LEGAL OPINION

PH MOVE ON RE-IMPOSITION OF DEATH PENALTY,

Is It An Aye or a Nay in International Law?

If we trace back to the roots of Philippine justice, there were only

few accounts of death as a penalty for crimes as it was considered an
extreme punishment. By virtue of RA No. 8177 or otherwise known as
the Act Designating Death by Lethal Injection and RA No. 7659 or the
Death Penalty Law, death penalty was imposed as a punishment for a
crime in the Philippines. 1
However, on June 24, 2006, RA No. 9346 or the Act Prohibiting
the Imposition of Death Penalty in the Philippines was enacted by
Congress. Under this law, the Death Penalty Law and all other laws,
executive orders and decrees, insofar as they impose death penalty
were repealed and/or amended accordingly.2
Twelve years later, President Rodrigo Duterte and some
lawmakers have called for the return of the death penalty as a way to
strengthen the rule of law. As the great and controversial plan that it is,
it immediately attracted the attention of the local media and eventually
of the international community causing debates from all over the world
to spark on whether this undertaking of the Philippine government
violates an international law.
In the view of a law student currently taking up Public
International Law, the re-imposition of death penalty in the Philippines
is not legal as it violates international law.
The Philippines is a party to the International Convention on Civil
and Political Rights (ICCPR) which is an International Treaty that,
among other things, prescribes states to respect and observe
fundamental freedoms. These includes the freedom of expression,
freedom of religion, and freedom from cruel, inhumane or degrading
punishment.3
In an interview with the CNN, Commission oh Human Rights
(CHR) Chairperson Chito Gascon categorically defined death penalty
as a cruel, inhumane and degrading treatment which greatly
contravenes the ICCPR treaty.

1
Republic Act No. 8177, 1996 and Republic Act No.7659, 1993
2
http://cnnphilippines.com/news/2016/08/02/return-of-death-penalty-ph-violates-international-
law.html

3
http://globalnation.inquirer.net/150445/un-ph-will-violate-intl-pact-restores-death-penalty

Page 1 of 32
 It is then noteworthy that the Philippines has also ratified the
ICCPR’s Second Optional Protocol which urges states to abolish the
death penalty and prevents them from carrying out executions.
Now, what is a Second Optional Protocol?
An optional protocol is a supplementary agreement to a treaty.
It is considered optional in the sense that those who ratified the ICCPR
have the option of ratifying the additional agreement. Not all parties
who ratified the ICCPR have ratified its optional protocols.4
Hence, it is wrong to say that those who ratified the optional
protocols may choose to disregard them at anytime they please. If a
state chooses to ratify the optional protocols, it may not disregard their
obligations under the protocol. Both the ICCPR and the Second
Optional Protocol are considered treaties under the International Law
and thus, parties to such agreements are bound to comply with them
in good faith.
And, even though the Second Optional Protocol provides for an
exception on countries who expressed reservations during the time of
ratification or accession of such protocol, the Philippines cannot claim
the exception because it did not make reservations when it ratified the
Second Optional Protocol.5
Considering the foregoing, the Philippines cannot validly re-
impose death penalty as a means of punishment for a crime as it would
violate an international law.

4
http://www.worldcoalition.org/Second-Optional-Protocol-Frequently-Asked-Questions.html

5
Supra note 2

Page 2 of 32
SUMMARY
Jus Cogens Norms in International Law

Jus cogens (or ius cogens) is a latin phrase that literally means
“compelling law.” It designates norms from which no derogation is
permitted by way of particular agreements. It stems from the idea
already known in Roman law that certain legal rules cannot be
contracted out, given the fundamental values they uphold.6

Here are a few examples of jus cogens norms

1. Prohibition on the use of force

The prohibition of the threat of force between States is laid down

in Art. 2 (4) UN Charter, which reads: All Members shall refrain
in their international relations from the threat or use of force
against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the Purposes of
the United Nations.7

2. The Law of Genocide

The Genocide Convention of 1948 (officially the Convention on

the Prevention and Punishment of the Crime of Genocide)
declared that “genocide, whether committed in time of peace or
in time of war, is a crime under international law which they, the
contracting parties, undertake to prevent and to punish.”8

3. Principles of Racial Non-discrimination

Countering racism and eliminating racial discrimination continue

to be at the forefront of the work of the United Nations. Through
the work of the United Nations, international laws have been
developed which require countries to work towards the
elimination of all forms of racial discrimination.9

4. Crimes against Humanity

In the domain of international criminal law, crimes against

humanity are an increasingly useful component of any
6
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e428

7
http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-
0035.xml

8
Id., at 7
9
http://www.racismnoway.com.au/about-racism/australian-legislation-international-law/international-
law-relating-to-racism-and-discrimination/

Page 3 of 32
 international prosecutor’s toolbox, because they can be charged
in connection with acts of violence that do not implicate other
international criminal prohibitions, such as the prohibitions
against war crimes (which require a nexus to an armed conflict)
and genocide (which protects only certain human groups and
requires proof of a specific intent to destroy such a group).10

5. Rules prohibiting trade in slaves or human trafficking

The prohibition of slavery is non-derogable under

comprehensive international and regional human rights treaties,
including the Universal Declaration of Human Rights; the
International Covenant on Civil and Political Rights; the
European Convention for the Protection of Human Rights and
Fundamental Freedoms; and the American Convention on
Human Rights. It also is a preemptory norm of customary
international law and jus cogens as well as a crime against
humanity. Notwithstanding the proliferation of international
treaties prohibiting slavery and the slave-trade, the United
Nations has recently declared that "slavery and slavery-like
practices continue to be among the greatest human rights
challenges facing the international community.11

6. Prohibition on Piracy

Customary international law prohibited piracy and treated pirates

as enemies of human kind. Pirates were considered to have
waged war not just against anyone state but all states.3 As such,
pirates were subject to universal jurisdiction by any state.4 While
the prohibition of piracy could, and was easily stated, the
contours of the prohibition, including definition of pirates, were
not free from controversy. Besides, pirates were not always
universally condemned, but instead were sometimes tolerated
and employed by states for their own selfish interests.12

