PIL – 25 JUNE
“Generally accepted principles of international
A. GENERAL PRINCIPLES
1. Legal Basis
a. Art. II, Sec. 2 (Incorporation Clause), 1987 Constitution
SECTION 2. The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of the law of the
land and adheres to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations.
Pharmaceutical and Health Care Association of the Philippines v. Duque III,
535 SCRA 265
FACTS: On October 28, 1986, Executive Order No. 51 (Milk Code) was issued by
President Corazon Aquino by virtue of the legislative powers granted to the president
under the Freedom Constitution. The Milk Code states that the law seeks to give effect
to Article 112 of the International Code of Marketing of Breastmilk Substitutes
(ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982
to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should
be supported, promoted and protected, hence, it should be ensured that nutrition and
health claims are not permitted for breastmilk substitutes. the Philippines ratified the
International Convention on the Rights of the Child. Article 24 of said instrument
provides that State Parties should take appropriate measures to diminish infant and
child mortality, and ensure that all segments of society, specially parents and children,
are informed of the advantages of breastfeeding. the DOH issued RIRR which was to
take effect on July 7, 2006. a petition for certiorari under Rule 65 of the Rules of Court,
seeking to nullify Revised Implementing Rules and Regulations of The “Milk Code,”
assailing that the RIRR was going beyond the provisions of the Milk Code, thereby
amending and expanding the coverage of said law.
ISSUE: Whether or not respondents officers of the DOH acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and in violation of the provisions of the Constitution in promulgating the
RIRR
RULING: The Supreme Court PARTIALLY GRANTED the petition. Sections 4(f),
11 and 46 of Administrative Order No. 2006-0012 dated May 12, 2006 are declared
NULL and VOID for being ultra vires. The Department of Health and respondents are
PROHIBITED from implementing said provisions. The international instruments
pointed out by the respondents, UNRC, ICESR, CEDAW, are deemed part of the law
of the land and therefore the DOH may implement them through the RIRR. Customary
international law is deemed incorporated into our domestic system. Custom or
customary international law means “a general and consistent practice of states
followed by them from a sense of legal obligation (opinio juris). Under the 1987
Constitution, international law can become part of the sphere of domestic law either
by transformation or incorporation. The transformation method requires that an
international law be transformed into a domestic law through a constitutional
mechanism such as local legislation.
law” refers to norms of general or customary international law which are binding on
all states. The Milk Code is a verbatim reproduction of the (ICMBS), but it did not
prohibit advertising or other forms of promotion to the general public of products.
Instead, the Milk Code expressly provides that advertising, promotion, or other
marketing materials may be allowed if such materials are duly authorized and
approved by the Inter-Agency Committee (IAC). In this regard, the WHA Resolutions
adopting the ICMBS are merely recommendatory and legally non-binding. This may
constitute “soft law” or non-binding norms, principles and practices that influence
state behavior. Respondents have not presented any evidence to prove that the WHA
Resolutions, although signed by most of the member states, were in fact enforced or
practiced by at least a majority of the member states and obligatory in nature. The
provisions of the WHA Resolutions cannot be considered as part of the law of the land
that can be implemented by executive agencies without the need of a law enacted by
the legislature. On the other hand, the petitioners also failed to explain and prove by
competent evidence just exactly how such protective regulation would result in the
restraint of trade. Since all the regulatory provisions under the Milk Code apply
equally to both manufacturers and distributors, the Court sees no harm in the RIRR.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code.
b. Art. VII, Sec. 21 (Treaty Ratification Clause)
SECTION 21. No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
c. Art. VIII, Sections 4(2) and 5(2) (a), 1987 Constitution
SECTION 4. (2) All cases involving the constitutionality of a treaty, international or
executive agreement, or law, which shall be heard by the Supreme Court en banc, and
all other cases which under the Rules of Court are required to be heard en banc,
including those involving the constitutionality, application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances, and other regulations, shall
be decided with the concurrence of a majority of the Members who actually took part
in the deliberations on the issues in the case and voted thereon.
SECTION 5. The Supreme Court shall have the following powers:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
2. Sources of International Law
a. The 1987 Constitution
- Mijares v. Ranada, 455 SCRA 397
Facts: Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered
human rights violations during the Marcos era, obtained a Final Judgment in their
favor against the Estate of the late Ferdinand Marcos amounting to roughly 1.9 Billion
U.S. Dollars in compensatory and exemplary damages for tortuous violations of
international law in the US District Court of Hawaii. This Final Judgment was affirmed
by the US Court of Appeals.
As a consequence, Petitioners filed a Complaint with the Regional Trial Court of
Makati for the enforcement of the Final Judgment, paying Php 410.00 as docket and
filing fees based on Rule 141, Section 7(b) where the value of the subject matter is
incapable of pecuniary estimation. The Estate of Marcos however, filed a MTD
alleging the non-payment of the correct filing fees. The Regional Trial Court of Makati
dismissed the Complaint stating that the subject matter was capable of pecuniary
estimation as it involved a judgment rendered by a foreign court ordering the payment
of a definite sum of money allowing for the easy determination of the value of the
foreign judgment. As such, the proper filing fee was 472 Million Philippine pesos,
which Petitioners had not paid.
Issue: Whether or not the amount paid by the Petitioners is the proper filing fee?
Ruling: Yes, but on a different basis—amount merely corresponds to the same amount
required for “other actions not involving property”. The Regional Trial Court of
Makati erred in concluding that the filing fee should be computed on the basis of the
total sum claimed or the stated value of the property in litigation. The Petitioner’s
Complaint was lodged against the Estate of Marcos but it is clearly based on a
judgment, the Final Judgment of the US District Court. However, the Petitioners erred
in stating that the Final Judgment is incapable of pecuniary estimation because it is so
capable. On this point, Petitioners state that this might lead to an instance wherein a
first level court (MTC, MeTC, etc.) would have jurisdiction to enforce a foreign
judgment. Under Batasang Pambansa 129, such courts are not vested with such
jurisdiction. Section 33 of Batasang Pambansa 129 refers to instances wherein the
cause of action or subject matter pertains to an assertion of rights over property or a
sum of money. But here, the subject matter is the foreign judgment itself. Section 16
of Batasang Pambansa 129 reveals that the complaint for enforcement of judgment
even if capable of pecuniary estimation would fall under the jurisdiction of the
Regional Trial Courts. Thus, the Complaint to enforce the US District Court judgment
is one capable of pecuniary estimations but at the same time, it is also an action based
on judgment against an estate, thus placing it beyond the ambit of Section 7(a) of Rule
141. What governs the proper computation of the filing fees over Complaints for the
enforcement of foreign judgments is Section7(b)(3), involving “other actions not
involving property.”
a.1. Doctrine of Processual Presumption or Presumed Identity Approach
It is hornbook principle that the party invoking the application of a foreign law has the
burden of proving the law. In international law, the party who wants to have a foreign
law applied to a dispute or case has the burden of proving the foreign law. The foreign
law is treated as a question of fact to be properly pleaded and proved as the judge or
labor arbiter cannot take judicial notice of a foreign law. He is presumed to know only
domestic or forum law. x x x Where a foreign law is not pleaded or, even if pleaded,
is not proved, the presumption is that foreign law is the same as ours. (ATCI
OVERSEAS CORPORATION VS. ECHIN [2010]).
EDI-Staffbuilders International, Inc. v. National Labor Relations
Commission, 537 SCRA 411
Facts: In 1993, EDI-Staffbuilders, Inc. (EDI), upon request of Omar Ahmed Ali Bin
Bechr Est. (OAB), a company in Saudi Arabia, sent to OAB resumes from which OAB
can choose a computer specialist. Eleazar Gran was selected. It was agreed that his
monthly salary shall be $850.00. But five months into his service in Saudi Arabia,
Gran received a termination letter and right there and then was removed from his post.
The termination letter states that he was incompetent because he does not know the
ACAD system which is required in his line of work; that he failed to enrich his
knowledge during his 5 month stay to prove his competence; that he is disobedient
because he failed to submit the required daily reports to OAB. Gran then signed a
quitclaim whereby he declared that he is releasing OAB from any liability in exchange
of 2,948.00 Riyal.
When Gran returned, he filed a labor case for illegal dismissal against EDI and OAB.
EDI in its defense averred that the dismissal is valid because when Gran and OAB
signed the employment contract, both parties agreed that Saudi labor laws shall govern
all matters relating to the termination of Gran’s employment; that under Saudi labor
laws, Gran’s termination due to incompetence and insubordination is valid; that Gran’s
insubordination and incompetence is outlined in the termination letter Gran received.
The labor arbiter dismissed the labor case but on appeal, the National Labor Relations
Commission (NLRC) reversed the decision of the arbiter. The Court of Appeals
likewise affirmed the NLRC.
ISSUE: Whether or not the Saudi labor laws should be applied.
HELD: No. The specific Saudi labor laws were not proven in court. EDI did not
present proof as to the existence and the specific provisions of such foreign law.
Hence, processual presumption applies and Philippine labor laws shall be used. Under
our laws, an employee like Gran shall only be terminated upon just cause. The
allegations against him, at worst, shall only merit a suspension not a dismissal. His
incompetence is not proven because prior to being sent to Saudi Arabia, he underwent
the required trade test to prove his competence. The presumption therefore is that he
is competent and that it is upon OAB and EDI to prove otherwise. No proof of his
incompetence was ever adduced in court. His alleged insubordination is likewise not
proven. It was not proven that the submission of daily track records is part of his job
as a computer specialist. There was also a lack of due process. Under our laws, Gran
is entitled to the two notice rule whereby prior to termination he should receive two
notices. In the case at bar, he only received one and he was immediately terminated on
the same day he received the notice.
Lastly, the quitclaim may not also release OAB from liability. Philippine laws is again
applied here sans proof of Saudi laws. Under Philippine Laws, a quitclaim is generally
frowned upon and are strictly examined. In this case, based on the circumstances, Gran
at that time has no option but to sign the quitclaim. The quitclaim is also void because
his separation pay was merely 2,948 Riyal which is lower than the $850.00 monthly
salary (3,190 Riyal).
Orion Savings Bank v. Suzuki, 740 SCRA 347
Facts: Respondent Shigekane Suzuki, a Japanese national, met with Ms. Helen Soneja
to inquire about a condominium unit and a parking slot at Cityland Pioneer,
Mandaluyong City, allegedly owned by Yung Sam Kang, a Korean national.
Soneja informed Suzuki that Unit No. 536 [covered by Condominium Certificate of
Title (CCT) No. 18186] and Parking Slot No. 42 [covered by CCT No. 9118] were for
sale. Soneja likewise assured Suzuki that the titles to the unit and the parking slot were
clean.
After payment of the price of the unit and parking slot, Kang then executed a Deed of
Absolute Sale. Suzuki took possession of the condominium unit and parking lot, and
commenced the renovation of the interior of the condominium unit.
Kang thereafter made several representations with Suzuki to deliver the titles to the
properties, which were then allegedly in possession of Alexander Perez (Perez,
Orion’s Loans Officer) for safekeeping. Despite several verbal demands, Kang failed
to deliver the documents.
Suzuki later on learned that Kang had left the country, prompting Suzuki to verify the
status of the properties. He learned that CCT No. 9118 representing the title to the
Parking Slot No. 42 contained no annotations although it remained under the name of
Cityland Pioneer. Despite the cancellation of the mortgage to Orion, the titles to the
properties remained in possession of Perez.
Suzuki then demanded the delivery of the titles. Orion, through Perez, however,
refused to surrender the titles, and cited the need to consult Orion’s legal counsel as
its reason.
Issue: Whether or not Korean Law should be applied in conveying the conjugal
property of spouses Kang?
Ruling: In the present case, the Korean law should not be applied. It is a universal
principle that real or immovable property is exclusively subject to the laws of the
country or state where it is located. Thus, all matters concerning the title and
disposition of real property are determined by what is known as the lex loci rei sitae,
which can alone prescribe the mode by which a title can pass from one person to
another, or by which an interest therein can be gained or lost.
On the other hand, property relations between spouses are governed principally by the
national law of the spouses. However, the party invoking the application of a foreign
law has the burden of proving the foreign law. The foreign law is a question of fact to
be properly pleaded and proved as the judge cannot take judicial notice of a foreign
law.
