CASE CONCERNING RIGHT OF PASSAGE OVER INDIAN TERRITORY (MERITS) Judgment of 1 A!

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(Portugal v. India) 1957 I.C.J. Rep. 125, 1960 I.C.J. Rep. 6 . The Portuguese district of Daman, in India, comprised Daman itself (on the coast) and two inland enclaves of Dadra and NagarAveli. In ul! and August "#$%, Portuguese authorit! in the two inland enclaves was overthrown& India imposed restrictions upon Portuguese passage to those enclaves, the lawfulness of which Portugal disputed. India having alread! accepted the compulsor! 'urisdiction of the I.(. . )! a declaration under art. *+(,) of the (ourt-s .tatute, Portugal made such a declaration on "# Decem)er "#$$, and on ,, Decem)er "#$$ filed an application su)mitting the dispute to the (ourt. India raised si/ preliminar! o)'ections to the e/ercise of 'urisdiction )! the (ourt, which, on ,+ Novem)er "#$0, in re'ecting four of India-s o)'ections and 'oining two to the merits, held that (a) ("% to *) Portugal-s reservation to its declaration permitting it at an! time to e/clude categories of disputes from the 'urisdiction of the (ourt was not inconsistent with the (ourt-s .tatute& ()) ("% to *) the filing )! Portugal of an application three da!s after filing its declaration under art. *+(,) of the .tatute was not inconsistent with the .tatute& (c) ("$ to ,) nor did it deprive India of an! right of reciprocit! under art. *+(,) so as to constitute an a)use of the 1ptional (lause& and (d) ("+ to") in the circumstances of the case, diplomatic negotiations had sufficientl! disclosed the legal issue su)mitted to the (ourt. In its 'udgment on the merits, on ", April "#+2, the (ourt held that (a) ("* to ,) as in the proceedings )oth parties had invo3ed arguments of international law, India-s preliminar! o)'ection that its reservation in its optional clause declaration e/cluded disputes with regard to 4uestions which )! international law fell e/clusivel! within the 'urisdiction of India could not )e upheld& ()) ("" to %) as )oth the dispute and the situation of the enclaves which had given rise to Portugal-s claim arose after $5e)ruar! "#*2, the dispute was not e/cluded from the (ourt-s 'urisdiction )! India-s acceptance of its 'urisdiction onl! for post-"#*2 disputes and situations or facts& (c) although, in their origins in the eighteenth centur!, Portugal-s rights over the territories had )een derived from instruments not intended to transfer sovereignt!, when 6reat 7ritain )ecame sovereign of that part of the countr! Portuguese sovereignt! had )een recogni8ed )! the 7ritish and had su)se4uentl! )een tacitl! recogni8ed )! India& also with regard to private persons, civil officials, and goods in general, there had e/isted a constant and uniform practice allowing free passage )etween Daman and the enclaves, which practice had )een accepted as law )! the parties& accordingl! ("" to %) Portugal had in "#$% a right of passage over intervening Indian territor! )etween its enclaves to the e/tent necessar! for the e/ercise of Portuguese sovereignt! over the enclaves and su)'ect to the regulation and control of India, in respect of private persons, civil officials, and goods in general& (d) )ut (9 to 0) Portugal did not have in "#$% an! such right of passage in respect of armed forces, armed police, and arms and ammunition& and (e) India-s refusal of passage through Indian territor! where there was tension as a result of the events of ul! and August "#$% was covered )! its power of regulation and control of Pa3istan-s right of passage& and therefore (# to +) India had not acted contrar! to its o)ligations resulting from Portugal-s right of passage in respect of private persons, civil officials, and goods in general.

:::::In its udgment the (ourt referred to the .u)missions filed )! Portugal which in the first place re4uested the (ourt to ad'udge and declare that a right of passage was possessed )! Portugal and must )e respected )! India& this right was invo3ed )! Portugal onl! to the e/tent necessar! for the e/ercise of its sovereignt! over the enclaves, and it was not contended that passage was accompanied )! an! immunit! and made clear that such passage remained su)'ect to the regulation and control of India, which must )e e/ercised in good faith, India )eing under an o)ligation not to prevent the transit necessar! for the e/ercise of Portuguese sovereignt!. The (ourt then considered the date with reference to which it must ascertain whether the right invo3ed e/isted or did not e/ist. The 4uestion as to the e/istence of a right of passage having )een put to the (ourt in respect of the dispute which had arisen with regard to o)stacles placed )! India in the wa! of passage, it was the eve of the creation of those o)stacles that must )e selected as the standpoint from which to certain whether or not such a right e/isted& the selection of that date would leave open the arguments of India regarding the su)se4uent lapse of the right of passage. Portugal ne/t as3ed the (ourt to ad'udge and declare that India had not complied with the o)ligations incum)ent upon it )! virtue of the right of passage. 7ut the (ourt pointed out that it had not )een as3ed, either in the Application or in the final .u)missions of the Parties, to decide whether or not India-s attitude towards those who had instigated the over-throw of Portuguese authorit! at Dadra and Nagar-Aveli in ul! and August "#$% constituted a )reach of the o)ligation, said to )e )inding upon it under general international law, to adopt suita)le measures to prevent the incursion of su)versive elements into the territor! of another .tate. Turning then to the future, the .u)missions of Portugal re4uested the (ourt to decide that India must end the measures )! which it opposed the e/ercise of the right of passage or, if the (ourt should )e of opinion that there should )e a temporar! suspension of the right, to hold that that suspension should end as soon as the course of events disclosed that the 'ustification for the suspension had disappeared. Portugal had previousl! invited the (ourt to hold that the arguments of India concerning its right to adopt an attitude of neutralit!, the application of the ;nited Nations (harter and the e/istence in the enclaves of a local government were without foundation. The (ourt, however, considered that it was no part of its 'udicial function to declare in the operative part of its udgment that an! of those arguments was or was not well founded.

