Cases and Notes in SPIL

Magallona v Ermita
United Nations Convention on the Law of the Sea (UNCLOS III); UNCLOS III has nothing to do with
the acquisition or loss of territory.UNCLOS III has nothing to do with the acquisition (or loss) of
territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the
baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that
UNCLOS III delimits. UNCLOS III was the culmination of decades-long negotiations among United
Nations members to codify norms regulating the conduct of States in the worlds oceans and submarine
areas, recognizing coastal and archipelagic States graduated authority over a limited span of waters and
submarine lands along their coasts.
Archipelagic Baselines of the Philippines (Republic Act No. 9522); Baselines laws such as RA 9522 are
enacted by United Nations Convention on the Law of the Sea (UNCLOS III) States parties to mark-out
specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to
serve as geographic starting points to measure the breadth of the maritime zones and continental shelf.
Baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific
basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as
geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48
of UNCLOS III on archipelagic States like ours could not be any clearer: Article 48. Measurement of the
breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf.
The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental
shelf shall be measured from archipelagic baselines drawn in accordance with article 47. (Emphasis
supplied)
Same; Baselines laws are nothing but statutory mechanisms for United Nations Convention on the Law of
the Sea (UNCLOS III) States parties to delimit with precision the extent of their maritime zones and
continental shelves.Baselines laws are nothing but statutory mechanisms for UNCLOS III States parties
to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives
notice to the rest of the international community of the scope of the maritime space and submarine areas
within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over
territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws
in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the
exclusive economic zone (Article 56) and continental shelf (Article 77).
Same; RA 9522 increased the Philippines total maritime space by 145,216 square nautical miles.
Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters under RA 9522
is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines total maritime space (covering its internal waters, territorial sea and
exclusive economic zone) by 145,216 square nautical miles.
United Nations Convention on the Law of the Sea (UNCLOS III); Congress decision to classify the
Kalayaan Island Group (KIG) and the Scarborough Shoal as Regime[s] of Islands manifests the
Philippine States responsible observance of its pacta sunt servanda obligation under UNCLOS III.Far
from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress decision to
classify the KIG and the Scarborough Shoal as Regime[s] of Islands under the Republic of the
Philippines consistent with Article 121 of UNCLOS III manifests the Philippine States responsible
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observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III,
any naturally formed area of land, surrounded by water, which is above water at high tide, such as
portions of the KIG, qualifies under the category
Same; The recognition of archipelagic States archipelago and the waters enclosed by their baselines as
one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III.The
recognition of archipelagic States archipelago and the waters enclosed by their baselines as one cohesive
entity prevents the treatment of their islands as separate islands under UNCLOS III. Separate islands
generate their own maritime zones, placing the waters between islands separated by more than 24 nautical
miles beyond the States territorial sovereignty, subjecting these waters to the rights of other States under
UNCLOS III.
Same; United Nations Convention on the Law of the Sea (UNCLOS III) creates a sui generis maritime
spacethe exclusive economic zonein waters previously part of the high seas.UNCLOS III favors
States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime spacethe
exclusive economic zonein waters previously part of the high seas. UNCLOS III grants new rights to
coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles.
UNCLOS III, however, preserves the traditional freedom of navigation of other States that attached to this
zone beyond the territorial sea before UNCLOS III.
Same; Absent an United Nations Convention on the Law of the Sea (UNCLOS III) compliant baselines
law, an archipelagic State like the Philippines will find itself devoid of internationally acceptable
baselines from where the breadth of its maritime zones and continental shelf is measured.Absent an
UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid of
internationally acceptable baselines from where the breadth of its maritime zones and continental shelf is
measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to the seafaring
powers to freely enter and exploit the resources in the waters and submarine areas around our
archipelago; and second, it weakens the countrys case in any international dispute over Philippine
maritime space. These are consequences Congress wisely avoided.
FACTS: The antecedent facts of this case emerged upon the passing of Republic Act 3046 in 1961. The
laws purpose is to demarcate the maritime baselines of the Philippines as it was deemed to be an archipelago. RA 3046
stood unchallenged until 2009, when Congress amended it and passed RA 9522. This amending law shortened one baseline
and determined new base points of the archipelago. Moreso, it has identified the Kalayaan Island Group and the Scarborough
Shoal, as "regimes of islands", generating their own maritime zones. The petitioners filed a case assailing the constitutionality of
RA 9522. To their opinion, the law has effectively reduced the maritime territory of the country. With this, Article I of the 1987
Constitution will be violated. The petitioners also worried that that because of the suggested changes in the maritime baselines
will allow for foreign aircrafts and vessels to traverse the Philippine territory freely. In effect, it steps on the
states sovereignty and national security. Meanwhile, the Congress insisted that in no way will the amendments affect any
pertinent power of the state. It also deferred to agree that the law impliedly relinquishes the Philippines claims over Sabah.
Lastly, they have questioned the normative force of the notion that all the waters within the rectangular boundaries in the Treaty
of Paris. Now, because this treaty still has undetermined controversies, the Congress believes that in the perspective of
international law, it did not see any binding obligation to honor it. Thus, this case of prayer for writs of certiorari and prohibition
is filed before the court, assailing the constitutionality of RA 9522.
Held: The Court dismissed the case. It upheld the constitutionality of the law and made it clear that it has merely
