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III. The Law on Treaties
A. Definition of Treaty under General
International law and the 1960
Vienna Convention on the Law of
Treaties.
Chapter 3: Law on of Treaties
 The generic term that is under is
international agreements.
 International Agreements: are
convenient tool through which states are
able to project common expectations.
(PCE)
 1969 Vienna Convention on the law on
treaties:
- where the law on treaties is found.
- Entered into force in January 1980
- Not retroactive in effect, however it
does contain customary law precepts
antedating 1969.
 Treaties:
- An international agreement
concluded between states in written
form and governed by International
law, whether embodied in a single
instrument or in two or more related
instruments and whatever its
particular designation.
 1. In writing
2. Reflecting the intention of the parties
3. Governed by International Law.
 GR: Treaties in written form; however
there are writers who hold that oral
arguments are binding.
1. Province of North Cotobato v. GRP
Peace Panel, 568 SCRA 402 (2008)
 Subject of these consolidated cases is
the extent of the powers of the President
in pursuing the peace process.
FACTS: President Gloria Macapagal-Arroyo, in
line with the government‘s policy of pursuing
peace negotiations with the Moro Islamic
Liberation Front (MILF), asked Prime Minister
Mahathir Mohammad to convince the MILF to
continue negotiating with the government.
MILF, thereafter, convened its Central
Committee and decided to meet with the
1
Government of the Republic of the Philippines
(GRP). Formal peace talks were held in Libya
which resulted to the crafting of the GRP-MILF
Tripoli Agreement on Peace (Tripoli Agreement
2001) which consists of three (3) aspects: a.)
security aspect (SA); b.) rehabilitation aspect
(RA); and c.) ancestral domain aspect (ADA).
Various negotiations were held which led to the
finalization of the Memorandum of Agreement
on the Ancestral Domain (MOA-AD). The said
a memorandum was set to be signed last August 5,
2008. In its body, it grants ―the authority and
jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro to the
Bangsamoro Juridical Entity (BJE). The latter,
in addition, has the freedom to enter into any
economic cooperation and trade relation with
foreign countries. ―The sharing between the
Central Government and the BJE of total
production pertaining to natural resources is to
be 75:25 in favor of the BJE. The MOA-AD
further provides for the extent of the territory of
the Bangsamoro. It describes it as ―the land
mass as well as the maritime, terrestrial, fluvial
and alluvial domains, including the aerial
domain and the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan
geographic region. With regard to governance,
on the other hand, a shared responsibility and
authority between the Central Government and
BJE was provided. The relationship was
described as ―associative. With the formulation
of the MOA-AD, petitioners aver that the
negotiation and finalization of the MOA-AD
violates constitutional and statutory provisions
on public consultation, as mandated by
Executive Order No. 3, and right to information.
They further contend that it violates the
Constitution and laws. Hence, the filing of the
petition.
ISSUE:
Whether or not the MOA-AD violates the
Constitution and the laws.
HELD:
The relationship between the Central
Government and the Bangsamoro juridical entity
shall be associative characterized by shared
authority and responsibility with a structure of
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governance based on executive, legislative,
judicial and administrative institutions with
defined powers and functions in the
comprehensive compact. A period of transition
shall be established in a comprehensive peace
compact specifying the relationship between the
Central Government and the BJE. The nature of
the ―associative relationship may have been
intended to be defined more precisely in the still
to be forged Comprehensive Compact.
Nonetheless, given that there is a concept of
―association in international law, and the
MOA-AD – by its inclusion of international law
instruments in its TOR– placed itself in an
international legal context, that concept of
association may be brought to bear in
understanding the use of the term ―associative
in the MOA-AD. The MOA-AD contains many
provisions which are consistent with the
international legal concept of association,
specifically the following:
a. the BJE‘s capacity to enter into
economic and trade relations with
foreign countries,
b. the commitment of the Central
Government to ensure the BJE‘s
participation in meetings and events in
the ASEAN and the specialized UN
agencies,
c. and the continuing responsibility of the
Central Government over external
defense.
d. Moreover, the BJE‘s right to participate
in Philippine official missions bearing
on negotiation of border agreements,
environmental protection,
e. and sharing of revenues pertaining to
the bodies of water adjacent to or
between the islands forming part of the
ancestral domain, resembles the right of
the governments of FSM and the
Marshall Islands to be consulted by the
U.S. government on any foreign affairs
matter affecting them.
These provisions of the MOA indicate, among
other things, that the Parties aimed to vest in the
BJE the status of an associated state or, at any
rate, a status closely approximating it.
The concept of association is not recognized
under the present Constitution. No province,
city, or municipality, not even the ARMM, is
2
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.
Even the mere concept animating many of the
MOA-AD‘s provisions, therefore, already
requires for its validity the amendment of
constitutional provisions, specifically the
following provisions of Article X:
SECTION 1. The territorial and political
subdivisions of the Republic of the Philippines
are the provinces, cities, municipalities, and
barangays. There shall be autonomous regions in
Muslim Mindanao and the Cordilleras as
hereinafter provided.
SECTION 15. There shall be created
autonomous regions in Muslim Mindanao and in
the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing
common and distinctive historical and cultural
heritage, economic and social structures, and
other relevant characteristics within the
framework of this Constitution and the national
sovereignty as well as territorial integrity of the
Republic of the Philippines.
It is not merely an expanded version of the
ARMM, the status of its relationship with the
national government being fundamentally
different from that of the ARMM.
Indeed, BJE is a state in all but name as it meets
the criteria of a state laid down in the
Montevideo Convention, namely, a permanent
population, a defined territory, a government,
and a capacity to enter into relations with other
states.
To remove all doubts about the irreconcilability
of the MOA-AD with the present legal system, a
discussion of not only the Constitution and
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domestic statutes, but also of international law is
in order, for
Article II, Section 2 of the Constitution states
that the Philippines "adopts the generally
accepted principles of international law as part
of the law of the land."
Applying this provision of the Constitution, the
Court, in Mejoff v. Director of Prisons,158 held
that the Universal Declaration of Human Rights
is part of the law of the land on account of which
it ordered the release on bail of a detained alien
of Russian descent whose deportation order had
not been executed even after two years.
Similarly, the Court in Agustin v. Edu159
applied the aforesaid constitutional provision to
the 1968 Vienna Convention on Road Signs and
Signals.
International law has long recognized the right
to self-determination of "peoples," understood
not merely as the entire population of a State but
also a portion thereof. In considering the
question of whether the people of Quebec had a
right to unilaterally secede from Canada, the
Canadian Supreme Court in REFERENCE RE
SECESSION OF QUEBEC160 had occasion to
acknowledge that "the right of a people to self-
determination is now so widely recognized in
international conventions that the principle has
acquired a status beyond ‘convention' and is
considered a general principle of international
law."
x x x [I]n the absence of express provisions in
international treaties, the right of disposing of
national territory is essentially an attribute of the
sovereignty of every State. Positive International
Law does not recognize the right of national
groups, as such, to separate themselves from the
State of which they form part by the simple
expression of a wish, any more than it
recognizes the right of other States to claim such
a separation.
It is, therefore, clear that the MOA-AD contains
numerous provisions that cannot be reconciled
with the Constitution and the laws as presently
worded. Respondents proffer, however, that the
signing of the MOA-AD alone would not have
3
entailed any violation of law or grave abuse of
discretion on their part, precisely because it
stipulates that the provisions thereof inconsistent
with the laws shall not take effect until these
laws are amended.
Notwithstanding the suspensive clause,
however, respondents, by their mere act of
incorporating in the MOA-AD the provisions
thereof regarding the associative relationship
between the BJE and the Central Government,
have already violated the Memorandum of
Instructions From The President dated March 1,
2001, which states that the "negotiations shall be
conducted in accordance with x x x the
principles of the sovereignty and territorial
integrity of the Republic of the Philippines."
The MOAAD is defective because the
suspensive clause is invalid. (Parties agree that
mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt
out in the Comprehensive Compact to mutually
take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring
amendments to the existing legal framework
shall come into force upon signing of a
Comprehensive Compact and upon effecting the
necessary changes to the legal framework with
due regard to non derogation of prior agreements
and within the stipulated timeframe to be
contained in the Comprehensive Compact.)
Whether the president may exercise the power
delegated to the GRP Peace Panel under EO3
sec 4(a)
The MOA-AD, as earlier mentioned in the
overview thereof, would have included foreign
dignitaries as signatories. In addition,
representatives of other nations were invited to
witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that
the MOA-AD would have had the status of a
binding international agreement had it been
signed. An examination of the prevailing
principles in international law, however, leads to
the contrary conclusion.
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The MOA-AD, as earlier mentioned in the
overview thereof, would have included foreign
dignitaries as signatories. In addition,
representatives of other nations were invited to
witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that
the MOA-AD would have had the status of a
binding international agreement had it been
signed. An examination of the prevailing
principles in international law, however, leads to
the contrary conclusion.
The Decision on Challenge to Jurisdiction:
Lomé Accord Amnesty180 (the Lomé Accord
case) of the Special Court of Sierra Leone is
enlightening. The Lomé Accord was a peace
agreement signed on July 7, 1999 between the
Government of Sierra Leone and the
Revolutionary United Front (RUF), a rebel
group with which the Sierra Leone Government
had been in armed conflict for around eight
years at the time of signing. There were non-
contracting signatories to the agreement, among
which were the Government of the Togolese
Republic, the Economic Community of West
African States, and the UN.
On January 16, 2002, after a successful
negotiation between the UN Secretary-General
and the Sierra Leone Government, another
agreement was entered into by the UN and that
Government whereby the Special Court of Sierra
Leone was established. The sole purpose of the
Special Court, an international court, was to try
persons who bore the greatest responsibility for
serious violations of international humanitarian
law and Sierra Leonean law committed in the
territory of Sierra Leone since November 30,
1996.
Among the stipulations of the Lomé Accord was
a provision for the full pardon of the members of
the RUF with respect to anything done by them
in pursuit of their objectives as members of that
organization since the conflict began.
