FINALS
MODULE 12: CONSULS
Consul
• Are state agents residing abroad for various purposes but mainly in the
interest of commerce and navigation.
• Not charged with duty of representing their states in political matters
• They are not accredited to the state where they are supposed to discharge
their functions.
• They are do not enjoy all the traditional diplomatic immunities and privileges,
but they are to a certain extent entitled to special treatment under the law of
nations.
12.1 Kinds and Grades
• consules missi
- Are professional or career consuls who are nationals of the appointing
state and are required to devote their full time to discharge of their
consular duties.
• consules electi
- May or may not be nationals of the appointing state and perform their
consular functions only in addition to their regular callings.
• Their grades or ranks remain a matter of municipal concern.
• Under the Consular Convention, however, the heads of consular posts are
classified according to importance into consular-general, consul, vice-consul
and consular agent.
12.2 Appointment
Consuls derive their authority from 2 principal sources:
• Letter of Patent/ letter de provision
- Is the commission issued by the sending state
• Exequatur
- the authority given to them by the receiving state to exercise their duties
therein.
o Consuls are public officers not only of the sending state but of the
receiving state.
o States may refuse to receive consuls and to withhold the exequatur
from them without explanation.
o The consent given to the establishment of diplomatic relations
between two states implies, unless otherwise stated, consent to the
establishment of consular relations.
o However, the severance of diplomatic relations shall not ipso facto
involve the severance of consular relations, and vice versa.
12.3 Functions
o Commerce and navigation, duties respecting the issuance of
passports and visa, and duties of protection of nationals.
• Principal duty
- is to promote the commercial interests of their country in the receiving
state; and
- to observe the commercial trends and developments therein for report to
their home government.
• Navigation
- Visiting and inspecting vessels of their own states which may be in the
consular district, exercising a measure of supervision over such vessels,
adjusting matters pertaining to their internal order and discipline and
inspecting foreign vessels destined for a port of the sending state.
• Issuance of passport to nationals of sending state
- To issue visa passport, to issue documents relating to entry into and
travel within the territory of the sending states
- To visa invoices and certificates of origin of goods destined for the
territory of that state.
• Look after the interests of fellow nationals and to extend them official
assistance whenever needed
- May authenticate documents, solemnize marriages, register birth and
death, temporarily administer the estates of deceased nationals within the
consular districts, advise and adjust differences between their fellow
nationals, visit them when they are arrested or detained by the receiving
state
12.4 Immunities and Privileges
• Consuls are not diplomatic officials and do not enjoy the traditional diplomatic
immunities and privileges.
• International comity and conventions have invested them with certain
privileges and immunities which are generally recognized and observed by
civilized states.
• Consuls have a right to official communication and may correspond with their
home government or other official bodies by any means, including cipher or
code, without being subjected to censorship or unreasonable restraint.
• Consuls enjoy inviolability of their archives which may not be examined or
seized by the receiving state under any circumstance, nor may their
production or testimony concerning them be compelled in official proceedings.
o But this immunity does not extend to the consular premises
themselves, where legal process may be served and arrests made
without violation of international law, except only in the part where
consular work is being performed.
 In the famous case of Mrs Kasenkina: The US rejected a protest made by Russia
against the service of a writ of a HC upon the latter’s consul at his official residence
in New York for the production of a Russian school teacher alleged to be detained
in the premises. In fact, the consular offices may even be expropriated for purposes
of national Défense or public utility.
• Criminal offense, consuls are exempt from local jurisdiction for crimes
committed by them in the discharge of their official functions.
o But with regard to other offenses, they are fully subject to the local
law and may be arrested, prosecuted and punished in proper
proceedings.
o Consuls are not prosecuted for minor offenses and when arrested,
are given adequate opportunity to secure their release on bail at the
earliest possible time.
• Civil suits may be instituted against consuls in their personal or private
capacity but not in matters connected with their official duties.
• Consuls are exempted from taxation, customs duties, service in the militia,
and social security rules, and are privileged to display their national flag and
insignia int eh consulate although these concessions are considered “non-
essential” to the proper discharge of their official duties.
• These immunities and privileges are also available to the members of the
consular post, their respective families and private staff.
• Waiver may in general be made by the sending state.
12.5 Termination of Consular Mission
• Consul’s office may end in accordance with the usual modes of terminating:
o Removal
o Resignation
o Death
o Expiration of the term
• The exequatur may also be withdrawn by the receiving state, either of the
appointing or receiving state may be extinguished, or war may break
between them.
• In event of war, the consulate is closed, and the archives are sealed and
left in the custody of a caretaker, usually a consul from a neutral state.
• The consul from the belligerent state is allowed to depart from his own country
ASAP and without unnecessary molestation.
MODULE 13: TREATIES
• Treaty is a formal agreement, usually but not necessarily in writing, which is
entered into by the states or entities possessing the treaty-making
Comm Sarmiento – gillgc97 PIL
capacity, for the purpose of regulating their mutual relations under the laws
of nations.
• It may embrace such other compacts as conventions, declarations,
covenants, acts, concordats, etc. although there are recognized variations in
their extent or purposes.
• Vienna convention defined treaty
o is an international instrument concluded between states in written form
and governed by the international law, whether embodied in a single
instrument or in 2 or more related instruments, and whatever its particular
designation.
• The names or titles of international agreements included under the general
term treaty have little or no legal significance.
• Article (2) of the Vienna Convention provides that “the provisions of paragraph
1 regarding the use of terms in the present convention are without prejudice
to the use of those terms, or to the meanings which may be given to them in
the internal law of the state”
• Executive Order No. 459
WHEREAS the negotiations of international agreements are made in pursuance of the
foreign policy of the country;
WHEREAS, Executive Order No. 292, otherwise known as the Administrative Code of
1987, provides that the Department of Foreign Affairs shall be the lead agency that
shall advise and assist the President in planning, organizing, directing, coordinating
and evaluating the total national effort in the field of foreign relations.
WHEREAS, Executive Order No. 292 further provides that the Department of Foreign
Affairs shall negotiate treaties and other agreements pursuant to the instructions of the
President, and in coordination with other government agencies;
WHEREAS, there is a need to establish guidelines to govern the negotiation and
ratification of international agreements by the different agencies of the government;
SECTION 1. Declaration of Policy. – It is hereby declared the policy of the State that
the negotiations of all treaties and executive agreements, or any amendment thereto,
shall be coordinated with, and made only with the participation of, the Department of
Foreign Affairs in accordance with Executive Order No. 292. It is also declared the
policy of the State that the composition of any Philippine negotiation panel and the
designation of the chairman thereof shall be made in coordination with the Department
of Foreign Affairs.
SEC. 2. Definition of Terms.
a. International agreement shall refer to a contract or understanding, regardless of
nomenclature, entered into between the Philippines and another government in written
form and governed by international law, whether embodied in a single instrument or in
two or more related instruments.
b. Treaties – international agreements entered into by the Philippines which require
legislative concurrence after executive ratification. This term may include compacts like
conventions, declarations, covenants and acts.
c. Executive Agreements – similar to treaties except that they do not require
legislative concurrence.
d. Full Powers – authority granted by a Head of State or Government to a delegation
head enabling the latter to bind his country to the commitments made in the
negotiations to be pursued.
e. National Interest – advantage or enhanced prestige or benefit to the country as
defined by its political and/or administrative leadership.
f. Provisional Effect – recognition by one or both sides of the negotiation process that
an agreement be considered in force pending compliance with domestic requirements
for the effectivity of the agreement.
SEC. 3. Authority to Negotiate. – Prior to any international meeting or negotiation of
a treaty or executive agreement, authorization must be secured by the lead agency
from the President through the Secretary of Foreign Affairs. The request for
authorization shall be in writing, proposing the composition of the Philippine delegation
and recommending the range of positions to be taken by that delegation. In case of
negotiations of agreements, changes of national policy or those involving international
arrangements of a permanent character entered into in the name of the Government of
the Republic of the Philippines, the authorization shall be in the form of Full Powers
and formal instructions. In cases of other agreements, a written authorization from the
President shall be sufficient.
SEC. 4. Full Powers. – The issuance of Full Powers shall be made by the President
of the Philippines who may delegate this function to the Secretary of Foreign Affairs.
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The following persons, however, shall not require Full Powers prior to negotiating or
signing a treaty or an executive agreement, or any amendment thereto, by virtue of the
nature of their functions:
a. Secretary of Foreign Affairs;
b. Heads of Philippine diplomatic missions, for the purpose of adopting the text of a
treaty or an agreement between the Philippines and the State to which they are
accredited.
c. Representatives accredited by the Philippines to an international conference or to an
international organization or one of its organs, for the purpose of adopting the text of a
treaty in that conference, organization or organ.
SEC. 5. Negotiations. –
a. In cases involving negotiations of agreements, the composition of the Philippine
panel or delegation shall be determined by the President upon the recommendation of
the Secretary of Foreign Affairs and the lead agency if it is not the Department of
Foreign Affairs.
b. The lead agency in the negotiation of a treaty or an executive agreement, or any
amendment thereto, shall convene a meeting of the panel members prior to the
commencement of any negotiations for the purpose of establishing the parameters of
the negotiating position of the panel. No deviation from the agreed parameters shall be
made without prior consultations with the members of the negotiating panel.
SEC. 6. Entry into Force and Provisional Application of Treaties and Executive
Agreements. –
a. A treaty or an executive agreement enters into force upon compliance with the
domestic requirements stated in this Order.
b. No treaty or executive agreement shall be given provisional effect unless it is shown
that a pressing national interest will be upheld thereby. The Department of Foreign
Affairs, in consultation with the concerned agencies, shall determine whether a treaty
or an executive agreement, or any amendment thereto, shall be given provisional
effect.
SEC. 7. Domestic Requirements for the Entry into Force of a Treaty or an
Executive Agreement. – The domestic requirements for the entry into force of a treaty
or an executive agreement, or any amendment thereto, shall be as follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department of Foreign Affairs
after their signing for the preparation of the ratification papers. The transmittal shall
include the highlights of the agreements and the benefits which will accrue to the
Philippines arising from them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned
agency, shall transmit the agreements to the President of the Philippines for his
ratification. The original signed instrument of ratification shall then be returned to the
Department of Foreign Affairs for appropriate action.
B. Treaties.
i. All treaties, regardless of their designation, shall comply with the requirements
provided in sub-paragraph 1 and 2, item A (Executive Agreements) of this Section. In
addition, the Department of Foreign Affairs shall submit the treaties to the Senate of
the Philippines for concurrence in the ratification by the President. A certified true copy
of the treaties, in such numbers as may be required by the Senate, together with a
certified true copy of the ratification instrument, shall accompany the submission of the
treaties to the Senate.
ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs
shall comply with the provision of the treaties in effecting their entry into force.
SEC. 8. Notice to Concerned Agencies. – The Department of Foreign Affairs shall
inform the concerned agencies of the entry into force of the agreement.
SEC. 9. Determination of the Nature of the Agreement. – The Department of Foreign
Affairs shall determine whether an agreement is an executive agreement or a treaty.
SEC. 10. Separability Clause. – If, for any reason, any part or provision of this Order
shall be held unconstitutional or invalid, other parts or provisions hereof which are not
affected thereby shall continue to be in full force and effect.
SEC. 11. Repealing Clause. – All executive orders, proclamations, memorandum
orders or memorandum circulars inconsistent herewith are hereby repealed or modified
accordingly.
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SEC. 12. Effectivity. – This Executive Order shall take effect immediately upon its
approval.
13.1 Treaty v. Executive Agreements
• An executive agreement in not a treaty insofar as the concurrence thereto of
the Senate is not required under our Constitution.
• Distinct is purely municipal and has no international significance.
• From the viewpoint of international law, treaties and executive agreements
are alike in that both constitute equally binding obligations upon nations.
• Under International law, there is no difference between treaties and
executive agreements in terms of their binding effects on the contracting
states concerned, as long as the negotiating functionaries have remained
within their powers.
• Treaty has greater “dignity” than an executive agreement, because its
constitutional efficacy is beyond doubt, a treaty having behind it the authority
of the President, the Senate and the people; a ratified treaty, unlike an
executive agreement, takes precedence over any prior enactment.
• A treaty xxx covers conventions, declaration, covenants, acts, pacts. An
executive agreement is not a treaty insofar as the senate’s concurrence
thereto may not be required under our Constitution.
• The exchange of notes being considered a form of executive agreement that
becomes binding through executive action.
• On the other hand, executive agreements concluded by the President
“sometimes take the form of exchange of notes and at other times that of
more formal documents denominated “agreements” or “protocols””.
• An exchange of notes is a record of routine agreement that has many
similarities with the private law contract.
• Executive agreements may dispense with the requirement of senate
concurrence because of the legal mandate with which they are concluded.
Treaty Executive Agreements
A formally concluded, ratified and An agreement between the government
binding agreement sovereign states heads or two or more nations.
and/or international organizations.
Legally binding between two states Politically binding between the heads of
two states
Purposes varies: Peace, trade, Purpose is political negotiations with
independence, reparations, territorial other nations and trade agreement.
 boundaries, human rights, immigration, Transformation method Incorporation method
etc.
requires that an international law be Applies by mere constitutional
Ratified by the legislature Not necessarily ratified by legislature transformed into a domestic law declaration, international law is deemed
through a constitutional mechanism to have the force of domestic law.
Between two sovereign states (the Only between the heads of government
such as local legislation.
governments) and between states and of two or more states/nations.
international organizations or between
international organizations.
o Commissioner of Customs vs. Eastern Sea trading, international
Mainly 2 types of treaties as bilateral Types include those authorized by a agreements embodying adjustments of detail carrying out well-established
treaties (between 2 entities) and previous formal treaty or by a previous national policies and traditions and those involving arrangement of a more
multilateral treaties (between several law, those subsequently approved by or less temporary nature.
entities or countries, usually these are law, and those relating to matters over • Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351
regional treaties. which the executive branch has special
Doctrine: Treaties are formal documents which require ratification with the approval
or exclusive authority
of 2/3 of the Senate. Executive agreements become binding through executive action
without the need of a vote by the senate or by congress.
o Treaty and executive agreement come under international law and diplomatic Facts:
relations. Both are legal documents that explain the contents of an agreement/
o Respondent Eastern Sea trading was the consignee of several shipments
contract between two actors on the international stage.
of onion and garlic which arrived in Manila, some shipment coming from
o However, treaties are between sovereign states and/or international
Japan and others from Hong Kong. None of the shipments had the
organizations whereas executive agreements are between the heads of two
certificate required by the Central bank circulars no. 44 & 45 for release
or more nations/states. Similarly, treaties are legally binding whereas
thereof, thus, the goods imported were seized and subjected to forfeiture
executive agreements are politically binding. This is the main difference
proceedings for violation of Sec. 1363 (f) of the Revised Administrative
between treaty and executive agreement.
Code.
Three requisites of executive agreement provided under the Vienna convention: o Petitioner Collector of Customs of Manila rendered a decision declaring
• The agreement must be between states the goods, which had been released to consignees on the surety bonds,
• Must be written forfeited to the government and directed the amount of surety bonds to
be paid by the principal and surety to the Bureau of Customs. The
• Governed by the international law.
Commissioner of Customs affirmed the decision.
o Executive agreements must remain traceable to an express or implied
o Respondent sought a review of the decision with CTA, which reversed
authorization under the constitution, statutes or treaties. The absence of
the decision and ordered the bonds cancelled and withdrawn. Hence, this
these precedents puts the validity and effectivity of EA under serious
petition of the Commissioner of customs.
question for the main function of the executive is to enforce the constitution
o Petitioner avers that Central Bank has no authority to regulate
and laws enacted by the legislature, not to defeat or interfere in the
transactions not involving foreign exchange, that the shipments in
performance of these rules
question are in the nature of “no-dollar” imports and therefore do not
o Treaties are by their very nature, considered superior to executive
involve foreign exchange, and that insofar as a Central Bank license and
agreements. Treaties are products of the acts of the executive and senate
certificate authorizing importation of release of goods are required by the
unlike executive agreements, which are solely executive actions. A treaty is
circulars, they are null and void – the seizure and forfeiture of goods from
regarded as being on the same level as statute.
Japan cannot be justified under E.O. no. 328 not only because the same
o An EA cannot be used to amend a duly ratified and existing treaty,
seeks to implement an executive agreement – extending the effectivity of
our trade and financial agreements with Japan (believed to be of dubious