demarcated the countrys maritime zones and continental shelves in accordance to UNCLOS III.
Secondly, the Court found that the framework of the regime of islands suggested by the law is not incongruent with the
Philippines enjoyment of territorial sovereignty over the areas of Kalayaan Group of Islands and the Scarborough.
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Third, the court reiterated that the claims over Sabah remained even with the adoption of the amendments. Further, the Court
importantly stressed that the baseline laws are mere mechanisms for the UNCLOS III to precisely describe the delimitations. It
serves as a notice to the international family of states and it is in no way affecting or producing any effect like enlargement or
diminution of territories. With regard to the petitioners assertion that RA 9522 has converted the internal waters
into archipelagic waters, the Court did not appear to be persuaded. Instead, the Court suggested that the political branches
of Government can pass domestic laws that will aid in the competent security measures and policies that will regulate innocent
passage. Since the Court emphasized innocent passage as a right based on customary law, it also believes that no state can
validly invoke sovereignty to deny a right acknowledged by modern states. In the case of archipelagic states such as ours,
UNCLOS III required the imposition of innocent passage as a concession in lieu of their right to claim the entire waters
landward baseline. It also made it possible for archipelagic states to be recognized as a cohesive entity under the UNCLOS III.
Archipelago Doctrine
Prof. Merlin M. Magallona, Et. Al. V. Hon. Eduardo Ermita, Et. Al., G.R. No. 187167, August 6, 2011
This merely emphasizes the unity of lands and waters. It is a body of waters interconnected with other
natural features. Under the United Nation Convention on the Law of Sea (UNCLOS), it consists of
drawing imaginary baseline connecting the outermost islands of the archipelago in which all internal
waters and islands are considered as one integrated whole. An archipelago is defined as a group of
islands, interconnecting waters and other natural features which are so closely interrelated that such
islands, waters and natural features form an intrinsic geographical, economical and political entity, or
which historically been regarded as such.
Correlate this doctrine to the right of innocent of passage, right of arrival under stress and UNCLOS
requiring the designation of archipelagic seaways so that foreign vessels may pass through an
archipelago.
xxx The waters around, between and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the Philippines.
This second sentence of Article I is not the Archipelago Doctrine. This is only our
restatement/reaffirmation of our adherence to the Archipelago Doctrine simply because we are an
archipelago consisting of 7,107 islands. It is essential for our national survival that we adhere to the
archipelago principle.
Is the Spratlys Group of Islands part of the Philippine Archipelago?
A: NO!
Spratlys Group of Islands [a.k.a Kalayaan Island Group or KIG] is not part of the Philippine
Archipelago because it is too far away from the three main islands of the Philippines. It is found,
geographically, almost in the middle of the South China Sea. Historically, when we talk about the
Philippine Archipelago, we refer to those islands and waters that were ceded by the Spain to the United
States by virtue of theTreaty of Paris in 1898, and that did not include the Spratlys Group of Islands yet.
Under the treaty, the islands that were ceded by Spain were identifiedthe main islandsLuzon, Visayas
and Mindanao. Clearly, it did not include the Spratlys Group of Islands.
Spratlys Group of Islands was only discovered sometime in the 1950s by a Filipino, Tomas Cloma. The
latter waived his rights over the islands in favor of the Philippine Government. In effect, the government
stepped into the shoes of the discoverer. What then President Marcos did the moment Tomas Cloma
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waived his rights over the Spratlys Group of Islands, is to have the islands immediately occupied by
Philippine troops. He then issued PD 1596, constituting the Spratlys Group of Islands as a regular
municipality claiming it the Municipality of Kalayaan placing it under the Province of Palawan, and
then he had the elections immediately held in the islands so from that time on until now, we continue to
hold elections there. The Philippine exercises not only jurisdiction but also sovereignty over the Spratlys
Group of Islands, yet it is not part of the Philippine Archipelago. Geographically, it is too far away from
the Philippine Archipelago.
On May 20, 1980, the Philippines registered its claim with the UN Secretariat.The Philippin claim to the
islands is justified by reason of history, indispensable need, and effective occupation and control.
Thus, in accordance with international law, the Spratlys Group of islands is subject to
the sovereignty of the Philippines.
Is the Spratlys group of Islands part of our National Territory?
A: YES.
The Spratlys Group of islands falls under the second phrase of Article I of the Philippine Constitution
and all other territories over which the Philippines has sovereignty or jurisdiction. It is part of our
national territory because the Philippines exercise sovereignty (through the election of public officials)
over Spratlys Group of Islands.
What was the basis of the Philippines claim over the Spratlys?
A: Through the discovery of Tomas Cloma and by an effective occupation. (Prof. Magallona, supra) PD
1596, June 11, 1978 constituting the Spratlys Group of Islands as a regular municipality claiming it the
Municipality of Kalayaan, placing it under the Province of Palawan.
(1) RA 9522's Use of the Framework of Regime of Islands to Determine the Maritime Zones of
the KIG and the Scarborough Shoal - not Inconsistent with the Philippines' Claim of
Sovereignty Over these Areas. Further, petitioners' argument that the KIG now lies outside
Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated
by RA 9522 itself. Section 2 of the law commits to text the Philippines' continued claim of
sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty
and jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines
consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of
two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such
baselines shall not depart to any appreciable extent from the general configuration of the archipelago."
Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines shall not exceed 100
nautical miles," save for three per cent (3%) of the total number of baselines, which can reach up to 125
nautical miles.
Although the Philippines has consistently claimed sovereignty over the KIG and the Scarborough Shoal
for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline
of the Philippine archipelago, such that any straight baseline loped around them from the nearest
basepoint will inevitably "depart to an appreciable extent from the general configuration of the
archipelago."
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(2) Statutory Claim Over Sabah under RA 5446 - Retained