In the Lomé Accord case, the Defence argued
that the Accord created an internationally
binding obligation not to prosecute the
beneficiaries of the amnesty provided therein,
citing, among other things, the participation of
4
foreign dignitaries and international
organizations in the finalization of that
agreement. The Special Court, however, rejected
this argument, ruling that the Lome Accord is
not a treaty and that it can only create binding
obligations and rights between the parties in
municipal law, not in international law. Hence,
the Special Court held, it is ineffective in
depriving an international court like it of
jurisdiction.
"37. In regard to the nature of a negotiated
settlement of an internal armed conflict it is easy
to assume and to argue with some degree of
plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact
that in addition to the parties to the conflict, the
document formalizing the settlement is signed
by foreign heads of state or their representatives
and representatives of international
organizations, means the agreement of the
parties is internationalized so as to create
obligations in international law.
xxxx
40. Almost every conflict resolution will involve
the parties to the conflict and the mediator or
facilitator of the settlement, or persons or bodies
under whose auspices the settlement took place
but who are not at all parties to the conflict, are
not contracting parties and who do not claim any
obligation from the contracting parties or incur
any obligation from the settlement.
41. In this case, the parties to the conflict are the
lawful authority of the State and the RUF which
has no status of statehood and is to all intents
and purposes a faction within the state. The non-
contracting signatories of the Lomé Agreement
were moral guarantors of the principle that, in
the terms of Article XXXIV of the Agreement,
"this peace agreement is implemented with
integrity and in good faith by both parties". The
moral guarantors assumed no legal obligation. It
is recalled that the UN by its representative
appended, presumably for avoidance of doubt,
an understanding of the extent of the agreement
to be implemented as not including certain
international crimes.
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42. An international agreement in the nature of a
treaty must create rights and obligations
regulated by international law so that a breach of
its terms will be a breach determined under
international law which will also provide
principle means of enforcement. The Lomé
Agreement created neither rights nor obligations
capable of being regulated by international law.
An agreement such as the Lomé Agreement
which brings to an end an internal armed
conflict no doubt creates a factual situation of
restoration of peace that the international
community acting through the Security Council
may take note of. That, however, will not
convert it to an international agreement which
creates an obligation enforceable in
international, as distinguished from municipal,
law. A breach of the terms of such a peace
agreement resulting in resumption of internal
armed conflict or creating a threat to peace in the
determination of the Security Council may
indicate a reversal of the factual situation of
peace to be visited with possible legal
consequences arising from the new situation of
conflict created. Such consequences such as
action by the Security Council pursuant to
Chapter VII arise from the situation and not
from the agreement, nor from the obligation
imposed by it. Such action cannot be regarded as
a remedy for the breach. A peace agreement
which settles an internal armed conflict cannot
be ascribed the same status as one which settles
an international armed conflict which,
essentially, must be between two or more
warring States. The Lomé Agreement cannot be
characterised as an international instrument. x x
x" (Emphasis, italics and underscoring supplied)
Similarly, that the MOA-AD would have been
signed by representatives of States and
international organizations not parties to the
Agreement would not have sufficed to vest in it
a binding character under international law.
2. Qatar v. Bahrain, ICJ Rep. 1994.
Brief Fact Summary. A claim to settle a
dispute involving sovereignty over certain
islands, sovereign rights over certain shoals and
delimitation of a maritime boundary was filed by
Qatar (P) in the International Court of Justice
5
against Bahrain (D). The Court’s jurisdiction
was however disputed by Bahrain (D).
Synopsis of Rule of Law. An international
agreement creating rights and obligations can be
constituted by the signatories to the minutes of
meetings and letters exchanged.
Facts. A dispute concerning sovereignty over
certain islands and shoals, including the
delimitation of a maritime boundary were issues
upon which Qatar (P) and Bahrain (D) sought to
resolve for 20 years. During this period of time,
letters were exchanged and acknowledged by
both parties heads of state. A Tripartite
Committee “for the purpose of approaching the
International Court of Justice…..” was formed
by representatives of Qatar (P), Bahrain (D) and
Saudi Arabia. Though the committee met several
time, it failed to produce an agreement on the
specific terms for submitting the dispute to the
Court. Eventually, the meetings culminated in
“Minutes”, which reaffirmed the process and
stipulated that the parties “may” submit the
dispute to the I.C.J. after giving the Saudi King
six months to resolve the dispute. The Court’s
jurisdiction was disputed by Bahrain (D) when
Qatar (P) filed a claim in the I.C.J.
Issue. Yes. An international agreement creating
rights and obligations can be constituted by the
signatories to the minutes of meetings and letters
exchanged. Though Bahrain (D) argued that the
Minutes were only a record of negotiation and
could not serve as a basis for the I.C.J.’s
jurisdiction, both parties agreed that the letters
constituted an international agreement with
binding force.
International agreements do not take a single
form under the Vienna Convention on the Law
of Treaties, and the Court has enforced this rule
in the past. In this case, the Minutes not only
contain the record of the meetings between the
parties, it also contained the reaffirmation of
obligations previously agreed to and agreement
to allow the King of Saudi Arabia to try to find a
solution to the dispute during a six-month
period, and indicated the possibility of the
involvement of the I.C.J. The Minutes stipulated
commitments to which the parties agreed,
thereby creating rights and obligations in
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international law. This is the basis therefore of
the existence of international agreement.
On the part of the Bahrain’s (D) Foreign
Minister, he argued that no agreement existed
because he never intended to enter an agreement
fails on the grounds that he signed documents
creating rights and obligations for his country.
Also, Qatar’s (P) delay in applying to the United
Nations Secretariat does not indicate that Qatar
(P) never considered the Minutes to be an
international agreement as Bahrain (D) argued.
However, the registration and non-registration
with the Secretariat does not have any effect on
the validity of the agreement.
Held. Yes. An international agreement creating
rights and obligations can be constituted by the
signatories to the minutes of meetings and letters
exchanged. Though Bahrain (D) argued that the
Minutes were only a record of negotiation and
could not serve as a basis for the I.C.J.’s
jurisdiction, both parties agreed that the letters
constituted an international agreement with
binding force.
Discussion. There is no doubt that language
plays a vital role in influencing a court’s
decision as to whether an agreement has been
entered into and in this particular case, the
language was the main focus of the I.C.J and it
was the contents of the Minutes that persuaded
the I.C.J. to reject the Bahrain foreign minister’s
(D) claim that he did not intend to enter into an
agreement. Where this is compared to general
U.S. contract law, where a claim by one of the
parties that no contract existed because there
was no meeting of the minds might be the
ground upon which a U.S. court would consider
whether a contract did exist with more care and
thought than the I.C.J. gave the foreign minister
of Bahrain’s (D) claims.
The dispute between Bahrain and Qatar has a
long history. Solution to the dispute has been
sought over the past two decades. These
endeavors to find a solution took place in the
context of a mediation “good offices” beginning
at 1976 by the king of Saudi Arabia with the
agreement of the Amirs of Bahrain and Qatar.
No progress.
6
The king of SA then sent the Amirs of Qatar and
Bahrain letters in identical terms dated
December 19, 1987 in which he put forward new
proposals. Those proposals were accepted by
letters from the two heads of states.
The first was that"Al1 the disputed matters shall
be referred to the International Court of Justice,
at The Hague, for a final ruling binding upon
both parties, who shall have to execute its
terms."
The second point was once more directed at the
maintenance of the status quo.
The third provided for formation of a committee
composed of repre- sentatives of the States of
Bahrain and Qatar and of the Kingdom of Saudi
Arabia,
"for the purpose of approaching the International
Court of Justice, and satisfying the necessary
requirements to have the dispute sub- mitted to
the Court in accordance with its regulations and
instruc- tions so that a final ruling, binding upon
both parties, be issued".
Lastly, according to the fourth point, the
Kingdom of Saudi Arabia was to "continue its
good offices to guarantee the implementation of
these terms".
The Committee subsequently held its first
forma1 meeting on 17 Janu- ary 1988. Bahrain
then filed a revised version of its draft stating
expressly that the Cornmittee was formed with
the aim of reaching a special agree- ment. After
a discussion, it was agreed that each of the
Parties would present a draft special agreement.
Several texts were subsequently presented to the
Committee by Bah- rain and Qatar, but no
agreement could be reached in the course of the
first four meetings. Then, on 26 October 1988,
following an initiative by Saudi Arabia, the Heir
Apparent of Bahrain, when on a visit to Qatar,
transmitted to the Heir Apparent of Bahrain a
text
The Tripartite Committee proceeded moreover
to a discussion with the"objective of defining
exhaustively the matters which would be
referred to the Court, which are:
1. The Hawar Islands, including the island of
Janan
2. Fasht al Dibal and Qit'at Jaradah
3. The archipelagic baselines
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4. Zubarah
5. The areas for fishing for pearls and for fishing
for swimming fish and any other matters
connected with maritime boundaries."
The two Parties agreed in principle upon the
points thus mentioned, although Qatar made it
clear that it could only accept the inclusion of
the question of Zubarah in that list "if the
content relates to private rights", not to
sovereignty over Zubarah. Bahrain's reply was
that it intended to submit its claims in that regard
to the Court, "without any limitation".
 joint communiqué: An agreement or statement
signed by usually two countries, usually for
legal recognition of a sovereign state governing
the land.
1990 minutes:
- refer to the consultations between
the two Foreign ministers (Nicolas
Valticos, Bahrain and Jose Maria
Ruda, Qatar) in the presence of the
Foreign Minister of Saudi Arabia
and state what had been agreed
between the parties.
- Include a reaffirmation of
obligations previously entered into;
they entrust king fahd with the task
of attempting to find a solution to
the dispute during a period of 6
months; and they address the
circumstances under which the court
could be exercised after may 1991.
Function of Treaties:
 They are sources of international law
 They serve as the charter of international
organization
 They are used to transfer territory
 Regulate commercial relations
 Settle Disputes
 Protect Human Rights
 Guarantee investments
A.) Multilateral Treaties: open to all states
of the world; they create norms which
are the basis for a general rule of law.
