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The Court ruled that Denmark was able to establish its intention to act as sovereign ISSUE: W/N Denmark has a valid title of sovereignty over Eastern Greenland. YES
and display of such authority over Greenland. In a long line of conventions and
treaties, there’s a stipulation which there’s a willingness on the part of the RULING: The Court is satisfied that Denmark has succeeded in establishing her
contracting States which Denmark has contracted with to admit her right to contention that at the critical date, July 10th, 1931, she possessed a valid title to
exclude Greenland. In accepting these bilateral and multilateral agreements as the sovereignty over all Greenland. Thus, any steps taken in this connection by
binding upon herself, Norway reaffirmed that she recognized the whole of the Norwegian Government, were illegal and invalid.
Greenland as Danish; and thereby she has debarred herself from contesting Danish
sovereignty over the whole of Greenland. RATIO:
1. The date at which such Danish sovereignty must have existed in order to
Also, M. Ilhen of Norway declared in 1919 that Norway would not obstruct the render the Norwegian occupation invalid is the date at which the
Danish plans in regard to Greenland. The Court considers this declaration sufficient occupation took place - July 10th, 1931.
to bind the Norwegian government. 2. IMPT: A claim to sovereignty is not based upon a particular act or title
such as a treaty of cession but upon continued display of authority,
Doctrine: which has 2 elements:
While treaties are generally in written form, there are writers who hold that even an a. the intention and will to act as sovereign
oral agreement can be binding. (From Bernas, see Ihlen Declaration below) b. some actual exercise or display of such authority.
1
aka Eirik Raudes Land (Carlsberg Fjord on the South and Bessel Fjord on the North) 2
land that is legally deemed to be unoccupied
and became tributary to the kingdom of Norway in the 13th century, but 6. There are various bilateral agreements concluded by Norway with
later disappeared. Denmark, and various multilateral agreements to which both Denmark
2. 1380 - the kingdoms of Norway and Denmark were united under the same and Norway were contracting Parties, in which Greenland has been
Crown. The King of Denmark and Norway displayed authority to an extent described as a Danish colony or as forming part of Denmark or in which
sufficient to give his country a valid claim to sovereignty from the Denmark has been allowed to exclude Greenland from the operation of
founding of the colonies by Hans Egede in 1721 up to 1814. the agreement. By ratifying such agreements, it is followed that Norway
3. 1814 - Denmark signed the Peace Treaty of Kiel, after a war that broke recognized whole of Greenland as part of Denmark. Examples of the
out between Denmark and Sweden and her allies. treaties:
a. In the treaty, the Kingdom of Norway, excluding Greenland, the a. Commercial Treaty between Denmark and the United Kingdoms
Faeroe Isles and Iceland, was seceded to Sweden. The treaty did of Sweden and Norway, which made reference to the Treaty of
not affect the King of Denmark’s possession over Greenland. Kiel.
4. Denmark stress that in a long line commercial conventions, a stipulation b. Universal Postal Conventions of 1920, 1924 and 1929: “the Faroe
has been inserted that the convention shall not apply to Greenland, like Isles and Greenland, as being part of Denmark”
“Article 6 of the Treaty of 1826 with the USA : The present Convention shall c. Treaty of 1826
not apply to the Northern possessions of His Majesty the King of Denmark, 2. In accepting these bilateral and multilateral agreements as binding upon
that is to say Iceland, the Færö Islands and Greenland...." herself, Norway reaffirmed that she recognized the whole of Greenland
a. The multilateral treaties show a willingness on the part of the as Danish; and thereby she has debarred herself from contesting Danish
contracting States with which Denmark has contracted to admit sovereignty over the whole of Greenland.
her right to exclude Greenland.
b. PCIJ says: To the extent that these treaties constitute evidence The Ihlen3 Declaration
of recognition of her sovereignty over Greenland in general, 1. This declaration by M. Ihlen has been relied on by Counsel for Denmark
Denmark is entitled to rely upon them. These treaties may also as a recognition of an existing Danish sovereignty in Greenland. But, the
be regarded as demonstrating sufficiently Denmark's will and Court is unable to accept this point of view.
intention to exercise sovereignty over Greenland. 2. Nevertheless, even if not constituting a definitive recognition of Danish
sovereignty, it constitute an engagement obliging Norway to refrain from
nd
Denmark’s 2 proposition and her exercise of authority: occupying any part of Greenland.
5. Even from 1921 to 1931, Denmark possessed sovereignty over all 3. What Denmark desired to obtain from Norway was that Norway should
Greenland and exercised her sovereign rights through: not obstruct the Danish plans in regard to Greenland. Minister Ihlen said
a. enforcement by legislation of a state trade monopoly, the "I told the Danish Minister today that the Norwegian Government would
granting of trading, mining, and other concessions granted for not make any difficulty in the settlement of this question."4
erection of telegraph lines, fixing limits on territorial waters, the 4. The Court considers this declaration sufficient to bind the Norwegian
exercise of governmental functions and administration, and the government. A reply given by the Minister for Foreign Affairs on behalf
making of numerous treaties in the terms of which Danish rights of his Government in response to a request by the diplomatic
over Greenland were explicit. representative of a foreign Power, is binding upon the country to which
the Minister belongs.
3
The reply given by M. Ihlen, the Norwegian Minister for Foreign Affairs, to the Danish Minister 4
Bernas cited this so IMPT!
on July 22nd, 1919
3. In order to found the jurisdiction of the Court, the Application relied on
[2] Australia v France & New Zealand v France Article 36, paragraph 1, and Article 37 of the Statute of the Court and
Article 17 of the General Act for the Pacific Settlement of International
I.C.J. 1974 I.C.J. 253, 457 | December 20, 1974 | Unilateral Acts | Abi Disputes done at Geneva on 26 September 1928, and, in the alternative,
Petitioner: on Article 36, paragraphs 2 and 5, of the Statute of the Court.
Respondents: 4. No pleadings were filed by the French Government, and it was not
represented at the oral proceedings; no formal submissions were
Recit-Ready: therefore made by that Government.
On 9 May 1973, Australia and New Zealand each instituted proceedings against 5. BACKGROUND FACTS: Since French Government raised the issue of
France concerning tests of nuclear weapons which France proposed to carry out in Jurisdiction, the ICJ decided to hear Preliminary issues before issue of
the atmosphere in the South Pacific region. illegality of Nuclear Testing. Before the case could be completed the
following events happened:
Before the case could be completed, France announced it had completed the test a. A note from the French Embassy was sent to the New Zealand
and did not plan any further test. So France moved for the dismissal of the Ministry of Foreign Affairs: "It should . . . be pointed out that the
application stating that the International Court of Justice to have no jurisdiction decision taken by the Office of the President of the French
and refrained from appearing at the public hearings or filing any pleadings. Republic to have the opening of the nuclear test series preceded
by a press communique represents a departure from the
practice of previous years. xxx France, at the point which has
Doctrine: been reached in the execution of its programme of defence by
nuclear means, will be in a position to move to the stage of
Declaration made through unilateral acts may have the effect of creating legal underground firings as soon as the test series planned for this
obligations. In this case, the statement made by the President of France must be summer is completed
held to constitute an engagement of the State in regard to the circumstances and b. the French Minister for Foreign Affairs, addressing the United
intention with which they were made. Therefore, these statement made by the Nations General Assembly, said that they will continue their
France are relevant and legally binding. nuclear testing underground.
c. the Minister of Defence held a press conference during which
Consequently, Australia and New Zealand lost the object their action consequently he stated twice, in almost identical terms, that there would not
the case must be dismissed. be any atmospheric tests in 1975 and that France was ready to
proceed to underground tests.
ISSUES:
FACTS:
1. May declaration made through unilateral act has effect of creating legal
1. Prior to the filing of the Application instituting proceedings in this case, obligations? Yes
the French Government had carried out atmospheric tests of nuclear 2. Whether the ICJ lost its jurisdiction due to these declarations? Yes
devices at its Centre d'experimentations du Pacifique in the territory of
French Polynesia Note: The purpose of the case of New Zealand and Australia was to stop from
2. By a letter, received in the Registry of the Court the same day, the doing Nuclear Testing for the reason that it was illegal
Ambassador of New Zealand to the Netherlands transmitted to the
Registrar an Application instituting proceedings against France, in
respect of a dispute concerning the legality of atmospheric nuclear tests
conducted by the French Government in the South Pacific region.
6. As was observed above, to have legal effect, there was no need for these
statements to be addressed to a particular State, nor was acceptance by
any other State required. The general nature and characteristics of these
RATIO: statements are decisive for the evaluation of the legal implications, and
it is to the interpretation of the statements that the Court must now
1. It is well recognized that declarations made by way of unilateral acts, proceed.
concerning legal or factual situations, may have the effect of creating 7. The Court is entitled to presume, at the outset, that these statements
legal obligations. When it is the intention of the State making the were not made in vacuo, but in relation to the tests which constitute the
declaration that it should become bound according to its terms, that very object of the present proceedings, although France has not
intention confers on the declaration the character of a legal undertaking, appeared in the case.
the State being thenceforth legally required to follow a course of 8. In announcing that the 1974 series of atmospheric tests would be the
conduct consistent with the declaration. An undertaking of this kind, if last, the French Government conveyed to the world at large, including the
given publicly, and with an intent to be bound, even though not made Applicant, its intention effectively to terminate these tests. It was bound
within the context of international negotiations, is binding. to assume that other States might take note of these statements and
2. In these circumstances, nothing in the nature of a quid pro quo, nor any rely on their being effective.
subsequent acceptance of the declaration, nor even any reply or reaction 9. The Court finds that the unilateral undertaking resulting from these
from other States, is required for the declaration to take effect, since statements cannot be interpreted as having been made in implicit
such a requirement would be inconsistent with the strictly unilateral reliance on an arbitrary power of reconsideration. The Court finds further
nature of the juridical act by which the pronouncement by the State was that the French Government has undertaken an obligation the precise
made. nature and limits of which must be understood in accordance with the
3. One of the basic principles governing the creation and performance of actual terms in which they have been publicly expressed.
legal obligations, whatever their source, is the principle of good faith. 10. Thus the Court faces a situation in which the objective of the Applicant
Trust and confidence are inherent in international co-operation, in has in effect been accomplished, inasmuch as the Court finds that
particular in an age when this co-operation in many fields is becoming France has undertaken the obligation to hold no further nuclear tests in
increasingly essential. Just as the very rule of pacta sunt servanda in the the atmosphere in the South Pacific.
law of treaties is based on good faith, so also is the binding character of 11. The Court, as a court of law, is called upon to resolve existing disputes
an international obligation assumed by unilateral declaration. Thus between States. Thus the existence of a dispute is the primary condition
interested States may take cognizance of unilateral declarations and for the Court to exercise its judicial function; it is not sufficient for one
place confidence in them, and are entitled to require that the obligation party to assert that there is a dispute, since "whether there exists an
thus created be respected. international dispute is a matter for objective determination" by the Court
4. Of the statements by the French Government now before the Court, the (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania
most essential are clearly those made by the President of the Republic. (First Phase), Advisory Opinion, I.C.J. Reports 1950, p. 74). The dispute
There can be no doubt, in view of his functions, that his public brought before it must therefore continue to exist at the time when the
communications or statements, oral or written, as Head of State, are in Court makes its decision. It must not fail to take cognizance of a
international relations acts of the French State. XXX Thus, in whatever situation in which the dispute has disappeared because the final
form these statements were expressed, they must be held to constitute objective which the Applicant has maintained throughout has been
an engagement of the State, having regard to their intention and to the achieved by other means. If the declarations of France concerning the
circumstances in which they were made. effective cessation of the nuclear tests have the significance described
5. The unilateral statements of the French authorities were made outside by the Court, that is to say if they have caused the dispute to disappear,
the Court, publicly and erga omnes, even if some of them were all the necessary consequences must be drawn from this finding.
communicated to the Government of New Zealand.
12. Once the Court has found that a State has entered into a commitment
concerning its future conduct it is not the Court's function to
contemplate that it will not comply with it.
only be authorized to proceed to the appointment of a third member if it were
[03] INTERPRETATION OF PEACE TREATIES WITH BULGARIA, HUNGARY AND
possible to constitute a Commission in conformity with the Treaty provisions.
ROMANIA
Petitioner:
1. This is an advisory opinion with the second phase of the question
Respondents:
concerning the Interpretation of Peace Treaties signed with Bulgaria,
Hungary, and Romania.
Recit-Ready: The General Assembly of the UN submitted to the International Court
2. On a Resolution on October 22, 1949, the General Assembly of the United
of Justice 4 questions (see below). In an Opinion given by the Court, it answered the
Nations (UN) submitted to the International Court of Justice for advisory
first 2 questions that the diplomatic exchanges disclosed the existence of disputes
opinion the following 4 questions:
subject to the Treaty provisions for the settlement of disputes and that the
I. Do the diplomatic exchanges between Bulgaria, Hungary and
Governments of Bulgaria, Hungary and Romania were under obligation to appoint
Romania, and certain Allied and Associated Powers signatories
their representatives to the Treaty Commissions. 30 days after the Opinion, the
to the Treaties of Peace, on the implementation of Article 2 of the
Secretary-General of the UN had not received information that any of the 3
Treaties with Bulgaria and Hungary and Article 3 of the Treaty
Governments of the countries concerned had appointed its representative to the
with Romania, disclose disputes subject to the provisions fir the
Treaty Commissions.
settlement of disputes contained in Article 36 of the Treaty of
Peace with Bulgaria, Article 40 of the Treaty of Peace with
WoN the provision empowering the Secretary-General to appoint the third member
Hungary, and Article 38 of the Treaty of Peace with Romania?
of the Commission applies to the present case, in which one of the parties refuses
to appoint its own representative to the Commission – NO.
In the event of an affirmative reply to question I:
Doctrine: The Secretary-General’s power to appoint a third member is derived solely
II. Are the Governments of Bulgaria, Hungary and Romania
from the agreement of the parties, as expressed in the dispute clause of the treaties.
obligated to carry out the provisions of the articles in question I,
By its very nature such clause was to be strictly construed and could be applied only
including the provisions for the appointment of their
in the case expressly provided thereby. The case contemplated in the Treaties was
representatives to the Treaty Commissions?
the failure of the parties to agree upon the selection of the third member and not the
case at hand, where there is a complete refusal of cooperation by refusing to appoint
In the event of an affirmative reply to question II and if, within 30 days
its own Commissioner.
from the date when the court delivers its opinion, the Governments
concerned have not notified the Secretary-General that they have
A change in the normal sequence of appointments is only justified when if it is
appointed their representatives to the Treaty Commissions, and the
shown by the attitude of the parties that they desired to reverse the process in
Secretary-General has so advised the International Court of Justice:
accordance with the terms of the Treaties. This was not the situation in this case.
Here, the appointment of the third member by the Secretary-General would result
III. If one party fails to appoint a representative to a Treaty
only in the constitution of a 2-member Commission, not the kind of Commission for
Commission under the Treaties of Peace with Bulgaria, Hungary
which the Treaties had provided.
and Romania where that party is obligated to appoint a
representative to the Treaty Commission, is the Secretary-
The decisions of a 2-member Commission would not have the same degree of moral
General of the UN authorized to appoint the 3rd member of the
authority as those of a 3-member Commission. Hence, the Secretary-General would
Commission upon the request of the other party to a dispute
according to the provisions of the respective Treaties?
In the event of an affirmative reply to question III: iii. failing such agreement within a month, his appointment
by the Secretary-General
IV. Would a Treaty Commission composed of a representative of 4. This normal order is followed in arbitration, and in the absence of any
one party and a third member appointed by the Secretary-General express provision to the contrary, there is no reason to suppose that the
of the UN constitute a Commission, within the meaning of the parties wished to depart from it.
relevant Treaty articles, competent to make a definitive and 5. A change in the normal sequence of appointments is only justified when
binding decision in settlement of a dispute? if it is shown by the attitude of the parties that they desired to reverse the
3. March 30, 1950: The Court answered the first question by saying that process in accordance with the terms of the Treaties.
diplomatic exchanges between Bulgaria, Hungary and Romania, and 6. This was not the situation in this case. Here, the appointment of the third
certain Allied and Associated Powers signatories to the Treaties of Peace member by the Secretary-General would result only in the constitution of
disclosed the existence of disputes subject to the Treaty provisions for a 2-member Commission, not the kind of Commission for which the
the settlement of disputes. It then answered the second question that the Treaties had provided.
Governments of Bulgaria, Hungary and Romania were under obligation to 7. The decisions of a 2-member Commission would not have the same
appoint their representatives to the Treaty Commissions. degree of moral authority as those of a 3-member Commission.
4. May 1, 1950: The Secretary-General of the UN had not received 8. Hence, the Secretary-General would only be authorized to proceed to the
information that any of the 3 Governments of the countries concerned had appointment of a third member if it were possible to constitute a
appointed its representative to the Treaty Commissions within 30 days of Commission in conformity with the Treaty provisions.
the Court’s Advisory Opinion. 9. The refusal of the Governments of Bulgaria, Hungary and Romania to
5. June 27 & 28, 1950: Court heard oral statements submitted by the appoint their representative to the Treaty Commissions after the Court
Government of the US and UK. had declared its Opinion is a refusal to fulfill a Treaty obligation which is
an international responsibility.
ISSUES: WoN the provision empowering the Secretary-General to appoint the third 10. Nevertheless, such refusal does not alter the conditions contemplated in
member of the Commission applies to the present case, in which one of the parties the Treaties for the exercise of the Secretary-General’s power of
refuses to appoint its own representative to the Commission – NO. appointment.
11. One could not remedy the breach of a Treaty obligation by creating a
RATIO: Commission which was not the kind of Commission contemplated by the
Treaties (2-member Commission). It was the Court's duty to interpret
1. The Secretary-General’s power to appoint a third member is derived solely Treaties, not to revise them.
from the agreement of the parties, as expressed in the dispute clause of 12. An arbitration commission may make a valid decision although the
the treaties. By its very nature such clause was to be strictly construed original number of its members, as fixed by the arbitration agreement, is
and could be applied only in the case expressly provided thereby. later reduced by a withdrawal of one of the commissioners. This does not
2. The case contemplated in the Treaties was the failure of the parties to permit, by analogy, the case at bar where the Secretary-General appoints
agree upon the selection of the third member and not the case at hand, a third member in circumstances other than those contemplated in the
where there is a complete refusal of cooperation by refusing to appoint Treaties, because this raises the question of the initial validity of the
its own Commissioner. constitution of the Commission.
3. The text of the Treaties intends that the appointment of both the national 13. Thus, the Court answered NO to the 3rd question and consequently it was
Commissioners should precede that of the third member. This results not necessary for the Court to consider the 4th question.
from the sequence of the events contemplated by the article:
i. appointment of a national Commissioner by each party
ii. selection of a third member by mutual agreement of the
parties
Punishment of the Crime of Genocide.1 Consequently, the UN General
Reservations to the Convention on the Prevention and Punishment of the Assembly requested the ICJ to give an Advisory Opinion on the following
Crime of Genocide (Advisory Opinion) questions:
General List No. 12 | May 28, 1951 | Treaties – Consent of States | ACP Bantolo
I. Can the reserving State be regarded as being a party to the Convention
Advisory Opinion by the International Court of Justice (ICJ) while still maintaining its reservation if the reservation is objected to by one
or more of the parties to the Convention but not by others?
Recit-Ready: The ICJ was asked by the UN General Assembly to give an Advisory II. If the answer to Question I is in the affirmative, what is the effect of the
Opinion to determine (1) which States can make valid reservations to the reservation as between the reserving State and:
Convention, (2) what kind of objections are valid, and (3) the legal effects of such a. The parties which object to the reservation?
objections. b. Those which accept it?
III. What would be the legal effect as regards the answer to Question I if an
As regards the questions of WHO can make valid reservations and the LEGAL objection to a reservation is made:
EFFECTS of such reservation, the ICJ answered that even a non-signatory State a. By a signatory which has not yet ratified?
can make an objection to the Convention despite not being a signatory. Although b. By a State entitled to sign or accede but which has not yet done
the non-signatory state only has a “provisional status” which is second to signatory so?
states whose reservations in contrast are amply safeguarded, the non-signatory
The procedure on notice was complied with and written statements were deposited
state can make a reservation which is considered indicative of the “eventual attitude
within the prescribed time limits by the following organizations:
of the signatory State when it becomes a party to the Convention.”
As regards WHAT kind of reservations may be made, the ICJ answered that “it is (1) The Organization of American States;
(2) The Union of Soviet Socialist Republics;
the compatibility of a reservation with the object and purpose of the Convention that
must furnish the criterion for the attitude of a State in making the reservation on (3) The Hashemite Kingdom of Jordan;
(4) The USA;
accession as well as for the appraisal by a State in objecting to the reservation.”
(5) The UK of Great Britain and Northern Ireland;
Thus, reference to the raison d’être or purpose of the Convention must be made.
(6) The UN Secretary-General;
Accordingly, it is “to condemn and punish genocide as ‘a crime under international
(7) Israel;
law’ ... which shocks the conscience of mankind and results in great losses to
(8) The International Labour Organization;
humanity ... .” Moreover, the ICJ made a categorical pronouncement that any State
entitled to be a party to the Convention CANNOT make an objection by virtue of its (9) Poland;
(10) Czechoslovakia;
“sovereignty”.