Petitioners' argument for the invalidity of RA 9522 for its failure to textualize the Philippines' claim over
Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps
open the door for drawing the baselines of Sabah: Section 2. The definition of the baselines of the
territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the
delineation of the baselines of the territorial sea around the territory of Sabah, situated in North
Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.
REPUBLIC ACT No. 3046 (as amended by RA 5446) AN ACT DEFINE THE BASELINES OF
THE TERRITORIAL SEA OF THE PHILIPPINES.
Republic Act No. 5446 (as amended by R.A. 9522) AN ACT TO AMEND SECTION ONE OF
REPUBLIC ACT NUMBERED THIRTY HUNDRED AND FORTY-SIX, ENTITLED "AN ACT
TO DEFINE THE BASELINES OF THE TERRITORIAL SEA OF THE PHILIPPINES"
SECTION 3. INNOCENT PASSAGE
IN THE TERRITORIAL SEA
SUBSECTION A. RULES APPLICABLE TO ALL SHIPS
Article 17
Right of innocent passage
Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent
passage through the territorial sea.
Article18
Meaning of passage
1. Passage means navigation through the territorial sea for the purpose of:
a. traversing that sea without entering internal waters or calling at a roadstead or port facility outside
internal waters; or
b. proceeding to or from internal waters or a call at such roadstead or port facility.
2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but
only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure
or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.
Article19
Meaning of innocent passage
1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal
State. Such passage shall take place in conformity with this Convention and with other rules of
international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of
the coastal State if in the territorial sea it engages in any of the following activities:
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a. any threat or use of force against the sovereignty, territorial integrity or political independence of
the coastal State, or in any other manner in violation of the principles of international law
embodied in the Charter of the United Nations;
b. any exercise or practice with weapons of any kind;
c. any act aimed at collecting information to the prejudice of the defence or security of the coastal
State;
d. any act of propaganda aimed at affecting the defence or security of the coastal State;
e. the launching, landing or taking on board of any aircraft;
f.

the launching, landing or taking on board of any military device;

g. the loading or unloading of any commodity, currency or person contrary to the customs, fiscal,
immigration or sanitary laws and regulations of the coastal State;
h. any act of willful and serious pollution contrary to this Convention;
i.

any fishing activities;

j.

the carrying out of research or survey activities;

k. any act aimed at interfering with any systems of communication or any other facilities or
installations of the coastal State;
l.

any other activity not having a direct bearing on passage.

Article20
Submarines and other underwater vehicles
In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and
to show their flag.
Article21
Laws and regulations of the coastal State relating to innocent passage
1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention
and other rules of international law, relating to innocent passage through the territorial sea, in respect of
all or any of the following:
a. the safety of navigation and the regulation of maritime traffic;
b. the protection of navigational aids and facilities and other facilities or installations;
c. the protection of cables and pipelines;
d. the conservation of the living resources of the sea;
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e. the prevention of infringement of the fisheries laws and regulations of the coastal State;
f.

the preservation of the environment of the coastal State and the prevention, reduction and control
of pollution thereof;

g. marine scientific research and hydrographic surveys;

h. the prevention of infringement of the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State.
2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign
ships unless they are giving effect to generally accepted international rules or standards.
3. The coastal State shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all
such laws and regulations and all generally accepted international regulations relating to the prevention of
collisions at sea.
Article22
Sea lanes and traffic separation schemes in the territorial sea
1. The coastal State may, where necessary having regard to the safety of navigation, require foreign ships
exercising the right of innocent passage through its territorial sea to use such sea lanes and traffic
separation schemes as it may designate or prescribe for the regulation of the passage of ships.
2. In particular, tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous
or noxious substances or materials may be required to confine their passage to such sea lanes.
3. In the designation of sea lanes and the prescription of traffic separation schemes under this article, the
coastal State shall take into account:
a. the recommendations of the competent international organization;
b. any channels customarily used for international navigation;
c. the special characteristics of particular ships and channels; and
d. the density of traffic.
4. The coastal State shall clearly indicate such sea lanes and traffic separation schemes on charts to which
due publicity shall be given.
Article23
Foreign nuclear-powered ships and ships carrying nuclear or other inherently
dangerous or noxious substances
Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious
substances shall, when exercising the right of innocent passage through the territorial sea, carry
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documents and observe special precautionary measures established for such ships by international
agreements.
Article24
Duties of the coastal State
1. The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea
except in accordance with this Convention. In particular, in the application of this Convention or of any
laws or regulations adopted in conformity with this Convention, the coastal State shall not:
a. impose requirements on foreign ships which have the practical effect of denying or impairing the
right of innocent passage; or
b. discriminate in form or in fact against the ships of any State or against ships carrying cargoes to,
from or on behalf of any State.
2. The coastal State shall give appropriate publicity to any danger to navigation, of which it has
knowledge, within its territorial sea.
Article25
Rights of protection of the coastal State
1. The coastal State may take the necessary steps in its territorial sea to prevent passage which is not
innocent.
2. In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the
coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which
admission of those ships to internal waters or such a call is subject.
3. The coastal State may, without discrimination in form or in fact among foreign ships, suspend
temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension
is essential for the protection of its security, including weapons exercises. Such suspension shall take
effect only after having been duly published.
Article26
Charges which may be levied upon foreign ships
1. No charge may be levied upon foreign ships by reason only of their passage through the territorial sea.
2. Charges may be levied upon a foreign ship passing through the territorial sea as payment only for
specific services rendered to the ship. These charges shall be levied without discrimination.
Korean Air Lines Flight 007
Was a scheduled Korean Air Lines flight from New York City to Seoul via Anchorage. On September 1,
1983, the airliner serving the flight was shot down by a Soviet Su-15interceptor near Moneron Island,
west of Sakhalin Island, in the Sea of Japan. The interceptor's pilot was Major Gennadi Osipovich. All
269 passengers and crew aboard were killed, including Lawrence McDonald, representative