Kuroda v. Jalandoni, G.R. No. L-2662, March 26, 1949 I. THE FACTS Petitioner Shigenori Kuroda, the Commanding General of the Japanese Imperial Forces in the Philippines during the Japanese occupation, was charged before the Philippine Military Commission of war crimes !e "uestioned the constitutionality of # $ %o &' that created the %ational (ar Crimes $ffice and prescribed rules on the trial of accused war criminals !e contended the Philippines is not a signatory to the !ague Con)ention on *ules and *egulations co)ering +and (arfare and therefore he is charged of crimes not based on law, national and international II. THE ISSUES (as # $ %o &' )alid and constitutional, III. THE RULING [The Court DENIED the petition and upheld the validity and constitutionality of E.O. No. 68.] YES, E.O. No. 68 valid and constitutional. -rticle . of our Constitution pro)ides in its section /, that 0 1he Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the law of the nation In accordance with the generally accepted principle of international law of the present day including the !ague Con)ention the Gene)a Con)ention and significant precedents of international 2urisprudence established by the 3nited %ation all those person military or ci)ilian who ha)e been guilty of planning preparing or waging a war of aggression and of the commission of crimes and offenses conse"uential and incidental thereto in )iolation of the laws and customs of war, of humanity and ci)ili4ation are held accountable therefor Conse"uently in the promulgation and enforcement of #5ecution $rder %o &' the President of the Philippines has acted in conformity with the generally accepted and policies of international law which are part of the our Constitution 555 555 555

Petitioner argues that respondent Military Commission has no 2urisdiction to try petitioner for acts committed in )iolation of the !ague Con)ention and the Gene)a Con)ention because the Philippines is not a signatory to the first and signed the second only in 6789 It cannot be denied that the rules and regulation of the !ague and Gene)a con)entions form, part of and are wholly based on the generally accepted principals of international law In facts these rules and principles were accepted by the two belligerent nations the 3nited State and Japan who were signatories to the two Con)ention Such rule and principles therefore form part of the law of our nation e)en if the Philippines was not a signatory to the con)entions embodying them for our Constitution has been deliberately general and e5tensi)e in its scope and is not confined to the

recognition of rule and principle of international law as contained in treaties to which our go)ernment may ha)e been or shall be a signatory

