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FOUR HUNDRED AND SIXTY-NINE (469) QUESTIONS AND ANSWERS IN POLITICAL LAW AND PUBLIC INTERNATIONAL LAW
(Culled from Significant Laws and Decisions of the Supreme Court) Attorney EDWIN REY SANDOVAL (As of April 15, 2004)

PUBLIC INTERNATIONAL LAW 1. What is the doctrine of incorporation? How is it applied by local courts?
Held: Under the DOCTRINE OF INCORPORATION, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the Constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the Incorporation Clause in Section 2, Article II of the Constitution. In a situation however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances. The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle of lex posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states where the Constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the Constitution. (Secretary of

Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc [Melo])

2. Discuss the contemporary view on the rightful place of an Individual in International Law? Does he remain a mere object of International Law, or is he now a proper subject of International Law?
Held: Then came the long and still ongoing debate on what should be the subject of international law. The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism the fascism of Italys Mussolini and Germanys Hitler, the militarism of Japans Hirohito and the communism of Russias Stalin, etc. The sinking of these isms led to the elevation of the rights of the individual against the state. Indeed, some species of human rights have already been accorded universal recognition. Today, the drive to internationalize rights of women and children is also on high gear. The higher rating given to human rights on the hierarchy of values necessarily led to the reexamination of the rightful place of the individual in international law. Given the harshest eye is the moss-covered doctrine that international law deals only with States and that individuals are not its subject. For its undesirable corollary is that sub-doctrine that an individuals right in international law is a near cipher. Translated in extradition law, the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of international law, he is bereft of rights. An extraditee, so it was held, is a mere object transported from one state to the other as an exercise of the sovereign will of the two states involved. The re-examination consigned this pernicious doctrine to the museum of ideas .

P age |2 The new thinkers of international law then gave a significant shape to the role and rights of the individual in state-concluded treaties and other international agreements. x x x (Concurring Opinion, Puno J.,

in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div. [Motion for Reconsideration])

3. What must a person who feels aggrieved by the acts of a foreign sovereign do to espouse his cause?
Held: Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claim. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See . Once the Philippine government decides to espouse the claim, the latter ceases to be a private cause. According to the Permanent Court of International Justice, the forerunner of the International Court of Justice: By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights - its right to ensure, in the person of its subjects, respect for the rules of international law (The

Mavrommatis Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]). (Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-539, Dec. 1, 1994, En Banc [Quiason])

4. Discuss the Indigenous International Movement. Is the Philippines an active participant in the Indigenous International Movement?
Held: The Indigenous Peoples Rights Act (IPRA) is a recognition of our active participation in the indigenous international movement. The indigenous movement can be seen as the heir to a history of anti-imperialism stretching back to prehistoric times. The movement received a massive impetus during the 1960s from two sources. First, the decolonization of Asia and Africa brought into the limelight the possibility of peoples controlling their own destinies. Second, the right of self-determination was enshrined in the UN Declaration on Human Rights. The rise of the civil rights movement and anti-racism brought to the attention of North American Indians, Aborigines in Australia, and Maori in New Zealand the possibility of fighting for fundamental rights and freedoms. In 1974 and 1975, international indigenous organizations were founded , and during the 1980s, indigenous affairs were on the international agenda. The people of the Philippine Cordillera were the first Asians to take part in the international indigenous movement. It was the Cordillera Peoples Alliance that carried out successful campaigns against the building of the Chico River Dam in 1981-82 and they have since become one of the best-organized indigenous bodies in the world. Presently, there is a growing concern for indigenous rights in the international scene. This came as a result of the increased publicity focused on the continuing disrespect for indigenous human rights and the destruction of the indigenous peoples environment, together with the national governments inability to deal with the situation. Indigenous rights came as a result of both human rights and environmental protection, and have become a part of todays priorities for the international agenda .

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International organizations and bodies have realized the necessity of applying policies, programs and specific rules concerning IPs in some nations. The World Bank, for example, first adopted a policy on IPs as a result of the dismal experience of projects in Latin America . The World Bank now seeks to apply its current policy on IPs to some of its projects in Asia. This policy has provided an influential model for the projects of the Asian Development Bank. The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and declares as a State policy the promotion of their rights within the framework of national unity and development (Section 22, Article II, 1987 Constitution). The IPRA amalgamates the Philippine category of ICCs with the international category of IPs, and is heavily influenced by both the International Labor Organization (ILO) Convention 169 and the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples . ILO Convention No. 169 is entitled the Convention Concerning Indigenous and Tribal Peoples in Independent Countries (also referred to as the Indigenous and Tribal Peoples Convention, 1989) and was adopted on June 27, 1989. It is based on the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and many other international instruments on the prevention of discrimination . ILO Convention No. 169 revised the Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries passed on June 26, 1957. Developments in international law made it appropriate to adopt new international standards on indigenous peoples with a view to removing the assimilationist orientation of the earlier standards, and recognizing the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development. (Separate Opinion, Puno, J., in Cruz v. Secretary of Environment

and Natural Resources, 347 SCRA 128, 238-241, Dec. 6, 2000, En Banc)

5. Is sovereignty really absolute and all-encompassing? If not, what are its restrictions and limitations?
Held: 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. 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 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. By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the establishment of international organizations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. (Tanada v. Angara, 272 SCRA 18, May 2, 1997 [Panganiban])

6. Discuss the Status of the Vatican and the Holy See in International Law.

P age |4 Held: Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See, was considered a subject of International Law. With the loss of the Papal States and the limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in International Law became controversial. In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter into treaties according to International Law. The Lateran Treaty established the statehood of the Vatican City for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international relations. In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City. Some writers even suggested that the treaty created two international persons - the Holy See and Vatican City. The Vatican City fits into none of the established categories of states, and the attribution to it of sovereignty must be made in a sense different from that in which it is applied to other states . In a community of national states, the Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, the Vatican City has an independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the world. Indeed, the worldwide interests and activities of the Vatican City are such as to make it in a sense an international state. One authority wrote that the recognition of the Vatican City as a state has significant implication that it is possible for any entity pursuing objects essentially different from those pursued by states to be invested with international personality. Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international person. The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957. This appears to be the universal practice in international relations.