(11) The Netherlands;
Doctrine: (12) The People’s Republic of Romania;
§ The Convention on the Prevention & Punishment of the Crime of Genocide (13) The Ukrainian Soviet Socialist Republic;
does not deal with the private interests of the State. It deals with the (14) The People’s Republic of Bulgaria;
(15) The Byelorussian Soviet Socialist Republic; and
preservation of an element of international order.
§ Sovereignty as a defense cannot be sustained if it “could lead to a complete (16) The Republic of the Philippines.
disregard of the object and purpose of the Convention.”
§ Signatory-States who have not ratified the Convention only obtain a ISSUES: (1-4: Preliminary; 5-7: Substantive)
“provisional status” which are secondary to the favorable treatment
accorded to signatory-States who have ratified the Convention. 1. Whether “the making of an objection to a reservation made by a State to
the Convention ... constitutes a dispute.” (NO)
2. Whether "only States which are parties to the Convention are entitled to
FACTS: On 16 Nov. 1950, “some States” in the UN General Assembly objected to interpret it or seek an interpretation of it." (NO)
a reservation made by “States” to the Convention on the Prevention &
1
I looked this up on Wiki. The States who made the reservation are the following: (1) Malaysia Finland, Greece, Ireland, Italy, Mexico, Netherlands, Norway, Spain, Sweden, United Kingdom);
(opposed by Netherlands, UK); (2) the Philippines (opposed by Norway); (3) Rwanda (opposed (6) Vietnam (reservation opposed by UK); and (7) Yemen (opposed by UK).
by UK); (4) Singapore (reservation opposed by UK); (5) USA (opposed by Denmark, Estonia,
1
3. Whether "there exists no dispute in the present case and that, 3. Whether “there exists no dispute in the present case and that,
consequently, the effect of Article IX is to deprive the Court, not only of consequently, the effect of Article IX is to deprive the Court, not only
any contentious jurisdiction, but also of any power to give an Advisory of any contentious jurisdiction, but also of any power to give an
Opinion." (NO) Advisory Opinion.” (NO)
4. Whether "a contracting State which has made a reservation can, while still § The existence of a procedure for the settlement of disputes, such as that
maintaining it, be regarded as being a party to the Convention." (YES) provided by Article IX, does not in itself exclude the Court's advisory
5. "[W]hat kind of reservations can be made and what kind of objections may jurisdiction, for Article 96 of the Charter confers upon the General
be taken to them." Assembly and the Security Council in general terms the right to request
6. Whether "any State entitled to become a party to the Genocide this Court to give an Advisory Opinion "on any legal question".
Convention may do so while making any reservation it chooses by virtue § Further, Article IX, before it can be applied, presupposes the status of
of its sovereignty." (NO) "contracting parties"; consequently, it cannot be invoked against a request
7. Whether a non-signatory State can make an objection to the Convention. for an Opinion the very object of which is to determine, in relation to
(YES) reservations and objections thereto, the conditions in which a State can
become a party. (emphasis supplied)
RATIO: (chronological discussion)
4. Whether “a contracting State which has made a reservation can,
1. Whether “the making of an objection to a reservation made by a while still maintaining it, be regarded as being a party to the
State to the Convention ... constitutes a dispute.” (NO) Convention.” (YES)
§ The object of this request for an Opinion is to guide the United Nations in § GR: It is well established that in its treaty relations a State cannot be
respect of its own action. It is indeed beyond dispute that the General bound without its consent, and that consequently no reservation can be
Assembly, which drafted and adopted the Genocide Convention, and the effective against any State without its agreement thereto.
Secretary-General, who is the depositary of the instruments of ratification § XPN: It is also a generally recognized principle that a multilateral
and accession, have an interest in knowing the legal effects of convention is the result of an agreement freely concluded upon its clauses
reservations to that Convention and more particularly the legal effects of and that consequently none of the contracting parties is entitled to
objections to such reservations. frustrate or impair, by means of unilateral decisions or particular
agreements, the purpose and raison d’être of the convention.
2. Whether “only States which are parties to the Convention are § To this principle was linked the notion of the integrity of the convention as
entitled to interpret it or seek an interpretation of it.” (NO) adopted, a notion which in its traditional concept involved the proposition
§ In these circumstances, there can be no doubt that the precise that no reservation was valid unless it was accepted by all the contracting
determination of the conditions for participation in the Convention parties without exception, as would have been the case if it had been
constitutes a permanent interest of direct concern to the United Nations stated during the negotiations.
which has not disappeared with the entry into force of the Convention. § This concept, which is directly inspired by the notion of contract, is of
§ Moreover, the power of the General Assembly to request an Advisory undisputed value as a principle.
Opinion from the Court in no way impairs the inherent right of States o It must also be pointed out that although the Genocide
parties to the Convention in the matter of its interpretation. This right is Convention was finally approved unanimously, it is nevertheless
independent of the General Assembly's power and is exercisable in a the result of a series of majority votes. The majority principle,
parallel direction. while facilitating the conclusion of multilateral conventions, may
§ Furthermore, States which are parties to the Convention enjoy the faculty also make it necessary for certain States to make reservations.
of referring the matter to the Court in the manner provided in Article IX of o In this state of international practice, it could certainly not be
the Convention. inferred from the absence of an article providing for reservations
in a multilateral convention that the contracting States are
prohibited from making certain reservations. Account should also
2
be taken of the fact that the absence of such an article or even which adopted it that as many States as possible should
the decision not to insert such an article can be explained by the participate. The complete exclusion from the Convention of one
desire not to invite a multiplicity of reservations. or more States would not only restrict the scope of its application,
o In this connection, the following passage may be quoted from the but would detract from the authority of the moral and
comments on the draft Convention prepared by the Secretary- humanitarian principles which are its basis.
General : “.... (1) It would seem that reservations of a general § It follows that it is the compatibility of a reservation with the object
scope have no place in a convention of this kind which does and purpose of the Convention that must furnish the criterion for the
not deal with the private interests of a State, but with the attitude of a State in making the reservation on accession as well as
preservation of an element of international order .... ;” for the appraisal by a State in objecting to the reservation. (emphasis
(emphasis supplied) supplied)
o Any other view would lead either to the acceptance of
5. “[W]hat kind of reservations can be made and what kind of reservations which frustrate the purposes which the General
objections may be taken to them.” Assembly and the contracting parties had in mind, or to
§ The solution of these problems must be found in the special recognition that the parties to the Convention have the power of
characteristics of the Genocide Convention. The origins of the Convention excluding from it the author of a reservation, even a minor one,
show that it was the intention of the United Nations to condemn and which may be quite compatible with those purposes.
punish genocide as "a crime under international law" involving a denial of
the right of existence of entire human groups, a denial which shocks the 6. Whether “any State entitled to become a party to the Genocide
conscience of mankind and results in great losses to humanity, and which Convention may do so while making any reservation it chooses by
is contrary to moral law and to the spirit and aims of the United Nations virtue of its sovereignty.” (NO)
(Resolution 96 (1) of the General Assembly, December 11th 1946). § The Court cannot share this view. It is obvious that so extreme an
o The first consequence arising from this conception is that the application of the idea of State sovereignty could lead to a complete
principles underlying the Convention are principles which are disregard of the object and purpose of the Convention.
recognized by civilized nations as binding on States, even without
any conventional obligation. It results from the foregoing considerations that Question 1, on account of its
o A second consequence is the universal character both of the abstract character, cannot be given an absolute answer. The appraisal of a
condemnation of genocide and of the Cooperation required "in reservation and the effect of objections that might be made to it depend upon
order to liberate mankind from such an odious scourge." the particular circumstances of each individual case.
§ The Genocide Convention was therefore intended by the General
Assembly and by the contracting parties to be definitely universal in 7. Whether a non-signatory State can make an objection to the
scope. It was in fact approved on December 9, 1948, by a resolution which Convention. (YES)
was unanimously adopted by fifty-six States. § [T]he Court considers that signature constitutes a first step to participation
§ In such a convention the contracting States do not have any interests of in the Convention.
their own; they merely have, one and all, a common interest, namely, the § It is evident that without ratification, signature does not make the signatory
accomplishment of those high purposes which are the raison d'être of the State a party to the Convention; nevertheless, it establishes a
convention. provisional status in favour of that State. This status may decrease in
o Consequently, in a convention of this type one cannot speak of value and importance after the Convention enters into force. But, both
individual advantages or disadvantages to States, or of the before and after the entry into force, this status would justify more
maintenance of a perfect contractual balance between rights and favourable treatment being meted out to signatory States in respect of
duties. objections than to States which have neither signed nor acceded.
o The object and purpose of the Genocide Convention imply that it (emphasis supplied)
was the intention of the General Assembly and of the States
3
§ Pending ratification, the provisional status created by signature confers Question 1 only upon ratification. Until that moment it merely serves as a notice
upon the signatory a right to formulate as a precautionary measure to the other State of the eventual attitude of the signatory State;
objections which have themselves a provisional character. These would (b) that an objection to a reservation made by a State which is entitled to sign
disappear if the signature were not followed by ratification, or they would or accede but which has not yet done so, is without legal effect.
become effective on ratification.
§ Until this ratification is made, the objection of a signatory State can
therefore not have an immediate legal effect in regard to the reserving
State. It would merely express and proclaim the eventual attitude of the
signatory State when it becomes a party to the Convention.
§ The legal interest of a signatory State in objecting to a reservation
would thus be amply safeguarded. (emphasis supplied)
o The reserving State would be given notice that as soon as the
constitutional or other processes, which cause the lapse of time
before ratification, have been completed, it would be confronted
with a valid objection which carries full legal effect and
consequently, it would have to decide, when the objection is
stated, whether it wishes to maintain or withdraw its reservation.
o In the event of no ratification occurring, the notice would merely
have been in vain.
DISPOSITION:
For these reasons,
THE COURT IF OF OPINION
In so far as concerns the Convention on the Prevention and Punishment of the
Crime of Genocide, in the event of a State ratifying or acceding to the
Convention subject to a reservation made either on ratification or on accession,
or on signature followed by ratification,
On Question I :
by seven votes to five,
that a State which has made and maintained a reservation which has been
objected to by one or more of the parties to the Convention but not by others,
can be regarded as being a party to the Convention if the reservation is
compatible with the object and purpose of the Convention; otherwise, that State
cannot be regarded as being a party to the Convention.
On Question II:
by seven votes to five,
(a) that if a party to the Convention objects to a reservation which it considers
to be incompatible with the object and purpose of the Convention, it can in fact
consider that the reserving State is not a party to the Convention;
(b) that if, on the other hand, a party accepts the reservation as being compatible
with the object and purpose of the Convention, it can in fact consider that the
reserving State is a party to the Convention;
On Question III:
by seven votes to five,
(a) that an objection to a reservation made by a signatory State which has not
yet ratified the Convention can have the legal effect indicated in the reply to
4
(1) The continued presence of South Africa in Namibia is illegal and
[5] LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF South Africa is under obligation to withdraw its administration from
SOUTH AFRICA IN NAMIBIA (SOUTH WEST AFRICA) NOTWITHSTANDING Namibia;
SECURITY COUNCIL RESOLUTION 276 (1970) (2) That States Members of the United Nations are under obligation to
recognize the illegality of South Africa's presence in Namibia, the
Advisory Opinion of 21 June 1971 | 21 June 1971 | Sources of International Law | invalidity of its acts, and to refrain from any acts and in particular
Francis Beltrán any dealings with the Government of South Africa implying
recognition of the legality of, or lending support to, such presence
Recit-Ready: and administration; and
1. After the end of the First World War, South Africa was given by the League (3) That it is incumbent upon States which are not Members of the
of Nations the Mandate over South West Africa (Namibia). The United Nations to give assistance, within the scope of subparagraph
obligations of South Africa as Mandatory is to civilize South West Africa (2) above, in the action which has been taken by the United Nations
and annually and when necessary, submit reports concerning the territory with regard to Namibia.
to the League of Nations. 3. After the end of the First World War, the control of the German colony of
2. When the League of Nations was dismantled, the United Nations replaced South West Africa (Namibia) is transferred to South Africa as a League
its former function as supervisor of the Mandate System. of Nations Mandate.
3. South Africa requested from the UN the incorporation of the territory, but 4. The mandate system was intended to grant the tutelage of peoples “not
the UN did not accede. South Africa then stopped sending supervisory yet able to stand by themselves”, to the guidance of “advanced nations”.
reports to the UN and maintained that it no longer had any obligation The latter would become Mandatories on behalf of the League of
under the Mandate as the League of Nations is no more and thus the Nations until such a time the former are “able to stand by themselves”.
Mandate had lapsed. 5. South Africa’s acceptance of the mandate came with it the assumption
4. The Court provides that South Africa had materially breached the of obligations not only in a moral but also of a legal and binding
Mandate agreement, which is in force as a Treaty or a Covenant. Under character; and as corollary to this trust, South Africa was to give
the VCLT material breach of a Treaty is a ground for its repudiation – and “securities” in the form of legal accountability. The Mandatory was to
thus the Court found that South Africa’s Mandate is no longer existing and give annual reports in reference to the territory it was in charge of.
its continued occupation of South West Africa is illegal. 6. Contrary therefore to the position of South Africa, the Mandate did not
Doctrine: give rise to annexation but of a trust relationship. The purpose of such
1. Treaties will continue to be in effect notwithstanding the demise of the “sacred trust of civilization” is the development of the non-self-governing
International Organization that helped facilitate its formation and territories.
conclusion (?) 7. Despite the demise of the League of Nations, the Mandate system
continues in effect as evidenced by resolution by the Assembly providing
for its continuation, and provisions in the UN Charter to the same effect.
The obligations of the Mandatory remain unimpeded and the supervisory
FACTS: functions of the League of Nations is now to be exercised by the UN.
8. The Government of South Africa proposed to the UN the incorporation of
1. The UN Secretary General transmitted to the President of the ICJ a the territory, which the UN denied and instead recommended that South
request for an advisory opinion to the following query: “What are the West Africa be placed under the international trusteeship system of the
legal consequences for States of the continued presence of South Africa UN.
in Namibia, notwithstanding Security Council resolution 276 (1970)”? 9. The Government of South Africa then halted the submission of special
2. The Court reached the following conclusions: reports to the UN “in the interest of efficient administration.” South
Africa was then of the position that the demise of the League of Nations
meant that the Mandate had lapsed and that they are no longer subject
to any legal obligation as regards South West Africa. South Africa 5. The Court thus finds South Africa’s occupation illegal, and therefore they
maintained its occupation under the justification of: (a) conquest; (b) have the obligation to put an end to it and withdraw its administration
long occupation; (c) continuation of the sacred trust; and (d) because its from the Territory of Namibia. By maintaining the present illegal
administration is beneficial to the inhabitants of the territory and is situation, and occupying the Territory without title, South Africa incurs
desired by them. international responsibilities arising from a continuing violation of an
10. The UN called upon South Africa to perform its obligations under the international obligation. It also remains accountable for any violations of
Mandate. The UN finally called upon all States administering Mandate its international obligations, or of the rights of the people of Namibia.
territories to submit trusteeship agreements. All States except South The fact that South Africa no longer has any title to administer the
Africa either placed their territories under the trusteeship agreement or Territory does not release it from its obligations and responsibilities
gave them independence. under international law towards other States in respect of the exercise of
11. The UN conducted negotiations with South Africa not insisting on the its powers in relation to this Territory. Physical control of a territory, and
conclusion of a trusteeship agreement but instead a system of not sovereignty or legitimacy of title, is the basis of State liability for acts
supervision “not exceeding that which is applied under the Mandate affecting other States.
system”. South Africa still refused and further negotiations bore no fruit.
ISSUES:
1. WON the demise of the League of Nations meant that South Africa’s
Mandate had lapsed and that they are no longer subject to any legal
obligation as regards South West Africa.
- NO
RATIO:
1. According to the Court, the Mandate is an International Agreement
having the character of a Treaty or Convention.
2. The rules laid down by the VCLT provides that termination of a treaty is
justified ONLY if it is due to a material breach – being (a) a repudiation
of the treaty not sanctioned by the present Convention; and (b) the
violation of a provision essential to the accomplishment of the object
or purpose of the treaty.
3. General Assembly resolution 2145 (XXI) determines that both forms of
material breach had occurred in this case. By stressing that South Africa
"has disavowed the Mandate", the General Assembly declared in fact
that it had repudiated it. The resolution in question is therefore to be
viewed as the exercise of the right to terminate a relationship in case of
a deliberate and persistent violation of obligations which destroys the
very object and purpose of that relationship.
4. General Assembly resolution 2145 (XXI), after declaring the termination
of the Mandate, added in "that South Africa has no other right to
administer the Territory". The Court confirmed the validity of the
resolution as the lapse of the Mandate comes with it the lapse of the
authority of the Mandatory.
GOLDWATER v. CARTER Justice Powell ( cited in Bernas book): JUSTICIABLE BUT NOT RIPE FOR JUDICIAL
REVIEW
444 US. 996 | Dec. 13, 1979 | Termination of a treaty | Reina The Judicial Branch should not decide issues affecting the allocation of power between
the President and Congress until the political branches reach a constitutional impasse.
Petitioner: Barry Goldwater et al.
Otherwise, the Court would encourage small groups, or even individual Members, of
Respondent: James Earl Carter, President of the United States, et al.
Congress to seek judicial resolution of issues before the normal political process has the
opportunity to resolve the conflict.
Recit-Ready:
A few Members of Congress claim that President Carter’s action in terminating the treaty
No constitutional provision explicitly confers upon the President the power to terminate
with Taiwan has deprived Congress of their constitutional role with respect to a change in
treaties. Article II, Section 2, of the Constitution authorizes the President to make treaties
the supreme law of the land. The issue in this case is whether the president can terminate
with the advice and consent of the Senate. Article VI provides that treaties shall be a part
the defense treaty with Taiwan without congressional approval. This question was left
of the supreme law of the land. These provisions add support to the view that the text of
UNANSWERED as the Court ruled that the matter was not yet ripe for judicial review.
the Constitution does not unquestionably commit the power to terminate treaties to the
President alone.
Doctrine:
(This was what Fr. Bernas quoted in his book)
The present case involves neither review of the President's activities as Commander in
The Judicial Branch should not decide issues affecting the allocation of power between the
Chief nor impermissible interference in the field of foreign affairs. Such a case would arise
President and Congress until the political branches reach a constitutional impasse.
if the Court was asked to decide, for example, whether a treaty required the President to
Otherwise, the Court would encourage small groups, or even individual Members, of
order troops into a foreign country. But "it is error to suppose that every case or
Congress to seek judicial resolution of issues before the normal political process has the
controversy which touches foreign relations lies beyond judicial cognizance."
opportunity to resolve the conflict.
If the Congress, by appropriate formal action, had challenged the President's authority to
FACTS: terminate the treaty with Taiwan, the resulting uncertainty could have serious
consequences for our country. In that situation, it would be the duty of this Court to resolve
1. A few Members of Congress, including petitioner Barry Goldwater, claim that the issue.
President James Earl Carter’s action in terminating the treaty with Taiwan has
deprived Congress of their constitutional role with respect to a change in the supreme The Court has recognized that, in the area of foreign policy, Congress may leave the
law of the land. President with wide discretion that otherwise might run afoul of the nondelegation
2. Congress has taken no official action. doctrine. As stated in that case, "the President alone has the power to speak or listen as a
3. Although the Senate has considered a resolution declaring that Senate approval is representative of the Nation. He makes treaties with the advice and consent of the Senate;
necessary for the termination of any mutual defense treaty, no final vote has been but he alone negotiates." Resolution of this case would interfere with neither the
taken on the resolution. President's ability to negotiate treaties nor his duty to execute their provisions.
ISSUE: Justice Rehnquist: Q UESTION IS POLITICAL AND NONJUSTICIABLE
The basic question presented by the petitioners in this case is "political," and therefore
Whether or not President Carter can terminate the defense treaty with Taiwan without nonjusticiable because it involves the authority of the President in the conduct of our
approval from Congress. country's foreign relations and the extent to which the Senate or the Congress is
authorized to negate the action of the President.
RATIO:
NO DECISION WAS REACHED except to say that the matter was not yet ripe for judicial While the Constitution is express as to the manner in which the Senate shall participate in
review. the ratification of a treaty, it is silent as to that body's participation in the abrogation of a
treaty.
(The whole case just discussed the different opinions of the Justices so pls bear with me
huhu)
Since the political nature of the questions presented should have precluded the lower
courts from considering or deciding the merits of the controversy, the prior proceedings in
the federal courts must be vacated, and the complaint dismissed.
Congress has initiated the termination of treaties by directing or requiring the President to
give notice of termination, without any prior presidential request. Congress has annulled
treaties without any presidential notice. It has conferred on the President the power to
terminate a particular treaty, and it has enacted statutes practically nullifying the domestic
effects of a treaty and thus caused the President to carry out termination.
As the US political history demonstrates, treaty creation and termination are complex
phenomena rooted in the dynamic relationship between the two political branches of our
government. The Court thus should decline the invitation to set in concrete a particular
constitutionally acceptable arrangement by which the President and Congress are to share
treaty termination.