7. Prohibition on Political terrorism abroad, including terroristic

activities

There is a growing body of international law which is directly

relevant to the fight against terrorism. International law provides
the framework within which national counter-terrorism activities
take place and which allows States to cooperate with each other

10
https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1127&context=annlsurvey

11
Id., at 10
12
https://www.lawteacher.net/free-law-essays/international-law/the-innocent-passage-in-the-un-
convention-international-law-essay.php

Page 4 of 32
 effectively in preventing and combating terrorism. This
framework includes instruments addressing specific aspects of
counter-terrorism alongside other international instruments
designed for international cooperation in criminal law, the
protection of human rights or refugees or the establishment of
the laws of war which provide the broader context within which
counterterrorism activities take place.13

8. Prohibition on recourse to war, except in self defense

The General Treaty for Renunciation of War as an Instrument of

National Policy also known as the Kellogg-Briand Pact after the
French Foreign Minister Aristide Briand (1862–1932) and his US
counterpart, Secretary of State Frank B Kellogg (1856–1937),
was signed at Paris on 27 August 1928. The Pact condemned
‘recourse to war for the solution of international controversies’
and stipulated its renunciation ‘as an instrument of national policy
by the major powers of the world.14

9. Prohibition on Armed aggression

Armed conflicts involving the participation of an armed group are

a phenomenon of remarkable significance in comparison to inter-
state armed conflicts. They occur more frequently and apparently
antedate inter-state armed conflicts in history. International law,
which is anchored in a changing world and intended to regulate
life in a global society, was long uninterested in such conflicts,
essentially because they are governed by the domestic
legislation of states rather than by international law.15

10. Doctrine of Innocent Passage

The term Innocent Passage is defined under international law

referring to a ship or aircraft's right to enter and pass through
another's territory so long as it is not prejudicial to the peace,
good order or security of the other state.16

11. The Rule on War Crimes

The Statute of the International Criminal Court defines war

crimes as, inter alia, “serious violations of the laws and customs

13
Supra Note 9
14
https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule156

15
Id. at 14
16
Supra Note 13

Page 5 of 32
 applicable in international armed conflict” and “serious violations
of the laws and customs applicable in an armed conflict not of an
international character”.17

12. The Rule on Crimes against Humanity

Crimes against humanity were created to protect civilians who

were not protected by the laws of war from attacks against them
by their own state. The origins of crimes against humanity reflect
the desire to protect civilian populations regardless of nationality,
not to criminalize any violent conduct which is not considered a
war crime.18

13. Principle of Pacta Sunt Servanda

The concept known by the Latin formula pacta sunt

servanda(“agreements must be kept”) is arguably the oldest
principle of international law. Without such a rule,
no international agreement would be binding or
enforceable. Pacta sunt servanda is directly referred to in many
international agreements governing treaties, including
the Vienna Convention on the Law of Treaties (1969), which
concerns treaties between states, and the Vienna Convention on
the Law of Treaties Between States and International
Organizations or Between International Organizations (1986).19

14. Principle of Rebus Sic Stantibus

The concept of rebus sic stantibus (Latin: “things standing thus”)

stipulates that, where there has been a fundamental change of
circumstances, a party may withdraw from or terminate the treaty
in question.20

15. Prohibition on methods of mass destruction (including

nuclear weapons) used for other than peaceful purposes

In security and foreign policy analyses, "weapons of mass

destruction" is a term that generally encompasses nuclear,
chemical, and biological weapons, with radiological weapons
occasionally included.21

17
https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule156

18
http://michaelgkarnavas.net/blog/2016/09/12/crimes-against-humanity-part-ii/

19
Supra Note 17
20
Supra Note 17
21
https://www.britannica.com/topic/international-law/International-law-and-municipal-law#ref794916

Page 6 of 32
 16. Prohibition on the contamination of the air, sea or land with
a view to making it harmful or useless to mankind

The 1954 Convention, by concentrating on only one form of

pollution, seems to have established a pattern for dealing with
this problem which was followed by the 1958 Geneva Convention
on the High Seas.24 This convention also did not deal with
pollution generally, but instead affirmed a duty to control
particular types of pollution which, according to the law of the
sea, states already had for all pollution. Thus, it established a
duty for all states to draw up regulations to prevent pollution of
the seas by the discharge of oil from ships or pipelines22

17. Prohibition on hostile modification of weather

In August 1975, the chief representatives of the U.S. and the

Soviet delegations to the Conference of the Committee on
Disarmament (CCD) tabled, in parallel, identical draft texts of a
"Convention on the Prohibition of Military or any Other Hostile
Use of Environmental Modification Techniques."

The Convention defines environmental modification techniques

as changing -- through the deliberate manipulation of natural
processes -- the dynamics, composition or structure of the earth,
including its biota, lithosphere, hydro-sphere, and atmosphere,
or of outer space. Changes in weather or climate patterns, in
ocean currents, or in the state of the ozone layer or ionosphere,
or an upset in the ecological balance of a region are some of the
effects which might result from the use of environmental
modification techniques.23

18. Appropriation of the outer space and/or other celestial

bodies

The Outer Space Treaty was considered by the Legal

Subcommittee in 1966 and agreement was reached in the
General Assembly in the same year (resolution 2222 (XXI)). The
Treaty was largely based on the Declaration of Legal Principles
Governing the Activities of States in the Exploration and Use of
Outer Space, which had been adopted by the General Assembly
in its resolution 1962 (XVIII) in 1963 but added a few new
provisions.24

19. Doctrine of State Responsibility

22
Id., at 21
23
Supra Note 13
24
Supra Note 13

Page 7 of 32
 One of the fundamental principles of international law provides
that any state that violates its international obligations must be
held accountable for its actions. More concretely, according to
the notion of state responsibility, states that do not respect their
international duties are obliged to immediately stop their illegal
actions and make reparations to the injured parties. The principle
of state responsibility forms part of international customary law
and is binding upon all states.25