B.) Treaties that create a collaborative
mechanism: these can be of universal
scope or regional; they operate through
the organs of the different state
7
C.) Bilateral Treaties: many of these are in
the nature of contractual agreements
which create shared expectations such as
trade agreements of various forms;
contract treaties.
While treaties are generally binding only on the
parties, the number of the contracting parties and
the generality of the acceptance of specific rules
created by the treaty can have the effect of
creating a universal law the same way that
general practice suffices to create customary
law.
B. Treaty Making
1. Nature
Tanada v. Angara
Facts:
Petitioners prayed for the nullification, on
constitutional grounds, of the concurrence of the
Philippine Senate in the ratification by the
President of the Philippines of the Agreement
Establishing the World Trade Organization
(WTO Agreement, for brevity) and for the
prohibition of its implementation and
enforcement through the release and utilization
of public funds, the assignment of public
officials and employees, as well as the use of
government properties and resources by
respondent-heads of various executive offices
concerned therewith.
They contended that WTO agreement violates
the mandate of the 1987 Constitution to
“develop a self-reliant and independent national
economy effectively controlled by Filipinos x x
x (to) give preference to qualified Filipinos (and
to) promote the preferential use of Filipino
labor, domestic materials and locally produced
goods” as (1) the WTO requires the Philippines
“to place nationals and products of member-
countries on the same footing as Filipinos and
local products” and (2) that the WTO “intrudes,
limits and/or impairs” the constitutional powers
of both Congress and the Supreme Court.
Issue:
Whether provisions of the Agreement
Establishing the World Trade Organization
unduly limit, restrict and impair Philippine
PIL NOTES
sovereignty specifically the legislative power
which, under Sec. 2, Article VI, 1987 Philippine
Constitution is ‘vested in the Congress of the
Philippines.
Held:
No, the WTO agreement does not unduly limit,
restrict, and impair the Philippine sovereignty,
particularly the legislative power granted by the
Philippine Constitution. The Senate was acting
in the proper manner when it concurred with the
President’s ratification of the agreement.
While sovereignty has traditionally been deemed
absolute and all-encompassing on the domestic
level, it is however subject to restrictions and
limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a member
of the family of nations. Unquestionably, the
Constitution did not envision a hermit-type
isolation of the country from the rest of the
world. In its Declaration of Principles and State
Policies, 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.” 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. 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 obligation but
creates a legally binding obligation on the
parties x x x. 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,
8
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. As aptly put by John F. Kennedy,
“Today, no nation can build its destiny alone.
The age of self-sufficient nationalism is over.
The age of interdependence is here.”
The WTO reliance on “most favored nation,”
“national treatment,” and “trade without
discrimination” cannot be struck down as
unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO
members. Aside from envisioning a trade policy
based on “equality and reciprocity,” the
fundamental law encourages industries that are
“competitive in both domestic and foreign
markets,” thereby demonstrating a clear policy
against a sheltered domestic trade environment,
but one in favor of the gradual development of
robust industries that can compete with the best
in the foreign markets. Indeed, Filipino
managers and Filipino enterprises have shown
capability and tenacity to compete
internationally. And given a free trade
environment, Filipino entrepreneurs and
managers in Hongkong have demonstrated the
Filipino capacity to grow and to prosper against
the best offered under a policy of laissez faire.
WHEREFORE, the petition is DISMISSED for
lack of merit.
STEPS
1. Negotiation
- Bilateral treaties and multilateral treaties
among a small number generally originate
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from the foreign ministries. Negotiation is
done through foreign ministries.
- Larger multilateral treaties are negotiated
in diplomatic conferences which run like a
legislative body.
Power to Negotiate
-the negotiators must possess powers to
negotiate.
The following are considered as representing the
state:
a.) Heads of state, heads of government and
misters for foreign affairs
b.) Heads of Diplomatic Missions
c.) Representatives accredited by states to
an international conference or to an
international organization or one of its
organs
2. Authentication of Text
- negotiations conclude with the signing
of the document. The signatures serve as
authentication of the document.
Article 9: Adoption of Text
1. Consent of all the States participating
2. Votes of 2/3rd of the States present and
voting.
Article 10: Authentication of Text
1. Procedure as may be provided for in the
text or agreed upon by the states
2. The signature by the representatives of
those states.
The authentication of a treaty makes the text
authoritative and definitive.
3. Consent to be Bound
Once the document has been signed,
there are stages which follow which
culminate in making the document
binding.
The most important step is the consent
to be bound
Article 11: Means of expressing consent to be
bound by a treaty
a.) Expressed by signature
b.) Exchange of instruments constituting a
treaty
c.) Ratification
d.) Acceptance
e.) Approval or accession
Article 12: Consent to be bound by a treaty
expressed by signature
a.) treaty provides that signature will have
that effect
9
b.) established that the negotiating states
agreed that signature should have that
effect
c.) Intention of the state to give effect to the
signature appears from the full powers
of is representatives or was expressed
during the negotiation.
Art 13: Consent to be bound by a treaty
expressed by an exchange of instruments
constituting a treaty:
a.) Instruments provide that their exchange
shall have that effect
b.) Otherwise established that those states
agreed that the exchange of instruments
should have that effect.
Art 14: Consent to be bound by a treated
expressed by ratification, acceptance, or
approval.
The manner of ratification differs from state to
state.
In the Philippines, it is governed by Article VII,
Section 21 of the Constitution. But between
signature and ratification a state is required by
article 18 (a) not to engage in acts which can
defeat the purpose of the treaty.
4. Accession to a treaty
States which did not participate in the initial
negotiation may also express their consent to be
bound by “accession”
Akbayan v. Aquino
FACTS:
This is regarding the JPEPA, the bilateral free
trade agreement ratified by the President with
Japan, concerning trade in goods, rules of origin,
customs procedures, paperless trading, trade in
services, investment, etc.
Prior to President’s signing of JPEPA in Sept.
2006, petitioners – non-government
organizations, Congresspersons, citizens and
taxpayers – sought via petition for mandamus
and prohibition to obtain from respondents the
full text of the JPEPA, including the Philippine
and Japanese offers submitted during the
negotiation process and all pertinent attachments
and annexes thereto. Particularly, Congress
through the House Committee are calling for an
inquiry into the JPEPA, but at the same time, the
PIL NOTES
Executive is refusing to give them the said
copies until the negotiation is completed.
ISSUES:
Whether or not petitioners have legal standing
Whether or not the Philippine and Japanese
offers during the negotiation process are
privileged
Whether or not the President can validly exclude
Congress, exercising its power of inquiry and
power to concur in treaties, from the negotiation
process
RULING:
Standing
In a petition anchored upon the right of the
people to information on matters of public
concern, which is a public right by its very
nature, petitioners need not show that they have
any legal or special interest in the result, it being
sufficient to show that they are citizens and,
therefore, part of the general public which
possesses the right. As the present petition is
anchored on the right to information and
petitioners are all suing in their capacity as
citizens and groups of citizens including
petitioners-members of the House of
Representatives who additionally are suing in
their capacity as such, the standing of petitioners
to file the present suit is grounded in
jurisprudence.
JPEPA, A Matter of Public Concern
To be covered by the right to information, the
information sought must meet the threshold
requirement that it be a matter of public concern
xxx
From the nature of the JPEPA as an international
trade agreement, it is evident that the Philippine
and Japanese offers submitted during the
negotiations towards its execution are matters of
public concern. This, respondents do not dispute.
They only claim that diplomatic negotiations are
covered by the doctrine of executive privilege,
thus constituting an exception to the right to
information and the policy of full public
disclosure.
10
Privileged Character of Diplomatic
Negotiations Recognized
The privileged character of diplomatic
negotiations has been recognized in this
jurisdiction. In discussing valid limitations on
the right to information, the Court in Chavez v.
PCGG held that “information on inter-
government exchanges prior to the conclusion of
treaties and executive agreements may be
subject to reasonable safeguards for the sake of
national interest.”
Applying the principles adopted in PMPF v.
Manglapus, it is clear that while the final text of
the JPEPA may not be kept perpetually
confidential – since there should be “ample
opportunity for discussion before [a treaty] is
approved” – the offers exchanged by the parties
during the negotiations continue to be privileged
even after the JPEPA is published. It is
reasonable to conclude that the Japanese
representatives submitted their offers with the
understanding that “historic confidentiality”
would govern the same. Disclosing these offers
could impair the ability of the Philippines to deal
not only with Japan but with other foreign
governments in future negotiations.
A ruling that Philippine offers in treaty
negotiations should not be open to public
scrutiny would discourage future Philippine
representatives from frankly expressing their
views during negotiations. While, on first
impression, it appears wise to deter Philippine
representatives from entering into compromises,
it bears noting that treaty negotiations, or any
negotiation for that matter, normally involve a
process of quid pro quo, and oftentimes
negotiators have to be willing to grant
concessions in an area of lesser importance in
order to obtain more favorable terms in an area
of greater national interest.
Diplomatic negotiations, therefore, are
recognized as privileged in this jurisdiction, the
JPEPA negotiations constituting no exception. It
bears emphasis, however, that such privilege is
only presumptive. For as Senate v. Ermita holds,
recognizing a type of information as privileged
PIL NOTES
does not mean that it will be considered
privileged in all instances. Only after a
consideration of the context in which the claim
is made may it be determined if there is a public
interest that calls for the disclosure of the
desired information, strong enough to overcome
its traditionally privileged status.
Does the exception apply even though JPEPA is
primarily economic and does not involve
national security?
While there are certainly privileges grounded on
the necessity of safeguarding national security
such as those involving military secrets, not all
are founded thereon. One example is the
“informer’s privilege,” or the privilege of the
Government not to disclose the identity of a
person or persons who furnish information of
violations of law to officers charged with the
enforcement of that law. The suspect involved
need not be so notorious as to be a threat to
national security for this privilege to apply in
any given instance. Otherwise, the privilege
would be inapplicable in all but the most high-
profile cases, in which case not only would this
be contrary to long-standing practice. It would
also be highly prejudicial to law enforcement
efforts in general.
