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JMCRUZ REVIEWER IN PUBLIC INTERNATIONAL LAW FINAL EXAM

BASED ON ATTY. TUPAZ’S CASE LIST

CASE DOCTRINE
Sources of International Law
BAYAN V. ZAMORA Section 25, Art XVIII, not section 21, Art. VII,
applies, as the VFA involves the presence of foreign
military troops in the Philippines.

The Constitution contains two provisions requiring the


concurrence of the Senate on treaties or international
agreements.

Section 21, Article VII reads: “[n]o treaty or


international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the
Members of the Senate.”

Section 25, Article XVIII, provides:”[a]fter the


expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of
America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by
the Senate and, when the Congress so requires, ratified
by a majority of the votes cast by the people in a
national referendum held for that purpose, and
recognized as a treaty by the other contracting State.”

Section 21, Article VII deals with treaties or


international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the
Members of the Senate is required to make the treaty
valid and binding to the Philippines. This provision
lays down the general rule on treaties. All treaties,
regardless of subject matter, coverage, or particular
designation or appellation, requires the concurrence of
the Senate to be valid and effective. In contrast,
Section 25, Article XVIII is a special provision that
applies to treaties which involve the presence of
foreign military bases, troops or facilities in the
Philippines. Under this provision, the concurrence of
the Senate is only one of the requisites to render
compliance with the constitutional requirements and
to consider the agreement binding on the Philippines.
Sec 25 further requires that “foreign military bases,
troops, or facilities” may be allowed in the Philippines
only by virtue of a treaty duly concurred in by the
Senate, ratified by a majority of the votes cast in a
JMCRUZ REVIEWER IN PUBLIC INTERNATIONAL LAW FINAL EXAM
BASED ON ATTY. TUPAZ’S CASE LIST

national referendum held for that purpose if so


required by Congress, and recognized as such by the
other contracting state.

On the whole, the VFA is an agreement which defines


the treatment of US troops visiting the Philippines. It
provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the
US and RP government in the matter of criminal
jurisdiction, movement of vessel and aircraft, import
and export of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which
specifically deals with treaties involving foreign
military bases, troops, or facilities, should apply in the
instant case. To a certain extent, however, the
provisions of Section 21, Article VII will find
applicability with regard to determining the number of
votes required to obtain the valid concurrence of the
Senate.

It is specious to argue that Section 25, Article XVIII is


inapplicable to mere transient agreements for the
reason that there is no permanent placing of structure
for the establishment of a military base. The
Constitution makes no distinction between “transient”
and “permanent”. We find nothing in Section 25,
Article XVIII that requires foreign troops or facilities
to be stationed or placed permanently in the
Philippines. When no distinction is made by law; the
Court should not distinguish. We do not subscribe to
the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely
foreign troops and facilities, are involved in the VFA.
The proscription covers “foreign military bases,
troops, or facilities.” Stated differently, this
prohibition is not limited to the entry of troops and
facilities without any foreign bases being established.
The clause does not refer to “foreign military bases,
troops, or facilities” collectively but treats them as
separate and independent subjects, such that three
different situations are contemplated — a military
treaty the subject of which could be either (a) foreign
bases, (b) foreign troops, or (c) foreign facilities —
any of the three standing alone places it under the
coverage of Section 25, Article XVIII.
JMCRUZ REVIEWER IN PUBLIC INTERNATIONAL LAW FINAL EXAM
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LIM V. EXECUTIVE SECRETARY Both the Mutual Defense Treaty and the Visiting
Forces Agreement as in all other treaties and
international agreements to which the Philippines is a
party, must be read in the context of the 1987
Constitution. In particular, the Mutual Defense Treaty
was concluded way before the present Charter, though
it nevertheless remains in effect as a valid source of
international obligation. The present Constitution
contains key provisions useful in determining the
extent to which foreign military troops are allowed in
Philippine territory. Thus, in the Declaration of
Principles and State Policies, it is provided that:
xxx xxx xxx xxx
SEC. 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.
xxx xxx xxx xxx
SEC. 7. The State shall pursue an independent foreign
policy. In its relations with other states the paramount
consideration shall be national sovereignty, territorial
integrity, national interest, and the right to self-
determination.
SEC. 8. The Philippines, consistent with the national
interest, adopts and pursues a policy of freedom from
nuclear weapons in the country.
xxx xxx xxx xxx
The Constitution also regulates the foreign relations
powers of the Chief Executive when it provides that
"[n]o treaty or international agreement shall be valid
and effective unless concurred in by at least two-thirds
of all the members of the Senate." Even more
pointedly, the Transitory Provisions state:
Sec. 25. After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the
United States of America concerning Military Bases,
foreign military bases, troops or facilities shall not be
allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose,
and recognized as a treaty by the other contracting
state.
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The aforequoted provisions betray a marked antipathy


towards foreign military presence in the country, or of
foreign influence in general. Hence, foreign troops are
allowed entry into the Philippines only by way of
direct exception.