Matters concerning the title and disposition of real property shall be governed by
Philippine law while issues pertaining to the conjugal nature of the property shall be
governed by South Korean law, provided it is proven as a fact.
In the present case, Orion, unfortunately failed to prove the South Korean law on the
conjugal ownership of property. It merely attached a "Certification from the Embassy
of the Republic of Korea" to prove the existence of Korean Law. This certification,
does not qualify as sufficient proof of the conjugal nature of the property for there is
no showing that it was properly authenticated.
Accordingly, the International Law doctrine of presumed-identity approach or
processual presumption comes into play, i.e., where a foreign law is not pleaded or,
even if pleaded, is not proven, the presumption is that foreign law is the same as
Philippine Law.
Under Philippine Law, the phrase "Yung Sam Kang ‘married to' Hyun Sook Jung" is
merely descriptive of the civil status of Kang. In other words, the import from the
certificates of title is that Kang is the owner of the properties as they are registered in
his name alone, and that he is married to Hyun Sook Jung. There is no reason to declare
as invalid Kang’s conveyance in favor of Suzuki for the supposed lack of spousal
consent.
It is undisputed that notwithstanding the supposed execution of the Dacion en Pago on
February 2, 2003, Kang remained in possession of the condominium unit. In fact,
nothing in the records shows that Orion even bothered to take possession of the
property even six (6) months after the supposed date of execution of the Dacion en
Pago. Kang was even able to transfer possession of the condominium unit to Suzuki,
who then made immediate improvements thereon.
Del Socorro v. Van Wilsen, 744 SCRA 516
Facts: Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem
contracted marriage in Holland and were blessed with a son named Roderigo Norjo
Van Wilsem, who at the time of the filing of the instant petition was sixteen (16) years
of age. Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a
Divorce Decree issued by the appropriate Court of Holland. According to petitioner,
respondent made a promise to provide monthly support to their son however, since the
arrival of petitioner and her son in the Philippines, respondent never gave support to
the son, Roderigo. Not long thereafter, respondent came to the Philippines and
remarried in Pinamungahan, Cebu, and since then, have been residing thereat.
Petitioner filed a complaint-affidavit with the Provincial Prosecutor of Cebu City
against respondent for violation of Section 5, paragraph E(2) of R.A. No. 9262 for the
latter’s unjust refusal to support his minor child with petitioner.
Issue: Whether or not Wilsem, a foreign citizen, may be held liable for volation of RA
9262?
Held: Yes. The deprivation or denial of financial support to the child is considered an
act of violence against women and children. In addition, considering that respondent
is currently living in the Philippines, we find strength in petitioner’s claim that the
Territoriality Principle in criminal law, in relation to Article 14 of the New Civil Code,
applies to the instant case, which provides that: “penal laws and those of public
security and safety shall be obligatory upon all who live and sojourn in Philippine
territory, subject to the principle of public international law and to treaty stipulations.”
On this score, it is indisputable that the alleged continuing acts of respondent in
refusing to support his child with petitioner is committed here in the Philippines as all
of the parties herein are residents of the Province of Cebu City.
Continental Micronesia, Inc. v. Basso, 771 SCRA 331
Facts: Petitioner Continental Micronesia is a foreign corporation organized and
existing under the laws of and domiciled in the United States of America. It is licensed
to do business in the Philippines. Respondent, a US citizen residing in the Philippines,
accepted an offer to be a General Manager position by Mr. Braden, Managing
Director-Asia of Continental Airlines. On November 7, 1992, CMI took over the
Philippine operations of Continental, with respondent retaining his position as General
Manager. Thereafter, respondent received a letter from Mr. Schulz, who was then
CMI’s Vice President of Marketing and Sales, informing him that he has agreed to
work in CMI as a consultant on an “as needed basis.” Respondent wrote a counter-
proposal that was rejected by CMI.
Respondent then filed a complaint for illegal dismissal against the petitioner
corporation. Alleging the presence of foreign elements, CMI filed a Motion to Dismiss
on the ground of lack of jurisdiction over the person of CMI and the subject matter of
the controversy.
The Labor Arbiter agreed with CMI that the employment contract was executed in the
US “since the letter-offer was under the Texas letterhead and the acceptance of
Complainant was returned there.” Thus, applying the doctrine of lex loci celebrationis,
US laws apply. Also, applying lex loci contractus, the Labor Arbiter ruled that the
parties did not intend to apply Philippine laws.
The NLRC ruled that the Labor Arbiter acquired jurisdiction over the case when CMI
voluntarily submitted to his office’s jurisdiction by presenting evidence, advancing
arguments in support of the legality of its acts, and praying for reliefs on the merits of
the case.
The Court of Appeals ruled that the Labor Arbiter and the NLRC had jurisdiction over
the subject matter of the case and over the parties.
Issue: Whether labor tribunals have jurisdiction over the case.
Held: Yes. The Court ruled that the labor tribunals had jurisdiction over the parties
and the subject matter of the case. The employment contract of Basso was replete with
references to US laws, and that it originated from and was returned to the US, do not
automatically preclude our labor tribunals from exercising jurisdiction to hear and try
this case.
On the other hand, jurisdiction over the person of CMI was acquired through the
coercive process of service of summons. CMI never denied that it was served with
summons. CMI has, in fact, voluntarily appeared and participated in the proceedings
before the courts. Though a foreign corporation, CMI is licensed to do business in the
Philippines and has a local business address here. The purpose of the law in requiring
that foreign corporations doing business in the country be licensed to do so, is to
subject the foreign corporations to the jurisdiction of our courts.
Where the facts establish the existence of foreign elements, the case presents a
conflicts-of-laws issue. Under the doctrine of forum non conveniens, a Philippine
court in a conflict-of-laws case may assume jurisdiction if it chooses to do so,
provided, that the following requisites are met: (1) that the Philippine Court is one to
which the parties may conveniently resort to; (2) that the Philippine Court is in a
position to make an intelligent decision as to the law and the facts; and (3) that the
Philippine Court has or is likely to have power to enforce its decision. All these
requisites are present here.
Kuroda v. Jalandoni, G.R. No. L-2662, March 26, 1949
FACTS: Petitioner Shigenori Kuroda, the Commanding General of the Japanese
Imperial Forces in the Philippines during the Japanese occupation, was charged before
the Philippine Military Commission of war crimes. He questioned the constitutionality
of E.O. No. 68 that created the National War Crimes Office and prescribed rules on
the trial of accused war criminals. He contended the Philippines is not a signatory to
the Hague Convention on Rules and Regulations covering Land Warfare and therefore
he is charged of crimes not based on law, national and international.
ISSUE: Was E.O. No. 68 valid and constitutional?
RULING: YES, E.O. No. 68 valid and constitutional.
Article 2 of our Constitution provides in its section 3, that –
The Philippines renounces war as an instrument of national policy and adopts the
generally accepted principles of international law as part of the law of the nation.
In accordance with the generally accepted principle of international law of the present
day including the Hague Convention the Geneva Convention and significant
precedents of international jurisprudence established by the United Nation all those
person military or civilian who have been guilty of planning preparing or waging a
war of aggression and of the commission of crimes and offenses consequential and
incidental thereto in violation of the laws and customs of war, of humanity and
civilization are held accountable therefor. Consequently in the promulgation and
enforcement of Execution Order No. 68 the President of the Philippines has acted in
conformity with the generally accepted and policies of international law which are part
of the our Constitution.
xxx xxx xxx
Petitioner argues that respondent Military Commission has no jurisdiction to try
petitioner for acts committed in violation of the Hague Convention and the Geneva
Convention because the Philippines is not a signatory to the first and signed the second
only in 1947. It cannot be denied that the rules and regulation of the Hague and Geneva
conventions form, part of and are wholly based on the generally accepted principals
of international law. In facts these rules and principles were accepted by the two
belligerent nations the United State and Japan who were signatories to the two
Convention. Such rule and principles therefore form part of the law of our nation even
if the Philippines was not a signatory to the conventions embodying them for our
Constitution has been deliberately general and extensive in its scope and is not
confined to the recognition of rule and principle of international law as contained in
treaties to which our government may have been or shall be a signatory.
b. Art. 38. Statute of the International Court of Justice (Primary Source)
b.1 International conventions or treaties
b.2 International custom as evidence of a general practice accepted as law
 Behavioural – there must be a consistent and recurring action (or lack of
action) by states, meaning of cial government conduct indicated by such
activities as of - cial statements, court decisions, legislative action,
administrative decrees, and diplomatic behavior.
 Psychological – in each case, such behaviour is required or permitted by
international law
Fivefold argument (McGinnis)
(1) that nations do not have to assent afirmatively to the creation of a principle of
customary international law; that they are considered to have consented to a
principle if they simply failed to object;
(2) that undemocratic or even totalitarian nations wield influence on international
law;
(3) that many treaties and other international declarations are merely empty
promises if nations do not actually enforce them;
(4) that it is often unclear what the customary international legal norm is, or if one
even exists; and
(5) that following customary international law makes governments less
transparent and accountable.
b.3 General principles of law recognized by civil nations
b.4 judicial decisions and teachings of most highly qualified publicists
However, under Art. 59 of the ICJ, decisions have binding force
only on the parties to the case
- Asaali v. Commissioner of Customs, 27 SCRA 312
Facts: At noontime of September 10, 1950, five sailing vessels, from Borneo toward
the ports of Tawi-tawi and Sulu, were spotted and intercepted in high seas by the
Custom Patrol Team. The said patrol team aboard Boat ST-23 found out that the five
vessels contained 181 cases of “Herald” cigarettes, 9 cases of “Camel” cigarettes, and
some rattan chairs. The sailing vessels were all Philippine registered, owned and
manned by Filipino residents from Sulu. Petitioners, however, possessed no permit
from the Commissioner of Customs so that they can engage in the importation of the
goods they carry (as required by Section 1363 [a] of the Revised Administrative Code).
Also, the goods the petitioners carry were not covered by RA 426 or the Import Control
Law. The Custom Patrol Team then seized the goods even if they were in the high
seas. Petitioners claim that the interception and seizure of the items were illegal
because they were intercepted outside the territory of the Philippines. Also, the
petitioners contend that they could not have been engaged to the importation of the
above-mentioned items to incur the forfeiture under Section 1363 of the Revised
Administrative Code. The Court of Tax Appeals held that Section 1363 should be
applied because all the vessels were all headed to Tawi-tawi. No import license and
permit were carried violating RA 426. Their course, that is—they are about to enter
the Philippine territory, announced loudly that they were about to import these items
in the Philippines.
Issues:
Whether or not the interception and seizure by customs officials of the vessels valid in
the contention that importation had not yet begun and that the seizure was effected
outside our territorial waters.
Whether or not the Import Control Law was violated since it had expired when the
offense was committed.
Ruling: The Court affirmed the decision of the Court of Tax Appeals stating that “it is
quite irrational for Filipino sailors …to sneak out of the Philippines…and come a long
way back laden with highly taxable goods only to turn about upon reaching the brink
of our territorial waters and head for another country”. Further, the Court said that the
contention, regarding the apprehension and seizure of the items, of the petitioner-
appellant is without merit. The vessels are all Philippine registered and are therefore
under the jurisdiction of the Philippines as expressed in the Revised Penal Code. The
petitioners also violated Section 1363(a). Therefore, the action taken then by the
Commissioner of Customs was in accordance to the law.
The Court also ruled that “The expiration of the Import Control Law ‘did not produce
the effect the declaring legal the importation of goods which were illegally imported
and the seizure and forefeiture thereof as ordered by the Collector of Customs illegal
or null and void’.” The expiration of the law does not mean that the law had been
abrogated, meaning even if the law had already expired, the Philippines should still
have jurisdiction over this kinds of cases until their final determination.
- North Sea Continental Shelf Case, ICJ Reports, 1969
Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the
dual requirement for the formation of customary international law: (1) State practice
(the objective element) and (2) opinio juris (the subjective element). In these cases,
the Court explained the criteria necessary to establish State practice – widespread and
representative participation. It highlighted that the practices of those States whose
interests were specially affected by the custom were especially relevant in the
formation of customary law. It also held that uniform and consistent practice was
necessary to demonstrate opinio juris – opinio juris is the belief that State practice
amounts to a legal obligation. The North Sea Continental Self Cases also dispelled the
myth that duration of the practice (i.e. the number of years) was an essential factor in
forming customary international law.