Also illustrative is the privileged accorded to
presidential communications, which are
presumed privileged without distinguishing
between those which involve matters of national
security and those which do not, the rationale for
the privilege being that a frank exchange of
exploratory ideas and assessments, free from the
glare of publicity and pressure by interested
parties, is essential to protect the independence
of decision-making of those tasked to exercise
Presidential, Legislative and Judicial power.
In the same way that the privilege for judicial
deliberations does not depend on the nature of
the case deliberated upon, so presidential
communications are privileged whether they
involve matters of national security.
It bears emphasis, however, that the privilege
accorded to presidential communications is not
absolute, one significant qualification being that
11
“the Executive cannot, any more than the other
branches of government, invoke a general
confidentiality privilege to shield its officials
and employees from investigations by the proper
governmental institutions into possible criminal
wrongdoing.” This qualification applies whether
the privilege is being invoked in the context of a
judicial trial or a congressional investigation
conducted in aid of legislation.
Closely related to the “presidential
communications” privilege is the deliberative
process privilege recognized in the United
States. As discussed by the U.S. Supreme Court
in NLRB v. Sears, Roebuck & Co, deliberative
process covers documents reflecting advisory
opinions, recommendations and deliberations
comprising part of a process by which
governmental decisions and policies are
formulated. Notably, the privileged status of
such documents rests, not on the need to protect
national security but, on the “obvious realization
that officials will not communicate candidly
among themselves if each remark is a potential
item of discovery and front page news,” the
objective of the privilege being to enhance the
quality of agency decisions.
The diplomatic negotiations privilege bears a
close resemblance to the deliberative process
and presidential communications privilege. It
may be readily perceived that the rationale for
the confidential character of diplomatic
negotiations, deliberative process, and
presidential communications is similar, if not
identical.
The earlier discussion on PMPF v. Manglapus
shows that the privilege for diplomatic
negotiations is meant to encourage a frank
exchange of exploratory ideas between the
negotiating parties by shielding such
negotiations from public view. Similar to the
privilege for presidential communications, the
diplomatic negotiations privilege seeks, through
the same means, to protect the independence in
decision-making of the President, particularly in
its capacity as “the sole organ of the nation in its
external relations, and its sole representative
with foreign nations.” And, as with the
deliberative process privilege, the privilege
PIL NOTES
accorded to diplomatic negotiations arises, not
on account of the content of the information per
se, but because the information is part of a
process of deliberation which, in pursuit of the
public interest, must be presumed confidential.
Clearly, the privilege accorded to diplomatic
negotiations follows as a logical consequence
from the privileged character of the deliberative
process.
Does diplomatic privilege only apply to certain
stages of the negotiation process?
In Chavez v. PEA and Chavez v. PCGG, the
Court held that with regard to the duty to
disclose “definite propositions of the
government,” such duty does not include
recognized exceptions like privileged
information, military and diplomatic secrets and
similar matters affecting national security and
public order.
Treaty-making power of the President
xxx they (petitioners) argue that the President
cannot exclude Congress from the JPEPA
negotiations since whatever power and authority
the President has to negotiate international trade
agreements is derived only by delegation of
Congress, pursuant to Article VI, Section 28(2)
of the Constitution and Sections 401 and 402 of
Presidential Decree No. 1464.
The subject of Article VI Section 28(2) of the
Constitution is not the power to negotiate
treaties and international agreements, but the
power to fix tariff rates, import and export
quotas, and other taxes xxx.
As to the power to negotiate treaties, the
constitutional basis thereof is Section 21 of
Article VII – the article on the Executive
Department.
xxx
While the power then to fix tariff rates and other
taxes clearly belongs to Congress, and is
exercised by the President only be delegation of
that body, it has long been recognized that the
12
power to enter into treaties is vested directly and
exclusively in the President, subject only to the
concurrence of at least two-thirds of all the
Members of the Senate for the validity of the
treaty. In this light, the authority of the President
to enter into trade agreements with foreign
nations provided under P.D. 1464 may be
interpreted as an acknowledgment of a power
already inherent in its office. It may not be used
as basis to hold the President or its
representatives accountable to Congress for the
conduct of treaty negotiations.
This is not to say, of course, that the President’s
power to enter into treaties is unlimited but for
the requirement of Senate concurrence, since the
President must still enure that all treaties will
substantively conform to all the relevant
provisions of the Constitution.
It follows from the above discussion that
Congress, while possessing vast legislative
powers, may not interfere in the field of treaty
negotiations. While Article VII, Section 21
provides for Senate concurrence, such pertains
only to the validity of the treaty under
consideration, not to the conduct of negotiations
attendant to its conclusion. Moreover, it is not
even Congress as a while that has been given the
authority to concur as a means of checking the
treaty-making power of the President, but only
the Senate.
Thus, as in the case of petitioners suing in their
capacity as private citizens, petitioners-members
of the House of Representatives fail to present a
“sufficient showing of need” that the
information sought is critical to the performance
of the functions of Congress, functions that do
not include treaty-negotiation.
Did the respondent’s alleged failure to timely
claim executive privilege constitute waiver of
such privilege?
That respondent invoked the privilege for the
first time only in their Comment to the present
petition does not mean that the claim of
privilege should not be credited. Petitioner’s
position presupposes that an assertion of the
privilege should have been made during the
PIL NOTES
House Committee investigations, failing which
respondents are deemed to have waived it.
xxx (but) Respondent’s failure to claim the
privilege during the House Committee hearings
may not, however, be construed as a waiver
thereof by the Executive branch. xxx what
respondents received from the House Committee
and petitioner-Congressman Aguja were mere
requests for information. And as priorly stated,
the House Committee itself refrained from
pursuing its earlier resolution to issue a
subpoena duces tecum on account of then
Speaker Jose de Venecia’s alleged request to
Committee Chairperson Congressman Teves to
hold the same in abeyance.
The privilege is an exemption to Congress’
power of inquiry. So long as Congress itself
finds no cause to enforce such power, there is no
strict necessity to assert the privilege. In this
light, respondent’s failure to invoke the privilege
during the House Committee investigations did
not amount to waiver thereof.
“Showing of Need” Test
In executive privilege controversies, the
requirement that parties present a “sufficient
showing of need” only means, in substance, that
they should show a public interest in favor of
disclosure sufficient in degree to overcome the
claim of privilege. Verily, the Court in such
cases engages in a balancing of interests. Such a
balancing of interests is certainly not new in
constitutional adjudication involving
fundamental rights.
xxx However, when the Executive has – as in
this case – invoked the privilege, and it has been
established that the subject information is indeed
covered by the privilege being claimed, can a
party overcome the same by merely asserting
that the information being demanded is a matter
of public concern, without any further showing
required? Certainly not, for that would render
the doctrine of executive privilege of no force
and effect whatsoever as a limitation on the right
to information, because then the sole test in such
controversies would be whether an information
is a matter of public concern.
13
Right to information vis-a-vis Executive
Privilege
xxx the Court holds that, in determining whether
an information is covered by the right to
information, a specific “showing of need” for
such information is not a relevant consideration,
but only whether the same is a matter of public
concern. When, however, the government has
claimed executive privilege, and it has
established that the information is indeed
covered by the same, then the party demanding
it, if it is to overcome the privilege, must show
that that information is vital, not simply for the
satisfaction of its curiosity, but for its ability to
effectively and reasonably participate in social,
political, and economic decision-making.
Pimentel v. Office of Executive Secretary
Facts:
This is a petition of Senator Aquilino Pimentel
and the other parties to ask the Supreme Court to
require the Executive Department to transmit the
Rome Statute which established the International
Criminal Court for the Senate’s concurrence in
accordance with Sec 21, Art VII of the 1987
Constitution.
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.[5]
The Office of the Solicitor General, commenting
for the respondents, questioned the standing of
the petitioners to file the instant suit. It also
contended that the petition at bar violates the
rule on hierarchy of courts. On the substantive
PIL NOTES
issue raised by petitioners, respondents argue
that the executive department has no duty to
transmit the Rome Statute to the Senate for
concurrence.
Issue:
Whether or not the executive department has a
ministerial duty to transmit the Rome Statute (or
any treaty) to the Senate for concurrence.
Ruling:
The petition was dismissed. The Supreme Court
ruled that the 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.”
Justice Isagani Cruz, in his book on International
Law, describes the treaty-making process in this
wise:
The usual steps in the treaty-making process are:
negotiation, signature, ratification, and exchange
of the instruments of ratification. The treaty may
then be submitted for registration and
publication under the U.N. Charter, although this
step is not essential to the validity of the
agreement as between the parties.
Negotiation may be undertaken directly by the
head of state but he now usually assigns this task
14
to his authorized representatives. These
representatives are provided with credentials
known as full powers, which they exhibit to the
other negotiators at the start of the formal
discussions. It is standard practice for one of the
parties to submit a draft of the proposed treaty
which, together with the counter-proposals,
becomes the basis of the subsequent
negotiations. The negotiations may be brief or
protracted, depending on the issues involved,
and may even “collapse” in case the parties are
unable to come to an agreement on the points
under consideration.
If and when the negotiators finally decide on the
terms of the treaty, the same is opened for
signature. This step is primarily intended as a
means of authenticating the instrument and for
the purpose of symbolizing the good faith of the
parties; but, significantly, it does not indicate the
final consent of the state in cases where
ratification of the treaty is required. The
document is ordinarily signed in accordance
with the alternat, that is, each of the several
negotiators is allowed to sign first on the copy
which he will bring home to his own state.
Ratification, which is the next step, is the formal
act by which a state confirms and accepts the
provisions of a treaty concluded by its
representatives. The purpose of ratification is to
enable the contracting states to examine the
treaty more closely and to give them an
opportunity to refuse to be bound by it should
they find it inimical to their interests. It is for
this reason that most treaties are made subject to
the scrutiny and consent of a department of the
government other than that which negotiated
them.