Justice Blackmun: JUSTICIABLE
The time factor and its importance are illusory; if the President does not have the power to
terminate the treaty (a substantial issue that we should address only after briefing and oral
argument), the notice of intention to terminate surely has no legal effect. It is also
indefensible, without further study, to pass on the issue of justiciability or on the issues of
standing or ripeness. While I therefore join in the grant of the petition for certiorari, I would
set the case for oral argument and give it the plenary consideration it so obviously
deserves.
Justice Brennan: JUSTICIABLE
Properly understood, the political question doctrine restrains courts from reviewing an
exercise of foreign policy judgment by the coordinate political branch to which authority to
make that judgment has been "constitutionally committed."
But the doctrine does not pertain when a court is faced with the antecedent question
whether a particular branch has been constitutionally designated as the repository of
political decision-making power. The issue of decision-making authority must be resolved
as a matter of constitutional law, not political discretion; accordingly, it falls within the
competence of the courts.
Abrogation of the defense treaty with Taiwan was a necessary incident to Executive
recognition of the Peking Government, because the defense treaty was predicated upon
the now-abandoned view that the Taiwan Government was the only legitimate political
authority in China. Our cases firmly establish that the Constitution commits to the
President alone the power to recognize, and withdraw recognition from, foreign regimes.
[8] Gabcikovo-Nagymaros Project Case (Hungary v. Slovakia) treaty concerning the construction and operation of the Gabcikovo-
Nagymaros System of Locks (hereinafter called the "1977 Treaty").
ICJ Report 1997 | Sept. 25, 1997 | Treaty | Dee 2. The 1977 Treaty entered into force on 30 June 1978. It provides for the
construction and operation of a System of Locks by the parties as a "joint
Parties: Republic of Hungary and Slovak Republic (Submission for investment". The barrage system was designed to attain the broad
International Court of Justice’s Judgment) utilization of the natural resources of the Bratislava-Budapest section of the
! Danube river for the development of water resources, energy, transport,
agriculture and other sectors of the national economy of the Contracting
Recit-Ready:
The Republic of Hungary and Slovak Republic entered into a Treaty (1997 Parties.
Treaty) concerning the construction and operation of the Gabcikovo- 3. The joint investment was thus essentially aimed at the production of
Nagymaros System of Locks. However, in 1989, as a result of intense criticism hydroelectricity, the improvement of navigation on the relevant section of
the Project had in Hungary, the Hungarian Government decided to suspend the the Danube and the protection of the areas along the banks against
works at Nagymaros. The Slovak Government decided to begin with its flooding.
alternative solutions. To justify its conduct, Hungary relied essentially on a 4. Article 1, paragraph 1, of the 1977 Treaty describes the principal works to be
"state of ecological necessity". Hungary detailed the principal ecological constructed in pursuance of the Project. It provided for the building of two
dangers which would have been caused by this system. The Court ruled that series of locks, one at Gabcikovo (in Czechoslovak territory) and the other at
Hungary was not entitled to suspend and abandon the works on Nagymaros Nagymaros (in Hungarian territory), to constitute "a single and indivisible
Project and Slovak Government was not entitled to proceed to its alternative operational system of works"
solution. Hungary’s notification to Slovak Government did not put an end to the 5. However, as a result of intense criticism which the Project had generated in
treaty. Although both Hungary and Czechoslovakia failed to comply with their Hungary, the Hungarian Government decided on 13 May 1989 to suspend
obligations under the 1977 Treaty, this reciprocal wrongful conduct did not the works at Nagymaros pending the completion of various studies which
bring the Treaty to an end nor justify its termination. It would be otherwise, of the competent authorities were to finish before 31 July 1989. On 21 July
course, if the parties decided to terminate the Treaty by mutual consent. 1989, the Hungarian Government extended the suspension of the works at
! Nagymaros until 31 October 1989, and, in addition, suspended the works at
Dunakiliti until the same date. Lastly, on 27 October 1989, Hungary decided
Doctrine:
What is required in the present case by the rule pacta sunt servanda is that the to abandon the works at Nagymaros and to maintain the status quo at
Parties find an agreed solution within the cooperative context of the Treaty. Dunakiliti.
"Every treaty in force is binding upon the parties to it and must be performed 6. During this period, negotiations were being held between the parties.
by them in good faith." This latter element implies that, in this case, it is the Czechoslovakia also started investigating alternative solutions.
purpose of the Treaty, and the intentions of the parties in concluding it, which 7. On 23 July 1991, the Slovak Government decided to begin, in September
should prevail over its literal application. The principle of good faith obliges the 1991, construction to put the Gabcikovo Project into operation by the
Parties to apply it in a reasonable way and in such a manner that its purpose provisional solution". That decision was endorsed by the Federal
can be realized. Czechoslovak Government on 25 July. Work on Variant C began in
November 1991. Discussions continued between the two parties but to no
avail, and, on 19 May 1992, the Hungarian Government transmitted to the
FACTS: (Disclaimer: The case has 81 pages. Pls don’t just rely on this digest. There are a lot of Czechoslovak Government a Note Verbale terminating the 1977 Treaty with
other issues mentioned in the case. Pls look at it too ☺ )
effect from 25 May 1992. On 15 October 1992, Czechoslovakia began work
1. The present case arose out of the signature, on 16 September 1977, by the to enable the Danube to be closed and, starting on 23 October, proceeded to
Hungarian People's Republic and the Czechoslovak People's Republic, of a the damming of the river.
8. Throughout the proceedings, Hungary contended that, although it did RATIO:
suspend or abandon certain works, on the contrary, it never suspended the 1. Hungary was not entitled to suspend and subsequently abandon, in 1989,
application of the 1977 Treaty itself. To justify its conduct, it relied the works on the Nagymaros Project and on the part of the Gabcikovo
essentially on a "state of ecological necessity". Hungary detailed the Project for which the 1977 Treaty and related instruments attributed
principal ecological dangers which would have been caused by this system. responsibility to it.
Hungary also accused Czechoslovakia of having violated various provisions !
of the 1977 Treaty from before 1989 in particular Articles 15 and 19 relating, The existence of a state of necessity must be evaluated in the light of the criteria
respectively, to water quality and nature protection - in refusing to take laid down by the International Law Commission in Article 33 of the Draft Articles
account of the now evident ecological dangers and insisting that the works on the International Responsibility of States. The "state of necessity" is "the
be continued, notably at Nagymaros. situation of a State whose sole means of safeguarding an essential interest
9. Slovakia, for its part, denied that the basis for suspending or abandoning the threatened by a grave and imminent peril is to adopt conduct not in conformity
performance of a treaty obligation can be found outside the law of treaties. with what is required of it by an international obligation to another State"
It acknowledged that the 1969 Vienna Convention could not be applied as !
such to the 1977 Treaty, but at the same time stressed that a number of its The Court considers that the state of necessity is a ground recognized by
provisions are a reflection of pre-existing rules of customary international customary international law for precluding the wrongfulness of an act not in
law and specified that this is, in particular, the case with the provisions of conformity with an international obligaion. It observes moreover that such
Part V relating to invalidity, termination and suspension of the operation of ground for precluding wrongfulness can only be accepted on an exceptional
treaties. basis. The state of necessity can only be invoked under certain strictly defined
10. In the course of the proceedings, Slovakia argued at length that the state of conditions which must be cumulatively satisfied; and the State concerned is not
necessity upon which Hungary relied did not constitute a reason for the the sole judge of whether those conditions have been met.
suspension of a treaty obligation recognized by the law of treaties. At the !
same time, it cast doubt upon whether "ecological necessity" or "ecological In the present case, the following basic conditions set forth in Draft Article 33 are
risk" could, in relation to the law of State responsibility, constitute a relevant: it must have been occasioned by an "essential interest" of the State
circumstance precluding the wrongfulness of an act. In any event, Slovakia which is the author of the act conficting with one of its international obligations;
denied that there had been any kind of "ecological state of necessity" in this that interest must have been threatened by a "grave and imminent peril"; the act
case either in 1989 or subsequently. It invoked the authority of various being challenged must have been the "only means" of safeguarding that interest;
scientific studies when it claimed that Hungary had given an exaggeratedly that act must not have "seriously impaired an essential interest" of the State
pessimistic description of the situation. towards which the obligation existed; and the State which is the author of that
! act must not have "contributed to the occurrence of the state of necessity".
ISSUES: Those conditions reflect customary international law.
1. Whether the Republic of Hungary was entitled to suspend and subsequently !
abandon, in 1989, the works on the Nagymaros Project and on the part of The Court considers, however, that, serious though these uncertainties might
the Gabcikovo Project for which the Treaty attributed responsibility to the have been they could not, alone, establish the objective existence of a "peril" in
Republic of Hungary. (NO) the sense of a component element of a state of necessity. The word "peril"
certainly evokes the idea of "risk": that is precisely what distinguishes "peril" from
2. Whether the Czech and Slovak Federal Republic was entitled to proceed, in material damage. But a state of necessity could not exist without a "peril" duly
November 1991, to the 'provisional solution.’ (NO) established at the relevant point in time: the mere apprehension of a Possible
"peril" could not suffice in that respect. It could moreover hardly be otherwise.
3. Whether Hungary's notification of 19 May 1992 brought the 1977 Treaty to when the "peril" constituting the state of necessity has at the same time to be
an end (NO) "grave" and "imminent". "Imminence" is synonymous with "immediacy" or
"proximity" and goes far beyond the concept of "possibility". The Hungarian State must have called upon the State committing the wrongful act to
argument on the state of necessity could not convince the Court unless it was at discontinue its wrongful conduct or to make reparation for it. It is clear from the
least proven that a real, "grave" and "imminent" "peril" existed in 1989 and that the facts of the case that Czechoslovakia requested Hungary to resume the
measures taken by Hungary were the only possible response to it. performance of its treaty obligations on many occasions. The Court thus
! considers that the diversion of the Danube carried out by Czechoslovakia was not
2. Czechoslovakia, in putting Variant C into operation, was not applying the 1977 a lawful countermeasure because it was not proportionate. It is therefore not
Treaty but, on the contrary, violated certain of its express provisions, and, in so required to pass upon one other condition for the lawfulness of a
doing, committed an internationally wrongful act. countermeasure, namely that its purpose must be to induce the wrongdoing
With a view to justifying those actions, Slovakia invoked what it described as "the State to comply with its obligations under international law, and that the measure
principle of approximate application.” "lt is a sound principle of law that whenever must therefore be reversible.
a legal instrument of continuing validity cannot be applied literally owing to the !
conduct of one of the parties, it must, without allowing that party to take 3. The notification of termination by Hungary of 19 May 1992 did not have the
advantage of its own conduct, be applied in a way approximating most closely to legal effect of terminating the 1977 Treaty and related instruments.
its primary object. In the view of the Court, Variant C does not meet that cardinal Hungary maintained that by their conduct both parties had repudiated the Treaty
condition with regard to the 1977 Treaty. and that a bilateral treaty repudiated by both parties cannot survive. The Court is
! of the view, however, that although it has found that both Hungary and
A wrongful act or offence is frequently preceded by preparatory actions which are Czechoslovakia failed to comply with their obligations under the 1977 Treaty, this
not to be confused with the act or offence itself. It is as well to distinguish reciprocal wrongful conduct did not bring the Treaty to an end nor justify its
between the actual commission of a wrongful act (whether instantaneous or termination.
continuous) and the conduct prior to that act which is of a preparatory character !
and which "does not qualify as a wrongful act" The Court would set a precedent with disturbing implications for treaty relations
! and the integrity of the rule pacta sunt servanda if it were to conclude that a
Slovakia also maintained that it was acting under a duty to mitigate damages treaty in force between States, which the parties have implemented in
when it carried out Variant C. It stated that "It is a general principle of considerable measure and at great cost over a period of years, might be
international law that a party injured by the non-performance of another contract unilaterally set aside on grounds of reciprocal non-compliance. It would be
party must seek to mitigate the damage he has sustained." It would follow from otherwise, of course, if the parties decided to terminate the Treaty by mutual
such a principle that an injured State which has failed to take the necessary consent. But in this case, while Hungary purported to terminate the Treaty,
measures to limit the damage sustained would not be entitled to claim Czechoslovakia consistently resisted this act and declared it to be without legal
compensation for that damage which could have been avoided. While this effect.
principle might thus provide a basis for the calculation of damages, it could not, !
on the other hand, justify an otherwise wrongful act. The Vienna Convention is not directly applicable to the 1977 Treaty inasmuch as
! both States ratified that Convention only after the Treaty's conclusion.
Slovakia stated that "Variant C could be presented as a justified countermeasure Consequently only those rules which are declaratory of customary law are
to Hungary's illegal acts". In order to be justifiable, a countermeasure must meet applicable to the 1977 Treaty. The 1977 Treaty does not contain any provision
certain conditions: Firstly, it must be taken in response to a previous regarding its termination. Nor is there any indication that the parties intended to
international wrongful act of another State and must be directed against that admit the possibility of denunciation or withdrawal. On the contrary, the Treaty
State. Although not primarily presented as a countermeasure, it is clear that establishes a long-standing and durable régime of joint investment and joint
Variant C was a response to Hungary's suspension and abandonment of works operation. Consequently, the parties not having agreed otherwise, the Treaty
and that it was directed against that State; and it is equally clear, in the Court's could be terminated only on the limited grounds enumerated in the Vienna
view, that Hungary's actions were internationally wrongful. Secondly, the injured Convention.
!
Even if a state of necessity is found to exist, it is not a ground for the termination
of a treaty. It may only be invoked to exonerate from its responsibility a State
which has failed to implement a treaty. Even if found justified, it does not
terminate a Treaty. On the principle of the impossibility of performance as
reflected in Article 61 of the Vienna Convention on the Law of Treaties, Hungary's
interpretation of the wording is, however, not in conformity with the terms of that
Article, nor with the intentions of the Diplomatic Conference which adopted the
Convention. Article 61 requires the "permanent disappearance or destruction of
an object indispensable for the execution" of the treaty to justify the termination
of a treaty on grounds of impossibility of performance. Although it was
recognized that such situations could lead to a preclusion of the wrongfulness of
non-performance by a party of its treaty obligations, the participating States were
not prepared to consider such situations to be a ground for terminating or
suspending a treaty, and preferred to limit themselves to a narrower concept.
What is required in the present case by the rule pacta sunt servanda, as reflected
in Article 26 of the Vienna Convention of 1969 on the Law of Treaties, is that the
Parties find an agreed solution within the cooperative context of the Treaty.
!
Article 26 combines two elements, which are of equal importance. It provides
that "Every treaty in force is binding upon the parties to it and must be performed
by them in good faith." This latter element, in the Court's view, implies that, in this
case, it is the purpose of the Treaty, and the intentions of the parties in
concluding it, which should prevail over its literal application. The principle of
good faith obliges the Parties to apply it in a reasonable way and in such a
manner that its purpose can be realized.
[242 P. 2d 617] SEI FUJII v STATE OF CALIFORNIA
Doctrine: In order to determine, when a treaty is self-executing – the intent of the
signatory parties as shown by the language of the instrument must be taken into
242 P. 2d 617 | April 17, 1952 | Sources of International Law / Treaty– UN
consideration. If, the instrument is uncertain the circumstances of its execution
Charter | DE JESUS
should be taken into consideration.
Petitioner: SEI FUJII
Respondents: THE STATE OF CALIFORNIA For a self-executing treaty provision to be operative without the aid of implementing
legislation then it must appear that “the framers of the treaty intended to prescribe
a rule that, standing alone, would be enforceable in courts.”
Recit-Ready: Sei Fujii, an alien Japanese ineligible to citizenship under U.S.
naturalization laws appeals the judgment which declared that the land purchased
by him in 1948 had escheated/reverted to the ownership of the State pursuant to
the California Alien Land Law. The California Alien Land law prohibits persons who
are ineligible to US citizenship to own real property. These persons ineligible to
citizenship under federal naturalization laws are: the Japanese and small no. of
residents of other races.
ISSUES: Fujii questions the validity of the said Alien Law and based his argument
on two main grounds: (1) UN Charter particularly its preamble and articles 1, 55 and
56 of the Charter invalidated and superseded the California Alien Land Law and (2)
Alien Land Law violates the due process and equal protection clauses of the
Fourteenth Amendment.
FACTS:
RULING: The Court ruled that the preamble and Art. 1 of the Charter state only
general purposes and objectives of the UN Org and do NOT impose legal obligations
1. Sei Fujii, an alien Japanese ineligible to citizenship under U.S.
on the individual member nations or to create rights in private persons. Therefore,
naturalization laws appeals the judgment which declared that the land
the said provisions relied by Fujii are not self-executing and there is no indication
purchased by him in 1948 had escheated/reverted to the ownership of the
that said provisions were intended to become rules of law for the Court upon the
State pursuant to the California Alien Land Law.
ratification of the UN Charter. While, the language used in Art. 55 and 56 is not the
type of language employed is not the type of language customarily employed in 2. The California Alien Land Law The California Alien Land law prohibits
treaties which have been held to be self-executing and which create rights and persons who are ineligible to US citizenship to own real property. These
duties in individuals. Thus, the provisions of the UN Charter relied on by Fujii are not persons ineligible to citizenship under federal naturalization laws are: the
intended by the framers to supersede existing US domestic legislation and as such Japanese and small no. of residents of other races.
it does NOT operate to invalidate the Alien Land Law. On the second argument, the 3. Fujii based his argument on two grounds. (1) His first contention is that
Court ruled that the Alien Land Law violates the due process and equal protection the California Alien Land Law has been invalidated and superseded by the
clauses of the Fourteenth Amendment since it was designed and administered as provisions of the UN Charter. (2) His second argument is that the statutory
an instrument for effectuating racial discrimination and a person ineligible to acquire classification of aliens on the basis statutory classification of aliens on
US citizenship does not automatically establish a lack of loyalty or absence in the the basis of eligibility to citizenship is arbitrary for the reason that
welfare of the country discrimination against an ineligible alien bears no reasonable relationship
to promotion of the safety and welfare of the state.
ISSUES: intended to become rules of law for the Court of US upon the
1) W/N the provisions UN Charter particularly its preamble and articles 1, ratification of the UN Charter.
55 and 56 of the Charter invalidated and superseded the California h. Likewise, the language used in Art. 55 and 56 is not the type of
Alien Land Law. – No, the said provisions are not self-executing language customarily employed in treaties which have been held
provisions and the framers does not intend such to supersede domestic to be self-executing and which create rights and duties in
US legislation. Therefore, the preamble and Art. 1, 55 and 56 does not
individuals. Since it does not detail the said rules that shall govern
operate to invalidate the Alien Land Law.
2) W/N the Alien Land Law violates the due process and equal protection the rights and obligations of individuals.
clauses of the Fourteenth Amendment. – Yes, designed and i. For certain provisions to be effective without the aid of
administered as an instrument for effectuating racial discrimination and a implementing legislation the framers of the UN Charter must have
person ineligible to acquire US citizenship does not automatically employed a language that is clear and definite which manifests
establish a lack of loyalty or absence in the welfare of the country. that intention.
j. The provisions in the charter pledging cooperation in promoting
RATIO: observance of fundamental freedoms lack the mandatory quality
and definiteness which would indicate an intent to create
1) W/N the UN Charter provisions particularly its preamble and articles 1,
justiciable rights in private persons immediately upon ratification.