(Holy See, The v. Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc [Quiason])

7. What are the conditions before the rights of belligerency may be accorded the rebels?
Ans.: As a matter of legal theory, the rebels have to fulfill certain conditions before the rights of belligerency are accorded them, namely: 1) An organized civil government that has control and direction over the armed struggle launched by the rebels; 2) Occupation of a substantial portion of the national territory; 3) Seriousness of the struggle, which must be so widespread thereby leaving no doubt as to the outcome; 4) Willingness on the part of the rebels to observe the rules and customs of war.

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8. Discuss the legal consequences that follow recognition of belligerency.

Ans.: 1) Before recognition as such, it is the legitimate government that is responsible for the acts of the rebels affecting foreign nationals and their properties. Once recognition is given, the legitimate government may no longer be held responsible for their acts; responsibility is shifted to the rebel government; 2) The legitimate government, once it recognizes the rebels as belligerents, is bound to observe the laws and customs of war in conducting the hostilities; 3) From the point of view of third States, the effect of recognition of belligerency is to put them under obligation to observe strict neutrality and abide by the consequences arising from that position; 4) On the side of the rebels, recognition of belligerency puts them under responsibility to third States and to the legitimate government for all their acts which do not conform to the laws and customs of war. (Salonga & Yap, Public International Law, 5th Ed. [1992], p.

33)

9. State the occasions when the use of force may be allowed under the UN Charter.
Ans.: There are only two occasions when the use of force is allowed under the UN Charter. The first is when it is authorized in pursuance of the enforcement action that may be decreed by the Security Council under Art. 42. The second is when it is employed in the exercise of the inherent right of selfdefense under conditions prescribed in Art. 51. (Justice Isagani A. Cruz, in an article entitled A

New World Order written in his column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer)

10. Is the United States justified in invading Iraq invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction?
Ans.: The United States is invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction. There is no evidence of such a threat, but Bush is probably invoking the modern view that a state does not have to wait until the potential enemy fires first. The cowboy from Texas says that outdrawing the foe who is about to shoot is an act of self-defense. Art. 51 says, however, that there must first be an armed attack before a state can exercise its inherent right of self-defense, and only until the Security Council, to which the aggression should be reported, shall have taken the necessary measures to maintain international peace and security. It was the United States that made the armed attack first, thus becoming the aggressor, not Iraq. Iraq is now not only exercising its inherent right of self-defense as recognized by the UN Charter. (Justice Isagani

A. Cruz, in an article entitled A New World Order written in his column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer)

11. Will the subsequent discovery of weapons of mass destruction in Iraq after its invasion by the US justify the attack initiated by the latter?
Ans.: Even if Iraqs hidden arsenal is discovered or actually used and the United States is justified in its suspicions, that circumstance will not validate the procedure taken against Iraq. It is like searching a person without warrant and curing the irregularity with the discovery of prohibited drugs in

P age |6 his possession. The process cannot be reversed. The warrant must first be issued before the search and seizure can be made. The American invasion was made without permission from the Security Council as required by the UN Charter. Any subsequent discovery of the prohibited biological and chemical weapons will not retroactively legalize that invasion, which was, legally speaking, null and void ab initio. (Justice Isagani

A. Cruz, in an article entitled A New World Order written in his column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer)

12. What Crimes come within the jurisdiction of the Rome Statute of the International Criminal Court?
Ans.: 1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) (b) (c) (d) The crime of genocide; Crimes against humanity; War crimes; The crime of aggression.

2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations. (Art. 5, Rome Statute of the International

Criminal Court)

13. What is Genocide?

Ans.: For the purpose of this Statute, GENOCIDE means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

(Art. 6, Rome Statute of the International Criminal Court)

14. What are Crimes against Humanity?

Ans.: 1. For the purpose of this Statute, CRIME AGAINST HUMANITY means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) (b) (c) (d) (e) Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture;

P age |7 (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 2. For the purpose of paragraph 1: (a) Attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) Extermination includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) Enslavement means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; (d) Deportation or forcible transfer of population means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; (e) Torture means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to lawful, sanctions; (f) Forced pregnancy means the unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) Persecution means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; (h) The crime of apartheid means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) Enforced disappearance of persons means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge the deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term gender refers to the two sexes, male and female, within the context of society. The term gender does not indicate any meaning different from the above.

(Art. 7, Rome Statute of the International Criminal Court)

15. What are international organizations? Discuss their nature.

P age |8 Held: INTERNATIONAL ORGANIZATIONS are institutions constituted by international agreement between two or more States to accomplish common goals. The legal personality of these international organizations has been recognized not only in municipal law, but in international law as well. Permanent international commissions and administrative bodies have been created by the agreement of a considerable number of States for a variety of international purposes, economic or social and mainly non-political. In so far as they are autonomous and beyond the control of any one State, they have distinct juridical personality independent of the municipal law of the State where they are situated. As such, they are deemed to possess a species of international personality of their own.