The last step in the treaty-making process is the
exchange of the instruments of ratification,
which usually also signifies the effectivity of the
treaty unless a different date has been agreed
upon by the parties. Where ratification is
dispensed with and no effectivity clause is
embodied in the treaty, the instrument is deemed
effective upon its signature.
Petitioners’ arguments equate the signing of the
treaty by the Philippine representative with
PIL NOTES
ratification. It should be underscored that the
signing of the treaty and the ratification are two
separate and distinct steps in the treaty-making
process. As earlier discussed, the signature is
primarily intended as a means of authenticating
the instrument and as a symbol of the good faith
of the parties. It is usually performed by the
state’s authorized representative in the
diplomatic mission. Ratification, on the other
hand, is the formal act by which a state confirms
and accepts the provisions of a treaty concluded
by its representative.
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.
Bayan vs Zamora
The United States panel met with the Philippine
panel to discussed, among others, the possible
elements of the Visiting Forces Agreement
(VFA). This resulted to a series of conferences
and negotiations which culminated on January
12 and 13, 1998. Thereafter, President Fidel
Ramos approved the VFA, which was
respectively signed by Secretary Siazon and
United States Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on
October 5, 1998 and on May 27, 1999, the
senate approved it by (2/3) votes.
Cause of Action:
Petitioners, among others, assert that Sec. 25,
Art XVIII of the 1987 constitution is applicable
and not Section 21, Article VII.
Following the argument of the petitioner, under
they provision cited, the “foreign military bases,
15
troops, or facilities” may be allowed in the
Philippines unless the following conditions are
sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate,
ratified by a majority of the votes cast in a
national referendum held for that purpose if so
required by congress, and
c) recognized as such by the other contracting
state.
Respondents, on the other hand, argue that
Section 21 Article VII is applicable so that, what
is requires for such treaty to be valid and
effective is the concurrence in by at least two-
thirds of all the members of the senate.
Issue:
Is the VFA governed by the provisions of
Section 21, Art VII or of Section 25, Article
XVIII of the Constitution?
Held:
Section 25, Article XVIII, which specifically
deals with treaties involving foreign military
bases, troops or facilities should apply in the
instant case. To a certain extent and in a limited
sense, however, the provisions of section 21,
Article VII will find applicability with regard to
the issue and for the sole purpose of determining
the number of votes required to obtain the valid
concurrence of the senate.
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.
It is inconsequential whether the United States
treats the VFA only as an executive agreement
because, under international law, an executive
agreement is as binding as a treaty.
EXECUTIVE SUMMARY
The Visiting Forces Agreement, for which
Senate concurrence was sought and received on
May 27, 1999, is the subject of a number of
Constitutional challenges.
Issue 1: Do the Petitioners have legal standing as
concerned citizens, taxpayers, or legislators to
question the constitutionality of the VFA?
Petitioners Bayan Muna, etc. have no standing.
A party bringing a suit challenging the
Constitutionality of a law must show not only
that the law is invalid, but that he has sustained
or is in immediate danger of sustaining some
PIL NOTES
direct injury as a result of its enforcement, and
not merely that he suffers thereby in some
indefinite way. Petitioners have failed to show
that they are in any danger of direct injury as a
result of the VFA.
As taxpayers, they have failed to establish that
the VFA involves the exercise by Congress of its
taxing or spending powers. A taxpayer’s suit
refers to a case where the act complained of
directly involves the illegal disbursement of
public funds derived from taxation. Before he
can invoke the power of judicial review, he must
specifically prove that he has sufficient interest
in preventing the illegal expenditure of money
raised by taxation and that he will sustain a
direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient
that he has merely a general interest common to
all members of the public. Clearly, inasmuch as
no public funds raised by taxation are involved
in this case, and in the absence of any allegation
by petitioners that public funds are being
misspent or illegally expended, petitioners, as
taxpayers, have no legal standing to assail the
legality of the VFA.
Similarly, the petitioner-legislators (Tanada,
Arroyo, etc.) do not possess the requisite locus
standi to sue. In the absence of a clear showing
of any direct injury to their person or to the
institution to which they belong, they cannot
sue. The Integrated Bar of the Philippines (IBP)
is also stripped of standing in these cases. The
IBP lacks the legal capacity to bring this suit in
the absence of a board resolution from its Board
of Governors authorizing its National President
to commence the present action.
Notwithstanding, in view of the paramount
importance and the constitutional significance of
the issues raised, the Court may brush aside the
procedural barrier and takes cognizance of the
petitions.
Issue 2: Is the VFA governed by section 21, Art.
VII, or section 25, Art. XVIII of the
Constitution?
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
16
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 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.
PIL NOTES
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.
Issue 3: Was Sec 25 Art XVIII’s requisites
satisfied to make the VFA effective?
Section 25, Article XVIII disallows foreign
military bases, troops, or facilities in the
country, unless the following conditions are
sufficiently met: (a) it must be under a treaty; (b)
the treaty must be duly concurred in by the
Senate and, when so required by Congress,
ratified by a majority of the votes cast by the
people in a national referendum; and (c)
recognized as a treaty by the other contracting
state. There is no dispute as to the presence of
the first two requisites in the case of the VFA.
The concurrence handed by the Senate through
Resolution No. 18 is in accordance with the
17
Constitution, as there were at least 16 Senators
that concurred.
As to condition (c), the Court held that the
phrase “recognized as a treaty” means that the
other contracting party accepts or acknowledges
the agreement as a treaty. To require the US to
submit the VFA to the US Senate for
concurrence pursuant to its Constitution, is to
accord strict meaning to the phrase. Well-
entrenched is the principle that the words used in
the Constitution are to be given their ordinary
meaning except where technical terms are
employed, in which case the significance thus
attached to them prevails. Its language should be
understood in the sense they have in common
use.
The records reveal that the US Government,
through Ambassador Hubbard, has stated that
the US has fully committed to living up to the
terms of the VFA. For as long as the US accepts
or
acknowledges the VFA as a treaty, and binds
itself further to comply with its treaty
obligations, there is indeed compliance with the
mandate of the Constitution.
Worth stressing too, is that the ratification by the
President of the VFA, and the concurrence of the
Senate, should be taken as a clear and
unequivocal expression of our nation’s consent
to be bound by said treaty, with the concomitant
duty to uphold the obligations and
responsibilities embodied thereunder.
Ratification is generally held to be an executive
act, undertaken by the head of the state, through
which the formal acceptance of the treaty is
proclaimed. A State may provide in its domestic
legislation the process of ratification of a treaty.
In our jurisdiction, the power to ratify is vested
in the President and not, as commonly believed,
in the legislature. The role of the Senate is
limited only to giving or withholding its consent,
or concurrence, to the ratification.
With the ratification of the VFA it now becomes
obligatory and incumbent on our part, under
principles of international law (pacta sunt
servanda), to be bound by the terms of the
agreement. Thus, no less than Section 2, Article
II declares that the Philippines adopts the
generally accepted principles of international
law as part of the law of the land and adheres to
PIL NOTES
the policy of peace, equality, justice, freedom,
cooperation and amity with all nations.
C. Reservations, Invalidity, Termination
and Interpretation of Treaties
Article 2 defines reservations as “a unilateral
statement, however phrased or named, made by
the state, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it
puports to exclude or to modify the legal effects
of certain provisions in their application to that
state
A reservation is considered to have been
accepted by a state if it shall have raised no
objection to the reservation by the end of a
period of 12 months after it was notified of the
reservation or the date when it expressed consent
When a state objecting to a reservation has not
opposed the entry into force of the treaty
between itself and the reserving state, the
provisions to which the reservation relates do
not apply as between the two states to the extent
of the reservation
Reservation must be in writing and
communicated to the contracting parties.
An express acceptance or objection to a
reservation made previously to confirmation of
the reservation does not itself require
confirmation
The withdrawal of a reservation or of an
objection to a reservation must be in writing.
Reservations are meant only for multilateral
treaties.
A state which has made and maintained a
reservation which has been objected by one or
more parties to the Convention but not by others,
can be regarded as a party to the convention if
the reservation is compatible with the object and
the purpose of the conventions.
If a party to the convention objects to a
reservation which it considers incompatible with
the object and purpose of the Convention, it can
18
consider that the reserving state is not a party to
the convention.
Entry into force of treaties
Treaties enter in force on the date agreed upon
by the parties.
Where no date is indicated, the treaty enters into
force once consent has been given.
Multilateral treaties generally contain a
provision which says how many states have to
accept the treaty before it can come into force.
Application of Treaties
Pacta sunt servanda
Art 26 of the Convention: every treaty in force is
binding upon the parties to it and must be
performed by them in good faith
Art 46: a party may not invoke the provisions of
its internal not as a justification for its failure to
perform a treaty.
Art 29: Unless a different intention appears from
the treaty or is otherwise established, a treaty is
binding upon each party in respect to its entire
territory.
Interpretation of Treaties
Good faith and with the ordinary meaning
31(1): objective approach; interpretation
according to the ordinary meaning of the words
31(2): Teleological approach; interpretation
according to the purpose of the treaty
31(3 &4): Subjective approach; honors special
meanings given by the parties.
Where there are ambiguities in the meaning of a
treaty, resort may be made to supplementary
sources.
The terms of the treaty are presumed to have the
same meaning in each authentic text.
The meaning which bet reconciles the texts
having regard to the object and the purpose of
the treaty shall be regarded.