Law of treaties -t its first session, in 6787, the Commission selected the law of treaties as a topic for codification to which it ga)e priority 1he Commission appointed J + :rierly, Sir !ersch +auterpacht, Sir Gerald Fit4maurice and Sir !umphrey (aldoc; as the successi)e Special *apporteurs for the topic at its first, fourth, se)enth and thirteenth sessions, in 6787, 67<., 67<< and 67&6, respecti)ely 1he Commission considered the topic at its second, third, eighth, ele)enth and thirteenth to eighteenth sessions, in 67<=, 67<6, 67<&, 67<7 and from 67&6 to 67&&, respecti)ely In connection with its wor; on the topic, the Commission had before it the reports of the Special *apporteurs,>6? information pro)ided by Go)ernments >.? as well as documents prepared by the Secretariat >/? 1he Commission had originally en)isaged its wor; on the law of treaties as ta;ing the form of @a code of a general characterA, rather than of one or more international con)entions In its report on its ele)enth session, in 67<7, to the General -ssembly, the Commission statedB @In short, the law of treaties is not itself dependent on treaty, but is part of general customary international law Cueries might arise if the law of treaties were embodied in a multilateral con)ention, but some States did not become parties to the con)ention, or became parties to it and then subse"uently denounced itD for they would in fact be or remain bound by the pro)isions of the treaty in so far as these embodied customary international law de lege lata %o doubt this difficulty arises whene)er a con)ention embodies rules of customary international law In practice, this often does not matter In the case of the law of treaties it might matter E for the law of treaties is itself the basis of the force and effect of all treaties It follows from all this that if it were e)er decided to cast the Code, or any part of it, in the form of an international con)ention, considerable drafting changes, and possibly the omission of some material, would almost certainly be re"uired A >8? -t its thirteenth session, in 67&6, the Commission changed the scheme of its wor; from a mere e5pository statement of the law of treaties to the preparation of draft articles capable of ser)ing as a basis for an international con)ention 1his decision was e5plained as follows by the Commission in its report on its fourteenth session, in 67&.B @First, an e5pository code, howe)er well formulated, cannot in the nature of things be so effecti)e as a con)ention for consolidating the lawD and the consolidation of the law of treaties is of particular importance at the present time when so many new States ha)e recently become members of the international community Secondly, the codification of the law of treaties through a multilateral con)ention would gi)e all the new States the opportunity to participate directly in the formulation of the law if they so wishedD and their participation in the wor; of codification appears to the Commission to be e5tremely desirable in order that the law of treaties may be placed upon the widest and most secure foundations A ><? 1he General -ssembly, in resolution 69&< FGHIII of .= %o)ember 67&. F#, F, S, *, C, -I, recommended that the Commission continue the wor; on the law of treaties, ta;ing into account the )iews e5pressed in the -ssembly and the written comments submitted by Go)ernments -t its fourteenth to si5teenth sessions, from 67&. to 67&8, the Commission proceeded with the first reading of the draft articles and submitted the pro)isionally adopted draft articles to Go)ernments for comment 1he Commission completed the first reading of the draft articles at its si5teenth session, in 67&8 -t its se)enteenth session, in 67&<, the Commission began the second reading of the draft articles in the light of the comments of Go)ernments It reJe5amined the "uestion of the form ultimately to be gi)en to the draft articles, and adhered to the )iews it had e5pressed in 67&6 and 67&. in fa)our of a con)ention 1he Commission noted that, at the General -ssemblyKs se)enteenth session, in 67&., the Si5th Committee had stated in its report that the great ma2ority of representati)es had appro)ed the CommissionKs decision to gi)e the codification of the law of treaties the form of a con)ention -t its eighteenth session, in 67&&, the Commission completed the second reading of the draft articles and adopted its final report on the law of treaties, setting forth se)entyJfi)e draft articles together with their commentaries >&? In submitting the final report to the General -ssembly, the Commission recommended that the -ssembly should con)ene an international conference of plenipotentiaries to study the CommissionKs draft articles on the law of treaties and to conclude a con)ention on the sub2ect >9? In drawing up the draft articles, the Commission decided to limit the scope of application of those articles to treaties concluded between States, to the e5clusion of treaties between States and other sub2ects of international law Fe g , international organi4ationsI and between such other sub2ects It also decided not to deal with international agreements not in written form In addition, the Commission decided that the draft

hostilities upon treatiesD succession of States in respect of treatiesD the "uestion of the international responsibility of a State with respect to a failure to perform a treaty obligationD @mostJfa)ouredJnation clauseAD and the application of treaties pro)iding for obligations or rights to be performed or en2oyed by indi)iduals >'? Following the discussion in the Si5th Committee on the report of the Commission on the wor; of its eighteenth session, the General -ssembly by resolution .6&& FGGII of < Lecember 67&& F#, F, S, *, C, -I Nuclear Tests an ase !"ustralia # Ne$ %ealand v. &rance' decided to con)ene international conference of plenipotentiaries to consider the law of treaties and to embody the results of its wor; in an international con)ention and such other instruments as it may deem appropriate It re"uested the SecretaryJGeneral to con)o;e the first session of the conference early in 67&' (rocedural )istor*+ and the second session early in 67&7 :y the same resolution, the -ssembly in)ited MemberStates, the Proceeding before the International of Justice. SecretaryJGeneral and the LirectorsJGeneral ofCourt those speciali4ed agencies which act as depositaries of treaties to submit their written comments and obser)ations on the draft articles 1he International -tomic #nergy -gency also submitted written comments and obser)ations

,vervie$+ Australia and New Zealand (P) demanded that France (D) cease atmos heric 1he following year, on the recommendation of the Si5th Committee, the General -ssembly, by resolution nuclear tests in the !outh Pacific. France (D) to com leted series ofof nuclear tests in ..'9 FGGIII of & Lecember 67&9 F#, F, S, *, C, -I, decided con)ene thea first session the 3nited %ations Conference on Australia the +aw of 1reaties at Hienna in March the !outh Pacific. and New Zealand (P)67&' a lied to the" C.). demanding that France (D) cease testing immediatel#. $hile the case was ending% France (D) 1he first session of the 3nited %ations Conference on the +aw of 1reaties was accordingly held at announced series of tests was com lete and that it did lan an# further Hiennafrom .& the March to .8 May 67&' and was attended by representati)es ofnot 6=/ countries and obser)ers such tests. France (D) mo&ed to dismiss the a lications. from thirteen speciali4ed and intergo)ernmental agencies 1he second session was held from 7 -pril to ..
May 67&7, also at Hienna, and was attended by representati)es of 66= countries and obser)ers from fourteen speciali4ed and intergo)ernmental agencies >7? 1he first session of the Conference was de)oted -ssue+ primarily to consideration by a Committee of the (hole and by a Lrafting Committee of the set of draft articles adopted by the made International +aw Commission 1he first part of the second session was de)oted to 'a# declarations b# wa# of unilateral acts ha&e the effect of creating legal meetings of the Committee of the (hole and of the Lrafting Committee, completing their consideration of obligations( articles reser)ed from the pre)ious session 1he remainder of the second session was de)oted to thirty plenary meetings which considered the articles adopted by the Committee of the (hole and re)iewed by the Lrafting Committee Rule+