20. Prohibition of economic warfare with the purpose of upsetting:

A. The world’s banking systems
B. The world’s currencies
C. The world’s supply of energy
D. The world’s food supply

Economic warfare, the use of, or the threat to use, economic means
against a country in order to weaken its economy and thereby reduce
its political and military power. Economic warfare also includes the use
of economic means to compel an adversary to change its policies or
behavior or to undermine its ability to conduct normal relations with
other countries. Some common means of economic warfare are
trade embargoes, boycotts, sanctions, tariff discrimination, the
freezing of capital assets, and the suspension of aid, the prohibition of
investment and other capital flows, and expropriation.26

25
https://www.diakonia.se/en/IHL/The-Law/International-Law1/Enforcement-of-IL/

26
https://www.britannica.com/topic/economic-warfare

Page 8 of 32
CASE DIGEST

PCA Case Nº 2013-19

IN THE MATTER OF THE SOUTH CHINA SEA ARBITRATION

- before –

AN ARBITRAL TRIBUNAL CONSTITUTED UNDER ANNEX VII TO

THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE
SEA

- between –

THE REPUBLIC OF THE PHILIPPINES

- and –

THE PEOPLE’S REPUBLIC OF CHINA

FACTS:

The Republic of the Philippines(Philippines) instituted an arbitration

case against the People’s Republic of China(China) under the 1982
United Nations Convention on the Law of the Sea(Convention or
UNCLOS) since both parties have ratified the Convention. However,
China has consistently stated its view on the lack of jurisdiction of the
Tribunal on the matter.

The arbitration concerns disputed between the parties regarding the

legal basis of maritime rights and entitlements in the South China Sea,
the status of certain geographic features in the South China Sea, and
the lawfulness of certain actions taken by China in the South China
Sea.

ISSUE:

Whether or not Spratly Islands is capable of generating extended

maritime zones.

RULING:

The Tribunal first undertook an evaluation of whether certain reefs

claimed by China are above water at high tide. Features that are above
water at high tide generate an entitlement to at least a 12 nautical mile
territorial sea, whereas features that are submerged at high tide do not.

Page 9 of 32
The Tribunal noted that the reefs have been heavily modified by land
reclamation and construction, recalled that the Convention classifies
features on their natural condition, and relied on historical materials in
evaluating the features.
The Tribunal then considered whether any of the features claimed by
China could generate maritime zones beyond 12 nautical miles. Under
the Convention, islands generate an exclusive economic zone of 200
nautical miles and a continental shelf, but “rocks which cannot sustain
human habitation or economic life of their own shall have no exclusive
economic zone or continental shelf.”

The Tribunal concluded that this provision depends upon the objective
capacity of a feature, in its natural condition, to sustain either a stable
community of people or economic activity that is not dependent on
outside resources or purely extractive in nature.

The Tribunal noted that the current presence of official personnel on

many of the features is dependent on outside support and not reflective
of the capacity of the features.

The Tribunal found historical evidence to be more relevant and noted

that the Spratly Islands were historically used by small groups of
fishermen and that several Japanese fishing and guano mining
enterprises were attempted.

The Tribunal concluded that such transient use does not constitute
inhabitation by a stable community and that all of the historical
economic activity had been extractive.

Accordingly, the Tribunal concluded that none of the Spratly Islands is

capable of generating extended maritime zones. The Tribunal also
held that the Spratly Islands cannot generate maritime zones
collectively as a unit.

Having found that none of the features claimed by China was capable
of generating an exclusive economic zone, the Tribunal found that it
could—without delimiting a boundary—declare that certain sea areas
are within the exclusive economic zone of the Philippines, because
those areas are not overlapped by any possible entitlement of China.

Page 10 of 32
PRIMER

ASEAN Treaties Basic Principles

The ASEAN Declaration states that the aims and purposes of the
Association are:27

(1) to accelerate the economic growth, social progress and

cultural development in the region through joint endeavors
in the spirit of equality and partnership in order to strengthen
the foundation for a prosperous and peaceful community of
Southeast Asian nations, and

(2) to promote regional peace and stability through abiding

respect for justice and the rule of law in the relationship
among countries in the region and adherence to the
principles of the United Nations Charter. In 1995, the
ASEAN Heads of State and Government re-affirmed that
“Cooperative peace and shared prosperity shall be the
fundamental goals of ASEAN.”

In their relations with one another, the ASEAN Member States have
adopted the following fundamental principles, as contained in
the Treaty of Amity and Cooperation in Southeast Asia (TAC) of
1976:28

1. Mutual respect for the independence, sovereignty, equality,

territorial integrity, and national identity of all nations;

2. The right of every State to lead its national existence free from
external interference, subversion or coercion;

3. Non-interference in the internal affairs of one another;

4. Settlement of differences or disputes by peaceful manner;

5. Renunciation of the threat or use of force; and

6. Effective cooperation among themselves.

27
http://www.nti.org/learn/treaties-and-regimes/association-southeast-asian-nations-asean/

28
Id., at 27

Page 11 of 32
SUMMARY

STATUTE OF ROME PRINCIPLES

INTERNATIONAL CRIMINAL COURT

Nullum crimen sine lege

1. A person shall not be criminally responsible under this Statute

unless the conduct in question constitutes, at the time it takes
place, a crime within the jurisdiction of the Court.

2. The definition of a crime shall be strictly construed and shall not

be extended by analogy. In case of ambiguity, the definition shall
be interpreted in favor of the person being investigated,
prosecuted or convicted.

3. This article shall not affect the characterization of any conduct as

criminal under international law independently of this Statute.

Nulla poena sine lege

A person convicted by the Court may be punished only in accordance

with this Statute.

Non-retroactivity ratione personae

1. No person shall be criminally responsible under this Statute for

conduct prior to the entry into force of the Statute.

2. In the event of a change in the law applicable to a given case

prior to a final judgement, the law more favorable to the person
being investigated, prosecuted or convicted shall apply.