The case involved the delimitation of the continental shelf areas in the North Sea
between Germany and Denmark and Germany and Netherlands beyond the partial
boundaries previously agreed upon by these States. The parties requested the Court to
decide the principles and rules of international law that are applicable to the above
delimitation because the parties disagreed on the applicable principles or rules of
delimitation. Netherlands and Denmark relied on the principle of equidistance (the
method of determining the boundaries in such a way that every point in the boundary
is equidistant from the nearest points of the baselines from which the breath of the
territorial sea of each State is measured). Germany sought to get a decision in favour
of the notion that the delimitation of the relevant continental shelf was governed by
the principle that each coastal state is entitled to a just and equitable share (hereinafter
called just and equitable principle/method). Contrary to Denmark and Netherlands,
Germany argued that the principle of equidistance was neither a mandatory rule in
delimitation of the continental shelf nor a rule of customary international law that was
binding on Germany. The Court was not asked to delimit because the parties had
already agreed to delimit the continental shelf as between their countries, by
agreement, after the determination of the Court on the applicable principles.
Facts of the Case: Netherlands and Denmark had drawn partial boundary lines based
on the equidistance principle (A-B and C-D). An agreement on further prolongation
of the boundary proved difficult because Denmark and Netherlands wanted this
prolongation to take place based on the equidistance principle (B-E and D-E) where
as Germany was of the view that, together, these two boundaries would produce an
inequitable result for her. Germany stated that due to its concave coastline, such a line
would result in her loosing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline. The Court had to decide the
principles and rules of international law applicable to this delimitation. In doing so,
the Court had to decide if the principles espoused by the parties were binding on the
parties either through treaty law or customary international law.
Questions before the Court (as relevant to this post): Is Germany under a legal
obligation to accept the equidistance-special circumstances principle, contained in
Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a
customary international law rule or on the basis of the Geneva Convention?
The Court’s Decision: The use of the equidistance method had not crystallised into
customary law and the method was not obligatory for the delimitation of the areas in
the North Sea related to the present proceedings.
Relevant Findings of the Court:
1. Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular
Article 6, binding on Germany?
1. Article 6 of the Geneva Convention stated that unless the parties had already agreed
on a method for delimitation or unless special circumstances exist, the equidistance
method would apply. Germany had signed, but not ratified, the Geneva Convention,
while Netherlands and Denmark were parties to the Convention. The latter two States
argued that while Germany is not a party to the Convention (not having ratified it), she
was still bound by Article 6 of the Convention because:
“…(1) by conduct, by public statements and proclamations, and in other ways, the
Republic has unilaterally assumed the obligations of the Convention; or has
manifested its acceptance of the conventional regime; or has recognized it as being
generally applicable to the delimitation of continental shelf areas…
(2) the Federal Republic had held itself out as so assuming, accepting or recognizing,
in such a manner as to cause other States, and in particular Denmark and the
Netherlands, to rely on the attitude thus taken up” (the latter is called the principle of
estoppel).
2. The Court rejected the first argument. It said that only a ‘very definite very
consistent course of conduct on the part of a State would allow the Court to presume
that the State had somehow become bound by a treaty (by a means other than in the
formal manner: i.e. ratification) when the State was ‘at all times fully able and entitled
to…’ accept the treaty commitments in a formal manner. The Court held that Germany
had not unilaterally assumed obligations under the Convention. The court also took
notice of the fact that even if Germany ratified the treaty, she had the option of entering
into a reservation on Article 6, following which that particular article would no longer
be applicable to Germany (in other words, even if one were to assume that Germany
had intended to become a party to the Convention, it does not presuppose that it would
have also undertaken those obligations contained in Article 6).
3. Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came
into force in 1980, discusses in more detail treaty obligations of third States (those
States who are not parties to the treaty). It clearly stipulates that obligations arise for
third States from a provision of a treaty only if (1) the actual parties to the treaty
intended the provision to create obligations for third States; and (2) third State
expressly accept those obligations in writing (Article 35 of the VCLT). The VCLT
was not in force when the Court deliberated on this case. However, as seen above, the
Court’s position is consistent the VCLT. (See the relevant provisions of the Vienna
Convention on the Law of Treaties).
4. The Court held that the existence of a situation of estoppel would have allowed
Article 6 to become binding on Germany – but held that Germany’s action did not
support an argument for estoppel. The Court also held that the mere fact that Germany
may not have specifically objected to the equidistance principle as contained in Article
6, is not sufficient to state that the principle is now binding upon it.
5. In conclusion, the Court held that Germany had not acted in any manner so as to
incur obligations contained in Article 6 of the Geneva Convention. The equidistance–
special circumstances rule was not binding on Germany by way of treaty law.
2. Nature of the customary international law obligation: Is Germany bound by the
provisions of Article 6 of the Geneva Convention in so far as they reflect customary
international law?
6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of
general international law on the subject of continental shelf delimitation’ and that it
existed independently of the Convention. Therefore, they argued, Germany is bound
by the subject matter of Article 6 by way of customary international law.
7. To decide if the equidistance principle bound Germany by way of customary
international law, the Court examined (1) the status of the principle contained in
Article 6 as it stood when the Convention was being drawn up; and (2) its status after
the Convention came into force.
(a) What was the customary law status of Article 6 at the time of drafting the
Convention?
8. The Court held that the principle of equidistance, as contained in Article 6 did not
form a part of existing or emerging customary international law at the time of drafting
the Convention. The Court supported this finding based on (1) the hesitation expressed
by the drafters of the Convention, the International Law Commission, on the inclusion
of Article 6 into the Convention and (2) the fact that reservations to Article 6 was
permissible under the Convention. The Court held:
“… Article 6 is one of those in respect of which, under the reservations article of the
Convention (Article 12) reservations may be made by any State on signing, ratifying
or acceding, – for speaking generally, it is a characteristic of purely conventional rules
and obligations that, in regard to them, some faculty of making unilateral reservations
may, within certain limits, be admitted; whereas this cannot be so in the case of general
or customary law rules and obligations which, by their very nature, must have equal
force for all members of the international community, and cannot therefore be the
subject of any right of unilateral exclusion exercisable at will by any one of them in
its own favor…. The normal inference would therefore be that any articles that do not
figure among those excluded from the faculty of reservation under Article 12, were
not regarded as declaratory of previously existing or emergent rules of law …” (see
para 65 for a counter argument and the Court’s careful differentiation)
(b) Did the provisions in Article 6 on the equidistance principle attain the customary
law status after the Convention came into force?
9. The Court then examined whether the rule contained in Article 6 had become
customary international law after the Convention entered into force – either due the
Convention itself (i.e., if enough States had ratified the Convention in a manner so as
to fulfil the criteria specified below), or because of subsequent State practice (i.e. even
if an adequate number of States had not ratified the Convention, one could find
sufficient State practice to meet the criteria below). The Court held that Article 6 of
the Convention had not attained a customary law status. (Compare the 1958 Geneva
Convention with the four Geneva Conventions on 1949 relating to international
humanitarian law in terms of the latter’s authority as a pronouncement of customary
international law).
10. For a customary rule to emerge the Court held that it needed: (1) very widespread
and representative participation in the Convention, including States whose interests
were specially affected (in this case, they were coastal States) (i.e. generality); and (2)
virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner
that demonstrates (3) a general recognition of the rule of law or legal obligation (i.e.
opinio juries). In the North Sea Continental Shelf cases the court held that the passage
of a considerable period of time was unnecessary (i.e. duration) for the formation of a
customary law.
Widespread and representative participation
11. The Court held that the first criteria was not met. The number of ratifications and
accessions to the Convention (39 States) were not adequately representative or
widespread.
Duration
12. The Court held that the duration taken for a customary law rule to emerge is not as
important as widespread and representative participation, uniform usage, and the
existence of an opinio juris. It held that:
“Although the passage of only a short period of time (in this case, 3 – 5 years) is not
necessarily, or of itself, a bar to the formation of a new rule of customary international
law on the basis of what was originally a purely conventional rule, an indispensable
requirement would be that within the period in question, short though it might be, State
practice, including that of States whose interests are specially affected, should have
been both extensive and virtually uniform in the sense of the provision invoked and
should moreover have occurred in such a way as to show a general recognition that a
rule of law or legal obligation is involved.”
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus
case), in so far as those acts or omissions were done following a belief that the said
State is obligated by law to act or refrain from acting in a particular way. (For more
on opinio juris click here).
14. The Court examined 15 cases where States had delimited their boundaries using
the equidistance method, after the Convention came into force (paras. 75 -77). The
Court concluded that even if there were some State practice in favour of the
equidistance principle, the Court could not deduct the necessary opinio juris from this
State practice. The North Sea Continental Shelf Cases confirmed that both State
practice (the objective element) and opinio juris (the subjective element) are essential
pre-requisites for the formation of a customary law rule. This is consistent with Article
38 (1) (b) of the Statute of the ICJ. The Court explained the concept of opinio juris and
the difference between customs (i.e. habits) and customary law:
“Not only must the acts concerned amount to a settled practice, but they must also be
such, or be carried out in such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it. The need for such a
belief, i.e, the existence of a subjective element, is implicit in the very notion of the
opinio juris sive necessitatis. The States concerned must therefore feel that they are
conforming to what amounts to a legal obligation. The frequency, or even habitual
character of the acts is not in itself enough. There are many international acts, e.g., in
the field of ceremonial and protocol, which are performed almost invariably, but which
are motivated only by considerations of courtesy, convenience or tradition, and not by
any sense of legal duty.” (Para 77).
15. The Court concluded that the equidistance principle was not binding on Germany
by way of treaty or customary international law. In the case of the latter, the principle
had not attained a customary international law status at the time of the entry into force
of the Geneva Convention or thereafter. As such, the Court held that the use of the
equidistance method is not obligatory for the delimitation of the areas concerned in
the present proceedings.
 - Asylum Case, ICJ Reports, 1966
Overview: Colombia granted asylum to a Peruvian, accused of taking part in a military
rebellion in Peru. Was Colombia entitled to make a unilateral and definitive
qualification of the offence (as a political offence) in a manner binding on Peru and
was Peru was under a legal obligation to provide safe passage for the Peruvian to leave
Peru?
Facts of the Case: Peru issued an arrest warrant against Victor Raul Haya de la Torre
“in respect of the crime of military rebellion” which took place on October 3, 1949, in
Peru. 3 months after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru.
The Colombian Ambassador confirmed that Torre was granted diplomatic asylum in
accordance with Article 2(2) of the Havana Convention on Asylum of 1928 and
requested safe passage for Torre to leave Peru. Subsequently, the Ambassador also
stated Colombia had qualified Torre as a political refugee in accordance with Article
2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not
the same as the Refugee Convention of 1951). Peru refused to accept the unilateral
qualification and refused to grant safe passage.
Questions before the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify
the offence for the purpose of asylum under treaty law and international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of
safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928
(hereinafter called the Havana Convention) when it granted asylum and is the
continued maintenance of asylum a violation of the treaty?
The Court’s Decision:
Relevant Findings of the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify
the offence for the purpose of asylum under treaty law and international law?
1. The court stated that in the normal course of granting diplomatic asylum a
diplomatic representative has the competence to make a provisional qualification of
the offence (for example, as a political offence) and the territorial State has the right
to give consent to this qualification. In the Torre’s case, Colombia has asserted, as the
State granting asylum, that it is competent to qualify the nature of the offence in a
unilateral and definitive manner that is binding on Peru. The court had to decide if
such a decision was binding on Peru either because of treaty law (in particular the
Havana Convention of 1928 and the Montevideo Convention of 1933), other principles
of international law or by way of regional or local custom.
2. The court held that there was no expressed or implied right of unilateral and
definitive qualification of the State that grants asylum under the Havana Convention
or relevant principles of international law (p. 12, 13). The Montevideo Convention of
1933, which accepts the right of unilateral qualification, and on which Colombia relied
to justify its unilateral qualification, was not ratified by Peru. The Convention, per say,
was not binding on Peru and considering the low numbers of ratifications the
provisions of the latter Convention cannot be said to reflect customary international
law (p. 15).
