MIJARES VS.
RANADA, GR 139325, April 12, 2005 respondent judge to have applied instead a clearly inapplicable rule and
Facts
On 9 May 1991, a complaint was filed with the US District Court against the
Estate of former Philippine President Marcos (Marcos Estate). The action was
brought by ten Filipino citizens who each alleged having suffered human rights
abuses such as arbitrary detention, torture and rape during the Marcos regime.
[3] The Alien Tort Act was invoked as basis for the US District Courts
jurisdiction over the complaint, as it involved a suit by aliens for tortious
violations of international law.Plaintiffs brought the action on their own behalf
and on behalf of a class of similarly situated individuals, particularly consisting
of all current civilian citizens of the Philippines, their heirs and beneficiaries,
who between 1972 and 1987 were tortured, summarily executed or had
disappeared while in the custody of military or paramilitary groups.
The institution of a class action suit was warranted under the US Federal Rules
of Civil Procedure and the US District Court certified the case as a class action.
The US District Court rendered a Final Judgment awarding the plaintiff class a
total of $1,964,005,859.90.The Final Judgment was affirmed by the US Court
of Appeals.
On 20 May 1997, the present petitioners filed Complaint with the Regional Trial
Court of Makati for the enforcement of the Final Judgment.
The Marcos Estate filed a motion to dismiss, raising the non-payment of the
correct filing fees; that petitioners had only paid P410.00 as docket and filing
fees, notwithstanding the fact that they sought to enforce a monetary amount
of damages in the amount of over US$2.25 Billion. In response, the petitioners
claimed that an action for the enforcement of a foreign judgment is not capable
of pecuniary estimation pursuant to Section 7(c) of Rule 141.
respondent Judge Ranada dismissed the complaint ; that the subject matter of
the complaint was indeed capable of pecuniary estimation and that the
estimated the proper amount of filing fees was approximately Four Hundred
Seventy Two Million Pesos, which had not been paid.
petitioners filed a Motion for Reconsideration, which Judge Ranada denied.
petitioners filed a Petition for Certiorari under Rule 65 assailing the twin orders
of respondent judge.
Petitioners submit that their action is incapable of pecuniary estimation as the
subject matter of the suit is the enforcement of a foreign judgment, and not an
action for the collection of a sum of money or recovery of damages. They also
point out that to require the class plaintiffs to pay P472,000,000.00 filing fees
would negate and render inutile the liberal construction ordained by the Rules
of Court.
Issue
WoN the petitioners should pay P472 million as filing fees
Held
No.The subject matter of an action to enforce a foreign judgment is the foreign
judgment itself, and the cause of action arising from the adjudication of such
judgment.
the complaint to enforce the US District Court judgment is one capable of
pecuniary estimation. But at the same time, it is also an action based on
judgment against an estate, thus placing it beyond the ambit of Section 7(a) of
Rule 141. For this case we find that it is covered by Section 7(b)(3), involving
as it does, other actions not involving property.
Notably, the amount paid as docket fees by the petitioners on the premise that
it was an action incapable of pecuniary estimation corresponds to the same
amount required for other actions not involving property. The petitioners thus
paid the correct amount of filing fees, and it was a grave abuse of discretion for
dismissed the complaint.
Section 98 of The Restatement, Second, Conflict of Laws, states that a valid
judgment rendered in a foreign nation after a fair trial in a contested proceeding
will be recognized in the United States, and on its face, the term valid brings
into play requirements such notions as valid jurisdiction over the subject matter
and parties.
There is no obligatory rule derived from treaties or conventions that requires
the Philippines to recognize foreign judgments, or allow a procedure for the
enforcement thereof. However, generally accepted principles of international
law, by virtue of the incorporation clause of the Constitution, form part of the
laws of the land even if they do not derive from treaty obligations.[66] The
classical formulation in international law sees those customary rules accepted
as binding result from the combination two elements: the established,
widespread, and consistent practice on the part of States; and a psychological
element known as the opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice in question
is rendered obligatory by the existence of a rule of law requiring it.[67]
There is a widespread practice among states accepting in principle the need
for such recognition and enforcement, albeit subject to limitations of varying
degrees. The fact that there is no binding universal treaty governing the
practice is not indicative of a widespread rejection of the principle, but only a
disagreement as to the imposable specific rules governing the procedure for
recognition and enforcement.