National law perspective - the fact that international


law has been made part of the law of the land does not
by any means imply the primacy of international law
over national law in the municipal sphere. Under the
doctrine of incorporation as applied in most countries,
rules of international law are given a standing equal,
not superior, to national legislation.

International law perspective - a treaty is favored over


municipal law pursuant to the principle of pacta sunt
servanda. Hence, "[e]very treaty in force is binding
upon the parties to it and must be performed by them
in good faith." Further, a party to a treaty is not
allowed to "invoke the provisions of its internal law as
justification for its failure to perform a treaty."

As regards the question whether an international


agreement may be invalidated by our courts, suffice it
to say that the Constitution of the Philippines has
clearly settled it in the affirmative, by providing, in
Section 2 of Article VIII thereof, that the Supreme
Court may not be deprived "of its jurisdiction to
review, revise, reverse, modify, or affirm on appeal,
certiorari, or writ of error as the law or the rules of
court may provide, final judgments and decrees of
inferior courts in -( I) All cases in which
the constitutionality or validity of any treaty, law,
ordinance, or executive order or regulation is in
question." In other words, our Constitution authorizes
the nullification of a treaty, not only when it conflicts
with the fundamental law, but, also, when it runs
counter to an act of Congress.

Pimentel v. Executive Secretary 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
JMCRUZ REVIEWER IN PUBLIC INTERNATIONAL LAW FINAL EXAM
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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.

It should be emphasized that under the 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.

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.

By requiring the concurrence of the legislature in the


treaties entered into by the President, the Constitution
ensures a healthy system of checks and balance
necessary in the nation’s pursuit of political maturity
and growth.

ABAYA V. EBDANE It is well to understand the definition of an "exchange


of notes" under international law. The term is defined
in the United Nations Treaty Collection in this wise:

An "exchange of notes" is a record of a routine


agreement that has many similarities with the private
law contract. The agreement consists of the exchange
of two documents, each of the parties being in the
possession of the one signed by the representative of
the other. Under the usual procedure, the accepting
State repeats the text of the offering State to record its
assent. The signatories of the letters may be
government Ministers, diplomats or departmental
heads.

The technique of exchange of notes is frequently


resorted to, either because of its speedy procedure, or,
JMCRUZ REVIEWER IN PUBLIC INTERNATIONAL LAW FINAL EXAM
BASED ON ATTY. TUPAZ’S CASE LIST

sometimes, to avoid the process of legislative


approval.
It is stated that "treaties, agreements, conventions,
charters, protocols, declarations, memoranda of
understanding, modus vivendi and exchange of notes"
all refer to "international instruments binding at
international law." It is further explained that-

Although these instruments differ from each other by


title, they all have common features and international
law has applied basically the same rules to all these
instruments. These rules are the result of long practice
among the States, which have accepted them as
binding norms in their mutual relations. Therefore,
they are regarded as international customary law.
Since there was a general desire to codify these
customary rules, two international conventions were
negotiated. The 1969 Vienna Convention on the Law
of Treaties ("1969 Vienna Convention"), which
entered into force on 27 January 1980, contains rules
for treaties concluded between States. The 1986
Vienna Convention on the Law of Treaties between
States and International Organizations ("1986 Vienna
Convention"), which has still not entered into force,
added rules for treaties with international
organizations as parties. Both the 1969 Vienna
Convention and the 1986 Vienna Convention do not
distinguish between the different designations of these
instruments. Instead, their rules apply to all of those
instruments as long as they meet the common
requirements.
Significantly, an exchange of notes is considered a
form of an executive agreement, which becomes
binding through executive action without the need of
a vote by the Senate or Congress.

PHARMACEUTICAL AND HEALTCARE ASSOC. Under the 1987 Constitution, international law can
OF THE PHILS. V. DOH 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.
The incorporation method applies when, by mere
constitutional declaration, international law is deemed
to have the force of domestic law.
JMCRUZ REVIEWER IN PUBLIC INTERNATIONAL LAW FINAL EXAM
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Treaties become part of the law of the land


through transformation pursuant to Article VII,
Section 21 of the Constitution which provides that
"[n]o treaty or international agreement shall be valid
and effective unless concurred in by at least two-thirds
of all the members of the Senate." Thus, treaties or
conventional international law must go through a
process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to
domestic conflicts.

On the other hand, Section 2, Article II of the 1987


Constitution embodies the incorporation method, to
wit:
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.