Individual criminal responsibility

1. The Court shall have jurisdiction over natural persons pursuant

to this Statute.
2. A person who commits a crime within the jurisdiction of the Court
shall be individually responsible and liable for punishment in
accordance with this Statute.
3. In accordance with this Statute, a person shall be criminally
responsible and liable for punishment for a crime within the
jurisdiction of the Court if that person:

Page 12 of 32
 a. Commits such a crime, whether as an individual, jointly
with another or through another person, regardless of
whether that other person is criminally responsible;
b. Orders, solicits or induces the commission of such a crime
which in fact occurs or is attempted;
c. For the purpose of facilitating the commission of such a
crime, aids, abets or otherwise assists in its commission or
its attempted commission, including providing the means
for its commission;

d. In any other way contributes to the commission or

attempted commission of such a crime by a group of
persons acting with a common purpose.

Such contribution shall be intentional and shall either: (i) Be made with
the aim of furthering the criminal activity or criminal purpose of the
group, where such activity or purpose involves the commission of a
crime within the jurisdiction of the Court; or (ii) Be made in the
knowledge of the intention of the group to commit the crime; (e) In
respect of the crime of genocide, directly and publicly incites others to
commit genocide; (f) Attempts to commit such a crime by taking action
that commences its execution by means of a substantial step, but the
crime does not occur because of circumstances independent of the
person's intentions.

However, a person who abandons the effort to commit the crime or

otherwise prevents the completion of the crime shall not be liable for
punishment under this Statute for the attempt to commit that crime if
that person completely and voluntarily gave up the criminal purpose.

4. No provision in this Statute relating to individual criminal

responsibility shall affect the responsibility of States under
international law.

Exclusion of jurisdiction over persons under eighteen

The Court shall have no jurisdiction over any person who was under
the age of 18 at the time of the alleged commission of a crime.

Irrelevance of official capacity

1. This Statute shall apply equally to all persons without any

distinction based on official capacity. In particular, official
capacity as a Head of State or Government, a member of a
Government or parliament, an elected representative or a
government official shall in no case exempt a person from

Page 13 of 32
 criminal responsibility under this Statute, nor shall it, in and of
itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the

official capacity of a person, whether under national or
international law, shall not bar the Court from exercising its
jurisdiction over such a person.

Responsibility of commanders and other superiors

In addition to other grounds of criminal responsibility under this Statute

for crimes within the jurisdiction of the Court:

(a) A military commander or person effectively acting as a military

commander shall be criminally responsible for crimes within the
jurisdiction of the Court committed by forces under his or her effective
command and control, or effective authority and control as the case
may be, as a result of his or her failure to exercise control properly over
such forces, where:
(i) That military commander or person either knew or,
owing to the circumstances at the time, should have known
that the forces were committing or about to commit such
crimes; and
(ii) That military commander or person failed to take all
necessary and reasonable measures within his or her
power to prevent or repress their commission or to submit
the matter to the competent authorities for investigation
and prosecution.
(b) With respect to superior and subordinate relationships not
described in paragraph (a), a superior shall be criminally responsible
for crimes within the jurisdiction of the Court committed by
subordinates under his or her effective authority and control, as a result
of his or her failure to exercise control properly over such subordinates,
where:
(i) The superior either knew, or consciously disregarded
information which clearly indicated, that the subordinates were
committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the

effective responsibility and control of the superior; and

(iii) The superior failed to take all necessary and

reasonable measures within his or her power to prevent or
repress their commission or to submit the matter to the
competent authorities for investigation and prosecution.

Non-applicability of statute of limitations

Page 14 of 32
The crimes within the jurisdiction of the Court shall not be subject to
any statute of limitations.

Mental element

1. Unless otherwise provided, a person shall be criminally responsible

and liable for punishment for a crime within the jurisdiction of the Court
only if the material elements are committed with intent and knowledge.

2. For the purposes of this article, a person has intent where: (a) In
relation to conduct, that person means to engage in the conduct; (b) In
relation to a consequence, that person means to cause that
consequence or is aware that it will occur in the ordinary course of
events.

3. For the purposes of this article, ‘knowledge’ means awareness that

a circumstance exists or a consequence will occur in the ordinary
course of events. ‘Know’ and ‘knowingly’ shall be construed
accordingly

Grounds for excluding criminal responsibility

1. In addition to other grounds for excluding criminal responsibility

provided for in this Statute, a person shall not be criminally responsible
if, at the time of that person's conduct:
(a) The person suffers from a mental disease or defect that
destroys that person's capacity to appreciate the unlawfulness or
nature of his or her conduct, or capacity to control his or her conduct
to conform to the requirements of law;
(b) The person is in a state of intoxication that destroys that
person's capacity to appreciate the unlawfulness or nature of his or her
conduct, or capacity to control his or her conduct to conform to the
requirements of law, unless the person has become voluntarily
intoxicated under such circumstances that the person knew, or
disregarded the risk, that, as a result of the intoxication, he or she was
likely to engage in conduct constituting a crime within the jurisdiction
of the Court;
(c) The person acts reasonably to defend himself or herself or
another person or, in the case of war crimes, property which is
essential for the survival of the person or another person or property
which is essential for accomplishing a military mission, against an
imminent and unlawful use of force in a manner proportionate to the
degree of danger to the person or the other person or property
protected. The fact that the person was involved in a defensive
operation conducted by forces shall not in itself constitute a ground for
excluding criminal responsibility under this subparagraph;
Page 15 of 32
 (d) The conduct which is alleged to constitute a crime within the
jurisdiction of the Court has been caused by duress resulting from a
threat of imminent death or of continuing or imminent serious bodily
harm against that person or another person, and the person acts
necessarily and reasonably to avoid this threat, provided that the
person does not intend to cause a greater harm than the one sought
to be avoided. Such a threat may either be:

(i) Made by other persons; or

(ii) Constituted by other circumstances beyond that

person's control.

2. The Court shall determine the applicability of the grounds for

excluding criminal responsibility provided for in this Statute to the case
before it.

3. At trial, the Court may consider a ground for excluding criminal

responsibility other than those referred to in paragraph 1 where such a
ground is derived from applicable law as set forth in article 21. The
procedures relating to the consideration of such a ground shall be
provided for in the Rules of Procedure and Evidence.

