Lim vs. Executive Secretary G.R. No.

151445 April 11, 2002

FACTS : Beginning 2002, personnel from the armed forces of the United States started arriving in Mindanao, to take part, in conjunction with the Philippine military, in Balikatan 02-1. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United States in 1951. On Feb. 2002, Lim filed this petition for certiorari and prohibition, praying that respondents be restrained from proceeding with the so-called Balikatan 02-1, and that after due notice and hearing, judgment be rendered issuing a permanent writ of injuction and/or prohibition against the deployment of US troops in Basilan and Mindanao for being illegal and in violation of the Constitution. Petitioners contend that the RP and the US signed the Mutual Defense Treaty to provide mutual military assistance in accordance with the constitutional processes of each country only in the case of a armed attack by an external aggressor, meaning a third country, against one of them. They further argued that it cannot be said that the Abu Sayyaf in Basilan constitutes an external aggressor to warrant US military assistance in accordance with MDT of 1951. Another contention was that the VFA of 1999 does not authorize American soldiers to engage in combat operations in Philippine territory.

ISSUE : Whether or not the Balikatan 02-1 activities are covered by the VFA.

RULING : Petition is dismissed. The VFA itself permits US personnel to engage on an impermanent basis, in activities, the exact meaning of which is left undefined. The sole encumbrance placed on its definition is couched in the negative, in that the US personnel must abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity. Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that Balikatan 02-1 a mutual anti terrorism advising assisting and training exercise falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities as opposed to combat itself such as the one subject of the instant petition, are indeed authorized.

Pimentel, Jr. vs. EXECUTIVE SECRETARY 462 SCRA 622

STATEMENT OF THE CASE: This is a petition for mandamus filed by petitioners to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution.

FACTS : The Rome Statute established the International Criminal Court which shall have the power to exercise its jurisdition over persons for the most serious crimes of international concern xxx and shall be complementary to the

national criminal jurisdictions. Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute. The Philippines signed the Statute on December 28, 2000. Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states. Hence this petition for mandamus filed by petitioners to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with Sec. 21, Art. VII of the 1987 Philippine Constitution. Petitioners contend that ratification of a treaty, under domestic law and international law, is a function of the Senate and it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Respondents, however argue that it has no duty to transmit the copy of Rome Statute to Senate for concurrence.

ISSUE : Whether or not the Executive Secretary and the DFA have a ministerial duty to transmit to the Senate the copy of the Rome Statute.

RULING : Petition is dismissed. In our system of government, the President, being the head of the state, is regarded as the sole organ and authority in external relations and is the countrys sole representative with foreign nations. As chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides for a limitation to his power by requiring the concurrence of 2/3 votes of all the members of the Senate for the validity of the treaty entered into by him. The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations. Petitioners equate signing of the treaty with ratification, which are two different and distinct steps in the treaty-making process. Signature is primarily intended as a means of authenticating the instrument and as a symbol of good faith of the parties. Ratification, the other hand, is a formal act, executive by nature, undertaken by the head of the state or of the government. The signature does not signify the final consent of the state to the treaty. It is ratification that binds the state to the provisions thereof. Under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate is limited only to giving or withholding its consent, or concurrence to the ratification. Such power of the President cannot be encroached by the courts via mandamus and the courts has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties. Therefore, the Court cannot issue a writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to Senate.

North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark, Federal Republic of Germany/Netherlands) I.C.J. Reports 1969

FACTS: a. The International Court of Justice delivered judgment, by 11 votes to 6. b. Both Denmark and the Netherlands submitted an individual dispute with Germany to the ICJ involving claims to the North Sea Continental Shelf. These two separate claims were joined by the ICJ, and decided as one case. The parties sought a method by which the Continental Shelf could be fairly delimited. All parties agreed the Court was not to physically apportion claims, but merely prescribe a method of delimitation for the parties to follow. c. Denmark and the Netherlands argued that the method of equidistance should be implemented. This is that each State claimed all areas that are closer to itself than any other state. They claimed that the Geneva Convention supported this method. Moreover, it was alleged to have been an a priori rule of law, a rule of customary international law, and a general rule of conventional practicality. d. Germany, who had not ratified the Geneva Convention, claimed that the rule of equidistance was unfair. The State also argued for an apportionment of the shelf that was proportional to the size of each states adjacent land.