G.R. No. 151445 April 11, 2002
Lim v. Executive Secretary
FACTS:
PIL NOTES
Pursuant to the Visiting Forces Agreement
(VFA) signed in 1999, personnel from the armed
forces of the United States of America started
arriving in Mindanao to take partin "Balikatan
02-1” on January 2002. The Balikatan 02-1
exercises involves the simulation of joint
military maneuvers pursuant to the Mutual
Defense Treaty, a bilateral defense agreement
entered into by the Philippines and the United
States in 1951. The exercise is rooted from the
international anti-terrorism campaign declared
by President George W. Bush in reaction to the
3 commercial aircrafts hijacking that smashed
into twin towers of the World Trade Center in
New York City and the Pentagon building in
Washington, D.C. allegedly by the al-Qaeda
headed by the Osama bin Laden that occurred on
September 11, 2001. Arthur D. Lim and Paulino
P. Ersando as citizens, lawyers and taxpayers
filed a petition for certiorari and prohibition
attacking the constitutionality of the joint
exercise. Partylists Sanlakas and Partido Ng
Manggagawa as residents of Zamboanga and
Sulu directly affected by the operations filed a
petition-in-intervention.
The Solicitor General commented the
prematurity of the action as it is based only on a
fear of future violation of the Terms of
Reference and impropriety of availing of
certiorari to ascertain a question of fact
specifically interpretation of the VFA whether it
is covers "Balikatan 02-1” and no question of
constitutionality is involved. Moreover, there is
lack of locus standi since it does not involve tax
spending and there is no proof of direct personal
injury.
ISSUE: W/N the petition and the petition-in-
intervention should prosper.
HELD: NO. Petition and the petition-in-
intervention are hereby DISMISSED without
prejudice to the filing of a new petition
sufficient in form and substance in the proper
Regional Trial Court - Supreme Court is not a
trier of facts
Doctrine of Importance to the Public
Considering however the importance to the
public of the case at bar, and in keeping with the
19
Court's duty, under the 1987 Constitution, to
determine whether or not the other branches of
the government have kept themselves within the
limits of the Constitution and the laws that they
have not abused the discretion given to them, the
Court has brushed aside technicalities of
procedure and has taken cognizance of this
petition.
Although courts generally avoid having to
decide a constitutional question based on the
doctrine of separation of powers, which enjoins
upon the department of the government a
becoming respect for each other's act, this Court
nevertheless resolves to take cognizance of the
instant petition.
Interpretation of Treaty
The VFA permits United States personnel to
engage, on an impermanent basis, in "activities,"
the exact meaning of which was left undefined.
The expression is ambiguous, permitting a wide
scope of undertakings subject only to the
approval of the Philippine government. The sole
encumbrance placed on its definition is couched
in the negative, in that United States personnel
must "abstain from any activity inconsistent with
the spirit of this agreement, and in particular,
from any political activity." All other activities,
in other words, are fair game.
To aid in this, the Vienna Convention on the
Law of Treaties Article 31 SECTION 3 and
Article 32 contains provisos governing
interpretations of international agreements. It is
clear from the foregoing that the cardinal rule of
interpretation must involve an examination of
the text, which is presumed to verbalize the
parties' intentions. The Convention likewise
dictates what may be used as aids to deduce the
meaning of terms, which it refers to as the
context of the treaty, as well as other elements
may be taken into account alongside the
aforesaid context. According to Professor
Briggs, writer on the Convention, the distinction
between the general rule of interpretation and
the supplementary means of interpretation is
intended rather to ensure that the supplementary
means do not constitute an alternative,
autonomous method of interpretation divorced
from the general rule.
The meaning of the word “activities" was
deliberately made that way to give both parties a
PIL NOTES
certain leeway in negotiation. Thus, the VFA
gives legitimacy to the current Balikatan
exercises. Both the history and intent of the
Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities -as
opposed to combat itself -such as the one subject
of the instant petition, are indeed authorized.
The Terms of Reference are explicit enough.
Paragraph 8 of section I stipulates that US
exercise participants may not engage in combat
"except in self-defense." ." The indirect
violation is actually petitioners' worry, that in
reality, "Balikatan 02-1" is actually a war
principally conducted by the United States
government, and that the provision on self-
defense serves only as camouflage to conceal the
true nature of the exercise. A clear
pronouncement on this matter thereby becomes
crucial. In our considered opinion, neither the
MDT nor the VFA allow foreign troops to
engage in an offensive war on Philippine
territory. Under the salutary proscription stated
in Article 2 of the Charter of the United Nations.
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 especially Sec.
2, 7 and 8 of Article 2: Declaration of Principles
and State Policies in this case. 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 Sec. 25 on Transitory Provisions
which shows 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.
International Law vs. Fundamental Law and
Municipal Laws
Conflict arises then between the fundamental
law and our obligations arising from
international agreements.
Philip Morris, Inc. v. Court of Appeals: “Withal,
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
20
doctrine of incorporation as applied in most
countries, rules of international law are given a
standing equal, not superior, to national
legislation.”
From the perspective of public international law,
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."
Our Constitution espouses the opposing view as
stated in section 5 of Article VIII: “The Supreme
Court shall have the following powers: xxx
(2) Review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and order 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.”
Ichong v. Hernandez: “provisions of a treaty are
always subject to qualification or amendment by
a subsequent law, or that it is subject to the
police power of the State”
Gonzales v. Hechanova: “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.”
The foregoing premises leave us no doubt that
US forces are prohibited / from engaging in an
offensive war on Philippine territory.
Invalidity of Treaties
Error: A state may invoke an error in a treaty as
invalidating its consent to be bound by the treaty
if the error relates to a fact or situation which
was assumed by that state to exist at the time
when the treaty was concluded and formed as an
essential basis of its consent to be bound by the
treaty.
Fraud: If a state has been induced to conclude a
treaty by the fraudulent conduct of another
PIL NOTES
negotiating state, the state may invoke the fraud
as invalidating consent to be bound by the treaty.
Corruption of a representative of a state: if the
expression of a state’s consent to be bound by a
treaty has been procured through the corruption
of its representative directly or indirectly
Coercion of a representative of a state: through
acts or threats directed against him shall be
without any legal effect.
Coercion of a state by the threat or use of force:
a treaty is void if its conclusion has been
procured by the threat or use of force
Amendment and Modification of Treaties:
Amendment is a formal revision done with the
participation in its initial stage, by all parties to
the treaty.
Modification: involves only some of the parties.
Termination of Treaties:
A treaty may be terminated or suspended
according to the terms of the treaty or with the
consent of the parties.
It may also end when the purpose of the treaty
has already been achieved.
Fisheries Jurisdiction Case
Abstract
The International Court of Justice considered a
dispute between Iceland and the United
Kingdom regarding a proposed extension by
Iceland of its fisheries jurisdiction. Iceland failed
to appear or to plead its objection in this case.
In 1948, Iceland’s Parliament passed a law
directing the Ministry of Fisheries to issue
regulations establishing explicitly bounded
conservation zones for fishing. A 4-mile zone
was subsequently drawn in 1952. In 1958 this
zone was extended to 12 miles, establishing a
new 12-mile fishery limit around Iceland which
was reserved for Icelandic fisherman. The
United Kingdom did not accept the validity of
the new regulations, and its fisherman continued
to fish inside the 12-mile limit.
After the 1960 Second United Nations
Conference on the Law of the Sea, England and
Iceland began a series of negotiations to resolve
21
their differences, and in 1961 reached a
settlement in an Exchange of Notes agreeing to a
12-mile fishery zone around Iceland.
In 1971, Iceland decided to extend its fisheries
jurisdiction to a 50-mile zone, and maintained
that the 1961 Exchange of Notes was no longer
in effect. These actions form the core of this
dispute.
The Court held that the 1972 Icelandic
Regulations constituted a unilateral extension of
the exclusive fishing rights of Iceland to 50
nautical miles. Iceland could not unilaterally
exclude the United Kingdom from areas between
the fishery limits agreed to in the 1961
Exchange of Notes.
The Court decided that Iceland and the United
Kingdom had to undertake negotiations in good
faith to find an equitable solution to their
differences concerning their respective fishery
rights. The parties were to consider that Iceland
was entitled to a preferential share in the
distribution of fishing resources due to the
special dependence of its people upon coastal
fisheries, as well as the principle that each state
must pay due regard to the interests of the other
in the conservation and equitable exploitation of
these resources.
The court noted two concepts that had been
accepted as part of customary law: (1) the idea
of a fishery zone in which each state may claim
exclusive fishery jurisdiction independently of
its territorial sea, and that a fishery zone up to a
12-mile limit from the baseline is generally
accepted; and (2) the concept of preferential
rights of fishing in adjacent waters in favour of
the coastal state which has special dependence
on its coastal fisheries.
Succession to treaties
Clean slate rule applies but does not apply in
treaties affecting boundary regimes.
D. Other Forms of Binding Agreements
and Undertakings by States:
1. Executive Agreements:
1. The Commissioner of Customs and the
Collector of Customs v. Eastern Sea Trading
PIL NOTES
• Respondent Eastern Sea Trading was the
consignee of several shipments of onion and
garlic which arriaved in the Port of Manila from
August 25 to September 7, 1954.
• Some shipments came from Japan and
others from Hong Kong.
• In as much as none of the shipments had
the certificate required by the Central Bank
Circulars no 44-45 for the release thereof.
• The goods thus imported were seized
and subjected to forfeiture proceedings for
alleged violations of section 1363(f) of the
Revised Administrative Code
• The Collector of Customs of Manila
rendered a decision on September 4, 1956,
declaring said good forfeited to the government
and the goods having been in the meantime
related to the consignees on surety bonds filed
by the same as principal and the Alto surety and
insurance co. as surety.
• Directing that the amounts of said bonds
be paid by said principal and surety, jointly and
severally to the Bureau of customs within 30
days from notice.
• On appeak, said decision was affirmed
by the Commissioner of Customs on Dec 27
1956
• Consignee sought a review of the
decision of said two officers by the Court of
Tax of Appeals.
• Court of Tax appeals reversed the
decision of the Commissioner of Customs and
ordered that the aforementioned bonds be
cancelled and withdrawn.
• The present petition of the
Commissioner of Customs for review of the
decision of the Court of Tax appeals.