Comm Sarmiento – gillgc97 PIL

 validity) – but also because there is no governmental agency authorized
to issue the import license are required by the aforementioned E.O.
Issue: WON the Executive agreement sought to be implemented by E.O. no. 328 is
a valid, considering the fact that the senate had not concu5rred in the making of said
executive agreement.
Held:
o Valid. The concurrence of said House of Congress is required by our
fundamental law in the making of “treaties” (Constitution of the Philippines,
Art. VII, Section 10 (7)), which are, however, distinct and different from
“executive agreements”, which may be validly entered into without such
concurrence.
o Treaties are formal documents which require ratification with the approval
2/3s of the Senate. Executive agreements become binding through
executive action without the need of a vote by the senate or by congress.
o The right of the executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by
long usage. The validity of these has never been seriously questioned by our
courts.
o International agreements involving political issues or changes of national
policy and those involving international arrangements of a permanent
character usually take the form of treaties. But international agreements
embodying adjustments of detail carrying out well-established national
policies and traditions and those involving arrangement of a more or less
temporary nature usually take the form of executive agreements.
13.2 Functions
• According to Schwarzenberger: Treaties are supposed to perform 4
important functions.
o Treaties enable parties to settle finally actual and potential conflicts
o They make it possible for the parties to modify the rules of international
customary law by means of optional principles or standards.
o They may lead to a transformation of unorganized international society
into one which may be organized on any chosen level of social
integration.
o They frequently provide the humus for the growth of international
customary law.
13.3 Essential Requisites of a Valid Treaty
• must be entered into by parties with the treaty-making capacity
• must be through their authorized representatives
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• must be without the attendance of duress, fraud, mistake or other vice of
consent.
• must be on any lawful subject-matter.
• must be in accordance with their respective constitutional processes.
13.4 Treaty-making Process
exchange of
Negotiation signature ratification the instrument
for ratifiaction
• Negotiation may be undertaken directly by the head of state, but he now
usually assigns this task to his authorized representative. These reps are
provided with credentials known as full powers.
• Signature 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.
• Ratification 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.
• Exchange of the instrument for ratification
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.
13.5 Binding Effect of Treaties
• A treaty is binding only on the contracting parties, including not only the
original signatories but also other states which, although they may not have
participated in the negotiation of the agreement, have been allowed by the
terms to sign it later by a process known as ACCESSION.
• Instances when 3rd states may be validly held to the observance of or benefit
from the provisions of a treaty.
 • Treaty may be merely a formal expression of customary international law
which is enforceable on all civilized states because of their membership in the
family of nations.
• for the maintenance of international peace and security.
• Parties to apparently unrelated treaties may also be linked by the most
favoured nation clause, under which a contracting state entitled to most
favoured-nation treatment from the other may claim the benefits extended by
the latter to another state in a separate agreement.
13.6 Observance of Treaties
• Pacta Tertiis Nec Nocent Nec Prosunt
o means that a treaty binds the parties and only the parties. Thus, it
states that the binding power of a treaty is limited only to the
consenting party. Such a treaty that is binding only upon the
consenting parties does not create either obligations or rights for
third parties with/without their consent
• Pacta Sunt Servanda
o which requires performance in good faith of treaty
obligations
o parties must comply with their commitments under a
treaty and cannot ignore or modify its provisions
without the consent of the other signatories.
o a treaty engagement is not a mere moral obligation but
creates a legally binding obligation.
o treaties really limit of restrict the absoluteness of
sovereignty. By their voluntary act, nations may
surrender some aspects of their state powers in
exchange for greater benefits granted by or derived
from a convention or pact.
o The sovereignty of a state therefore cannot in fact and 1.
in reality be considered absolute 2.
o Restrictions: 3.
1. limitations imposed by the very nature of 4.
membership in the family of nations 5.
2. limitations imposed by treaty stipulations 6.
• Doctrine of Rebus Sic Stantibus, 7.
o constitutes an attempt to formulate a legal principle which would 8.
justify non-performance of a treaty obligation if the conditions with 9.
relation to which the parties contracted have changed so materially 10.
and so unexpectedly as to create a situation in which the exaction of
performance would be unreasonable.
o Limitations:
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1. applies only to treaties of indefinite duration
2. the vital change must have been unforeseen or unforeseeable
and should not have been caused by the party invoking the
doctrine
3. the doctrine must be invoked within a reasonable time
4. it cannot operate retroactively upon the provisions of the treaty
already executed prior to the change of circumstances
13.7 Requisites and Limitations
13.8 Treaty Interpretation
• The basic rule in the interpretation of treaties is to give effect to
the intention of the parties. This should be discoverable in the
terms of the treaty itself
• The usual canons of statutory construction are employed in the
interpretation of treaties
• Read in the light of the whole instrument and especially for the
purposes of the treaty.
• Words used are given their natural meaning unless a technical
sense was intended, and
• When they have different meanings in the contracting states,
should be interpreted in accordance with the usage of the state
where they are supposed to take effect
• Doubts should be resolved against the imposition of obligations
and in favor of the of the freedom and sovereignty of the
contracting parties
• Conflicts in treaty interpretations be resolved only by agreement
of the parties.
13.9 Termination of Treaties
Expiration of the term
Accomplishment of the purpose
Impossibility of performance
Loss of the subject-matter
Desistance of the parties
Novation
Extinction of one of the parties if the treaty is bipartite
Vital change of the circumstances under the doctrine of rebus sic stantibus
Outbreak of war between the parties
Voidance of the treaty because of defects in its conclusion
Pimentel v. Executive Secretary, G.R. No. 158088, July 6, 2005
 Facts:
o The Rome statute established ICC which shall have the power to exercise
its jurisdiction 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 crimes of aggression as defined in the statute.
o The statute was opened for signature by all states in Rome on July 17,1998
and had remained open for signature until December 31, 2000, at the UN
Headquarters in New York. The Philippines signed the statute on December
28, 2000, through the Charge d’affairs, Manalo. Its provisions, however,
require that it be subject to ratification, acceptance for or approval of the
signatory states.
o Petitioners filed the instant petition to compel the respondent – Office of the
Executive Secretary and DFA – to transmit the signed text of the treaty to the
senate of the Philippines for ratification.
o It is in the theory of the petitioners that ratification of a treaty, under both
domestic 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
Statue 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.
Issue: WON the Executive Secretary and the Department of Foreign Affairs have a
ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a
member of the Philippine Mission to the United Nations even without the signature of
the President.
Held: No. 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 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."
• Inchong v. Hernandez, 101 Phil. 1156
Doctrine: But even supposing that the law infringes upon the said treaty, the treaty is
always subject to qualification or amendment by a subsequent law, and the same may
never curtail or restrict the scope of the police power of the state.
Comm Sarmiento – gillgc97 PIL
• Tanada v. Angara, 272 SCRA 18
Summary: Petitioners assail the constitutionality of the Philippines acceding to the
World Trade Organization for being violative of provisions which are supposed to give
preference to Filipino workers and economy and on the ground that it infringes
legislative and judicial power.
The WTO, through it provisions on “most favored nation” and national treatment,
require that nationals and other member countries are placed in the same footing in
terms of products and services. However, the Court brushed off these contentions and
ruled that the WTO is constitutional. Sections 10 and 12 of Article XII (National
Economy and Patrimony) should be read in relation to Sections 1 and 13 (promoting
the general welfare).
Also, Section 10 is self-executing only to “rights, privileges, and concessions covering
national economy and patrimony” but not every aspect of trade and commerce. There
are balancing provisions in the Constitution allowing the Senate to ratify the WTO
agreement. Also, the Constitution doesn’t rule out foreign competition. States waive
certain amount of sovereignty when entering into treaties.
Facts:
o This case questions the constitutionality of the Philippines being part of the
World Trade Organization, particularly when President Fidel Ramos signed
the Instrument of Ratification and the Senate concurring in the said treaty.
o Following World War 2, global financial leaders held a conference in Bretton
Woods to discuss global economy. This led to the establishment of three
great institutions: International Bank for Reconstruction and Development
(World Bank), International Monetary Fund and International Trade
Organization.
o However, the ITO failed to materialized. Instead, there was the General
Agreement on Trades and Tariffs. It was on the Uruguay Round of the GATT
that the WTO was then established.
o The WTO is an institution regulating trade among nations, including the
reduction of tariff and barriers.
o Petitioners filed a case assailing the WTO Agreement for violating the
mandate of the 1987 Constitution to “develop a self-reliant and independent
national economy effectively controlled by Filipinos, to give preference to
qualified Filipinos and to promote the preferential use of Filipino labor,
domestic materials and locally produced goods.”
o It is petitioners’ position that the “national treatment” and “parity provisions”
of the WTO Agreement “place nationals and products of member countries
on the same footing as Filipinos and local products,” in contravention of the
 “Filipino First” policy of the Constitution. They allegedly render meaningless
the phrase “effectively controlled by Filipinos.”
Issue 1: Does the petition present a justiciable controversy? YES!
In seeking to nullify the Senate’s act as being unconstitutional, the petition no doubt
raises a justiciable controversy. It becomes not only the right but in fact the duty of the
judiciary to settle the dispute
Issue 2: Do the provisions of the WTO Agreement contravene Section 19, Article II
and Section 10 & 12, Artilce XII of the 1987 Constitution? NO!
Petitioners’ Contentions:
• Petitioners argue that the “letter, spirit and intent” of the Constitution
mandating “economic nationalism” are violated by the so-called “parity
provisions” and “national treatment” clauses scattered in parts of WTO
Agreement
o This is in view of the most-favored nation clause (MFN) of the TRIMS
(trade-related investment measures), TRIPS (Trade Related aspects
of intellectual property rights), Trade in Services, and par. 4 of Article
III of GATT 1994.
o “shall be accorded treatment no less favorable than that accorded to
like products of national origin”
• Sec. 19, Art II:The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos.
• Sec. 10, Art XII: Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by
Filipinos. In the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give preference to qualified
Filipinos.
• Sec. 12, Art XII: The State shall promote the preferential use of Filipino labor,
domestic materials and locally produced goods, and adopt measures that help
make them competitive.”
Ruling:
• These provisions are not self-executing
o Merely guides in the exercise of judicial review and in making laws.
• Secs. 10 and 12 of Article XII should be read and understood in relation to the
other sections in said article, especially Sec. 1 and 13:
o A more equitable distribution of opportunities, income and wealth;
o A sustained increase in the amount of goods and services
o An expanding productivity as the key to raising the quality of life
• The issue here is not whether this paragraph of Sec. 10 of Art. XII is self-
executing or not. Rather, the issue is whether, as a rule, there are enough
balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement. And we hold that there are.
• WTO Recognizes Need to Protect Weak Economies
Comm Sarmiento – gillgc97 PIL
o Unlike in the UN where major states have permanent seats and veto
powers in the Security Council, in the WTO, decisions are made on
the basis of sovereign equality, with each member’s vote equal in
weight.
• Specific WTO Provisos Protect Developing Countries
o Tariff reduction – developed countries must reduce at rate of 36% in
6 years, developing 24% in 10 years
o Domestic subsidy – developed countries must reduce 20% over six
(6) years, developing countries at 13% in 10 years
o Export subsidy – developed countries, 36% in 6 years; developing
countries, 3/4ths of 36% in 10 years
• Constitution Does Not Rule Out Foreign Competition
o Encourages industries that are competitive in both domestic and
foreign markets
• The Court will not pass upon the advantages and disadvantages of trade
liberalization as an economic policy. It will only perform its constitutional duty
of determining whether the Senate committed grave abuse of discretion
Reagan v. CIR, G.R. No. L-226379, December 27, 1969
Facts:
o The petitioner William C. Reagan, a citizen of the United Stated and was a
civilian employee of an American corporation providing technical assistance
to the United States Air Force in the Philippines. He opposes to pay the
income tax assessed on him by respondent Commissioner of Internal
Revenue on an amount realized by him on a sale of his automobile to a
member of the United States Marine Corps (in 1960), the transaction having
taken place at the Clark Field Air Base at Pampanga. It is his contention,
seriously and earnestly expressed, that in legal contemplation the sale was
made outside Philippine territory and therefore beyond our jurisdictional
power to tax. "The areas covered by the United States Military Bases are not
foreign territories both in the political and geographical sense."
o Decision of the Court of Tax Appeals: The sale having taken place on what
indisputably is Philippine territory, petitioner's liability for the income tax due
as a result thereof was unavoidable.
o As a result of the transaction thus made, respondent Commissioner of
Internal Revenue, after deducting the landed cost of the car as well as the
personal exemption to which petitioner was entitled, fixed as his net taxable
income arising from such transaction the amount of P17,912.34, rendering
him liable for income tax in the sum of P2,979.00. After paying the sum, he
wanted to have a refund from respondent claiming that he was exempt, but
pending action on his request for refund, he filed the case with the Court of
 Tax Appeals seeking recovery of the sum of P2,979.00 plus the legal rate of
interest.
Issue: WON the Commissioners of Internal Revenue erred in collecting income tax due
to the petitioner on the ground that Clark Air Base is a base outside the Philippines and
consider as foreign soil.
Held:
o No, the CIR does not err in collecting the income tax to the petitioner. The
Court ruled that, Philippines being independent and sovereign, its authority
may be exercised over its entire domain. There is no portion there of that is
beyond its power. Within its limits, its decrees are supreme, its commands
paramount. Its laws govern therein, and everyone to whom it applied must
submit to its terms. That it the extend of its jurisdiction, both territorial and
personal. Necessarily, likewise, it has to be exclusive. If it were not thus, there
is a diminution of its sovereignty.
o Any state may, by its consent, express or implied, submit to a restriction of its
sovereign rights. There may thus be a curtailment of what otherwise is a power
plenary in character. That is the concept of sovereignty as auto-limitation,
which, in the succinct language of Jellinek, “is the property of a state-force
due to which it has the exclusive capacity of legal self-determination property
of a state-force due to which it has the exclusive capacity of legal-
determination and self-restriction.” A state then, if it chooses to, may refrain
from the exercise of what otherwise is illimitable competence.
o In laws may as to some persons found within its territory no longer control.
Nor does the matter end there. It is not precluded from allowing another power
to participate in the exercise of jurisdictional right over certain portions of its
territory. If it does so, it by no means follows that such areas become
impressed with an alien character. They are still subject to its authority. Its
jurisdiction may be diminished, but it does not appear. So it is with the bases
under lease to the American armed forces by virtue of the military bases
agreement of 1947. They are not and cannot be foreign territory.
o There is nothing in the military bases agreement that lends support to such an
assertion. It has not become foreign soil or territory. This country’s
jurisdictional rights therein, certainly not excluding the power to tax, have been
preserved. As to certain tax matters, an appropriate exemption was provided
for.
o The decision of the CTA denying the refund of P2979, as the income tax paid
by petitioner is affirmed. With costs against petitioner.
MODULE 14: NATIONALITY AND STATELESSNESS
Comm Sarmiento – gillgc97 PIL
• An individual can participate in international relations only through the
instrumentality of the state to which he belongs, as when his government
asserts a diplomatic claim on his behalf for injuries he may have suffered in
foreign jurisdiction.
• Nationality
o Tie that binds an individual to his state from which he can claim
protection; and whose laws he is obliged to obey.
o It is a membership in a political community with all its concomitant
rights and obligations.
• Citizenship
o Has more exclusive scope in that it applies only to certain members
of the state accorded more privileges than the rest of the people
who also owe it allegiance.
Acquisition of Nationality
• Nationality may be acquired by birth or naturalization.
• An individual acquires
o Jure soli the nationality of the state where is born
o Jure sanguinis nationality of his parents
• Naturalization is a process by which a foreigner acquires, voluntarily or by
operation of law, the nationality of another state.
o Direct naturalization – it is effected:
a) By individual proceedings – usually judicial, under general
naturalization laws.
b) By special act of the legislation – often in favor of
distinguished foreigners who have rendered some notable
service to the local state
c) By collective change of nationality (naturalization en
masse) – as a result of cession or subjugation.
d) In some cases, by adoption of orphan minors as nationals of
the state where they are born
o Derivative naturalization – in turn is conferred:
a) On the wife of the naturalized husband
b) On the minor children of the naturalized parent
c) On the alien woman upon marriage to a national.
• It does not always follows as a matter of course, for it is usually subject to
stringent restrictions and conditions.
• An alien woman married to a Filipino shall acquire his citizenship only if she
herself might be lawfully naturalized.
 Poe-Llamanzares v. COMELEC, “Foundlings are likewise citizens under
International law.” William’s case (U.S. Cir. Ct. Dist. 1799, Fenwick, Cases, 152)
• An American citizen who had accepted a commission in the French navy
UDHR, Article 15 was convicted of violating the Neutrality Act of 1874 notwithstanding his
defense that he had been naturalized in France.
• Everyone has the right to a nationality. • The Court held that he had no power to renounce his allegiance without the
• No one shall be arbitrarily deprived of his nationality nor denied the right consent of the US and was, therefore, still subject to its laws.
to change his nationality. • By contrast, a state may allow any of its nationals to remain as such even if
he may have acquired another nationality, as he is conferred an honorary
The Philippines has also ratified the UN Convention on the rights of the child. citizenship by a foreign government.
Article 7;
1. The child shall be registered immediately after birth and shall have the right from o Dual citizenship is recognized in our jurisdiction.
birth to a name, the right to acquire a nationality and. as far as possible, the right Mercado v. Manzano
to know and be cared for by his or her parents. • WON a person born in the US, where, as previously stated, the jus soli
principle is observed, but of a Filipino father and Filipino mother can be
2. States Parties shall ensure the implementation of these rights in accordance with considered as a natural born Filipino citizen and therefore qualified to run for
their national law and their obligations under the relevant international instruments public office.
in this field, in particular where the child would otherwise be stateless. • He can run without express sworn renunciation because he was born in the
US and was involuntarily in his part. The mere act of filing his COC, he
The country also ratified the 1966 International Covenant on Civil and renounces his foreign citizenship but if a person became a naturalized
Political rights. Article 24. American and through volition and then became dual citizen, thus, a person
1. Every child shall have, without any discrimination as to race, colour, sex, should file a sworn renunciation of his foreign citizenship in order to file a
language, religion, national or social origin, property or birth, the right to such COC and should be then attached to such document.
measures of protection as are required by his status as a minor, on the part of his
family, society and the State. Dual citizenship Dual allegiance
• As a result of the concurrent • Refers to the situation in which
2. Every child shall be registered immediately after birth and shall have a name. application of the different a person simultaneously
laws of 2 or more states, owes, by some positive act,
3. Every child has the right to acquire a nationality. person is simultaneously loyalty to two or more states.
considered a national by the • It is the result of an individual’s
The common thread of UDHR, UNCRC, and ICCPR is to obligate the Philippines to said states. volition.
grant nationality from birth and ensure no child is stateless. • It is possible for the • Article IV, Section 5. Dual
following classes of allegiance of citizens is
Multiple Nationality citizens of the Philippines inimical to the national
• Doctrine of indelible allegiance to possess dual interest and shall be dealt
- An individual may be compelled to retain his original nationality citizenship: with by law.
notwithstanding that he has already renounced or forfeited it under the 1) Those born of Filipino fathers • “Dual citizenship” R.A. no.
laws of a second state whose nationality has acquired. and/or mothers in foreign 7160 Sec 40 (d) and R.A. no.
countries which follow the 7854 Sec 20 must be
eg. A woman who upon marriage to a foreigner continues to be a national of principle of jus soli; understood as referring to
her own state under its laws while also acquiring her husband’s nationality in 2) Those born in the Philippines “dual allegiance.”
accordance with the laws of his state. of Filipino mothers and alien

Comm Sarmiento – gillgc97 PIL

 fathers if by the laws of their • Such renunciation should
father’s country such children have been made upon
are citizens of that country. respondent reaching the age
3) Those who marry aliens if by of majority since no law
the laws of the latter’s country requires the election of
the former are considered Philippine Citizenship to be
citizens, unless by their act or made upon majority age.
omission they are deemed to
have renounced Philippine Yu v. Defensor-Santiago,
citizenship. • the court sustained the denial
• Dual citizenship is involuntary of entry into the country of
petitioner on the ground that,
after taking his oath as
naturalized citizen, he
applied for the renewal of his
Portuguese passport and
declared in commercial
documents executed abroad
that he was a Portuguese
national.
• A similar sanction can be
taken against anyone who, in
electing Philippine
citizenship, renounces his
foreign nationality, but
subsequently does some act
constitution renunciation of
his Philippine citizenship.
Cordova v. Commission on Election, G.R. no. 176947, February 19, 2009
• Tambunting does not deny that he is born of a Filipino mother and an
American Father.
• Neither does he deny that he underwent the process involved in INS Form I-
130 (Petition for relative) because of his father’s citizenship.
• Tambunting claims that because of his parents’ differing citizenships, he is
both Filipino and American by birth.
• Cordora, on the other hand, insists that Tambunting is a naturalized
American citizen.
• Tambunting possesses dual citizenship. It was no longer necessary for
Tambunting to undergo the naturalization process to acquire American
citizenship. The process involved in INS form I-130 only served to confirm
Comm Sarmiento – gillgc97 PIL
the American citizenship which Tambunting acquired at birth. Clearly,
Tambunting possessed dual citizenship prior to the filing of his certificate of
candidacy before the 2001 elections. The fact that Tambunting had dual
citizenship did not disqualify him from running for public office.
Advocates and adherents of Social Justice for School teachers and allied
workers v. Datumanong
• A Filipino who becomes a naturalized citizen of another country is allowed to
retain his Filipino citizenship by swearing to the supreme authority of the
Republic of the Philippines.”
• It should be noted thought that, under Section 5 (3) of RA 9225, naturalized
citizens who reacquire Filipino citizenship and desire to run for elective public
office in the Philippines shall “meet the qualifications for holding such public
office as required by the Constitution and existing laws and, at the time of
filing the certificate of candidacy, make a personal and sworn renunciation
of any and all foreign citizenship before any public officer authorized to
administer an oath” aside from the oath of allegiance prescribed in Section
3 of R.A. no. 9225.
Loss of Nationality
• Nationality may be lost voluntarily or involuntarily.
• Voluntary method
o Renunciation,
o Express or implied; and
o Request for release, both of which usually precede the acquisition
of new nationality.
• Involuntary method
o Forfeiture as a result of some disqualification or prohibited act like
enlistment in a foreign army or long continued residence in a foreign
state; and
o Substitution of one nationality for another following a change of
sovereignty or any act conferring derivative naturalization.
Conflict of Nationality Laws
• To provide against conflicts arising from divergent municipal laws on
nationality, the following rules were embodies in the Hague Convention of
1930 on the conflict of nationality laws:
o Article 1.
It is for each State to determine under its own law who are its nationals. This law
shall be recognised by other States in so far as it is consistent with international
conventions, international custom, and the principles of law generally recognised
with regard to nationality.