Aside from the widespread practice, it is indubitable that the procedure for
recognition and enforcement is embodied in the rules of law, whether statutory
or jurisprudential, adopted in various foreign jurisdictions. In the Philippines,
this is evidenced primarily by Section 48, Rule 39 of the Rules of Court which
has existed in its current form since the early 1900s. Certainly, the Philippine
legal system has long ago accepted into its jurisprudence and procedural rules
the viability of an action for enforcement of foreign judgment, as well as the
requisites for such valid enforcement, as derived from internationally accepted
doctrines. Again, there may be distinctions as to the rules adopted by each
particular state,[69] but they all prescind from the premise that there is a rule of
law obliging states to allow for, however generally, the recognition and
enforcement of a foreign judgment. The bare principle, to our mind, has
attained the status of opinio juris in international practice.
WHEREFORE, the petition is GRANTED. The assailed orders are NULLIFIED
and SET ASIDE, and a new order REINSTATING Civil Case No. 97-1052 is
hereby issued. No costs.
BAYAN MUNA v. ALBERTO ROMULO, G.R. No. 159618 : February 1, 2011
VELASCO, JR.,J.:
FACTS:
On December 28, 2000, the RP, through Charge d'Affaires Enrique A. Manalo,
signed the Rome Statute which, by its terms,is subject to ratification,
acceptance or approval by the signatory states.
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy
Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms
of the non-surrender bilateral agreement (Agreement, hereinafter) between the
USA and the RP.
Via E xchange of Notes No. BFO-028-03 dated May 13, 2003 (E/N BFO-028-
03, hereinafter), the RP, represented by then DFA Secretary Ople, agreed with
and accepted the US proposals embodied under the US Embassy. The
Agreement aims to protect what it refers to and defines as persons of the RP
and US from frivolous and harassment suits that might be brought against
them in international tribunals.
In response to a query of then Solicitor General Alfredo L. Benipayo on the
status of the non-surrender agreement, Ambassador Ricciardone replied in his
letter of October 28, 2003 that the exchange of diplomatic notes constituted a
legally binding agreement under international law; and that, under US law, the
said agreement did not require the advice and consent of the US Senate.
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, "persons" are current or former
Government officials, employees (including contractors), or military
personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not,
absent the express consent of the first Party,
(a) be surrendered or transferred by any means to any
international tribunal for any purpose, unless such
tribunal has been established by the UN Security
Council, or
(b) be surrendered or transferred by any means to any
other entity or third country, or expelled to a third country,
for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been
established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a
person of the Philippines to a third country, the [US] will not agree to
the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by
the UN Security Council, absent the express consent of the
Government of the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a
person of the [USA] to a third country, the [GRP] will not agree to
the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by
the UN Security Council, absent the express consent of the
Government of the [US].
5. This Agreement shall remain in force until one year after the date
on which one party notifies the other of its intent to terminate the
Agreement. The provisions of this Agreement shall continue to
apply with respect to any act occurring, or any allegation arising,
before the effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on the
status of the non-surrender agreement, Ambassador Ricciardone replied in his
letter of October 28, 2003 that the exchange of diplomatic notes constituted a
legally binding agreement under international law; and that, under US law, the
said agreement did not require the advice and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion to respondents
in concluding and ratifying the Agreement and prays that it be struck down as
unconstitutional, or at least declared as without force and effect.