• The Central bank has no authority to
regulate transaction not involving foregin
exchange; that the shipments in questions are in
the nature of “no-dollar” imports; and that the
aforementioned shipments do not involve
foreign exchange
• Insofar as a Central Bank license and a
certificate authorizing the importation under
consideration are required by Central Bank
Circulars no 44-45 are null and void.
• That the seizure and forfeiture of goods
imported from Japan cannot be justified under
Executive Order 328
22
• EO328: seeks to implement an executive
agreement extending the effectivity of our
Trades and Financial Agreements with Japan
- believed to of dubious validity because
there is no governmental agency authorized to
issue the import license required by the EO328.
• The authority of Central Bank to
regulate no-dollar imports and the validity of the
aforementioned circulars no 44-45 have already
been passed upon and repeatedly upheld by this
court for the reason that the broad powers of the
Central Bank to maintain our monetary stability
and to preserve the international value of our
currency.
• The Court of Tax Appeals entertained
doubts on the legality of the executive
agreement . The concurrence of house of
congress is required by our fundamental law in
the making of “treaties” which are however,
distinct and different from “executive
agreements”, which may be validly entered into
without such concurrence.
• Treaties:
- are formal documents which require
ratification with the approval of 2/3rd of the
senate.
- International agreements involving
political issues or changes of national policy and
those involving international arrangements of a
permanent character usually take the form of
treaties.
• Executive Agreements:
- become binding through executive
action without the need of a vote by the senate or
congress.
- International agreements embodying
adjustments of detail carrying out well-
established national policies and traditions and
those involving arrangements of a more or less
temporary nature
- Agreements concluded by the president
which fall short of treaties
- Take the form of exchanges of notes and
at other times that of more formal documents
denominated “agreements” time or “protocols”
• The validity of the executive agreement
in question is thus patent (copyright)
• The authority to issue the licenses was
not vested exclusively upon the import control
commission or administration.
• E0328:
PIL NOTES
- Provided for the export or import
licenses from the Central bank of the Philippines
or the import Control Administration or
commission
- The latter was created only to perform
the task of implementing certain objectives of
the monetary board and the central bank
- Upon the abolition of said commission
the duty to provide means and ways for the
accomplishment of said objectives had merely to
be discharged directly by the monetary board or
the central bank.
• The decision appealed from is reversed.
• Affirming the decision of the
commissioner of customs.
• With cost against Eastern Sea trading
2. USAFFE Veterans v. Treasurer of the
Philippines
• United States grants: grant for the
operation and maintenance of the Philippine
army ; unexpended sums refundable.
• The United States Congressional Act of
Dec 17, 1941 (Public Law no 353):
appropriating $269 Million expressly provided
that the amount shall be available for the
payment to the government of the
commonwealth of the ph upon its written request
either in advance of or in reimbursement for all
or any part of the estimated or actual costs of
operation, mobilization and maintenance of the
Philippine army.
• Held: Ownership of the money did not
vest in the Philippines upon delivery thereof. In
any systems of accounting advances of funds for
expenditures contemplate disbursements to be
reported, and credited if approved, against such
advances the unexpended sums to be returned
later.
• Executive agreements: binding even
without the concurrence of senate;
- Two classes of EA (Nature of EA)
a. Agreements entered into may be termed
as PRESIDENTIAL AGREEMENTS
- Made purely as executive acts as
affecting external relations and independent of
or without legislative authorization
b. Agreements entered into pursuance of
acts of Congress which have been designated as
CONGRESSIONAL-EXECUTIVE
AGREEMENTS
23
- Entered into in pursuance of ancts of
congress
• ROMULO SNYDER AGREEMENT
(1950)
- Whereby the ph govt undertook to return
to the US govt in 10 annual installments a total
of $35m advanced by the US to but unexpended
by the National Defense forces of the
Philippines, may fall under any of these two
classes of EA.
• Ratification of the agreement by the act
of congress appropriating funds for the year
funds for the yearly installments necessary to
comply with the Romulo-Snyder agreement.
• In October 1954, the Usaffe Veterans
Associations Inc., hereafter called Usaffe
Veterans, for itself and for many other Filipino
veterans of World War II, ex-members of the
United States Armed Forces in the Far East
(USAF-FE) prayed in its complaint before the
Manila court of first instance that said
Agreement be annulled, that payments
thereunder be declared illegal and that
defendants as officers of the Philippine Republic
be restrained from dibursing any funds in the
National Treasury in pursuance of said
Agreement. Said Usaffe Veterans further asked
that the moneys available, instead of being
remitted to the States, should be turned overt to
the Finance Service of the Armed Forces of the
Philippines for the payment of all pending
claims of the veterans represented by plaintiff.
• The complaint rested on plaintiff’s three
porpositions:
1. first, that the funds to be "returned"
under the Agreement were funds appropriated by
the American Congress for the Philippine Army,
actually delivered to the Philippine Government
and actually owned by the said Government;
2. second, that U.S. Secretary Snyder of
the Treasury, had no authority to retake such
funds from the P.I. Government; and
3. third, that Philippine Foreign Secretary
Carlos P. Romulo had no authority to return or
promise to return the aforesaid sums of money
through the so-called Romulo-Snyder
Agreement.
• Now, pursuant to the power reserved to
him under Public Law 353 above-quoted,
President Roosevelt issued on January 3, 1942,
PIL NOTES
his Executive Order No. 9011 prescribing partly
as follows:
Necessary expenditures from funds in the
Philippine Treasury for the purposes authorized
by the Act of December 17, 1941, will be made
by disbursing officers of the Army of the
Philippines on the approval of authority of the
Commanding General, United States Army
Forces in the Far East, and such purposes as he
may deem proper and his determination thereon
shall be final and conclusive upon the
accounting officers of the Philippine
Government, and such expenditures will be
accounted for in accordance with procedures
established by Philippine Commonwealth Laws
and regulations."
• Out of the total amounts thus
appropriated by the United States Congress as
above itemized, P570,863,000.00 was
transferred directly to the Philippine Armed
Forces by means of vouchers which stated
"Advance of Funds under Public Law 353-77th
Congress and Executive Order No. 9011." this
amount was used (mostly) to discharge in the
Philippine Islands the monetary obligations
assumed by the U.S. Government as a result of
the induction of the Philippine Armed Forces
into the U.S. Army, and of its operations
beginning in 1941. Part of these obligations
consisted in the claims of Filipino USAFFE
soldiers for arrears in pay and in the charges for
supplies used by them and the guerrillas.
• Of the millions so transferred, there
remained unexpended and uncommited in the
possession of the Philippine Armed Forces as of
December 31, 1949, about 35 million dollars. As
at the time, the Philippine Government badly
needed funds for its activities, President Quirino,
through Government Miguel Cuaderno of the
Central Bank proposed to the corresponding
officials of the U.S Government the retention of
the 35-million dollars as a loan, and for its
repayment in ten annual installments
• After protracted negotiations the deal
was concluded and the Romulo-Snyder
Agreement was signed in Washington on
November 6, 1950, by the then Philippine
Secretary of Foreign Affairs, Carlos P. Romulo,
24
and the then American Secretary of the
Treasury, John W. Snyder.
• In this appeal, the Usaffe Veterans
reiterated with extended arguments, their basic
propositions. They insist; first, the money
delivered by the U.S. to the Armed Forces of the
Philippine Island were straight payments for
military services; ownership thereof vested in
the Philippine Government upon delivery, and
consequently, there was nothing to return,
nothing to consider as a loan; and second,the
Romulo-Snyder Agreement was void because
there was no loan to be repaid and because3 it
was not binding on the Philippine Government
for lack of authority of the officers who
concluded the same.
• On the second, there is no doubt that
President Quirino approved the negotiations.
And he had power to contract budgetary loans
under Republic Act No. 213, amending Republic
Act No. 16. the most important argument,
however, rests on the lack of ratification of the
Agreement by the Senate of the Philippines to
make it binding on this Government. On this
matter, the defendants explain as follows:j
• "That the agreement is not a ‘treaty’ as
that term is used in the Constitution, is
conceded. The agreement was never submitted
to Senate for concurrence (Art. VII, Sect. 10).
(7). However, it must be noted that a treaty is
not the only form that an international agreement
may assumed.
• For the grant of the treaty-making power
to the Executive and the Senate does not exhaust
the power of the government over international
international relation, Consequently, executive
agreements may be entered into with other states
and are effective even without the concurrence
of the Senate
• there is no difference between treaties
and executive agreements in their binding effect
upon states concerned as long as the negotiating
functionaries have remained within their powers
• "There are now various forms of such
pacts or agreements entered into by and between
sovereign states which do not necessarily come
under the strict sense of a treaty and which do
not require ratification or consent of the
PIL NOTES
legistlative body of the State, but nevertheless,
are consideration valid international agreements
• ‘The Romulo-Snyder Agreement may
fall under any of these two classes, for precisely
on September 18, 1946, Congress of the
Philippines specifically authorized the President
of the Philippines to obtain such loans or incur
such indebtednesss with the Government of the
United States, its agencies or instrumentalities
• Judgement affirmed.
2. Unilateral Statements:
 Even a unilateral declaration concerning
legal or factual situations may create
legal obligations
A. Nuclear Test Cases: Australia v. France,
New Zealand v. France:
France was a signatory to the Nuclear Test Ban
Treaty and thus continued to conduct tests in the
South Pacific until 1973. The tests conducted in
1972 and 1973 led to the filing of protest by
Australia and New Zealand. The case, however,
was taken off the Court’s list without a decision
when France announced by a series of unilateral
announcements that it would conduct no further
tests after 1973.
The Court nevertheless commented on the legal
significance of these announcements saying: it is
well-recognized that declarations made by way
of unilateral acts concerning legal or factual
situations, may have the effect of creating legal
obligations. Declarations of this kind may be,
and often are, very specific. When it is the
intention of the state making the declaration that
it should become bound according to its terms,
that intention confers on the declaration the
character of a legal undertaking, the State being
thenceforth legally required to follow a course of
conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and
with an intent to be bound, even though not
made within the context of international
negotiations, is binding.