o Article 2.
Any question as to whether a person possesses the nationality of a particular
State shall be determined in accordance with the law of the State.
o Article 3.
Subject to the provisions of the present Convention, person having two or more
nationalities may be regarded as its national by each of the States whose
nationality he possesses.
o Article 4.
A State may not afford diplomatic protection to one of its national against a State
whose nationality such person also possesses.
o Article 5.
Within a third State, a person having more than one nationality shall be treated
as if he had only one. Without prejudice to the application of its law in matters of
personal status and of any conventions in force, a third State shall, of the
nationalities which any such person possesses, recognise exclusively in its
territory either the nationality of the country in which he is habitually and
principally resident, or the nationality of the country with which in the
circumstances he appears to be in fact most closely connected.
o Article 6.
Without prejudice to the liberty of a State to accord wider rights to renounce its
nationality, a person possessing two nationalities acquired without any voluntary
act on his part may renounce one of them with the authorisation of the State
whose nationality he desires to surrender.
This authorisation may not be refused in the case of a person who has his habitual
and principal resident abroad, if the conditions laid down in the law of the State
whose nationality he desires to surrender are satisfied.
• If a person possesses both Philippine and American nationality, his claim to
Philippine nationality shall be decided on the basis alone of Philippine law,
to the exclusion of all other laws.
• If on the other hand, he claims American nationality, the matter shall be
resolved on the basis alone of American law, to the exclusion of all other
laws.
• But if the issue of his real nationality is raised in a third state, Spain, the laws
of that country will obviously be inapplicable as he does not claim Spanish
nationality. Spain shall apply the principle of effective or active nationality,
Comm Sarmiento – gillgc97 PIL
under which the dual national shall be considered the national exclusively if
the state with which he is most closely connected.
o US v. Austria and Hungary
Issue: Could the Austrian government subject Alexander Tellech, who was born of
Austrian parents in the US, to compulsory military service?
Held: The action taken by the Austrian civil authorities in the exercise of their police
powers and by the Austro-Hungarian military authorities, of which compliant is made,
was taken in Austria, where claimant is voluntarily residing, against claimant as an
Austrian citizen. Citizenship is determined by rules prescribed by municipal law.
Under the law of Austria, to which claimant had voluntarily subjected himself, he was
an Austrian citizen. The Austrian and the Astro-Hungarian authorities were well within
their rights in dealing with him as such. Possessing as he did dual nationality, he
voluntarily took the risk incident to residing in Austrian territory and subjecting himself
to the duties and obligations of an Austrian citizen arising under the municipal laws of
Austria.
o Canevaro Case
Issue: May Italy file a diplomatic claim against Peru om behalf Canevaro, who is a
national of both states under their respective municipal laws?
Held: Whereas, according to Peruvian legislation, Rafael Canvero is a Peruvian by
birth because born on Peruvian territory, and, whereas, on the other hand, according
to Italian legislation he is of Italian nationality because born of an Italian father;
whereas, as a matter of fact, Rafael had on several occasion acted as a Peruvian
citizen, both by running as a candidate for the Senate, where none are admitted
except Peruvian citizens and where he succeeded in the defending his election, and
particularly, by accepting the office of Consul-General for the Netherlands, after
having secured the authorization of both the Peruvian Government and the Peruvian
Congress; under these circumstances, whatever Rafael’s status as a national may be
in Italy, the government of Peru has a right to consider him a Peruvian citizen and to
deny his status as an Italian claimant.
o The Nottebohm Case, ICJ Reports, 1955, p.4 Judg. April 6, 1955
Facts:
• Nottebohm, a German by birth, had been a resident of Guatemala for 34-
years when he applied for and acquired naturalization in Liechtenstein one
month before the outbreak of WWII. Many members of his family and his
business connections were in Germany.
 • In 1943, Guatemala, which had declared war on Germany, confiscated all
his properties on the ground that he was an enemy national. Liechtenstein
thereupon filed suit against Guatemala on his behalf as a naturalized citizen
of Liechtenstein.
Issue: Was Nottebohm’s naturalization in Liechtenstein binding on Guatemala?
Held:
• The courts of third states, when they have before them an individual whom
two other states hold to be their national, seek to resolve the conflict by
having recourse to international criteria and their prevailing tendency is to
prefer the real and effective nationality actual connections with Liechtenstein
were extremely tenuous.
• No settled abode, no prolonged residence in that country at the time of hid
application for naturalization. No intention of settling there was shown at that
time or realized in the ensuing weeks, months or years – on the contrary, he
returned to Guatemala very shortly after his naturalization and showed every
intention of remaining there. Naturalization was asked not so much for the
purpose of obtaining a legal recognition of Nottembohm’s membership in fact
in the population of Liechtenstein, as it was to enable him to substitute for
his status as a national of a belligerent state that of a national of a neutral
state, with the sole aim of thus coming within the protection of Liechtenstein
but not of becoming wedded to its traditions, its interests, its way of life or of
assuming the obligations – other than fiscal obligations – and exercise the
rights pertaining to the status acquired.
• Guatemala is under no obligation to recognize a nationality granted in such
circumstances. Liechtenstein consequently Is not entitled to extend its
protection to Nottebohm vis-à-vis Guatemala and its claim must, for this
reason, be held to be inadmissible.
Statelessness
• Is the condition or status of an individual who is born without any nationality
or who loses his nationality without retaining or acquiring another.
eg:
o A child born in a state where only the jus sanguinis is recognized to parents
whose state observes only the jus soli.
o An individual who after renouncing his original nationality in order to be
naturalized in another state is subsequently denaturalized and is thereafter
denied repatriation by his former country.
o In such cases, the individual is, from the traditional viewpoint, powerless to
assert any right that otherwise would be available to him under international
law were he a national of a particular state.
o Any wrong suffered by him through the act or omission of a state would be
damnum absque injuria for in theory no other state had been offended and
Comm Sarmiento – gillgc97 PIL
no international delinquency committed as a result of the damage caused
upon him.
o This is so because any injury to the individual by a foreign jurisdiction is,
legally speaking, not a violation of his own right but of the right but of the right
of his state to the protection of its nationals; the right to complain belongs not
to him but to the state of which he is a national.
Steps Undertaken to Avoid Condition of Statelessness (Hague Convention of
1930)
• These rules would condition loss of nationality by an individual upon his
retention or acquisition of another nationality, whether such loss be by
expatriation, naturalization as to the wife and minor children, or adoption.
• In the case of naturalization,
o The wife and children retain their existing nationality if they are not
also naturalized and moreover, the wife will acquire her husband’s
new nationality, if permitted, only with her own consent.
o The adopted child’s existing nationality is also not lost if he does
not acquire the adopter’s nationality.
o In other cases, it is provided that children shall have the nationality
of the state of their birth whenever their parents are:
a) Unknown
b) Stateless or of unknown nationality; or
c) A father who is stateless or of unknown nationality and a mother
who is a national of the state where they are born.
• Stateless individual is entirely without recourse under the law of nations.
Rights of Stateless Person (Covenant Relating to the Status of Stateless
Person)
• He is entitled to, among others, the right to religion and religious instruction,
access to courts, elementary education, public relief and assistance and
rationing of products in short supply, as well as treatment no less favourable
than that accorded to alien generally.
• The terms of UDHR are sufficiently broad to encompass the stateless
individual with its protection and sympathy as a member of the human family.
Asylum is different from refugee status, as the former constitutes the institution for
protection while the latter refers to one of the categories of individuals –among others-
who benefit from such protection.
Asylum, Principles/ Refugees, Rights
 • Asylum constitutes the protection that a state grants to an individual in its • Chattin Case, where the US filed a claim on behalf of a national who was
territory (territorial asylum) or in some other place under the control of certain allegedly arrested, tried and sentenced illegally by the Mexican government
of its organs (such as diplomatic premises and warships). As such, asylum and subjected to inhuman treatment in jail.
is an expression of state sovereignty.
Failure of Protection or redress
MODULE 15: TREATMENT OF ALIENS • The state may still be held liable if it does not make reasonable efforts to
• The alien cannot as a rule claim a preferred position vis-à-vis the national of prevent injury to the alien or, having done so unsuccessfully, fails to repair
the state where he is at best only a guest. Thus, the foreigner may not enjoy such injury.
the right to vote, to run for public office, to exploit natural resources or to Eg.
engage in the certain businesses regarded as vital to the interests of the local o State will be held liable if a foreigner is killed and is shown that its
state. authorities were informed in advance of the plot to kill him but did not
act to forestall it.
Doctrine of State responsibility o Furthermore, even if it did take reasonable precautions, the state would
• A state may be held responsible for: be still held liable if it thereafter does not employ the necessary diligence
o an international delinquency to arrest and punish the malefactors or otherwise redress the wrong
o directly or indirectly imputable to it committed.
o which causes injury to the national of another state. • The degree of diligence required must, vary with the circumstances of every
• Liability will attach to the state where its treatment of the alien falls below the case.
international standard of justice or where it is remiss in according to him the Noyes case Youmans case Galvan case Janes case
protection or redress that is warranted by the circumstances. The Republic of Where it was US was held liable Where it appeared that
• Its function is to assure the traveller that when his rights are violated in a Panama was not shown that the for killing of a 8 years had already
foreign state, he will not be denied any remedy simply because he is not one held liable for very troops sent to Mexican in Texas passed and the known
of its nationals. injuries sustained disperse a was not the failure murderer of an
• It is to encourage more intercourse among the peoples of the world through by an American Mexican mob join to apprehend the American national
inter-visitation of their respective countries. national from a in killing a number criminal but the had not yet been
unruly and of Americans. unreasonable arrested and
International Standard of Justice intoxicated crowd delay in his punished.
• Is a concept of controversial content that has defied precise definition. in a small village, prosecution,
• Standard of the reasonable state, that is as referring to the ordinary norms it was shown that which dragged
of official conduct observed in civilized jurisdiction. the local police inconclusively for
• ISJ is deemed not satisfied if the laws of a state are intrinsically unjust, as force of 3 6 years. Mexico
where there is a marked disproportion between the degree of an offense and members was was ordered to pay
the penalty imposed for it, eg, when a minor crime like petty theft is punished reinforced when damages to the US
with death. disorder was
• The laws of the state fall below the ISJ, it is no defense that they are apprehended,
applicable not only to aliens but as well, and equally to the nationals of that that a policeman
state. and the police
• The relations of that state with its own nationals are purely municipal; chief himself tried
International law is involved in its relations with the nationals of other states. actively to protect
Hence, while the national may not demand, say, the right of confrontation if Noyes when he
this is not granted by the local law, the foreigner can. (Doctrine of equality was attacked.
of treatment)
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• It is important to remember in this connection that responsibility does not
immediately attach to the state upon a showing of a failure to prevent or
redress an injury to aliens.
State Responsibility:
• Direct state responsibility
o The rule is that where the international delinquency was
committed by superior government officials or organs like the
chief of state or national legislature, liability will attach
immediately as their acts may not be effectively prevented or
reversed under the constitution and laws of the state.
o Direct Responsibility means the responsibility of the state for its own
act is called as original responsibility or direct responsibility.
o A state is a legal person, and it performs its function through
different organs and Agencies, and if any wrong act is done by any
one of them, the state becomes responsible directly on their behalf.
• Indirect state responsibility
o Where the offense is committed by inferior government
officials or, more so, by private individuals, the state will be
held liability only if, by reason of its indifference in preventing
or punishing it, it can be considered to have connived in effect
in its commission.
o Indirect State Responsibility means the responsibility for the acts
other than its own is called as vicarious or indirect responsibility.
o Indirect state responsibility is an obligation of the state to prevent
its own subject as well as foreign subject living within its territory
from committing such acts which may cause injury to another State.
If any wrongful act is done by an individual or group of individuals,
a State to which they belong is held responsible for their acts. Such
responsibility is called indirect responsibility. According to
Oppenheim "if State has not exercised due diligence, it can be
made responsible and held liable to pay damages(Compensation)".
Exhaustion of Local Remedies
• Even assuming the liability of the state for an international delinquency, its
enforcement cannot be claimed by the injured foreigner UNLESS he first
exhausts all available local remedies for the protection or vindication
of his rights.
• The foreigner must accept the institutions of the state the institutions of the
state as he finds them.
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• The general accepted view: “State must be given an opportunity to do
justice in its own regular way and without unwarranted interference with its
sovereignty by other states.”
• It is a sound principle that where there is a judicial remedy, it must be sought;
and only if it sought in vain does diplomatic interposition become proper.
• This requirement may be dispensed with if there are no remedies to
exhaust, as where the laws are intrinsically defective or there is laxity or
arbitrariness in their enforcement or where the courts are corrupt or
Resort to Diplomatic Protection
• If the injured foreigner has exhausted all local remedies but without success,
he may then avail himself of the assistance of his state but only if he
has a state.
• If he does not have a state, he will have no party to represent him, and
he by himself, being a mere individual, cannot institute his claim in his
own name.
• “Any injury to an alien is a violation not of his own personal right but of the
right of his state to have its nationals protected whenever they are in a foreign
country.”
• Alien is stateless – damnum absque injuria and cannot be subject of
diplomatic relations.
• Tie of nationality - it is required to exist from the time of the injury until the
international claim is finally settled.
o eg. If the injured national dies while the claim is under consideration
and it should happen that his heirs are not nationals of the
claimant state, the claim will lapse.
Enforcement of Claim
• An international claim for damages may be resolved through negotiation or
if it fails, any other methods of settling disputes like good offices,
arbitration and judicial settlement.
• There have been cases where hostile and forcible measures have been
employed and when war itself has been resorted to as means of
compelling compliance with the demands of the injured state.
• If the responsibility of the state is established or acknowledge, the duty
oto make reparation will arise.
• Reparation may take form of restitution, or where this is not possible,
satisfaction or compensation, or all three of these together.
• The settlement may consist of the restoration or replacement of the object of
the offense, a formal apology by the delinquent state and payment of
damages.
Avoidance of State Responsibility
• The doctrine of state responsibility is applied more frequently to tortious
rather than contractual liability because of the unwillingness of most
states to act as “collection agencies” for their nationals entering into private
agreements with or in foreign countries.
a. Calvo Clause
• To avoid the intervention of the alien’s state in contracts of this nature, the
local state sometimes incorporates therein. Calvo clause.
• This is a stipulation by which the alien waives or restricts his right to
appeal to his own state in connection with any claim arising from the
contract and agrees to limit himself to the remedies available under the
laws of the local state.
• If it requires the alien to exhaust the remedies available in the local state,
Calvo clause may be enforced as a lawful condition of the contract.
However, it may not be interpreted to deprive the alien’s state of the right to
protect or vindicate his interests in case they are injured in another state as
such waiver can legally be made noy by him but by his own state.
• Calvo doctrine, a body of international rules regulating the jurisdiction of
government over aliens and the scope of their protection by their home
states, as well as the use of force in collecting indemnities.
Exclusion of Aliens
• Instead of banning aliens altogether, the practice is to regulate the
immigration and stay of aliens and to provide for their deportation whenever
warranted. In proper cases, for the extradition of the alien fugitives.
• Deportation is the removal of an alien out of the country, simply because
his presence is deemed inconsistent with the public welfare, and without the
any punishment being imposed or contemplated, either under the laws of the
country out which he is sent, or under the country to which he is taken.
• Exclusion is the denial of entry to an alien.
o Harvey vs. Santiago
• Every sovereign power has the inherent power to exclude aliens
from its territory upon such ground as it may deemed proper for
its self-preservation or public interest.
• The power to deport is an act of the state, an act done by or
under the authority of the sovereign power.
• It is a police measure against undesirable aliens whose
continued presence in the country is found to be injurious to
the public good and domestic tranquillity of the people.
Comm Sarmiento – gillgc97 PIL
o Rosas v. Montor
• Exclusion is the authorized removal of an alien by
immigration officers, performing primary inspection, or by the
immigration boards of special inquiry, by secondary inspection,
of any foreigner arriving in the Philippines who, upon inspection
and prior to entry or admission, is barred by the immigration
laws, rules and regulations from entering or being
admitted to the Philippines.
• When alien is excluded, he is immediately sent back to the
country where he came from on the same vessel which
transported him.
• Deportation is the power to deport aliens is an act of state, an
act done by or under the authority of the sovereign power. It is
a police measure against undesirable aliens whose continued
presence in the country is found to be injurious to the public
good and domestic tranquillity of the people.
Extradition
• Is the surrender of a person by one state to another state where is wanted for
prosecution or, if already convicted, for punishment.
• Is the surrender by one nation to another of an individual accused or convicted
of an offense outside of its own territory, and within the territorial jurisdiction
of the other, which, being competent to trey and to punish him, demands the
surrender.
• It is not part of the customary international law, the duty to extradite exists only
for some international crimes. Thus, a state must extradite only when
obliged by treaty to do so.
a. Distinguished from Deportation
• Deportation, the expulsion of an alien by reason of being undesirable, is a
unilateral act of the local state and made exclusively for its own interest.
b. Basis of Extradition
• The extradition of a person is required only if there is a treaty between the
state of refuge and state of origin.
• In the absence of such a treaty, the local state has every right to grant
asylum to the fugitive and to refuse to deliver him back to the latter state even
if he is its national.
Fundamental Principles of Extradition
• The fundamental principles governing extradition are the following
• Extradition
 ➢ Based on the consent of the state of asylum as expressed in a
treaty or manifested as an act of goodwill.
• Principle of specialty
➢ A fugitive who is extradite may be tried only for crime specified
in the request for extradition treaty.
➢ If he is charged with any other offense committed before his
escape, the state of refuge and not the accused has a right to
object; nevertheless, the prosecution will be allowed if the
extraditing state agrees or does not complain.
• Any person may be extradited, whether he be a national of the
requesting state, of the state of refuge or of another.
➢ It is not to extradite their own nationals but to punish them
under their own laws in accordance with the nationality
principle of criminal jurisdiction.
• Political and religious offenders are generally not subject to