Questions a. Is the Geneva Convention binding on a State that has not ratified it? b. Is the equidistance rule international law?

Decisions a. The Court found that the Geneva Convention is not binding on German, as it did not ratify it. b. While the Geneva Convention does call for the rule of equidistance, the Court found that the Geneva Convention was not binding upon Germany. Moreover, the stipulations outlined in the Geneva Convention would have allowed Germany to opt out in this area, so its membership in the treaty is a moot point. Upon inspection of the language of both the Geneva Convention and the Truman Proclamation, equidistance was found to be a last resort rather than an a priori rule. Also looking to these sources, the Court rejected claims which included equidistance in customary international law. Theses texts which originally included the rule of equidistance only did so for secondary purposes, and the utilization of it was insufficient to prove it to be either customary international law, or a general law of practicality. The Court also pointed out mathematical problems of contradiction under the rule. The Court rejected Germanys claim of proportional apportionment because doing so would intrude upon the natural claims due to States based on natural prolongations of land. Also, the Courts role was to outline a mechanism of delimitation only.

The Court found, therefore, that the two parties must draw up an agreement taking both the maximization of area and proportionality into account. These were to be based upon equitable principles. The holding here is somewhat inconclusive, but the opinion is significant to international law, regardless.

Principles a. The international law elements of the case are the power of treaties, customary international law, and the principle of equidistance in claims to sea territory. b. The rule of law upheld in this case is the Geneva Convention. c. There are several principles in this case manifested in the Geneva Convention. The court rejected the principle of equidistance. It upheld, rather, the idea of equitable principles, which is only defined as those which maximizes land claims based on several cooperative factors. The Court also upholds the principle of customary international law by using the text of the Geneva Convention and its purpose to exclude the mechanism of equidistance.

Conclusions The Courts ruling has a terminal impact on the principle of equidistance and its utilization through the Geneva Convention. The Court does not proscribe its use, but eliminates its legal credibility. This, of course, has no impact on the rest of the Geneva Convention. As the holding does not prescribe any specific remedy, this case does not significantly aid in any future decisions, other than for the purpose of denying the equidistance principle legal weight. If this case were used as precedent otherwise, it would merely direct the disputing states to look to customary international law and cooperative action.

Bayan vs Zamora

FACTS: The United States panel met with the Philippine panel to discussed, among others, the possible elements of the Visiting Forces Agreement (VFA). This resulted to a series of conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard. Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate approved it by (2/3) votes.

Cause of Action: Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not Section 21, Article VII.

Following the argument of the petitioner, under the provision cited, the foreign military bases, troops, or facilities may be allowed in the Philippines unless the following conditions are sufficiently met:

a) it must be a treaty, b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by congress, and c) recognized as such by the other contracting state. Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of the senate.

ISSUE: Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution?

HELD: Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the senate. The Constitution, makes no distinction between transient and permanent. We find nothing in section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines. It is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.