THE PROVINCE OF NORTH COTABATO V. GRP Concept of Association runs counter to the national
PEACE PANEL sovereignty and territorial integrity of the Republic:
No province, city, or municipality, not even the
ARMM, is recognized under our laws as having
an associative relationship with the national
government. Indeed, the concept implies powers that
go beyond anything ever granted by the Constitution
to any local or regional government. It also implies the
recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state
in this jurisdiction other than the Philippine State,
much less does it provide for a transitory status that
aims to prepare any part of Philippine territory for
independence.

SAGUISAG V. OCHOA The plain meaning of the Constitution prohibits the


entry of foreign military bases, troops or facilities,
except by way of a treaty concurred in by the Senate -
a clear limitation on the President's dual role as
defender of the State and as sole authority in foreign
relations.

The President, however, may enter into an executive


agreement on foreign military bases, troops, or
facilities, if (a) it is not the instrument that allows the
JMCRUZ REVIEWER IN PUBLIC INTERNATIONAL LAW FINAL EXAM
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presence of foreign military bases, troops, or facilities;


or
(b) it merely aims to implement an existing law or
treaty.

Executive agreements may dispense with the


requirement of Senate concurrence because of the
legal mandate with which they are concluded. As
culled from the afore-quoted deliberations of the
Constitutional Commission, past Supreme Court
Decisions, and works of noted scholars,208 executive
agreements merely involve arrangements on the
implementation of existing policies, rules, laws, or
agreements. They are concluded
(1) to adjust the details of a treaty;
(2) pursuant to or upon confirmation by an act of the
Legislature;or
(3) in the exercise of the President's independent
powers under the Constitution.
The raison d'etre of executive agreements hinges on
prior constitutional or legislative authorizations.

The special nature of an executive agreement is not


just a domestic variation in international agreements.
International practice has accepted the use of various
forms and designations of international agreements,
ranging from the traditional notion of a treaty - which
connotes a formal, solemn instrument - to
engagements concluded in modem, simplified forms
that no longer necessitate ratification.212 An
international agreement may take different forms:
treaty, act, protocol, agreement, concordat, compromis
d'arbitrage, convention, covenant, declaration,
exchange of notes, statute, pact, charter, agreed
minute, memorandum of agreement, modus vivendi,
or some other form.213 Consequently, under
international law, the distinction between a treaty and
an international agreement or even an executive
agreement is irrelevant for purposes of determining
international rights and obligations.

However, this principle does not mean that the


domestic law distinguishing treaties, international
agreements, and executive agreements is relegated to
a mere variation in form, or that the constitutional
requirement of Senate concurrence is demoted to an
JMCRUZ REVIEWER IN PUBLIC INTERNATIONAL LAW FINAL EXAM
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optional constitutional directive. There remain two


very important features that distinguish treaties from
executive agreements and translate them into terms of
art in the domestic setting.

First, executive agreements must remain traceable to


an express or implied authorization under the
Constitution, statutes, or treaties. The absence of these
precedents puts the validity and effectivity of
executive agreements under serious question for the
main function of the Executive is to enforce the
Constitution and the laws enacted by the Legislature,
not to defeat or interfere in the performance of these
rules.214 In turn, executive agreements cannot create
new international obligations that are not expressly
allowed or reasonably implied in the law they purport
to implement.

Second, treaties are, by their very nature, considered


superior to executive agreements. Treaties are
products of the acts of the Executive and the
Senate215 unlike executive agreements, which are
solely executive actions. Because of legislative
participation through the Senate, a treaty is regarded
as being on the same level as a statute. If there is an
irreconcilable conflict, a later law or treaty takes
precedence over one that is prior.218 An executive
agreement is treated differently. Executive agreements
that are inconsistent with either a law or a treaty are
considered ineffective. Both types of international
agreement are nevertheless subject to the supremacy
of the Constitution.

International Law and Municipal Law


TANADA V ANGARA Declaration of Principles and State Policies of the
Constitution “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.” 43
By the doctrine of incorporation, the country is bound
by generally accepted principles of international law,
which are considered to be automatically part of our
own laws. 44 One of the oldest and most fundamental
rules in international law is pacta sunt servanda —
international agreements must be performed in good
faith. “A treaty engagement is not a mere moral
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obligation but creates a legally binding obligation on


the parties . . . A state which has contracted valid
international obligations is bound to make in its
legislations such modifications as may be necessary to
ensure the fulfillment of the obligations undertaken.”

