Case #10

Underhill v. Hernandez
168 US 250

FACTS:
In the early part of 1892 a revolution was initiated in Venezuela, against the administration thereof, which
the revolutionists claimed had ceased to be the legitimate government.

George F. Underhill was a citizen of the United States, who had constructed a waterworks system for the
city of Bolivar, under a contract with the government, and was engaged in supplying the place with water;
and he also carried on a machinery repair business. Sometime after the entry of Gen. Hernandez, Underhill
applied to him, as the officer in command, for a passport to leave the city. Hernandez refused this request,
and requests made by others in Underhill's behalf, until October 18th, when a passport was given, and
Underhill left the country.

This action was brought to recover damages for the detention caused by reason of the refusal to grant
the passport, for the alleged confinement of Underhill to his own house, and for certain alleged assaults
and affronts by the soldiers of Hernandez's army.

The cause was tried in the circuit court of the United States for the Eastern district of New York, and on
the conclusion of plaintiff's case the circuit court ruled that upon the facts plaintiff was not entitled to
recover, and directed a verdict for defendant, on the ground that 'because the acts of defendant were
those of a military commander, representing a de facto government in the prosecution of a war, he was
not civilly responsible therefor.' Judgment having been rendered for defendant, the case was taken to the
circuit court of appeals, and by that court affirmed, upon the ground 'that the acts of the defendant were
the acts of the government of Venezuela, and as such are not properly the subject of adjudication in the
courts of another government. Thereupon the cause was brought to this court on certiorari.

ISSUE:

WON a foreign tribunal has an authority to interfere acts of government in a sovereign state.

RULING:

No. The evidence upon the trial indicated that the purpose of the defendant in his treatment of the
plaintiff was to coerce the plaintiff to operate his waterworks and his repair works for the benefit of the
community and the revolutionary forces,' and that 'it was not sufficient to have warranted a finding by
the jury that the defendant was actuated by malice or any personal or private motive. The acts of the
defendant were the acts of the government of Venezuela, and as such are not properly the subject of
adjudication in the courts of another government.

Every sovereign state is bound to respect the independence of every other sovereign state, and the courts
of one country will not sit in judgment on the acts of the government of another, done within its own
territory. Redress of grievances by reason of such acts must be obtained through the means open to be
availed of by sovereign powers as between themselves.
Nor can the principle be confined to lawful or recognized governments or to cases where redress can
manifestly be had through public channels. The immunity of individuals from suits brought in foreign
tribunals for acts done within their own states, in the exercise of governmental authority, whether as civil
officers or as military commanders, must necessarily extend to the agents of governments ruling by
paramount force as matter of fact. Where a civil war prevails (that is, where the people of a country are
divided into two hostile parties, who take up arms and oppose one another by military force), generally
speaking, foreign nations do not assume to judge of the merits of the quarrel.

Pimentel vs. Executive Secretary

Facts

This is a petition of Senator Aquilino Pimentel and the other parties to ask the Supreme Court to
require the Executive Department to transmit the Rome Statute which established the
International Criminal Court for the Senate’s concurrence in accordance with Sec 21, Art VII of
the 1987 Constitution.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and
international law, is a function of the Senate. Hence, 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. Moreover, petitioners submit that the Philippines has a
ministerial duty to ratify the Rome Statute under treaty law and customary international law.
Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain
from acts which would defeat the object and purpose of a treaty when they have signed the treaty
prior to ratification unless they have made their intention clear not to become parties to the
treaty.[5]
The Office of the Solicitor General, commenting for the respondents, questioned the standing of
the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on
hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the
executive department has no duty to transmit the Rome Statute to the Senate for concurrence.

Issue

Whether or not the executive department has a ministerial duty to transmit the Rome Statute (or
any treaty) to the Senate for concurrence.

Ruling

The petition was dismissed. The Supreme Court ruled that the the President, being the head of
state, is regarded as the sole organ and authority in external relations and is the country’s sole
representative with foreign nations. As the chief architect of foreign policy, the President acts as
the country’s mouthpiece with respect to international affairs. Hence, the President is vested with
the authority to deal with foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign
relations. In the realm of treaty-making, the President has the sole authority to negotiate with
other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the
members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII
of the 1987 Constitution provides that “no treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the Members of the Senate.”