from Georgia in the United States House of Representatives. The aircraft was en route from Anchorage to
Seoul when it flew through prohibited Soviet airspace around the time of a U.S. reconnaissance mission.
The Soviet Union initially denied knowledge of the incident, but later admitted the shoot down, claiming
that the aircraft was on a spy mission. The Politburo said it was a deliberate provocation by the United
States to test the Soviet Union's military preparedness, or even to provoke a war. The White
House accused

the

Soviet

Union

military suppressed evidence

sought

of

obstructing

search

by the International

and

rescue

operations. The Soviet

Civil Aviation Organization (ICAO)

investigation, such as the flight data recorders, which were released eight years later after the collapse of
the Soviet Union.
The incident was one of the tensest moments of the Cold War and resulted in an escalation of antiSoviet sentiment, particularly in the United States. The opposing points of view on the incident were
never fully resolved. Consequently, several groups continue to dispute official reports and offer
alternative theories of the event. The subsequent release of KAL 007 flight transcripts and flight recorders
by the Russian Federation has clarified some details.
As a result of the incident, the United States altered tracking procedures for aircraft departing Alaska. The
interface of the autopilot used on airliners was redesigned to make it more ergonomic. In addition, the
event was one of the most important single events that prompted the Reagan administration to allow
worldwide access to the United States military's GNSS system, which was classified at the time. Today
this system is widely known as GPS.
The Doctrine of State Immunity From Suit
I. Suits against the STATE itself
Department Of Agriculture vs. NLRC, 227 SCRA 693, Nov. 11, 1993
The basic postulate enshrined in the Constitution that [t]he State may not be sued without its consent,
reflects nothing less than a recognition of the sovereign character of the State and an express affirmation
of the unwritten rule effectively insulating it from the jurisdiction of courts. It is based on the very
essence of sovereignty. As has been aptly observed by Justice Holmes, a sovereign is exempt from suit,
not because of any formal conception or obsolete theory, but on the logical and practical ground that
there can be no legal right as against the authority that makes the law on which the right depends.
True, the doctrine, not too infrequently, is derisively called the royal prerogative of dishonesty
because it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its
non-suability. We have had occasion to explain in its defense, however, that a continued adherence to the
doctrine of non-suability cannot be deplored, for the loss of governmental efficiency and the obstacle
to the performance of its multifarious functions would be far greater in severity than the
inconvenience that may be caused private parties, if such fundamental principle is to be abandoned
and the availability of judicial remedy is not to be accordingly restricted.
Waiver of State Immunity: Express or Implied
The rule, in any case, is not really absolute for it does not say that the state may not be sued under any
circumstances. On the contrary x x x the doctrine only conveys, the state may not be sued without its
9

consent; Its clear import then is that the State may at times be sued. The State's consent may be given
either expressly or impliedly.
Express consent may be made through a general law (i.e., Commonwealth Act No. 327, as amended by
Presidential Decree No. 1445 [Sections 49-50], which requires that all money claims against the
government must first be filed with the Commission on Audit which must act upon it within sixty days.
Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari
and, in effect, sue the State thereby) or a special law. In this jurisdiction, the general law waiving the
immunity of the state from suit is found in Act No. 3083, where the Philippine government consents
and submits to be sued upon any money claim involving liability arising from contract, express or
implied, which could serve as a basis of civil action between the private parties.
Implied consent, on the other hand, is conceded when the State itself commences litigation, thus opening
itself to a counterclaim or when it enters into a contract. In this situation, the government is deemed to
have descended to the level of the other contracting party and to have divested itself of its sovereign
immunity. (DA vs. NLRC, supra)

Is Implied waiver of immunity absolute?

A: NO. Not all contracts entered into by the government operate as a waiver of its non-suability;
distinction must still be made between one which is executed in the exercise of its sovereign function
[jure imperii] and another which is done in its proprietary [jure gestionis] capacity.
What is the Restrictive Doctrine of State Immunity from Suit?
United States of America v. Ruiz (136 SCRA 487)
According to the newer or restrictive theory, the immunity of the sovereign is recognized only wth regard
to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis.
Diplomatic Immunity
Article 31
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall
also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable property situated in the territory of the receiving State,
unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator,
heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the
receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming
under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures
concerned can be taken without infringing the inviolability of his person or of his residence.

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4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him
from the jurisdiction of the sending State.