Source:

https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-
0a655eb30e16/0/rome_statute_english.pdf

Page 16 of 32
INTERNATIONAL ISSUE

UNITED STATES WILL IMPOSE TARIFFS ON 1,300 CHINESE

PRODUCTS

The United States through the White House made a statement

last March 2018 that it will place a 25 percent tariff on Chinese products
like flat screen televisions, medical devices, aircraft parts and batteries,
outlining more than 1,300 imported goods that will soon face levies as
part of a sweeping trade measure aimed at penalizing China for its
trade practices.

The move which stems from a White House investigation into

China’s use of pressure, intimidation and theft to obtain American
technologies, is likely to inflame an already simmering trade war
between these countries. On the same month after such advisory was
released by the White House, the Chinese embassy in the United
States said it would slap tariffs on 128 American products in response
to a separate White House plan to tax steel and aluminum from China
and other countries.

The products targeted by the White House are part of its plan to
go after China’s dominance in cutting-edge technologies like semi-
conductors, electric vehicles and advanced medical products –
industries that China is pursuing dominance in as part of an industrial
plan known as “Made in China 2025”.

This bold move and declaration by the United States was

condemned by China calling it “unrealistic” and that such a
protectionist action has gravely violated fundamental principles and
values of the World Trade Organization. Further, China has expressed
that they would resort to “measures of equal scale and strength against
US products in accordance with Chinese Law”.

This act of the United States may have just opened a possibility
of a trade war between the world’s two largest economies not to
mention the economic harm it could cause. It cannot be denied that the
United States and China are one of the major key players in the
economy. It cannot also be denied that China has been receiving
benefits of global trade while continuing to break international trade
rules imposed by the World Trade Organization.

The United States may bring their concerns against the unfair
trade practices of China before the World Trade Organization and
make the latter accountable for it. However, it must be noted that it has
been proven over time and on several cases that China will not respect
and abide on any decision by an international body that does not favor
them. Hence, the United States must have a long-term plan on
Page 17 of 32
restraining China from perpetrating the international market with
counterfeited products with confusing brand names at exceptionally
low prices rather than just imposing tariffs because it will just back fire
at the economy of the United States in the long run.

As of the moment, many countries, including those considered

as giants in the economy such as Russia have already expressed
clearly that if they’re hit with tariffs, they intend to hit back and surely,
a trade war is the last thing that the international community wants now.

Source:

https://www.nytimes.com/2018/04/03/us/politics/white-house-chinese-
imports-tariffs.html
Page 18 of 32
CASE DIGEST

MARY GRACE NATIVIDAD S POE- LLAMANZARES vs.

COMELEC,et al.
GR Nos. 221697 , GR No. 221698-700
March 8,2016

FACTS:
In her COC for Presidency on the May 2016 elections, Grace Poe
declared that she is a natural-born citizen of the Philippines and that
her residence up to day before May 9, 2016 would be 10 years and 11
months counted from May 24, 2005.

Grace Poe was born in 1968., found as newborn infant in

Jaro,Iloilo and was legally adopted by RONALD ALLAN KELLY POE
(FPJ) and JESUS SONORA POE (SUSAN ROCES) in 1974. She
immigrated to the US in 1991 after her marriage to Theodore
Llamanzares who was then based at the US. Grace Poe then became
a naturalized American citizen in 2001.

On December 2004, he returned to the Philippines due to his

father’s deteriorating medical condition, who then eventually demise
on February 3,2005. She then quitted her job in the US to be with her
grieving mother and finally went home for good to the Philippines
on May 24, 2005.

On July 18, 2006, the BI granted her petition declaring that she
had reacquired her Filipino citizenship under RA 9225. She registered
as a voter and obtained a new Philippine Passport.

In 2010, before assuming her post as appointees Chairperson of

the MTRCB , she renounced her American citizenship to satisfy the RA
9225 requirements as to Reacquisition of Filipino Citizenship. From
then on, she stopped using her American passport.

Petitions were filed before the COMELEC to deny or cancel her

candidacy on the ground particularly among others, that she cannot be
considered a natural born Filipino citizen since she was a FOUNDLING
and that her biological parents cannot be proved as Filipinos. The
Comelec en banc cancelled her candidacy on the ground that she is in
want of citizenship and residence requirements and that she
committed misrepresentation in her COC.

Page 19 of 32
ISSUES:

(1) Whether or not Grace Poe- Llamanzares is a natural- born Filipino

citizen

HELD:
YES. GRACE POE is considerably a natural-born Filipino Citizen. For
that, she satisfied the constitutional requirement that only natural-born
Filipinos may run for Presidency.

(1) there is high probability that Poe’s parents are Filipinos, as being
shown in her physical features which are typical of Filipinos,
aside from the fact that she was found as an infant in Jaro, Iloilo,
a municipality wherein there is 99% probability that residents
there are Filipinos, consequently providing 99% chance that
Poe’s biological parents are Filipinos. Said probability and
circumstantial evidence are admissible under Rule 128, Sec 4
of the Rules on Evidence.

(2) The SC pronounced that FOUNDLINGS are as a class, natural

born- citizens as based on the deliberations of the 1935
Constitutional Convention, wherein though its enumeration is
silent as to foundlings, there is no restrictive language either to
definitely exclude the foundlings to be natural born citizens.

(3) That Foundlings are automatically conferred with the natural-

born citizenship as to the country where they are being found,
as covered and supported by the UN Convention Law.

Page 20 of 32
REACTION

The Enhanced Defense Cooperation Agreement (EDCA)

GR No. 212426, 2016-07-26

RENE A.V. SAGUISAG VS.

EXECUTIVE SECRETARY PAQUITO N. OCHOA

FACTS: The Enhanced Defense Cooperation Agreement (EDCA) is

an executive agreement that gives U.S. troops, planes and ships
increased rotational presence in Philippine military bases and allows
the U.S. to build facilities to store fuel and equipment there. It was
signed against the backdrop of the Philippines' maritime dispute with
China over the West Philippine Sea.