declarations made b# wa# of unilateral acts ma# ha&e the effect of creating legal 1he Conference adopted the Hienna Con)ention on the +aw of 1reaties >6=? on .. May 67&7 1he obligations. Con)ention is made up of a preamble, eightyJfi)e articles and an anne5 "nal*sis+ In line with the draft articles prepared by the Commission, the Hienna Con)ention on the +aw of 1reaties applies to treaties between States,made the term @treatyA being defined for the purposes ofcommunicated the Con)ention as @an )he unilateral statements b# French authorities were first to international agreement concluded between States in written form and go)erned by international law, the go&ernment of Australia. )oor ha&e effect there was and no need toits the whether embodied in a single instrument in twolegal or more related instruments whate)er particular statements to bepre2udice directed to an# articular state. )he general nature and designationA (ithout to any rele)ant rules of the organi4ation concerned, the Con)ention e5pressly pro)ides that it applies to any treaty whichwere is the constituent of an international characteristics of the statements alone rele&ant instrument for e&aluation of their legal organi4ation and to any treaty adopted within an international organi4ation Part I of the Con)ention also im lications. pro)ides that the fact that international agreements concluded between States and other sub2ects of
international law or between such other sub2ects of international law, or international agreements not in written form, are not co)ered by the Con)ention shall not affect F aI the legal force of such agreements, FbI ,utco.e+ the application to them of any of the rules set forth in the Con)ention to which they would be sub2ect under *es. Declarations made by way of unilateral acts may have the effect to ofthe creating international law independently of the Con)ention, and FcI the application of the Con)ention relations of States as between . themsel)es international agreements to which other sub2ects of em international legal obligations )he soleunder rele&ant +uestion is whether the language lo#ed in law are also parties Finally, it is also pro)ided that the Con)ention applies only to treaties which are an# gi&en declaration re&eals a clear intention. ,ne of the basic rinci les concluded by States after the entry into force of the Con)ention with regard to such States, without go&erning the creation and erformance legal obligations is treaties the rinci le sub2ect of good pre2udice to the application of any of the rules set forthof in the Con)ention to which would be under international law independently of the Con)ention faith. )he statements made b# the President of the French -e ublic must be held

to constitute an engagement of the !tate in regard to the circumstances and 1he principal matters co)ered in the Con)ention areB conclusion and entry into force of treaties Fpart III, intention with which the# were made. )he statements made b# the French including reser)ations and pro)isional application of treatiesD obser)ance, application and interpretation of authorities are therefore rele&ant and legall# binding. A lications dismissed. treaties Fpart IIII, including treaties and third StatesD amendment and modification of treaties Fpart IHID
in)alidity, termination and suspension of the operation of treaties Fpart HI, including the procedure for the application of the pro)isions of that part and for the settlement of disputes concerning the application or interpretation of those pro)isions, and the conse"uences of the in)alidity, termination or suspension of the operation of a treatyD miscellaneous pro)isions Fpart HII, reser)ing cases of State succession, State responsibility and outbrea; of hostilities, as well as the case of an aggressor State, and dealing with the se)erance or absence of diplomatic or consular relations and the conclusion of treatiesD and depositaries, notifications, corrections and registration Fpart HIII 1he conciliation procedure referred to in article && of part H is specified in an anne5 to the Con)ention 1he te5t of the Con)ention is reproduced in anne5 H, section F 1he final pro)isions of the Con)ention open it for signature and for ratification or accession by all States Members of the 3nited %ations or members of any of the speciali4ed agencies or of the International -tomic #nergy -gency or parties to the Statute of the International Court of Justice, and also by any other State in)ited by the General -ssembly to become a party to the Con)ention 1he Con)ention was opened for signature on ./ May 67&7 It remained open for signature until /= %o)ember 67&7at the Federal Ministry for Foreign -ffairs of -ustria and, subse"uently, until /= -pril 679=, at 3nited %ations !ead"uarters

entitled to become a party It entered into force on .9 January 67'= :y .= $ctober .==/, ninetyJsi5 States were parties to the Con)ention In addition to the Hienna Con)ention on the +aw of 1reaties, the Conference adopted two declarations Fthe Leclaration on the Prohibition of Military, Political or #conomic Coercion in the Conclusion of 1reaties and the Leclaration on 3ni)ersal Participation in the Hienna Con)ention on the +aw of 1reatiesI and fi)e resolutions which were anne5ed to the Final -ct of the Conference >66? In the Leclaration on 3ni)ersal Participation in the Hienna Con)ention on the +aw of 1reaties, the Conference stated its con)iction that multilateral treaties which deal with the codification and progressi)e de)elopment of international law, or the ob2ect and purpose of which are of interest to the international community as a whole, should be open to uni)ersal noted that articles '6 and '/ of the Hienna Bayan v. Zamora, G.R. No. 138570, October 10, participationD 2000 Con)ention on the +aw of 1reaties enable the General -ssembly to issue special in)itations to States which I. THE !"T# are not members of the 3nited %ations or of any of the speciali4ed agencies or of the International -tomic #nergy -gency, or parties to the Statute of the International Court of Justice, to become parties to the The Republic ofthe theGeneral Philippines and the States of America entered intosession, an agreement Con)entionD and in)ited -ssembly to United gi)e consideration, at its twentyJfourth to the called matter of issuing in)itations in order to ensure the widest possible participation in the Hienna Con)ention on the Visiting Forces Agreement (VFA). The agreement was treated as a treat b the Philippine go!ernment the +aw of 1reaties -t the General -ssemblyKs twentyJfourth session, this matter was referred to the Si5th and was ratified b recommended then"President $strada with concurrence ofin)itations %&' of thebe total membership of Committee, which to #oseph the -ssembly that the the "uestion of issuing deferred until the twentyJfifth session 1he -ssembly adopted this recommendation without ob2ection $n the the Philippine Senate.