By their inherent nature, treaties really limit or restrict


the absoluteness of sovereignty. By their voluntary
act, nations may surrender some aspects of their state
power in exchange for greater benefits granted by or
derived from a convention or pact. After all, states,
like individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits, they also
commonly agree to limit the exercise of their
otherwise absolute rights. Thus, treaties have been
used to record agreements between States concerning
such widely diverse matters as, for example, the lease
of naval bases, the sale or cession of territory, the
termination of war, the regulation of conduct of
hostilities, the formation of alliances, the regulation of
commercial relations, the settling of claims, the laying
down of rules governing conduct in peace and the
establishment of international organizations. The
sovereignty of a state therefore cannot in fact and in
reality be considered absolute. Certain restrictions
enter into the picture: (1) limitations imposed by the
very nature of membership in the family of nations and
(2) limitations imposed by treaty stipulations.

SEC. OF JUSTICE V. LANTION In the absence of a law or principle of law, we must


apply the rules of fair play. An application of the basic
twin due process rights of notice and hearing will not
go against the treaty or the implementing law. Neither
the Treaty nor the Extradition Law precludes these
rights from a prospective 10xtradite. Similarly,
American jurisprudence and procedures on extradition
pose no proscription. In fact, in interstate extradition
proceedings as explained above, the prospective
10xtradite may even request for copies of the
extradition documents from the governor of the
asylum state, and if he does, his right to be supplied
the same becomes a demandable right.

The basic principles of administrative law instruct us


that “the essence of due process in administrative
proceeding is an opportunity to explain one’s side or
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an opportunity to seek reconsideration of the actions


or ruling complained of In essence, procedural due
process refers to the method or manner by which the
law is enforced. This Court will not tolerate the least
disregard of constitutional guarantees in the
enforcement of a law or treaty.

POE-LLAMANZAREZ V. ELEMPARO Under the 1987 Constitution, an 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. On
the other hand, generally accepted principles of
international law, by virtue of the incorporation clause
of the Constitution, form part of the laws of the land
even if they do not derive from treaty obligations.
Generally accepted principles of international law
include international custom as evidence of a general
practice accepted as law, and general principles of law
recognized by civilized nations. International
customary rules are accepted as binding as a result
from the combination of two elements: the established,
widespread, and consistent practice on the part of
States; and a psychological element known as
the opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that
the practice in question is rendered obligatory by the
existence of a rule of law requiring it. “General
principles of law recognized by civilized nations” are
principles “established by a process of reasoning” or
judicial logic, based on principles which are “basic to
legal systems generally,” such as “general principles
of equity, i.e., the general principles of fairness and
justice,” and the “general principle against
discrimination” which is embodied in the “Universal
Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights,
the International Convention on the Elimination of All
Forms of Racial Discrimination, the Convention
Against Discrimination in Education, the Convention
(No. 111) Concerning Discrimination in Respect of
Employment and Occupation.” These are the same
core principles which underlie the Philippine
Constitution itself, as embodied in the due process and
equal protection clauses of the Bill of Rights.
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CBK POWER CO. V. CIR The Philippine Constitution provides for adherence to
the general principles of international law as part of
the law of the land. The time-honored international
principle of pacta sunt servanda demands the
performance in good faith of treaty obligations on the
part of the states that enter into the agreement. In this
jurisdiction, treaties have the force and effect of law.

The obligation to comply with a tax treaty must take


precedence over the objective of a BIR
issuance. Logically, noncompliance with tax treaties
has negative implications on international relations,
and unduly discourages foreign investors. While the
consequences sought to be prevented by RMO No. 1-
2000 involve an administrative procedure, these may
be remedied through other system management
processes, e.g., the imposition of a fine or penalty. But
we cannot totally deprive those who are entitled to the
benefit of a treaty for failure to strictly comply with an
administrative issuance requiring prior application for
tax treaty relief.

In Deutsche Bank, the Court categorically held that the


BIR should not impose additional requirements that
would negate the availment of the reliefs provided for
under international agreements, especially since said
tax treaties do not provide for any prerequisite at all
for the availment of the benefits under said
agreements.

It bears reiterating that the application for a tax treaty


relief from the BIR should merely operate to
confirm the entitlement of the taxpayer to the relief.