The US embassy and DFA exchanged diplomatic notes confirming all

necessary requirements for the agreement to take force. The
agreement was signed on April 2014. President Benigno Aquino III
ratified the same on June 2014. It was not submitted to Congress on
the understanding that to do so was no longer necessary.

Petitions for Certiorari were filed before the Supreme Court assailing
the constitutionality of the agreement. Herein petitioners now contend
that it should have been concurred by the senate as it is not an
executive agreement. The Senate issued Senate Resolution No. 105
expressing a strong sense that in order for EDCA to be valid and
binding, it must first be transmitted to the Senate for deliberation and
concurrence.

ISSUE: Whether or not the EDCA between the Philippines and the
U.S. is constitutional.

RULING: YES. The EDCA is an executive agreement and does not

need the Senate's concurrence. As an executive agreement, it remains
consistent with existing laws and treaties that it purports to implement.

Petitioners contend that the EDCA must be in the form of a treaty duly
concurred by Senate. They hinge their argument under the following
Constitutional provisions:
 Sec. 21, Art. VII: “No treaty or international agreement shall be
valid and effective unless concurred in by at least 2/3rds of all
the Members of the Senate.”
 Section 25, Article XVIII: “ xxx Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate xxx ”

Page 21 of 32
The President, however, may enter into an executive agreement on
foreign military bases, troops, or facilities, if (a) it is not the instrument
that allows the presence of foreign military bases, troops, or facilities;
or (b) it merely aims to implement an existing law or treaty

In Commissioner of Customs v. Eastern Sea Trading: Executive

Agreements are defined as international agreements
embodying adjustments of detail carrying out well-established national
policies and traditions and those involving arrangements of a more or
less temporary nature.

Treaties are formal documents which require ratification with

the approval of two-thirds of the Senate. The right of the Executive to
enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage.

The Visiting Forces Agreement – a treaty ratified by the Senate in 1999

– already allowed the return of US troops. EDCA is consistent with the
content, purpose, and framework of the Mutual Defense Treaty and the
VFA. The practice of resorting to executive agreements in adjusting
the details of a law or a treaty that already deals with the presence of
foreign military forces is not at all unusual in this jurisdiction.

In order to keep the peace in its archipelago and to sustain itself at the
same time against the destructive forces of nature, the Philippines will
need friends. Who they are, and what form the friendships will take,
are for the President to decide. The only restriction is what the
Constitution itself expressly prohibits. EDCA is not constitutionally
infirm. As an executive agreement, it remains consistent with existing
laws and treaties that it purports to implement.

Petition is DISMISSED.

Reaction:

The Enhanced Defense Cooperation Agreement (EDCA) is

viewed as an answer to China’s aggressive behavior in claiming
territories. However, it can also increase the risk of war with China and
the Filipinos will be the victims rather than the Americans or other
nations.29

The Supreme Court’s ruling on declaring EDCA as an executive

agreement and thus excluding the senate from participating on the
same is inconsistent with Article XVIII, Section 25 of the Constitution,
which provides: “After the expiration in 1991 of the Agreement between
29
http://www.getrealphilippines.com/blog/2014/04/enhanced-defense-cooperation-agreement-edca-
why-america-is-not-the-enemy/

Page 22 of 32
the Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops or facilities
shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when Congress so requires, ratified
by the majority of the votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by the other
contracting State.”30

Hence, to evade such requisite provided under the Constitution,

the Supreme Court ruled the EDCA to be an executive Agreement and
not a treaty and thereby declaring the same constitutional.

In principle, the fact that EDCA is but an “executive agreement”

means the current President, if he is so minded, could abrogate it.31
But that would presuppose a total reversal of the country’s foreign
policy and national security orientation vis-a-vis the United States. This
will definitely lead to another crisis in the future.

This case therefore creates a precedent on future agreement and

treaties entered into by the President and how it should be treated
which, in some cases can be detrimental to the interest of the
Philippines.

30
http://cnnphilippines.com/news/2016/01/13/no-constitutional-crisis-over-edca-ruling-experts.html

31
http://newsinfo.inquirer.net/597859/what-is-the-enhanced-defense-cooperation-agreement-and-
what-does-it-mean-for-ph

Page 23 of 32
SUMMARY

THE FOUR (4) GENEVA CONVENTIONS

The Geneva Conventions of 1949 and Their Additional Protocols In

1949, an international conference of diplomats built on the earlier
treaties for the protection of war victims, revising and updating them
into four new conventions comprising 429 articles of law—known as
the Geneva Conventions of August 12, 1949. The Additional Protocols
of 1977 and 2005 supplement the Geneva Conventions.

The Geneva Conventions apply in all cases of declared war, or in any

other armed conflict between nations. They also apply in cases where
a nation is partially or totally occupied by soldiers of another nation,
even when there is no armed resistance to that occupation.

Nations that ratify the Geneva Conventions must abide by certain

humanitarian principles and impose legal sanctions against those who
violate them. Ratifying nations must “enact any legislation necessary
to provide effective penal sanctions for persons committing or ordering
to be committed any of the grave breaches (violations)” of the
Conventions.

The First Geneva Convention

The Geneva Convention for the Amelioration of the Condition of the

Wounded and Sick in Armed Forces in the Field of August 12, 1949.

The First Geneva Convention protects soldiers who are hors de

combat (out of the battle). The 10 articles of the original 1864 version
of the Convention have been expanded in the First Geneva Convention
of 1949 to 64 articles that protect the following:

• Wounded and sick soldiers

• Medical personnel, facilities and equipment
• Wounded and sick civilian support personnel
accompanying the armed forces
• Military chaplains
• Civilians who spontaneously take up arms to repel an
invasion

Specific provisions include:

Art. 9 This Convention, like the others, recognizes the right of the
ICRC to assist the wounded and sick. Red Cross and Red Crescent
national societies, other authorized impartial relief organizations and
neutral governments may also provide humanitarian service. Local
civilians may be asked to care for the wounded and sick.
Page 24 of 32
 Art. 12 The wounded and sick shall be respected and protected
without discrimination on the basis of sex, race, nationality, religion,
political beliefs or other criteria.