extradition.
o In order to constitute an offense of a political character, there must
be two or more parties in the state, each seeking to impose the
government of their own choice on the other.
➢ Attentat Clause
o The murder of the head of state or any member of his
family is not to be regarded as a political offense for
purposes of extradition.
o Neither is the crime of genocide as defined in the
Genocide convention.
➢ Genocide
o Consists of any of the following acts, committed with the
intent to destroy, in whole or in part, a national, ethnical,
racial or religious group such as:
1. Killing members of the group.
2. Causing serious bodily or mental harm of the members
of the group.
3. Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in
whole or in part.
4. Imposing measures intended to prevent births within
the group.
5. Forcibly transferring children of the group to another
group.
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• In the absence of special agreement, the offense must have been
committed within the territory or against the interests of the demanding
state.
• The act for which the extradition is sought must be punishable in both
the requesting and requested states under the rule of double criminality.
➢ Rule of Double Criminality
o The act for which extradition is sough must be punishable
in both the requesting and requested states.
o The requested state comes under no obligation to
surrender the person if its laws do not regard the conduct
covered by the request for extradition as criminal.
Procedure of Extradition
• A request for the fugitive’s extradition to be presented through diplomatic
channels to the state of refuge.
• This request will be accompanied by the necessary papers relative to the
identity of the wanted person and the crime he is alleged to have committed
or of which he has already been convicted.
• Upon receipt of this request, the state of refuge will conduct a judicial
investigation to ascertain if the crime is covered by the extradition treaty and
if there is a prima facie case against the fugitive according to its laws.
• If there is, a warrant of surrender will be drawn and the fugitive will be delivered
to the state of origin.
Savarcar Case, Oppenheim-Lauterpacht, 703
Facts: A prisoner en route to India escaped in a French port but was apprehended by
a local policeman and delivered back to the British authorities and when France
thereafter demanded the prisoner’s return on the ground that a formal request for his
extradition should have been made.
Issue:
Held: Great Britain was under no obligation to comply with France’s demand
Secretary of Justice v. Lantion, 322 SCRA 160
• During the executive phase of an extradition proceeding an extraditee does
not have the right of access to evidence in the hands of the government. But
during the judicial phase he has.
• Neither is the respondent entitled to notice and hearing during the evaluation
stage of the extradition process. PD 1069 affords an extraditee sufficient
opportunity to meet the evidence against him once the petition is filed in
court. The time for the extraditee to know the basis of the request for
extradition is merely moved to the filing in court of the formal petition for
 extradition. The extraditee’s right to know is momentarily withheld during the
evaluation stage to accommodate the more compelling interest of the state
to prevent escape of potential extraditees which can be precipitated by
premature information on the basis of the request for extradition. No less
compelling at that stage of the extradition proceedings is the need to be more
deferential to the judgment of a co- equal branch of the government, the
Executive, which has been endowed by our Constitution with greater powers
over matters involving our foreign relations.
Facts:
• The former Secretary of Justice Drilon, representing the Philippines, signed
the “Extradition Treaty” between the Philippines and USA. The senate then
expressed its concurrence by ratify the said treaty.
• On June 18, 1999, the DOJ received from the DFA a note verbale from the
USA containing a request for the extradition of the respondent Mark Jimenez
to the US attached to the note verbale were the Grand Jury indictment,
warrant of arrest issued by the US District Court, Southern District of Florida
and other supporting documents for said extradition.
• Jimenez appears to be charged in the US with conspiracy to commit
offense or to defraud the US Attempt to evade or defeat tax Fraud by
wire, radio, or television False statement or entries Election
contribution in name of another.
• A panel of attorneys were designated to handle the case. Pending the
evaluation of the extradition documents, Jimenez requested for the copies of
the official extradition request from the US Government, the documents and
papers submitted therewith, and that he be given ample time to comment on
the request after receiving said copies.
Issue: WON Jimenez’s entitlement to notice and hearing during the evaluation state
of the proceedings constitute a breach of the legal duties of the Philippines under the
RP-Extradition treaty.
Held:
• No. The human rights of person, Filipino or foreigner, and the rights of the
accused guaranteed in our Constitution should take precedence over treaty
rights claimed by a contracting state. The duties of the government to the
individual deserve preferential consideration when they collide with its treaty
obligations to the government of another state. This is so although we
recognize treaties as a source of binding obligations under generally
accepted principles of international law incorporated in our Constitution as
part of the law of the land.
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• The Supreme Court originally sustained the demand of Jimenez to be
informed of the charges against him in the US request for his extradition. On
the motion for reconsideration, however, the decision was revered, also by
an 9-6 vote, on the ground that such charges were still being evaluated and
no complaint for extradition had as yet filed in court. He later offered
“voluntary extradition” and went to the US, where he was eventually tried and
convicted.
Belgium v. Senegal, ICJ Judgment of July 20, 2012
Facts: Hissène Habré, currently a resident of Senegal, was the President of the
Republic of Chad from 1982 until 1990. During that time, he established a brutal
dictatorship which, by the bias of its political police, the Bureau of Documentation and
Security (Direction de la Documentation et de la Sécurité (DDS)) caused the deaths
of tens of thousands of individuals.
Proceedings have commenced and failed against him in the Republic of Chad,
Senegal, and most recently in Belgium. The latter State issued an international arrest
warrant for Habré in 2005 for charges of crimes against humanity, war crimes, torture
and serious violations of international humanitarian law. The request was never
complied with; the Court of Appeal of Dakar in Senegal held that Habré enjoyed
immunity and it was incompetent to rule on the validity of the arrest warrant for a
former Head of State. Belgium instituted proceedings before the International Court
of Justice (ICJ) alleging that Senegal was in violation of its obligation to prosecute or
extradite Habré under the Convention Against Torture.
Held: The present decision by the ICJ is the culmination of these proceedings. In its
decision, the ICJ ruled that Senegal was indeed in breach of its obligations under the
Convention and should proceed without further delay to the prosecution of Habré. It
cannot rely on its internal law or financial difficulties to evade the implementation of
this obligation.
Chirskoff v. Commission of Immigration, 90 Phil. 256 (1951)
Facts:
Chirskoff entered the Philippines on June 19, 1946, with a passport duly visa by US
Consul in Shanghai, for the purpose of making repairs on and taking delivery of certain
vessels purchased by or in behalf of the Jave China Trading Co., Ltd. After
accomplishing these purposes, the petitioner remained behind because according to
him, he had suffered an economic collapse and his return to Shanghai became
impracticable. Chirskoff then worked at a lumber concern in Pampanga. On March
16, 1948, he was arrested by order of the Commissioner of Immigration, charged with
 aiding, helping and promoting “the final objective of the Hukbalahaps to overthrow the
Government.”
On April 5, 1948, the deportation board ordered the petitioner’s deportation to Russia,
not on he ground stated in the warrant of arrest but on the purported ground that he
“violated condition of the temporary stay given him by failing to depart from the
Philippines upon its expiration, thus rendering himself subject to deportation under
Sec 37 (2) (7) of the Philippine Immigration Act of 1940 as amended.” No formal
charges for giving aid to Hukbalahaps have ever filed.
The immigration authorities were unable to carry out the deportation order, and it is
alleged that because of the inability the petitioner repeatedly expressed his desire to
leave the country on his own account but that his request was not heeded. The
petitioner says that he could easily have departed from the Philippines without any
expense on the part of the Government when, upon press authority of the respondent
Commissioner of Immigration, he secured employment in the Swedish SS Axel Salem
which was to sail from the Philippines in 1948, but so he state, the respondent
Commissioner of Immigration, for no valid and practical reason, withdrew the said
authority. A petition for habeas corpus was filed by the petitioner, but was denied,
hence this second petition for habeas corpus.
Issue: WON the petition for habeas corpus should be granted.
Held:
Like Chirskoff, Borovsky and Mejoff each later filed a second application for habeas
corpus docketed as GR 4352 and 4254. Both these applications have recently been
granted for the reason that since the denial of the first a period of over two years had
elapsed without the applicants having been deported and the prospects of removing
them were not in sight.
In the last mentioned cases we held that foreign nationals, not enemy, against whom
no criminal charges have been formally made or judicial order issued, may not
indefinitely be kept in detention; that in the "Universal Declaration of Human Rights"
approved by the General Assembly of the United Nations of which the Philippines is
a member, the right to life and liberty and all other fundamental rights as applied to
human beings were proclaimed; that the theory on which the court is given power to
act is that the warrant of deportation, not having been able to be executed, is functus
officio and the alien is being held without any authority of law (U. S. v. Nichols, 47
Fed. Supp. 201); that the possibility that the petitioners might join or aid disloyal
elements if turned out at large does not justify prolonged detention, the remedy in that
case being to impose conditions in the order of release and exact bail in reasonable
amount with sufficient sureties.
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It is ordered that the writ issue commanding the respondents to release the petitioner
from custody upon these terms: The petitioner shall be placed under the surveillance
of the immigration authorities or their agents in such form and manner as may be
deemed adequate to insure that he keep peace and be available when the
Government is ready to deport him.
Government of Hongkong Special Administrative Region v. Olalia, Jr., G.R. No.
153675, April 19, 2007
Held: The Supreme Court said that it cannot ignore the modern trend in public
international law which places primacy on the worth of the individual person and the
sanctity of human rights. While the Universal Declaration of Human Rights is not a
treaty, the principles contained therein are now recognized as customarily binding
upon the members of the international community.
The ruling in Puruganan was modified in Government of Hong Kong v. Hon. Olalia,
Jr., where the Supreme Court said that it cannot ignore the modern trend in public
international law which places primacy on the worth of the individual person and the
sanctity of human rights. While the Universal Declaration of Human Rights is not a
treaty, the principles contained therein are now recognized as customarily binding
upon the members of the international community.
Under the rule of specialty in international law, a requested state shall surrender to a
requesting state a person to be tried only for a criminal offense specified in their treaty
of extradition. Conformable with the dual criminality rule embodied in the extradition
treaty between Philippines and Hongkong Special Administrative Region, however,
the Philippines as the requested state is not bound to extradite the respondent to
the jurisdiction of the HKSAR as the requesting state for the offense of accepting
an advantage as an agent considering that the extradition treaty is forthright om
providing that surrender shall only be granted for an offense coming within the
description of the offenses in its Article 2 insofar as the offenses are punishable by
imprisonment or other form of detention for than 1 year or by a more severe
penalty according tot eh laws of both parties.
While the Philippines extradition law does not provide for the grant of bail to an
extradite, however, there is no provision prohibiting him or her from filing a motion for
bail, a right to due process under the constitution. The applicable standard of due
process should not be the same as that in criminal proceedings.
The purpose of extradition proceedings, the premise behind the issuance of the arrest
warrant and temporary detention is the possibility of flight of the potential extradite.
Extraditee is a fugitive from Justice. Extradition proceeding being a sui generis the
standard of evidence whether or not to grant bail is clear and convincing evidence.
Where he should prove that he is not a flight risk and will abide with all the orders and
processes of the extradition court.
Government of the United States of America v. Purganan, G.R. No. 148571,
September 24, 2022 (289 SCRA 623)
The Supreme Court said that upon receipt of a petition for extradition and its
supporting documents, the judge must study them and make, as soon as possible,
prima facie finding whether they are sufficient in form and substance, whether they
comply with the Extradition Treaty, and whether the person sought is extraditable. If
no prima facie finding is possible, the petition may be dismissed at the discretion of
the judge. On the other hand, if there is a prima facie finding, the judge must
immediately issue a warrant for the arrest of the extraditee, who is at the same time
summoned to answer the petition and to appear at the scheduled summary hearings.
Prior to the issuance of the warrant, the judge must not inform or notify the potential
extraditee of the pendency of the petition, lest the latter be given the opportunity to
escape and frustrate the proceedings. Thus, also, the grant by the judge of bail was
deemed null and void, as persons to be extradited are presumed to be flight risks.
Accordingly, in the Resolution on the Motion for Reconsideration [December 17,
2002], the Supreme Court denied with finality Mark Jimenez’ motion, saying that
extradition is sui generis, and does not fall within the ambit of the right to bail.
Mejoff v. Director of Prisons, 90 Phil. 70 (1951)
Facts: Boris Mejoff is an alien of Russia descent who was brought to the Philippines
from Shanghai as a secret operative by the Japanese forces during the latter’s regime
these islands. Upon liberation he was arrested as a Japanese spy by the US army
counterintelligence corps. On April 5, 1948, the board of Commissioners of
Immigration declared that Mejoff had entered the Philippines illegally in 1944 and
ordered that he be deported on the first available transportation to Russia.
The petitioner was then under custody, he having been arrested on March 18, 1948.
In May 1948 he was transferred to the Cebu Provincial Jail together with three other
Russians to await the arrival of some Russian vessels. In July and August of that year
two boats of Russian nationality called at the Cebu Port. But their masters refused to
take petitioner and his companions alleging lack of authority to do so. In October 1948
after repeated failures to ship this deportee abroad, the authorities removed him to
Comm Sarmiento – gillgc97 PIL
Bilibid Prison at Muntinlupa where he has been confined up to the present time,
inasmuch as the Commissioner of Immigration believes it is for the best interests of
the country to keep him under detention while arrangements for his departure are
being made.
Issue: WON the petitioner the writ of habeas corpus should be granted since he was
detained longer than a reasonable time.
Held:
The Court held the petitioner's detention temporary and said that "temporary detention
is a necessary step in the process of exclusion or expulsion of undesirable aliens and
that pending arrangements for his deportation, the Government has the right to hold
the undesirable alien under confinement for a reasonable lenght of time." It took note
of the fact, manifested by the Solicitor General's representative in the course of the of
the oral argumment, that "this Government desires to expel the alien, and does not
relish keeping him at the people's expense . . . making efforts to carry out the decree
of exclusion by the highest officer of the land." No period was fixed within which the
immigration authorities should carry out the contemplated deportation beyond the
statement that "The meaning of 'reasonable time' depends upon the circumstances,
specially the difficulties of obtaining a passport, the availability of transportation, the
diplomatic arrangements with the governments concerned and the efforts displayed
to send the deportee away;" but the Court warned that "under established precedents,
too long a detention may justify the issuance of a writ of habeas corpus."
The Court, in granting bail to a prospective deportee, held that under the
Constitution, the principles set forth in the Declaration are part of the law of the
land. If bail can be granted in deportation cases, considering that the Universal
Declaration of Human Rights applies to deportation cases, there is no reason
why it cannot be invoked in extradition cases. After all, both are administrative
proceedings where the innocence or guilt of the person detained is not in issue.
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally
accepted principles of international law as part of the law of Nation." And in a resolution
entitled "Universal Declaration of Human Rights" and approved by the General
Assembly of the United Nations of which the Philippines is a member, at its plenary
meeting on December 10, 1948, the right to life and liberty and all other fundamental
rights as applied to all human beings were proclaimed. It was there resolved that "All
human beings are born free and equal in degree and rights" (Art. 1); that "Everyone is
entitled to all the rights and freedom set forth in this Declaration, without distinction of
any kind, such as race, colour, sex, language, religion, political or other opinion,
nationality or social origin, property, birth, or other status" (Art. 2): that "Everyone has
the right to an effective remedy by the competent national tribunals for acts violating
the fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one
shall be subjected to arbitrary arrest, detention or exile" (Art. 9); etc.
MODULE 16: SETTLEMENT OF INTERNATIONAL DISPUTES
DISPUTES
16.1 Definition and Classification
• A dispute exists when one state claims that another state should behave in a
certain manner and that claim is rejected by the latter.
• An international dispute is an actual agreement between state regarding
the conduct to be taken by one of them for the protection or vindication of
the interests of the other.
• A dispute is legal if it involves justiciable rights based on law or facts
susceptible of adjudication by a judicial or arbitral tribunal.
16.2 Methods of Settling Disputes
o Disputes are required to be settled to one of the basic principles of the UN,
“by peaceful means in such manner that international peace and security, and
justice, are not endangered.”
16.3 Amicable and Non-Hostile Methods
Amicable methods of settling disputes
• Negotiation
o The first step taken in settlement of an international dispute, is the
discussion undertaken by the parties themselves of their respective
claims and counterclaims with a view to their just and orderly
adjustments.
o Where the talk prospers and agreement is reached, it is usually
formalized in a treaty or more directly, effected through the
rectification of the inquiry caused to the claimant state.
• Inquiry
o Is an investigation of the points in question, on the theory that their
elucidation will contribute to the solution of the differences between
the parties.
• Good offices
o is a method by which a third party attempts to bring the disputing
states together in order to enable them to discuss the issues in
connection and arrive at an agreement.
Comm Sarmiento – gillgc97 PIL
o This is usually employed when the parties no longer on speaking
terms, that is, when they have severed diplomatic relations or have
actually commenced hostilities.
• Mediation
o by means of which the third party does not merely provide the
opportunity for the antagonists to negotiate but also actively
participates in their discussions in order to reconcile their conflicting
claims and appease their feelings of resentment.
• Conciliation
o Also calls for the active participation of a third party in the attempt
of the disputants to settle their conflict, and the recommendations
made by it are likewise not binding.
o Unlike mediation, the services of the conciliator are not offered by
the third party but solicited by the parties in dispute.
• Arbitration
o Is the solution of a dispute by an impartial third party, usually a
tribunal created by the parties themselves under a charter known as
the compromis, which will provide for, among others, the
composition of the body and manner of selection of its members, its
rules and proceedings and sometimes even the law to be applied by
it, and the issues of fact or law to be resolved.
o Unlike conciliation, the proceedings are essentially judicial, and
award is by previous agreement, binding on the parties to the
dispute.
• Judicial settlement
o Arbitration is similar to Judicial settlement not only in the nature
of the proceedings and binding character of decision but also
in the fact that the disputes submitted for adjudication are legal
rather than political.
Judicial Arbitration
a pre-existing and permanent body An ad hoc body created and filled by the
parties to the dispute themselves.
Jurisdiction is usually compulsory Voluntary
The law applied is independent of the will But may be limited by them in arbitration
of the parties proceedings.
o Judicial settlement of international disputes is entrusted to the
International Court of Justice. The Jurisdiction of the court is not
compulsory but dependent on the agreement of the partied to
submit to and be bound by its decisions. Such consent may be