International Boundaries/ Territory


MAGALLONA V EXEC. SEC. The fact of sovereignty, however, does not preclude
the operation of municipal and international law
norms subjecting the territorial sea or archipelagic
waters to necessary, if not marginal, burdens in the
interest of maintaining unimpeded, expeditious
international navigation, consistent with the
international law principle of freedom of navigation.
Thus, domestically, the political branches of the
Philippine government, in the competent discharge of
their constitutional powers, may pass legislation
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designating routes within the archipelagic waters to


regulate innocent and sea lanes passage. Indeed, bills
drawing nautical highways for sea lanes passage are
now pending in Congress.
In the absence of municipal legislation, international
law norms, now codified in UNCLOS III, operate to
grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treaty’s limitations
and conditions for their exercise. Significantly, the
right of innocent passage is a customary international
law, thus automatically incorporated in the corpus of
Philippine law. No modern State can validly invoke its
sovereignty to absolutely forbid innocent passage that
is exercised in accordance with customary
international law without risking retaliatory measures
from the international community.
The fact that for archipelagic States, their archipelagic
waters are subject to both the right of innocent passage
and sea lanes passage does not place them in lesser
footing vis-à-vis continental coastal States which are
subject, in their territorial sea, to the right of innocent
passage and the right of transit passage through
international straits. The imposition of these passage
rights through archipelagic waters under UNCLOS III
was a concession by archipelagic States, in exchange
for their right to claim all the waters landward of their
baselines, regardless of their depth or distance from
the coast, as archipelagic waters subject to
their territorial sovereignty. More importantly, the
recognition of archipelagic States’ archipelago and the
waters enclosed by their baselines as one cohesive
entity prevents the treatment of their islands as
separate islands under UNCLOS III. Separate islands
generate their own maritime zones, placing the waters
between islands separated by more than 24 nautical
miles beyond the States’ territorial sovereignty,
subjecting these waters to the rights of other States
under UNCLOS III.

UNCLOS III and its ancillary baselines laws play no


role in the acquisition, enlargement or, as petitioners
claim, diminution of territory. Under traditional
international law typology, States acquire (or
conversely, lose) territory through occupation,
accretion, cession and prescription, not by executing
multilateral treaties on the regulations of sea-use rights
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or enacting statutes to comply with the treaty’s terms


to delimit maritime zones and continental shelves.
Territorial claims to land features are outside
UNCLOS III, and are instead governed by the rules on
general international law.

LAS PALMAS CASE Sovereignty in the relations between States signifies


independence. Independence in regard to a portion of
the globe is the right to exercise therein, to the
exclusion of any other State, the functions of a State.

Territorial sovereignty is, in general, a situation


recognised and delimited in space, either by so-called
natural frontiers as recognised by international law or
by outward signs of delimitation that are undisputed,
or else by legal engagements entered into between
interested neighbours, such as frontier conventions, or
by acts of recognition of States within fixed [839]
boundaries. If a dispute arises as to the sovereignty
over a portion of territory, it is customary to examine
which of the States claiming sovereignty possesses a
title - cession, conquest, occupation, etc. - superior to
that which the other State might possibly bring
forward against it. Titles of acquisition of territorial
sovereignty in present-day international law are either
based on an act of effective apprehension, such as
occupation or conquest, or, like cession, presuppose
that the ceding and the cessionary Powers or at least
one of them, have the faculty of effectively disposing
of the ceded territory. In the same way natural
accretion can only be conceived of as an accretion to a
portion of territory where there exists an actual
sovereignty capable of extending to a spot which falls
within its sphere of activity.

If, however, no conventional line of sufficient


topographical precision exists or if there are gaps in
the frontiers otherwise established, or if a conventional
line leaves room for doubt, or if, as e.g. in the case of
an island situated in the high seas, the question arises
whether a title is valid erga omnes, the actual
continuous and peaceful display of state functions is in
case of dispute the sound and natural criterium of
territorial sovereignty. The principle that continuous
and peaceful display of the functions of State within a
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given region is a constituent element of territorial


sovereignty.

On the other hand, discovery does not create a


definitive title of sovereignty, but only an inchoate
title, such a title exists, it is true, without external
manifestation. However, according to the view that
has prevailed at any rate since the 19th century, an
inchoate title of discovery must be completed within a
reasonable period by the effective occupation of the
region claimed to be discovered.
Thus, a merely inchoate title could not prevail over the
continuous and peaceful display of authority by
another State.

Jurisdiction of States
ARIGO V. SWIFT The immunity of the State from suit, known also as the
doctrine of sovereign immunity or non-suability of the
State, is expressly provided in Article XVI of the 1987
Constitution which states:
Section 3. The State may not be sued without its
consent.
While the doctrine appears to prohibit only suits
against the state without its consent, it is also
applicable to complaints filed against officials of the
state for acts allegedly performed by them in the
discharge of their duties. The rule is that if the
judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same,.
such as the appropriation of the amount needed to pay
the damages awarded against them, the suit must be
regarded as against the state itself although it has not
been formally impleaded.