(SEAFDEC-AQD v. NLRC, 206 SCRA 283, Feb. 14, 1992)

16. Discuss the basic immunities of international organizations and the reason for affording them such immunities.
Held: One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., that it is immune from legal writs and processes issued by the tribunals of the country where it is found. The obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a convenient medium through which the host government may interfere in their operations or even influence or control its policies and decisions; besides, such subjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially on behalf of its member-states. (SEAFDEC-AQD v. NLRC, 206 SCRA 283, Feb. 4, 1992)

17. Is the determination of the executive branch of the government that a state or instrumentality is entitled to sovereign or diplomatic immunity subject to judicial review, or is it a political question and therefore, conclusive upon the courts?
Held: The issue of petitioners (The Holy See) non-suability can be determined by the trial court without going to trial in light of the pleadings x x x. Besides, the privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. As the department tasked with the conduct of the Philippines foreign relations, the Department of Foreign Affairs has formally intervened in this case and officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country. The determination of the executive arm of government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts . Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the countrys foreign relations. As in International Catholic Migration Commission and in World Health Organization, we abide by the certification of the Department of Foreign Affairs. (Holy See, The v.

Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

18. Should Courts blindly adhere and take on its face the communication from the Department of Foreign Affairs (DFA) that a person is covered by any immunity?
Held: Courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by any immunity. The DFAs determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts. In receiving ex parte the DFAs advice and in motu proprio dismissing the two criminal cases without notice to the prosecution, the latters right to due process was violated. It should be noted that due process is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time. At any rate, it has been ruled that the mere invocation of the immunity clause does not ipso facto

P age |9 result in the dropping of the charges. (Liang v. People, 323 SCRA 692, Jan. 28, 2000, 1st Div.

[Ynares-Santiago])

19. Discuss the basis of the argument that a determination by the DFA that a person is entitled to diplomatic immunity is a political question binding on the courts.
Held: Petitioners argument that a determination by the Department of Foreign Affairs that he is entitled to diplomatic immunity is a political question binding on the courts, is anchored on the ruling enunciated in the case of WHO, et al. v. Aquino, et al., viz: It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General in this case, or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of the government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction. This ruling was reiterated in the subsequent cases of International Catholic Migration Commission v. Calleja; The Holy See v. Rosario, Jr.; Lasco v. United Nations; and DFA v. NLRC. The case of WHO v. Aquino involved the search and seizure of personal effects of petitioner Leonce Verstuyft, an official of the WHO. Verstuyft was certified to be entitled to diplomatic immunity pursuant to the Host Agreement executed between the Philippines and the WHO.

ICMC v. Calleja concerned a petition for certification election filed against ICMC and IRRI. As international organizations, ICMC and IRRI were declared to possess diplomatic immunity. It was held that they are not subject to local jurisdictions. It was ruled that the exercise of jurisdiction by the Department of Labor over the case would defeat the very purpose of immunity, which is to shield the affairs of international organizations from political pressure or control by the host country and to ensure the unhampered performance of their functions. Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the Holy See, as represented by the Papal Nuncio. The Court upheld the petitioners defense of sovereign immunity. It ruled that where a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state, which the envoy holds on behalf of the sending state for the purposes of the mission, with all the more reason should immunity be recognized as regards the sovereign itself, which in that case is the Holy See.
In Lasco v. United Nations, the United Nations Revolving Fund for Natural Resources Exploration was sued before the NLRC for illegal dismissal. The Court again upheld the doctrine of diplomatic immunity invoked by the Fund. Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian Development Bank. Pursuant to its Charter and the Headquarters Agreement, the diplomatic immunity of the Asian Development Bank was recognized by the Court.

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It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by international organizations. Petitioner asserts that he is entitled to the same diplomatic immunity and he cannot be prosecuted for acts allegedly done in the exercise of his official functions.
The term INTERNATIONAL ORGANIZATIONS is generally used to describe an organization set up by agreement between two or more states. Under contemporary international law, such organizations are endowed with some degree of international legal personality such that they are capable of exercising specific rights, duties and powers. They are organized mainly as a means for conducting general international business in which the member states have an interest. (ICMC v. Calleja) INTERNATIONAL PUBLIC OFFICIALS have been defined as: x x x persons who, on the basis of an international treaty constituting a particular international community, are appointed by this international community, or by an organ of it, and are under its control to exercise, in a continuous way, functions in the interest of this particular international community, and who are subject to a particular personal status. SPECIALIZED AGENCIES are international organizations having functions in particular fields, such as posts, telecommunications, railways, canals, rivers, sea transport, civil aviation, meteorology, atomic energy, finance, trade, education and culture, health and refugees . (Concurring Opinion,

Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div. [Motion for Reconsideration])

20. What are the differences between Diplomatic and International Immunities? Discuss.
Held: There are three major differences between diplomatic and international immunities. Firstly, one of the recognized limitations of diplomatic immunity is that members of the diplomatic staff of

a mission may be appointed from among the nationals of the receiving State only with the express consent of that State; apart from inviolability and immunity from jurisdiction in respect of official acts performed in the exercise of their functions, nationals enjoy only such privileges and immunities as may be granted by the receiving State. International immunities may be specially important in relation to the State of which the official is a national. Secondly, the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State; in the case of international immunities there is no sending State and an equivalent for the jurisdiction of the Sending State therefore has to be found either in waiver of immunity or in some international disciplinary or judicial procedure. Thirdly, the effective sanctions which secure respect for diplomatic immunity are the principle of reciprocity and the danger of retaliation by the aggrieved State; international immunities enjoy no similar protection. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People,

G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

21. Discuss the immunity of International Officials.

Held: The generally accepted principles which are now regarded as the foundation of international immunities are contained in the ILO Memorandum, which reduced them in three basic propositions, namely: (1) that international institutions should have a status which protects them against

control or interference by any one government in the performance of functions for the effective discharge of which they are responsible to democratically constituted international bodies in which all the nations concerned are represented; (2) that no country should derive any financial advantage by levying fiscal charges on common international funds; and (3) that the international organization should, as a collectivity of States Members, be accorded the facilities for the conduct of its official business customarily extended to each other by its individual member States. The thinking underlying these propositions is