ISSUES:
1. WoN petitioners have locus standing to file suit
2. WoN the RP Pres Arroyo and the DFA Sec committed GADALEJ
for concluding the RP-US non surrender agreement by means of an
exchange of notes, when the Philippine government has already
signed the Rome Statute although this is pending ratification by the
Senate
3. WoN the Agreement is valid, binding and effective without the
concurrence by at least two-thirds (2/3) of all the members of the
senate
4. WoN the RP-US non-surrender agreement is void ab initio for
contracting obligations that are either immoral or otherwise at
variance with universally recognized principles of international law
5. Won RP, by entering into the Agreement, violated its duty required
by the imperatives of good faith and breached its commitment under
the Vienna Convention to refrain from performing any act tending to
impair the value of a treaty, e.g., the Rome Statute
HELD:
1. Yes.
Petitioners representatives have complied with the qualifying
conditions or specific requirements exacted under the locus
standi rule. As citizens, their interest in the subject matter of the
petition is direct and personal. At the very least, their assertions
questioning the Agreement are made of a public right, i.e., to
ascertain that the Agreement did not go against established national
policies, practices, and obligations bearing on the States obligation
to the community of nations.
Moreover, in cases of transcendental importance, the Coourt
may relax the standing requirements and allow a suit to prosper
even where there is no direct injury to the party claiming the right of
judicial review.
2. Yes.
Under the doctrine of incorporation, as expressed in Section 2,
Article II of the Constitution, the Philippines adopts the generally
accepted principles of international law and international
jurisprudence as part of the law of the land and adheres to the
policy of peace, cooperation, and amity with all nations. An
exchange of notes falls into the category of inter-governmental
agreement, which is an internationally accepted form of
international agreement.1
Courts Lecture:
The terms exchange of notes and executive agreements have been
used interchangeably, exchange of notes being considered a form of executive
agreement that becomes binding through executive action. On the other hand,
executive agreements concluded by the President sometimes take the form of
exchange of notes and at other times that of more formal documents
denominated agreements or protocols.
3. Yes.
International agreements may be in the form of (1) treaties that
require legislative concurrence after executive ratification; or (2)
executive agreements that are similar to treaties, except that they do not
1. The United Nations Treaty Collections (Treaty Reference
Guide) defines the term as follows:An exchange of notes is a
record of a routine agreement, that has many similarities with
the private law contract. The agreement consists of the
exchange of two documents, each of the parties being in the
possession of the one signed by the representative of the
other. Under the usual procedure, the accepting State repeats
the text of the offering State to record its assent. The
signatories of the letters may be government Ministers,
diplomats or departmental heads. The technique of exchange
of notes is frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of legislative
approval.[28]
require legislative concurrence and are usually less formal and deal with
a narrower range of subject matters than treaties
Considering the above discussion, the Court need not be labor at
length the issue raised, referring to the validity and effectivity of
the Agreement without the concurrence by at least two-thirds of all the
members of the Senate. The Court has, in Bayan, given recognition to the
obligatory effect of executive agreements without the concurrence of the
Senate.
Lecture:
Petitioners contention:
The Agreement is of dubious validity, partaking as it does of the nature of a
treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a
cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court
reproduced the following observations made by US legal scholars:
[I]nternational agreements involving political issues or changes of national
policy and those involving international arrangements of a permanent character
usually take the form of treaties [while] those embodying adjustments of detail
carrying out well established national policies and traditions and those
involving arrangements of a more or less temporary nature take the form of
executive agreements. Petitioner submits that the subject of
the Agreement does not fall under any of the subject-categories that are
enumerated in the Eastern Sea Trading case, and that may be covered by an
executive agreement, such as commercial/consular relations, most-favored
nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.
Courts Lecture:
There are no hard and fast rules on the propriety of entering, on a given
subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form of
agreement is the parties intent and desire to craft an international
agreement in the form they so wish to further their respective interests. Verily,
the matter of form takes a back seat when it comes to effectiveness and
binding effect of the enforcement of a treaty or an executive agreement, as the
parties in either international agreement each labor under the pacta sunt
servanda[42] principle.