55 and 56 of the Charter invalidated and superseded the California Therefore, they are only considered as a “promise of future
Alien Land Law. – (ISSUE RELEVANT TO MODULE 2) action” by the member nations.
a. The Charter is a treaty and the US Federal Constitution provides k. Thus, the provisions of the UN Charter relied on by Fujii are not
that treaties made under the authority of US are part of the intended by the framers to supersede existing US domestic
supreme law of the land and the judges in every state are bound legislation and as such it does NOT operate to invalidate the Alien
thereby. Land Law.
b. But, a treaty does NOT automatically supersede local laws which 2. W/N the Alien Land Law violates the due process and equal
are inconsistent with it unless the treaty provisions are self- protection clauses of the Fourteenth Amendment. (not PIL related
executing. but just in case)
c. In order to determine, when a treaty is self-executing – the intent l. Fujii assails the legality of the Alien Land Law on two grounds.
of the signatory parties as shown by the language of the (1) statutory classification of aliens on the basis of eligibility to
instrument must be taken into consideration. If, the instrument is citizenship is arbitrary for the reason that discrimination against
uncertain the circumstances of its execution should be taken into an ineligible alien bears no reasonable relationship to promotion
consideration. of the safety and welfare of the state. (2) Secondly, he contends
d. For a self-executing treaty provision to be operative without the that the effect of the statute, as well as its purpose, is to
aid of implementing legislation then it must appear that “the discriminate against aliens solely on the basis of race and that
framers of the treaty intended to prescribe a rule that, standing such discrimination is arbitrary and unreasonable
alone, would be enforceable in courts.” m. The Fourteenth Amendment intends to protect the rights to
e. In this case, Fujii alleged that the preamble, articles 1, 55 and 56 acquire, enjoy, own and dispose of property.
n. The California act (Californian Alien Land Law), in the absence
of the Charter are in conflict and invalidated and superseded the
of treaty, withholds all interests in real property from aliens who
California Alien Land Law.
f. However, the preamble and Art. 1 of the Charter state only
general purposes and objectives of the UN Org and do not
purport to impose legal obligations on the individual member
nations or to create rights in private persons.
g. Therefore, the said provisions relied by Fujii are not self-
executing and there is no indication that said provisions were
are ineligible to citizenship under federal naturalization laws 1. t. Further, the Court recognized that the real purpose of the Alien
Wherein, the Nationality Code limits the right of naturalization to Land Law was the elimination of competition by alien Japanese
certain designated races or nationalities, EXCLUDING Japanese in farming California land.
and a few racial groups comparatively small in numbers. u. Therefore, the Court ruled that the California Alien Land Law is
o. According to the terms of the said land law, it classifies persons designed and administered as an instrument for effectuating
not on the basis of eligibility to citizenship but on the basis of race racial discrimination. Since there is nothing to indicate that alien
or nationality. “Although Japanese are not singled out by name residents who are racially ineligible for citizenship possess
for discriminatory treatment in the land law, the reference therein characteristics which are dangerous to the legitimate interests of
to federal standards for naturalization which exclude Japanese the state, or that they, as a class, might use the land for purposes
operates automatically to bring about that result.” injurious to public morals, safety or welfare.
p. The Court states that whenever the classification is on the basis v. Thus, the alien land law is invalid as it violates the Fourteenth
of race, it is "immediately suspect" and will be subjected "to the Amendment.
most rigid scrutiny."According to the cases of Korematsu, Oyama
and Perez the presumption of validity is greatly narrowed in
scope, if not entirely dispelled, whenever it is shown, as here, that
legislation actually discriminates against certain persons
because of their race or nationality.
q. The Court ruledargument in favor of the validity of the Alien Land
Law which states that the said law merely puts in effect a
legislative policy of Congress cannot be upheld.
1. Since the Congress has neither declared nor
assumed that landowners ineligible to
citizenship are a danger to the state; and it is
only the Californian State Legislature that
declared or assumed such danger. The
Congress only regulates admission to
citizenship/naturalization and NOT the right to
own a land.
2. Therefore, the use of the federal naturalization
classification are NOT automatically proper for
purposes of state legislation like in the
California Alien Land Law.
r. California state asserts that the purpose of the Alien Land Law is
to restrict the use and ownership of land to persons who are loyal
and have an interest in the welfare of the state.
s. However, the Court ruled that ineligibility to US citizenship does
not automatically establish a lack of loyalty or absence in the
welfare of the country.
1 The California Alien Land law prohibits persons who are ineligible to US citizenship naturalization laws created by the US Congress are: the Japanese and small no. of
to own real property. These persons ineligible to citizenship under federal residents of other races.
[10] Bayan v. Zamora
majority of the votes cast by the people in a national referendum; and (c)
G.R. Nos. 138570, 138572, 138587, 138680, & 138698 | October 10, 2000 |
recognized as a treaty by the other contracting state. The first two requirements
Visiting Forces Agreement; binding effect of executive agreement | Vica
were present, for the concurrence was handed down by the Senate through its
Petitioners: BAYAN (Bagong Alyansang Makabayan), JUNK VFA MOVEMENT, Resolution No. 18 which was compliant with the manner of voting as provided by
BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER the Constitution (16 is the minimum, which is 2/3 of the ALL the members of
BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD, Senate, while the actual vote was 23). With regard to the last requirement, the
KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA, Court is of the firm view that the phrase recognized as a treaty means that the
PROLABOR, and the PUBLIC INTEREST LAW CENTER; PHILIPPINE CONSTITUTION other contracting party accepts or acknowledges the agreement as a treaty. To
ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT INCIONG, require the other contracting state, the United States of America in this case, to
CAMILO L. SABIO, AND RAMON A. GONZALES; TEOFISTO T. GUINGONA, JR., submit the VFA to the US Senate for concurrence pursuant to its Constitution, is to
RAUL S. ROCO, and SERGIO R. OSMEÑA III; INTEGRATED BAR OF THE accord strict meaning to the phrase. Moreover, it is inconsequential whether the
PHILIPPINES, Represented by its National President, Jose Aguila Grapilon; JOVITO United States treats the VFA only as an executive agreement because, under
R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON AVENCEÑA, ROLANDO international law, an executive agreement is as binding as a treaty. To be sure, as
SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, long as the VFA possesses the elements of an agreement under international law,
JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, the said agreement is to be taken equally as a treaty. Furthermore, International
KILOSBAYAN ,MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND law continues to make no distinction between treaties and executive agreements:
NATIONALISM, INC. (MABINI) they are equally binding obligations upon nations.
Respondents: EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS
SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, Doctrine:
BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, 1. In international law, there is no difference between treaties and executive
SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO agreements in their binding effect upon states concerned, as long as the
BIAZON, and SENATOR FRANCISCO TATAD; HON. RONALDO B. ZAMORA, as negotiating functionaries have remained within their powers. International
Executive Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense, law continues to make no distinction between treaties and executive
and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs; JOSEPH E. agreements: they are equally binding obligations upon nations.
ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. 2. The Philippines cannot readily plead the Constitution as a convenient
MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and excuse for non-compliance with our obligations, duties and
RODOLFO G. BIAZON; JOSEPH EJERCITO ESTRADA, in his capacity as President, responsibilities under international law.
Republic of the Philippines, and HON. DOMINGO SIAZON, in his capacity as 3. The principle of pacta sunt servanda provides that every treaty in force is
Secretary of Foreign Affairs; THE EXECUTIVE SECRETARY, THE SECRETARY OF binding upon the parties to it and must be performed by them in good
FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, SENATE faith.
PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO
G. BLAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL, SUPERVISION, A to GQs #12 and #13: The instruments mentioned in this case are: 1) RP-US
DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING FORCES Military Bases Agreement; 2) Mutual Defense Treaty; 3) RP-US Treaty of
AGREEMENT (VFA) Friendship, Cooperation and Security (this didn’t materialize); 4) Exchange Notes;
and 5) Visiting Forces Agreement (please see bullet #4 to #8 in the facts for the
Recit-Ready: The US and the Philippines entered into a Visiting Forces Agreement process)
which was approved by Pres. Ramos and subsequently ratified by Pres. Estrada.
The required concurrence from the Senate was handed through its Resolution No.
18, and the VFA officially entered into force after an Exchange of Notes between FACTS:
Sec. Siazon and US Ambassador Hubbard. Now, petitioners are arguing that the 1. On March 14, 1947, the RP1 and the US2 forged the RP-US Military Bases
VFA is unconstitutional for violating Sec. 25, Article 18 of the 1987 Constitution, Agreement which formalized the use of installations in the Philippine
which requires a treaty allowing foreign military bases, troops, or facilities in the territory by United States military personnel. They also entered into a
Philippines to be recognized as a treaty by the other contracting State. The SC held Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties
that it is constitutional because it complies with all the requisites under Sec. 25,
Article 18, which are: (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 1
Republic of the Philippines
2
United States of America
agreed to respond to any external armed attack on their territory, armed 8. The VFA officially entered into force after an Exchange of Notes
forces, public vessels, and aircraft. between Sec. Siazon and US Ambassador Hubbard.
2. RP and the US negotiated for the extension of the military bases 9. Now, these consolidated petitions for certiorari and prohibition assail the
agreement, but the Philippine Senate rejected the proposed RP-US constitutionality of the VFA and impute to herein respondents grave
Treaty of Friendship, Cooperation and Security which, in effect, would abuse of discretion in ratifying the agreement.
have extended the presence of US military bases in the Philippines. 10. The respondents’ main contention was that the VFA failed to meet the
3. With the expiration of the RP-US Military Bases Agreement, the periodic requisites under Section 25, Article XVIII of the 1987 Constitution.8 On
military exercises conducted between the two countries were held in the other hand, the petitioners argue that instead of the aforementioned
abeyance. Notwithstanding, the defense and security relationship provision of the constitution, it is Section 21, Article VII9 that governs
between the Philippines and the United States of America continued the VFA.
pursuant to the Mutual Defense Treaty. ISSUE:
4. The United States panel3 then met with the Philippine panel4 to exchange 1. W/N the VFA is unconstitutional. NO
notes on "the complementing strategic interests of the United States and
the Philippines in the Asia-Pacific region." Both sides discussed, among RATIO:
Both Section Section 25, Article XVIII and Section 21, Article VII are applicable.
other things, the possible elements of the VFA.5 The negotiations by
1. Petitioners argue that Section 25, Article XVIII is applicable considering
both panels on the VFA led to a consolidated draft text, which in turn that the VFA has for its subject the presence of foreign military troops in
resulted to a final series of conferences and negotiations that the Philippines. Respondents, on the contrary, maintain that Section 21,
culminated on January 12 and 13, 1998. Pres. Ramos then approved the Article VII should apply inasmuch as the VFA is not a basing
VFA, which was respectively. signed by Foreign Affairs Sec. Siazon and arrangement but an agreement which involves merely the temporary
US Ambassador Hubbard on February 10, 1998. visits of United States personnel engaged in joint military exercises.
5. On October 6, 1998, Pres. Estrada ratified the VFA and he, acting 2. The SC said that both constitutional provisions share some common
ground, for they both embody phrases in the negative and thus, are
through Executive Sec. Zamora, officially transmitted to the Senate of
deemed prohibitory in mandate and character. In particular, Section 21
the Philippines the Instrument of Ratification, the letter of the President, opens with the clause "No treaty . . .," and Section 25 contains the phrase
and the VFA, for concurrence pursuant to Section 21, Article VII of the "shall not be allowed." Additionally, in both instances, the concurrence
1987 Constitution. of the Senate is indispensable to render the treaty or international
6. The Senate, in turn, referred the VFA to its Committee on Foreign agreement valid and effective.
Relations6 and its Committee on National Defense and Security7 for 3. Section 21, Article VII lays down the general rule on treaties or
their joint consideration and recommendation. international agreements and applies to any form of treaty with a wide
7. Joint public hearings were held by the two Committees, and they variety of subject matter, so all treaties or international agreements
entered into by the Philippines requires the concurrence of the Senate to
consequently submitted Proposed Senate Resolution No. 443
be valid and effective.
recommending the concurrence of the Senate to the VFA and the 4. In contrast, Section 25, Article XVIII is a special provision that applies to
creation of a Legislative Oversight Committee to oversee its treaties which involve the presence of foreign military bases, troops or
implementation. The resolution was then approved by the Senate, by a facilities in the Philippines. Under this provision, the concurrence of the
two-thirds (2/3) vote of its members, and it was then re-numbered as
8
Senate Resolution No. 18. Section 25, Article XVIII, provides: After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United States of America concerning
Military Bases, foreign military bases, troops, or facilities shall not be allowed in the
3
Philippines except under a treaty duly concurred in by the Senate and, when the
This was headed by US Defense Deputy Assistant Secretary for Asia Pacific Congress so requires, ratified by a majority of the votes cast by the people in a
Kurt Campbell national referendum held for that purpose, and recognized as a treaty by the other
4
This was headed by Foreign Affairs Undersecretary Rodolfo Severino Jr. contracting State.
5 9
Visiting Forces Agreement Section 21, Article VII, provides: No treaty or international agreement shall be
6
This was chaired by Senator Blas F. Ople valid and effective unless concurred in by at least two-thirds of all the Members
7
This was chaired by Senator Rodolfo G. Biazon of the Senate.
Senate is only one of the requisites to render compliance with the the phrase. Well-entrenched is the principle that the words used in the
constitutional requirements and to consider the agreement binding on Constitution are to be given their ordinary meaning except where
the Philippines. Section 25, Article XVIII requires: (a) it must be under a technical terms are employed.
treaty; (b) the treaty must be duly concurred in by the Senate and, when 4. (NOTE: Important part; PIL part) Moreover, it is inconsequential whether
so required by Congress, ratified by a majority of the votes cast by the the US treats the VFA only as an executive agreement because, under
people in a national referendum; and (c) recognized as a treaty by the international law, an executive agreement is as binding as a treaty. To
other contracting state. (NOTE: The congress in this case did not require be sure, as long as the VFA possesses the elements of an agreement
ratification by a majority of the votes cast by the people in a national under international law, the said agreement is to be taken equally as a
referendum) treaty.
5. Since VFA is an agreement which defines the treatment of United States 5. A treaty, as defined by the Vienna Convention on the Law of Treaties, is
troops and personnel visiting the Philippines, Section 25, Article XVIII, "an international instrument concluded between States in written form
which specifically deals with treaties involving foreign military bases, and governed by international law, whether embodied in a single
troops, or facilities, should apply in the instant case. It is notable that instrument or in two or more related instruments, and whatever its
the Constitution makes no distinction between "transient" and particular designation." There are many other terms used for a treaty or
"permanent" because there’s nothing in Section 25, Article XVIII that international agreement, some of which are: act, protocol, agreement,
requires foreign troops or facilities to be stationed or placed compromis d' arbitrage, concordat, convention, declaration, exchange of
permanently in the Philippines. It is a rudiment in legal hermeneutics that notes, pact, statute, charter and modus vivendi. All writers, from Hugo
when no distinction is made by law the Court should not distinguish. Grotius onward, have pointed out that the names or titles of
Furthermore, even if the provision speaks of three things (foreign military international agreements included under the general term treaty have
bases, troops or facilities) it is still applicable even if a treaty only covers little or no legal significance. Article 2(2) of the Vienna Convention
one. This was confirmed by Fr. Bernas during the deliberations of the provides that "the provisions of paragraph 1 regarding the use of terms
1986 Constitutional Commission. Hence, whether the VFA covers only in the present Convention are without prejudice to the use of those
troops or covers all, the requirement will be the same. terms, or to the meanings which may be given to them in the internal law
6. To a certain extent and in a limited sense, the provisions of Section 21, of the State."
Article VII will also find applicability for the sole purpose of determining 6. Thus, in international law, there is no difference between treaties and
the number of votes required to obtain the valid concurrence of the executive agreements in their binding effect upon states concerned, as
Senate. long as the negotiating functionaries have remained within their
powers. International law continues to make no distinction between
All the requirements under Section 25, Article XVIII were complied with. treaties and executive agreements: they are equally binding obligations
(NOTE: See bullet #4 in the preceding section for the three requirements) upon nations.
1. There is no dispute as to the presence of the first two requisites in the 7. The SC also noted that both US and Philippine jurisprudence have
case of the VFA (NOTE: The concurrence handed by the Senate through recognized the binding effect of executive agreements even without
Resolution No. 18 is in accordance with the provisions of the the concurrence of the Senate or Congress. They also referred to the
Constitution; bullet #7 in the facts), so the SC passed upon the deliberations of the 1986 Constitutional Commission which reflects the
requirement that the VFA should be recognized as a treaty by the USA. drafters’ intention that as far as ratification of the other state is
2. Petitioners contend that the phrase "recognized as a treaty," embodied in concerned, that is entirely their concern under their own laws, and that
Section 25, Article XVIII, means that the VFA should have the advice and the Philippines will accept whatever they say. As Fr. Bernas said, “If
consent of the United States Senate pursuant to its own constitutional they say that we have done everything to make it a treaty, then as far as
process, and that it should not be considered merely an executive we are concerned, we will accept it as a treaty."
agreement by the United States. In opposition, respondents argue that 8. The records reveal that the US Government, through Ambassador
the letter of US Ambassador Hubbard stating that the VFA is binding on Hubbard, has stated that they have fully committed to living up to the
the US Government is conclusive, on the point that the VFA is recognized terms of the VFA. For as long as the USA accepts or acknowledges the
as a treaty by the USA. According to respondents, the VFA, to be binding, VFA as a treaty, and binds itself further to comply with its obligations
must only be accepted as a treaty by the US. under the treaty, there is indeed marked compliance with the mandate of
3. The SC is of the firm view that the phrase "recognized as a treaty" means the Constitution.
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 Philippines cannot plead the Constitution as a convenient excuse for and have been one of the most fundamental principles of positive
non-compliance with our obligations, duties and responsibilities under international law, supported by the jurisprudence of international
international law. tribunals.
1. The SC further explained 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.
2. Ratification is generally held to be an executive act 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. The consent
of the State to be bound by a treaty is expressed by ratification when: (a)
the treaty provides for such ratification, (b) it is otherwise established
that the negotiating States agreed that ratification should be required,
(c) the representative of the State has signed the treaty subject to
ratification, or (d) the intention of the State to sign the treaty subject to
ratification appears from the full powers of its representative, or was
expressed during the negotiation.
3. 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.
4. With the ratification of the VFA, which is equivalent to final acceptance,
and with the exchange of notes between the Philippines and the USA, it
now becomes obligatory and incumbent on our part, under the
principles of international law, to be bound by the terms of the
agreement.
5. It is notable that Section 2, Article II of the Constitution, declares that the
Philippines adopts the generally accepted principles of international law
as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations. As a
member of the family of nations, the Philippines agrees to be bound by
generally accepted rules for the conduct of its international relations.
As an integral part of the community of nations, the Philippines is
responsible to assure that the government, Constitution and laws will
carry out its international obligation. Hence, the Philippines cannot
readily plead the Constitution as a convenient excuse for
non-compliance with our obligations, duties and responsibilities under
international law.
6. Furthermore, Article 13 of the Declaration of Rights and Duties of States
adopted by the International Law Commission in 1949 provides: "Every
State has the duty to carry out in good faith its obligations arising from
treaties and other sources of international law, and it may not invoke
provisions in its constitution or its laws as an excuse for failure to
perform this duty." Equally important is Article 26 of the Convention
which provides that "Every treaty in force is binding upon the parties to it
and must be performed by them in good faith." This is known as the
principle of pacta sunt servanda which preserves the sanctity of treaties
3. The RP-US Mutual Defense Treaty was advised and consented to by the US
[11] Nicolas v. Romulo
Senate on March 20, 1952. VFA is an implementing agreement of RP-US
Mutual Defense Treaty.
GR No. 175888 | February 11, 2009 | Module 2 Ph Treaty Practice | Kathleen
Petitioner: SUZETTE NICOLAS y SOMBILON Treaties mentioned in the case and process:
Respondents: ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; 1. VFA – same with Bayan v. Zamora // “Accordingly, as an implementing
RAUL GONZALEZ, in his capacity as Secretary of Justice; agreement of the RP-US Mutual Defense Treaty, it was not necessary to
EDUARDO ERMITA, in his capacity as Executive Secretary; submit the VFA to the US Senate for advice and consent, but merely to the
RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government; US Congress under the Case–Zablocki Act within 60 days of its ratification.
SERGIO APOSTOL, in his capacity as Presidential Legal Counsel; and It is for this reason that the US has certified that it recognizes the VFA as a
L/CPL. DANIEL SMITH binding international agreement, i.e., a treaty, and this substantially
complies with the requirements of Art. XVIII, Sec. 25 of our Constitution”
2. Romulo-Kenney Agreements – entered into by Ph and US Representatives
Recit-Ready: The case stemmed from the filing of charges and conviction of L/CPL • Declared as not in accord with VFA
Daniel Smith, a member of the US Armed Forces. He was convicted of rape. The US, • “Respondent Secretary of Foreign Affairs is hereby ordered to
at its request, was granted custody of Smith pending the proceedings. After forthwith negotiate with the United States representatives for the
conviction, Smith was temporarily committed to Makati City Jail, as ordered by the appropriate agreement on detention facilities under Philippine
RTC. Subsequently he was transferred to the US Embassy in Manila by virtue of 2 authorities …, pending which the status quo shall be maintained
Romulo-Kenney Agreements signed by US Rep. Kenney and DFA Sec. Romulo. Said until further orders by this Court.”
agreements were claimed to be in line with the implementation of the VFA between
Ph and US. The issue is whether or not, in light of new US Policy, VFA is
constitutional. FACTS:
1. Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the US
The Court held yes, VFA is still valid and constitutional. The Court held that the VFA Armed Forces. He was charged with the crime of rape committed against
is an implementing agreement of the RP-US Mutual Defense Treaty which was a Filipina, Nicolas (the petitioner).
concurred in by both Ph and US Senate. It is a treaty binding on both States and 2. Background of their case: Inside the Subic Bay Freeport Zone, Olongapo
meets the requirement of our Constitution. However, the Romulo-Kenney City, respondent Smith and other members of the US Marine Corps and a
Agreements were held to be inconsistent with the VFA because Smith’s detention certain Soriano, sexually abused and had sexual intercourse with or carnal
must be by Philippine authorities and not with US Embassy. knowledge of petitioner, a 22-yr old unmarried woman inside a Starex Van.
• Only Smith was found guilty, other accused were acquitted.
Doctrine: • The trial was transferred from RTC Zambales to RTC Makati for
1. The VFA is a self-executing Agreement, as that term is defined in Medellin, security reasons.
because the parties intend its provisions to be enforceable, precisely • The US, at its request, was granted custody of Smith pending the
because the Agreement is intended to carry out obligations and proceedings.
undertakings under the RP-US Mutual Defense Treaty. • After the verdict, the Court included in its decision that Smith
2. The VFA is covered by implementing legislation, namely, the Case-Zablocki shall serve his sentence in the facilities that shall, thereafter, be
Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent of the agreed upon by appropriate Philippine and US authorities
US Congress that executive agreements registered under this Act within 60 • Smith was temporarily committed to Makati City Jail, as ordered
days from their ratification be immediately implemented. by the Court.