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essentially institutional in character. It is not concerned with the status, dignity or privileges of individuals, but with the elements of functional independence necessary to free international institutions from national control and to enable them to discharge their responsibilities impartially on behalf of all their members. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

22. What are the three methods of granting privileges and immunities to the personnel of international organizations? Under what category does the Asian Development Bank and its Personnel fall?
Held: Positive international law has devised three methods of granting privileges and immunities to the personnel of international organizations. The first is by simple conventional stipulation, as was the case in the Hague Conventions of 1899 and 1907. The second is by internal legislation whereby the government of a state, upon whose territory the international organization is to carry out its functions, recognizes the international character of the organization and grants, by unilateral measures, certain privileges and immunities to better assure the successful functioning of the organization and its personnel. In this situation, treaty obligation for the state in question to grant concessions is lacking. Such was the case with the Central Commission of the Rhine at Strasbourg and the International Institute of Agriculture at Rome. The third is a combination of the first two. In this third method, one finds a conventional obligation to recognize a certain status of an international organization and its personnel, but the status is described in broad and general terms. The specific definition and application of those general terms are determined by an accord between the organization itself and the state wherein it is located. This is the case with the League of Nations, the Permanent Court of Justice, and the United Nations.

The Asian Development Bank and its Personnel fall under this third category .
There is a connection between diplomatic privileges and immunities and those extended to international officials. The connection consists in the granting, by contractual provisions, of the relatively well-established body of diplomatic privileges and immunities to international functionaries. This connection is purely historical. Both types of officials find the basis of their special status in the necessity of retaining functional independence and freedom from interference by the state of residence. However, the legal relationship between an ambassador and the state to which he is accredited is entirely different from the relationship between the international official and those states upon whose territory he might carry out its functions.

The privileges and immunities of diplomats and those of international officials rest upon different legal foundations. Whereas those immunities awarded to diplomatic agents are a right of the sending

state based on customary international law, those granted to international officials are based on treaty or conventional law. Customary international law places no obligation on a state to recognize a special status of an international official or to grant him jurisdictional immunities. Such an obligation can only result from specific treaty provisions. The special status of the diplomatic envoy is regulated by the principle of reciprocity by which a state is free to treat the envoy of another state as its envoys are treated by that state. The juridical basis of the diplomats position is firmly established in customary international law. The diplomatic envoy is appointed by the sending State but it has to make certain that the agreement of the receiving State has been given for the person it proposes to accredit as head of the mission to that State (Article 4, Vienna

Convention on Diplomatic Relations).

The staff personnel of an international organization the international officials assume a different position as regards their special status. They are appointed or elected to their position by the
organization itself, or by a competent organ of it; they are responsible to the organization and their

P a g e | 12 official acts are imputed to it. The juridical basis of their special position is found in conventional law, since there is no established basis of usage or custom in the case of the international official. Moreover, the relationship between an international organization and a member-state does not admit of the principle of reciprocity, for it is contradictory to the basic principle of equality of states. An international organization carries out functions in the interest of every member state equally. The international official does not carry out his functions in the interest of any state, but in serving the organization he serves, indirectly, each state equally. He cannot be, legally, the object of the operation of the principle of reciprocity between states under such circumstances. It is contrary to the principle of equality of states for one state member of an international organization to assert a capacity to extract special privileges for its nationals from other member states on the basis of a status awarded by it to an international organization. It is upon this principle of sovereign equality that international organizations are built. It follows from this same legal circumstance that a state called upon to admit an official of an international organization does not have a capacity to declare him persona non grata. The functions of the diplomat and those of the international official are quite different. Those of the diplomat are functions in the national interest. The task of the ambassador is to represent his state, and its specific interest, at the capital of another state. The functions of the international official are carried out in the international interest. He does not represent a state or the interest of any specific state. He does not usually represent the organization in the true sense of that term. His functions normally are administrative, although they may be judicial or executive, but they are rarely political or functions of representation, such as those of the diplomat. There is a difference of degree as well as of kind. The interruption of the activities of a diplomatic agent is likely to produce serious harm to the purposes for which his immunities were granted. But the interruption of the activities of the international official does not, usually, cause serious dislocation of the functions of an international secretariat . On the other hand, they are similar in the sense that acts performed in an official capacity by either a diplomatic envoy or an international official are not attributable to him as an individual but are imputed to the entity he represents, the state in the case of the diplomat, and the organization in the case of the international official. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v.

People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

23. What is the reason behind the current tendency of reducing privileges and immunities of personnel of international organizations to a minimum?
Held: Looking back over 150 years of privileges and immunities granted to the personnel of international organizations, it is clear that they were accorded a wide scope of protection in the exercise of their functions The Rhine Treaty of 1804 between the German Empire and France which provided all the rights of neutrality to persons employed in regulating navigation in the international interest; The Treaty of Berlin of 1878 which granted the European Commission of the Danube complete independence of territorial authorities in the exercise of its functions; The Convention of the League which granted diplomatic immunities and privileges. Today, the age of the United Nations finds the scope of protection narrowed. The current tendency is to reduce privileges and immunities of personnel of international organizations to a minimum. The tendency cannot be considered as a lowering of the standard but rather as a recognition that the problem on the privileges and immunities of international officials is new. The solution to the problem presented by the extension of diplomatic prerogatives to international functionaries lies in the general reduction of the special position of both types of agents in that the special status of each agent is granted in the interest of function. The wide grant of diplomatic

prerogatives was curtailed because of practical necessity and because the proper functioning of the organization did not require such extensive immunity for its officials. While the current direction of the

law seems to be to narrow the prerogatives of the personnel of international organizations, the reverse is

P a g e | 13 true with respect to the prerogatives of the organizations themselves, considered as legal entities.