 manifested in a treaty containing what is called the
“compromissary clause”.
Article 36 of ICJ
1. The jurisdiction of the Court comprises all cases which the parties refer to it and all
matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force.
2. The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in relation to any
other state accepting the same obligation, the jurisdiction of the Court in all legal
disputes concerning:
a) the interpretation of a treaty.
b) any question of international law;
c) the existence of any fact which, if established, would constitute a breach of an
international obligation;
d) the nature or extent of the reparation to be made for the breach of an
international obligation.
o If any party to a case fails to perform the obligations incumbent upon it under
a judgment rendered by the court, the other party may have the recourse to
the Security Council which may, if it deems necessary, make the
recommendations or decide upon measures to give effect to the judgment.
• Action by regional organization
o Which may be resorted to by the parties on their own volition or taken by
the body itself at its own instance if allowed by agreement of the members.
o Several organizations exist in the various regions of the world but varying
degrees of effectiveness depending on their respective charters. Eg.
ASEAN, UN
Dogger Bank Case, Scott, Hague Court Reports, 403 (1916)
Russian vessel fired in a fog on the English fishing fleet off Dogger Bank during the
Russo-Japanese war and caused the death of two fishermen, injuries to others and
considerable destruction of property. Russia maintained that the firing was due to the
approach of the Japanese torpedo boats, and a commission of inquiry was created to
verify this claim. The finding was that there were no torpedo boats present at that time
of the incident and, as a result, Russia agreed to pay 65,000 pounds to Great Britain.
Hostile Methods
Comm Sarmiento – gillgc97 PIL
• If the methods of settling disputes are unsuccessful, states sometimes find it
expedient to resort to hostile or non-amicable methods.
• These methods are unfriendly, illegal and coercive acts and usually imposed
upon weak countries by strong powers.
• Mild alternative compared to war in the sense that they may avoid the
necessity of creating a more serious state of hostilities which might not be
justified by the nature of the dispute.
• Hostile methods of settling disputes may be classified into retorsions,
reprisals and intervention.
• Retorsion
o Is any action taken in “retaliation where the acts complained of do not
constitute a legal ground of offense but rather in the nature of unfriendly
acts but indirectly hurtful to other states.”
o The act of retaliation is also unfriendly but not illegal and may be in kind or of
a different nature than the act that provoked it.
o Examples of retorsions:
- Severance of diplomatic or consular relations
- Suspension of commercial intercourse
- Boycott
- Stoppage of travel to the other state
- Denunciation of treaties
- Imposition of higher tariffs and other trade barriers
- Currency restrictions
- Denial of loans and withdrawal of privileges previously enjoyed
- Recognition of a rival government
- Adverse propaganda
• Reprisals
o Are an act of self-help on the part of the injured state, responding after an
unsatisfied demand to act contrary to international law on the part of the
offending state.
o They have the effect of suspending momentarily in the relations of two
states the observance of this or that rule of international law.
o They are limited by the experience of humanity and the rules of good faith,
applicable in the relation of state with state.
o They would be illegal if a previous act contrary to international law had
furnished the reason for them.
o They aim to impose on the offending state reparation for the offense or the
return to legality in avoidance of new offenses.
o Examples of retorsions:
 - Display force, US Mediterranean Fleet proceeded to and deployed along
the coasts of Turkey pending compliance with the demand for the return
of an American national kidnapped by a Turkish Bandit;
- Italy seized the Greek island of Corfu for murder of certain Italian officers
in Greece
- Great Powers against Greece in 1886 to dissuade it from going to war
against Turkey.
Nautilaa Incident Arbitration Case, Portuguese-German Arbitral Tribunal, 1928
Facts:
• During the WWI, a party of German officials and officers crossed into the
neutral Portuguese colony of Angola to discuss the purchase of food supplies
from the Portuguese. Due to a misunderstanding caused by language
difficulties, an altercation arose during the discussion as a result of which
three of the Germans were killed and another one was interned by the
Portuguese.
• The Germans did not communicate with the Portuguese Government but in
alleged reprisal German Troops later attacked and destroyed certain and
posts in Angola.
Held:
• The death of the Germans at Naulilaa was not the consequence of acts
contrary to international law imputable to either Germans or Portuguese
authorities, either civil or military, but it was purely fortuitous, as a result
of misunderstanding and of certain impudence on the part of the
German officials.
United Nations
• The UN may be asked or may decide on its own authority to take hand in its
settlements. This task is addressed principally to the Security Council but
may be taken over by the General Assembly under certain conditions.
• Security Council shall have the Jurisdiction to intervene in:
o All disputes affecting international peace and security; and
o All disputes which, although coming under the “jurisdiction clause”
have been submitted to it by the parties for settlement.
• Such disputes may be brought to it by:
o The SC itself, on its own motion
o GA
o Secretary-General
o Any Member of the UN
o Any party to the dispute, provided that in the case of non-
members of the UN, they should accept in advance, for the
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purpose of the dispute, the obligations of pacific settlement
under the Charter.
• The charter of the UN provides that the SC shall, if it is deemed necessary,
call on the parties to settle the dispute by any peaceful means in their
own choice.
• If they are unable to adjust their differences by themselves through peaceful
methods suggested, the Security Council may recommend appropriate
measures or methods of adjustment, taking into consideration:
o Any amicable measures already adopted by the parties; and
o The legal disputes should as a rule be referred to the
International Court of Justice.
• If these measures also prove unavailing the Security Council may
recommend such actual terms of settlement as it may consider appropriate.
• This last step is in the nature of a compulsory settlement of the dispute
which the parties are under obligation to abide by in the interest of
international peace and security.
• If the terms of settlement are rejected by any parties, the Security Council is
empowered to take more drastic steps:
o Preventive Action
➢ It may adopt such measures not involving the use of armed
force, such as complete or partial interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio and
other means of communication, and severance of diplomatic
relations.
o Enforcement Action
➢ It may take such action by air, sea, or land forces as may be
necessary to maintain and restore international peace and
security.
➢ Such action may include demonstrations, blockades, and other
operations by air, sea or land forces of members of the United
Nations.
- To enable the UN to take urgent military measures, members
shall hold immediately available national air-force contingents
for combined international enforcement action.
The strength and degree of reaqdiness of these contingents
and plans for their combined action shall be determined, within
the limits laid down in the special agreement or agreements
referred to in Article 34 by the SC with the assistance of the
Military Staff Committee.
 ➢ Military staff committee consists of the chiefs of staff of the
permanent members of the Security Council or their
representatives.
➢ It supposed to advise and assist the Supreme Council on
all questions relating to its military requirements for the
maintenance of international peace and security, the
employment and command of forces placed at its disposal, the
regulation of armaments and possible disarmament.
➢ It shall also be responsible under the SC for the strategic
direction of any armed forces placed at the disposal of the
said Council.
• There is a possibility that failure of unity among the Big 5 will render the
SC impotent in the solution of international disputes.
• The veto cast by any permanent members will prevent agreement on
this matter.
• The General Assembly adopted the “Uniting for Peace Resolution in
1950” – which provides that “if the SC because if lack of unanimity
of the permanent members, fails to exercise its primary responsibility
for the maintenance of peace and security in any case where there
appears to be threat to the peace, breach of peace, or act of aggression,
The General Assembly shall consider the matter immediately with a
view to making recommendations to the members for collective
measures, including the case of breach of peace or act of aggression,
the use of armed forces when necessary, to maintain or restore
international peace and security.
• The General Assembly may meet in emergency special session
within 24 hours of the request therefor either by 9 members of the
SC or a majority of the members of the UN.
MODULE 17: WAR
• armed contention between the public forces of states or other belligerent
communities, implying the employment of violence among the parties as a
means of enforcing their respective demands upon each other.
• War may exist even without the use of Force.
o Absolute war – not regulated and not restricted
o Agnostic war – regulated to the norms and should comply with the
conventions
o Instrumental war – may or may not restricted according to norms
and expediency.
Outlawry of War
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• War was originally accepted as a legitimate means of a compulsion, that it
was a reaction to an international delict, i.e.. It was a just war or bellum
justum.
• Covenant of league of Nations, Kellogg Briand Pact of 1928, otherwise
known as the General Treaty for the Renunciation of War and the Charter
of UN.
➢ The first 2 agreements were not very effective because they
expressly provided for certain exceptions when war could be
lawfully waged.
• The Charter of UN is categorically committed to the outlawry of war.
• In only 2 instances is the use of force allowed:
o exercise of the inherent right of self-defense
o enforcement action
• Laws of War
o The Declaration of Paris of 1856, concerning at sea
o Hague Convention of 1899, concerning the use of expanding
bullets and asphyxiating gases
o Hague Convention of 1907, concerning the opening of hostilities,
laws and customs of warfare on land
o Geneva Convention of 1925, concerning the use of asphyxiating,
poisonous and other gases and of bacteriological methods of
warfare.
• How are these agreements enforced?
The commonly accepted sanctions are:
o A protest lodged by one belligerent, usually accompanied or followed by an
appeal to world opinion against the unlawful acts of warfare committed by
the other belligerent.
o Reparation for damages caused by the defeated belligerent.
o Punishment of war criminals
• Commencement of War
o War is supposed to commence on the date specified in the declaration or on
the date it is communicated to the enemy.
o formality is often not observed as evidenced by the number of wars that
have broken out without the “previous and explicit warning” required.
o commence from the moment of the first act of force committed by one state
with the intent of making war or committed without such intent but
considered by the other state as constituting war.
17.3 Effects of Outbreak of War
• The laws of peace cease to regulate the relations of the belligerent and are
superseded by the laws of war.
 • Diplomatic and consular relations between the belligerents are terminated
and their respective representatives are allowed to return to their own
countries.
• Treaties of a political nature are automatically cancelled, but those which are
precisely intended to operate during war are activated
• individuals are impressed with enemy character
o nationality test – if they are nationals of the other belligerent
wherever they may be.
o domiciliary test – if they are domiciled aliens in the territory of the
other belligerent, on the assumption that they contribute to its
economic resources.
o activities test – if being foreigners they are nevertheless
participate in the hostilities in favour of the other belligerent.
➢ Corporations and other juridical persons are regarded as
enemies if a majority or a substantial portion of their capital
stock is in the hands of enemy national or if they have
incorporated in the territory or under the laws of the other
belligerent.
• enemy public property found in the territory of the other belligerent at the
outbreak of hostilities is subject to confiscation.
17.4 Combatants and non-combatants:
• Combatants are those who engage directly in the hostilities; may lawfully
wage war and are thus subject to direct attack from the enemy.
• Non-combatants are those who do not engage directly in the hostilities;
should not be subjected to attack as they are not supposed to participate in
the actual fighting
• The following are regarded as combatants:
o Members of the armed forces except those not actively engaged in
combat.
o Irregular forces
a. they are commanded by a person responsible for his subordinates
b. they wear a fixed and distinctive sign recognizable at a distance
c. they carry arms openly
d. they conduct their operations in accordance with laws and customs
of war
e. levee en masse – the inhabitants of unoccupied territory who, on
the approach of the enemy, spontaneously take arms to resist the
invading troops without having had time to organize themselves
o Officers and crew of merchant vessels who forcibly resist attack
➢ When captured combatants are entitled to treatment as
prisoners of war which includes the rights to be accorded the
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proper respect commensurate with their rank, to adequate food
and clothing, to safe and sanitary quarters, to medical
assistance, to refuse to give military information or render
military service against their own state, and to communicate
with their families.
➢ Non-combatants do not enjoy identical rights when captured
but are still protected from inhumane treatment under the
Geneva Convention of 1949 relative to the treatment of civilian
persons in time of war.
17.5 Conduct of the Hostilities
a. Basic Principles Underlying the Laws of War
• Principle of military necessity
o employ any amount and kind of force to compel the complete
submission of the enemy with the least possible loss of lives, time and
money.
• Principle of humanity
o prohibits the use of any measure that is not absolutely necessary for
the purposes of the war, such as the poisoning of wells and weapons,
the employment of dumdum or expanding bullets and asphyxiating
gases and etc.
➢ The rule that combatant who surrenders may not be killed
and the agreements relating to the treatment of prisoners of
war also fall under this principle.
• Principle of chivalry
o those that require the belligerents to give proper warning before
launching a bombardment or prohibit the use of perfidy in the conduct
of the hostilities.
o An individual can only be considered a spy if, acting clandestinely or
under false pre-tenses, he obtains or seeks to obtain information in the
zone of operations if a belligerent.
o Spies are subject to the municipal law of the other belligerent
o A spy taken in the act cannot be punished without previous trial
17.6 Kinds of Warfare
• Warfare may be waged on LAND or SEA or in the AIR, separately or
simultaneously
• Most of the rules on aerial warfare have become obsolete and need to be
revised to make them conform to present realities
• Naval warfare, the most serious difficulties lie in the disagreement among
states as to whether armed merchant vessels are subject to direct attack
 • one important rule is that booty or personal property found in the battlefield is
subject to confiscation by the belligerent occupation except only the personal
belongings of the individual combatants which have no military value.
a. Theatre of War v. Region of War
• Theatre of war – is the place where the hostilities are actually conducted.
• Region of War – is the greater area where the belligerents may lawful engage
each other. This would comprise their own territories and the open sea,
excluding only neural territories.
17.7 Belligerent Occupation
• territory is deemed occupied when it is actually placed under the authority of
the hostile army, but this occupation is limited only to the area where such
authority has been established and can be effectively exercised. It is not
necessary that every square foot of the territory in question be actually
occupied, the army can within a reasonable time, send detachment of troops
to make its authority felt within the occupied district.
• Belligerent occupation does not result in transfer or suspension of the
sovereignty of the legitimate government although it may at the moment be
unable to exercise it.
• The belligerent occupant cannot perform such acts as declaring the
independence of the occupied territory or requiring its inhabitants to
renounce their allegiance to the lawful government.
• the belligerent is required to restore and ensure public order and safety while
respecting, unless absolutely prevented, the laws in force in the country.
• the belligerent occupant may promulgate new laws, non-political as well as
political, provided they do not contravene the general accepted principles of
international law. The political laws are automatically abrogated upon the end
of the occupation, but the non-political laws may continue even beyond the
occupation unless they are expressly repealed or modified by the legitimate
government.
• It is permitted for the belligerent occupant to introduce military currency,
provided the purpose is not to debase the country’s economy
• Private property cannot be confiscated, but those susceptible of military use
may be seized, subject to restoration or compensation when peace is made
• The property of municipalities and of institutions dedicated to religion, charity
and education, and the arts and sciences, even when state owned, shall be
treated as private property and their destruction is expressly forbidden
• The army of occupation can only take possession of cash, funds and
realizable securities which are strictly the property of the state, depots of
arms, means of transport, stores and supplies, and generally movable
property belonging to the state which may be used for military operations
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• The occupying state shall be regarded only as administrator and
usufructuary of public buildings, real estate, forest, agricultural estates
belonging to the hostile state and situated in the occupied territory
17.8 Right of Postliminium
• Is that which persons or things taken by the enemy are restored to the former
state on coming actually into the power of the nation to which they belong.
• JUS POSTLIMINIUM – reinstatement of the authority of the displaced
government once control of the enemy is lost over the territory affected.
• Thus, upon the end of a belligerent occupation, the laws of the re-established
government are revived, and all acts taken by the belligerent occupant which
it could not legally do under the law of nations, as well as lawful acts of a
political complexion, are invalidated.
17.9 Non-Hostile Intercourse
• FLAG OF TRUCE
o white flag carried by an individual authorized by one belligerent to
enter into communication with the other.
o The bearer or parlementaire, is entitled to inviolability as long as he
does not take advantage of his privileged position to commit an act
of treachery.
o However, the other belligerent is not obliged to receive a flag of
truce.
• CARTELS
o agreements to regulate intercourse during war on matters as postal
and telegraphic communication, the reception of flags of truce, and
the exchange of prisoners.
• PASSPORT
o written permission given by the belligerent government or its
authorized agent subjects of the enemy state to travel generally in
belligerent territory.
• SAFE-CONDUCT
o pass given to an enemy subject or to an enemy vessel allowing
passage between defined points
• SAFEGUARD
o protection granted by a commanding officer either to enemy persons
or property within his command.
o When it is enforced by a detail of men, they must extreme measures,
if necessary to fulfil their trust, and themselves exempt from attack
or capture by the enemy.
• LICENSE OF TRADE
 o permission given by the competent authority to individuals to carry
on trade even though there is a state of war. • Principle of Uti Possidetis
o A general license grants to all subjects of the enemy state or to all its o property or territory in the possession of the respective belligerents
own subjects the right to trade in specified places or in specified upon the termination of the war is retained by them.
article. • Status Quo Ante
o A special license grants to a certain person the right to trade in the o calls for the complete restoration to their former owners of property
manner specified in his license. or territory that may have changed hands during the hostilities, with
17.10 Suspension of Hostilities the exception only of prize and booty.
• SUSPENSION OF ARMS • At times, the belligerents may be unable to effect a decisive victory against
o temporary cessation of the hostilities by arrangement of the local each other and may decide finally to settle their disagreement in what is known
commanders for such purposes as the gathering of the wounded and as negotiated treaty of peace.
the burial of the dead. • The war may be terminated by the defeat of one of the belligerents, which
• ARMISTICE surrenders either conditionally or unconditionally.
o suspension of all hostilities within a certain area or in the entire region o Conditionally – a treaty of peace is concluded embodying the
of war agreed upon by the belligerent governments usually for the condiyions specified in the surrender.
purpose of arranging the terms of the peace. o Unconditionally – the victorious belligerent usually issues a
unilateral declaration announcing the end of the war, to be followed
ARMISTICE SUSPENSION OF ARMS with a peace treaty dictated by it and specifying the rules on the
settlement of the obligations of the vanquished state and the
Purpose: political Purpose: military disposition of its territories.
May be concluded by the commanders- May be agreed upon by • War is supposed to end with the re-establishment of peace, but the precise
in- chief the local commanders date is not easily fixed in view of the different methods of terminating the state
Usually in writing May be oral of hostilities.