3. 2 agreements were entered into by Ph and US. Both were signed by US ports and/or military bases and facilities, which the US retained for itself.
Rep. Kenney and DFA Sec. Romulo (Acc to Puno’s dissent SoJ Raul Subsequently, US agreed to turn over these bases to Ph; and with the expiration of
Gonzalez also signed) the RP-US Military Bases Agreement in 1991, the territory covered by these bases
• Romulo-Kenney Agreement of December 19, 2006 – Smith will were finally ceded to the Philippines. Provision was indicated in 1987 Consti to
be returned to US military custody at the US Embassy in Manila prevent recurrence of this. The provision is thus designed to ensure that any
• Romulo-Kenney Agreement of December 22, 2006 – Smith will agreement allowing the presence of foreign military bases, troops or facilities in
be detained at the first floor, Rowe (JUSMAG) Building, U.S. Philippine territory shall be equally binding on the Philippines and the foreign
Embassy Compound in a room of approximately 10 x 12 square sovereign State involved. (which leads to issue #2)
feet.
4. As a result of these agreements, Smith was taken out of Makati City Jail The presence of US Armed Forces in Philippine territory pursuant to the VFA is
on Dec. 29 allowed under a treaty concurred in by the Senate and recognized as treaty by US.
Procedural history: After the decision of RTC, Smith filed a petition for certiorari First, as held in Bayan v. Zamora, the VFA was duly concurred in by the Philippine
with TRO before CA re RTC conviction. Smith was turned over after the Senate and has been recognized as a treaty by the US as attested and certified by
manifestation and submission of Ph-US Agreements. CA dismissed the case for the duly authorized representative of the US government. The fact that the VFA
being moot. was not submitted for advice and consent of the US Senate does not detract from
its status as a binding international agreement or treaty recognized by the said
ISSUES: State. For this is a matter of internal US law.
1. Whether or not VFA is void and unconstitutional – NO, constitutional Notice can be taken of the internationally known practice by the United States of
2. Whether or not the presence of US Armed Forces in Philippine territory submitting to its Senate for advice and consent agreements that are policymaking
pursuant to the VFA is allowed “under a treaty duly concurred in by the in nature, whereas those that carry out or further implement these policymaking
Senate and recognized as a treaty by the other contracting State” – YES agreements are merely submitted to Congress, under the provisions of the so-
3. Whether or not the Romulo-Kenney Agreements which provide for the called Case-Zablocki Act, within sixty days from ratification.
detention of Smith are in accord with VFA – NO
Second, it has to do with the relation between the VFA and the RP-US Mutual
RATIO: Defense Treaty of August 30, 1951. This earlier agreement was signed and duly
VFA is constitutional ratified with the concurrence of both the Philippine Senate and the US Senate.
This issue had been raised before, and this Court resolved in favor of the
constitutionality of the VFA. This was in Bayan v. Zamora (Bayan is also a Clearly, therefore, joint RP-US military exercises for the purpose of developing the
petitioner in this case) capability to resist an armed attack fall squarely under the provisions of the RP-US
Mutual Defense Treaty. The VFA, which is the instrument agreed upon to provide
Against the barriers of res judicata vis-à-vis Bayan, and stare decisis vis-à-vis all for the joint RP-US military exercises, is simply an implementing agreement to the
the parties, the reversal of the previous ruling is sought on the ground that the main RP-US Military Defense Treaty.
issue is of primordial importance, involving the sovereignty of the Republic, as well
as a specific mandate of the Constitution.1 Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty,
it was not necessary to submit the VFA to the US Senate for advice and consent,
Here, the Court discussed the history of the ceding of territory of US to Ph. but merely to the US Congress under the Case–Zablocki Act within 60 days of its
Basically, what was initially turned over by US were the islands except certain naval
1 Art. XVIII Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and when the Congress so requires, ratified by a majority of the votes cast by the people in a national
the United States of America concerning Military Bases, foreign military bases, troops, or facilities referendum held for that purpose, and recognized as a treaty by the other contracting State
shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and,
ratification. It is for this reason that the US has certified that it recognizes the VFA 1. The VFA is a self-executing Agreement, as that term is defined in Medellin
as a binding international agreement, i.e., a treaty, and this substantially complies itself, because the parties intend its provisions to be enforceable,
with the requirements of Art. XVIII, Sec. 25 of our Constitution. precisely because the Agreement is intended to carry out obligations and
undertakings under the RP-US Mutual Defense Treaty.
Romulo-Kenney Agreements are declared NOT in accordance with VFA 2. The VFA is covered by implementing legislation, namely, the Case-
Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose and
The VFA being a valid and binding agreement, the parties are required as a matter intent of the US Congress that executive agreements registered under this
of international law to abide by its terms and provisions. Applying, however, the Act within 60 days from their ratification be immediately implemented.
provisions of VFA, the Court finds that there is a different treatment when it comes 3. The RP-US Mutual Defense Treaty was advised and consented to by the
to detention as against custody. Summarized provisions in the VFA follows: US Senate on March 20, 1952
Custody Detention It was not the intention of the framers of the 1987 Constitution, in adopting Article
Under Art. V, Sec. 6 of VFA – Criminal Under Art. V, Sec. 10 of VFA – Criminal XVIII, Sec. 25, to require the other contracting State to convert their system to
Jurisdiction Jurisdiction achieve alignment and parity with ours. It was simply required that the treaty be
Custody shall immediately reside with Confinement or detention by recognized as a treaty by the other contracting State. With that, it becomes for
United States military authorities, if Philippine authorities shall be carried
both parties a binding international obligation and the enforcement of that
they so request, from the commission out in facilities agreed on by
of the offense until completion of all appropriate Philippines and United obligation is left to the normal recourse and processes under international law.
judicial proceedings States authorities
Court says this does not violate equal Medellin v. Texas case background: Medellin, a Mexican national, was convicted
protection clause because there is a of capital murder and sentenced to death in Texas for the gang rape and brutal
substantial basis for a different murders of two Houston teenagers. He filed an application for post-conviction
treatment of a member of a foreign relief and claimed that the Vienna Convention on Consular Relations (Vienna
military armed forces allowed to enter
Convention) accorded him the right to notify the Mexican consulate of his
our territory and all other accused
detention; and because the local law enforcement officers failed to inform him of
Principle: The receiving State can
exercise jurisdiction over the forces of this right, he prayed for the grant of a new trial.
the sending State only to the extent While Medellin’s petition was pending, the International Court of Justice (ICJ)
agreed upon by the parties issued its decision in Avena. The ICJ held that the U.S. violated the Vienna
Convention by failing to inform 51 named Mexican nationals, including Medellin,
Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006, which of their Vienna Convention rights. The ICJ ruled that those named individuals were
are agreements on the detention of the accused in the United States Embassy, are entitled to a review and reconsideration of their U.S. state court convictions and
not in accord with the VFA itself because such detention is not “by Philippine sentences. Then President Bush issued a Memorandum stating that the US would
authorities.” Respondents should therefore comply with the VFA and negotiate discharge its international obligations under Avena by having State courts give
with representatives of the United States towards an agreement on detention effect to the decision.
facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA. The SC of the US ruled that neither Avena nor the President’s Memorandum
constitutes directly enforceable federal law that pre-empts state limitations on the
**IMPT!! Because the case is basically assailing the constitutionality of the VFA filing of successive habeas corpus petitions (cases filed by Medellin). It held that
again in light of new US policy treatment. while an international treaty may constitute an international commitment, it is not
The Court addresses the recent decision of the United States Supreme Court in binding domestic law unless Congress has enacted statutes implementing it or
Medellin v. Texas , which held that treaties entered into by the United States are unless the treaty itself is “self-executing.” It further held that decisions of the ICJ
not automatically part of their domestic law unless these treaties are self- are not binding domestic law; and that, absent an act of Congress or Constitutional
executing or there is an implementing legislation to make them enforceable.
authority, the U.S. President lacks the power to enforce international treaties or Medellin, the United States had withdrawn in 1985 its advance consent to
decisions of the ICJ. the general compulsory jurisdiction of the ICJ.
• Based on the Medellin requirements for a treaty to be binding and
PUNO DISSENTING OPINION enforceable under U.S. domestic law, the MDT suffers the same fate as
• He also dissented in Bayan v. Zamora the Vienna Convention on Consular Relations. Both the MDT and the
• With Medellin, the case law is now settled that acknowledgement by the Convention were ratified by the U.S. Senate. However, both the MDT and
U.S. President that an agreement is a treaty, even with the concurrence of the Convention contain only the usual ratification and entry into force
the U.S. Senate, is not sufficient to make a treaty enforceable in its provisions found in treaties.
domestic sphere, unless the words of the treaty itself clearly express the
intention to make the treaty self-executory, or unless there is
corresponding legislative enactment providing for its domestic
enforceability. The VFA does not satisfy either of these requirements and
cannot thus be enforced within the U.S
• It must be clear from the text of the VFA itself that the VFA is self-
executory in order that it may be reciprocally enforced.
• The recognition of the President through the former U.S. Ambassador that
the VFA is a treaty is insufficient to make this international obligation
executory in the domestic sphere.
• Congressional act is necessary to transform the international obligations
brought about by the VFA.
• There is an “asymmetry in the legal treatment” of the VFA.
2 Note: Prior to the VFA, US troops were already holding joint training exercises in the PH but at a reduced scale. Also, prior to the year 2002, the last “Balikatan” was held in 1995.
2. Both the Mutual Defense Treaty and the Visiting Forces Agreement prohibit “ARTICLE II. ‘In order more effectively to achieve the objective of this Treaty,
foreign troops from engaging in an offensive war on Philippine Territory. the Parties separately and jointly by self-help and mutual aid will maintain and
develop their individual and collective capacity to resist armed attack.
a) All treaties and international agreements to which the
Philippines is a party, must be read in the context of the 1987 “ARTICLE III. “The Parties, through their Foreign Ministers or their deputies, will
Constitution…From the perspective of public international law, consult together from time to time regarding the implementation of this Treaty
and whenever in the opinion of either of them the territorial integrity, political 4. The Exercise is a mutual counter-terrorism advising, assisting and training
independence or security of either of the Parties is threatened by external Exercise relative to Philippine efforts against the ASG, and will be conducted
armed attack in the Pacific. on the Island of Basilan. Further advising, assisting and training exercises shall
be conducted in Malagutay and the Zamboanga area. Related activities in
“ARTICLE IV. “Each Party recognizes that an armed attack in the Pacific Area on Cebu will be for support of the Exercise.
either of the Parties would be dangerous to its own peace and safety and
5. US exercise participants shall not engage in combat, without prejudice to
“ARTICLE V. “For the purpose of Article IV, an armed attack on either of the their right of self-defense.
Parties is deemed to include an attack on the metropolitan territory of either of
the Parties, or on the island territories under its jurisdiction in the Pacific or on II. EXERCISE LEVEL
its armed forces, public vessels or aircraft used in the Pacific.
1. TRAINING
“ARTICLE VI. “This Treaty does not affect and shall not be interpreted as
affecting in any way the rights and obligations of the Parties under the Charter a. The Exercise shall involve the conduct of mutual military assisting, advising
of the United Nations or the responsibility of the United Nations for the and training of RP and US Forces with the primary objective of enhancing the
maintenance of international peace and security. operational capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
“ARTICLE VII. “This Treaty shall be ratified by the United States of America and
the Republic of the Philippines in accordance with their respective Annex C - Agreed Minutes
constitutional processes and will come into force when instruments of “Both Secretary Guingona and Assistant Secretary Kelly expressed the belief
ratification thereof have been exchanged by them at Manila. that the Exercise shall not in any way contribute to any escalation of other
conflicts in Mindanao, shall not adversely affect the progress of ongoing peace
“ARTICLE VIII. “This Treaty shall remain in force indefinitely. Either Party may negotiations between the Government of the Philippines and other parties, and
terminate it one year after notice has been given to the other party. shall not put at risk the friendly relations between the Philippines and its
neighbors as well as with other states. Secretary Guingona stated that he had in
Annex B - Draft Terms of Reference (TOR) mind the ongoing peace negotiations with the NDF and the MILF and he
I. POLICY LEVEL emphasized that it is important to make sure that the Exercise shall not in any
way hinder those negotiations.
1. The Exercise shall be consistent with the Philippine Constitution and all its
activities shall be in consonance with the laws of the land and the provisions “Both Secretary Guingona and Assistant Secretary Kelly stated that they look
of the RP-US Visiting Forces Agreement (VFA). forward to the realization of the nearly US$100 million in security assistance
for fiscal years 2001-2002 agreed upon between H.E. President Gloria
2. No permanent US basing and support facilities shall be established. Macapagal-Arroyo and H.E. President George W. Bush last November 2001.
Temporary structures such as those for troop billeting, classroom instruction
and messing may be set up for use by RP and US Forces during the Exercise.
Recit-Ready: This is a petition for mandamus filed by petitioners to compel the 3. It is the theory of the petitioners that it is the duty of the executive department to
Office of the Executive Secretary and the Department of Foreign Affairs to transmit transmit the signed copy of the Rome Statute to the Senate to allow it to exercise
the signed copy of the Rome Statute of the International Criminal Court (ICC) to the its discretion with respect to ratification of treaties.
Senate for its concurrence in accordance with Section 21, Article VII of the 1987
Constitution. The Rome Statute established the ICC which shall have the power to ISSUES: Whether the Executive Secretary and the Department of Foreign Affairs
exercise its jurisdiction over persons for the most serious crimes of international have a ministerial duty to transmit to the Senate the copy of the Rome Statute
concern and shall be complementary to the national criminal jurisdictions. The issue signed by a member of the Philippine Mission to the UN even without the signature
is Whether the Executive Secretary and the Department of Foreign Affairs have a of the President
ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a
member of the Philippine Mission to the UN even without the signature of the RATIO:
President. The Court ruled that the power to ratify is vested in the President, subject
to the concurrence of the Senate. The role of the Senate, however, is limited only to 1. A petition for mandamus may be filed when any tribunal, corporation, board,
giving or withholding its consent, or concurrence, to the ratification. Hence, it is officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station.
within the authority of the President to refuse to submit a treaty to the Senate or,
having secured its consent for its ratification, refuse to ratify it. This Court has no
2. The President is vested with the authority to deal with foreign states and
jurisdiction over actions seeking to enjoin the President in the performance of his
governments, extend or withhold recognition, maintain diplomatic relations, enter
official duties.
into treaties, and otherwise transact the business of foreign relations. while the
President has the sole authority to negotiate and enter into treaties, the
Doctrine: The power to ratify is vested in the President, subject to the concurrence
Constitution provides a limitation to his power by requiring the concurrence of 2/3
of the Senate. The role of the Senate, however, is limited only to giving or
of all the members of the Senate for the validity of the treaty entered into by him.
withholding its consent, or concurrence, to the ratification. Hence, it is within the
Section 21, Article VII of the 1987 Constitution provides that "no treaty or
authority of the President to refuse to submit a treaty to the Senate or, having
international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate."
3. The signing of the treaty and ratification are two separate and distinct steps in
the treaty-making process. The signature is primarily intended as a means of
authenticating the instrument and as a symbol of good faith of the parties. It is
usually performed by the state’s authorized representative in the diplomatic
mission. Ratification, on the other hand, is the formal act by which a state confirms
and accepts the provisions of a treaty concluded by its representative. It is
generally held to be an executive act, undertaken by the head of the state or of the
government.
4. Petitioners' submission that the Philippines is bound under treaty law and
international law to ratify the treaty which it has signed is without basis. The
signature does not signify the final consent of the state to the treaty. It is the
ratification that binds the state to the provisions thereof.
5. The power to ratify is vested in the President, subject to the concurrence of the
Senate. The role of the Senate, however, is limited only to giving or withholding its
consent, or concurrence, to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its consent
for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty
which has been signed in its behalf is a serious step that should not be taken lightly,
such decision is within the competence of the President alone, which cannot be
encroached by this Court via a writ of mandamus. This Court has no jurisdiction
over actions seeking to enjoin the President in the performance of his official
duties.
“Soft law” does not fall into any of the categories of international law...It is,
[24] Pharmaceutical and Health Care Association v Duque III/DOH
however, an expression of non-binding norms, principles, and practices that
influence state behavior.
GR No. 173034 | 2007 October 9 | PIL | Vince
Petitioner: Pharmaceutical and Health Care Association of the Philippines
FACTS:
Respondents: Duque III , Department of Health
Instruments/Laws Involved
Recit-Ready:
● Revised Implementing Rules of the Milk Code (RIRR)
The Milk Code was issued by former president Corazon Aquino in order to give
● Milk Code
effect to the International Code of Marketing of Breastmilk Substitutes (ICMBS).
● International Code of Marketing of Breastmilk Substitutes (ICMBS)
From 1982 to 2006, the WHA adopted several resolutions resolutions, one of
● World Health Association (WHA) Resolutions
which prohibits advertisements for breastmilk substitutes. On 2006, the DOH
issued the assailed RIRR which has a provision adopting the mentioned WHA Events
Resolution. Hence, this case assailing the constitutionality of the RIRR
1. October 1986, the Milk Code was issued by former president Aquino to
The main issue in this case is whether or not the WHA Resolutions are part of the give effect to the ICMBS.
law of the land. N O 2. From 1982 to 2006, the WHA adopted several resolutions saying that
breastfeeding should be supported and therefore, nutrition and health
The WHA Resolutions and the ICMBS are not treaties because they have not been claims are not permitted for breastmilk substitutes
concurred with by the Senate. They are however Generally Accepted Principles of 3. On 1990, the International Convention on the Rights of the Child was
International Law (GAPIL). The ICMBS has been incorporated into local law via the ratified by the Philippines
Milk Code, however, not all the provisions have been adopted. The Milk Code did 4. On May 2006, the DOH issued the RIRR
not adopt the prohibition on the advertisements on breastmilk substitutes. Instead, 5. One of the provisions of the RIRR adopts a WHA Resolution which
it only regulates them. prohibits advertisements and promotions of breastmilk substitutes.
6. Petitioners, representing its members that are manufacturers of
The WHA has two powers: the power to adopt regulations and the power to make breastmilk substitutes, now assail the constitutionality of the RIRR. The
recommendations to members. Regulations adopted by the WHA are binding on argue that provisions of the RIRR go beyond the provisions of the Milk
member states. On the other hand, recommendations do not bind the members. Code.
These recommendations however carry moral and political weight.
ISSUES:
The ICMBS and RHA resolutions come into the ambit of these recommendations.
Because they are not binding and not part of the law of the land, there is a need for W/N the RIRR is constitutional. S
OME PROVISIONS
them to be incorporated by local legislation. The Milk Code already adopts the
ICBM, however the subsequent WHA resolutions have not. Therefore, only the W/N the pertinent international agreements (ICMBS and WHA Resolutions)
provisions of the Milk Code but not those subsequent WHA Resolutions can be entered into by the Philippines are part of the law of the land. NOT ALL BECAUSE
validly implemented by the DOH through the subject RIRR NOT ALL THE AGREEMENTS HAVE BEEN INCORPORATED BY LEGISLATION
Doctrine: RATIO:
2 ways international law can become local law
In the case at hand, the WHA Resolutions cannot be considered part of the law of
Transformation Incorporation
the land because there is no law enacted by the legislature.
International law becomes By constitutional
part of the law of the land declaration, international Therefore, t he DOH had no power to include the provision banning
Definition through a constitutional law is deemed to have the advertisement on breastmilk substitutes in the RIRR.
mechanism s uch as local force of domestic law
legislation
G.R. No. 167919 | February 14, 2007 | Exchange Notes | Sha The Court holds that Loan Agreement No. PH-P204 taken in conjunction with the
Exchange of Notes dated December 27, 1999 between the Japanese Government
and the Philippine Government is an executive agreement.
Petitioner: PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA (retired)
and PMA Ê59 FOUNDATION, INC., rep. by its President, COMMODORE CARLOS
L. AGUSTIN (retired) Loan Agreement No. PH-P204 was executed by and between the JBIC and the
Philippine Government pursuant to the Exchange of Notes executed by and
between Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan
Respondents: HON. SECRETARY HERMOGENES E. EBDANE, JR., in his
to the Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their
capacity as Secretary of the DEPARTMENT OF PUBLIC WORKS and HIGHWAYS,
respective governments. The Exchange of Notes expressed that the two
HON. SECRETARY EMILIA T. BONCODIN, in her capacity as Secretary of the
governments have reached an understanding concerning Japanese loans to be
DEPARTMENT OF BUDGET and MANAGEMENT, HON. SECRETARY CESAR V.
extended to the Philippines and that these loans were aimed at promoting our
PURISIMA, in his capacity as Secretary of the DEPARTMENT OF FINANCE, HON.
country’s economic stabilization and development efforts.