Liang vs. People

International Law; Diplomatic Immunity; International Organizations; Asian Development Bank; The
slander of a person, by any stretch, cannot be considered as falling within the purview of the immunity
granted to ADB officers and personnelslander cannot be considered as an act performed in an official
capacity.After a careful deliberation of the arguments raised in petitioners and intervenors Motions
for Reconsideration, we find no cogent reason to disturb our Decision of January 28, 2000. As we have
stated therein, the slander of a person, by any stretch, cannot be considered as falling within the purview
of the immunity granted to ADB officers and personnel. Petitioner argues that the Decision had the effect
of prejudging the criminal case for oral defamation against him. We wish to stress that it did not. What we
merely stated therein is that slander, in general, cannot be considered as an act performed in an official
capacity. The issue of whether or not petitioners utterances constituted oral defamation is still for the trial
court to determine.

Facts:
Two criminal informations for grave oral defamation were filed against Liang, a Chinese national who
was employed as an Economist by the Asian Development Bank (ADB), by his secretary Joyce Cabal,
before the MeTC Mandaluyong City.
The MeTC, acting pursuant to an advice from the DFA that Liang enjoyed immunity from legal processes,
dismissed the criminal informations against him. The RTC Pasig City annulled and set aside the MeTCs
dismissal. Hence, Liang filed a petition for review before the SC which was denied ruling that the
immunity granted to officers and staff of the ADB is not absolute; it is limited to acts performed in an
official capacity. Hence, the present MR.
Issue: WON Liang is immune from suit
Held: No.
Ratio: The Court found no reason to disturb the earlier decision. The slander of a person, by any stretch,
cannot be considered as falling within the purview of the immunity granted to ADB officers and
personnel. The issue of whether or not Liangs utterances constituted oral defamation is still for the trial
court to determine

J. Punos concurring opinion:

Liang contends that a determination of a person's diplomatic immunity by the DFA is a political question.
It is solely within the prerogative of the executive department and is conclusive upon the courts.
Furthermore, the immunity conferred under the ADB Charter and the Headquarters Agreement is
absolute. It is designed to safeguard the autonomy and independence of international organizations
against interference from any authority external to the organizations. It is necessary to allow such
organizations to discharge their entrusted functions effectively. The only exception to this immunity is
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when there is an implied or express waiver or when the immunity is expressly limited by statute. The
exception allegedly has no application to the case at bar.
"It is a recognized principle of international law and under our system of separation of powers that
diplomatic immunity is essentially a political question and courts should refuse to look beyond a
determination by the executive branch of the government, and where the plea of diplomatic immunity is
recognized and affirmed by the executive branch of the government as in the case at bar, it is then the
duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law
officer of the government, the Solicitor General in this case, or other officer acting under his direction.
Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure
and detention of property, as to embarrass the executive arm of the government in conducting foreign
relations, it is accepted doctrine that in such cases the judicial department of the government follows the
action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction."
Liang, a bank official of ADB, is not entitled to diplomatic immunity and hence his immunity is not
absolute. Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is immune from
criminal jurisdiction of the receiving State for all acts, whether private or official, and hence he cannot be
arrested, prosecuted and punished for any offense he may commit, unless his diplomatic immunity is
waived. On the other hand, officials of international organizations enjoy "functional" immunities, that is,
only those necessary for the exercise of the functions of the organization and the fulfillment of its
purposes. This is the reason why the ADB Charter and Headquarters Agreement explicitly grant immunity
from legal process to bank officers and employees only with respect to acts performed by them in their
official capacity, except when the Bank waives immunity. In other words, officials and employees of the
ADB are subject to the jurisdiction of the local courts for their private acts, notwithstanding the absence
of a waiver of immunity.
Liang cannot also seek relief under the mantle of "immunity from every form of legal process" accorded
to ADB as an international organization. The immunity of ADB is absolute whereas the immunity of its
officials and employees is restricted only to official acts. He stands charged of grave slander for allegedly
uttering defamatory remarks against his secretary.
Considering that the immunity accorded to petitioner is limited only to acts performed in his official
capacity, it becomes necessary to make a factual determination of whether or not the defamatory
utterances were made pursuant and in relation to his official functions as a senior economist.