• CEASEFIRE 17.12 Aftermath of War

o unconditional stoppage of hostilities by order of an international body
like the UN SC for the purpose of employing peaceful means of
settling the differences between the belligerents.
• TRUCE
o regarded as ceasefire with conditions attached.
• CAPITULATION
o surrender of military forces, places or districts in accordance with the
rules of military honour
17.11 Termination of War
• War may be terminated
- by simple cessation of hostiles by the conclusion of a negotiated treaty of
peace or by the defeat of one of the belligerents followed by a dictated treaty
of peace or annexation of the conquered country.
• Eg. Terminated by simple cessations of hostilities are those between Sweden
and Poland in 1716, France and Spain in 1720, Spain and its American
colonies in 1825, and France and Mexico in 1862-67.
• One of the inevitable consequences of war is the implied judgment, right or
wrong, that the vanquished belligerent is the guilty party in the dispute that
caused the hostilities.
• treaty of peace imposed by the victor upon the defeated state is regarded as
a punishment as is sustained on the ground although marked by the vice of
duress that normally would invalidate other agreements.
• Nationals of the vanquished state may be protected and punished as war
criminals and for other violations of international law. They may not escape
responsibility on the ground that they were merely acting on orders of their
state.
• Principles of the Nuremberg Charter and judgment
I. Any person who commits an act which constitutes a crime under
international law is responsible therefor and liable to punishment.
II. The fact that internal law does not impose a penalty for an act which
constitutes a crime under international law does not relieve the person
who committed the act from responsibility under international law.