Historically, states have been more generous in granting privileges and immunities to organizations than they have to the personnel of these organizations.

Thus, Section 2 of the General Convention on the Privileges and Immunities of the United Nations states that the UN shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. Section 4 of the Convention on the Privileges and Immunities of the Specialized Agencies likewise provides that the specialized agencies shall enjoy immunity from every form of legal process subject to the same exception. Finally, Article 50[1] of the ADB Charter and Section 5 of the Headquarters Agreement similarly provide that the bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities. The phrase immunity from every form of legal process as used in the UN General Convention has been interpreted to mean absolute immunity from a states jurisdiction to adjudicate or enforce its law by legal process, and it is said that states have not sought to restrict that immunity of the United Nations by interpretation or amendment. Similar provisions are contained in the Special Agencies Convention as well as in the ADB Charter and Headquarters Agreement. These organizations were accorded privileges and immunities in their charters by language similar to that applicable to the United Nations. It is clear therefore that these organizations were intended to have similar privileges and immunities. From this, it can be easily deduced that international organizations enjoy absolute immunity similar to the diplomatic prerogatives granted to diplomatic envoys. Even in the United States this seems to be the prevailing rule x x x. On the other hand, international officials are governed by a different rule. Section 18[a] of the General Convention on Privileges and Immunities of the United Nations states that officials of the United Nations shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity. The Convention on Specialized Agencies carries exactly the same provision. The Charter of the ADB provides under Article 55[i] that officers and employees of the bank shall be immune from legal process with respect to acts performed by them in their official capacity except when the Bank waives immunity. Section 45 [a] of the ADB Headquarters Agreement accords the same immunity to the officers and staff of the bank. There can be no dispute that international officials

are entitled to immunity only with respect to acts performed in their official capacity, unlike international organizations which enjoy absolute immunity.

Clearly, the most important immunity to an international official, in the discharge of his international functions, is immunity from local jurisdiction. There is no argument in doctrine or practice with the principle that an international official is independent of the jurisdiction of the local authorities for his official acts. Those acts are not his, but are imputed to the organization, and without waiver the local courts cannot hold him liable for them. In strict law, it would seem that even the organization itself could

have no right to waive an officials immunity for his official acts. This permits local authorities to assume jurisdiction over an individual for an act which is not, in the wider sense of the term, his act al all. It is the organization itself, as a juristic person, which should waive its own immunity and appear in court, not the individual, except insofar as he appears in the name of the organization. Provisions for immunity from jurisdiction for official acts appear, aside from the aforementioned treatises, in the constitution of most modern international organizations. The acceptance of the principle is sufficiently widespread to be regarded as declaratory of international law. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

24. What is the status of the international official with respect to his private acts?

P a g e | 14 Held: Section 18 [a] of the General Convention has been interpreted to mean that officials of the specified categories are denied immunity from local jurisdiction for acts of their private life and empowers local courts to assume jurisdiction in such cases without the necessity of waiver . It has earlier been mentioned that historically, international officials were granted diplomatic privileges and immunities and were thus considered immune for both private and official acts. In practice, this wide grant of diplomatic prerogatives was curtailed because of practical necessity and because the proper functioning of the organization did not require such exclusive immunity for its officials. Thus, the current status of

the law does not maintain that states grant jurisdictional immunity to international officials for acts of their private lives. This much is explicit from the charter and Headquarters Agreement of the ADB which contain substantially similar provisions to that of the General Convention. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div. [Motion for Reconsideration])

25. Who is competent to determine whether a given act of international officials and representatives is private or official?
Held: In connection with this question, the current tendency to narrow the scope of privileges ad immunities of international officials and representatives is most apparent. Prior to the regime of the United Nations, the determination of this question rested with the organization and its decision was final. By the new formula, the state itself tends to assume this competence. If the organization is dissatisfied with the decision, under the provisions of the General Convention of the United Nations, or the Special Convention for Specialized Agencies, the Swiss Arrangement, and other current dominant instruments, it may appeal to an international tribunal by procedures outlined in these instruments. Thus, the state assumes this competence in the first instance. It means that, if a local court assumes jurisdiction over an act without the necessity of waiver from the organization, the determination of the nature of the act is made at the national level.

It appears that the inclination is to place the competence to determine the nature of an act as private or official in the courts of the state concerned. That the practical notion seems to be to leave to
the local courts determination of whether or not a given act is official or private does not necessarily mean that such determination is final. If the United Nations questions the decision of the Court, it may invoke proceedings for settlement of disputes between the organization and the member states as provided in Section 30 of the General Convention. Thus, the decision as to whether a given act is official or private is made by the national courts in the first instance, but it may be subjected to review in the international level if questioned by the United Nations.

Under the Third Restatement of the Law, it is suggested that since an international official does not enjoy personal inviolability from arrest or detention and has immunity only with respect to official acts, he is subject to judicial or administrative process and must claim his immunity in the proceedings by showing that the act in question was an official act. Whether an act was performed in the individuals official capacity is a question for the court in which a proceeding is brought, but if the international organization disputes the courts finding, the dispute between that organization and the state of the forum is to be resolved by negotiation, by an agreed mode of settlement or by advisory opinion of the International Court of Justice. Recognizing the difficulty that by reason of the right of a national court to assume jurisdiction over private acts without a waiver of immunity, the determination of the official or private character of a particular act may pass from international to national, Jenks proposes three ways of avoiding difficulty in the matter. The first would be for a municipal court before which a question of the official or private character of a particular act arose to accept as conclusive in the matter any claim by the international organization that the act was official in character, such a claim being regarded as equivalent to a governmental claim that a particular act is an act of State. Such a claim would be in effect a claim by the organization that the proceedings against the official were a violation of the jurisdictional immunity of the