3. Colombia also argued that regional or local customs support the qualification. The
court held that the burden of proof on the existence of an alleged customary law rests
with the party making the allegation:
“The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party… (that) it
is in accordance with a (1) constant and uniform usage (2) practiced by the States in
question, and that this usage is (3) the expression of a right appertaining to the State
granting asylum (Colombia) and (4) a duty incumbent on the territorial State (in this
case, Peru). This follows from Article 38 of the Statute of the Court, which refers to
international custom “as evidence of a general practice accepted as law(text in brackets
added).”
4. The court held that Colombia did not establish the existence of a regional custom
because it failed to prove consistent and uniform usage of the alleged custom by
relevant States. The fluctuations and contradictions in State practice did not allow for
the uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the
legal impact of fluctuations of State practice). The court also reiterated that the fact
that a particular State practice was followed because of political expediency and not
because of a belief that the said practice is binding on the State by way of a legal
obligation (opinio juris) is detrimental to the formation of a customary law (see North
Sea Continental Shelf Cases and Lotus Case for more on opinio juris):
“[T]he Colombian Government has referred to a large number of particular cases in
which diplomatic asylum was in fact granted and respected. But it has not shown that
the alleged rule of unilateral and definitive qualification was invoked or … that it was,
apart from conventional stipulations, exercised by the States granting asylum as a right
appertaining to them and respected by the territorial States as a duty incumbent on
them and not merely for reasons of political expediency. The facts brought to the
knowledge of the Court disclose so much uncertainty and contradiction, so much
fluctuation and discrepancy in the exercise of diplomatic asylum and in the official
views expressed on various occasions, there has been so much inconsistency in the
rapid succession of conventions on asylum, ratified by some States and rejected by
others, and the practice has been so much influenced by considerations of political
expediency in the various cases, that it is not possible to discern in all this any constant
and uniform usage, mutually accepted as law, with regard to the alleged rule of
unilateral and definitive qualification of the offence.”
5. The court held that even if Colombia could prove that such a regional custom
existed, it would not be binding on Peru, because Peru “far from having by its attitude
adhered to it, has, on the contrary, repudiated it by refraining from ratifying the
Montevideo Conventions of 1933 and 1939, which were the first to include a rule
concerning the qualification of the offence [as “political” in nature] in matters of
diplomatic asylum.” (See in this regard, the lesson on persistent objectors. Similarly
in the North Sea Continental Shelf Cases the court held ‘in any event the . . . rule would
appear to be inapplicable as against Norway in as much as she had always opposed
any attempt to apply it to the Norwegian coast’.)
6. The court concluded that Colombia, as the State granting asylum, is not competent
to qualify the offence by a unilateral and definitive decision, binding on Peru.
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of
safe passage?
7. The court held that there was no legal obligation on Peru to grant safe passage either
because of the Havana Convention or customary law. In the case of the Havana
Convention, a plain reading of Article 2 results in an obligation on the territorial state
(Peru) to grant safe passage only after it requests the asylum granting State (Colombia)
to send the person granted asylum outside its national territory (Peru). In this case the
Peruvian government had not asked that Torre leave Peru. On the contrary, it contested
the legality of asylum granted to him and refused to grant safe conduct.
8. The court looked at the possibility of a customary law emerging from State practice
where diplomatic agents have requested and been granted safe passage for asylum
seekers, before the territorial State could request for his departure. Once more, the
court held that these practices were a result of a need for expediency and other practice
considerations over an existence of a belief that the act amounts to a legal obligation
(see paragraph 4 above).
“There exists undoubtedly a practice whereby the diplomatic representative who
grants asylum immediately requests a safe conduct without awaiting a request from
the territorial state for the departure of the refugee…but this practice does not and
cannot mean that the State, to whom such a request for safe-conduct has been
addressed, is legally bound to accede to it.”
(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted
asylum and is the continued maintenance of asylum a violation of the treaty?
9. Article 1 of the Havana Convention states that “It is not permissible for States to
grant asylum… to persons accused or condemned for common crimes… (such
persons) shall be surrendered upon request of the local government.”
10. In other words, the person-seeking asylum must not be accused of a common crime
(for example, murder would constitute a common crime, while a political offence
would not).The accusations that are relevant are those made before the granting of
asylum. Torre’s accusation related to a military rebellion, which the court concluded
was not a common crime and as such the granting of asylum complied with Article 1
of the Convention.
11. Article 2 (2) of the Havana Convention states that “Asylum granted to political
offenders in legations, warships, military camps or military aircraft, shall be respected
to the extent in which allowed, as a right or through humanitarian toleration, by the
usages, the conventions or the laws of the country in which granted and in accordance
with the following provisions: First: Asylum may not be granted except in urgent cases
and for the period of time strictly indispensable for the person who has sought asylum
to ensure in some other way his safety.”
12. An essential pre-requisite for the granting of asylum is the urgency or, in other
words, the presence of “an imminent or persistence of a danger for the person of the
refugee”. The court held that the facts of the case, including the 3 months that passed
between the rebellion and the time when asylum was sought, did not establish the
urgency criteria in this case (pp. 20 -23). The court held:
“In principle, it is inconceivable that the Havana Convention could have intended the
term “urgent cases” to include the danger of regular prosecution to which the citizens
of any country lay themselves open by attacking the institutions of that country… In
principle, asylum cannot be opposed to the operation of justice.”
13. In other words, Torre was accused of a crime but he could not be tried in a court
because Colombia granted him asylum. The court held that “protection from the
operation of regular legal proceedings” was not justified under diplomatic asylum.
14. The court held:
“In the case of diplomatic asylum the refugee is within the territory of the State. A
decision to grant diplomatic asylum involves a derogation from the sovereignty of that
State. It withdraws the offender from the jurisdiction of the territorial State and
constitutes an intervention in matters which are exclusively within the competence of
that State. Such a derogation from territorial sovereignty cannot be recognised unless
its legal basis is established in each particular case.”
15. As a result, exceptions to this rule are strictly regulated under international law.
An exception to this rule (asylum should not be granted to those facing regular
prosecutions) can occur only if, in the guise of justice, arbitrary action is substituted
for the rule of law. Such would be the case if the administration of justice were
corrupted by measures clearly prompted by political aims. Asylum protects the
political offender against any measures of a manifestly extra-legal character which a
Government might take or attempt to take against its political opponents… On the
other hand, the safety which arises out of asylum cannot be construed as a protection
against the regular application of the laws and against the jurisdiction of legally
constituted tribunals. Protection thus understood would authorize the diplomatic agent
to obstruct the application of the laws of the country whereas it is his duty to respect
them… Such a conception, moreover, would come into conflict with one of the most
firmly established traditions of Latin-America, namely, non-intervention [for example,
by Colombia into the internal affairs of another State like Peru]….
16. Asylum may be granted on “humanitarian grounds to protect political prisoners
against the violent and disorderly action of irresponsible sections of the population.”
(for example during a mob attack where the territorial State is unable to protect the
offender). Torre was not in such a situation at the time when he sought refuge in the
Colombian Embassy at Lima.
17. The court concluded that the grant of asylum and reasons for its prolongation were
not in conformity with Article 2(2) of the Havana Convention (p. 25).
“The grant of asylum is not an instantaneous act which terminates with the admission,
at a given moment of a refugee to an embassy or a legation. Any grant of asylum
results in, and in consequence, logically implies, a state of protection, the asylum is
granted as long as the continued presence of the refugee in the embassy prolongs this
protection.”
NB: The court also discussed the difference between extradition and granting of
asylum – you can read more on this in pp. 12 – 13 of the judgment. The discussions
on the admissibility of the counter claim of Peru are set out in pp. 18 – 19.
 - Legality of the Use by a State of Nuclear Weapons, ICJ Reports,
1996 in relation to The Treaty on the Non-Proliferation of Nuclear
Weapons
Background to the case: The General Assembly of the United Nations asked the Court
to provide its legal opinion on the following question “Is the threat or use of nuclear
weapons in any circumstances permitted under international law?” In 1993, two years
previously, the World Health Organization had asked the Court a similar question on
the legality of the use nuclear weapons under international law. The Court declined to
answer because the Court held that the World Health Organization did not have the
competence to ask the Court that particular question.
Questions before the Court: The Court discussed two procedural questions:
(1) Did the Court have the competence to give an advisory opinion based on a request
of the General Assembly? In other words, did the General Assembly have the
competence to ask the Court for an advisory opinion on the above question?
(2) If yes, were there any reasons that would compel the Court to decline to exercise
it’s jurisdiction?
(3) Did treaty or customary law authorize the use of nuclear weapons?
(4) Did treaty or customary law contain a “comprehensive and universal” prohibition
on the threat and use of nuclear weapons?
(5) Should the threat or use of nuclear weapons be compatible with international
humanitarian law and other undertakings of the law?
(6) Will the threat or use of nuclear weapons be lawful in self defense in situations
where the very survival of the State is at stake?
(7) Is there an obligation on States to work towards nuclear disarmament?
The Court’s Decision:
Relevant Findings of the Court:
(1) Did the Court have the jurisdiction to give a reply to the request of the General
Assembly?
The Court concludes that it had the jurisdiction to respond to the question for the
following reasons:
(1) Firstly, the Court says that it has the competence under Article 65 (1) of the Statute
of the ICJ to provide an advisory opinion, when it is requested by a “competent organ
of the United Nations”.
The Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the United
Nations to make such a request.
(2) Secondly, the General Assembly is a “competent organ” because it is authorized
by Article 96 (1) of the United Nations Charter to request an advisory opinion from
the Court. The Court says that:
The General Assembly or the Security Council may request the International Court of
Justice to give an advisory opinion on any legal question.
(3) Thirdly, together with Articles 10, 11, and 13, Article 96(1) of the UN Charter
gives the General Assembly the competence to request an advisory opinion on “any
legal question”.
(4) Some states said that this particular question is not a legal question but a political
question. The Court reiterates that it has consistently held that the mere fact that a
question before the Court may also have “political dimensions” or “political
consequences” will not deprive the question of its legal character, or affect the
competence of the Court to reply. The Court concludes that this question is a legal
question. In other words, it is “framed in terms of the law and rais(ing) problems of
international law…(which) are by their very nature susceptible of a reply based on
law”. Thus, the Court concludes it had the relevant jurisdiction to respond to this
question.
(2) Even if the Court had the relevant competence, should it use its discretion and
refuse to respond to the question?
The Court concludes that there are no “compelling reasons” to refuse to provide a
response to the advisory opinion.
(1) The Court agrees that even if it has the competence to give an opinion, it can still
refuse to respond to an advisory opinion based on the discretion it has under Article
65 (1) of the Statute. If you recall, Article 65 (1) says that “the Court may give an
advisory opinion…”.
(2) Some States argued that Court should use its discretion to refuse to give an opinion.
This is because, they argued, for example, that the question posed by the General
Assembly was abstract, any response would undermine progress already made in
disarmament, and that in answering the question posed the Court would be taking
upon itself a law-making capacity.The Court rejects all of these arguments in detail.
(see paras 10 – 19). It says that:
The Court’s opinion is given not to States, but to the organ which is entitled to request
it; the reply of the Court, itself an ‘organ of the United Nations’, represents its
participation in the activities of the Organization, and in principle, should not be
refused.
(3) The Court confirms that it had previously never exercised its discretion under
Article 65 (1) to refuse to answer a question. The Court says that only “compelling
reasons” could lead to such a refusal and that, in this situation, there are no “compelling
reasons” which would lead the Court to refuse.
(3) Did customary or treaty law authorize the use of nuclear weapons?
The Court concludes that neither customary law, nor treaty law, explicitly authorizes
the use of nuclear weapons (para 52).
Yet, it highlights that explicit authorization is not required because the illegality on the
threat or use of nuclear weapons does not stem from the lack of specific authorization,
but on a specifically formulated prohibition (the general principle is found in more
detail in the Lotus case).
Next, it went on to examine if customary or treaty law prohibits the threat or use of
nuclear weapons.
(4) Did treaty or customary law prohibit the threat and use of nuclear weapons?
The Court concludes that there is no comprehensive and universal prohibition on the
threat or use of nuclear weapons either in treat or customary law.