Republic of Indonesia vs. James Vizon

FACTS:
On August 1995, Petitioner, Republic of Indonesia entered into a Maintenance Agreement with
respondent James Vinzon, sole proprietor of Vinzon Trade and Services.
The Maintenance Agreement stated that respondent shall, for a consideration, maintain specified
equipment at the Embassy Main Building, Embassy Annex Building and the Wisma Duta, the official
residence of petitioner Ambassador Soeratmin.
The equipment covered by the Maintenance Agreement are air conditioning units, generator sets,
electrical facilities, water heaters, and water motor pumps. It is likewise stated therein that the agreement
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shall be effective for a period of four years and will renew itself automatically unless cancelled by either
party by giving thirty days prior written notice from the date of expiry.
Petitioners claim that sometime prior to the date of expiration of the said agreement, or before August
1999, they informed respondent that the renewal of the agreement shall be at the discretion of the
incoming Chief of Administration, Minister Counsellor Azhari Kasim, who was expected to arrive in
February 2000. When Minister Counsellor Kasim assumed the position of Chief of Administration in
March 2000,
On August 31 2000, the Indonesian Embassy terminated the agreement in a letter because he allegedly
found respondents work and services unsatisfactory and not in compliance with the standards set in the
Maintenance Agreement.
Petitioners claim, moreover, that they had earlier verbally informed respondent of their decision to
terminate the agreement. On the other hand, respondent claims that the aforesaid termination was
arbitrary and unlawful. Respondent filed a complaint against petitioners (RTC) of Makati.
Petitioners filed a Motion to Dismiss, alleging that the Republic of Indonesia, as a foreign sovereign
State, has sovereign immunity from suit and cannot be sued as a party-defendant in the Philippines.
The said motion further alleged that Ambassador Soeratmin and Minister Counsellor Kasim are
diplomatic agents as defined under the Vienna Convention on Diplomatic Relations and therefore enjoy
diplomatic immunity.
On March 20, 2001, respondent filed, an Opposition to the said motion alleging that the Republic of
Indonesia has expressly waived its immunity from suit. He based this claim upon the following provision
in the Maintenance Agreement.
ISSUE:
1. Whether or not the Republic of Indonesia can be sued.
2. Whether or not the Court of Appeals erred in sustaining the trial courts decision that petitioners
have waived their immunity from suit by using as its basis the abovementioned provision in the
Maintenance Agreement.
3. Whether or not it is an act of jure imperii or jure gestionis?
HELD:
1. No, The Supreme Court on the matter ruled that the republic of Indonesia cannot be deemed to
have waived its immunity to suit. The existence alone of a paragraph in a contract stating that any
legal action arising out of the agreement shall be settled according to the laws of the Philippines
and by a specified court of the Philippines is not necessarily a waiver of sovereign immunity from
suit. The aforesaid provision contains language not necessarily inconsistent with sovereign
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immunity. On the other hand, such provision may also be meant to apply where the sovereign
party elects to sue in the local courts, or otherwise waives its immunity by any subsequent act.
The applicability of Philippine laws must be deemed to include Philippine laws in its totality,
including the principle recognizing sovereign immunity. Hence, the proper court may have no
proper action, by way of settling the case, except to dismiss it.
2. The Supreme Court ruled under International law is founded largely upon the principles of
reciprocity, comity, independence, and equality of States which were adopted as part of the law of
our land under Article II, Section 2 of the 1987 Constitution. The rule that a State may not be
sued without its consent is a necessary consequence of the principles of independence and
equality of States. As enunciated in Sanders v. Veridiano II, [the practical justification for the
doctrine of sovereign immunity is that there can be no legal right against the authority that makes
the law on which the right depends. In the case of foreign States, the rule is derived from the
principle of the sovereign equality of States, as expressed in the maxim par in parem non habet
imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A
contrary attitude would unduly vex the peace of nations.
3.

The rules of International Law, however, are neither unyielding nor impervious to change. The
increasing need of sovereign States to enter into purely commercial activities remotely connected
with the discharge of their governmental functions brought about a new concept of sovereign
immunity. This concept, the restrictive theory, holds that the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii, but not with regard to private acts
or acts jure gestionis.
There is no dispute that the establishment of a diplomatic mission is an act jure imperii. A
sovereign State does not merely establish a diplomatic mission and leave it at that; the
establishment of a diplomatic mission encompasses its maintenance and upkeep. Hence, the State
may enter into contracts with private entities to maintain the premises, furnishings and equipment
of the embassy and the living quarters of its agents and officials. It is therefore clear that
petitioner Republic of Indonesia was acting in pursuit of a sovereign activity when it entered into
a contract with respondent for the upkeep or maintenance of the air conditioning units, generator
sets, electrical facilities, water heaters, and water motor pumps of the Indonesian Embassy and
the official residence of the Indonesian ambassador.
The court states that, for the foregoing reasons, the judgment appealed from must be reversed,
without costs in this instance. Whether the Government intends to make it legally liable for the
amount of damages above set forth, which the plaintiff has sustained by reason of the negligent
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acts of one of its employees, be legislative enactment and by appropriating sufficient funds
therefore, we are not called upon to determine. This matter rests solely with the Legislature and
not with the courts.
Bayan v Zamora
Constitutional Law; Treaties; Section 21, Article VII of the Constitution deals with treaties or
international agreements in general, while Section 25, Article XVIII is a special provision that applies to
treaties which involve the presence of foreign military bases, troops or facilities in the Philippines.
Section 21, Article VII deals with treaties or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject
treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays
down the general rule on treaties or international agreements and applies to any form of treaty with a wide
variety of subject matter, such as, but not limited to, extradition or tax treaties or those economic in
nature. All treaties or international agreements entered into by the Philippines, regardless of subject
matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be
valid and effective. In contrast, Section 25, Article XVIII is a special provision that applies to treaties
which involve the presence of foreign military bases, troops or facilities in the Philippines. Under this
provision, the concurrence of the Senate is only one of the requisites to render compliance with the
constitutional requirements and to consider the agreement binding on the Philippines. Section 25, Article
XVIII further requires that foreign military bases, troops, or facilities may be allowed in the Philippines
only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required by Congress, and recognized as such by the other
contracting state.
Same; Same; Visiting Forces Agreement; Section 25, Article XVIII of the Constitution should apply to the
Visiting Forces Agreement.Undoubtedly, Section 25, Article XVIII, which specifically deals with
treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain
extent and in a limited sense, however, the provisions of Section 21, Article VII will find applicability
with regard to the issue and for the sole purpose of determining the number of votes required to obtain the
valid concurrence of the Senate, as will be further discussed hereunder.
Same; Same; International Law; Executive Agreements; Words and Phrases; The phrase recognized as a
treaty means that the other contracting party accepts or acknowledges the agreement as a treaty.This
Court is of the firm view that the phrase recognized as a treaty means that the other contracting party
accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United
States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to
its Constitution, is to accord strict meaning to the phrase.
International Law; Treaties; Executive Agreements; Visiting Forces Agreement; As long as the VFA
possesses the elements of an agreement under international law, the said agreement is to be taken equally
as a treaty.Moreover, it is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive agreement is as binding as a treaty. To
be sure, as long as the VFA possesses the elements of an agreement under international law, the said
agreement is to be taken equally as a treaty.
Same; Same; Same; Words and Phrases; A treaty, as defined by the Vienna Convention on the Law of
Treaties, is an international instrument concluded between States in written form and governed by
15