In light of the above consideration, the position or view that the challenged RP-
US Non-Surrender Agreement ought to be in the form of a treaty, to be
effective, has to be rejected.
4. NO
The Agreement does not contravene or undermine, nor does it differ
from, the Rome Statute. Far from going against each other, one complements
the other. Persons who may have committed acts penalized under the Rome
Statute can be prosecuted and punished in the Philippines or in the US; or with
the consent of the RP or the US, before the ICC, assuming, for the nonce, that
all the formalities necessary to bind both countries to the Rome Statute have
been met. For perspective, what the Agreement contextually prohibits is
the surrender by either party of individuals to international tribunals, like
the ICC, without the consent of the other party, which may desire to
prosecute the crime under its existing laws.
Thus, there is nothing immoral or violative of international law
concepts in the act of the Philippines of assuming criminal jurisdiction pursuant
to the non-surrender agreement over an offense considered criminal by both
Philippine laws and the Rome Statute.
Courts lecture:
The Agreement is but a form of affirmance and confirmance of
the Philippines national criminal jurisdiction. National criminal jurisdiction
being primary, as explained above, it is always the responsibility and within the
prerogative of the RP either to prosecute criminal offenses equally covered by
the Rome Statute or to accede to the jurisdiction of the ICC. Thus,
the Philippines may decide to try persons of the US, as the term is understood
in the Agreement, under our national criminal justice system. Or it may opt not
to exercise its criminal jurisdiction over its erring citizens or over US persons
committing high crimes in the country and defer to the secondary criminal
jurisdiction of the ICC over them. As to persons of the US whom the
Philippines refuses to prosecute, the country would, in effect, accord discretion
to the US to exercise either its national criminal jurisdiction over the person
concerned or to give its consent to the referral of the matter to the ICC for
trial. In the same breath, the US must extend the same privilege to
the Philippines with respect to persons of the RP committing high crimes
within US territorial jurisdiction.
Petitioner, we believe, labors under the erroneous impression that
the Agreement would allow Filipinos and Americans committing high crimes of
international concern to escape criminal trial and punishment. This is
manifestly incorrect. Persons who may have committed acts penalized under
the Rome Statute can be prosecuted and punished in the Philippines or in
the US; or with the consent of the RP or the US, before the ICC, assuming, for
the nonce, that all the formalities necessary to bind both countries to the Rome
Statute have been met. For perspective, what the Agreement contextually
prohibits is the surrender by either party of individuals to international
tribunals, like the ICC, without the consent of the other party, which may
desire to prosecute the crime under its existing laws. With the view we
take of things, there is nothing immoral or violative of international law
concepts in the act of the Philippines of assuming criminal jurisdiction pursuant
to the non-surrender agreement over an offense considered criminal by both
Philippine laws and the Rome Statute.
5. No.
Under international law, there is a considerable difference between a
State-Party and a signatory to a treaty. Under the Vienna Convention on the
Law of Treaties, a signatory state is only obliged to refrain from acts
which would defeat the object and purpose of a treaty; whereas a State-
Party, on the other hand, is legally obliged to follow all the provisions of a
treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a
signatory to the Rome Statute and not a State-Party for lack of ratification by
the Senate. Thus, it is only obliged to refrain from acts which would defeat the
object and purpose of the Rome Statute. Any argument obliging
the Philippines to follow any provision in the treaty would be premature.
OTHER DOCTRINES:
1. There are no hard and fast rules on the propriety of entering, on a given
subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form of
agreement is the parties intent and desire to craft an international agreement
in the form they so wish to further their respective interests. Verily, the matter of
form takes a back seat when it comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement, as the parties in either
international agreement each labor under the pacta sunt servanda[42] principle.