(1) In terms of treaty law, some States argued that the use of nuclear weapons would
violate the right to life and other treaty-based human rights, prohibition on genocide,
and rules relating to the protection of the environment. The Court says that none of
these treaties provide a “universal and comprehensive” prohibition on the use of
nuclear weapons (see paras 24-34).
(2) Then, the Court says that the “most directly relevant applicable law” is the UN
Charter provisions relating to the use of force and those laws that govern armed
conflict. However, it finds that both of these legal regimes also do not expressly
prohibit, nor permit, the use of nuclear weapons. The Court finds that:
(a) Articles 2(4), 42, and 51 of the UN Charter that relates to the legality on the use of
force, is silent on the specific weapons that can be used when using force (for more,
see prohibitions on the use of force).
(b) International humanitarian law treaties (part of those laws governing armed
conflict), including the Hague Convention IV of 1907 and the Geneva Protocol of
1925 have been understood in State practice, as not covering nuclear weapons.
Similarly, other humanitarian law treaties governing weapons of mass destruction, like
the Biological and Chemical Weapons Conventions, also do not contain prohibitions
on the use of nuclear weapons.
(c) The Court also points out that those treaties that specifically relate to nuclear
weapons (para 58) only limit its use, but does not support a general prohibition.
(3) In terms of customary law, the Court finds that the opinio juris on the prohibition
of the use of nuclear weapons differs amongst States, as reflected in the content and
voting patterns of General Assembly resolutions, their views on deterrence and the
non use of nuclear weapons in the recent past (para 64 -72 and see post on opinio juris).
The Court finds that:
…the members of the international community are profoundly divided on the matter
of whether non-recourse to nuclear weapons over the past 50 years constitutes the
expression of opinio juris. Under these circumstances the Court does not consider itself
able to find that there is such an opinio juris… The emergence, as lex lata, of a
customary rule specifically prohibiting the use of nuclear weapons as such is hampered
by the continuing tensions between the nascent opinio juris on the one hand, and the
still strong adherence to the practice of deterrence on the other.
(4) The Court concludes that there is no comprehensive and universal prohibitions on
the threat or use of nuclear weapons under treaty law or customary law.
(5) Even if international law does not explicitly prohibit the threat or use of nuclear
weapons, is their use regulated under international law?
Thus far, the Court has concluded that there are no provisions in international law that
authorizes or prohibits the threat or use of nuclear weapons by States. The Court now
goes a step further to examine if the threat or use of these weapons is regulated under
international law. In other words, should its use be compatible with the requirements
of international law applicable in armed conflict (which includes international
humanitarian law) and the UN charter?
The Court finds as follows:
(1) UN Charter: Court had established that the UN Charter did not permit or prohibit
the use any type of weapons. However, it finds that for the a threat or use of force in
self defense to be lawful under Article 51 of the UN Charter, the use of nuclear
weapons must be necessary and proportionate to the armed attack against which self-
defense is exercised. The Court says that the use of nuclear weapons may be
proportionate in certain circumstances (the Court does not specify the circumstances).
(2) International humanitarian law: The Court goes on to hold that even if the threat or
use of nuclear weapons is lawful under the UN Charter (in other words, when it is
necessary and proportionate), it must still meet the requirements of laws regulating
armed conflicts, including international humanitarian law and principles relating to
neutrality.
NB: Points 1 and 2 above were uncontroversial, but the individual judges were divided
amongst themselves on points 3 and 4 below.
(3) The Court finds that it cannot conclude that the recourse of nuclear weapons
“would be illegal in any circumstances”or if the use of nuclear weapons was inherently
and totally incompatible with international humanitarian law.
…In view of the unique characteristics of nuclear weapons… the use of such weapons
in fact seems scarcely reconcilable with respect for such requirements (relating to
distinction and suffering). Nevertheless, the Court considers that it does not have
sufficient elements to enable it to conclude with certainty that the use of nuclear
weapons would necessarily be at variance with the principles and rules of law
applicable in armed conflict in any circumstance… (emphasis added).
This was reaffirmed in the Court’s conclusion when it held that nuclear weapons were
generally, and not absolutely, contrary to international law applicable in armed
conflicts:
It follows from the above-mentioned requirements that the threat or use of nuclear
weapons would generally be contrary to the rules of international law applicable in
armed conflict, and in particular the principles and rules of humanitarian law
(emphasis added).
(4) The Court also finds that it could not reach a conclusion on the legality or illegality
of the use of nuclear weapons in “an extreme case of self defense”. The Court
highlights the “fundamental right of every State to survival” and holds that,
…in view of the present state of international law viewed as a whole… (and base on)
the elements of fact at its disposal, the Court is led to observe that it cannot reach a
definitive conclusion as to the legality (i.e. whether the threat or use of nuclear
weapons would be lawful or unlawful) of the use of nuclear weapons by a State in an
extreme circumstance of self-defense, in which, its very survival would be at stake.
(5) The Court didn’t elaborate on what would constitute an extreme case of self-
defense nor address whether a State having nuclear weapons (a nuclear State) can use
it in the defense of another non-nuclear State when that second State’s very existence
is threatened. See further here.
(7) Is there an obligation on States for nuclear disarmament?
The Court finds that there is an obligation “to pursue in good faith and bring to a
conclusion negotiations leading to disarmament…” (paras 98 – 103),
Note: Other interesting aspects of the judgement that haven’t been dealt with in this
post, in detail, includes paragraphs relating to the applicability of human rights and
environmental law in times of armed conflict (paras 24 – 34), policy of deterrence
(para 48, 66 – 67, 73), and General Assembly’s contribution to the progressive
development of customary law.
- Paquete Habana case, 175 US 677 (1900)
Ancient practice that fishing vessels pursuing their vocation are exempt from capture
as a prize of war. Here, the US captured two Spanish fishing vessels as a prize of war.
How did customary international law arise in this case?
The outcome of the case turned on the enforcement (or non-enforcement) of customary
law prohibiting the capture of fishing vessels.
The court concluded that:
The above practice had become customary international law
Thus the court demonstrated that customary international law can provide the
controlling rule of a decision in some cases in US courts
“International law is part of our law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction, as often as questions of right depending
upon it are duly presented for their determination. For this purpose, where there is no
treaty, and no controlling executive or legislative act or judicial decision, resort must
be had to the customs and usages of civilized nations; and, as evidence of these, to the
works of jurists and commentators, who by years of labor, research and experience,
have made themselves peculiarly well acquainted with the subjects of which they
treat.”
WHAT to get out of the case: there is a vagary in the case, that is important: there are
two interpretations of this case:
1) Customary international law is subordinate to self-executing treaties and acts of
congress (only binding in the absence of a treaty, an act of congress or the executive,
etc.)
2) Customary international law is on the same level as self-executing treaties and
congressional acts, and therefore the later-in-time rule applies
- Preah Vihear Temple Case, ICJ Reports, 1962
Principle:
1. Principle of acquiescence
2. International law uses of principle of equity, which is a principle of law used in
civilized nation and international law adopted the same.
Fact: Preah temple was an ancient and significant temple due to its cultural and
historical value. It was situated on the border of Thailand and Cambodia. Though
Thailand was the historical owner of that area in 1904 when Cambodia was a colony
of French they came to an agreement with Thailand; they agreed to divide the border
according to the watershed. After that, A French – Siamiz (now known as Thailand)
commission they drew a detailed map of the border where thought by mistake but very
clearly marked the Preah Vihear in the territory of Cambodia, Thai Government never
object after officially receiving that map. Later, after several years when Thai Prince
went to visit that Temple, he sow the French Flag over the temple but did not raise any
objection.
The main objection came by Thailand when UNESCO declared The Preah Vihear as
a world heritage and thus take million dollar project to save it, they demanded it as
their land and put some military personnel, on the other hand, Cambodia rejected that
claim. On gradual dispute, it went to International Court of Justice.
Issue: Whether Cambodia had sovereignty over the territory of preah Vihear?
Decision: Cambodia had sovereignty over the whole territory of the promontory of
Preah Vihear and that, in consequence, Thailand was under an obligation to withdraw
from that territory the Thai military or police forces.
Reasoning: The commission that marked the map finally was a joint commission form
both party and both of the party adopted the same without any objection, therefore,
Cambodia had sovereignty over that area according to their treaty.
- Right of Passage Case (Case concerning Right to Passage over
Indian Territory: Portugal v. India)
Facts: Portugal held several small enclaves of territory within India; one on the coast
but the others inland. Portugal claimed they had a right of passage to its inland
territories over Indian land which they alleged India had interfered with.
Issue: does Portugal have a customary right over Indian territory to its
Decision: A right of passage does exist in regional custom.
Reasons: India argued before the Court that practice between only two states was not
sufficient to form a local custom. The Court rejected this reasoning, finding no reason
why a century and a quarter of practice based on mutual rights and obligations was
insufficient for local custom to arise. This local practice, thus, prevailed over any
general rules.
Ratio: Local customary law can exist as long as the elements in the North Sea
Continental Shelf case are made out.
- Corfu Channel Case, ICJ Reports, 1949
Brief Fact Summary. The fact that the Albanian (P) authorities did not make the
presence of mines in its waters was the basis of the United Kingdom (D) claim against
them.
Synopsis of Rule of Law. International obligations in peace time are created through
elementary consideration.
Facts. The explosion of mines in the Albanian (P) waters resulted in the death of a
British naval personnel. It was on this basis that the United Kingdom (D) claimed that
Albania (P) was internationally responsible for damages.
Issue. Are international obligations in time of peace created through elementary
consideration?
Held. Yes. International obligations in peace time are created through elementary
consideration. Every state has an obligation not to knowingly allow its territory to be
used for acts contrary to the rights of other states.
Discussion. In this case, the Court found that the Hague Convention of 1907 could not
be applied but the Convention was applicable only in time of war. It was on the basis
of the principle of freedom of maritime communication that this case was decided.
- Barcelona Traction, Light and Power Co. Case, ICJ Reports, 1970
FACTS:
• The Barcelona Traction, Light and Power Company (BLTPC) was incorporated in
Toronto, Canada for the purpose of creating and developing an electric power
production and distribution system in Catalonia,Spain.
• It formed a number of concession-holding subsidiary companies, of which some had
their registered offices in Canada and the others in Spain.
• Some years after the first world war, the BLTPC’s share capital came to be very
largely held by Belgian nationals.
• However, the servicing of the BLTPC bonds was suspended on account of the
Spanish civil war.
• After that war the Spanish exchange control authorities refused to authorize the
transfer of the foreign currency necessary for the resumption of the servicing of the
sterling bonds.
• Eventually, the company was declared bankrupt.
• Belgium then filed an Application with the ICJ against the Spanish government
seeking reparation for damages claimed to have been caused to the Belgian national
shareholders of the company.
• Later however, Belgium gave notice of discontinuance of the proceedings, with a
view to negotiations between the representatives of the private interests concerned,
and the case was removed from the Court's General List.
• The negotiations having failed, the Belgian Government submitted to the Court a
new Application.
SPAIN’S ARGUMENTS:
I. The Belgian Government gave notice of discontinuance of the proceedings with a
view to negotiations between the representatives of the private interests concerned.
• This was due to the right conferred upon it (Belgium) by Article 69, paragraph 2, of
the Rules of Court. To this, Spain presented no objection.
• This discontinuance precluded Belgium from bringing the proceedings.
• Further, a discontinuance must always be taken as signifying a renunciation of any
further right of action.
II. There had already been an understanding between the Parties.
• The representatives of the private Belgian interests had made an approach with a
view to opening negotiations and that the representatives of the Spanish interests had
laid down as a prior condition the final withdrawal of the claim.
III. Belgium is estopped from denying the real import of the discontinuance.
• Belgium through its conduct misled Spain about the import of the discontinuance,
for which Spain would not have agreed to, and would not thereby have suffered
prejudice.
IV. The proceedings are contrary to the Hispano-Belgian Treaty of Conciliation,
Judicial Settlement and Arbitration, as a result the ICJ lacks jurisdiction.
• Article 17 (4) of the Treaty had already lapsed in 1946, and no substitution of the
present for the former Court had been effected. As such, the Treaty had ceased to
contain any valid jurisdictional clause when Spain was admitted to the UN and became
a party to the Statue in 1955.
• Further, Article 37 applied only between States which had become parties to the
Statute previous to the dissolution of the Permanent Court.