TREASURER NORMA L. LASALA, in her capacity as Treasurer of the Bureau of
Treasury, and CHINA ROAD and BRIDGE CORPORATION
Under the circumstances, the JBIC may well be considered an adjunct of the
Japanese Government. Further, Loan Agreement No. PH-P204 is indubitably an
Recit-Ready: The Government of Japan (thru Japan Bank For International
integral part of the Exchange of Notes. It forms part of the Exchange of Notes such
Cooperation (JBIC)) agreed to lend the PH government 15billion yen for that it cannot be properly taken independent thereof.
implementation of Arterial Road Links Development Project. This was done through
exchange notes between Ambassador or Japan and the PH Secretary of Foreign Doctrine: Significantly, an exchange of notes is considered a form of an
Affairs. An Approved Budget for the Contract (ABC) was set to P738,710,563.67. executive agreement, which becomes binding through executive action
However, the project was awarded to China Road & Bridge Corporation (through without the need of a vote by the Senate or Congress.
Resolution No. PJHLA-04-012) who submitted a bid for P952 million which
exceeded the ABC. Petitioner’s seek to annul the said resolution on the ground that FACTS:
it violated RA 9184 which provides that bids exceeding the ABC shall be disqualified.
The respondents contend that such doesn’t apply because the project, financed by
1. Based on the Exchange of Notes1 dated December 27, 1999, the
Loan Agreement No. PH-P204 executed between the Philippine Government and Government of Japan and the Government of the Philippines have
the JBIC, is governed by the latter’s Procurement Guidelines which precludes the reached an understanding concerning Japanese loans to be extended to
imposition of ceilings on bid prices. Moreover, the public respondents characterize the Philippines. These loans were aimed at promoting our country’s
foreign loan agreements as executive agreements and, as such, should be observed economic stabilization and development efforts.
pursuant to the fundamental principle in international law of pacta sunt servanda. 2. Japan Bank For International Cooperation (JBIC) agreed to lend the PH
Government an amount not exceeding Y15,384,000,000 for the
implementation of the Arterial Road Links Development Project (Phase
The issue is WON the Contract Agreement executed by and between the Republic IV) on the terms and conditions set forth in the Loan Agreement
of the Philippines and the China Road & Bridge Corporation is void ab initio.- NO and in accordance with the relevant laws and regulations of Japan.
3. DPWH caused the publication of the invitation to bid for the
implementation of the project in 2 national newspapers (Manila Times and
Manila Standard on November 22 and 29, and December 5, 2002)
1The Exchange of Notes consisted of two documents: (1) a Letter from the Government of Japan, where the salient terms of the loans as set forth by the Government of Japan, through the Japanese
signed by Ambassador Ara, addressed to then Secretary of Foreign Affairs Siazon, confirming the delegation, were reiterated and the said terms were accepted by the Philippine delegation.
understanding reached between the two governments concerning the loans to be extended by the
Government of Japan to the Philippines; and (2) a document denominated as Records of Discussion
4. Prior to the opening of the respective bid proposals, it was announced that Public Respondent’s arguments
the Approved Budget for the Contract (ABC) was in the amount of
P738,710,563.67. (basically the max bid amount that should be accepted) 1. Maintains that the imposition of ceilings or upper limits on bid prices
5. After further evaluation of the bids, the contract was awarded to private in RA 9184 does not apply because the project, financed by Loan
respondent China Road & Bridge Corporation (CRBC) with a bid of Agreement No. PH-P204 executed between the Philippine
P952,564,821.71. The BAC of the DPWH issued the assailed Resolution Government and the JBIC, is governed by the latter’s Procurement
No. PJHLA-04-012 dated May 7, 2004 recommending the award in favor Guidelines which precludes the imposition of ceilings on bid prices.
of China Road & Bridge Corporation of the contract 2. They likewise aver that Loan Agreement No. PH-P204 is governed by RA
4860, as amended, or the Foreign Borrowings Act. Section 4 thereof
Petitioner’s arguments (skip to public respondent’s arguments if pressed for time cause I think states: “Provided, finally, That the method and procedure in comparison
it’s more important) of bids shall be the subject of agreement between the Philippine
Government and the lending institution”
6. Seeks to nullify DPWH Resolution No. PJHL-A-04-012. They also seek to 3. The public respondents characterize foreign loan agreements,
annul the contract of agreement subsequently entered into between the including Loan Agreement No. PH-P204, as executive agreements
DPWH and CRBC pursuant to the said resolution on the ground that the and, as such, should be observed pursuant to the fundamental
award of the contract to violates Sec 31 of RA 9184. principle in international law of pacta sunt servanda. They cite Section
202 of Article VII of the Constitution as giving the President the authority
SEC. 31. Ceiling for Bid Prices.·The ABC shall be the upper limit or to contract foreign loans.
ceiling for the Bid prices. Bid prices that exceed this ceiling shall be 4. The Constitution recognizes the enforceability of executive agreements in
disqualified outright from further participating in the bidding. There shall the same way that it recognizes generally accepted principles of
be no lower limit to the amount of the award. international law as forming part of the law of the land. This recognition
allegedly buttresses the binding effect of executive agreements to which
the Philippine Government is a signatory. It is pointed out by the public
7. Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of respondents that executive agreements are essentially contracts
discretion because it recommended the award of the contract to CRBC governing the rights and obligations of the parties. A contract, being the
whose bid was more than P200 million overpriced based on the ABC. law between the parties, must be faithfully adhered to by them. Guided by
8. Insists that Loan Agreement No. PH-P204 between the JBIC and the the fundamental rule of pacta sunt servanda, the Philippine Government
Philippine Government is neither a treaty, an international nor an bound itself to perform in good faith its duties and obligations under Loan
executive agreement that would bar the application of RA 9184. They Agreement No. PH-P204.
point out that to be considered a treaty, an international or an executive 5. The public respondents further argue against the applicability of RA 9184
agreement, the parties must be two sovereigns or States whereas in the stating that it was signed into law on January 10, 2003. On the other hand,
case of Loan Agreement No. PH- P204, the parties are the Philippine Loan Agreement No. PHP204 was executed on December 28, 1999,
Government and the JBIC, a banking agency of Japan, which has a where the laws then in force on government procurements were PD 1594
separate juridical personality from the Japanese Government. and EO 40. EO 403 excluded from its application “any existing and future
9. They further insist on the applicability of RA 9184 contending that while it government commitments with respect to the bidding and award of
took effect on January 26, 2003 and Loan Agreement No. PH-P204 was contracts financed partly or wholly with funds from international financing
executed prior thereto or on December 28, 1999, the actual procurement institutions as well as from bilateral and other similar foreign sources.”
or award of the contract to CRBC was done after the effectivity of RA 6. Even granting arguendo that Loan Agreement No. PH-P204 were an
9184. Thus, the petition only prays for the annulment of Resolution No. ordinary loan contract, still, RA 9184 is inapplicable under the non-
PJHL-A-04-012 as well as the contract between the DPWH and private impairment clause of the Constitution.
respondent China Road & Bridge Corporation. The petitioners clarify that
they do not pray for the annulment of Loan Agreement No. PH-P204.
Private respondents arguments
2 The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the Government or Government- owned and Controlled Corporations which would have the effect of increasing
prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The the foreign debt, and containing other matters as may be provided by law.
3 no government contract for public service or for furnishing supplies, materials and equipment to the
Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the
government or any of its branches should be entered without public bidding
Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the
1. It is also contended by private respondent China Road & Bridge Consequently, in accordance with these applicable laws, the procurement of
Corporation that even assuming arguendo that RA 9184 could be applied goods and services is governed by the corresponding loan agreement
retroactively, it is still the terms of Loan Agreement No. PH-P204 which entered into by the government and the JBIC, i.e., Loan Agreement No. PH-
should govern the procurement of goods and services for the CP I project. P204. It is clear that the JBIC Procurement Guidelines proscribe the imposition of
It supports its theory by characterizing the said loan agreement, executed ceilings on bid prices.
pursuant to the Exchange of Notes between the Government of Japan
and the Philippine Government, as an executive agreement. 3. IMPORTANT Even if RA 9184 were to be applied retroactively, the
2. Private respondent China Road & Bridge Corporation, like the public terms of the Exchange of Notes dated December 27, 1999 and Loan
respondents, cites RA 4860 as the basis for the Exchange of Notes and Agreement No. PH-P204 would still govern the procurement project.
Loan Agreement No. PH-P204. As an international or executive
agreement, the Exchange of Notes and Loan Agreement No. PH-P204
The petitioners, in order to place the procurement process undertaken for the CP
allegedly created a legally binding obligation on the parties.
I project within the ambit of RA 9184, vigorously assert that Loan Agreement No.
PH-P204 is neither a treaty, an international agreement nor an executive
ISSUES: agreement. They cite EO No. 459 where the three agreements are defined
1. WON the Contract Agreement executed by and between the Republic a) International agreement- shall refer to a contract or understanding, regardless
of the Philippines, through DPWH, and the China Road & Bridge of nomenclature, entered into between the Philippines and another government in
Corporation, for the implementation of civil works for CP I under written form and governed by international law, whether embodied in a single
JBIC Loan Agreement is void ab initio.- NO (important) instrument or in two or more related instruments.
2. WoN petitioners have standing to file the instant Petition. – YES
b) Treaties- international agreements entered into by the Philippines which require
RATIO: (skip to number 3 if pressed for time. I included lang the others just in case it’s asked) legislative concurrence after executive ratification. This term may include
compacts like conventions, declarations, covenants and acts.
1. Issue on locus standi
c) Executive agreements- similar to treaties except that they do not require
In the present case, the petitioners are suing as taxpayers. They have sufficiently legislative concurrence.
demonstrated that, notwithstanding the fact that the CP I project is primarily
financed from loans obtained by the government from the JBIC, nonetheless, The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall
taxpayers’ money would be or is being spent on the project considering that the under any of the three categories because to be any of the three, an agreement
Philippine Government is required to allocate a peso-counterpart therefor. had to be one where the parties are the Philippines as a State and another State.
The JBIC, the petitioners maintain, is a Japanese banking agency, which
2. Issue on retroactivity of RA 9184 presumably has a separate juridical personality from the Japanese Government.
It is not disputed that the Invitation to Prequalify and to Bid for its implementation The petitioners’ arguments fail to persuade. The Court holds that Loan
was published in two leading national newspapers on November 22, 29 and Agreement No. PH-P204 taken in conjunction with the Exchange of Notes
December 5, 2002. At the time, the law in effect was EO 40. On the other hand, dated December 27, 1999 between the Japanese Government and the
RA 9184 took effect two months later or on January 26, 2003. Further, its full Philippine Government is an executive agreement.
implementation was even delayed as IRR-A was only approved by President
Arroyo on September 18, 2003 and subsequently published on September 23, Loan Agreement No. PH-P204 was executed by and between the JBIC and the
2003. The provisions of EO 40 apply to the procurement process. Philippine Government pursuant to the Exchange of Notes executed by and
between Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of
EO 40 expressly recognizes as an exception to its scope and application those Japan to the Philippines, and then Foreign Affairs Secretary Siazon, in behalf of
government commitments with respect to bidding and award of contracts financed their respective governments. The Exchange of Notes expressed that the two
partly or wholly with funds from international financing institutions as well as from governments have reached an understanding concerning Japanese loans to
bilateral and other similar foreign sources. be extended to the Philippines and that these loans were aimed at promoting our
country’s economic stabilization and development efforts.
Under the circumstances, the JBIC may well be considered an adjunct of the the executing agency of the projects financed by Loan Agreement No. PH- P204,
Japanese Government. Further, Loan Agreement No. PH-P204 is indubitably rightfully awarded the contract for the implementation of civil works for the CP I
an integral part of the Exchange of Notes. It forms part of the Exchange of project to private respondent China Road & Bridge Corporation.
Notes such that it cannot be properly taken independent thereof.
WHEREFORE, premises considered, the petition is DISMISSED.
The term exchange note is defined in the United Nations Treaty Collection as “ 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.”
Under the fundamental principle of international law of pacta sunt servanda, which
is, in fact, embodied in Section 4 of RA 9184 as it provides that “[a]ny treaty or
international or executive agreement affecting the subject matter of this Act to
which the Philippine government is a signatory shall be observed,” the DPWH, as
of the GRP-MILF Tripoli Agreement in Kuala Lumpur, Malaysia. However,
[17] PROVINCE OF NORTH COTABATO v. GRP PEACE PANEL this did not materialize because upon motion of petitioners, specifically
those who filed their cases before the scheduled signing, the Court issued
GR No. 183591 | October 14, 2008 | Treaties | Mart a TRO enjoining the GRP from signing.
Petitioner: THE PROVINCE OF NORTH COTABATO
2. The MOA-AD was preceded by a long process of negotiations beginning
Respondents: GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
in 1996, then in 1997 when the GRP and the MILF signed the agreement
PEACE PANEL ON ANCESTRAL DOMAIN
on General Cessation of Hostilities, and the Framework of Agreement of
Intent in 1998.
Recit-Ready: The Republic and the MILF were scheduled to sign the MOA-
Ancestral Domain aspect of the Tripoli Agreement. However, this did not go as
3. However, towards the end of 1999, the MILF attacked municipalities in
planned because petitioners moved for the Court to issue a TRO enjoining the
Central Mindanao and, in 2000, took control of the town hall of Kauswagan
GRP from signing. In essence, the MOA-AD would partake of a treaty device. The
Lanao del Norte. In response, then President Erap declared an all oout
cases were heard on oral arguments discussing WHETHER BY SIGNING, THE
war against the MILF.
GRP WOULD BE BINDING ITSELF TO CREATE THE BJE AS A SEPARATE
STATE, REVISE THE CONSTITUTION TO CONFORM TO THE MOA, AND TO
4. When President Arroyo took office, the military offensive against the MILF
RECOGNIZE THE CLAIM OF THE MILF FOR ANCESTRAL DOMAIN IN
was suspended and the government sought a resumption of the peace
VIOLATION OF THE IPRA. The Court held in the affirmative. Presently, the MOA-
talks. Eventually, the MILF agreed to discuss the matter and suspended
AD does not conform to the Constitution. It goes beyond it when the MOA-AD
all its military actions.
states that the BJE is essentially a state. The Constitution has no provision for
establishing an associative state, only for autonomous regions. On the aspect of
5. Formal peace talks were held in Tripoli, Libya, the result of which was the
international law, International law gives the people of a state the right to self-
GRP-MILF Tripoli Agreement containing the basic principles and agenda
determination, but more often than not, this has been limited to internal self-
on the following aspects: Security, Rehabilitation, and Ancestral Domain.
determination, a people's pursuit of its political, economic, social and cultural
A second round of peace talks ended with the signing of the Implementing
development within the framework of an existing state; as opposed to external self-
guidelines on the security aspect of the Tripoli Agreement leading to a
determination which is as the establishment of a sovereign and independent State,
ceasefire. This was followed by the Implementing Guidelines on the
the free association or integration with an independent State or the emergence into
Humanitarian Rehabilitation and Development Aspect. In 2005, several
any other political status freely determined by a people. Even in considering the
talks were held in Kuala Lumpur, eventually leading to the crafting of the
rights of the Indigenous Peoples declared in the DRIP, the DRIP did not obligate
draft MOA-AD in its final form, which was set to be signed on August 5,
States to grant indigenous peoples the near-independent status of an associated
2008.
state. Even if the UN DRIP were considered as part of the law of the land pursuant
to Article II, Section 2 of the Constitution, it would not suffice to uphold the validity
6. The OSG summarized the MOA-AD by stating that it contained the
of the MOA-AD so as to render its compliance with other laws unnecessary.
commitment of the parties to pursue peace negotiations, protect and
respect human rights, negotiate with sincerity in the resolution and pacific
settlement of the conflict, and refrain from the use of treat or force to attain
Doctrine: TREATIES HAVE TO BE IN LINE WITH THE DOMESTIC LAWS OF
undue advantage while the peace talks were ongoing.
THE PARTIES, ESPECIALLY THE CONSTITUTION, IN ORDER TO BIND THE
PARTY STATE.
7. OVERVIEW OF THE MOA-AD:
FACTS: The MOA-AD identifies the Parties as the GRP and the MILF. Aside from
the four earlier agreements, the MOA-AD includes also two agreements
1. On August 5, 2008, the Republic and the MILF, were scheduled to sign a between the GRP and the MNLF: The 1976 Tripoli agreement, and the
Memorandum of Agreement on the Ancestral Domain (MOA-AD) aspect final peace agreement on the implementation of the 1976 Tripoli
Agreement, signed in 1996. It also identifies as Terms of Reference (TOR) territoriality exercised originally under the suzerain authority of their
the organic act for ARMM, and the Indigenous Peoples Rights Act (IPRA), sultanates.
and several international law instruments like the ILO Convention No. 169
concerning Indigenous and Tribal peoples in Independent Countries in The MOA-AD also mentions the Bangsamoro Juriidical Entity (BJE) to
relation to the UN Declaration on the Rights of the Indigenous Peoples, which it grants the authority and jurisdiction over the Ancestral Domain
and the UN Charter, among others. The final TOR is the generic category and Ancestral Lands of the Bangsamoro
of “Compact rights entrenchment” emanating from the regime of “Territory
under compact” and “Territory under peace agreement” that partakes the Territory
nature of a treaty device.
The territory is described as the land mass as well as the maritime,
During the height of the Muslim Empire, early Muslim jurists tended to see terrestrial, fluvial and alluvial domains, including the aerial domain and the
in this dichotomy: Those lands were Islamic held sway, and those lands atmospheric space above it, embracing the Mindanao-Sulu-Palawan
where Muslims were persecuted or where Muslim laws were outlawed or geographic region. More specifically, the core territory is what is presently
ineffective. Through time, this way of viewing the world became more the ARMM.
complex as the Islamic world became part of the international community
of nations. New terms were added. The “land of compact” and “land of The parties also stipulate that the BJE shall have jurisdiction over all
treaty” referred to secular countries which maintained peaceful and natural resources within its internal waters, and that the BJE shall also
cooperative relations with Muslim states. “Land of order” referred to have territorial waters which it exercises joint jurisdiction with the Central
countries which were not bound by treaty with Muslim states, but government. It also provides for the sharing of minerals on the territorial
maintained freedom of religion for Muslims. waters between the Central government and the BJE, in favor of the latter.
It thus appears that the final TOR simply refers to all other Resources
agreements between the MILF and the GRP that partake of the nature
of a treaty device; treaty defined as “any solemn agreement in writing The MOA-AD states that the BJE is free to enter into any economic
that sets out understandings, obligations, and benefits for both parties cooperation and trade relations with foreign countries and shall have the
which provides for a framework that elaborates the principles declared in option to establish trade missions in those countries. Such relationships
the MOA-AD. and understandings, however, are not to include aggression against the
GRP. The BJE may also enter into environmental cooperation
8. THE FOUR STRANDS OF THE MOA-AD. agreements.
Concepts and Principles The external defense of the BJE is to remain the duty and obligation of
the Central Government. The Central Government is also bound to "take
All Moros and all Indigenous Peoples of Mindanao identify themselves as necessary steps to ensure the BJE's participation in international
the Bangsamoros which it also defines as the natives or original meetings and events" like those of the ASEAN and the specialized
inhabitants of Mindanao at the time of conquest or colonization. agencies of the UN. The BJE is to be entitled to participate in Philippine
official missions and delegations for the negotiation of border agreements
The MOA-AD proceeds to refer to the Bangsamoro homeland, the or protocols for environmental protection and equitable sharing of
ownership is exclusive to the Bangsamoros by virtue of their prior right of incomes and revenues involving the bodies of water adjacent to or
occupation. The parties agreed that ancestral domain does not form part between the islands forming part of the ancestral domain.
of the public domain.
With regard to the right of exploring for, producing, and obtaining all
Pursuant also to their tradition, the Bangsamoro are acknowledged as potential sources of energy, petroleum, fossil fuel, mineral oil and natural
having the right to self-governance. This is rooted on the ancestral gas, the jurisdiction and control thereon is to be vested in the BJE "as the
party having control within its territorial jurisdiction." This right carries the judicial system and correctional institutions, the details of which shall be
proviso that, "in times of national emergency, when public interest so discussed in the negotiation of the comprehensive compact.
requires," the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or ISSUES: W/N THE MOA-AD IS CONSISTENT WITH THE CONSTITUTION AND
direct the operation of such resources. LAWS AS PRESENTLY WORDED - NO
The BJE may modify or cancel the forest concessions, timber licenses, RATIO:
contracts or agreements, mining concessions, Mineral Production and
Sharing Agreements (MPSA), Industrial Forest Management Agreements The MOA-AD explicitly alluded to the concept of Association, indicating that the
(IFMA), and other land tenure instruments granted by the Philippine parties actually its provisions with it in mind. An association is formed when two
Government, including those issued by the present ARMM. states of unequal power voluntarily establish durable links. In the basic model,
one state, the associate, delegates certain responsibilities to the other, the
Governance principal, while maintaining its international status as a state. Free associations
represent a middle ground between integration and independence. In
The MOA-AD binds the Parties to invite a multinational third-party to international practice, the "associated state" arrangement has usually been used
observe and monitor the implementation of the Comprehensive Compact. as a transitional device of former colonies on their way to full independence.