Art. 12 The wounded and sick shall not be murdered,

exterminated or subjected to torture or biological experiments.

Art. 15 The wounded and sick shall receive adequate care.

Art. 15 The wounded and sick shall be protected against pillage

and ill treatment.

Arts. 15-16 All parties in a conflict must search for and collect the
wounded and sick, especially after battle, and provide the information
concerning them to the Central Tracing and Protection Agency of the
International Committee of the Red Cross (ICRC).

The Second Geneva Convention

The Geneva Convention for the Amelioration of the Condition of

Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of
August 12, 1949.

The Second Geneva Convention adapts the protections of the First

Geneva Convention to reflect conditions at sea. It protects wounded
and sick combatants while on board ship or at sea. Its 63 articles apply
to the following:

• Armed forces members who arewounded, sick or

shipwrecked
• Hospital ships and medical personnel
• Civilians who accompany the armed forces

Specific provisions include:

Arts. 12, 18 This Convention mandates that parties in battle take

all possible measures to search for, collect and care for the wounded,
sick and shipwrecked. “Shipwrecked” refers to anyone who is adrift for
any reason, including those forced to land at sea or to parachute from
damaged aircraft.

Art. 14 While a warship cannot capture a hospital ship’s medical

staff, it can hold the wounded, sick and shipwrecked as prisoners of
war, providing they can be safely moved and that the warship has the
facilities to care for them.

Art. 14 While a warship cannot capture a hospital ship’s medical

staff, it can hold the wounded, sick and shipwrecked as prisoners of
Page 25 of 32
war, providing they can be safely moved and that the warship has the
facilities to care for them.

Art. 21 Appeals can be made to neutral vessels, including

merchant ships and yachts, to help collect and care for the wounded,
sick and shipwrecked. Those who agree to help cannot be captured as
long as they remain neutral.

Art. 22 Hospital ships cannot be used for any military purpose.

They cannot be attacked or captured. The names and descriptions of
hospital ships must be conveyed to all parties in the conflict.

Arts. 36-37 Religious, medical and hospital personnel serving on

combat ships must be respected and protected. If captured, they are
to be sent back to their side as soon as possible.

The Third Geneva Convention

The Geneva Convention Relative to the Treatment of Prisoners of War

of August 12, 1949 The Third Geneva Convention sets out specific
rules for the treatment of prisoners of war (POWs).

The Convention’s 143 articles require that POWs be treated humanely,

adequately housed and receive sufficient food, clothing and medical
care. Its provisions also establish guidelines on labor, discipline,
recreation and criminal trial. Note that prisoners of war may include the
following:

• Members of the armed forces

• Volunteer militia, including resistance movements
• Civilians accompanying the armed forces.

Specific provisions include:

Arts. 13-14, 16 Prisoners of war must not be subjected to torture

or medical experimentation and must be protected against acts of
violence, insults and public curiosity.

Art. 17 POWs are required to provide to their captors only their

name, rank, date of birth and military service number.

Art. 23 Female POWs must be treated with the regard due their
sex.

Arts. 25-27, 30 Captors must not engage in any reprisals or

discriminate on the basis of race, nationality, religious beliefs, political
opinions or other criteria.

Page 26 of 32
 Arts. 50, 54 POWs must be housed in clean, adequate shelter,
and receive the food, clothing and medical care necessary to maintain
good health. They must not be held in combat areas where they are
exposed to fire, nor can they be used to “shield” areas from military
operations. They may be required to do nonmilitary jobs under
reasonable working conditions when paid at a fair rate.

Arts. 70-72, 123 Names of prisoners of war must be sent

immediately to the Central Tracing Agency of the ICRC. POWs are to
be allowed to correspond with their families and receive relief
packages.

Arts. 82, 84 Prisoners are subject to the laws of their captors and
can be tried by their captors’ courts. The captor shall ensure fairness,
impartiality and a competent advocate for the prisoner.

Arts. 109, 110 Seriously ill POWs must be repatriated (returned

home).

Art. 118 When the conflict ends, all POWs shall be released and,
if they request, be sent home without delay.

Art. 125 The ICRC is granted special rights to carry out

humanitarian activities on behalf of prisoners of war. The ICRC or other
impartial humanitarian relief organizations authorized by parties to the
conflict must be permitted to visit with prisoners privately, examine
conditions of confinement to ensure the Conventions’ standards are
being met and distribute relief supplies.

The Fourth Geneva Convention

The Geneva Convention Relative to the Protection of Civilian Persons

in Time of War of August 12, 1949 Civilians in areas of armed conflict
and occupied territories are protected by the 159 articles of the Fourth
Geneva Convention.

Specific provisions include:

Arts. 13, 32 Civilians are to be protected from murder, torture or

brutality, and from discrimination on the basis of race, nationality,
religion or political opinion.

Art. 14 Hospital and safety zones may be established for the

wounded, sick, and aged, children under 15, expectant mothers and
mothers of children under seven.

Art. 18 Civilian hospitals and their staff are to be protected.

Page 27 of 32
 Arts. 24, 25 This Convention provides for the care of children who
are orphaned or separated from their families. The ICRC’s Central
Tracing and Protection Agency is also authorized to transmit family
news and assist with family reunifications, with the help of Red Cross
and Red Crescent national societies.

Art. 27 The safety, honor, family rights, religious practices,

manners and customs of civilians are to be respected.

Arts. 33-34 Pillage, reprisals, indiscriminate destruction of

property and the taking of hostages are prohibited.

Arts. 33, 49 They are not to be subjected to collective punishment

or deportation.

Art. 40 Civilians cannot be forced to do military-related work for

an occupying force.

Art. 54 They are to be paid fairly for any assigned work.

Art. 55 Occupying powers are to provide food and medical

supplies as necessary to the population and maintain medical and
public health facilities.

Arts. 55, 58 Medical supplies and objects used for religious

worship are to be allowed passage.