2. Under international law, there is no difference between treaties and
executive agreements in terms of their binding effects on the contracting states
concerned, as long as the negotiating functionaries have remained within their
powers. Neither, on the domestic sphere, can one be held valid if it violates the
Constitution. Authorities are, however, agreed that one is distinct from another
for accepted reasons apart from the concurrence-requirement aspect. As has
been observed by US constitutional scholars, a treaty has greater dignity
than an executive agreement, because its constitutional efficacy is beyond
doubt, a treaty having behind it the authority of the President, the Senate, and
the people; a ratified treaty, unlike an executive agreement, takes precedence
over any prior statutory enactment.
3. An executive agreement cannot be used to amend a duly ratified and
existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that
does not require the concurrence of the Senate for its ratification may
not be used to amend a treaty that, under the Constitution, is the product
of the ratifying acts of the Executive and the Senate. (Adolfo v. CFI of
Zambales and Merchant)
4. Almost every time a state enters into an international agreement, it
voluntarily sheds off part of its sovereignty. The Constitution, as drafted,
did not envision a reclusive Philippines isolated from the rest of the world. It
even adheres, as earlier stated, to the policy of cooperation and amity with all
nations.[60]
By their nature, treaties and international agreements actually have a
limiting effect on the otherwise encompassing and absolute nature of
sovereignty. By their voluntary act, nations may decide to surrender or waive
some aspects of their state power or agree to limit the exercise of their
otherwise exclusive and absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the greater benefits derived from
a pact or a reciprocal undertaking of one contracting party to grant the same
privileges or immunities to the other. On the rationale that the Philippines has
adopted the generally accepted principles of international law as part of the law
of the land, a portion of sovereignty may be waived without violating the
Constitution. Such waiver does not amount to an unconstitutional diminution or
deprivation of jurisdiction of Philippine courts.
5. By constitutional fiat and by the nature of his or her office, the
President, as head of state and government, is the sole organ and
authority in the external affairs of the country. The Constitution vests in the
President the power to enter into international agreements, subject, in
appropriate cases, to the required concurrence votes of the Senate. But as
earlier indicated, executive agreements may be validly entered into without
such concurrence. As the President wields vast powers and influence, her
conduct in the external affairs of the nation is, as Bayan would put it, executive
altogether. The right of the President to enter into or ratify binding executive
agreements has been confirmed by long practice.
VINUYA VS. EXECUTIVE SECRETARY
G.R. No. 162230, April 28, 2010, DEL CASTILLO, J.:
FACTS
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit
organization registered with the SEC for the purpose of providing aid to the
victims of rape by Japanese military forces in the Philippines during the WWII.
They claim that they were comfort women at that time and have greatly
suffered because of that. In 1998, they have approached the Executive
Department through the DOJ, DFA, and OSG and requested assistance in
filing a claim against the Japanese officials and military officers who ordered
the establishment of the comfort women stations in the Philippines. However,
the officials declined on that ground that the individual claims had already been
satisfied by Japans compliance with the San Francisco Peace Treaty of 1951
and the bilateral Reparations Agreement of 1956 between Japan and the
Philippines.
The petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void because the comfort
women system constituted a crime against humanity, sexual slavery, and
torture. The same was prohibited under the jus cogens norms from which no
derogation is possible. Thus, such waiver was a breach against the
governments obligation not to afford impunity for crimes against humanity. In
addition, they claim that the Philippine governments acceptance of the
apologies made by Japan as well as funds for the Asian Womens Fun (AWF)
were contrary to international law.
Respondents Arguments
Respondents maintain that all claims of the Philippines and its nationals relative to the
war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral
Reparations Agreement of 1956.
In addition, respondents argue that the apologies made by Japan have been
satisfactory, and that Japan had addressed the individual claims of the women through
the atonement money paid by the Asian Womens Fund.
ISSUE
WON Executive Dept can be compelled to espouse their claims for official
apology and other forms of reparations against Japan before the International
Court of Justice and other international tribunals.
RULING
NO.
It is well established that the conduct of foreign relations of our government is
committed by the Constitution to the executive and legislative - the political -
departments of the government, and propriety of what may be done in the
exercise of this political power is not subject to judicial inquiry or decision.
