wider
BAUTISTA, Petitioners,
arrangement than the VFA for military bases, troops, and facilities,
vs.
and it allows the establishment of U.S. military bases.
DEPARTMENT OF NATIONAL DEFENSE (DND)
SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF
FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, SSUE:

EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,

ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF Whether or not EDCA is a treaty.
GENERAL EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY PIO LORENZO BATINO, Petitioners detail their objections to EDCA in a similar way to their
AMBASSADOR LOURDES YPARRAGUIRRE, original petition, claiming that the VFA and MDT did not allow
AMBASSADOR J. EDUARDO MALAYA, DEPARTMENT OF EDCA to contain the following provisions:
JUSTICE UNDERSECRETARY FRANCISCO BARAAN III,
AND DND ASSISTANT SECRETARY FOR STRATEGIC
1. Agreed Locations agreement is irrelevant for purposes of determining international
rights and obligations.

2. Rotational presence of personnel

However, this principle does not mean that the domestic law

3. U.S. contractors distinguishing treaties, international agreements, and executive

agreements is relegated to a mere variation in form, or that the
constitutional requirement of Senate concurrence is demoted to an
4. Activities of U.S. contractors
optional constitutional directive. There remain two very important
features that distinguish treaties from executive agreements and
SC ruled in Saguisag, et. al. that the EDCA is not a treaty despite
translate them into terms of art in the domestic setting.
the presence of these provisions. The very nature of EDCA, its
provisions and subject matter, indubitably categorize it as an
SC finds no reason for EDCA to be declared unconstitutional. It
executive agreement – a class of agreement that is not covered by
fully conforms to the Philippines’ legal regime through the MDT
the Article XVIII Section 25 restriction – in painstaking detail. To
and VFA. It also fully conforms to the government’s continued
partially quote the Decision:
policy to enhance our military capability in the face of various
military and humanitarian issues that may arise.
Executive agreements may dispense with the requirement of Senate
concurrence because of the legal mandate with which they are
concluded.

As culled from the deliberations of the Constitutional Commission,

past Supreme Court Decisions, and works of noted scholars,
executive agreements merely involve arrangements on the
implementation of existing policies, rules, laws, or agreements.

They are concluded

(1) to adjust the details of a treaty;

(2) pursuant to or upon confirmation by an act of the Legislature;

or

(3) in the exercise of the President’s independent powers under the

Constitution.

The special nature of an executive agreement is not just a domestic

variation in international agreements.

An international agreement may take different forms: treaty, act,

protocol, agreement, concordat, compromis
d’arbitrage, convention, covenant, declaration, exchange of notes,
statute, pact, charter, agreed minute, memorandum of
agreement, modus vivendi, or some other form.

Consequently, under international law, the distinction between a

treaty and an international agreement or even an executive
KHOSROW MINUCHER vs. HON. COURT OF APPEALS and ARTHUR  Certifications from officials of both the Philippine
SCALZO Department of Foreign Affairs and the United States
G.R. No. 142396 Embassy
February 11, 2003
 Participation of members of the Philippine Narcotics
Command in the “buy-bust operation” conducted at the
residence of Minucher at the behest of Scalzo
Facts

These may be inadequate to support the “diplomatic status” of the

Violation of the “Dangerous Drugs Act of 1972,” was filed against
latter but they give enough indication that the Philippine
Minucher following a “buy-bust operation” conducted by
government has given its imprimatur, if not consent, to the
Philippine police narcotic agents accompanied by Scalzo in the
activities within Philippine territory of agent Scalzo of the United
house of Minucher, an Iranian national, where heroin was said to
States Drug Enforcement Agency.
have been seized. Minucher was later acquitted by the court.

The job description of Scalzo has tasked him to conduct

Minucher later on filed for damages due to trumped-up charges of
surveillance on suspected drug suppliers and, after having
drug trafficking made by Arthur Scalzo.
ascertained the target, to inform local law enforcers who would

Scalzo on his counterclaims that he had acted in the discharge of then be expected to make the arrest.

his official duties as being merely an agent of the Drug

In conducting surveillance activities on Minucher, later acting as
Enforcement Administration of the United States Department of
the poseur-buyer during the buy-bust operation, and then becoming
Justice.
a principal witness in the criminal case against Minucher,

Scalzo subsequently filed a motion to dismiss the complaint on the

Scalzo hardly can be said to have acted beyond the scope of his
ground that, being a special agent of the United States Drug
official function or duties.
Enforcement Administration, he was entitled to diplomatic
immunity. He attached to his motion Diplomatic Note of the
A foreign agent, operating within a territory, can be cloaked with
United States Embassy addressed to DOJ of the Philippines and a
immunity from suit but only as long as it can be established that he
Certification of Vice Consul Donna Woodward, certifying that the
is acting within the directives of the sending state. The consent of
note is a true and faithful copy of its original. Trial court denied the
the host state is an indispensable requirement of basic courtesy
motion to dismiss.
between the two sovereigns.