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 III. The fact that a person who committed an act which constitutes a crime
under international law acted as Head of State or responsible
Government official does not relieve him from responsibility under
international law.
IV. The fact that a person acted pursuant to order of his Government or of a
superior does not relieve him from responsibility under international law,
provided a moral choice was in fact possible to him.
V. Any person charged with a crime under international law has the right to
a fair trial on the facts and law.
VI. The crimes hereinafter set out are punishable as crimes under
international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in
violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the
acts mentioned under (i).
(b) War crimes:
Violations of the laws or customs of war include, but are not limited to, murder, ill-
treatment or deportation to slave-labour or for any other purpose of civilian population
of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on
the seas, killing of hostages, plunder of public or private property, wanton destruction
of cities, towns, or villages, or devastation not justified by military necessity.
(c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done
against any civilian population, or persecutions on political, racial or religious grounds,
when such acts are done, or such persecutions are carried on in execution of or in
connexion with any crime against peace or any war crime.
VII. Complicity in the commission of a crime against peace, a war crime, or a
crime against humanity as set forth in Principle VI is a crime under
international law.
b. Crimes punishable under International Law
o The Rome Statute established the ICJ which shall have the power to
exercise its jurisdiction over persons for the most serious crimes of
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international concern and shall be complementary to the national criminal
jurisdiction.
o Its jurisdiction covers crimes of genocide, crimes against humanity, war
crimes and crime of aggression.
o The Rome Statue, the Court shall be brought into the relationship with the
UN through an agreement to be approved by the Assembly of States Parties
to this statute and thereafter concluded by the President of the Court on its
behalf.
• Genocide
o Consists of any of the following acts, committed with the intent to destroy, in
whole or in part, a national, ethnical, racial or religious group such as:
- Killing members of the group.
- Causing serious bodily or mental harm of the members of the group.
- Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part.
- Imposing measures intended to prevent births within the group.
- Forcibly transferring children of the group to another group
• Crime against humanity as any of the following acts when committed as part
of a wide-spread or systematic attack directed against any civilian population,
with knowledge of the attack:
o Murder
o Extermination
o Enslavement
o Deportation or forcible transfer of population
o Imprisonment or other sever deprivation of physical liberty in violation of
fundamental rules of international law
o Torture
o Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
o Persecution against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, gender as defined in paragraph 3, or other
grounds that are universally recognized as impermissible under international
law, in connection with any act referred to in this paragraph or any crime
within the jurisdiction of the Court.
o Enforced disappearance of persons;
o The crime of apartheid;
• Crime of aggression means the planning, preparation, initiation or execution,
by a person in a position effectively to exercise control over or to direct the
political or military action of a state, of an act of aggression which, by its
character, gravity, and scale, constitutes a manifest violation of the Charter of
the UN.

• The Court has jurisdiction only with respect to crimes committed after the entry
into force of this Statute. If a state becomes a party to this statute after the
entry into force of this state for that state, unless that state has made a
declaration under Article 12, paragraph 3:
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of
the Court with respect to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its
jurisdiction if one or more of the following States are Parties to this Statute or
have accepted the jurisdiction of the Court in accordance with paragraph 3:
a. The State on the territory of which the conduct in question occurred or, if the
crime was committed on board a vessel or aircraft, the State of registration
of that vessel or aircraft.
b. The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required under
paragraph 2, that State may, by declaration lodged with the Registrar, accept the
exercise of jurisdiction by the Court with respect to the crime in question. The
accepting State shall cooperate with the Court without any delay or exception in
accordance with Part 9.
People v. Alvero, 86 Phil. 58
Facts:
Aurelio Sevilla Alvero alias Reli was charged with treason on twenty-two (22) counts
(Annex A) before the People's Court, After trial, said Court in a 45-page decision
penned by Judge Jose S. Bautista, Associate Judge of said Court, concurred in by
Associate Judges Dizon and Tancinco, found the defendant guilty on all counts except
the 10th relative to his interview v/ith Leonardo Garcia, and the 18th which refers to
his alleged ordering, helping in and causing the burning of the buildings west of Taft
Avenue and south of Libertad street in Pasay, and sentenced him to reclusion
perpetua with the accessories of the law, to pay a fine of P10,000 plus costs, crediting
him with one-half of the preventive imprisonment; he has already suffered.
Appealing from that decision of conviction, Alvero in a 112-page brief, assails the
decision, assigning forty-two (42) errors said to have been committed by the trial court,
asking that the judgment of conviction be totally reversed and that he be acquitted.
The People's Court grouped the 22 counts under three main classifications: economic,
political, and military collaboration. Under economic collaboration come counts 2 and
3 referring to appellant's business or trading activities, buying war materials and
selling them to the enemy, under his company called ASA TRADING which trade-
name stands for his name Aurelio Sevilla Alvero. In political, collaboration are included
three groups, namely: the letter of congratulations to President Laurel relative to his
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declaration of war against the United States and Great Britain (count 4); defendants
membership in the KALIBAPI (count 1); and the formation and organization of the
New Leaders' Association (counts 6, 7, 8, 9, 12, 19, 21, and 22). Under military
collaboration, come five groups, which are: defendant's relations with and
membership in the MAKAPILI (counts 5 and 20); his organization of the "Bisig Bakal
Ñg Tagala" (counts 13, 14, 15, 16, and 17); the meeting at the Ayuntamiento de
Manila ([City Hall], count 17); organization of OUR PEOPLE'S OWN GUERRILLA
([O.P. O. G.], count 11); and the burning of buildings in Pasay (count 18), The last
seven pages of the decision of the trial court ate devoted to discussion and findings
on the appellant's adherence to the enemy.
Appellant also urges that the People's Court erred in holding that the Bisig Bakal Ñg
Tagala was organized for treasonous activities or that it engaged in such treasonous
activities. The very objectives of the Bisig Bakal Ñg Tagala, its organization into a
military unit with arms, uniforms, and military discipline, its activities in taking over and
guarding the barracks and installations and equipment left by the Japanese Army in
the City of Manila and the offer made by the appellant of this Bisigbakal organization
to help in the maintenance of peace and order which at that time included the
suppression of the activities of the guerrillas which was then regarded as subversive
by the Japanese, abundantly show that this organization which the appellant helped
to found and to organize, was of a military character intended to and actually used to
help the Japanese Armed Forces in their work of maintaining peace and order,
suppressing the resistance movement and defending the City of Manila against the
American Liberation Forces and their guerrilla colleagues.
Issue: WON the appellant’s treasonous sympathies and intention be translated into
overt acts of treason?
Held:
YES. It is to be borne in mind however, that according to international law (Hague
Conventions of 1907, Art. 43), the duty to maintain peace and order is imposed upon
the military occupant and not upon the inhabitants of the occupied territory. In the
present case, the appellant through his Bisig Bakal Ñg Tagala not only offered to
assist but actually assisted in the maintenance of peace and order through his military
organization. In so doing, his purpose according to himself was to relieve the
Japanese Armed Forces of the necessity of detailing and assigning a portion of their
forces for the maintenance of peace and order, so that they could concentrate on
defending the City of Manila against those trying to enter it, who we all know were
none other than the American Forces and their guerrilla colleagues. Furthermore, as
already stated, the maintenance of peace and order at that time meant the
suppression of the guerrillas who were regarded as subversive elements because
they were killing Japanese soldiers and spies.
Adherence alone is not indictable. In a free and democratic country like the
Philippines, there is freedom of thought and free and unhampered discussion and
expression of sentiment. But when he translated such as joining the Makapili,
establishing his military organization Bisig Bakal Ng Tagala and offering its services
to take charge of the maintenance of peace and order, which included the suppression
of the guerrillas, so that the Japanese could concentrate their forces in defending the
City of Manila by fighting against the American and guerrilla forces trying to enter and
liberate it, then he (appellant) breached as it were the walls of allegiance and loyalty
which the treason law has erected to surround and protect the security and integrity
of the nation, and he may then be held criminally liable.
Laurel v. Misa, 77 Phil. 856
Facts: Anastacio Laurel, petitioner herein filed for a petition for habeas corpus based
on a theory that a Filipino citizen who adhered to an enemy by giving them aid and
comfort during the Japanese occupation cannot be prosecuted for the crime of
treason for the reason that the sovereignty of the legitimate government in the
Philippines was suspended, and that there was a change of sovereignty over the
Philippine islands upon the proclamation of the Philippine Republic.
Issue: Was the sovereignty of the legitimate government in the Philippines suspended
during the Japanese occupation?
Held:
NO. The Court ruled that the sovereignty of the government or sovereign de jure is
not transferred to the occupier and must therefore necessarily remain vested in the
legitimate government. The sovereignty vested in the titular government, which is the
supreme power which governs a body politic or society which constitute the state,
must be distinguished from the exercise of the rights inherent thereto, and may be
destroyed, severed and transferred to another, but cannot be suspended because the
existence of sovereignty cannot be suspended without putting it out of existence or
divesting the possessor thereof. What may be suspended in this case is the exercise
of the rights of sovereignty, as the control and government of the territory is
temporarily passed on to the military occupant. As a corollary of the conclusion that
the sovereignty itself is not suspended and subsists during the enemy occupation, the
allegiance of the inhabitants to their legitimate government or sovereign subsists.
Therefore, there is no such thing as suspended allegiance. It is worth noting that while
the offenses against public order to be preserved by the legitimate government were
inapplicable as offenses against the invader, unless adopted by him, and also
considered as inoperative as against the ousted government for the latter was not
responsible for the preservation of the public order in the occupied territory, Article
114 of the Revised Penal Code will still be applicable in terms of treason committed
against the national security of the legitimate government. It is because the inhabitants
of the occupied territory are still bound by their allegiance to the legitimate government
during the enemy occupation. It is therefore held that absolute and permanent
allegiance of the inhabitants of a territory occupied by the enemy of their legitimate
government or sovereign is not abrogated or severed by the enemy occupation.
Hence the act of an inhabitant of an occupied territory giving aid and comfort to the
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military occupant, regardless of if it was through force, threat or intimidation, is an act
of treason punishable under Article 114 of the RPC.
Yamashita v. Styer, 75 Phil. 563
Facts: Tomoyuki Yamashita, the commanding general of the 14th army group of the
Japanese Imperial Army in the Philippines, and now charged before an American
Military Commission with the most monstrous crimes ever committed against the
American and Filipino peoples, comes to this Court with a petition for habeas corpus
and prohibition against Lt. Gen. Wilhelm D. Styer, Commanding General of the United
States Army Forces, Western Pacific. It is alleged therein that petitioner after his
surrender became a prisoner of war of the United States of America but was later
removed from such status and placed in confinement as an accused war criminal
charged before an American Military Commission constituted by respondent Lieutenant
General Styer. He now asks that he be reinstated to his former status as prisoner of
war.
Issue: WON a petition for habeas corpus reinstate Yamashita to his former status as
prisoner of war.
Held:
• NO. The court believes and so holds that the petition for habeas corpus is
untenable. It seeks no discharge of petitioner from confinement but merely his
restoration to his former status as a prisoner of war, to be interned, not
confined. The relative difference as to the degree of confinement in such
cases is a matter of military measure, disciplinary in character, beyond the
jurisdiction of civil courts. Neither may the petition for prohibition prosper
against Lt. Gen. Wilhelm D. Styer. The military Commission is not made party
respondent in this case, and although it may be acting, as alleged, without
jurisdiction, no order may be issued in these case proceedings requiring it to
refrain from trying the petitioner.
People v. Agoncillo, 80 Phil. 33
Facts: In the afternoon of September 20, 1944, while the appellant was taking a bath
in the house of his neighbor Rufina Cepeda, Olimpio Do, examined appellant's clothes
and found therein appellant's identification card written in Japanese and Chinese
characters tending to show that the appellant was a Japanese undercover; and (b) In
January, 1945, after a trip to Bohol, Rufina Cepeda told the appellant that there were
guerrillas in Bohol and that Japanese notes were no longer accepted in said place.
In the evening of the next day, Rufina Cepeda was arrested and asked about things
she saw in Bohol. Rufina was detained for three days. After her release, the appellant
came to her house and got some chickens for the consumption of the Japanese who
arrested her. A Japanese also used to sleep once in a while in the appellant's house.
Upon the other hand, appellant's alleged overt acts of giving aid and comfort to the
enemy are summarized in the brief for the Government as follows: In the middle of April
1944, the appellant sold about 300 kilos of alum crystals, at three pesos a kilo, to the
Keribo, a construction company operated by the Japanese Army.
Two or three weeks thereafter, he sold to the same entity some 100 pieces of water
pipes, the price of which was not known then the appellant was seen on Jones Avenue
helping push a handcart full of truck and auto tires, batteries and spare parts into the
intermediate or high school premises then used by the Japanese Army as a motor pool.
Issue: WON appellant, Agoncillo is guilty of treason.
Held: No, The Court held that the overt acts imputed to the appellant have not been
duly proven. With respect to the sale of 300 kilos of alum crystals, the testimony of the
prosecution witness Lorenzo Barria to the effect that the price was P3 a kilo, is not
corroborated by any other witness. With respect to the alleged sale of 100 pieces of
water pipes, counsel for the appellee admits that the price thereof was not known. An
essential part of the overt act charged in the information was therefore lacking.
The only detail that may at most be considered established by the prosecution refers
to the fact that the appellant helped in pushing a handcart loaded with such articles,
and the evidence is even uncertain in one respect, namely that the cart was brought
either to the intermediate school premises or the high school building.
However even if the appellant had really sold alum crystals and water pipes, the same
did not constitute treason. These items were not exclusively for war purposes, their sale
did not necessarily carry an intention to adhere to the enemy. The theory of the
prosecution is that the sale was treasonable in view of the other proven acts showing
the appellant's adherence to the enemy. It appears that the alleged acts of adherence
performed by the appellant took place after the overt act in question. It is not unlikely
that at the time the appellant made the sale, his motive was purely personal gain,
uninfluenced by any benefit inuring to the enemy. Where two probabilities arise from
the evidence, the one compatible with the presumption of innocence will be adopted.
(People vs. Agpangan, G. R. No. L-778, October 10, 1947.) Appellant is acquitted.
Gibbs v. Rodriguez, 84 Phil. 230
Facts: In 1941, Allison J. Gibbs, acting for himself and as attorney-in-fact for Allison D.
Gibbs and Finley J. Gibbs, sold two parcels of land to Raymund Raymundo F. Navarro
and R. F, Navarro & Co. for $125,000. Navarro paid $12,500 in cash and mortgaged
the same property to Allison D. Gibbs and Finley J. property to Allison D. Gibbs and
Finley J. Gibbs to Gibbs to secure the payment of the balance. The first installment was
paid but none of the other installments were paid. Navarro sold the property to Eugelio
Navarro sold the property to Eugelio Rodriguez Sr. for P40,000 who also assumed or
P40,000 who also assumed the mortgage. E. Rodriguez then assigned his rights to E.
Rodriguez then assigned his rights to the property to Luzon Surety Co. for P42,556.21
with the agreement that E.Rodriguez would remain jointly and remain jointly and
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severally and severally liable with Luzon Surety to be liable with Luzon Surety to the
Gibbs.
The plaintiffs allege that during the Japanese occupation in 1943, Rodriguez and Luzon
Surety unlawfully secured a cancellation of the mortgage. While the defendants allege
that the Department of Enemy Property established by the Japanese Military
Administration in the City of Manila required the defendants to pay to said department
the debt due from them to use from them to the plaintiffs, who were considered as
enemy nationals. Plaintiffs argued that the Department of Enemy Property had no
authority to demand and had no authority to demand and accept payment. Meanwhile
the defense produced evidence which showed that Gibbs agreed to consider the
payment to the Japanese as war credit. This was shown through the affidavit of Luzon’s
lawyer Arturo Tolentino, who visited Gibbs when the Japanese ordered the payment.
Gibss stated that he understood the situation of Luzon and would consider the payment
as war damage. The defendants had to take out a loan of P120,000 to pay the
Japanese. The CFI declared that the payment to the Japanese was invalid.
Issue: WON the payment was valid.
Held: YES. The Court ruled that the payment to the Japanese as war damage was
valid. If the Japanese military occupant had power to sequestrate, as in this case it has
sequestrated, the credit of an American creditor, it had subrogated itself into the rights,
or stepped in the shoes, of the said creditor and, therefore, had the right to demand
and accept, through the Japanese Enemy Property Custodian, the payment of all the
debtor’s debt to said creditor in Japanese military notes without of course compelling
the debtor to pay interests not yet then due, and completely released thereby said
obligation, without prejudice to the creditor’s right to demand, through their government
from the Japanese after the war, the reimbursement of the full value of their
sequestered credit.
The present case is similar to the case of HSBC v Samanillo. In both cases, the
question is whether or not the payment to the Japanese was a confiscation of the credit
of the creditor. The Court also applied the ruling in Haw Pia v China Banking Corp. in
the present case because they relied on the ruling in the Samanillo Case. In Haw Pia,
the SC held that the collection by the Bank of Taiwan of the China Banking
Corporation's credit from the latter's debtor by order of the order of the Japanese
Military Administration was not a confiscation but a sequestration of the enemy private
personal property, and therefore the payment by the plaintiff Haw Pia to the Bank of
Taiwan was valid and released plaintiff's obligation to the defendant bank. Therefore,
they also have to reverse the decision of the lower court in the present case. The SC
also stated that the plaintiff's contention that the debt of the defendants in the present
case was payable in dollars or its equivalent in Philippine peso at the option of the
plaintiffs is immaterial, because both the Philippine pesos and American dollars at the
rate of one dollar for two one dollar for two pesos were then legal tender in the
Philippines.
MODULE 18: NEUTRALITY, belligerent may find necessary to impose, especially in connection with
international commerce.
• A state is said to be neutral if it does not take part, directly or indirectly, in a • Belligerents are bound to respect the status of the neutral state, avoiding any
war between other states. act that will directly or indirectly involve it in their conflict and to submit to any
• Such concepts as imperfect neutrality and qualified neutrality, which were lawful measures it may take to maintain or protect its neutrality.
accepted before, have now become obsolete. The general policy at present is • These rights and duties apply only between the belligerent and neutral state
to recognize only perfect or absolute neutrality, which imports that the third and, as will appear later, do not extend to the acts and omission of the
state does not take sides in any way whatsoever when other states are at war. nationals of the neural states.
b. Use of Neutral Territories, Facilities and Services
18.1 Distinguish Neutrality and Neutralization
Neutral Territories
Neutrality Neutralization
o Neutral territory is inviolable and cannot be used by the belligerents for the
• Dependent solely on the • is the result of a treaty wherein
movement of troops, the transport of war supplies, the erection of wireless
attitude of the neutral state, the duration and the other
stations for exclusively military purposes, the recruiting of soldiers, and the
which is free to join any of the conditions of the neutralization
undertaking of military operations in general.
belligerents any time it sees fit, are agreed upon by the
o use of neutral territory is not completely barred to the belligerents (example:
neutralized state and other
passage of sick and wounded troops)
power.
o neutral state may give refuge to troops from the belligerent forces
• Is governed by the general law • This agreement governs the o Escaped prisoners of war need not be detained by the neutral state but must
of nations be assigned a place of residence if they are allowed to remain.
conduct of the signatories
o The neutrality of a state is not affected by the mere passage through its
• Obtains only during war • Is intended to operate in time of territorial waters of warship or prizes belonging to belligerents. However,
peace as well as in time of war warships may not enter neutral ports, roadsteads and harbours except only
in cases of unseaworthiness. The usual duration of the sojourn is 24 hours,
• Only states may become neutral but portions of states like islands, rivers but this may be shortened or extended, depending on the reason for the
and canals, may be neutralized. entry. Thus, the vessel must leave as soon as it has been re-provisioned
o Where vessels from both belligerents are in neutral waters at the same
time, a period of 24 hours must elapse between the departure of the
first vessels and the departure of the second, the order being
18.2 Rules of Neutrality
determined by their time of arrival.
• Neutrality rules are found in the customary law of nations and in such o Not more than three vessels from any belligerent shall be allowed
conventions as Declaration of Paris of 1856, Hague Conventions of 1907 and simultaneously in the same neutral port or waters.
unratified Declaration of London of 1909. o Territorial waters of a neutral state must never be used as asylum for
belligerent vessels under pursuit or attack by the enemy.
These rules define: o Any man-of-war entering a neutral port should be asked to leave and if it
refuses, should be rendered incapable of putting out to sea for duration of
o The relations of the belligerent states with the neutral state; and war, its officers and crew being interned by the neutral state.
o The relations of the belligerent states with the nationals of the neutral
state. Prize

a. Relations of belligerent States and Neutral States
• a neutral state has the right and duty to abstain from taking part in the
hostilities and from giving assistance to either belligerent; prevent its territory
and other resources from being used in the conduct of hostilities by the
belligerents, and to acquiesce in certain restrictions and limitations that the
• If a prize is capture in neutral waters or brought thereto without justification,
it is the duty of the neutral state to release it and to intern the prize crew of
the captor ship.
• Passage of military aircraft belonging to the belligerents is not allowed across
the airspace of a neutral state.