V. The Belgian government has no legal capacity to protect the Belgian interests
on behalf of which it had submitted its claim.
• International law does not recognize, in respect of injury caused by a State to the
foreign company, any diplomatic protection of shareholders exercised by a State other
than the national State of the company.
1ST RULING OF THE COURT IN JULY 24 1964
I.DISCONTINUANCE
• Belgium’s notice of discontinuance was confined strictly to the proceeding instituted
by the first Application thus not waiving its right to institute proceedings anew.
• The obligation of establishing that the discontinuance meant something more than
the decision to terminate those proceedings was placed upon Spain.
II. AGREEMENT BETWEEN PARTIES
• No evidence as to the taking place of any such agreement.
III. ESTOPPEL
• Alleged misrepresentations not clearly established. Also, the Court did not see what
Spain stood to lose by agreeing to negotiate on the basis of a simple discontinuance.
• If it had not agreed to the discontinuance, the previous proceedings would simply
have continues, whereas negotiations offered a possibility of finally settling the
dispute.
IV. CONTRARY TO THE TREATY/ICJ JURISDICTION
• Treaty processes could not be regarded as exhausted so long as the right to bring new
proceedings otherwise existed and until the case had been prosecuted to judgment.
• In 1945 the treaty drafters had intended to preserve as many jurisdictional clauses as
possible from becoming inoperative by reason of the prospective dissolution of the
Permanent Court. It was thus difficult to suppose that they would willingly have
contemplated that the nullification of the jurisdictional clauses whose continuation it
was desired to preserve would be brought about by the very event the effects of which
Article 37 was intended to parry.
• The 1927 Treaty being in force and containing a provision for reference to the
Permanent Court, and the parties to the dispute being parties to the Statute, the matter
was one to be referred to the International Court of Justice which was the competent
forum.
• Also, States becoming parties to the Statute after the dissolution of the Permanent
Court must be taken to have known that one of the results of their admission would be
the reactivation by reason of Article 37 of certain jurisdictional clauses.
V. LEGAL CAPACITY OF BELGIUM
• Belgium has jus standi.
• The question of the jus standi of a government to protect the interests of shareholders
raised an antecedent question of what was the juridical situation in respect of
shareholding interests, as recognized by international law.
• Belgium thus necessarily invoked rights which, so it contended, were conferred on it
in respect of its nationals by the rules of international law concerning the treatment of
foreigners.
• Hence a finding that it had no jus standi would be tantamount to a finding that those
rights did not exist and that the claim was not well-founded in substance.
2ND RULING OF THE COURT IN FEBRUARY 5, 1970
ON RIGHT OF BELGIUM TO TO EXERCISE DIPLOMATIC PROTECTION OF
BELGIAN SHAREHOLDERS IN A COMPANY INCORPORATED IN CANADA
Municipal law applied to international law
• In the field of diplomatic protection, international law was in continuous evolution
and was called upon to recognize institutions of municipal law. In municipal law, the
concept of the company was founded on a firm distinction between the rights of the
company and those of the shareholder.
• Only the company, which was endowed with legal personality, could take action in
respect of matters that were of a corporate character.
• Whenever a shareholder's interests were harmed by an act done to the company, it
was to the latter that he had to look to institute appropriate action.
• An act infringing only the company's rights did not involve responsibility towards
the shareholders, even if their interests were affected. In order for the situation to be
different, the act complained of must be aimed at the direct rights of the shareholder
as such (which was not the case here since the Belgian Government had itself admitted
that it had not based its claim on an infringement of the direct rights of the
shareholders).
ON BELGIUM’S JUS STANDI
Belgium has no jus standi!
• General Rule: State of the company can seek redress. International law had to refer
to those rules generally accepted by municipal legal systems.
• An injury to the shareholder's interests resulting from an injury to the rights of the
company was insufficient to found a claim.
• Where it was a question of an unlawful act committed against a company
representing foreign capital, the general rule of international law authorized the
national State of the company alone to exercise diplomatic protection for the purpose
of seeking redress.
• No rule of international law expressly conferred such a right on the
shareholder's national State.
• It had been maintained that a State could make a claim when investments by its
nationals abroad, such investments being part of a State's national economic resources,
were prejudicially affected in violation of the right of the State itself to have its
nationals enjoy a certain treatment. But, in the present state of affairs, such a right
could only result from a treaty or special agreement. And no instrument of such a kind
was in force between Belgium and Spain.
b.5 teachings of highly qualified publicists
3. International Law defined
 A body of rules and principles of action which are binding upon civilized
states in their relation to one another
 A law which deals with the conduct of the states and of international
organizations and with their relations inter se, as well as with some of their
relations with persons, whether natural or juridical
4. Nature and Scope
a. Regulation of space expeditions
b. Division of the ocean floor
c. Protection of human rights
d. Management of international financial system
e. Regulation of the environment
f. Preservation of peace
5. International Law in relation to Municipal law
- Co Kim Chan v. Valdez Tan Keh, G.R. No. L-5, September 17, 1945
Facts: Petitioner Co Kim Cham had a pending Civil Case with the Court of First
Instance of Manila initiated during the time of the Japanese occupation.
The respondent judge, Judge Arsenio Dizon, refused to continue hearings on the case
which were initiated during the Japanese military occupation on the ground that the
proclamation issued by General MacArthur that “all laws, regulations and processes
of any other government in the Philippines than that of the said Commonwealth are
null and void and without legal effect in areas of the Philippines free of enemy
occupation and control” had the effect of invalidating and nullifying all judicial
proceedings and judgments of the court of the Philippines during the Japanese military
occupation, and that the lower courts have no jurisdiction to take cognizance of and
continue judicial proceedings pending in the courts of the defunct Republic of the
Philippines in the absence of an enabling law granting such authority.
Respondent, additionally contends that the government established during the
Japanese occupation were no de facto government.
Issues:
Whether or not judicial acts and proceedings of the court made during the Japanese
occupation were valid and remained valid even after the liberation or reoccupation of
the Philippines by the United States and Filipino forces.
Whether or not the October 23, 1944 proclamation issued by General MacArthur
declaring that “all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free of enemy occupation and control” has invalidated
all judgments and judicial acts and proceedings of the courts.
Whether or not those courts could continue hearing the cases pending before them, if
the said judicial acts and proceedings were not invalidated by MacArthur’s
proclamation.
Discussions: Political and international law recognizes that all acts and proceedings of
a de facto government are good and valid. The Philippine Executive Commission and
the Republic of the Philippines under the Japanese occupation may be considered de
facto governments, supported by the military force and deriving their authority from
the laws of war. The doctrine upon this subject is thus summed up by Halleck, in his
work on International Law (Vol. 2, p. 444): “The right of one belligerent to occupy
and govern the territory of the enemy while in its military possession, is one of the
incidents of war, and flows directly from the right to conquer. We, therefore, do not
look to the Constitution or political institutions of the conqueror, for authority to
establish a government for the territory of the enemy in his possession, during its
military occupation, nor for the rules by which the powers of such government are
regulated and limited. Such authority and such rules are derived directly from the laws
war, as established by the usage of the world, and confirmed by the writings of
publicists and decisions of courts — in fine, from the law of nations. . . . The municipal
laws of a conquered territory, or the laws which regulate private rights, continue in
force during military occupation, excepts so far as they are suspended or changed by
the acts of conqueror. . . . He, nevertheless, has all the powers of a de facto government,
and can at his pleasure either change the existing laws or make new ones.”
General MacArthur annulled proceedings of other governments in his proclamation
October 23, 1944, but this cannot be applied on judicial proceedings because such a
construction would violate the law of nations.
If the proceedings pending in the different courts of the Islands prior to the Japanese
military occupation had been continued during the Japanese military administration,
the Philippine Executive Commission, and the so-called Republic of the Philippines,
it stands to reason that the same courts, which had become re-established and
conceived of as having in continued existence upon the reoccupation and liberation of
the Philippines by virtue of the principle of postliminy (Hall, International Law, 7th
ed., p. 516), may continue the proceedings in cases then pending in said courts, without
necessity of enacting a law conferring jurisdiction upon them to continue said
proceedings. As Taylor graphically points out in speaking of said principles “a state
or other governmental entity, upon the removal of a foreign military force, resumes its
old place with its right and duties substantially unimpaired. . . . Such political
resurrection is the result of a law analogous to that which enables elastic bodies to
regain their original shape upon removal of the external force, — and subject to the
same exception in case of absolute crushing of the whole fibre and content.”
Rulings: The judicial acts and proceedings of the court were good and valid. The
governments by the Philippine Executive Commission and the Republic of the
Philippines during the Japanese military occupation being de facto governments, it
necessarily follows that the judicial acts and proceedings of the court of justice of those
governments, which are not of a political complexion, were good and valid. Those not
only judicial but also legislative acts of de facto government, which are not of a
political complexion, remained good and valid after the liberation or reoccupation of
the Philippines by the American and Filipino forces under the leadership of General
Douglas MacArthur.
The phrase “processes of any other government” is broad and may refer not only to
the judicial processes, but also to administrative or legislative, as well as
constitutional, processes of the Republic of the Philippines or other governmental
agencies established in the Islands during the Japanese occupation. Taking into
consideration the fact that, as above indicated, according to the well-known principles
of international law all judgements and judicial proceedings, which are not of a
political complexion, of the de facto governments during the Japanese military
occupation were good and valid before and remained so after the occupied territory
had come again into the power of the titular sovereign, it should be presumed that it
was not, and could not have been, the intention of General Douglas MacArthur, in
using the phrase “processes of any other government” in said proclamation, to refer to
judicial processes, in violation of said principles of international law.
Although in theory the authority of the local civil and judicial administration is
suspended as a matter of course as soon as military occupation takes place, in practice
the invader does not usually take the administration of justice into his own hands, but
continues the ordinary courts or tribunals to administer the laws of the country which
he is enjoined, unless absolutely prevented, to respect. An Executive Order of
President McKinley to the Secretary of War states that “in practice, they (the municipal
laws) are not usually abrogated but are allowed to remain in force and to be
administered by the ordinary tribunals substantially as they were before the
occupation. This enlightened practice is, so far as possible, to be adhered to on the
present occasion.” And Taylor in this connection says: “From a theoretical point of
view it may be said that the conqueror is armed with the right to substitute his arbitrary
will for all pre-existing forms of government, legislative, executive and judicial. From
the stand-point of actual practice such arbitrary will is restrained by the provision of
the law of nations which compels the conqueror to continue local laws and institution
so far as military necessity will permit.” Undoubtedly, this practice has been adopted
in order that the ordinary pursuits and business of society may not be unnecessarily
deranged, inasmuch as belligerent occupation is essentially provisional, and the
government established by the occupant of transient character.
B. TREATIES
6. Definition and functions
 Determine the rights and duties of states just as individual rights are
determined by contracts
 Binding force comes from the voluntary decision of sovereign states to
obligate themselved to a mode of behavior
Functions:
a. Sources of international law
b. Charter of international organizations
c. Used to transfer territory, regulate commercial relations, settle disputes,
protect human rights, guarantee investments
7. Four requisites for a valid treaty
A. Treaties are subject to the separation of powers
a. The executive branch negotiates and SIGNS the Treaty
- Gonzales v. Hechanova, 9 SCRA 230
FACTS: Exec. Secretary Hechanova authorised the importation of foreign rice to be
purchased from private sources. Gonzales filed a petition opposing the said
implementation because RA No. 3542 which allegedly repeals or amends RA No.
2207, prohibits the importation of rice and corn "by the Rice and Corn Administration
or any other government agency."
Respondents alleged that the importation permitted in RA 2207 is to be authorized by
the President of the Philippines, and by or on behalf of the Government of the
Philippines. They add that after enjoining the Rice and Corn administration and any
other government agency from importing rice and corn, S. 10 of RA 3542 indicates
that only private parties may import rice under its provisions. They contended that the
government has already constitute valid executive agreements with Vietnam and
Burma, that in case of conflict between RA 2207 and 3542, the latter should prevail
and the conflict be resolved under the American jurisprudence.
ISSUE: W/N the executive agreements may be validated in our courts.