P a g e | 15 organization itself which is unqualified and therefore not subject to delimitation in the discretion of the municipal court. The second would be for a court to accept as conclusive in the matter a statement by the executive government of the country where the matter arises certifying the official character of the act. The third would be to have recourse to the procedure of international arbitration. Jenks opines that it is possible that none of these three solutions would be applicable in all cases; the first might be readily acceptable only in the clearest cases and the second is available only if the executive government of the country where the matter arises concurs in the view of the international organization concerning the official character of the act. However, he surmises that taken in combination, these various possibilities may afford the elements of a solution to the problem . (Concurring Opinion, Puno J., in Jeffrey

Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div. [Motion for Reconsideration])

26. Discuss the extent of the international officials immunity for official acts.
Held: One final point. The international officials immunity for official acts may be likened to a consular officials immunity from arrest, detention, and criminal or civil process which is not absolute but applies only to acts or omissions in the performance of his official functions, in the absence of special agreement. Since a consular officer is not immune from all legal processes, he must respond to any process and plead and prove immunity on the ground that the act or omission underlying the process was in the performance of his official functions. The issue has not been authoritatively determined, but apparently the burden is on the consular official to prove his status as well as his exemption in the circumstances. In the United States, the US Department of State generally has left it to the courts to determine whether a particular act was within a consular officers official duties . (Concurring Opinion,

Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

27. Discuss the two conflicting concepts of sovereign immunity from suit.
Held: There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis. Some states passed legislation to serve as guidelines for the executive or judicial determination when an act may be considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act of 1976, which defines a commercial activity as either a regular course of commercial conduct or a particular commercial transaction or act. Furthermore, the law declared that the commercial character of the activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. The Canadian Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts. The Act defines a commercial activity as any particular transaction, act or conduct or any regular course of conduct that by reason of its nature, is of a commercial character. The restrictive theory, which is intended to be a solution to the host of problems involving the issue of sovereign immunity, has created problems of its own. Legal treatises and the decisions in countries which follow the restrictive theory have difficulty in characterizing whether a contract of a sovereign state with a private party is an act jure gestionis or an act jure imperii. The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely connected with the discharge of governmental functions. This is particularly true with respect to the Communist states which took control of nationalized business

P a g e | 16 activities and international trading. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En

Banc [Quiason])

28. Cite some transactions by a foreign state with private parties that were considered by the Supreme Court as acts jure imperii and acts jure gestionis.
Held: This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (1) the lease by a foreign government of apartment buildings for use of its military officers; (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station; and (3) the change of employment status of base employees . On the other hand, this Court has considered the following transactions by a foreign state with private parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to American servicemen and the general public; and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles City. The operation of the restaurants and other facilities open to the general public is undoubtedly for profit as a commercial and not a governmental activity. By entering into the employment contract with the cook in the discharge of its proprietary function, the United States government impliedly divested itself of it sovereign immunity from suit. (Holy

See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

29. What should be the guidelines to determine what activities and transactions shall be considered commercial and as constituting acts jure gestionis by a foreign state?
Held: In the absence of legislation defining what activities and transactions shall be considered commercial and as constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be. Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit. As held in United States of America v. Guinto: There is no question that the United States of America, like any other state, will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied.

(Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

30. May the Holy See be sued for selling the land it acquired by donation from the Archdiocese of Manila to be made site of its mission or the Apostolic Nunciature in the Philippines but which purpose cannot be accomplished as the land was occupied by squatters who refused to vacate the area?
Held: In the case at bench, if petitioner (Holy See) has bought and sold lands in the ordinary course of a real estate business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the acquisition and subsequent disposal of Lot 5-A were made for

P a g e | 17 profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. x x x Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations . This treaty was concurred in by the Philippine Senate and entered into force in the Philippines on November 15, 1965. In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be recognized as regards the sovereign itself, which in this case is the Holy See. The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the donation. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En

Banc [Quiason])

31. How is sovereign or diplomatic immunity pleaded in a foreign court?

Held: In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity. In the United States, the procedure followed is the process of suggestion, where the foreign state or the international organization sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a suggestion that the defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification to that effect instead of submitting a suggestion. In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino, the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the commander of the United States Naval Base at Olongapo City, Zambales, a suggestion to respondent Judge. The Solicitor General embodied the suggestion in a Manifestation and Memorandum as amicus curiae. In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in support of petitioners claim of sovereign immunity. In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels. In cases where the foreign states bypass the Foreign

P a g e | 18 Office, the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En

Banc [Quiason])

32. What is extradition? To whom does it apply?

Held: It is the process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and those who have been convicted in absentia. It does not apply to persons merely suspected of having committed an offense but against whom no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment. (Weston, Falk, D' Amato, International Law and

Order, 2nd ed., p. 630 [1990], cited in Dissenting Opinion, Puno, J., in Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc)

33. Discuss the basis for allowing extradition.

Held: Extradition was first practiced by the Egyptians, Chinese, Chaldeans and AssyroBabylonians but their basis for allowing extradition was unclear. Sometimes, it was granted due to pacts; at other times, due to plain good will. The classical commentators on international law thus focused their early views on the nature of the duty to surrender an extraditee --- whether the duty is legal or moral in character. Grotius and Vattel led the school of thought that international law imposed a legal duty called civitas maxima to extradite criminals. In sharp contrast, Puffendorf and Billot led the school of thought that the so-called duty was but an "imperfect obligation which could become enforceable only by a contract or agreement between states. Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme Court in US v. Rauscher, held: x x x it is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and punishment. This has been done generally by treaties x x x. Prior to these treaties, and apart from them there was no well-defined obligation on one country to deliver up such fugitives to another; and though such delivery was often made it was upon the principle of comity x x x. (Dissenting Opinion, Puno, J., in Secretary of Justice v. Hon. Ralph C. Lantion,

G.R. No. 139465, Jan. 18, 2000, En Banc)

34. What is the nature of an extradition proceeding? Is it akin to a criminal proceeding?

Held: [A]n extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation . As held by the US Supreme Court in United States v. Galanis: An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty. (Wiehl, Extradition Law at the Crossroads: The Trend

Toward Extending Greater Constitutional Procedural Protections To Fugitives Fighting Extradition

P a g e | 19

from the United States, 19 Michigan Journal of International Law 729, 741 [1998], citing United States v. Galanis, 429 F. Supp. 1215 [D. Conn. 1977])
There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nation's foreign relations before making the ultimate decision to extradite.