ISSUE

Whether or not Arthur Scalzo is indeed entitled to diplomatic

immunity.

RULLING

YES.

A foreign agent, operating within a territory, can be cloaked with

immunity from suit as long as it can be established that he is acting
within the directives of the sending state.

The consent or imprimatur of the Philippine government to the

activities of the United States Drug Enforcement Agency, however,
can be gleaned from the undisputed facts in the case.

 The official exchanges of communication between agencies

of the government of the two countries
REPUBLIC OF INDONESIA vs. JAMES VINZON
G.R. No. 154705.
June 26, 2003
FACTS: Petitioner Vinzon entered into a Maintenance Agreement
with respondent. The maintenance agreement includes the
following specific equipments: air conditioning units, generator
sets, electrical facilities, water heaters and water motor pumps. The
agreement shall be effective for 4 years.
The new Minister Counselor allegedly found respondent's work
and services unsatisfactory and not in compliance with the
standards set in the Agreement. The respondent terminated the
agreement with the respondent. The latter claim that it was
unlawful and arbitrary. Respondent filed a Motion to Dismiss
alleging that the Republic of Indonesia, as a foreign state, has
sovereign immunity from suit and cannot be sued as party-
defendant in the Philippines.
ISSUE:
Whether or not the Republic of Indonesia can invoke the doctrine
of sovereign immunity from suit.
HELD: The mere entering into a contract by a foreign state with a
private party cannot be construed as the ultimate test of whether or
not it is an act juri imperii or juri gestionis. Such act is only the
start of the inquiry. There is no dispute that the establishment of a
diplomatic mission is an act juri imperii. The state may enter into
contracts with private entities to maintain the premises, furnishings
and equipment of the embassy. The Republic of Indonesia is acting
in pursuit of a sovereign activity when it entered into a contract
with the respondent. The maintenance agreement was entered into
by the Republic of Indonesia in the discharge of its governmental
functions. It cannot be deemed to have waived its immunity from
suit.
The rules of International Law, however, are not unbending or
immune to change. The increasing need of sovereign States to enter
into purely commercial activities remotely connected with the
discharge of their governmental functions brought about a new
concept of sovereign immunity. This concept, the restrictive
theory, holds that the immunity of the sovereign is recognized only
with regard to public acts or acts jure imperii (public acts of the
government of a state), but not with regard to private acts or
acts jure gestionis (the commercial activities of a state.)
1. The Supreme Court ruled that the republic of Indonesia
cannot be deemed to have waived its immunity to suit. The
mere entering into a contract by a foreign state with a private
party cannot be construed as the ultimate test of whether or
not it is an act juri imperii or juri gestionis. Such act is only
the start of the inquiry. There is no dispute that the
establishment of a diplomatic mission is an act juri imperii.
The state may enter into contracts with private entities to
maintain the premises, furnishings and equipment of the
embassy. The Republic of Indonesia is acting in pursuit of a
sovereign activity when it entered into a contract with the
respondent. The maintenance agreement was entered into by
the Republic of Indonesia in the discharge of its governmental
functions. It cannot be deemed to have waived its immunity
from suit.
2. Article 31 of the Vienna Convention on Diplomatic Relations
provides that a diplomatic agent shall enjoy immunity from
the criminal jurisidiction of the receiving State. He shall also
enjoy immunity from its civil and administrative jurisdiction,
except in the case of:
 a real action relating to private
immovable property situated in the
territory of the receiving State, unless
he holds it on behalf of the sending
State for the purposes of the mission;
 an action relating to succession in
which the diplomatic agent is
involved as executor, administrator,
heir or legatee as a private person
and not on behalf of the sending
State;
 an action relating to any professional
or commercial activity exercised by
the diplomatic agent in the receiving
State outside his official functions.