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in
this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and
exchange of the instruments of ratification. The treaty may then be submitted for registration and
publication under the U.N. Charter, although this step is not essential to the validity of the
agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task
to his authorized representatives. These representatives are provided with credentials known as
full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is
standard practice for one of the parties to submit a draft of the proposed treaty which, together
with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations
may be brief or protracted, depending on the issues involved, and may even “collapse” in case
the parties are unable to come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for
signature. This step is primarily intended as a means of authenticating the instrument and for the
purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the
final consent of the state in cases where ratification of the treaty is required. The document is
ordinarily signed in accordance with the alternate, that is, each of the several negotiators is
allowed to sign first on the copy which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the
contracting states to examine the treaty more closely and to give them an opportunity to refuse to
be bound by it should they find it inimical to their interests. It is for this reason that most treaties
are made subject to the scrutiny and consent of a department of the government other than that
which negotiated them.

The last step in the treaty-making process is the exchange of the instruments of ratification,
which usually also signifies the effectivity of the treaty unless a different date has been agreed
upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in
the treaty, the instrument is deemed effective upon its signature.

Petitioners’ arguments equate the signing of the treaty by the Philippine representative with
ratification. It should be underscored that the signing of the treaty and the ratification are two
separate and distinct steps in the treaty-making process. As earlier discussed, the signature is
primarily intended as a means of authenticating the instrument and as a symbol of the 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 should be emphasized that under our Constitution, 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.

G. R. No. 167919

February 14, 2007

Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.

FACTS:

On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and
Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting
Secretary Florante Soriquez. This resolution recommended the award to China Road & Bridge
Corporation of the contract for the implementation of civil works for Contract Package No. I (CP
I), which consists of the improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga
road, with the lengt of 79.818 kilometers, in the island province of Catanduanes.

This Loan Agreement No. PH-204 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 to the Philippines, and then Foreign
Affairs Secretary Siazon, in behalf of their respective governments.

ISSUE:

Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine
Government is a kind of a treaty.

HELD:

The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated
December 27, 1999 between the Japanese Government and the Philippine Government is an
executive agreement.
An “exchange of notes” is a record of a routine agreement that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other.

…treaties, agreements, conventions, charters, protocols, declarations, memoranda of

understanding, modus vivendi and exchange of notes all are refer to international instruments
binding at international law.

Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the
result of long practice among the States, which have accepted them as binding norms in their
mutual relations. Therefore, they are regarded as international customary law.

That case was dismissed by the SCORP last Feb. 14 2007.

What the petitioners wanted was that Foreign funded projects also undergo the procurement
process.
The dismissal of the case somehow gave justification for the delay of the implementing rules for
foreign funded projects (IRR-B) of the procurement law
If we recall the decision of the Abaya vs Ebdane was used by the DOJ when the
DOTC Secretary was asking for an opinion from the former, during the ZTE controversy.
as ruled by the Supreme Court in Abaya v. Ebdane, an
exchange of notes is considered a form of an executive agreement, which
becomes binding through executive action without need of a vote by the
Senate and that (like treaties and conventions, it is an international
instrument binding at international law,
The second issue involves an examination of the coverage of
Republic Act No. 9184, otherwise known as the “Government
Procurement Reform Act”. Section 4 of the said Act provides that it shall
apply to:
… the Procurement of infrastructure Projects, Goods and
Consulting Services, regardless of source of funds, whether local
or foreign, by all branches and instrumentalities of government, its
departments, offices and agencies, including government-owned
and/or -controlled corporations and local government units,
subject to the provisions of Commonwealth Act No. 138. Any
treaty or international or executive agreement affecting the
subject matter of this Act to which the Philippine government is a
signatory shall be observed.

Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.

FACTS:

On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and
Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting
Secretary Florante Soriquez. This resolution recommended the award to China Road & Bridge
Corporation of the contract for the implementation of civil works for Contract Package No. I (CP
I), which consists of the improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road,
with the lengt of 79.818 kilometers, in the island province of Catanduanes.

This Loan Agreement No. PH-204 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 to the Philippines, and then Foreign
Affairs Secretary Siazon, in behalf of their respective governments.

ISSUE:

Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine
Government is a kind of a treaty.

HELD:

The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated
December 27, 1999 between the Japanese Government and the Philippine Government is an
executive agreement.

An “exchange of notes” is a record of a routine agreement that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other.

…treaties, agreements, conventions, charters, protocols, declarations, memoranda of

understanding, modus vivendi and exchange of notes all are refer to international instruments
binding at international law.

Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the
result of long practice among the States, which have accepted them as binding norms in their
mutual relations. Therefore, they are regarded as international customary law.

That case was dismissed by the SCORP last Feb. 14 2007.