This traditional rule of State immunity which exempts


a State from being sued in the courts of another State
without the former's consent or waiver has evolved
into a restrictive doctrine which distinguishes
sovereign and governmental acts (Jure imperil") from
private, commercial and proprietary acts (Jure
gestionis). Under the restrictive rule of State
immunity, State immunity extends only to acts Jure
imperii. The restrictive application of State immunity
is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its
commercial activities or economic affairs.
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The doctrine of immunity from suit will not apply and


may not be invoked where the public official is being
sued in his private and personal capacity as an ordinary
citizen. The cloak of protection afforded the officers
and agents of the government is removed the moment
they are sued in their individual capacity. This
situation usually arises where the public official acts
without authority or in excess of the powers vested in
him. It is a well-settled principle of law that a public
official may be liable in his personal private capacity
for whatever damage he may have caused by his act
done with malice and in bad faith, or beyond the scope
of his authority or jurisdiction.

GOV’T OF USA V. HON. PURGANAN Extradition proceedings are separate and distinct from
the trial for the offenses for which he is charged. He
should apply for bail before the courts trying the
criminal cases against him, not before the extradition
court.

Thus, the rule is that bail is not a matter of right in


extradition cases. However, the judiciary has the
constitutional duty to curb grave abuse of
discretion and tyranny, as well as the power to
promulgate rules to protect and enforce constitutional
rights.

Accordingly and to best serve the ends of justice, we


believe and so hold that, after a potential extraditee has
been arrested or placed under the custody of the law,
bail may be applied for and granted as an exception,
only upon a clear and convincing showing
(1) that, once granted bail, the applicant will not be a
flight risk or a danger to the community; and
(2) that there exist special, humanitarian and
compelling circumstances including, as a matter of
reciprocity, those cited by the highest court in the
requesting state when it grants provisional liberty in
extradition cases therein.

GOV’T OF HONG KONG V. OLALIA Extradition has thus been characterized as the right of
a foreign power, created by treaty, to demand the
surrender of one accused or convicted of a crime
within its territorial jurisdiction, and the correlative
duty of the other state to surrender him to the
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demanding state. It is not a criminal proceeding. Even


if the potential extraditee is a criminal, an extradition
proceeding is not by its nature criminal, for it is not
punishment for a crime, even though such punishment
may follow extradition. It is sui generis, tracing its
existence wholly to treaty obligations between
different nations. It is not a trial to determine the guilt
or innocence of the potential extraditee. Nor is it a full-
blown civil action, but one that is merely
administrative in character. Its object is to prevent the
escape of a person accused or convicted of a crime and
to secure his return to the state from which he fled, for
the purpose of trial or punishment.

Obviously, an extradition proceeding, while


ostensibly administrative, bears all earmarks of a
criminal process. A potential extraditee may be
subjected to arrest, to a prolonged restraint of liberty,
and forced to transfer to the demanding state following
the proceedings. "Temporary detention" may be a
necessary step in the process of extradition, but the
length of time of the detention should be reasonable.
While our extradition law does not provide for the
grant of bail to an extraditee, however, there is no
provision prohibiting him or her from filing a motion
for bail, a right to due process under the Constitution.

The time-honored principle of pacta sunt


servanda demands that the Philippines honor its
obligations under the Extradition Treaty it entered into
with the Hong Kong Special Administrative Region.
Failure to comply with these obligations is a setback
in our foreign relations and defeats the purpose of
extradition. However, it does not necessarily mean
that in keeping with its treaty obligations, the
Philippines should diminish a potential extraditee’s
rights to life, liberty, and due process. More so, where
these rights are guaranteed, not only by our
Constitution, but also by international conventions, to
which the Philippines is a party. We should not,
therefore, deprive an extraditee of his right to apply for
bail, provided that a certain standard for the grant is
satisfactorily met.
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Immunity from Jurisdiction


SANDERS V. VERIDIANO The doctrine of state immunity as applicable not only
to our own government but also to foreign states
sought to be subjected to the jurisdiction of our
courts. 15
The practical justification for the doctrine, as Holmes
put it, is that “there can be no legal right against the
authority which makes the law on which the right
depends. 16 In the case of foreign states, the rule is
derived from the principle of the sovereign equality of
states which wisely admonishes that par in parem non
habet imperium and that a contrary attitude would
“unduly vex the peace of nations.” 17 Our adherence to
this precept is formally expressed in Article II, Section
2, of our Constitution, where we reiterate from our
previous charters that the Philippines “adopts the
generally accepted principles of international law as
part of the law of the land.
All this is not to say that in no case may a public officer
be sued as such without the previous consent of the
state. To be sure, there are a number of well-
recognized exceptions.
i.e. where the public official is being sued in his
private and personal capacity as an ordinary citizen.
The cloak of protection afforded the officers and
agents of the government is removed the moment they
are sued in their individual capacity. This situation
usually arises where the public official acts without
authority or in excess of the powers vested in him. It
is a well-settled principle of law that a public official
may be liable in his personal private capacity for
whatever damage he may have caused by his act done
with malice and in bad faith, or beyond the scope of
his authority or jurisdiction.
U.S.V GUINTO The doctrine of state immunity is not absolute and
does not say the state may not be sued under any
circumstance. On the contrary, the rule says that the
state may not be sued without its consent, which
clearly imports that it may be sued if it consents. The
consent of the state to be sued may be manifested
expressly or impliedly. Express consent may be
embodied in a general law or a special law. Consent is
implied when the state enters into a contract or it itself
commences litigation.
REPUBLIC OF INDONESIA V. VINZON There is no dispute that the establishment of a
diplomatic mission is an act jure imperii. A sovereign
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State does not merely establish a diplomatic mission