RULING: No. The Court is not satisfied that the status of said tracts as alleged
executive agreements has been sufficiently established. Even assuming that said
contracts may properly considered as executive agreements, the same are unlawful, as
well as null and void, from a constitutional viewpoint, said agreements being
inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although the
President may, under the American constitutional system enter into executive
agreements without previous legislative authority, he may not, by executive
agreement, enter into a transaction which is prohibited by statutes enacted prior
thereto.
Under the Constitution, the main function of the Executive is to enforce laws enacted
by Congress. He may not interfere in the performance of the legislative powers of the
latter, except in the exercise of his veto power. He may not defeat legislative
enactments that have acquired the status of law, by indirectly repealing the same
through an executive agreement providing for the performance of the very act
prohibited by said laws.
- Secretary of Justice v. Lantion, 322 SCRA 160. MR.
Denied in 343 SCRA 377
FACTS: Secretary Of Justice Franklin Drilon, representing the Government of the
Republic of the Philippines, signed in Manila the “extradition Treaty Between the
Government of the Philippines and the Government of the U.S.A. The Philippine
Senate ratified the said Treaty.
On June 18, 1999, the Department of Justice received from the Department of Foreign
Affairs U.S Note Verbale No. 0522 containing a request for the extradition of private
respondent Mark Jiminez to the United States.
On the same day petitioner designate and authorizing a panel of attorneys to take
charge of and to handle the case. Pending evaluation of the aforestated extradition
documents, Mark Jiminez through counsel, wrote a letter to Justice Secretary
requesting copies of the official extradition request from the U.S Government and that
he be given ample time to comment on the request after he shall have received copies
of the requested papers but the petitioner denied the request for the consistency of
Article 7 of the RP-US Extradition Treaty stated in Article 7 that the Philippine
Government must present the interests of the United States in any proceedings arising
out of a request for extradition.
ISSUE: Whether or not to uphold a citizen’s basic due process rights or the
governments ironclad duties under a treaty.
RULING: Petition dismissed.
The human rights of person, whether citizen or alien, and the rights of the accused
guaranteed in our Constitution should take precedence over treaty rights claimed by a
contracting state. The duties of the government to the individual deserve preferential
consideration when they collide with its treaty obligations to the government of
another state. This is so although we recognize treaties as a source of binding
obligations under generally accepted principles of international law incorporated in
our Constitution as part of the law of the land.
The doctrine of incorporation is applied whenever municipal tribunals are confronted
with situation in which there appears to be a conflict between a rule of international
law and the provision of the constitution or statute of the local state.
Petitioner (Secretary of Justice) is ordered to furnish Mark Jimenez copies of the
extradition request and its supporting papers, and to grant him (Mark Jimenez) a
reasonable period within which to file his comment with supporting evidence.
“Under the Doctrine of Incorporation, rules of international law form part of the law
of the land and no further legislative action is needed to make such rules applicable in
the domestic sphere.
“The doctrine of incorporation is applied whenever municipal tribunals are confronted
with situations in which there appears to be a conflict between a rule of international
law and the provisions of the constitution or statute of the local state.
“Efforts should first be exerted to harmonize them, so as to give effect to both since it
is to be presumed that municipal law was enacted with proper regard for the generally
accepted principles of international law in observance of the incorporation clause in
the above cited constitutional provision.
“In a situation, however, where the conflict is irreconcilable and a choice has to be
made between a rule of international law and a municipal law, jurisprudence dictates
that municipal law should be upheld by the municipal courts, for the reason that such
courts are organs of municipal law and are accordingly bound by it in all
circumstances.
“The fact that international law has been made part of the law of the land does not
pertain to or imply the primacy of international law over national or municipal law in
the municipal sphere. The doctrine of incorporation, as applied in most countries,
decrees that rules of international law are given equal standing with, but are not
superior to, national legislative enactments. Accordingly, the principle lex posterior
derogate priori takes effect – a treaty may repeal a statute and a statute may repeal a
treaty. In states where the Constitution is the highest law of the land, such as the
Republic of the Philippines, both statutes and treaties may be invalidated if they are in
conflict with the constitution.
- Government of the United States of America v. Purganan,
389 SCRA 623
Facts: The petition at bar seeking to void and set aside the Orders issued by the
Regional Trial Court (RTC) of Manila, Branch 42. The first assailed Order set for
hearing petitioner’s application for the issuance of a warrant for the arrest of
Respondent Mark B. Jimenez.
Pursuant to the existing RP-US Extradition Treaty, the US Government requested the
extradition of Mark Jimenez. A hearing was held to determine whether a warrant of
arrest should be issued. Afterwards, such warrant was issued but the trial court allowed
Jimenez to post bail for his provisional liberty.
Issue: Whether or not the right to bail is available in extradition proceedings
Discussions: The constitutional right to bail “flows from the presumption of innocence
in favor of every accused who should not be subjected to the loss of freedom as
thereafter he would be entitled to acquittal, unless his guilt be proved beyond
reasonable doubt.” It follows that the constitutional provision on bail will not apply to
a case like extradition, where the presumption of innocence is not at issue.
Ruling: No. The court agree with petitioner. As suggested by the use of the word
“conviction,” the constitutional provision on bail quoted above, as well as Section 4
of Rule 114 of the Rules of Court, applies only when a person has been arrested and
detained for violation of Philippine criminal laws. It does not apply to extradition
proceedings, because extradition courts do not render judgments of conviction or
acquittal.
It is also worth noting that before the US government requested the extradition of
respondent, proceedings had already been conducted in that country. But because he
left the jurisdiction of the requesting state before those proceedings could be
completed, it was hindered from continuing with the due processes prescribed under
its laws. His invocation of due process now has thus become hollow. He already had
that opportunity in the requesting state; yet, instead of taking it, he ran away.
- Cuevas v. Munoz, 348 SCRA 542
Extradition Case: “In tilting the balance in favor of the interests of the State, the Court
stresses that it is not ruling that the private respondent has no right to due process at
all throughout the length and breath of the extrajudicial proceedings. Procedural due
process requires a determination of what process is due, when it is due and the degree
of what is due. Stated otherwise, a prior determination should be made as to whether
procedural protections are at all due and when they are due, which in turn depends on
the extent to which an individual will be ‘condemned to suffer grievous loss.] We have
explained why an extraditee has no right to notice and hearing during the evaluation
stage of the extradition process. As aforesaid, P.D. 1069 xxx affords an extraditee
sufficient opportunity to meet the evidence against him once the petition is filed in
court. The time for the extraditee to know the basis of the request for his extradition
is merely moved to the filing in court of the formal petition for extradition. The
extraditee’s right to know is momentarily withheld during the evaluation stage of the
extradition process to accommodate the more compelling interest of the State to
prevent escape of potential extraditees which can be precipitated by premature
information of the basis of the request for his extradition. No less compelling at that
stage of the extradition proceedings is the need to be more deferential to the judgment
of a co-equal branch of the government, the Executive, which has been endowed by
our Constitution with greater power over matters involving our foreign relations.
Needless to state, this balance of interests is not a static but a moving balance which
can be adjusted as the extradition process moves from the administrative stage to the
judicial stage and to the execution stage depending on factors that will come into play.
In sum, we rule that the temporary hold on private respondent’s privilege of notice and
hearing is a soft restraint on his right to due process which will not deprive him of
fundamental fairness should he decide to resist the request for his extradition to the
United States. There is no denial of due process as long as fundamental fairness is
assured a party.”
Facts: The Hong Kong Magistrate’s Court at Eastern Magistracy issued a warrant for
the arrest of respondent Juan Antonio Muñoz for seven (7) counts of accepting an
advantage as an agent and seven(7) counts of conspiracy to defraud, contrary to the
common law of Hong Kong The Department of Justice received a request for the
provisional arrest of the respondent from the Mutual Legal Assistance Unit,
International Law Division of the Hong Kong Department of Justice pursuant to
Article 11(1) of the RP-Hong Kong Extradition Agreement. Upon application of the
NBI, RTC of Manila issued an Order granting the application for provisional arrest
and issuing the corresponding Order of Arrest. Consequently, respondent was arrested
pursuant to the said order, and is currently detained at the NBI detention cell.
Respondent filed with the Court of Appeals, a petition for certiorari, prohibition and
mandamus with application for preliminary mandatory injunction and/or writ of
habeas corpus assailing the validity of the Order of Arrest. The Court of Appeals
rendered a decision declaring the Order of Arrest null and void on the grounds, among
others that the request for provisional arrest and the accompanying warrant of arrest
and summary of facts were unauthenticated and mere facsimile copies which are
insufficient to form a basis for the issuance of the Order of Arrest. Thus, petitioner
Justice Serafin R. Cuevas, in his capacity as the Secretary of the Department of Justice
lost no time in filing the instant petition.
Issue: Whether or not the request for provisional arrest of respondent and its
accompanying documents must be authenticated.
Held: The request for provisional arrest of respondent and its accompanying
documents is valid despite lack of authentication. There is no requirement for the
authentication of a request for provisional arrest and its accompanying documents. The
enumeration in the provision of RP-Hong Kong Extradition Agreement does not
specify that these documents must be authenticated copies. This may be gleaned from
the fact that while Article 11(1) does not require the accompanying documents of a
request for provisional arrest to be authenticated, Article 9 of the same Extradition
Agreement makes authentication a requisite for admission in evidence of any
document accompanying a request for surrender or extradition. In other words,
authentication is required for the request for surrender or extradition but not for the
request for provisional arrest. The RP-Hong Kong Extradition Agreement, as they are
worded, serves the purpose sought to be achieved by treaty stipulations for provisional
arrest. The process of preparing a formal request for extradition and its accompanying
documents, and transmitting them through diplomatic channels, is not only time-
consuming but also leakage-prone. There is naturally a great likelihood of flight by
criminals who get an intimation of the pending request for their extradition. To solve
this problem, speedier initial steps in the form of treaty stipulations for provisional
arrest were formulated. Thus, it is an accepted practice for the requesting state to rush
its request in the form of a telex or diplomatic cable. Respondent’s reliance on Garvida
v. Sales, Jr. is misplaced. The proscription against the admission of a pleading that has
been transmitted by facsimile machine has no application in the case at bar for obvious
reasons. First, the instant case does not involve a pleading; and second, unlike the
COMELEC.
- Govt. of Hongkong Spl. Admin Region v. Olalia Jr. 521
SCRA 470
FACTS: Respondent Muñoz was charged of 3 counts of offences of “accepting an
advantage as agent”, and 7 counts of conspiracy to defraud, punishable by the common
law of Hongkong. The Hongkong Depoartment of Justice requested DOJ for the
provisional arrest of respondent Muñoz; the DOJ forward the request to the NBI then
to RTC. On the same day, NBI agents arrested him.
Respondent filed with the CA a petition for certiorari, prohibition and mandamus with
application for preliminary mandatory injunction and writ of habeas corpus
questioning the validity of the order of arrest.
The CA declared the arrest void. Hence this petition by the Hongkong Department of
Justice thru DOJ.
DOJ filed a petition for certiorari in this Court and sustained the validity of the arrest.
Hongkong Administrative Region then filed in the RTC petition for extradition and
arrest of respondent. Meanwhile, respondent filed a petition for bail, which was
opposed by the petitioner, initially the RTC denied the petition holding that there is no
Philippine Law granting bail in extradition cases and that private responded is a “flight
risk”.
Motion for reconsideration was filed by the respondent, which was granted. Hence this
petition.
ISSUE: Whether or not right to bail can be avail in extradition cases.
HELD: In Purganan case, the right to bail was not included in the extradition cases,
since it is available only in criminal proceedings.
However the Supreme Court, recognised the following trends in International Law.
1. The growing importance of the individual person in publican international law
who, in the 20th century attained global recognition.
2. The higher value now being given in human rights in international sphere
3. The corresponding duty of countries to observe these human rights in fulfilling
their treaty obligations
4. The of duty of this court to balance the rights of the individual under our
fundamental law, on one hand, and the law on extradition on the other.
The modern trend in the public international law is the primacy placed on the sanctity
of human rights.
Enshrined the Constitution “The state values the dignity of every human person and
guarantees full respect for human rights.” The Philippines therefore, has the
responsibility of protecting and promoting the right of every person to liberty and due
process, ensuring that those detained or arrested can participate in the proceeding
before the a court, to enable it to decide without delay on the legality of the detention
and order their release if justified.