This compact is to embody the "details for the effective enforcement" and
"the mechanisms and modalities for the actual implementation" of the Back to the MOA-AD, it contains many provisions which are consistent with the
MOA-AD. The MOA-AD explicitly provides that the participation of the international legal concept of association, specifically the following: the BJE's
third party shall not in any way affect the status of the relationship between capacity to enter into economic and trade relations with foreign countries, the
the Central Government and the BJE. commitment of the Central Government to ensure the BJE's participation in
meetings and events in the ASEAN and the specialized UN agencies, and the
The MOA-AD describes the relationship of the Central Government and continuing responsibility of the Central Government over external defense.
the BJE as "associative," characterized by shared authority and Moreover, the BJE's right to participate in Philippine official missions bearing on
responsibility. And it states that the structure of governance is to be based negotiation of border agreements, environmental protection, and sharing of
on executive, legislative, judicial, and administrative institutions with revenues pertaining to the bodies of water adjacent to or between the islands
defined powers and functions in the Comprehensive Compact. forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any
The MOA-AD provides that its provisions requiring "amendments to the foreign affairs matter affecting them.
existing legal framework" shall take effect upon signing of the
Comprehensive Compact and upon effecting the aforesaid amendments, The concept of association is not recognized under the Present
with due regard to the non-derogation of prior agreements and within the Constitution. Not even the ARMM is recognized as having an associative
stipulated timeframe to be contained in the Comprehensive Compact. relationship with the national government. The concept implies powers that
go beyond anything ever granted by the Constitution to any local or
The BJE is granted the power to build, develop and maintain its own regional government. Even the mere concept animating many of the MOA-AD’s
institutions inclusive of civil service, electoral, financial and banking, provisions already requires amendments of constitutional provisions for its
education, legislation, legal, economic, police and internal security force, validity, specifically on Article X, Sections 11 and 152.
1 Section 1. The territorial and political subdivisions of the Republic of the Philippines are the common and distinctive historical and cultural heritage, economic and social structures, and
provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim other relevant characteristics within the framework of this Constitution and the national
Mindanao and the Cordilleras as hereinafter provided. sovereignty as well as territorial integrity of the Republic of the Philippines.
2 Section 15. There shall be created autonomous regions in Muslim Mindanao and in the .
Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing
The BJE is far more powerful than th autonomous region recognized in the
Constitution. It is a sate in all but name as it meets the criteria of a state laid The recognized sources of international law establish that the right to self-determination of a
down in the Montevideo Convention namely: A permanent population, a defined people is normally fulfilled through internal self-determination - a people's pursuit of its political,
economic, social and cultural development within the framework of an existing state. A right to
territory, a government, and a capacity to enter into relations with other states.
external self-determination (which in this case potentially takes the form of the assertion of a
right to unilateral secession) arises in only the most extreme of cases and can be defined as the
Article X, Section 18 of the Constitution provides that "[t]he creation of the establishment of a sovereign and independent State, the free association or integration with an
autonomous region shall be effective when approved by a majority of the votes independent State or the emergence into any other political status freely determined by a
cast by the constituent units in a plebiscite called for the purpose, provided that people.
only provinces, cities, and geographic areas voting favorably in such plebiscite
When it comes to indigenous peoples, the UN General Assembly adopted the
shall be included in the autonomous region." Under paragraph 2(c) on
UN Declaration on the Rights of Indigenous Peoples (DRIP). It recognized the
TERRITORY in relation to 2(d) and 2(e), the present geographic area of the
right of IP to self-determination, encompassing the right to autonomy or self-
ARMM and, in addition, the municipalities of Lanao del Norte which voted for
government. Self-government has been understood to be equivalent to internal
inclusion in the ARMM during the 2001 plebiscite are automatically part of the
self-determination. Assuming that the DRIP is a customary international law, the
BJE without need of another plebiscite. That the present components of the
obligations enumerated therein do not strictly require the Republic to grant the
ARMM and the above-mentioned municipalities voted for inclusion therein in
Bangsamoro people, through the instrumentality of the BJE, the particular rights
2001, however, does not render another plebiscite unnecessary under the
and powers provided for in the MOA-AD. Even the more specific provisions of the
Constitution, precisely because what these areas voted for then was their
UN DRIP are general in scope, allowing for flexibility in its application by the
inclusion in the ARMM, not the BJE.
different States.
ON THE ASPECT OF INTERNATIONAL LAW
There is, for instance, no requirement in the UN DRIP that States now guarantee
indigenous peoples their own police and internal security force. Indeed, Article 8
Article II, Section 2 of the Constitution states that the Philippines "adopts the
presupposes that it is the State which will provide protection for indigenous
generally accepted principles of international law as part of the law of the land."
peoples against acts like the forced dispossession of their lands - a function that
is normally performed by police officers. If the protection of a right so essential to
International law has long recognized the right to self-determination of "peoples,"
indigenous people's identity is acknowledged to be the responsibility of the State,
understood not merely as the entire population of a State but also a portion
then surely the protection of rights less significant to them as such peoples would
thereof. In considering the question of whether the people of Quebec had a right
also be the duty of States. Nor is there in the UN DRIP an acknowledgement of
to unilaterally secede from Canada, the Canadian Supreme Court in
the right of indigenous peoples to the aerial domain and atmospheric space.
REFERENCE RE SECESSION OF QUEBEC had occasion to acknowledge that
What it upholds, in Article 26 thereof, is the right of indigenous peoples to the
"the right of a people to self-determination is now so widely recognized in
lands, territories and resources which they have traditionally owned, occupied or
international conventions that the principle has acquired a status beyond
otherwise used or acquired.
‘convention' and is considered a general principle of international law."
PROCEDURAL HISTORY: b. Since the PH applies the restrictive theory, it is crucial to ascertain
the legal nature of the act involved— whether the entity claiming
1. The case was filed by the respondents to the RTC of Makati Br. 145, which immunity from suit performs a governmental, as opposed to
issued an order setting the case for hearing on the issuance of injunctive proprietary, functions.
reliefs.
c. CNMEG performs purely commercial and engaged in a proprietary
2. CNMEG filed an Urgent Motion for Reconsideration of the order. But before the activity. As proven by the ff:
Court can rule on this, CNMEG filed for Motion to Dismiss arguing that the trial
court did not have jurisdiction over its person, as an agent of the Chinese gov’t 1. Memorandum of Understanding Sept. 14, 2002 — it was
and hence, immune from suit and that the subject matter was a product of an CNMEG, who initiated the project not the Chinese Gov’t, as
executive agreement. seen in the relevant part of the Agreement. “CNMEG has
expressed interest in rehabilitation and/or modernization of
3. RTC Br. 145, on May 15, 2007, denied the Motion to Dismiss and setting the MNL”
case for summary hearing. CNMEG filed an MR but was also denied.
2. Letter of Ambassador Wang Oct. 1, 2003 — it confirms that
4. CNMEG filed before the CA a Petition for Certiorari with Prayer for the the Northrail Project was initiated by CNMEG. It is also
Issuance of TRO and/or Writ of Preliminary Injunction dated April 4, 2008. purely commercial and for profit since CNMEG even
pegged the price of the project to USD $421, 050, 000.
5. On Sept. 30, 2008, CA dismissed the the Petition for Certiorari. CNMEG filed a
MR, which was denied by the CA. 3. The Loan Agreement — provides that the contract is a
commercial activity and there is a waiver of immunity and
6. CNMEG then filed the instant Petition for Review on Certiorari dated Jan. 21, that the proceedings to enforce agreement will be the laws
2009. of the PH.
b. In Bayan vs. Romulo, this Court held that an executive agreement is
similar to a treaty, except that former a. Does not require legislative
concurrence; b. Usually less formal; and c. Deals with a narrower
range of subject matter.
2. It must be in writing
1 2
DB paid 15% BPRT, but the treaty says 10% lang, so dapat irefund yung 5% Revenue Memorandum Order
RMO No. 1-2000 involve an administrative procedure, these may be
remedied through other system management processes.
2. By virtue of the RP-Germany Tax Treaty, we are bound to extend to a
branch in the Philippines, remitting to its head office in Germany, the
benefit of a preferential rate equivalent to 10% BPRT.
3. Our Constitution provides for adherence to the general principles of
international law as part of the law of the land. The international principle
of pacta sunt servanda demands the performance in good faith of treaty
obligations on the part of the states that enter into the agreement.
Treaties have the force and effect of law in this jurisdiction.
4. Tax treaties are entered into to minimize, if not eliminate the harshness
of international juridical double taxation, which is why they are also
known as double tax treaty or double tax agreements.
5. The BIR must not impose additional requirements that would negate the
availment of the reliefs provided for under international agreements.
More so, when the RP-Germany Tax Treaty does not provide for any pre-
requisite for the availment of the benefits under said agreement.
6. The minute resolution in the Mirant case cited by the CTA is not a binding
precedent. Nothing in RMO No. 1-2000 which would indicate a
deprivation of entitlement to a tax treaty relief for failure to comply with
the 15-day period.
7. Also, the underlying principle of prior application with the BIR becomes
moot in refund cases, where the very basis of the claim is excessive
payment arising from non-availment of a tax treaty relief In this case, DB
should not be faulted for not complying with RMO No. 1-2000. It could
not have applied for a tax treaty relief 15 days prior to the payment of its
BPRT, precisely because it erroneously paid the BPRT not on the basis
of the preferential tax rate under the RP-Germany Tax Treaty, but on the
regular rate as prescribed by the NIRC.
The duty to faithfully execute the laws of the land is inherent in executive power and
[20] Saguisag v. Executive Secretary
is intimately related to the other executive functions. These functions include the duty
G.R. No. 212426 GR No. | Jan 12, 2016 | Treaties | Lii to ensure compliance with treaties, executive agreements and executive orders.
Congress cannot limit or take over the President's power to adopt implementing rules
Petitioner: Saguisag et. al. and regulations for a law it has enacted. The import of this characteristic is that the
Respondents: Executive Secretary Paquito Ochoa, et. al. manner of the President's execution of the law, even if not expressly granted by the
law, is justi fied by necessity and limited only by law, since the President must take
Recit-Ready: necessary and proper steps to carry into execution the law.
Due to the impending expiration of the 1947 Military Bases Agreement (MBA) in 1991,
the Philippines and the U.S. agreed to hold joint military exercises at a substantially Despite the President's roles as defender of the State and sole authority in foreign
reduced level. The military arrangements between them were revived in 1999 when relations, the 1987 Constitution expressly limits his ability in instances when it
they concluded the first Visiting Forces Agreement (VFA). As a rearmation of the involves the entry of foreign military bases, troops or facilities. The initial limitation is
obligations under the Mutual Defense Treaty (MDT) of 1951, the VFA has laid down found in Section 21 of the provisions on the Executive Department: "No treaty or
the regulatory mechanism for the treatment of U.S. military and civilian personnel international agreement shall be valid and effective unless concurred in by at least
visiting the country. The Philippines and the U.S. also entered into a second two- thirds of all the Members of the Senate." The President, however, may enter into
counterpart agreement (VFA II), which in turn regulated the treatment of Philippine an executive agreement on foreign military bases, troops, or facilities, if (a) it is not
military and civilian personnel visiting the U.S. The Philippine Senate concurred in the the instrument that allows the presence of foreign military bases, troops, or facilities;
fi rst VFA. or (b) it merely aims to implement an existing law or treaty.
EDCA authorizes the U.S. military forces to have access to and conduct activities A plain textual reading of Article XIII, Section 25 of the Constitution leads to the
within certain "Agreed Locations" in the country. It was not transmitted to the Senate conclusion that the requirement for EDCA to be submitted to the Senate in the form of
on the executive's understanding that to do so was no longer necessary. In June a treaty for concurrence by at least two-thirds of all its members applies only to a
2014, the Department of Foreign Affairs (DFA) and the U.S. Embassy exchanged proposed agreement between our government and a foreign government, whereby
diplomatic notes confirming the completion of all necessary internal requirements for military bases, troops, or facilities of such foreign government would be "allowed" or
the agreement to enter into force in the two countries. would "gain entry" Philippine territory.
According to the Philippine government, the conclusion of EDCA was the result of Executive agreements may cover the matter of foreign military forces if it merely
intensive and comprehensive negotiations in the course of almost two years. After involves detail adjustments. The practice of resorting to executive agreements in
eight rounds of negotiations, the Secretary of National Defense and the U.S. adjusting the details of a law or a treaty that already deals with the presence of
Ambassador to the Philippines signed the agreement. President Benigno S. Aquino III foreign military forces is not at all unusual in this jurisdiction. The Court has already
ratified EDCA. implicitly acknowledged this practice in Lim v. Executive Secretary.
The issues of this case are: EDCA is consistent with the content, purpose, and framework of the MDT and the
1. Whether the President may enter into an executive agreement on foreign military VFA. Even if EDCA was borne of military necessity, it has not strayed from the intent
bases, troops, or facilities of the VFA since EDCA's combat-related components are allowed under the treaty.
2. Whether the provisions under EDCA are consistent with the Constitution, as well as
with existing laws and treaties The Constitutional Commission articulated three legal standards to allow foreign
military bases, troops, or facilities, subject to the provisions of Section 25: (1)
As it is, EDCA is not constitutionally infi rm. As an executive agreement, it remains independence from foreign control, (2) sovereignty and applicable law, and (3)
consistent with existing laws and treaties that it purports to implement. national security and territorial integrity.
First standard: independence from foreign control The same section also recognizes that "[t]itle to such property shall remain" with the
EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of US and that they have the discretion to "remove such property from the Philippines at
use and access. Under its pertinent provisions, it is the Designated Authority of the any time." There is nothing novel, either, in the EDCA provision on the prepositioning
Philippines that shall, when requested, assist in facilitating transit or access to public and storing of "defense equipment, supplies, and material," since these are
land and facilities. The activities carried out within these locations are subject to sanctioned in the VFA. There is no basis to invalidate EDCA on fears that it increases
agreement as authorized by the Philippine government. Granting the U.S. operational the threat to our national security.
control over these locations is likewise subject to EDCA's security mechanisms, which
are bilateral procedures involving Philippine consent and cooperation. Finally, the Doctrine:
Philippine Designated Authority or a duly designated representative is given access to Executive agreements may cover the matter of foreign military forces if it merely
the Agreed Locations. Thus, the legal concept of operational control involves involves detail adjustments.
authority over personnel in a commander-subordinate relationship and does not
include control over the Agreed Locations in this particular case.
FACTS:
Second standard: retain sovereignty and jurisdiction over its territory Due to the impending expiration of the 1947 Military Bases Agreement (MBA) in
EDCA states in its Preamble the "understanding for the United States not to establish 1991, the Philippines and the U.S. negotiated for a possible renewal of their
a permanent military presence or base in the territory of the Philippines." Further on, it defense and security relationship through the proposed Treaty of Friendship,
likewise states the recognition that "all United States access to and use of facilities Cooperation and Security. One of the proposed provisions included an
and areas will be at the invitation of the Philippines and with full respect for the arrangement in which U.S. forces would be granted the use of certain
Philippine Constitution and Philippine laws." From the text of EDCA itself, Agreed installations within the Philippine naval base in Subic. The Senate rejected the
proposed treaty.
Locations are territories of the Philippines that the U.S. forces are allowed to access
and use. By withholding ownership of these areas and retaining unrestricted access
to them, the government asserts sovereignty over its territory. That sovereignty exists
so long as the Filipino people exist. Significantly, the Philippines retains primary The respective governments of the two countries agreed to hold joint military
responsibility for security with respect to the Agreed Locations. Hence, Philippine law exercises at a substantially reduced level. The military arrangements between
remains in force therein, and it cannot be said that jurisdiction has been transferred to them were revived in 1999 when they concluded the first Visiting Forces
the U.S. EDCA retains the primary jurisdiction of the Philippines over the security of Agreement (VFA). As a reaffirmation of the obligations under the Mutual
the Agreed Locations, an important provision that gives it actual control over those Defense Treaty (MDT) of 1951, the VFA has laid down the regulatory
mechanism for the treatment of U.S. military and civilian personnel visiting the
locations. Previously, it was the provost marshal of the U.S. who kept the peace and
country. It contains provisions on the entry and departure of U.S. personnel; the
enforced Philippine law in the bases.
purpose, extent, and limitations of their activities; criminal and disciplinary
jurisdiction; the waiver of certain claims; the importation and exportation of
Third standard: respect national security and territorial integrity equipment, materials, supplies, and other pieces of property owned by the U.S.
The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not government; and the movement of U.S. military vehicles, vessels, and aircraft
allow, for instance, the re-establishment of the military bases. Instead of authorizing into and within the country. The Philippines and the U.S. also entered into a
the building of temporary structures as previous agreements have done, EDCA second counterpart agreement (VFA II), which in turn regulated the treatment of
authorizes the U.S. to build permanent structures or alter or improve existing ones Philippine military and civilian personnel visiting the U.S. The Philippine Senate
concurred in the first VFA.
for, and to be owned by, the Philippines. EDCA is clear that the Philippines retains
ownership of altered or improved facilities and newly constructed permanent or
non-relocatable structures. Concerns on national security problems that arise from
foreign military equipment being present in the Philippines must likewise be The Philippines and the U.S. entered into the Mutual Logistics Support
contextualized. Most significantly, the VFA already authorizes the presence of U.S. Agreement to further the interoperability, readiness, and effectiveness of their
military equipment in the country. Article VII of the VFA already authorizes the U.S. to respective military forces in accordance with the MDT, the Military Assistance
Agreement of 1953, and the VFA. The new agreement outlined the basic terms,
conditions, and procedures for facilitating the reciprocal provision of logistics expressly granted by the law, is justified by necessity and limited only by law, since
support, supplies, and services between the military forces of the two countries. the President must take necessary and proper steps to carry into execution the law.
The phrase "logistics support and services" includes billeting, operations
support, construction and use of temporary structures, and storage services Despite the President's roles as defender of the State and sole authority in foreign
during an approved activity under the existing military arrangements.
relations, the 1987 Constitution expressly limits his ability in instances when it
involves the entry of foreign military bases, troops or facilities. The initial limitation
is found in Section 21 of the provisions on the Executive Department: "No treaty or
EDCA authorizes the U.S. military forces to have access to and conduct international agreement shall be valid and effective unless concurred in by at least
activities within certain "Agreed Locations" in the country. It was not two- thirds of all the Members of the Senate." The President, however, may enter
transmitted to the Senate on the executive's understanding that to do so was no into an executive agreement on foreign military bases, troops, or facilities, if (a) it is
longer necessary. In June 2014, the Department of Foreign Affairs (DFA) and not the instrument that allows the presence of foreign military bases, troops, or
the U.S. Embassy exchanged diplomatic notes confirming the completion of all facilities; or (b) it merely aims to implement an existing law or treaty.
necessary internal requirements for the agreement to enter into force in the two
countries.
A plain textual reading of Article XIII, Section 25 of the Constitution leads to the
conclusion that the requirement for EDCA to be submitted to the Senate in the form
of a treaty for concurrence by at least two-thirds of all its members applies only to a
According to the Philippine government, the conclusion of EDCA was the result proposed agreement between our government and a foreign government, whereby
of intensive and comprehensive negotiations in the course of almost two years. military bases, troops, or facilities of such foreign government would be "allowed" or
87 After eight rounds of negotiations, the Secretary of National Defense and the would "gain entry" Philippine territory.
U.S. Ambassador to the Philippines signed the agreement. President Benigno S.
Aquino III ratified EDCA It is evident that the constitutional restriction refers solely to the initial entry of the
foreign military bases, troops, or facilities. Once entry is authorized, the subsequent
ISSUES:
acts are thereafter subject only to the limitations provided by the rest of the
1. Whether the President may enter into an executive agreement on foreign Constitution and Philippine law, and not to the Section 25 requirement of validity
military bases, troops, or facilities through a treaty. The VFA, which was ratified by the Senate, has already allowed the
entry of troops in the Philippines. The President may generally enter into executive
2. Whether the provisions under EDCA are consistent with the Constitution, as agreements subject to limitations defined by the Constitution and may be in
well as with existing laws and treaties furtherance of a treaty already concurred in by the Senate.
Treaties are formal documents which require rati cation with the approval of
two-thirds of the Senate while executive agreements become binding through
RATIO:
executive action without the need of a vote by the Senate or by Congress. There are
As it is, EDCA is not constitutionally infi rm. As an executive agreement, it remains
two very important features that distinguish treaties from executive agreements and
consistent with existing laws and treaties that it purports to implement.
translate them into terms of art in the domestic setting.