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 • Where the belligerent aircraft is forced to land on neutral territory, the same
should be detained and its officers and crew interned.
Neutral Facilities and Services
• The neutral state may not send military contingents, extend loans, or even sell
for valuable consideration, supplies of war to either or both of the belligerents.
• it is prohibited from giving belligerents any form of direct assistance in
connection with the conduct of hostilities.
• neutral state is not obliged to prevent the export from or transit through its
territory of war supplies purchased from private traders by the belligerents in
the ordinary course of commerce, it is required to take reasonable diligence
in preventing the delivery of vessels constructed and armed in its territory for
use by any of the belligerents
c. Visit and Search, Rules Laid Down by the Declaration of Paris of 1856
regarding treatment of sea-borne goods in time of War
• belligerent warships and aircraft have the right to visit and search neutral
merchant vessels on the high seas for the purpose of determining whether
they are in any way connected with the hostilities.
• the vessels may be captured as prize if they are engaged in hostile activities,
if they resist to visit and search, or if there is reasonable suspicion that they
are liable to confiscation.
• the cargo of these vessels may also be captured under certain conditions, as
when they are contraband.
• Prize is not confiscated summarily but must be brought to a prize court for
adjudication.
• PRIZE COURT – is a tribunal established by a belligerent under its own laws
and applies rules of international law in the absence of special municipal
legislation.
• In the Declaration of Paris of 1856, the following rules on the treatment of sea-
borne goods in time of war were agreed upon:
o Enemy of goods under a neutral flag are not subject to capture,
except contraband of war.
o Neutral goods under an enemy flag are not subject to capture, except
contraband of war.
f. Definition and Classifications of Contraband
• Contraband is the term applied to goods which although neutral property, may
be seized by a belligerent because they are useful for war and are bound for
a hostile destination.
• Absolute contraband is necessarily useuful for war under all circumstances,
like riffles and ammunitions. It is also subject ti seizure so long as they are
bound for enemy or enemy-held territory
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• Conditional contraband like food and cloth have both civilian and military
purposes. It may be seized only when it can be shown that they are destined
for the armed forces or authorities of the belligerent government.
• Free list includes goods useful for war and bound for the belligerents but
exempted from the law on contraband for humanitarian reasons.
g. Doctrine of Ultimate Consumption
• goods intended for civilian use which may ultimately find their way to and be
consumed by the belligerent forces are also liable to seizure on the way.
• Contraband are subject to condemnation
h. Doctrine of Infection
• if they are shipped together with innocent goods belonging to the same
owner; the latter may also be confiscated
• contraband is liable to capture from the time they leave the port in which they
are loaded and until they reach their final hostile destination
i. Doctrine of Ultimate Destination
• ability of the contraband to capture is determined not by their
ostensible but by their real destination
• even if the vessel intends to stop at an intermediate neutral port, it will
still be considered as in one continuous voyage provided it can be
shown that its cargo will ultimately be delivered to a hostile destination
Springbok Case, 5 Wall17 (1867)
Facts:
• The British owned bark Springbok sailed from London, December 8. 1862.
and was captured by a United States vessel of war on February 3d, 1863,
about one hundred and fifty miles east of the British port of Nassau on the
Island of New Providence. This port was near the southern coast of the United
States, and it was a matter of common knowledge that it had been largely
used as one for the call and trans-shipment of cargoes intended for the ports
of the insurrectionary States of the Union, then under blockade by the federal
government.
• The vessel was brought into the port of New York, and after a hearing in the
United States district court, both vessel and cargo were condemned. On
appeal to the supreme court of the United States, the vessel was released,
but the decree of the lower court as to the cargo was affirmed. The ship's
papers were on their face regular, and it was said by Chief Justice Waite, "they
all showed that the voyage on which she was captured was from London to
Nassau, both neutral ports within the definition of neutrality furnished by
international law. The shippers, too, were really genuine and there was no
concealment of any of them and no spoliation. The owners were neutrals and
do not appear to have any interest in the cargo. There is no sufficient proof
that they had any knowledge of its alleged unlawful destination.
Issue: Does the Doctrine of Continuous Voyage apply in the case at bar.
Held: Where the cargo of a British vessel en route to a neutral port was held liable to
condemnation on the ground that its real destination was a blockaded port, the court
said:
We cannot doubt that the cargo was originally shipped with intent to violate the
blockade; that the owners of the cargo intended that it should be transhipped at Nassau
to a smaller vessel more likely to succeed in reaching safely a blockaded port than the
Springbook; that the voyage from London to the blockaded port was, as to cargo, both
in law and in the intent of the parties, one voyage; and that the liability to condemnation.
If captured during any part of the voyage, attached to the cargo from the time of sailing.
j. Doctrine of Continuous Voyage
• When the goods are reloaded at the intermediate port on the same vessel.
While Doctrine of Continuous Transport, When they are reloaded on
another vessel or other form of transportation.
k. Blockade
• It is a hostile operation by means of which the vessels and aircraft of one
belligerent prevent all other vessels, including those of neutral states, from
entering or leaving the ports or coasts of the other belligerent, the purpose
being to shut off the place from international commerce and communication
with other states.
• It differs from a pacific blockade, in that latter applies only to the vessels of the
blockaded state and does not affect the vessels of the other states.
• A valid blockade:
o Binding (eg. Duly communicated to the neutral states;
o Effective meaning that is maintained by adequate force so as to
make ingress to or egress from the port dangerous;
o Established by the proper authorities of the belligerent government,
generally the head of state
o Limited only to the territory of the enemy and not extended to netural
places or international rivers.
o Impartially applied to all states alike.
k. Instances when a Vessel is liable to condemnation for unneutral service
• It consists of acts, of a more hostile character than carriage of contraband or
breach of blockade, which are undertaken by merchant vessels of a neutral
state in aid of any of the belligerents.
• According to the Declaration of London, as a generally accepted, a neutral
vessel is liable to condemnation for unneutral service:
o If it is making a voyage special with a view to the transport of
individual passengers who are embodied in the armed forces of the
enemy or with a view to the transmission of information in the interest
of the enemy; or
o If with the knowledge of the owner, or the one who charters the entire
vessel, or of the master, it is transporting a military detachment
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of the enemy or one or more persons who, during the voyage,
lend direct assistance to the operations of the enemy. The
cargo, if belonging to the owner of the vessels, is likewise
confiscable.
• A neutral vessel is also liable to condemnation and to be treated as a
merchant vessel of the enemy:
o if it takes a direct part in the hostilities;
o if it is under the order or control of an agent placed on board by the
enemy government;
o if it is chartered entirely by the enemy government; or
o if it is at the time and exclusively either devoted to the transport of
enemy troops or the transmission of information in the interest of
the enemy.
• The goods belonging to the owner of the vessel are likewise liable to
condemnation.
l. Right of Angary, Requisites
• by the right of angary – a belligerent may, upon payment of just compensation,
seize, use or destroy, in case of urgent necessity for purposes of offenses or
defense, neutral property found in its territory, in enemy territory, or on the
high seas.
• Requisites:
o That the property is in the territory under the control or jurisdiction of
the belligerent
o there is urgent necessity for the taking
o that just compensation is paid to the owner
18.3 Termination of Neutrality
• When the neutral state itself joins the war
o The hitherto neutral state will be governed by the laws of war in its
relations with the other belligerents and by the laws of neutrality in
its relations with all other states
• Upon the conclusion of peace
o All states will again be governed by the laws of peace
MODULE 19: INTERNATIONAL HUMAN RIGHTS LAW
• Human Rights are the aggregate of privileges, claims, benefits, entitlements,
and moral guarantees that pertain to man because of his humanity. Chilean
lawyer Jose Zalaquett wrote that human rights are regarded as a system of
values or elements which are inherent to human dignity
Kinds:
1. The first generation is known as the first generation of civil and political
rights.
• first generation of rights gradually evolved over centuries during the long
development of democratic society and serve as a protection of the individuals
from the arbitrary exercise of police power.
• Examples of these rights are the right TO LIFE liberty and security of person;
right against torture;right-ID equal protection against any discrimination; right
against arbitrary arrest and detention; right to a fair and public hearing by an
independent and impartial tribunal
2. The second generation is known as the second generation of economic
social and cultural rights.
• The second generation of rights started to be recognized when people
realized that possession of the first generation of liberty rights would be
valueless without the enjoyment of economic, social, and cultural rights.
• The experience of the Third World countries in their struggle against
colonialism, the influence of Socialism and the encyclicals of the Popes all
contributed to the development and appreciation of the economic, social, and
cultural rights.
• Examples of these rights are the right to work, right to social security, right
to form and to join trade unions.
3. The third generation is known as the third generation of solidarity rights or
collective rights
• third generation of rights is intended to benefit individuals, groups and peoples
and its realization will need global cooperation based on international
solidarity.
• Examples of these rights are right to peace, right to development,
environmental rights,
Principles:
• Universality – means that rights belong to and are to be enjoyed by all
human beings without distinction of any kind, such as race, color, sex or
language, religion, political and other opinion, national or social origin,
property, birth or other stature.
• Indivisibility
• Interdependence
- The two related principles of indivisibility and inter-dependence mean that
the first generation of liberty rights and the second generation of equality
rights are inter-related and are co-equal in importance. They form an
indivisible whole and only if these rights are guaranteed that an individual
can live decently and in dignity.
- The international community must treat human rights in equal manner, on
the same footing, and with the same emphasis.
Characteristics:
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• Inherent means that rights are the birth right of all human beings, existing
independently of the will of either an individual human being or group. They
are not obtained and granted through any human action or Intervention.
When one is born, he carries with him these rights. They cannot be
separated or detached from him.
• Inalienable means that no person can deprive any person these rights and
no person can repudiate these rights by himself. It also means that these
rights cannot be the subject of the commerce of man.
• Universal means that these rights belong to every human being, no matter
what he or she is like. Because rights are universal, its promotion and
protection are the duty of all States, regardless of cultural, economic or
political systems.
Components:
The four components of a human right are a subject or a rightholder, a duty-holder,
an object and implementation.
• Subject or a right-holder is an individual (natural person), a group of
individuals or a non-governmental organization entitled to rights under the law
and can take legal action to protect or to promote those rights.
• Duty-holder is an entity, normally a State that is obliged to respect, to ensure
and to protect the subject’s rights or demands. In human rights, States are
considered a duty-holders rather than subjects though in international law the
role of States as subjects is recognized as incontestable.
• Object is the content of any given right and any duty of the holder of the right
and the holder of the obligation. This right and this duty are the human values
and needs which are found in human rights rules and norms.
• Implementation is a set of measures, approaches, and initiatives designed
to realize the right concerned: This includes laws, administrative measures,
legal writs and mechanisms adopted by the three branches of government,
namely, Congress, Executive and Judiciary.
o A sample subject or right-holder and an object or content of a human
right can be found in Article III, Section 12 of the 1987 Constitution
Stages:
• Idealization means that notions about human rights have started in the realm
of ideas that reflect a consciousness against oppression, dehumanization or
inadequate performance by the State.
• Positivization is the second stage where support for the ideas became strong
and the stage is set to incorporate them into some legal instruments, whether
domestic law or international law.
• Realization is the last stage where these rights are enjoyed by the citizens of
the State by the transformation of the social, economic, and political order.
Three Obligations of State Parties:
State Parties to International Covenants have obligations:
Obligation to respect - It indicates the negative character of civil and political rights,
commanding State Parties to refrain from restricting the exercise of these rights where
such is not expressly allowed. Example of prohibition of torture in Article 7 of ICCPR. It
is absolute, meaning, States must refrain from practicing torture under all
circumstances.
Obligation to ensure - indicates the positive character of the civil and political rights
and the economic, social, and cultural rights. Under the obligation, State Parties must
be proactive to enable individuals to enjoy their rights.
Obligation to protect - The obligation to ensure includes the obligation to protect. And
this means preventing private individuals, groups or entities from interfering with the
individual’s civil and political rights.
Sources and Foundations of Human Rights Law:
• The basic source of human rights law in the Philippines is the 1987
Constitution.
• The International Bill of Rights - This clause made possible the application
in the Philippines of the human rights principles stated in the International Bill
of Rights (composed of the threesome Universal Declaration of Human
Rights, the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights).
• Philosophy and Religion
19.1 Universal Declaration of Human Rights
• Article 3 to 21 of the UDHR contains the catalogue of civil and political rights
of the first generation. These are the right to life, liberty and security; freedom
from slavery and servitude; freedom from torture and inhuman treatment or
punishment; the right to recognition as a person before the law; freedom from
arbitrary arrest, detention or exile; the right to equal protection of the law; the
right to an effective remedy; the right to a fair trial; the right to privacy; freedom
of movement and residence; the right to nationality; freedom of thought,
19.3 International Covenant on Economic, Social, and Cultural Rights
conscience and religion; freedom of opinion and expression; freedom of
assembly and association; the right to property; the right to participate in
government.
19.2 International Covenant on Civil and Political Rights
• The International Covenant on Civil and Political Rights (ICCPR) was adopted
and opened for signature, ratification and accession by General Assembly
Resolution 2200A (XXI) of 16 December 1966. It' was entered into force on
March 23, 1976, in accordance with Article 49 thereof. The Philippines signed
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it three (3) days after it was opened for signature on December 19,1966, but
it was not until twenty (20) years later, on October 23, 1986, when it was
ratified
ICCPR has two (2) additional protocols:
a) The First Optional Protocol, which entered into force on March 23, 1976,
provides for the jurisdiction of the Human Rights Committee to receive and
consider communications from individuals who claim to be victims of human
rights violations set forth in the ICCPR. This was ratified by the Philippines on
August 22,1989.
b) The Second Optional Protocol, which entered into force on July 11, 1991, is
aimed at the abolition of death penalty. This was ratified by the Philippines on
November 20, 2007, after it passed Republic Act 9346 abolishing death penalty
in June, 2006
• In both documents, UCCPR and ICESCR, the first article is on the right of self-
determination, by virtue of which peoples may “freely determine their political
status and freely pursue their economic, social and cultural development.”
• ICCPR has a compliance and monitoring mechanism which is the Human
Rights Committee. (The Human Rights Committee should not be confused
with the Human Rights Council a UN Council under the UN General Assembly,
or the defunct Human Rights Commission under the ECOSOC, which the
Committee replaced.) The Committee shall be discussed more thoroughly in
Chapter VII, where relevant cases involving the Philippines will be presented.
• The individual rights provided are right to life, prohibition of torture and
inhuman prison conditions, prohibition of slavery, right to personal liberty and
security, including prohibition of detention for debt, freedom of movement and
protection of aliens against arbitrary expulsion, procedural guarantees in civil
and criminal trials including prohibition of retroactive criminal laws, recognition
of legal personality.
• First optional protocol to the covenant which provides for the possibility of
individual complaints was adopted by 66 to 2 votes, with 38 abstains. On
December 15, 1989, a second optional protocol aimed at the abolition of death
penalty was adopted by 59 to 28 with 4 abstains.
• The Universal Declaration of Human Rights (UDHR) recognizes not only the
civil and political rights of a person but also his economic rights, such as
employment, food, shelter, social security, etc.; social rights, and cultural
rights. Solidarity rights are also recognized in the Declaration. The Bill of
Rights in the 1987 Philippine Constitution provides for similar guarantees to
human rights as those provided in the UDHR, and almost with the same
wordings used as the latter
 • The International Covenant on Economic, Social and Cultural Rights
(ICESCR) was adopted and opened for signature, ratification, and accession
by General Assembly Resolution 2200A (XXI) of 16 December 1966. It
entered into force on January 3, 1976, in accordance with Article 27 thereof.
The Philippines signed it at the same time as ICCPR on December 19,1966
and ratified the covenant on June 7,1974.
• The ICESCR has a reporting mechanism called the Committee on Economic,
Social and Cultural Rights (CESCR). There is one [ optional protocol to the
ICESCR, which opened for signature and [ratification on December 10, 2008.
It has not yet entered into force I as it only has eight (8) ratifications thus far,
whereas it needs at least ten (10) member States to ratify the same. The
Philippines has not yet signed nor ratified the protocol as of this writing. The
I optional protocol provides for the jurisdiction of the Committee on
Economic, Social and Political Rights (CESCR) to receive and consider
communications from individuals and groups claiming to be victims of
violations of any of the rights set forth in ICESCR.
• This Covenant. is the sister covenant of the International Covenant on Civil
and Political Rights. The two sister covenants were adopted unanimously by
106 States.
• The Covenant consists of 31 Articles contained in six sections: the Preamble
and Parts I to V. The meat of the Covenant is found in Part III that lists the
rights to be protected. These rights are the right to work, the right to fair
conditions of employment, the right to join and form trade unions, the right to
social security the right to protection of the family, the right to an adequate
standard of living, including the right to food, clothing, and housing, the right
to health, the right to education, and the right to culture.
19.4 International Criminal Court
Obligations of the signatories under ICC:
• Complementarity
o The ICC is intended to complement, not to replace, national criminal
systems; it prosecutes cases only when States do not are unwilling
or unable to do so genuinely.
• Cooperation
o As a judicial institution, the ICC does not have its own police force or
enforcement body; thus, it relies on cooperation with countries
worldwide for support, particularly for making arrests, transferring
arrested persons to the ICC detention centre in The Hague, freezing
suspects’ assets, and enforcing sentences. While not a United
Nations organization, the Court has a cooperation agreement with
the United Nations. When a situation is not within the Court’s
jurisdiction, the United Nations Security Council can refer the
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situation to the ICC granting it jurisdiction. This has been done in the
situations in Darfur (Sudan) and Libya.
o The ICC actively works to build understanding and cooperation in all
regions, for example, through seminars and conferences worldwide.
The Court cooperates with both States Parties and non-States
Parties.
ICC procedure:
1. Preliminary Investigation
• The Office of the Prosecutor must determine whether there is sufficient
evidence of crimes of sufficient gravity falling within the ICC’s jurisdiction,
whether there are genuine national proceedings, and whether opening an
investigation would serve the interests of justice and of the victims.
• If the requirements are not met for initiating an investigation, or if the situation
or crimes are not under the ICC jurisdiction, the ICC’s Prosecution cannot
investigate.
2. Investigation
• After gathering evidence and identifying a suspect, the Prosecution requests
ICC judges to issue:
o an arrest warrant: the ICC relies on countries to make arrests and transfer
suspects to the ICC; or
o a summons to appear: suspects appear voluntarily (if not, an arrest warrant
may be issued).
• If the requirements are not met for initiating an investigation, or if the situation
or crimes are not under the ICC’s jurisdiction, the ICC’s Prosecution cannot
• investigate. The Prosecution may seek again the confirmation of charges,
by presenting new evidence.
3. Pre-Trial Stage
• Initial appearance: Three Pre-Trial judges confirm suspect's identity and
ensure suspect understands the charges.
• Confirmation of charges hearings: After hearing the Prosecution, the
Defence, and the Legal representative of victims, the judges decide (usually
within 60 days) if there is enough evidence for the case to go to trial.
• If the suspect is not arrested or does not appear, legal submissions can be
made, but hearings cannot begin
4. Trial Stage
• Before three Trial judges, the Prosecution must prove beyond reasonable
doubt the guilt of the accused.
• Judges consider all evidence, then issue a verdict and, when there is a
verdict of guilt, issue a sentence.
• The judges can sentence a person to up to 30 years of imprisonment, and
under exceptional circumstances, a life sentence.
• Verdicts are subject to appeal by the Defence and by the Prosecutor.
• Judges can also order reparations for the victims.
 5. Appeals Stage
• Both the Prosecutor and the Defence have the right to appeal a Trial
Chamber's decision on the verdict (decision on guilt or innocence of the
accused) and the sentence.
• The victims and the convicted person may appeal an order for reparations.
• An appeal is decided by five judges of the Appeals Chamber, who are never
the same judges as those who gave the original verdict.
• The Appeals Chamber decides whether to uphold the appealed decision,
amend it, or reverse it. This is thus the final judgment, unless the Appeals
Chamber orders a re-trial before the Trial Chamber.
6. Enforcement of sentence
• Sentences are served in countries that have agreed to enforce ICC
sentences.
• If a verdict of guilt is not upheld, the person may be released.
Republic vs. Sandiganbayan, G.R. No. 104678, July 21, 2003
Facts:
• Immediately upon her assumption to office following the successful EDSA
Revolution, then President Corazon C. Aquino issued Executive Order No. 1
("EO No. 1") creating the Presidential Commission on Good Government
("PCGG"). EO No. 1 primarily tasked the PCGG to recover all ill-gotten wealth
of former President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates. EO No. 1 vested the PCGG with the power
"(a) to conduct investigation as may be necessary in order to accomplish and
carry out the purposes of this order" and the power "(h) to promulgate such
rules and regulations as may be necessary to carry out the purpose of this
order." Accordingly, the PCGG, through its then Chairman Jovito R. Salonga,
created an AFP Anti-Graft Board ("AFP Board") tasked to investigate reports
of unexplained wealth and corrupt practices by AFP personnel, whether in the
active service or retired.2
• Based on its mandate, the AFP Board investigated various reports of alleged
unexplained wealth of respondent Major General Josephus Q. Ramas
("Ramas"). On 27 July 1987, the AFP Board issued a Resolution on its findings
and recommendation on the reported unexplained wealth of Ramas. The
relevant part of the Resolution reads:
Issue: Whether the protection accorded to individuals under the International Covenant
on Civil and Political Rights ("Covenant") and the Universal Declaration of Human
Rights ("Declaration") remained in effect during the interregnum as the Philippine Bill
of rights was inoperative.
Held:
The Supreme Court affirmed the questioned resolutions of the Sandiganbayan. The
Court ruled that the PCGG had no jurisdiction to investigate Ramas as he was not a
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"subordinate" of President Marcos as contemplated under EO No. 1, which created
PCGG. Mere position held by a military does not make him a "subordinate" as this term
was used in EO No. 1, absent any showing that he enjoyed close association with
former President Marcos. The Court disagreed with the petitioner's claim that the
Sandiganbayan erred in dismissing the case before the completion of the presentation
of petitioner's evidence.
According to the Court, the petitioner had almost two years to prepare its evidence;
however, it still delayed the presentation of the rest of its evidence by filing numerous
motions for postponements and extensions. Based on these circumstances, obviously
petitioner has only itself to blame for failure to complete presentation of its evidence.
The Court also ruled that the raiding team exceeded its authority when it seized the
subject items. The search warrant did not particularly describe the items seized. The
seizure of these items was therefore, void, and unless these items are contraband per
se, which they are not, they must be returned to the person from whom the raiding team
seized them.
The court hold that the Bill of Rights under the 1973 Constitution was not operative
during the interregnum. However, we rule that the protection accorded to individuals
under the Covenant and the Declaration remained in effect during the interregnum.
During the interregnum, the directives and orders of the revolutionary government were
the supreme law because no constitution limited the extent and scope of such directives
and orders.
Marcos vs. Manglapus, G.R. No. 88211, 15 September 1989, Dissenting Opinion
Facts:
• Former President Ferdinand E. Marcos was deposed from the presidency via
the non -violent “people power” revolution and was forced into exile. Marcos,
in his deathbed, has signified his wish to return to the Philippines to die. But
President Corazon Aquino, considering the dire consequences to the nation
of his return at a time when the stability of government is threatened from
various directions and the economy is just beginning to rise and move
forward,has stood firmly on the decision to bar the return of Marcos and his
family.
• Aquino barred Marcos from returning due to possible threats & following
supervening events:
o failed Manila Hotel coup in 1986 led by Marcos leaders
o channel 7 taken over by rebels & loyalists
o plan of Marcoses to return w/ mercenaries aboard a chartered plane
of a Lebanese arms dealer. This is to prove that they can stir trouble
from afar
o Honasan’s failed coup
o Communist insurgency movements
o secessionist movements in Mindanao
 o devastated economy because of accumulated foreign debt and
plunder of nation by Marcos & cronies
• Marcos filed for a petition of mandamus and prohibition to order the
respondents to issue them their travel documents and prevent the
implementation of President Aquino’s decision to bar Marcos from returning
to the Philippines. Petitioner questions Aquino’s power to bar his return to the
country. He also questioned the claim of the President that the decision was
made in the interest of national security, public safety and health. Petitioner
also claimed that the President acted outside her jurisdiction.
• According to the Marcoses, such act deprives them of their right to life, liberty,
property without due process and equal protection of the laws. They also said
that it deprives them of their right to travel which according to Section 6, Article
3 of the constitution, may only be impaired by a court order.
Issue:
• In the exercise of the powers granted by the Constitution, may the President
prohibit the Marcoses from returning to the Philippines?
• Did the President act arbitrarily or with grave abuse of discretion amounting
to lack or excess of jurisdiction when she determined that the return of the
Marcoses to the Philippines posed a serious threat to national interest and
welfare and decided to bar their return?
Held: NO to BOTH ISSUES.
• Separation of power dictates that each department has exclusive powers.
According to Section 1, Article VII of the 1987 Philippine Constitution, “the
executive power shall be vested in the President of the Philippines.” However,
it does not define what is meant by “executive power” although in the same
article it touches on exercise of certain powers by the President, i.e., the power
of control over all executive departments, bureaus and offices, the power to
execute the laws, the appointing power to grant reprieves, commutations and
pardons... (art VII sects. 14- 23). Although the constitution outlines tasks of
the president, this list is not defined and exclusive. She has residual &
discretionary powers not stated in the Constitution which include the power to
protect the general welfare of the people. She is obliged to protect the people,
promote their welfare and advance national interest. (Art. II, Sec. 4-5 of the
Constitution).
• Residual powers, according to Theodore Roosevelt, dictate that the President
can do anything which is not forbidden in the Constitution (Corwin, supra at
153), inevitable to vest discretionary powers on the President (Hyman,
American President) and that the president has to maintain peace during
times of emergency but also on the day-to-day operation of the State.
• The rights Marcoses are invoking are not absolute. They’re flexible depending
on the circumstances. The request of the Marcoses to be allowed to return to
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the Philippines cannot be considered in the light solely of the constitutional
provisions guaranteeing liberty of abode and the right to travel, subject to
certain exceptions, or of case law which clearly never contemplated situations
even remotely similar to the present one. It must be treated as a matter that
is appropriately addressed to those residual unstated powers of the President
which are implicit in and correlative to the paramount duty residing in that
office to safeguard and protect general welfare. In that context, such request
or demand should submit to the exercise of a broader discretion on the part
of the President to determine whether it must be granted or denied.
• For issue number 2, the question for the court to determine is whether or not
there exist factual basis for the President to conclude that it was in the national
interest to bar the return of the Marcoses in the Philippines. It is proven that
there are factual bases in her decision. The supervening events that
happened before her decision are factual. The President must take
preemptive measures for the self- preservation of the country and protection
of the people. She has to uphold the Constitution.
MODULE 20: INTERNATIONAL ENVIRONMENTAL LAW
20.1 Section 16, Article Il, 1987 Constitution
• Section 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of
nature.
20.2 Principle 21 of Stockholm Declaration
• Principle 21 of the 1972 Stockholm Declaration, which is the cornerstone of
International Environmental Law, reflects these principles:
- States have, in accordance with the Charter of the United Nations and the
principles of international law, the sovereign right to exploit their own
resources pursuant to their own environmental policies, and the responsibility
to ensure that activities within their jurisdiction or control do not cause damage
to the environment of other States or of areas beyond the limits of national
jurisdiction.
• The sovereign right over natural resources includes the right of the states to
be free from external interference. The exercise of state sovereignty, however,
has its limits. Principle 21 provides that the state has the responsibility not to
cause harm beyond the limits of its national jurisdiction. The No Harm
Principle recognizes that a state’s activities may be transboundary in nature
which can affect or harm the environment of another State. This is meant to
be balanced with the sovereign principle of states and requires them to take
responsibility for their actions which cause harm outside their own territory
20.3 Precautionary principle
• The precautionary principle guides decision-makers to take action to protect
the environment, safety, and public health when there is scientific uncertainty.
J. Leonen, Social Justice Society (SJS) Officers vs. Lim, G.R. No. 187836,
November 25, 2014
Facts:
• These petitions that are sequel to the case of SJS v. Mayor Atienza, where
the court found that Ordinance no. 8027 – which was enacted to safeguard
the rights to life, security and safety of the inhabitants of Manila; it had
passed the tests of a valid ordinance and that is not superseded by
Ordinance no. 8119.
• Declaring that it is constitutional and valid, the Court accordingly ordered its
immediate enforcement with a specific directive on the relocation and
transfer of the Pandacan oil terminals.
• The court also ruled that the oil depots should leave and herein petitioner now
seek the nullification of Ordinance no. 8187, which contains provisions
contrary to those embodies in Ordinance no. 8027. Allegations of
violations of the right to health and the right to healthful and balanced
environment are also included.
• Ordinance No. 8027 reclassifying the use of the land in Pandacan, Sta. Ana,
and its adjoining areas from Industrial II to Commercial I. The owners and
operators of the businesses thus affected by the reclassification were given
six months from the date of effectivity of the Ordinance within which to stop
the operation of their businesses.
• Ordinance No. 8119 entitled "An Ordinance Adopting the Manila
Comprehensive Land Use Plan and Zoning Regulations of 2006 and Providing
for the Administration, Enforcement and Amendment thereto.”
o Article IV, Sec. 7 30 enumerating the existing zones or districts in the
City of Manila.
o Article V, Sec. 23 31 designating the Pandacan oil depot area as a
"Planned Unit Development/Overlay Zone" (O-PUD); and
o the repealing clause, which reads:
SEC. 84. Repealing Clause. — All ordinances, rules, regulations in
conflict with the provisions of this Ordinance are hereby repealed;
PROVIDED, That the rights that are vested upon the effectivity of this
Ordinance shall not be impaired
The petitioners argue that the enactment of the assailed Ordinance is not a valid
exercise of police power because the measures provided therein do not promote the
general welfare of the people. They further argue that Ordinance No. 8187 is violative
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of Sections 15 and 16, Article II of the Constitution of the Philippines on the duty of
the State “to protect and promote the right to health of the people” and “protect and
advance the right of the people to a balanced and healthful ecology.” Moreover, they
argue that despite the finality of the Decision in G.R. No. 156052, and notwithstanding
that the conditions and circumstances warranting the validity of Ordinance No. 8027
remain the same, the Manila City Council passed a contrary Ordinance, thereby
refusing to recognize that “judicial decisions applying or interpreting the laws or the
Constitution form part of the legal system of the Philippines.” Petitioners likewise claim
that the Ordinance is in violation of health and environment-related municipal laws,
and international conventions and treaties to which the Philippines is a state party.
Issue: WON the enactment of the assailed Ordinance allowing the continued stay of
the oil companies in the depots is, indeed, invalid and unconstitutional.
Held: Yes.
• The Local Government Code of 1991 expressly provides that the Sanggunian
Panlungsod is vested with the power to “reclassify land within the jurisdiction
of the city” subject to the pertinent provisions of the Code. It is also settled that
an ordinance may be modified or repealed by another ordinance.” These have
been properly applied in G.R. No. 156052, where the Court upheld the position
of the Sangguniang Panlungsod to reclassify the land subject of the Ordinance
and declared that the mayor has the duty to enforce Ordinance No. 8027,
provided that it has not been repealed by the Sangguniang Panlungsod or
otherwise annulled by the courts. In the same case, the Court also used the
principle that the Sangguniang Panlungsod is in the best position to determine
the needs of its constituents — that the removal of the oil depots from the
Pandacan area is necessary “to protect the residents of Manila from
catastrophic devastation in case of a terrorist attack on the Pandacan
Terminals.”
• The fact remains, however, that notwithstanding that the conditions with
respect to the operations of the oil depots existing prior to the enactment of
Ordinance No. 8027 do not substantially differ to this day, as would later be
discussed, the position of the Sangguniang Panlungsod on the matter has
thrice changed, largely depending on the new composition of the council
and/or political affiliations. The foregoing, thus, shows that its determination
of the “general welfare” of the city does not after all gear towards the protection
of the people in its true sense and meaning, but is, one way or another,
dependent on the personal preference of the members who sit in the council
as to which particular sector among its constituents it wishes to favor.
Resident Marine Mammals of the Protected Seascape Tanon Strait, G.R. No.
180771, April 21, 2015
Facts:
 • June 13, 2002, the Government of the Philippines, acting through the DOE, • Note that while Presidential Decree No. 87 may serve as the general law upon
entered into a Geophysical Survey and Exploration Contract-102 (GSEC-102) which a service contract for petroleum exploration and extraction may be
with JAPEX. This contract involved geological and geophysical studies of the authorized, as will be discussed below, the exploitation and utilization of this
Tañon Strait. energy resource in the present case may be allowed only through a law
• May 9 to 18, 2005, JAPEX conducted seismic surveys in and around the passed by Congress, since the Tañon Strait is a NIPAS area.
Tañon Strait. A multi-channel sub-bottom profiling covering approximately 751
kilometers was also done to determine the area's underwater composition.
• January 31, 2007, the Protected Area Management Board of the Tañon Strait ----------------------------------------------- end ----------------------------------------------------------
(PAMB-Tañon Strait) issued Resolution No. 2007-001, wherein it adopted the
Initial Environmental Examination (IEE) commissioned by JAPEX, and
favorably recommended the approval of JAPEX's application for an ECC.
• March 6, 2007, the EMB of DENR Region VII granted an ECC to the DOE and
JAPEX for the offshore oil and gas exploration project in Tañon Strait. Months
later, on November 16, 2007, JAPEX began to drill an exploratory well, with a
depth of 3,150 meters, near Pinamungajan town in the western Cebu
Province. This drilling lasted until February 8, 2008.
• Petitioners then applied to this Court for redress, via two separate original
petitions both dated December 17, 2007, wherein they commonly seek that
respondents be enjoined from implementing SC-46 for, among others,
violation of the 1987 Constitution.

Issue:

• WON the service contract valid.

Held:

• Yes. The disposition, exploration, development, exploitation, and utilization of

indigenous petroleum in the Philippines are governed by Presidential Decree
No. 87 or the Oil Exploration and Development Act of 1972. This was enacted
by then President Ferdinand Marcos to promote the discovery and production
of indigenous petroleum through the utilization of government and/or local or
foreign private resources to yield the maximum benefit to the Filipino people
and the revenues to the Philippine Government.
• Contrary to the petitioners' argument, Presidential Decree No. 87, although
enacted in 1972, before the adoption of the 1987 Constitution, remains to be
a valid law unless otherwise repealed.
• Moreover, in cases where the statute seems to be in conflict with the
Constitution, but a construction that it is in harmony with the Constitution is
also possible, that construction should be preferred. This Court, in
Pangandaman v. Commission on Elections expounding on this point,
pronounced: It is a basic precept in statutory construction that a statute should
be interpreted in harmony with the Constitution and that the spirit, rather than
the letter of the law determines its construction; for that reason, a statute must
be read according to its spirit and intent.

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