and leave it at that; the establishment of a diplomatic
mission encompasses its maintenance and upkeep.
Hence, the State may enter into contracts with private
entities to maintain the premises, furnishings and
equipment of the embassy and the living quarters of its
agents and officials.

The mere entering into a contract by a foreign State


with a private party cannot be construed as the ultimate
test of whether or not it is an act jure imperii or jure
gestionis. Such act is only the start of the inquiry.

Is the foreign State engaged in the regular conduct of


a business? If the foreign State is not engaged
regularly in a business or commercial activity, and in
this case it has not been shown to be so engaged, the
particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity,
or an incident thereof, then it is an act jure imperii.

MINUCHER V. CA The precept that a State cannot be sued in the courts of


a foreign state is a long-standing rule of customary
international law then closely identified with the
personal immunity of a foreign sovereign from suit
and, with the emergence of democratic states, made to
attach not just to the person of the head of state, or his
representative, but also distinctly to the state itself in
its sovereign capacity. If the acts giving rise to a suit
arc those of a foreign government done by its foreign
agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the
complaint could be barred by the immunity of the
foreign sovereign from suit without its consent. Suing
a representative of a state is believed to be, in effect,
suing the state itself. The proscription is not accorded
for the benefit of an individual but for the State, in
whose service he is, under the maxim –par in parem,
non habet imperium –that all states are sovereign
equals and cannot assert jurisdiction over one another.
The implication, in broad terms, is that if the judgment
against an official would rec 1uire the state itself to
perform an affirmative act to satisfy the award, such
as the appropriation of the amount needed to pay the
damages decreed against him, the suit must be
regarded as being against the state itself, although it
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has not been formally impleaded. In the case of


diplomatic immunity, the privilege is not an immunity
from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather,
an immunity from the exercise of territorial
jurisdiction.
Foreigners may be exempted from Philippine laws:
1.) when the offense is committed by a foreign
sovereign
2.) when offense is committed by a diplomat
3.) when offense is committed in a public or armed
vessel of a foreign country

A foreign agent, operating within a territory, can be


cloaked with immunity from suit but only as long as it
can be established that he is acting within the
directives of the sending state. The consent of the host
state is an indispensable requirement of basic courtesy
between the two sovereigns.

(Based on the facts of the case: The official exchanges


of communication between agencies of the
government of the two countries, certifications from
officials of both the Philippine Department of Foreign
Affairs and the United States Embassy, as well as the
participation of members of the Philippine Narcotics
Command in the “buy-bust operation” conducted at
the residence of Minucher at the behest of Scalzo, may
be inadequate to support the “diplomatic status” of the
latter but they give enough indication that the
Philippine government has given its imprimatur, if not
consent, to the activities within Philippine territory of
agent Scalzo of the United States Drug Enforcement
Agency.)

NICOLAS V. ROMULO The equal protection clause is not violated, because


there is a substantial basis for a different treatment of
a member of a foreign military armed forces allowed
to enter our territory and all other accused.

The rule in international law is that a foreign armed


forces allowed to enter one’s territory is immune from
local jurisdiction, except to the extent agreed upon.
The Status of Forces Agreements involving foreign
military units around the world vary in terms and
conditions, according to the situation of the parties
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involved, and reflect their bargaining power. But the


principle remains, i.e., the receiving State can exercise
jurisdiction over the forces of the sending State only
to the extent agreed upon by the parties.