What the petitioners wanted was that Foreign funded projects also undergo the procurement
process.
The dismissal of the case somehow gave justification for the delay of the implementing rules for
foreign funded projects (IRR-B) of the procurement law
If we recall the decision of the Abaya vs Ebdane was used by the DOJ when the
DOTC Secretary was asking for an opinion from the former, during the ZTE controversy.
as ruled by the Supreme Court in Abaya v. Ebdane, an
exchange of notes is considered a form of an executive agreement, which
becomes binding through executive action without need of a vote by the
Senate and that (like treaties and conventions, it is an international
instrument binding at international law,
The second issue involves an examination of the coverage of
Republic Act No. 9184, otherwise known as the “Government
Procurement Reform Act”. Section 4 of the said Act provides that it shall
apply to:
… the Procurement of infrastructure Projects, Goods and
Consulting Services, regardless of source of funds, whether local
or foreign, by all branches and instrumentalities of government, its
departments, offices and agencies, including government-owned
and/or -controlled corporations and local government units,
subject to the provisions of Commonwealth Act No. 138. Any
treaty or international or executive agreement affecting the
subject matter of this Act to which the Philippine government is a
signatory shall be observed.

G. R. No. 175608

June 8, 2007

DEPARTMENT O BUDGET AND MANAGEMENT PROCUREMENT SERVICE (DBM-PS)

and the inter-Agency Bids and Awards Committee (IABAC), petetioners VS. KOLONWEL
TRADING, respondent.

ISSUE:

Whether or not the foreign loan agreements (Loan No. 7118-PH) with international financial
institutions, partake of an executive or international agreement and shall govern the procurement
of goods necessary to implement the project.

HELD:

This issue has been affirmatively answered in the case of Abaya. In that case, the court declared
that the RP-JBIC loan agreement was to be of governing application over the CP I project and
that the JBIC Procurement Guidelines, as stipulated in the loan agreement.

Under the fundamental international law principle of pacta sunt servanda, the RP, as borrower,
bound itself to perform in good faith its duties and obligation under Loan No. 7118-PH.
Applying this postulate, the IABAC was legally obliged to comply with, or accord primacy to,
the WB Guidelines on the conduct and implementation of the bidding/procurement process in
question.

Lim vs. GMA

GR 151445, 11 April 2002
Facts: On 1 February 2002, petitioners Arturo D. Lim and Paulino Ersando filed this petition for
certiorari and prohibition attacking the constitutionality of the so-called “Balikatan 01-1.” The
“Balikatan” exercises are the largest combined training operations involving Filipino and
American troops. It is pursuant to the Mutual Defense Treaty, a bilateral defense agreement
entered into by the Philippines and the US in 1951 and an effect of the Visiting Forces
Agreement between the two nations of 1999.
Issues: Whether “Balikatan 02-1” is covered by the Visiting Forces Agreement (VFA).
Whether the VFA authorized American soldiers to engage in combat operations in Philippine
territory.
Held: In resolving the first issue, it is necessary to refer to the VFA itself. However, not much
help can be had therefrom, unfortunately, since the terminology employed is itself the source of
the problem. The VFA permits United States personnel to engage on an impermanent basis in
“activities”, the exact meaning of which was left undefined. The sole encumbrance placed on its
definition is couched in the negative, in that United States personnel must “abstain from any
activity inconsistent with the spirit of this agreement, and in particular, from any political
activity.”
The Supreme Court, after studied reflection of Articles 31 and 32 of Section 3 of the Vienna
Convention on the Law of Treaties, concluded that the ambiguity sorrounding the meaning of the
word “activities” arose from accident. In our view, it was deliberately made that way to give both
parties a certain leeway in negotiation. Under these auspices, the VFA if given legitimacy to the
current Balikatan exercise. 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. In connection with the second issue, both the
history and intent of the MDT and the VFA support conclusion that combat-related activities, as
opposed to combat itself are indeed authorized.
More so, the Terms of Reference are explicit enough. Paragraph 8 of Section I stipulates that US
exercise participants may not engage in combat “except in self-defense.” It is the opinion of the
Court that neither the MDT nor the DFA allow foreign troops to engage in an offensive war in
Philippine territory bearing in mind the salutory prescription stated in the Charter of the United
Nations.
In the same manner, both the MDT and the VFA, as in all other treaties and international
agreements to which the Philippines is a party, must be read in the context of the 1987
Constitution. Although the Constitution present a conflict between the fundamental law and our
obligations from international agreements, it however resolves it in section 2 of Article VIII of
the Constitution.
The foregoing premises leave us no doubt that US forces are prohibited from engaging in an
offensive war on the Philippine territory.

G. R. No. 138570
October 10, 2000

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

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

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.

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

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

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.