As an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not necessarily apply to the former. This we hold for the procedural due process required by a given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action. The concept of due process is flexible for not all situations calling for procedural safeguards call for the same kind of procedure. (Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno])

35. Will the retroactive application of an extradition treaty violate the constitutional prohibition against "ex post facto" laws?
Held: The prohibition against ex post facto law applies only to criminal legislation which affects the substantial rights of the accused. This being so, there is no merit in the contention that the ruling sustaining an extradition treatys retroactive application violates the constitutional prohibition against ex post facto laws. The treaty is neither a piece of criminal legislation nor a criminal procedural statute.

(Wright v. CA, 235 SCRA 341, Aug. 15, 1994 [Kapunan])

36. Discuss the rules in the interpretation of extradition treaties.

Held: [A]ll treaties, including the RP-US Extradition Treaty, should be interpreted in light of their intent. Nothing less than the Vienna Convention on the Law of Treaties to which the Philippines is a

signatory provides that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose . x x x. It cannot be gainsaid that today, countries like the Philippines forge extradition treaties to arrest the dramatic rise of international and transnational crimes like terrorism and drug trafficking. Extradition treaties provide the assurance that the punishment of these crimes will not be frustrated by the frontiers of territorial sovereignty. Implicit in the treaties should be the unbending commitment that the perpetrators of these crimes will not be coddled by any signatory state. It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will minimize if not prevent the escape of extraditees from the long arm of the law and expedite their trial. x x x [A]n equally compelling factor to consider is the understanding of the parties themselves to the RP-US Extradition Treaty as well as the general interpretation of the issue in question by other countries with similar treaties with the Philippines . The rule is recognized that while courts have the power to interpret treaties, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is accorded great weight. The reason for the rule is laid down in

P a g e | 20

Santos III v. Northwest Orient Airlines, et al., where we stressed that a treaty is a joint executivelegislative act which enjoys the presumption that it was first carefully studied and determined to be constitutional before it was adopted and given the force of law in the country. (Secretary of Justice

v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno])

37. Discuss the Five Postulates of Extradition.

Held: 1. Extradition Is a Major Instrument for the Suppression of Crime .

First, extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest and custodial transfer of a fugitive from one state to the other.
With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. Today, a majority of nations in the world community have come to look upon extradition as the major effective instrument of international co-operation in the suppression of crime. It is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law.

Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in order to improve our chances of suppressing crime in our country. 2. The Requesting State Will Accord Due Process to the Accused .

Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each others legal system and judicial process . More pointedly, our duly authorized representatives signature on an extradition treaty signifies our confidence in the capacity and willingness of the other state to protect the basic rights of the person sought to be extradited . That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality.
3. The Proceedings Are Sui Generis.

Third, as pointed out in Secretary of Justice v. Lantion, extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis in a class by itself they are not.
Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited. Such determination during the extradition proceedings will only result in needless duplication and delay. Extradition is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction . The ultimate purpose of

extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable.

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4. Compliance Shall Be in Good Faith. Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national interest.
Fulfilling our obligations under the Extradition Treaty promotes comity (In line with the Philippine policy of cooperation and amity with all nations set forth in Article II, Section 2, Constitution). On the other hand, failure to fulfill our obligations thereunder paints at bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity. Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty. This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. In other words, [t]he demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender. Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be found proper. 5. There Is an Underlying Risk of Flight.

Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in the experience of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

38. Discuss the Ten Points to consider in Extradition Proceedings?

Held: 1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes and the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused or the fugitive who has illegally escaped back to its territory, so that the criminal process may proceed therein. 2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner; as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein. 3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a courts request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity. 4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If convinced that a prima facie case exists, the judge immediately

P a g e | 22 issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition. 5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community; and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case. 6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. 7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and the conscience of society. But it is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-equal and co-independent organs of government. 8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of government has broad discretion in its duty and power of implementation. 9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or excise grave abuse and tyranny. They should not allow contortions, delays and over-due process every little step of the way, lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partners simple request to return a fugitive. Worse, our country should not be converted into a dubious haven where fugitives and escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and international cooperation. 10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose.

(Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

39. What is a Treaty? Discuss.

Held: A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation. There are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d' arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements included under the general term treaty have little or no significance. Certain terms are useful, but they furnish little more than mere description Article 2[2] of the Vienna Convention provides that the provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in the internal law of the State. (BAYAN [Bagong Alyansang

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Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

40. Discuss the binding effect of treaties and executive agreements in international law.
Held: [I]n international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations. (BAYAN [Bagong Alyansang Makabayan] v.

Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

41. Does the Philippines recognize the binding effect of executive agreements even without the concurrence of the Senate or Congress?
Held: In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress. In Commissioner of Customs v. Eastern Sea Trading, we had occasion to pronounce: x x x the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of

these has never been seriously questioned by our courts." (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

42. What is a "protocol de cloture"? Will it require concurrence by the Senate?

Held: A final act, sometimes called protocol de cloture, is an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties, conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference. It is not the treaty itself. It is rather a summary of the proceedings of a protracted conference which may have taken place over several years. It will not require the concurrence of the Senate. The documents contained therein are deemed adopted without need for ratification. (Tanada v. Angara, 272 SCRA 18, May 2, 1997 [Panganiban])

43. What is the most-favored-nation clause? What is its purpose?

Answer: 1. The MOST-FAVORED-NATION CLAUSE may be defined, in general, as a pledge by a contracting party to a treaty to grant to the other party treatment not less favorable than that which has been or may be granted to the most favored among other countries. The clause has been commonly included in treaties of commercial nature. (Salonga & Yap, Public International Law, 5 th Edition,

1992, pp. 141-142)

2. The purpose of a most favored nation clause is to grant to the contracting party treatment not less favorable than that which has been or may be granted to the "most favored" among other countries. The most favored nation clause is intended to establish the principle of equality of international treatment by providing that the citizens or subjects of the contracting nations may enjoy the privileges accorded by either party to those of the most favored nation (Commissioner of Internal Revenue v. S.C.

Johnson and Son, Inc., 309 SCRA 87, 107-108, June 25, 1999, 3rd Div. [Gonzaga-Reyes])

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44. What are the two types of most-favored nation clause?

Held: There are generally two types of most-favored-nation clause, namely, conditional and unconditional. According to the clause in its unconditional form, any advantage of whatever kind which has been or may in future be granted by either of the contracting parties to a third State shall simultaneously and unconditionally be extended to the other under the same or equivalent conditions as those under which it has been granted to the third State. (Salonga & Yap, Public International

Law, 5th Edition, 1992, pp. 141-142)

45. What is the essence of the principle behind the "most-favored-nation" clause as applied to tax treaties?
Held: The essence of the principle is to allow the taxpayer in one state to avail of more liberal provisions granted in another tax treaty to which the country of residence of such taxpayer is also a party provided that the subject matter of taxation x x x is the same as that in the tax treaty under which the taxpayer is liable. In Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, June 25, 1999, the SC did not grant the claim filed by S.C. Johnson and Son, Inc., a non-resident

foreign corporation based in the USA, with the BIR for refund of overpaid withholding tax on royalties pursuant to the most-favored-nation clause of the RP-US Tax Treaty in relation to the RP-West Germany Tax Treaty. It held: Given the purpose underlying tax treaties and the rationale for the most favored nation clause, the concessional tax rate of 10 percent provided for in the RP-Germany Tax Treaty should apply only if the taxes imposed upon royalties in the RP-US Tax Treaty and in the RP-Germany Tax Treaty are paid under similar circumstances. This would mean that private respondent (S.C. Johnson and Son, Inc.) must prove that the RP-US Tax Treaty grants similar tax reliefs to residents of the United States in respect of the taxes imposable upon royalties earned from sources within the Philippines as those allowed to their German counterparts under the RPGermany Tax Treaty. The RP-US and the RP-West Germany Tax Treaties do not contain similar provisions on tax crediting. Article 24 of the RP-Germany Tax Treaty x x x expressly allows crediting against German income and corporation tax of 20% of the gross amount of royalties paid under the law of the Philippines. On the other hand, Article 23 of the RP-US Tax Treaty, which is the counterpart provision with respect to relief for double taxation, does not provide for similar crediting of 20% of the gross amount of royalties paid. X x x X x x The entitlement of the 10% rate by U.S. firms despite the absence of matching credit (20% for royalties) would derogate from the design behind the most favored nation clause to grant equality of international treatment since the tax burden laid upon the income of the investor is not the same in the two countries. The similarity in the circumstances of payment of taxes is a condition for the enjoyment of most favored nation treatment precisely to underscore the need for equality of treatment.

46. Discuss the nature of ratification in the treaty-making process?

Held: Ratification is generally held to be an executive act, undertaken by the head of state or of the government, as the case may be, 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. (BAYAN [Bagong

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Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

47. How is the consent of the State to be bound by a treaty by ratification expressed?
Held: The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation . (BAYAN [Bagong Alyansang

Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

48. Discuss the effect of the ratification of the Visiting Forces Agreement (VFA).
Held: With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution, declares that the Philippines 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. As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. While the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation . Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international law. Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: Every State has the duty to carry out in good faith its

obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.
Equally important is Article 26 of the Convention which provides that Every treaty in force is binding upon the parties to it and must be performed by them in good faith. This is known as the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law, supported by the jurisprudence of international tribunals. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora,

G.R. No. 138570, Oct. 10, 2000, 342 SCRA 449, 492-493, En Banc [Buena])

49. Explain the pacta sunt servanda rule.

Held: 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. (Tanada v. Angara, 272 SCRA 18, May 2,

1997 [Panganiban])

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50. Explain the "rebus sic stantibus" rule (i.e., things remaining as they are).
Held: According to Jessup, the doctrine constitutes an attempt to formulate a legal principle which would justify non-performance of a treaty obligation if the conditions with rela tion to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable. The key element of this doctrine is the vital change in the condition of the contracting parties that they could not have foreseen at the time the treaty was concluded. (Santos III v. Northwest Orient Airlines, 210 SCRA 256, June 23, 1992)

51. Does the rebus sic stantibus rule operate automatically to render a treaty inoperative?
Held: The doctrine of rebus sic stantibus does not operate automatically to render the treaty inoperative. There is a necessity for a formal act of rejection, usually made by the head of state, with a statement of the reasons why compliance with the treaty is no longer required. (Santos III v.

Northwest Orient Airlines, 210 SCRA 256, June 23, 1992)

52. What is the Doctrine of Effective Nationality (Genuine Link Doctrine)?

Nationality Laws as follows:
Held: This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Art. 5. Within a third State a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any convention in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. (Frivaldo v. COMELEC, 174

SCRA 245, June 23, 1989)