Examination of this Court in the doctrines provided for in the US Vs Purganan provide
the following.
1. The exercise of the State’s police power to deprive a person of his liberty is not
limited to criminal proceedings.
2. To limit the right to bail in the criminal proceeding would be to close our eyes to
jurisprudential history. Philippines has not limited the exercise of the right to bail to
criminal proceedings only. This Court has admitted to bail persons who are not
involved in criminal proceedings. In fact, bail has been involved in this jurisdiction to
persons in detention during the tendency of administrative proceedings, taking into
cognisance the obligation of the Philippines under international conventions to uphold
human rights.
EXTRADITION, is defined as the removal of an accused from the Philippines with
the object of placing him at the disposal of foreign authorities to enable the requesting
state or government to hold him in connection with criminal investigation directed
against him or execution of a penalty imposed on him under the penal and criminal
law of the requesting state or government. Thus characterized as the right of the a
foreign power, created by treaty to demand the surrender of one accused or convicted
of a crimes within its territorial jurisdiction, and the correlative obligation of the other
state to surrender him to the demanding state.
The extradited may be subject to detention as may be necessary step in the process of
extradition, but the length of time in the detention should be reasonable.
In the case at bar, the record show that the respondent, Muñoz has been detained for 2
years without being convicted in Hongkong.
The Philippines has the obligation of ensuring the individual his right to liberty and
due process and should not therefor deprive the extraditee of his right to bail
PROVIDED that certain standards for the grant is satisfactorily met. In other words
there should be “CLEAR AND CONVINCING EVIDENCE”.
However in the case at bar, the respondent was not able to show and clear and
convincing evidence that he be entitled to bail. Thus the case is remanded in the court
for the determination and otherwise, should order the cancellation of his bond and his
immediate detention.
- Gov't of Hongkong Special Administrative Region v.
Munoz, 800 SCRA 467
RESOLUTION
BERSAMIN, J.:
Under the rule of specialty in international law, a Requested State shall surrender to a
Requesting State a person to be tried only for a criminal offense specified in their treaty
of extradition. Conformably with the dual criminality rule embodied in the extradition
treaty between the Philippines and the Hong Kong Special Administrative Region
(HKSAR), however, the Philippines as the Requested State is not bound to extradite
the respondent to the jurisdiction of the HKSAR as the Requesting State for the offense
of accepting an advantage as an agent considering that the extradition treaty is
forthright in providing that surrender shall only be granted for an offense coming
within the descriptions of offenses in its Article 2 insofar as the offenses are punishable
by imprisonment or other form of detention for more than one year, or by a more
severe penalty according to the laws of both parties.
For consideration and resolution is the petitioner's motion for reconsideration1 to seek
the review and reversal of the decision promulgated on August 16, 2016,2 whereby
the Court affirmed the amended decision of the Court of Appeals (CA) promulgated
on March 1, 2013 in CA-G.R. CV No. 88610, and accordingly denied the petition for
review on certiorari.3We thereby held that respondent Juan Antonio Muñoz could only
be extradited to and tried by the HK.SAR for seven (7) counts of conspiracy to
defraud, but not for the other crime of accepting an advantage as an agent. This,
because conspiracy to defraud was a public sector offense, but accepting an advantage
as an agentdealt with private sector bribery; hence, the dual criminality rule embodied
in the treaty of extradition has not been met.
The Court DENIES the petitioner's motion for reconsideration for its lack of merit
considering that the basic issues being thereby raised were already passed upon and
no substantial arguments were presented to warrant the reversal of the decision
promulgated on August 16, 2016.
Article 2 of the RP-Hong Kong treaty provides that surrender of the extraditee by the
Requested State to the Requesting State shall only be for an offense coming within
any of the descriptions of the offenses therein listed insofar as the offenses are
punishable by imprisonment or other form of detention for more than one year, or by
a more severe penalty according to the laws of both parties. The provision expresses
the dual criminality rule. The determination of whether or not the offense concerned
complied with the dual criminality rule rests on the Philippines as the requested party.
Hence, the Philippines must carefully ascertain the exact nature of the offenses
involved in the request, and thereby establish that the surrender of Muñoz for trial in
the HKSAR will be proper. On its part, the HKSAR as the requesting party should
prove that the offense is covered by the RP-Hong Kong Treaty, and punishable in our
jurisdiction.
A perusal of the motion for reconsideration shows that the petitioner has lifted from
the dissenting opinion the arguments it now advances to support its insistence that
Munoz must also be extradited for the crime of accepting an advantage as an agent. In
the last paragraph of the motion for reconsideration, the petitioner cites the
ruling supposedly handed down by the Court of Final Appeal of the HKSAR in the
case of B v. The Commissioner of the Independent Commission Against Corruption to
the effect that the term agent in Section 9 of the HK.SAR' s Prevention of Bribery
Ordinance (POBO) also covered public servants in another jurisdiction.4 On the basis
of such supposed ruling, the petitioner prays that the exclusion of the crime
of accepting an advantage as an agent be reversed; and that the Court should hold
Muñoz to be extraditable also for such crime.
The petitioner's prayer cannot be granted. To grant it would be to take judicial notice
of the ruling in B v. The Commissioner of the Independent Commission Against
Corruption. Like all other courts in this jurisdiction, however, the Court is not at liberty
to take judicial notice of the ruling without contravening our own rules on evidence
under which foreign judgments and laws are not considered as matters of a public or
notorious nature that proved themselves.
Verily, foreign judgments and laws, if relevant, have to be duly alleged and
competently proved like any other disputed fact. Noveras v. Noveras5explains why:
x x x Justice Herrera explained that, as a rule, "no sovereign is bound to give effect
within its dominion to a judgment rendered by a tribunal of another country." This
means that the foreign judgment and its authenticity must be proven as facts under our
rules on evidence, together with the alien's applicable national law to show the effect
of the judgment on the alien himself or herself. The recognition may be made in an
action instituted specifically for the purpose or in another action where a party invokes
the foreign decree as an integral aspect of his claim or defense.
xxxx
Under Section 24 of Rule 132, the record of public documents of a sovereign authority
or tribunal may be proved by: (1) an official publication thereof or (2) a copy attested
by the officer having the legal custody thereof. Such official publication or copy must
be accompanied, if the record is not kept in the Philippines, with a certificate that the
attesting officer has the legal custody thereof. The certificate may be issued by any of
the authorized Philippine embassy or consular officials stationed in the foreign country
in which the record is kept, and authenticated by the seal of his office. The attestation
must state, in substance, that the copy is a correct copy of the original, or a specific
part thereof, as the case may be, and must be under the official seal of the attesting
officer.
Section 25 of the same Rule states that whenever a copy of a document or record is
attested for the purpose of evidence, the attestation must state, in substance, that the
copy is a correct copy of the original, or a specific part thereof, as the case may
be.1âwphi1 The attestation must be under the official seal of the attesting officer, if
there be any, or if he be the clerk of a court having a seal, under the seal of such court.6
Worthy to remind in this regard is that the power to take judicial notice is to be
exercised by the courts of the Philippines with caution, and every reasonable doubt
should be resolved in the negative.7
Furthermore, the courts in the Philippines lacked expertise on the laws of the HK.SAR.
This precisely necessitated the hearing before the trial court to receive the opinion
testimonies of qualified experts on the laws of the HK.SAR. The experts were Clive
Stephen Grossman, the Senior Counsel of the Hong Kong Bar Association, and Ian
Charles Mc Walters, the Senior Assistant Director of Public Prosecutions in the
Department of Justice of the HK.SAR. Not surprisingly, said legal experts shared the
opinion that the offense defined in Section 9 of the POBO was a private sector
offense. The CA thus decided against the petitioner's position. To extradite Muñoz
also for the crime for accepting an advantage as an agent would be devoid of
justification if the Philippines did not have an equivalent crime of accepting an
advantage as an agent.
At the time when the ruling in B v. The Commissioner of the Independent Commission
Against Corruption was supposedly handed down on January 28, 2010 by the Court
of Final Appeal of the HK.SAR, this case was already pending consideration on appeal
by the CA. The CA promulgated the assailed amended decision on March 1, 2013
upon Muñoz's motion for reconsideration in order to declare that he could not be
extradited for the crime of accepting an advantage as an agent due to non-compliance
with the dual criminality rule. All throughout this time, the petitioner did not
seasonably and properly apprise the CA of the relevant case law in its jurisdiction. It
was only in the motion for reconsideration that the petitioner apprised the Court of the
ruling, but mentioned only the title of the case. The petitioner did not attempt to prove
the ruling as a fact.
The petitioner's belatedness in bringing the ruling to our attention was another proof
of the ruling's lack of relevance and applicability herein.
It is also notable that the petitioner did not present an official publication of the ruling
or at least a copy of it attested by the proper office or officer having legal custody (if
attestation was the rule in that jurisdiction). As a consequence, the ruling was not also
shown to be a public document under the laws of the HK.SAR.
ACCORDINGLY, the Court DENIES the motion for reconsideration with finality.
SO ORDERED.
- Pimentel v. Office of the Executive Secretary, 462 SCRA
622
Facts: This is a petition for mandamus filed by petitioners to compel the Office of the
Executive Secretary and the Department of Foreign Affairs to transmit the signed copy
of the Rome Statute of the International Criminal Court to the Senate of the Philippines
for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution.
The Rome Statute established the International Criminal Court which “shall have the
power to exercise its jurisdiction over persons for the most serious crimes of
international concern xxx and shall be complementary to the national criminal
jurisdictions.” Its jurisdiction covers the crime of genocide, crimes against humanity,
war crimes and the crime of aggression as defined in the Statute. The Statute was
opened for signature by all states in Rome on July 17, 1998 and had remained open
for signature until December 31, 2000 at the United Nations Headquarters in New
York. The Philippines signed the Statute on December 28, 2000 through Charge d’
Affairs Enrique A. Manalo of the Philippine Mission to the United Nations. Its
provisions, however, require that it be subject to ratification, acceptance or approval
of the signatory states.
Petitioners filed the instant petition to compel the respondents — the Office of the
Executive Secretary and the Department of Foreign Affairs — to transmit the signed
text of the treaty to the Senate of the Philippines for ratification.
It is the theory of the petitioners that ratification of a treaty, under both domestic law
and international law, is a function of the Senate. Hence, it is the duty of the executive
department to transmit the signed copy of the Rome Statute to the Senate to allow it to
exercise its discretion with respect to ratification of treaties. Moreover, petitioners
submit that the Philippines has a ministerial duty to ratify the Rome Statute under
treaty law and customary international law.
Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states
to refrain from acts which would defeat the object and purpose of a treaty when they
have signed the treaty prior to ratification unless they have made their intention clear
not to become parties to the treaty.
Issue: W/N the executive department has no duty to transmit the Rome Statute to the
Senate for concurrence; or
Whether the Executive Secretary and the Department of Foreign Affairs have a
ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a
member of the Philippine Mission to the United Nations even without the signature of
the President.
Held: In our system of government, the President, being the head of state, is regarded
as the sole organ and authority in external relations and is the country’s sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country’s mouthpiece with respect to international affairs. Hence,
the President is vested with the authority to deal with foreign states and governments,
extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-making, the
President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into
treaties, the Constitution provides a limitation to his power by requiring the
concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered
into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty
or international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate.” The 1935 and the 1973 Constitution also
required the concurrence by the legislature to the treaties entered into by the executive.
It should be emphasized that under our Constitution, the power to ratify is vested in
the President, subject to the concurrence of the Senate. The role of the Senate,
however, is limited only to giving or withholding its consent, or concurrence, to the
ratification. Hence, it is within the authority of the President to refuse to submit a treaty
to the Senate or, having secured its consent for its ratification, refuse to ratify it.
Although the refusal of a state to ratify a treaty which has been signed in its behalf is
a serious step that should not be taken lightly, such decision is within the competence
of the President alone, which cannot be encroached by this Court via a writ of
mandamus. This Court has no jurisdiction over actions seeking to enjoin the President
in the performance of his official duties. The Court, therefore, cannot issue the writ of
mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the
executive branch of the government to transmit the signed text of Rome Statute to the
Senate.
IN VIEW WHEREOF, the petition is DISMISSED.