NUCLEAR TESTS CASE (AUSTRALIA v. FRANCE) Judgment of 20 December 1974

In its judgment in the case concerning Nuclear Tests (Australia v. France), the Court, by 9 votes to ti, has found that the claim of Australia no longer had any object and that the Court was therefore not called upon to give a decision thereon. In the reasoning of its Judgment, the Court adduces interalia the following considerations: Even before turning to questions of jurisdiction and admissibility, the Court has first to consider the essentially preliminary question as to whether a dispute exists and to analyze the claim submitted to it (paras. 22-24 of Judgment); the proceedings instituted before the Court on 9 May 11973 concerned the atmospheric nuclear tests conducted by France in the South Pacific (para. 16 of Judgment); the original and ultimate objective of Australia is to obtain a termination of those tests (pams. 32-41 of Judgment); France, by various public statements made in 1974, has announced its intention, following the completion of the 1974 series of atmospheric tests, to cease the conduct of such tests (paras. 32-41 of Judgment); the Cow finds that the objective of Australia has in effect been accomplished. Inasmuch as France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the South Pacific (paras. 47-52 of Judgment); the dispute having thus disappeared, the claim no longer has any object and there is nothing on which to give judgment (paras. 55-59 of Judgment). Upon the delivery of the Judgment, the Order of 22 June 1973 indicating interim measures of protection ceases to be operative and the measures in question lapse (para. 61 of Judgment). For the purposes of the Judgment the Court was composed as follows: President Lachs; Judges Forster, Gros, Bengzon, Petdn, Onyeama, Dillard, Ignacio-Pinto, de Castro, Morozov, Jimbnez de Mchaga, Sir Humphrey Waldock, Nagendra Singh and Ruda; Judge and Sir Garfield Barwick. The: President appended a declaration to the Judgment, and Judges Bengzon, Onyeama, Dillard, Jimbnez de Arkhaga and Sir Humphrey Waldock a joint declaration. Of the nine Members of the Court who voted for the decision, Judges Forster, Gros, Petrdn arid Ignacio-Pintoappended separate opinions. Of the six judges who voted against the decision, Judges Onyema, Dillard, Jimbnez de Adchaga and Sir Humphrey Waldock have appended a joint dissenting opinion, and Judges de Castro and Sir Garfield Barwick dissenting opinions. These opinions make known and substantiate the positions adopted by the judges in question. (See also the following summary for further analysis.)

NUCLEAR TESTS CASE (NEW ZEALAND v. FRANCE) Judgment of 20 December 1974

In its judgment in the case concerning Nuclear Tests (New Zealand v. France), the Court, by 9 votes to 6, has found that the claim of New Zealand no longer had any object and that the Court was therefore not called upon to give a decision thereon.

In the reasoning of its Judgment, the Court adduces inter alia the following considerations: Even before turning to the questions of jurisdiction and admissibility, the Court has first to consider the essentially preliminary question as to whether a dispute exists and to analyse the claim submitted to it (paras. 22-24 of Judgment); the proceedings instituted before the Court on 9 May 1973 concerned the legality of atmospheric nuclear tests conducted by France in the South Pacific (para. 16 of Judgment); the original and ultimate objective of New Zealand is to obtain a termination of those tests (paras. 25-31 of Judgment); France, by various public statements made in 1974, has announced its intention, following the completion of the 1974 series of atmospheric tests, to cease the conduct of such tests (paras. 33-44 of Judgment); the Court finds that the objective of New Zealand has in effect been accomplished, inasmuch as France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the South Pacific (paras. 50-55 of Judgment); the dispute having thus disappeared, the claim no longer has any object and there is nothing on which to give judgment (paras. 58-62 of Judgment). Upon the delivery of the Judgment, the Order of 22 June 1973 indicating interim measures of protection ceases to be operative and the measures in question lapse (para. 64 of Judgment).

For the purposes of the Judgment the Court was composed as follows: President Lachs; Judges Forster, Gros, Bengzon, Petrn, Onyeama, Dillard, Ignacio-Pinto, de Castro, Morozov, Jimnez de Archaga, Sir Humphrey Waldock, Nagendra Singh and Ruda; Judge ad hoc Sir Garfield Barwick. Of the nine Members of the Court who voted for the decision, Judges Forster, Gros, Petrn and Ignacio-Pinto appended separate opinions. Of the six judges who voted against the decision, Judges Onyeama, Dillard, Jimnez de Archaga and Sir Humphrey Waldock appended a joint dissenting opinion, and Judges de Castro and Sir Garfield Barwick dissenting opinions. These opinions make known and substantiate the positions adopted by the judges in question. Also on 20 December 1974, the Court made two Orders regarding applications submitted by the Government of Fiji for permission to intervene in the two cases concerning Nuclear Tests (Australia v. France; New Zealand v. France). In these Orders, which were not read in public, the Court found, following the above-mentioned Judgments, that these applications lapsed and that no further action thereon was called for. These Orders were voted unanimously by the Court in the same composition as for the Judgments. Judges Gros, Onyeama, Jimnez de Archaga and Sir Garfield Barwick appended declarations to them, and Judges Dillard and Sir Humphrey Waldock a joint declaration. Although the Court delivered a separate Judgment for each of the two Nuclear Tests cases referred to above, they are analysed together in the summary which follows.