Responsibility of States
MARCOS V. MANGLAPUS It must be emphasized that the individual right
involved is not the right to travel from the Philippines
to other countries or within the Philippines. These are
what the right to travel would normally connote.
Essentially, the right involved is the right to return to
one's country, a totally distinct right under
international law, independent from although related
to the right to travel. Thus, the Universal Declaration
of Humans Rights and the International Covenant on
Civil and Political Rights treat the right to freedom of
movement and abode within the territory of a state, the
right to leave a country, and the right to enter one's
country as separate and distinct rights. The
Declaration speaks of the "right to freedom of
movement and residence within the borders of each
state" [Art. 13(l)] separately from the "right to leave
any country, including his own, and to return to his
country." [Art. 13(2).] On the other hand, the
Covenant guarantees the "right to liberty of movement
and freedom to choose his residence" [Art. 12(l)] and
the right to "be free to leave any country, including his
own." [Art. 12(2)] which rights may be restricted by
such laws as "are necessary to protect national
security, public order, public health or morals or enter
qqqs own country" of which one cannot be "arbitrarily
deprived." [Art. 12(4).] It would therefore be
inappropriate to construe the limitations to the right to
return to one's country in the same context as those
pertaining to the liberty of abode and the right to
travel.
The right to return to one's country is not among the
rights specifically guaranteed in the Bill of Rights,
which treats only of the liberty of abode and the right
to travel, but it is our well-considered view that the
right to return may be considered, as a generally
accepted principle of international law and, under our
Constitution, is part of the law of the land [Art. II, Sec.
2 of the Constitution.] However, it is distinct and
separate from the right to travel and enjoys a different
protection under the International Covenant of Civil
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and Political Rights, i.e., against being "arbitrarily


deprived" thereof.

INTERNATIONAL SCHOOL ALLIANCE OF International law, which springs from general


EDUCATORS V. QUISUMBING principles of law, likewise proscribes discrimination.
General principles of law include principles of equity,
i.e., the general principles of fairness and justice,
based on the test of what is reasonable. The Universal
Declaration of Human Rights, the International
Covenant on Economic, Social, and Cultural
Rights, the International Convention on the
Elimination of All Forms of Racial
Discrimination, the Convention against
Discrimination in Education, the Convention (No.
111) Concerning Discrimination in Respect of
Employment and Occupation — all embody the
general principle against discrimination, the very
antithesis of fairness and justice. The Philippines,
through its Constitution, has incorporated this
principle as part of its national laws.
In the workplace, where the relations between capital
and labor are often skewed in favor of capital,
inequality and discrimination by the employer are all
the more reprehensible.
The Constitution specifically provides that labor is
entitled to "humane conditions of work." These
conditions are not restricted to the physical workplace
— the factory, the office or the field — but include as
well the manner by which employers treat their
employees.

The Constitution also directs the State to promote


"equality of employment opportunities for all."
Similarly, the Labor Code provides that the State shall
"ensure equal work opportunities regardless of sex,
race or creed." It would be an affront to both the spirit
and letter of these provisions if the State, in spite of its
primordial obligation to promote and ensure equal
employment opportunities, closes its eyes to unequal
and discriminatory terms and conditions of
employment.

Discrimination, particularly in terms of wages, is


frowned upon by the Labor Code. Article 135, for
example, prohibits and penalizes the payment of lesser
compensation to a female employee as against a male
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employee for work of equal value. Article 248 declares


it an unfair labor practice for an employer to
discriminate in regard to wages in order to encourage
or discourage membership in any labor organization.

Persons who work with substantially equal


qualifications, skill, effort and responsibility, under
similar conditions, should be paid similar
salaries. This rule applies to the School, its
"international character" notwithstanding.

While we recognize the need of the School to attract


foreign-hires, salaries should not be used as an
enticement to the prejudice of local-hires. The local-
hires perform the same services as foreign-hires and
they ought to be paid the same salaries as the latter.
For the same reason, the "dislocation factor" and the
foreign-hires' limited tenure also cannot serve as valid
bases for the distinction in salary rates. The dislocation
factor and limited tenure affecting foreign-hires are
adequately compensated by certain benefits accorded
them which are not enjoyed by local-hires, such as
housing, transportation, shipping costs, taxes and
home leave travel allowances.

However, that foreign-hires do not belong to the same


bargaining unit as the local-hires.
A bargaining unit is "a group of employees of a given
employer, comprised of all or less than all of the entire
body of employees, consistent with equity to the
employer, indicate to be the best suited to serve the
reciprocal rights and duties of the parties under the
collective bargaining provisions of the law." The
factors in determining the appropriate collective
bargaining unit are
(1) the will of the employees (Globe Doctrine);
(2) affinity and unity of the employees' interest, such
as substantial similarity of work and duties, or
similarity of compensation and working conditions
(Substantial Mutual Interests Rule);
(3) prior collective bargaining history; and
(4) similarity of employment status. The basic test of
an asserted bargaining unit's acceptability is whether
or not it is fundamentally the combination which will
best assure to all employees the exercise of their
collective bargaining rights.
JMCRUZ REVIEWER IN PUBLIC INTERNATIONAL LAW FINAL EXAM
BASED ON ATTY. TUPAZ’S CASE LIST