international law, whether embodied in a single instrument or in two or more related instruments, and
whatever its particular designation.A treaty, as defined by the Vienna Convention on the Law of
Treaties, is an international instrument concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments, and
whatever its particular designation. There are many other terms used for a treaty or international
agreement, some of which are: act, protocol, agreement, compromis d arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius
onward, have pointed out that the names or titles of international agreements included under the general
term treaty have little or no legal significance. Certain terms are useful, but they furnish little more than
mere description.
Same; Same; Same; In international law, there is no difference between treaties and executive agreements
in their binding effect upon states concerned, as long as the negotiating functionaries have remained
within their powers.Thus, in international law, there is no difference between treaties and executive
agreements in their binding effect upon states concerned, as long as the negotiating functionaries have
remained within their powers. International law continues to make no distinction between treaties and
executive agreements: they are equally binding obligations upon nations.
Same; Same; Same; In this jurisdiction, we have recognized the binding effect of executive agreements
even without the concurrence of the Senate or Congress.In our jurisdiction, we have recognized the
binding effect of executive agreements even without the concurrence of the Senate or Congress. In
Commissioner of Customs vs. Eastern Sea Trading, we had occasion to pronounce: x x x the right of the
Executive to enter into binding agreements without the necessity of subsequent Congressional approval
has been confirmed by long usage. From the earliest days of our history we have entered into executive
agreements covering such subjects as commercial and consular relations, most-favored-nation rights,
patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement
of claims. The validity of these has never been seriously questioned by our courts, x x x x x x x x x
Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval.
FACTS:
The Republic of the Philippines and the United States of America entered into an agreement called the
Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine government
and was ratified by then-President Joseph Estrada with the concurrence of 2/3 of the total membership of
the Philippine Senate.
The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides for the
guidelines to govern such visits, and further defines the rights of the U.S. and the Philippine governments
in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.
Petitioners argued, inter alia, that the VFA violates 25, Article XVIII of the 1987 Constitution, which
provides that foreign military bases, troops, or facilities shall not be allowed in the Philippines except
under a treaty duly concurred in by the Senate and recognized as a treaty by the other contracting State.
ISSUE:
Whether or not the VFA is unconstitutional?
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HELD:
The Court DISMISSED the consolidated petitions, held that the petitioners did not commit grave abuse
of discretion, and sustained the constitutionality of the VFA.
NO, the VFA is not unconstitutional.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the
following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly
concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by
the people in a national referendum; and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence
handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution .
. . the provision in [in 25, Article XVIII] requiring ratification by a majority of the votes cast in a
national referendum being unnecessary since Congress has not required it.
This Court is of the firm view that the phrase recognized as a treaty means that the other contracting
party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United
States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to
its Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary
meaning except where technical terms are employed, in which case the significance thus attached to them
prevails. Its language should be understood in the sense they have in common use.
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement
because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as
the VFA possesses the elements of an agreement under international law, the said agreement is to be taken
equally as a treaty.
The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has
stated that the United States government has fully committed to living up to the terms of the VFA. For as
long as the United States of America accepts or acknowledges the VFA as a treaty, and binds itself further
to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the
Constitution.
Vinuya v Romulo
Same; Same; International Law; Foreign Relations; Certain types of cases often have been found to
present political questions. One such category involves questions of foreign relations. It is wellestablished that [t]he conduct of the foreign relations of our government is committed by the
Constitution to the executive and legislativethe politicaldepartments of the government, and the
propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or
decision.Certain types of cases often have been found to present political questions. One such
category involves questions of foreign relations. It is well-established that [t]he conduct of the foreign
relations of our government is committed by the Constitution to the executive and legislativethe
17