Procedure (paras. 1-20 of each Judgment) In its Judgment, the Court recalls that on 9 May 1973 the Applicant instituted proceedings against France in respect of French atmospheric nuclear tests in the South Pacific. To found the jurisdiction of the Court, the Application relied on the General Act for the Pacific Settlement of International Disputes concluded at Geneva in 1928 and Articles 36 and 37 of the Statute of the Court. By a letter of 16 May 1973 France stated that it considered that the Court was manifestly not competent in the case, that it could not accept its jurisdiction and that it requested the removal of the case from the Court's list. The Applicant having requested the Court to indicate interim measures of protection, the Court, by an Order of 22 June 1973, indicated inter alia that, pending its final decision, France should avoid nuclear tests causing the deposit of radioactive fall-out on the territory of the Applicant. By various communications the Applicant has informed the Court that further series of atmospheric tests took place in July-August 1973 and June-September 1974.

By the same Order of 22 June 1973, the Court, considering that it was necessary to begin by resolving the questions of the Court's jurisdiction and of the admissibility of the Application, decided that the proceedings should first be addressed to these questions. The Applicant filed a Memorial and presented argument at public hearings. It submitted that the Court had jurisdiction and that the Application was admissible. France did not file any Counter-Memorial and was not represented at the hearings; its attitude was defined in the above-mentioned letter of 16 May 1973. With regard to the French request that the case be removed from the list - a request which the Court, in its Order of 22 June 1973, had duly noted while feeling unable to accede to it at that stage - the Court observes that it has had the opportunity of examining the request in the light of the subsequent proceedings. It finds that the present case is not one in which the procedure of summary removal from the list would be appropriate. It is to be regretted that France has failed to appear in order to put forward its arguments, but the Court nevertheless has to proceed and reach a conclusion, having regard to the evidence brought before it and the arguments addressed to it by the Applicant, and also to any documentary or other evidence which might be relevant. Object of the Claim (paras. 21-41 of the Judgment in the Australian case, and 21-44 in the New Zealand case) The present phase of the proceedings concerns the jurisdiction of the Court and admissibility of the Application. In examining such questions, the Court is entitled, and in some circumstances may be required, to go into other questions which may not be strictly capable of classification as matters of jurisdiction or admissibility but are of such a nature as to require examination in priority to those matters. By virtue of an inherent jurisdiction which the Court possesses qua judicial organ, it has first to examine a question which it finds to be essentially preliminary, namely the existence of a dispute for, whether or not the Court has jurisdiction in the present case, the resolution of that question could exert a decisive influence on the continuation of the proceedings. It is therefore necessary for it to make a detailed analysis of the claim submitted in the Application, which is required by Article 40 of the Statute to indicate the subject of the dispute. In its Application, Australia asks the Court: - to adjudge and declare that "the carrying out of further atmospheric nuclear weapon tests in the South Pacific Ocean is not consistent with applicable rules of international law" and to order "that the French Republic shall not carry out any further such tests". New Zealand, in its Application, asks the Court: - "to adjudge and declare: That the conduct by the French Government of nuclear tests in the South Pacific region that give rise to radio-active fall-out constitutes a violation of New Zealand's rights under international law, and that these rights will be violated by any further such tests". It is essential to consider whether the Applicant requests a judgment which would only state the legal relationship between the Parties or a judgment requiring one of the Parties to take, or refrain from taking, some action. The Court has the power to interpret the submissions of the Parties and to exclude, when necessary, certain elements which are to be viewed, not as indications of what the Party is asking the Court to decide, but as reasons advanced why it should decide in the sense contended for. In the present case, if account is taken of the Application as a whole, the diplomatic exchanges between the Parties in recent years, the arguments of the Applicant before the Court and the public statements made on its behalf during and after the oral proceedings, it becomes evident that the Applicant's original and ultimate objective was and has remained to obtain a termination of French atmospheric nuclear tests in the South Pacific. In these circumstances, the Court is bound to take note of further developments, both prior to and subsequent to the close of the oral proceedings, namely certain public statements by French authorities, of which some were mentioned before the Court at public hearings and others were made subsequently. It would have been possible for the Court, had it considered that the interests of justice so required, to have afforded the Parties the opportunity, e.g., by reopening the oral proceedings, of addressing to the Court comments on the statements made since the close of those proceedings. Such a course, however, would have been justified only if the matter dealt with in those statements had been completely new or had not been raised during the proceedings, which is manifestly not the case. The Court is in possession not only of the statements made by the French authorities in question but also of the views of the Applicant on them.