The VFA defines the treatment of U.S. troops and personnel !isiting the Philippines. (t pro!ides for the guidelines to go!ern such !isits) and further defines the rights of the U.S. and the Philippine go!ernments in the matter of criminal *urisdiction) mo!ement of !essel and aircraft) importation and e+portation of e,uipment) materials and supplies. Petitioners argued) inter alia) that the VFA !iolates -%.) Article /V((( of the 0123 4onstitution) which pro!ides that 5foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate . . . and recognized as a treaty by the other contracting State. II. THE I##$E 6as the VFA unconstitutional7 III. THE R$%ING [The Court DISMISSED the consolidated petitions, held that the petitioners did not commit gra e abuse of discretion, and sustained the constitutionality of the !"#.$ NO, the VFA is not unconstitutional. Section %.) Article /V((( disallows foreign militar bases) troops) or facilities in the countr ) unless the following conditions are sufficientl met) iz% (a) it must be under a treaty8 (b) the treat must be &'(y conc'rre& )n by t*e #enate and) when so re,uired b congress) ratified b a ma*orit of the !otes cast b the people in a national referendum8 and (c) reco+n),e& a- a treaty b the other contracting state.

There is no dispute as to the presence of the first two re,uisites in the case of the VFA. The concurrence handed b the Senate through Resolution 9o. 02 is in accordance with the pro!isions of the 4onstitution . . . the pro!ision in :in -%.) Article /V(((; re,uiring ratification b a ma*orit of the !otes cast in a national referendum being unnecessar since 4ongress has not re,uired it.

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This 4ourt is of the firm !iew that the phrase recognized as a treaty means that the other contracting part acce ts or ac!no"ledges the agreement as a treat . To re,uire the other contracting state) the United States of America in this case) to submit the VFA to the United States Senate for concurrence pursuant to its 4onstitution) is to accord strict meaning to the phrase.

6ell"entrenched is the principle that the words used in the 4onstitution are to be gi!en their ordinar meaning e+cept where technical terms are emplo ed) in which case the significance thus attached to them pre!ails. (ts language should be understood in the sense the ha!e in common use.

<oreo!er) it is inconse,uential whether the United States treats the VFA onl as an e+ecuti!e agreement because) under international law) an e+ecuti!e agreement is as binding as a treat . To be sure) as long as the VFA possesses the elements of an agreement under international law) the said agreement is to be ta=en e,uall as a treat .

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The records re!eal that the United States >o!ernment) through Ambassador Thomas 4. ?ubbard) has stated that the United States go!ernment has full committed to li!ing up to the terms of the VFA. For as long as the United States of America accepts or ac=nowledges the VFA as a treat ) and binds itself further to compl with its obligations under the treat ) there is indeed mar=ed compliance with the mandate of the 4onstitution.

Nicolas vs Ro.ulo
((T)#* +,*e #* +on*o$#d,ted -#t) S,$ong, .* D,n#e$ Sm#t) / 0AYAN .* G$o"#, A""o1o Con titutional !a" # Rati$i%ation o$ a &reat' # (alidit' o$ the ()* 1n the "st of Novem)er ,22$, Daniel .mith committed the crime of rape against Nicole. <e was convicted of the said crime and was ordered )! the court to suffer imprisonment. .mith is a ;. serviceman convicted of a crime against our penal laws and the crime was committed within the countr!=s 'urisdiction. 7ut pursuant to the >5A, a treat! )?n the ;. and @P, the ;. em)ass! was granted custod! of .mith. Nicole, together with the other petitioners appealed )efore the .( assailing the validit! of the >5A. Their contention is that the >5A was not ratified )! the ;. senate in the same wa! our senate ratified the >5A. ISS2E3 Is the >5A void and unconstitutional A whether or not it is self-e/ecuting. HE4D3 The >5A is a self-e/ecuting Agreement )ecause the parties intend its provisions to )e enforcea)le, precisel! )ecause the >5A is intended to carr! out o)ligations and underta3ings under the @P-;. Butual Defense Treat!. As a matter of fact, the >5A has )een implemented and e/ecuted, with the ;. faithfull! compl!ing with its o)ligation to produce .mith )efore the court during the trial. The >5A is covered )! implementing legislation inasmuch as it is the ver! purpose and intent of the ;. (ongress that e/ecutive agreements registered under this Act within +2 da!s from their ratification )e immediatel! implemented. The .( noted that the >5A are not li3e other treaties that need implementing legislation such as the >ienna (onvention. As regards the implementation of the @P-;. Butual Defense Treat!, militar! aid or assistance has )een given under it and this can onl! )e done through implementing legislation. The >5A itself is another form of implementation of its provisions.