First, executive agreements must remain traceable to an express or implied
The duty to faithfully execute the laws of the land is inherent in executive power and
authorization under the Constitution, statutes, or treaties. The absence of these
is intimately related to the other executive functions. These functions include the
precedents puts the validity and effectivity of executive agreements under serious
duty to ensure compliance with treaties, executive agreements and executive
question for the main function of the Executive is to enforce the Constitution and the
orders. Congress cannot limit or take over the President's power to adopt
laws enacted by the Legislature, not to defeat or interfere in the performance of
implementing rules and regulations for a law it has enacted. The import of this
these rules. In turn, executive agreements cannot create new international
characteristic is that the manner of the President's execution of the law, even if not
obligations that are not expressly allowed or reasonably implied in the law they
purport to implement. Second, treaties are, by their very nature, considered superior
to executive agreements. Treaties are products of the acts of the Executive and the The Constitutional Commission articulated three legal standards to allow foreign
Senate unlike executive agreements, which are solely executive actions. Because of military bases, troops, or facilities, subject to the provisions of Section 25: (1)
legislative participation through the Senate, a treaty is regarded as being on the independence from foreign control, (2) sovereignty and applicable law, and (3)
same level as a statute. If there is an irreconcilable conflict, a later law or treaty national security and territorial integrity.
takes precedence over one that is prior. An executive agreement is treated
differently. Executive agreements that are inconsistent with either a law or a treaty First standard: independence from foreign control
are considered ineffective. Both types of international agreement are nevertheless EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of
subject to the supremacy of the Constitution. use and access. Under its pertinent provisions, it is the Designated Authority of the
Philippines that shall, when requested, assist in facilitating transit or access to
This rule does not imply, though, that the President is given carte blanche to public land and facilities. The activities carried out within these locations are subject
exercise this discretion. Although the Chief Executive wields the exclusive authority to agreement as authorized by the Philippine government. Granting the U.S.
to conduct our foreign relations, this power must still be exercised within the operational control over these locations is likewise subject to EDCA's security
context and the parameters set by the Constitution, as well as by existing domestic mechanisms, which are bilateral procedures involving Philippine consent and
and international laws. cooperation. Finally, the Philippine Designated Authority or a duly designated
representative is given access to the Agreed Locations. Thus, the legal concept of
The President had the choice to enter into EDCA by way of an executive agreement operational control involves authority over personnel in a commander-subordinate
or a treaty. No court can tell the President to desist from choosing an executive relationship and does not include control over the Agreed Locations in this particular
agreement over a treaty to embody an international agreement, unless the case falls case. Though not necessarily stated in EDCA provisions, this interpretation is readily
squarely within Article VIII, Section 25. implied by the reference to the taking of "appropriate measures to protect United
States forces and United States contractors." Despite this grant of operational
Executive agreements may cover the matter of foreign military forces if it merely control to the U.S., it must be emphasized that the grant is only for construction
involves detail adjustments. The practice of resorting to executive agreements in activities. The narrow and limited instance wherein the U.S. is given operational
adjusting the details of a law or a treaty that already deals with the presence of control within an Agreed Location cannot be equated with foreign military control,
foreign military forces is not at all unusual in this jurisdiction. The Court has already which is so abhorred by the Constitution. The clear import of the provision is that in
implicitly acknowledged this practice in Lim v. Executive Secretary. the absence of construction activities, operational control over the Agreed Location
is vested in the Philippine authorities. Limited control does not violate the
In light of the President's choice to enter into EDCA in the form of an executive Constitution. The fear of the commissioners was total control, to the point that the
agreement, respondents carry the burden of proving that it is a mere implementation foreign military forces might dictate the terms of their acts within the Philippines.
of existing laws and treaties concurred in by the Senate. More important, limited control does not mean an abdication or derogation of
Philippine sovereignty and legal jurisdiction over the Agreed Locations. It is more
EDCA is consistent with the content, purpose, and framework of the MDT and the akin to the extension of diplomatic courtesies and rights to diplomatic agents, which
VFA. Even if EDCA was borne of military necessity, it has not strayed from the intent is a waiver of control on a limited scale and subject to the terms of the treaty.
of the VFA since EDCA's combat- related components are allowed under the treaty.
Moreover, both the VFA and EDCA are silent on what these activities actually are. Second standard: retain sovereignty and jurisdiction over its territory
Both the VFA and EDCA deal with the presence of U.S. forces within the Philippines, EDCA states in its Preamble the "understanding for the United States not to
but make no mention of being platforms for activity beyond Philippine territory. establish a permanent military presence or base in the territory of the Philippines."
While it may be that, as applied, military operations under either the VFA or EDCA Further on, it likewise states the recognition that "all United States access to and
would be carried out in the future, the scope of judicial review does not cover use of facilities and areas will be at the invitation of the Philippines and with full
potential breaches of discretion but only actual occurrences or blatantly illegal respect for the Philippine Constitution and Philippine laws." Sovereignty is the
provisions. Hence, we cannot invalidate EDCA on the basis of the potentially abusive possession of sovereign power, while jurisdiction is the conferment by law of power
use of its provisions. and authority to apply the law. From the text of EDCA itself, Agreed Locations are
territories of the Philippines that the U.S. forces are allowed to access and use. By
withholding ownership of these areas and retaining unrestricted access to them, the
government asserts sovereignty over its territory. That sovereignty exists so long as
the Filipino people exist. Significantly, the Philippines retains primary responsibility
for security with respect to the Agreed Locations. Hence, Philippine law remains in
force therein, and it cannot be said that jurisdiction has been transferred to the U.S.
EDCA retains the primary jurisdiction of the Philippines over the security of the
Agreed Locations, an important provision that gives it actual control over those
locations. Previously, it was the provost marshal of the U.S. who kept the peace and
enforced Philippine law in the bases.
Third standard: respect national security and territorial integrity
The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does
not allow, for instance, the re-establishment of the military bases. In this context,
therefore, this Court has interpreted the restrictions on foreign bases, troops, or
facilities as three independent restrictions. Instead of authorizing the building of
temporary structures as previous agreements have done, EDCA authorizes the U.S.
to build permanent structures or alter or improve existing ones for, and to be owned
by, the Philippines. EDCA is clear that the Philippines retains ownership of altered or
improved facilities and newly constructed permanent or non-relocatable structures.
Under EDCA, U.S. forces will also be allowed to use facilities and areas for "training;
. . .; support and related activities; . . .; temporary accommodation of personnel;
communications” and agreed activities. Concerns on national security problems that
arise from foreign military equipment being present in the Philippines must likewise
be contextualized. Most significantly, the VFA already authorizes the presence of
U.S. military equipment in the country. Article VII of the VFA already authorizes the
U.S. to import into or acquire in the Philippines “equipment, materials, supplies, and
other property" that will be used "in connection with activities" contemplated therein.
The same section also recognizes that "[t]itle to such property shall remain" with the
US and that they have the discretion to "remove such property from the Philippines
at any time." There is nothing novel, either, in the EDCA provision on the
prepositioning and storing of "defense equipment, supplies, and material," since
these are sanctioned in the VFA. In fact, the two countries have already entered into
various implementing agreements in the past that are comparable to the present
one. The Balikatan 02-1 Terms of Reference mentioned in Lim v. Executive
Secretary speci cally recognizes that Philippine and U.S. forces "may share . . . in
the use of their resources, equipment and other assets." There is no basis to
invalidate EDCA on fears that it increases the threat to our national security. If
anything, EDCA increases the likelihood that, in an event requiring a defensive
response, the Philippines will be prepared alongside the U.S. to defend its islands
and ensure its territorial integrity pursuant to a relationship built on the MDT and
VFA.
LAND BANK of the PH v ATLANTA INDUSTRIES • Land Bank entered into an SLA with the City Government of Iligan to finance
GR No 193796 | July 2, 2014| Executive Agreement| Wayne Novera the development and expansion of the city's water supply system
• The SLA expressly provided that the goods, works, and services to be
financed out of the proceeds of the loan with Land Bank were to be "procured
Petitioner: LANDBANK of the PH in accordance with the provisions of Section I of the 'Guidelines: Procurement
Respondents: ATLANTA INDUSTRIES under IBRD Loans and IDA Credits' . . ., and with the provisions of [the]
Schedule 4."
o Accordingly, the City Government of Iligan, through its Board and
Recit-Ready: Land Bank and the International Bank for Reconstruction and
Awards Committee (BAC), conducted a public bidding using the
Development (IBRD) entered into Loan Agreement and was conditioned that there IBRD Procurement Guidelines
should be participation of a local government unit (City of Iligan) by way of SLA • Respondent Atlanta Industries, Inc. (Atlanta) participated in the said bidding and
(Subsidiary Loan Agreement). The SLA expressly provided that services to be financed came up with the second to the lowest bid
out of the proceeds of the loan with Land Bank were to be "procured in accordance o Board and Awards Committee (BAC) informed Atlanta of its
with the provisions of Section I of the 'Guidelines: Procurement under IBRD Loans disqualification from the bidding because it lacked several
and IDA Credits. The City of Iligan followed this rule and conducted its public bidding, documentary requirements.
• BAC deemed it futile to reconsider Atlanta's disqualification in view of the fact that
which Atlanta came 2nd to the lowest bid. Atlanta filed a case with RTC and said that the
the bidding had already been declared a failure because of noted violations of the
bidding was not in accordance to RA 9184(check footnote). The RTC agreed with Atlanta IBRD Procurement Guidelines and that, unless the BAC conducts a new bidding
and said that City Government of Iligan cannot validly provide for the use of bidding on the project, it would not be able to obtain a "no objection" from the World Bank
procedures different from those provided under RA 9184 because the said SLA is not in • ATLANTA
the nature of an international agreement similar to the Loan Agreement with the IBRD. o Atlanta, in a called the BAC's attention to its use of Bidding
Documents 19 which, as it purported, not only failed to conform with
ISSUE: W/N the SLA between the Land Bank and the City Government of Iligan is the Third Edition of the Philippine Bidding Documents for the
Procurement of Goods (PBDs) prescribed by the Government
an executive agreement similar to Loan Agreement No. 4833-PH such that the Procurement Policy Board (GPPB) but also contained numerous
procurement of water pipes by the BAC of the City Government of Iligan should be provisions that were not in accordance with RA 9184 1 and its
deemed exempt from the application of RA 9184? YES Implementing Rules and Regulations (IRR)
o Due to this fact, Atlanta filed a case in RTC of Manila to preclude the
bidding
HELD/DOCTRINE: The RA 1984 recognizes the country's commitment to abide by
its obligations under any treaty or international or executive agreement. This is • RTC:
pertinently provided in Section 4 of RA 1984 (check ratio). The Loan Agreement in o the City Government of Iligan cannot claim exemption from the
this case is in the nature of an executive agreement. Being an executive application of RA 9184 and its IRR by virtue of Loan Agreement with
agreement, they do not require legislative concurrence and are usually less the IBRD because it was Land Bank, and not the City Government
formal and deal with a narrower range of subject matters than treaties. of Iligan, which was the party to the same.
o It added that the SLA subsequently executed by Land Bank with the
The Government of the Philippines is therefore obligated to observe its terms and City Government of Iligan cannot validly provide for the use of
conditions under the rule of pacta sunt servanda, bidding procedures different from those provided under RA 9184
because the said SLA is not in the nature of an international
agreement similar to the Loan Agreement with the IBRD.
FACTS: • Hence, this petition to the SC
• Land Bankand the International Bank for Reconstruction and Development
(IBRD) entered into Loan Agreement for the implementation of the IBRD's ISSUE: W/N the SLA between the Land Bank and the City Government of Iligan
"Support for Strategic Local Development and Investment Project" (S2LDIP). is an executive agreement similar to Loan Agreement No. 4833-PH such that the
o The loan facility in the amount of JP¥11,710,000,000.00 was fully procurement of water pipes by the BAC of the City Government of Iligan should be
guaranteed by the Government of the Philippines and conditioned deemed exempt from the application of RA 9184? YES
upon the participation of at least two (2) local government units by
way of a Subsidiary Loan Agreement (SLA) with Land Bank
FACTS:
ISSUES:
1. The DPWH and CMC/Monark/Pacific/Hi-Tri J.V. (the Joint Venture/JV)
executed a Contract Agreement1 for a road project in Zamboanga del Sur,
(relevant)4 W/N the ADB Guidelines or PD 1594 applies with regard to price
amounting to ~ P713M.
adjustments due to the delay of the issuance of the Notice to Proceed – ADB
a. The Conditions of Contract2 formed part of the contract
Guidelines
agreement
b. DPWH hired BCEOM French Engineering Consultants to
oversee the project.
1 3
Contract Agreement for the Constrcution of Contract Package 6MI-9, Pagadian-Buug Section, Zamboanga del Sur, Sixth Road Policies, Guidelines, Rules, and Regulations for Government Infrastruction Projects
4
Project, Road Improvement Component Loan No. 1473-PHI There were multiple issues covering the money claims, delays in payment, damages, and interests (CredTrans stuff + Nacar
2
A standard contract prepared by the Federation International Des Ingenieurs Conseils (FDIC). The standard contract is case)
recommended for general use for the purpose of construction of such works where tenders are invited on an international basis
RATIO:
As the CA held: “The Arbitral Tribunal finds that the Guidelines of the Asian
Development Bank govern this subject Project. Moreover, P.D. 1594 honors the
treaties and international or executive agreements to which the Philippine
Government is a signatory. Loan agreements such as those entered into with
international funding institutions like ADB are considered to be within the ambit of
DOJ opinion No. 46, S. 1987 and are therefore exempt from the application of P.D.
No. 1594 as amended”
“This Court has held that a foreign loan agreement with international financial
institutions, such as a multilateral lending agency organized by governments like
the Asian Development Bank, is an executive or international agreement
contemplated by our government procurement system.”
“In Abaya v. Ebdane, Jr., this Court upheld the applicability of the Japan Bank for
International Cooperation's Procurement Guidelines to the implementation of the
projects to be undertaken pursuant to the loan agreement between the Republic
of the Philippines and Japan Bank for International Cooperation.”
“While the Implementing Rules and Regulations 104 of Presidential Decree No.
1594 provide the formula for price adjustment in case of delay in the issuance of a
notice to proceed, the law does not proscribe parties from making certain
contractual stipulations.”
NOTE: It’s stated in the syllabus to focus on the definition of islands only The Tribunal examined the history of the Convention and its provisions
concerning maritime zones and concluded that the Convention was intended to
RATIO: comprehensively allocate the rights of States to maritime areas. The Tribunal
noted that the question of pre-existing rights to resources (in particular fishing
CHINA’S BASIS FOR ITS CLAIM: resources) was carefully considered during the negotiations on the creation of
the exclusive economic zone and that a number of States wished to preserve
In December 1947, the Kuomintang Government of China adopted the historic fishing rights in the new zone. This position was rejected, however, and
nine-dashed line claim. The claim was embodied in a map, entitled Location Map the final text of the Convention gives other States only a limited right of access
of the South Sea Islands, released within China in February 1948, with eleven to fisheries in the exclusive economic zone (in the event the coastal State
dashes forming a broken U-shaped line covering almost the entire South China cannot harvest the full allowable catch) and no rights to petroleum or mineral
Sea. resources. The Tribunal found that China’s claim to historic rights to resources
was incompatible with the detailed allocation of rights and maritime zones in the
The title of the map indicates a claim to islands, not the sea. China did not Convention and concluded that, to the extent China had historic rights to
explain the meaning or basis of the eleven dashes, nor did China give the resources in the waters of the South China Sea, such rights were extinguished by
coordinates of the eleven dashes. China claimed the islands enclosed by the the entry into force of the Convention to the extent they were incompatible with
eleven dashes, namely Dongsha Islands (Pratas), Xisha Islands (Paracels), the Convention’s system of maritime zones.
Zhongsha Island (Macclesfield Bank), and Nansha Islands (Spratlys). China was
silent on any claim to the surrounding waters. The Tribunal also examined the historical record to determine whether China
actually had historic rights to resources in the South China Sea prior to the entry
Significantly, Huangyan Island (Scarborough Shoal), or its previous name into force of the Convention. The Tribunal noted that there is evidence that
Min’zhu, is not mentioned in the map. Thus, Scarborough Shoal is not one of the Chinese navigators and fishermen, as well as those of other States, had
islands that China claimed under its 1947 eleven-dashed line map. Further, historically made use of the islands in the South China Sea, although the Tribunal
Zhongsha Island (Macclesfield Bank) is not an island because it is fully emphasized that it was not empowered to decide the question of sovereignty
submerged, its highest peak being 9.2 meters below sea level. over the islands. However, the Tribunal considered that prior to the Convention,
the waters of the South China Sea beyond the territorial sea were legally part of
In 1950, China, under communist rule, announced the removal of two dashes in the high seas, in which vessels from any State could freely navigate and fish.
the Gulf of Tonkin without any explanation. The line became known as the Accordingly, the Tribunal concluded that historical navigation and fishing by
nine-dashed line. China in the waters of the South China Sea represented the exercise of high seas
freedoms, rather than a historic right, and that there was no evidence that China
ARBITRATION RULING ON CHINA’S CLAIM: had historically exercised exclusive control over the waters of the South China
Sea or prevented other States from exploiting their resources.
China’s nine-dashed line claim is bereft of basis under international law. The
well-entrenched doctrine in international law is that “land dominates the sea,” Accordingly, the Tribunal concluded that, as between the Philippines and China,
and all maritime entitlements must be measured from baselines along the coast there was no legal basis for China to claim historic rights to resources, in
of continental land, island or rock above water at high tide. China’s nine-dashed excess of the rights provided for by the Convention, within the sea areas falling
line does not comply with this basic requirement of UNCLOS. within the ‘nine-dash line’.
In its Award of 12 July 2016, the Tribunal considered the implications of China’s
‘nine-dash line’ and whether China has historic rights to resources in the South
DISCUSSION ON ISLANDS: 1. Territorial sea: 12 NM from baselines; like land territory except there is
right of innocent passage for foreign ships.
The United Nations Convention on the Law of the Sea or UNCLOS is the
constitution for the oceans and seas of our planet. UNCLOS governs maritime 2. Contiguous Zone: 12 NM from the outer limit of 12 NM territorial sea;
disputes among member states. UNCLOS codified customary international law, limited jurisdiction for immigration, fiscal, customs, and sanitation
introduced novel concepts like the exclusive economic zone and the extended purposes.
continental shelf, and institutionalized the common heritage of mankind. It is
considered the most comprehensive treaty ever devised by man — with its own 3. Exclusive Economic Zone or EEZ: 200 NM measured from the baselines
dispute settlement mechanism. UNCLOS was adopted on 10 December 1982 and or 188 NM measured from the outer limit of the 12 NM territorial sea;
entered into force on 16 November 1994. To date, UNCLOS has been ratified by specific sovereign rights and jurisdiction only within the 188 NM area.
167 states and the European Union. All the states involved in the South China Sea The EEZ is a legal concept based on distance from the baselines and
dispute have ratified UNCLOS. does not depend on the geomorphology of the continental shelf.
“The high seas are open to all states, whether coastal or land- locked.
Freedom of the high seas ... comprises, inter alia, ... freedom of fishing”
(Article 87, UNCLOS).
“No state may validly purport to subject any part of the high seas to its
sovereignty” (Article 89, UNCLOS).
On whether the geologic features in the Spratlys generate any EEZ, the Arbitral
Continental land and islands capable of human habitation or economic life of
Tribunal upheld the Philippine position that:
their own are entitled to a 200 NM EEZ measured from the baselines along the
coast (or 188 NM measured from the outer limit of the territorial sea). In addition,
1. None of the geologic features (rocks and islands) in the Spratlys is
such continental land or island is entitled to an ECS not exceeding 150 NM from
capable of “human habitation or economic life of [its] own” so as to be
the outer limit of its EEZ. If there is a drop to a 2,500 meter isobath before the
entitled to a 200 NM EEZ.
150 NM limit, the ECS cannot exceed 100 NM from the 2,500 meter isobath. The
2. Since no geologic feature claimed by China has an EEZ that overlaps
maximum maritime zone a coastal state can claim is 150 NM from the outer limit
with Palawan’s EEZ, the Arbitral Tribunal has jurisdiction to rule on the
of its 200 NM EEZ or 100 NM from the 2,500 meter isobath (Articles 57 & 76,
maritime disputes in the Spratlys.
UNCLOS).
3. The Spratlys cannot be taken as a single unit to determine capability to
sustain human habitation or economic life.
An island is defined as a “naturally formed” area of land, surrounded by water,
4. To be entitled to a 200 NM EEZ, there must be the “(a) objective capacity
and above water at high tide (Article 121, UNCLOS). Rocks not capable of human
of a feature, (b) in its natural condition, to sustain either (c) a stable
habitation or economic life of their own are only entitled to a territorial sea of 12
community of people or (d) economic activity that is neither dependent
NM (Article 121, UNCLOS).
on outside resources nor purely extractive in nature.”
5. Itu Aba, the largest geologic feature in the Spratlys, does not satisfy this
A low-tide elevation (LTE) is a naturally formed area of land (rock, reef, atoll, or
requirement. Thus, Itu Aba is entitled only to a 12 NM territorial sea.
sandbar) surrounded by water, above water at low tide but submerged at high
tide. An LTE is part of the continental shelf, and is not land or
The Arbitral Tribunal stated:
territory, and thus has no territorial sea, territorial airspace or any maritime zone
If the historical record of a feature indicates that nothing resembling a
(Article 13, UNCLOS). An LTE beyond the territorial sea is not subject to
stable community has ever developed there, the most reasonable
appropriation or sovereignty by any state.
conclusion would be that the natural conditions are simply too difficult for
such a community to form and that the feature is not capable of
sustaining such habitation.
Since none of the Spratly features generates an EEZ, the remaining disputed
waters in the Spratlys refer only to the territorial seas around the geologic
features above water at high tide. These remaining disputed waters in the
Spratlys comprise not more than 1.5 percent of the 3.5 million square kilometers
of maritime space in the South China Sea.