The first of these statements is contained in a communiqu which was issued by the Office of the President of the French Republic on 8 June 1974 and transmitted in particular to the Applicant: ". . . in view of the stage reached in carrying out the French nuclear defense programme France will be in a position to pass on to the stage of underground explosions as soon as the series of tests planned for this summer is completed". Further statements are contained in a Note from the French Embassy in Wellington (10 June), a letter from the President of France to the Prime Minister of New Zealand (1 July), a press conference given by the President of the Republic (25 July), a speech made by the Minister for Foreign Affairs in the United Nations General Assembly (25 September) and a television interview and press conference by the Minister for Defense (16 August and 11 October). The Court considers that these statements convey an announcement by France of its intention to cease the conduct of atmospheric nuclear tests following the conclusion of the 1974 series. Status and Scope of the French Statements It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Nothing in the nature of a quid pro quo, nor any subsequent acceptance, nor even any reaction from other States is required for such declaration to take effect. Neither is the question of form decisive. The intention of being bound is to be ascertained by an interpretation of the act. The binding character of the undertaking results from the terms of the act and is based on good faith interested States are entitled to require that the obligation be respected. In the present case, the Applicant, while recognizing the possibility of the dispute being resolved by a unilateral declaration on the part of France, has stated that, in its view, the possibility of further atmospheric tests has been left open, even after the French statements mentioned above. The Court must, however, form its own view of the meaning and scope intended to be given to these unilateral declarations. Having regard to their intention and to the circumstances in which they were made, they must be held to constitute an engagement of the French State. France has conveyed to the world at large, including the Applicant, its intention effectively to terminate its atmospheric tests. It was bound to assume that other States might take note of these statements and rely on their being effective. It is true that France has not recognized that it is bound by any rule of international law to terminate its tests, but this does not affect the legal consequences of the statements in question, the unilateral undertaking resulting from them cannot be interpreted as having been made in implicit reliance on an arbitrary power of reconsideration. Thus the Court faces a situation in which the objective of the Applicant has in effect been accomplished, inasmuch as the Court finds that France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the South Pacific. The Applicant has sought an assurance from France that the tests would cease and France, on its own initiative, has made a series of statements to the effect that they will cease. The Court concludes that France has assumed an obligation as to conduct, concerning the effective cessation of the tests, and the fact that the Applicant has not exercised its right to discontinue the proceedings does not prevent the Court from making its own independent finding on the subject. As a court of law, it is called upon to resolve existing disputes between States: these disputes must continue to exist at the time when the Court makes its decision. In the present case, the dispute having disappeared, the claim no longer has any object and there is nothing on which to give judgment. Once the Court has found that a State has entered into a commitment concerning its future conduct, it is not the Court's function to contemplate that it will not comply with it. However, if the basis of the Judgment were to be affected, the Applicant could request an examination of the situation in accordance with the provisions of the Statute. For these reasons, the Court finds that the claim no longer has any object and that it is therefore not called upon to give a decision thereon (para. 62 of the Judgment in the Australian case, and para. 65 of the Judgment in the New Zealand case)