Cim vs. D/ecutive .ecretar! 6.@. No. "$"%%$ April "", ,22, ul! ,$, ,22# at ",E"" pm (")5A(T.E 7eginning ,22,, personnel from the armed forces of the ;nited .tates started arriving in Bindanao, to ta3e part, in con'unction with the Philippine militar!, in F7ali3atan2,"G. In theor!, the! are a simulation of 'oint militar! maneuvers pursuant to the Butual Defense Treat!, a )ilateral defense agreement entered into )! the Philippines and the ;nited .tates in "#$". 1n 5e). ,22,, Cim filed this petition for certiorari and prohi)ition, pra!ing that respondents )e restrained from proceeding with the so-called H7ali3atan 2,-", and that after due notice and hearing, 'udgment )e rendered issuing a permanent writ of in'unction and?or prohi)ition against the deplo!ment of ;. troops in 7asilan and Bindanao for )eing illegal and in violation of the (onstitution. Petitioners contend that the @P and the ;. signed the Butual Defense Treat! to provide mutual militar! assistance in accordance with the Hconstitutional processesI of each co untr! onl! in the case of a armed attac3 )! an e/ternal aggressor, meaning a third countr!, against one of them. The! further argued that it cannot )e said that the A)u .a!!af in 7asilan constitutes an e/ternal aggressor to warrant ;. militar! assistance in accordance with BDT of "#$". Another contention was that the >5A of "### does not authori8e American soldiers to engage in com)at operations in Philippine territor!. I..;D E Jhether or not the F7ali3atan 2,-"G activities are covered )! the >5A. @;CIN6 E Petition is dismissed. The >5A itself permits ;. personnel to engage on an impermanent )asis, in FactivitiesG, the e/act meaning of which is left undefined. The sole encum)rance placed on its definition is couched in the negative, in that the ;. personnel Fmust a)stain from an! activit! inconsistent with the spirit of this agreement, and in particular, from an! political activit!.G ;nder these auspices, the >5A gives legitimac! to the current 7ali3atan e/ercises. It is onl! logical to assume that F7ali3atan 2,-"G -a mutual anti terrorism advising assisting and training e/ercise falls under the um)rella of sanctioned or allowa)le activities in the conte/t of the agreement. 7oth the histor! and intent of the Butual Defense Treat! and the >5A support the conclusion that com)at-related activities as opposed to com)at itself such as the one su)'ect of the instant petition are indeed authori8ed.

PIBDNTDC vs. DKD(;TI>D .D(@DTA@L 5actsE 1n Decem)er ,9, ,222 The Philippines signed the @ome .tatute through Charge d+ *$$air Dnri4ue A. Banalo of the Philippine Bission to the ;nited Nations. Its provisions, however, re4uire that it )e su)'ect to ratification, acceptance or approval of the signator! states. The @ome .tatute esta)lished the International (riminal (ourt which Fshall have the power to e/ercise its 'urisdiction over persons for the most serious crimes of international concern /// and shall )e complementar! to the national criminal 'urisdictions.G Its 'urisdiction covers the crime of genocide, crimes against humanit!, war crimes and the crime of aggression as defined in the .tatute Petitioners contend that ratification of a treat!, under )oth domestic law and international law, is a function of the .enate. it is the dut! of the e/ecutive department to transmit the signed cop! of the @ome .tatute to the .enate to allow it to e/ercise its discretion with respect to ratification of treaties. Petitioner further claims it is the dut! of the e/ecutive department to transmit the signed cop! of the @ome .tatute to the .enate to allow it to e/ercise its discretion with respect to ratification of treaties. A petition for ,anda,u filed )! petitioners to compel the 1ffice of the D/ecutive .ecretar! and the Department of 5oreign Affairs to transmit the signed cop! of the @ome .tatute of the International (riminal (ourt to the .enate of the Philippines for its concurrence in accordance with .ection ,", Article >II of the "#90 (onstitution. Issue E Jhether the D/ecutive .ecretar! and the Department of 5oreign Affairs have a ministerial dut! to transmit to the .enate the cop! of the @ome .tatute. @uling E The court decides in the negative on the issue at hand. The President, )eing the head of state, is regarded as the sole organ and authorit! in e/ternal relations and is the countr!=s sole representative with foreign nations the President is