In announcing that the 1974 series of
atmospheric tests would be the last, the French
government conveyed to the world at large it’s
intention to terminate the tests. It was bound to
assume that other States might take note of these
25
statements and rely on their being effective. The
validity of these statements and their legal
consequences must be considered within the
general framework of the security of
international intercourse, and the confidence and
trust which are so essential in the relations
among states.
Two Characteristics the Court found which
convinced it that a binding obligation had been
incurred.
a.) The commitment was very specific
b.) There was a clear intent to be bound.
This, however, did not prevent France from
conducting nuclear tests in the South Pacific.
After having conducted 6 nuclear tests, France
responded to worldwide outrage and stopped the
testing at 6 in 1996 rather than the originally
planned 8.
Province of North Cotobato v. GRP Peace
Panel
The President may not, of course, unilaterally
implement the solutions that she considers
viable, but she may not be prevented from
submitting them as recommendations to
Congress, which could then, if it is minded, act
upon them pursuant to the legal procedures for
constitutional amendment and revision. In
particular, Congress would have the option,
pursuant to Article XVII, Sections 1 and 3 of the
Constitution, to propose the recommended
amendments or revision to the people, call a
constitutional convention, or submit to the
electorate the question of calling such a
convention.
While the President does not possess constituent
powers - as those powers may be exercised only
by Congress, a Constitutional Convention, or the
people through initiative and referendum - she
may submit proposals for constitutional change
to Congress in a manner that does not involve
the arrogation of constituent powers.
From the foregoing discussion, the principle
may be inferred that the President - in the course
of conducting peace negotiations - may validly
consider implementing even those policies that
require changes to the Constitution, but she may
PIL NOTES
not unilaterally implement them without the
intervention of Congress, or act in any way as if
the assent of that body were assumed as a
certainty.
These recommendations, however, may amount
to nothing more than the President's suggestions
to the people, for any further involvement in the
process of initiative by the Chief Executive may
vitiate its character as a genuine "people's
initiative." The only initiative recognized by the
Constitution is that which truly proceeds from
the people
It will be observed that the President has
authority, as stated in her oath of office,178 only
to preserve and defend the Constitution. Such
presidential power does not, however, extend to
allowing her to change the Constitution, but
simply to recommend proposed amendments or
revisions.
Paragraph 7 on Governance of the MOA-AD
states, however, that all provisions thereof which
cannot be reconciled with the present
Constitution and laws "shall come into force
upon signing of a Comprehensive Compact and
upon effecting the necessary changes to the legal
framework." This stipulation does not bear the
marks of a suspensive condition - defined in
civil law as a future and uncertain event - but of
a term. It is not a question of whether the
necessary changes to the legal framework will
be effected, but when. That there is no
uncertainty being contemplated is plain from
what follows, for the paragraph goes on to state
that the contemplated changes shall be "with due
regard to non derogation of prior agreements and
within the stipulated timeframe to be contained
in the Comprehensive Compact."
Plainly, stipulation-paragraph 7 on
GOVERNANCE is inconsistent with the limits
of the President's authority to propose
constitutional amendments, it being a virtual
guarantee that the Constitution and the laws of
the Republic of the Philippines will certainly be
adjusted to conform to all the "consensus points"
found in the MOA-AD. Hence, it must be struck
down as unconstitutional.
26
The MOA-AD, as earlier mentioned in the
overview thereof, would have included foreign
dignitaries as signatories. In addition,
representatives of other nations were invited to
witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that
the MOA-AD would have had the status of a
binding international agreement had it been
signed. An examination of the prevailing
principles in international law, however, leads to
the contrary conclusion.
In another vein, concern has been raised that the
MOA-AD would amount to a unilateral
declaration of the Philippine State, binding
under international law, that it would comply
with all the stipulations stated therein, with the
result that it would have to amend its
Constitution accordingly regardless of the true
will of the people. Cited as authority for this
view is Australia v. France,181 also known as
the Nuclear Tests Case, decided by the
International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged
before the ICJ the legality of France's nuclear
tests in the South Pacific. France refused to
appear in the case, but public statements from its
President, and similar statements from other
French officials including its Minister of
Defence, that its 1974 series of atmospheric tests
would be its last, persuaded the ICJ to dismiss
the case.182 Those statements, the ICJ held,
amounted to a legal undertaking addressed to the
international community, which required no
acceptance from other States for it to become
effective.
Essential to the ICJ ruling is its finding that the
French government intended to be bound to the
international community in issuing its public
statements, viz:
43. It is well recognized that declarations made
by way of unilateral acts, concerning legal or
factual situations, may have the effect of
creating legal obligations. Declarations of this
kind may be, and often are, very specific. When
it is the intention of the State making the
declaration that it should become bound
PIL NOTES
according to its terms, that intention confers on
the declaration the character of a legal
undertaking, the State being thenceforth legally
required to follow a course of conduct consistent
with the declaration. An undertaking of this
kind, if given publicly, and with an intent to be
bound, even though not made within the context
of international negotiations, is binding. In these
circumstances, nothing in the nature of a quid
pro quo nor any subsequent acceptance of the
declaration, nor even any reply or reaction from
other States, is required for the declaration to
take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of
the juridical act by which the pronouncement by
the State was made.
44. Of course, not all unilateral acts imply
obligation; but a State may choose to take up a
certain position in relation to a particular matter
with the intention of being bound-the intention is
to be ascertained by interpretation of the act.
When States make statements by which their
freedom of action is to be limited, a restrictive
interpretation is called for.
xxxx
51. In announcing that the 1974 series of
atmospheric tests would be the last, the French
Government conveyed to the world at large,
including the Applicant, its intention effectively
to terminate these tests. It was bound to assume
that other States might take note of these
statements and rely on their being effective. The
validity of these statements and their legal
consequences must be considered within the
general framework of the security of
international intercourse, and the confidence and
trust which are so essential in the relations
among States. It is from the actual substance of
these statements, and from the circumstances
attending their making, that the legal
implications of the unilateral act must be
deduced. The objects of these statements are
clear and they were addressed to the
international community as a whole, and the
Court holds that they constitute an undertaking
possessing legal effect. The Court considers
*270 that the President of the Republic, in
deciding upon the effective cessation of
27
atmospheric tests, gave an undertaking to the
international community to which his words
were addressed. x x x (Emphasis and
underscoring supplied)
As gathered from the above-quoted ruling of the
ICJ, public statements of a state representative
may be construed as a unilateral declaration only
when the following conditions are present: the
statements were clearly addressed to the
international community, the state intended to be
bound to that community by its statements, and
that not to give legal effect to those statements
would be detrimental to the security of
international intercourse. Plainly, unilateral
declarations arise only in peculiar
circumstances.
The limited applicability of the Nuclear Tests
Case ruling was recognized in a later case
decided by the ICJ entitled Burkina Faso v.
Mali,183 also known as the Case Concerning the
Frontier Dispute. The public declaration subject
of that case was a statement made by the
President of Mali, in an interview by a foreign
press agency, that Mali would abide by the
decision to be issued by a commission of the
Organization of African Unity on a frontier
dispute then pending between Mali and Burkina
Faso.
Unlike in the Nuclear Tests Case, the ICJ held
that the statement of Mali's President was not a
unilateral act with legal implications. It clarified
that its ruling in the Nuclear Tests case rested on
the peculiar circumstances surrounding the
French declaration subject thereof, to wit:
In order to assess the intentions of the author of
a unilateral act, account must be taken of all the
factual circumstances in which the act occurred.
For example, in the Nuclear Tests cases, the
Court took the view that since the applicant
States were not the only ones concerned at the
possible continuance of atmospheric testing by
the French Government, that Government's
unilateral declarations had ‘conveyed to the
world at large, including the Applicant, its
intention effectively to terminate these tests‘
(I.C.J. Reports 1974, p. 269, para. 51; p. 474,
para. 53). In the particular circumstances of
PIL NOTES

those cases, the French Government could not
express an intention to be bound otherwise than
by unilateral declarations. It is difficult to see
how it could have accepted the terms of a
negotiated solution with each of the applicants
without thereby jeopardizing its contention that
its conduct was lawful. The circumstances of the
present case are radically different. Here, there
was nothing to hinder the Parties from
manifesting an intention to accept the binding
character of the conclusions of the Organization
of African Unity Mediation Commission by the
normal method: a formal agreement on the basis
of reciprocity. Since no agreement of this kind
was concluded between the Parties, the Chamber
finds that there are no grounds to interpret the
declaration made by Mali's head of State on 11
April 1975 as a unilateral act with legal
implications in regard to the present case.
(Emphasis and underscoring supplied)
Mali President's statement was not held to be a
binding unilateral declaration by the ICJ. As in
that case, there was also nothing to hinder the
Philippine panel, had it really been its intention
to be bound to other States, to manifest that
intention by formal agreement. Here, that formal
agreement would have come about by the
inclusion in the MOA-AD of a clear
commitment to be legally bound to the
international community, not just the MILF, and
by an equally clear indication that the signatures
of the participating states-representatives would
constitute an acceptance of that commitment.

Assessing the MOA-AD in light of the above

criteria, it would not have amounted to a
unilateral declaration on the part of the
Philippine State to the international community.
The Philippine panel did not draft the same with
the clear intention of being bound thereby to the
international community as a whole or to any
State, but only to the MILF. While there were
States and international organizations involved,
one way or another, in the negotiation and
projected signing of the MOA-AD, they
participated merely as witnesses or, in the case
of Malaysia, as facilitator. As held in the Lomé
Accord case, the mere fact that in addition to the
parties to the conflict, the peace settlement is
signed by representatives of states and
international organizations does not mean that
the agreement is internationalized so as to create
obligations in international law.

Since the commitments in the MOA-AD were

not addressed to States, not to give legal effect
to such commitments would not be detrimental
to the security of international intercourse - to
the trust and confidence essential in the relations
among States.

In one important respect, the circumstances

surrounding the MOA-AD are closer to that of
Burkina Faso wherein, as already discussed, the

28