Art. 59 When that is not possible, they are to facilitate relief

shipments by impartial humanitarian organizations such as the ICRC.
Red Cross or other impartial humanitarian relief organizations
authorized by the parties to the conflict are to be allowed to continue
their activities.

Art. 64 Public officials will be permitted to continue their duties.

Laws of the occupied territory will remain in force unless they present
a security threat.

Arts. 79-135 If security allows, civilians must be permitted to lead

normal lives. They are not to be deported or interned—except for
imperative reasons of security. If internment is necessary, conditions
should be at least comparable to those set forth for prisoners of war.

Arts. 89-91 Internees are to receive adequate food, clothing and

medical care, and protected from the dangers of war.

Art. 106 Information about internees is to be sent to the Central Tracing

Agency.

Page 28 of 32
 Arts. 108, 107 Internees have the right to send and receive mail
and receive relief shipments.

Art. 132 Children, pregnant women, mothers with infants and

young children, the wounded and sick and those who have been
interned for a long time are to be released as soon as possible.

Source:

https://www.redcross.org/images/MEDIA_CustomProductCatalog/m3
640104_IHL_SummaryGenevaConv.pdf
Page 29 of 32
REACTION

What is Paris Climate Agreement and how will it affect

me as a Filipino?

The Paris Climate Agreement unites all the world's nations in a single
agreement on tackling climate change for the first time in history.
Coming to a consensus of among nearly 200 countries on the need to
cut greenhouse gas emissions is regarded by many observers as an
achievement in itself and has been hailed as "historic".

The Kyoto Protocol of 1997 set emission cutting targets for a handful
of developed countries, but the US pulled out and others failed to
comply. However, scientists point out that the Paris accord must be
stepped up if it is to have any chance of curbing dangerous climate
change. Pledges thus far could see global temperatures rise by as
much as 2.7C, but the agreement lays out a roadmap for speeding up
progress.32

What are the key elements?

1. To keep global temperatures "well below" 2.0C (3.6F) above pre-

industrial times and "endeavor to limit" them even more, to 1.5C
1. To limit the amount of greenhouse gases emitted by human
activity to the same levels that trees, soil and oceans can absorb
naturally, beginning at some point between 2050 and 2100
2. To review each country's contribution to cutting emissions every
five years so they scale up to the challenge
 For rich countries to help poorer nations by providing "climate
finance" to adapt to climate change and switch to renewable
energy.

It would seem like a good deal but how will this agreement affect me
as a Filipino?

The Paris Agreement’s main focus is to lessen the country’s

carbon emission to 70% by 2030. By pushing the use of renewable
energy such as solar energy, and limiting the use of coal, the country
will be able meet this goal in no time.33
Hence, the more the Philippines focus in the usage of green
energy, the more projects will be added. Then, greener projects opens,
and once that happens, there will be more jobs that Filipinos can land

32
http://www.bbc.com/news/science-environment-35073297

33
https://www.theguardian.com/environment/2015/dec/12/paris-climate-deal-200-nations-sign-finish-
fossil-fuel-era

Page 30 of 32
on. This will be very beneficial on the part of the Filipinos who are still
struggling on looking for a stable job in order to support their family.

This endeavor is like hitting two birds with one stone where both
of its effects are favorable to my fellow Filipinos. While the Philippines
is tackling the problems of the climate change and embracing the
energy revolution, the country is also boosting its economic growth
especially in vulnerable areas suffering from not just economic poverty
but with those of energy poverty as well.

However, this goal has certain limitations. One of which is lack of

cooperation from other Filipinos and other individuals from around the
globe who are not so concerned about this changing climate because
they are so busy ruining our environment.

Most of us know that the Philippines is one of the most disaster-

hit countries in the world. Typhoon Haiyan, which struck in 2013,
became a poster child for climate change impacts resulting from
increasingly extreme weather events. The country’s ambitious goal to
reduce the carbon emission while boosting the economy sets an
example for the rest of the world to follow.

Page 31 of 32
 LIST OF REFERENCES
1. Republic Act No. 8177, 1996 and Republic Act No.7659, 1993
2. http://cnnphilippines.com/news/2016/08/02/return-of-death-
penalty-ph-violates-international-law.html
3. http://globalnation.inquirer.net/150445/un-ph-will-violate-intl-
pact-restores-death-penalty
4. http://www.worldcoalition.org/Second-Optional-Protocol-
Frequently-Asked-Questions.html
5. http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/la
w-9780199231690-e428
6. http://www.oxfordbibliographies.com/view/document/obo-
9780199796953/obo-9780199796953-0035.xml
7. http://www.racismnoway.com.au/about-racism/australian-
legislation-international-law/international-law-relating-to-racism-
and-discrimination/
8. https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=
1127&context=annlsurvey
9. https://www.lawteacher.net/free-law-essays/international-
law/the-innocent-passage-in-the-un-convention-international-
law-essay.php
10. https://ihl-databases.icrc.org/customary-
ihl/eng/docs/v1_rul_rule156
11. http://www.nti.org/learn/treaties-and-regimes/association-
southeast-asian-nations-asean/
12. https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-
be94-0a655eb30e16/0/rome_statute_english.pdf
13. https://www.nytimes.com/2018/04/03/us/politics/white-
house-chinese-imports-tariffs.html
14. http://www.getrealphilippines.com/blog/2014/04/enhanced
-defense-cooperation-agreement-edca-why-america-is-not-the-
enemy/
15. http://cnnphilippines.com/news/2016/01/13/no-
constitutional-crisis-over-edca-ruling-experts.html
16. http://newsinfo.inquirer.net/597859/what-is-the-
enhanced-defense-cooperation-agreement-and-what-does-it-
mean-for-ph
17. https://www.redcross.org/images/MEDIA_CustomProduct
Catalog/m3640104_IHL_SummaryGenevaConv.pdf
18. http://www.bbc.com/news/science-environment-35073297
19. https://www.theguardian.com/environment/2015/dec/12/p
aris-climate-deal-200-nations-sign-finish-fossil-fuel-era

Page 32 of 32