vested with the authorit! to deal with foreign states and governments, e/tend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the )usiness of foreign relations.M"*N In the realm of treat!-ma3ing, the President has the sole authorit! to negotiate with other states. Jhile the President has the sole authorit! to negotiate and enter into treaties, the (onstitution provides a limitation to his power )! re4uiring the concurrence of ,?* of all the mem)ers of the .enate for the validit! of the treat! entered into )! him. .ection ,", Article >II of the "#90 (onstitution provides that Fno treat! or international agreement shall )e valid and effective unless concurred in )! at least two-thirds of all the Bem)ers of the .enate.G The participation of the legislative )ranch in the treat!-ma3ing process was deemed essential to provide a chec3 on the e/ecutive in the field of foreign relations. 7! re4uiring the concurrence of the legislature in the treaties entered into )! the President, the (onstitution ensures a health! s!stem of chec3s and )alance necessar! in the nation=s pursuit of political maturit! and growth. That under our (onstitution, the power to ratif! is vested in the President, su)'ect to the concurrence of the .enate. The role of the .enate, however, is limited onl! to giving or withholding its consent, or concurrence, to the ratification. It is within the authorit! of the President to refuse to su)mit a treat! to the .enate or, having secured its consent for its ratification, refuse to ratif! it. This (ourt has no 'urisdiction over actions see3ing to en'oin the President in the performance of his official duties. The (ourt, therefore, cannot issue the writ of ,anda,u pra!ed for )! the petitioners as it is )e!ond its 'urisdiction to compel the e/ecutive )ranch of the government to transmit the signed te/t of @ome .tatute to the .enate.

6. @. No. "+0#"# 5e)ruar! "%, ,220 Plaridel B. A)a!a vs. <on. .ecretar! <ermogenes D. D)dane, r. FACTS3 1n Ba! 0, ,22% 7ids and Awards (ommittee (7A() of the Department of Pu)lic Jor3s and <ighwa!s (DPJ<) issued a @esolution No. P <C-A-2%-2",. It was approved )! DPJ< Acting .ecretar! 5lorante .ori4ue8. This resolution recommended the award to (hina @oad A 7ridge (orporation of the contract for the implementation of civil wor3s for (ontract Pac3age No. I ((P I), which consists of the improvement?reha)ilitation of the .an Andres->irac- ct. 7ago->iga road, with the lengt of 0#.9"9 3ilometers, in the island province of (atanduanes. This Coan Agreement No. P<-,2% was e/ecuted )! and )etween the 7I( and the Philippine 6overnment pursuant to the e/change of Notes e/ecuted )! and )etween Br. Loshihisa Ara, Am)assador D/traordinar! and Plenipotentiar! of apan to the Philippines, and then 5oreign Affairs .ecretar! .ia8on, in )ehalf of their respective governments. ISS2E3 Jhether or not the Coan Agreement No. P<-,2% )etween the 7I( and the Philippine 6overnment is a 3ind of a treat!. HE4D3 The Coan Agreement No. P<-,2% ta3en in con'unction with the D/change of Notes dated Decem)er ,0, "### )etween the apanese 6overnment and the Philippine 6overnment is an e/ecutive agreement. An Fe/change of notesG is a record of a routine agreement that has man! similarities with the private law contract. The agreement consists of the e/change of two documents, each of the parties )eing in the possession of the one signed )! the representative of the other. Otreaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and e/change of notes all are refer to international instruments )inding at international law.

Although these instruments differ from each other )! title, the! all have common features and international law has applied )asicall! the same rules to all these instruments. These rules are the result of long practice among the .tates, which have accepted them as )inding norms in their mutual relations. Therefore, the! are regarded as international customar! law. That case was dismissed )! the .(1@P last 5e). "% ,220.
$hat the etitioners wanted was that foreign funded ro.ects also undergo the rocurement rocess. )he dismissal of the case somehow ga&e .ustification for the dela# of the im lementing rules for foreign funded ro.ects (I--/0) of the rocurement law. If we recall the decision of the Aba#a &s 1bdane was used b# the D,J when the D,)C !ecretar# was as2ing for an o inion from the former% during the Z)1 contro&ers#. as ruled b# the !u reme Court in Aba#a &. 1bdane% an e3change of notes is considered a form of an e3ecuti&e agreement% which becomes binding through e3ecuti&e action without need of a &ote b# the !enate and that (li2e treaties and con&entions% it is an international instrument binding at international law% )he second issue in&ol&es an e3amination of the co&erage of -e ublic Act No. 4567% otherwise 2nown as the 89o&ernment Procurement -eform Act:. !ection 7 of the said Act ro&ides that it shall a l# to; < the Procurement of infrastructure Pro.ects% 9oods and Consulting !er&ices% regardless of source of funds% whether local or foreign% b# all branches and instrumentalities of go&ernment% its de artments% offices and agencies% including go&ernment/owned and=or /controlled cor orations and local go&ernment units% sub.ect to the ro&isions of Commonwealth Act No. 5>6. An# treat# or international or e3ecuti&e agreement affecting the sub.ect matter of this Act to which the Phili ine go&ernment is a signator# shall be obser&ed.