politicaldepartments of the government, and the propriety of what may be done in the exercise of this
political power is not subject to judicial inquiry or decision. The US Supreme Court has further
cautioned that decisions relating to foreign policy are delicate, complex, and involve large elements of
prophecy. They are and should be undertaken only by those directly responsible to the people whose
welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude,
facilities nor responsibility.
Same; Same; Same; Comfort Women; The question whether the Philippine government should espouse
claims of its nationals against a foreign government is a foreign relations matter, the authority for which is
demonstrably committed by our Constitution not to the courts but to the political branches; In this case,
the Executive Department has already decided that it is to the best interest of the country to waive all
claims of its nationals for reparations against Japan in the Treaty of Peace of 1951.To be sure, not all
cases implicating foreign relations present political questions, and courts certainly possess the authority to
construe or invalidate treaties and executive agreements. However, the question whether the Philippine
government should espouse claims of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the
political branches. In this case, the Executive Department has already decided that it is to the best interest
of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of
1951. The wisdom of such decision is not for the courts to question. Neither could petitioners herein
assail the said determination by the Executive Department via the instant petition for certiorari.
Same; Same; Same; Presidency; The US Supreme Court held that [t]he President is the sole organ of the
nation in its external relations, and its sole representative with foreign relations.In the seminal case of
US v. Curtiss-Wright Export Corp., the US Supreme Court held that [t]he President is the sole organ of
the nation in its external relations, and its sole representative with foreign relations.
Same; Same; Same; Same; Comfort Women; The Executive Department has determined that taking up
petitioners cause would be inimical to our countrys foreign policy interests, and could disrupt our
relations with Japan, thereby creating serious implications for stability in this region.The Executive
Department has determined that taking up petitioners cause would be inimical to our countrys foreign
policy interests, and could disrupt our relations with Japan, thereby creating serious implications for
stability in this region. For us to overturn the Executive Departments determination would mean an
assessment of the foreign policy judgments by a coordinate political branch to which authority to make
that judgment has been constitutionally committed.
Same; Same; Same; Same; Same; Not infrequently in affairs between nations, outstanding claims by
nationals of one country against the government of another country are sources of friction between the
two sovereigns; To resolve these difficulties, nations have often entered into agreements settling the
claims of their respective nationals; As one treatise writer puts it, international agreements settling claims
by nationals of one state against the government of another are established international practice
reflecting traditional international theory. This practice of settling claims by means of a peace treaty is
certainly nothing new. For instance, in Dames & Moore v. Regan, the US Supreme Court held: Not
infrequently in affairs between nations, outstanding claims by nationals of one country against the
government of another country are sources of friction between the two sovereigns. United States v.
Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations
have often entered into agreements settling the claims of their respective nationals. As one treatise writer
puts it, international agreements settling claims by nationals of one state against the government of
another are established international practice reflecting traditional international theory. L. Henkin,
Foreign Affairs and the Constitution 262 (1972). Consistent with that principle, the United States has
repeatedly exercised its sovereign authority to settle the claims of its nationals against foreign countries.
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Same; Same; Same; Same; Same; In the international sphere, traditionally, the only means available for
individuals to bring a claim within the international legal system has been when the individual is able to
persuade a government to bring a claim on the individuals behalf.In the international sphere,
traditionally, the only means available for individuals to bring a claim within the international legal
system has been when the individual is able to persuade a government to bring a claim on the individuals
behalf. Even then, it is not the individuals rights that are being asserted, but rather, the states own rights.
Same; Same; Same; Same; Same; The State is the sole judge to decide whether its protection will be
granted, to what extent it is granted, and when will it cease.The State, therefore, is the sole judge to
decide whether its protection will be granted, to what extent it is granted, and when will it cease. It
retains, in this respect, a discretionary power the exercise of which may be determined by considerations
of a political or other nature, unrelated to the particular case.

FACTS:
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with
the SEC for the purpose of providing aid to the victims of rape by Japanese military forces in the
Philippines during the WWII. They claim that they were comfort women at that time and have greatly
suffered because of that. In 1998, they have approached the Executive Department through the DOJ,
DFA, and OSG and requested assistance in filing a claim against the Japanese officials and military
officers who ordered the establishment of the comfort women stations in the Philippines. However, the
officials declined on that ground that the individual claims had already been satisfied by Japans
compliance with the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956
between Japan and the Philippines. The petitioners argue that the general waiver of claims made by the
Philippine government in the Treaty of Peace with Japan is void because the comfort women system
constituted a crime against humanity, sexual slavery, and torture. The same was prohibited under the
jus cogens norms from which no derogation is possible. Thus, such waiver was a breach against the
governments obligation not to afford impunity for crimes against humanity. In addition, they claim that
the Philippine governments acceptance of the apologies made by Japan as well as funds for the AWF
were contrary to international law.
ISSUE:
Whether or not the refusal of the Executive Department to espouse petitioners claims against Japan
valid?
HELD:
Yes, it was valid. It has the exclusive prerogative for such determination. So much so, the Philippines is
not under any international obligation to espouse petitioners claim. Given the extraordinary length of
time that has lapsed between the treatys conclusion, the Executive Department had the ample time
to assess the foreign policy considerations of espousing a claim against Japan, from the standpoint of both
the interests of the petitioners and those of the Republic, and decide on that basis if apologies are
sufficient, and whether further steps are appropriate or necessary. Under international law, the only means
available for individuals to bring a claim within the international legal system has been when the
individual is able to persuade a government to bring a claim on the individuals behalf. When this
19

happens, in the eye of the international tribunal, the State is the sole claimant. Therefore, the State is the
sole judge to decide whether its protection in favor of those petitioners will be granted, to what extent it
is granted, and when will it cease. It is a discretionary power and the exercise of which may be
determined by consideration of a political or other nature. Moreover, in the invocation of jus cogens
norms and erga omnes obligation of the Philippines, the petitioners failed to show that the crimes
committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was
signed, or that the duty to prosecute perpetrators of international crimes in an erga omnes obligation or
has attained the status of jus cogens.

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