North cota/ato vs. GR( 0r no. 112391 &" T4+ )he 'emorandum of Agreement on the Ancestral Domain (',A/AD) brought about b# the 9o&ernment of the re ublic of the Phili ines (9-P) and the 'oro Islamic ?iberation Front ('I?F) as an as ect of )ri oli Agreement of Peace in @AA5 is scheduled to be signed in Buala ?um ur% 'ala#sia. )his agreement was etitioned b# the Pro&ince of North Cotabato for 'andamus and Prohibition with Pra#er for the Issuance of $rit of Preliminar# In.unction and )em orar# -estraining ,rder. )he agreement mentions C0angsamoro Juridical 1ntit#C (0J1) to which it grants the authorit# and .urisdiction o&er the Ancestral Domain and Ancestral ?ands of the 0angsamoroD authorit# and .urisdiction o&er all natural resources within internal waters. )he agreement is com osed of two local statutes; the organic act for autonomous region in 'uslim 'indanao and the Indigenous Peo leEs -ights Act (IP-A). -4456+ $hether or not the 9-P &iolated the Constitutional and statutor# ro&isions on ublic consultation and the right to information when the# negotiated and initiated the ',A/AD and $hether or not the ',A/AD brought b# the 9-P and 'I?F is constitutional )6L7+9-P &iolated the Constitutional and statutor# ro&isions on ublic consultation and the right to information when the# negotiated and initiated the ',A/AD and it are unconstitutional because it is contrar# to law and the ro&isions of the constitution thereof. R6"4,N-NG+ )he 9-P is re+uired b# this law to carr# out ublic consultations on both national and local le&els to build consensus for eace agenda and rocess and the mobiliFation and facilitation of eo leEs artici ation in the eace rocess. Article III (0ill of -ights) !ec. G. )he right of eo le on matters of ublic concern shall be recogniFed% access to official records and to documents and a ers ertaining to official acts% transactions% or decisions% as well as to go&ernment research data used as basis for olic# de&elo ment shall be afforded the citiFen% sub.ect to such limitations as ma# be ro&ided b# law. Article II

!ec. @6. !ub.ect to reasonable conditions rescribed b# law % that state ado ts and im lements a olic# of full ublic disclosure of all its transactions in&ol&ing ublic interest. ?9C (5445)% 8re+uire all national agencies and officers to conduct eriodic consultations. No ro.ect or rogram be im lemented unless such consultations are com lied with and a ro&al mus be obtained.: Article HII (13ecuti&e De artment) !ec. @5. No treat# or international agreement shall be &alid and effecti&e unless concurred in b# at least two/thirds of all the 'embers of the !enate. Article I. (?ocal 9o&ernment) !ec. 5. )he territorial and olitical subdi&isions of the -e ublic of the Phili ines are the ro&ince% cities% munici alities and baranga#s. )here shall be autonomous regions on 'uslim 'indanao and the Cordillera as hereinafter ro&ided. !ec. 5J. )here shall be created autonomous regions in 'uslim 'indanao and in the Cordilleras consisting of ro&inces% cities% munici alities and geogra hical areas sharing common and distincti&e historical and cultural heritage% economic and social structures and other rele&ant characteristics within the framewor2 of this constitution and the national so&ereignt# as well as territorial integrit# of the -e ublic of the Phili ines. !ection 5K. )he President shall e3ercise general su er&ision o&er autonomous regions to ensure that laws are faithfull# e3ecuted. !ec. 56. )he creation of autonomous region shall be effecti&e when a ro&ed b# a ma.orit# of the &otes cast b# the constituents units in a lebiscite called for the ur ose% ro&ided that onl# ro&inces% cities and geogra hic areas &oting fa&ourabl# in such lebiscite shall be included in the autonomous region. !ec. @A. $ithin its territorial .urisdiction and sub.ect to the ro&isions of this Constitution and national laws% the organic act of autonomous regions shall ro&ide for legislati&e owers o&er; 5. Administrati&e organiFationD @. Creation of sources of re&enuesD >. Ancestral domain and natural resourcesD 7. Personal% famil#% and ro ert# relationsD J. -egional urban and rural lanning de&elo mentD K. 1conomic% social% and tourism de&elo mentD G. 1ducational oliciesD

6. Preser&ation and de&elo ment of the cultural heritageD and 4. !uch other matters as ma# be authoriFed b# law for the romotion of the general welfare of the eo le of the region. )he President has sole authorit# in the treat#/ma2ing. A-)IC?1 IHII (A'1ND'1N)! ,- -1HI!I,N!) !ection 5. An# amendment to% or re&ision of% this Constitution ma# be ro osed b#; 5. )he Congress% u on a &ote of three/fourths of all its 'embersD or @. A constitutional con&ention. !ection 7. An# amendment to% or re&ision of% this Constitution under !ection 5 hereof shall be &alid when ratified b# a ma.orit# of the &otes cast in a lebiscite which shall be held not earlier than si3t# da#s nor later than ninet# da#s after the a ro&al of such amendment or re&ision. ',A/AD states that all ro&isions thereof which cannot be reconciled with the resent constitution and laws 8shall come into force u on signing of a com rehensi&e com act and u on effecting the necessar# changes to the legal framewor2.: )he residentEs authorit# is limited to ro osing constitutional amendments. !he cannot guarantee to an# third art# that the re+uired amendments will e&entuall# be ut in lace nor e&en be submitted to a lebiscite. ',A/AD itself resents the need to amend therein.