In this case, the Executive Department has already decided that it is to the best
interest of the country to waive all claims of its nationals for reparations
against Japan in the Treaty of Peace of 1951. The wisdom of such decision
is not for the courts to question.
The Executive Department has determined that taking up petitioners cause
would be inimical to our countrys foreign policy interests, and could disrupt
our relations with Japan, thereby creating serious implications for stability in
this region. For the to overturn the Executive Departments determination
would mean an assessment of the foreign policy judgments by a coordinate
political branch to which authority to make that judgment has been
constitutionally committed.
From a municipal law perspective, certiorari will not lie. As a general principle,
where such an extraordinary length of time has lapsed between the treatys
conclusion and our consideration the Executive must be given ample
discretion to assess the foreign policy considerations of espousing a claim
against Japan, from the standpoint of both the interests of the petitioners
and those of the Republic, and decide on that basis if apologies are
sufficient, and whether further steps are appropriate or necessary.
The Philippines is not under any international obligation to espouse
petitioners claims.
In the international sphere, traditionally, the only means available for
individuals to bring a claim within the international legal system has been
when the individual is able to persuade a government to bring a claim on the
individuals behalf. 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 right to ensure, in the person of
its subjects, respect for the rules of international law. Even then, it is not the
individuals rights that are being asserted, but rather, the states own rights.
Within the limits prescribed by international law, a State may exercise
diplomatic protection by whatever means and to whatever extent it thinks fit,
for it is its own right that the State is asserting. Should the natural or legal
person on whose behalf it is acting consider that their rights are not
adequately protected, they have no remedy in international law. All they can
do is resort to national law, if means are available, with a view to furthering
their cause or obtaining redress. All these questions remain within the
province of municipal law and do not affect the position internationally.
It has been argued, as petitioners argue now, that the State has a duty to
protect its nationals and act on his/her behalf when rights are
injured. However, at present, there is no sufficient evidence to establish a
general international obligation for States to exercise diplomatic protection
of their own nationals abroad.] Though, perhaps desirable, neither state
practice nor opinio juris has evolved in such a direction. If it is a duty
internationally, it is only a moral and not a legal duty, and there is no means
of enforcing its fulfillment.
We fully agree that rape, sexual slavery, torture, and sexual violence are
morally reprehensible as well as legally prohibited under contemporary
international law. However, petitioners take quite a theoretical leap in
claiming that these proscriptions automatically imply that that the Philippines
is under a non-derogable obligation to prosecute international crimes,
particularly since petitioners do not demand the imputation of individual
criminal liability, but seek to recover monetary reparations from the state of
Japan. Absent the consent of states, an applicable treaty regime, or a
directive by the Security Council, there is no non-derogable duty to institute
proceedings against Japan
Even the invocation of jus cogens norms and erga omnes obligations will not
alter this analysis. Even if we sidestep the question of whether jus
cogens norms existed in 1951, petitioners have not deigned to show that the
crimes committed by the Japanese army violated jus cogens prohibitions at
the time the Treaty of Peace was signed, or that the duty to prosecute
perpetrators of international crimes is an erga omnes obligation or has
attained the status of jus cogens.
CONCEPT of ERGA OMNES and JUS COGENS
The term erga omnes (Latin: in relation to everyone) in international law has been used
as a legal term describing obligations owed by States towards the community of states as
a whole. The concept was recognized by the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn between the
obligations of a State towards the international community as a
whole, and those arising vis--vis another State in the field of
diplomatic protection. By their very nature, the former are the
concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.
Such obligations derive, for example, in contemporary
international law, from the outlawing of acts of aggression, and of
genocide, as also from the principles and rules concerning the
basic rights of the human person, including protection from
slavery and racial discrimination. Some of the corresponding
rights of protection have entered into the body of general
international law others are conferred by international
instruments of a universal or quasi-universal character.
The Latin phrase, erga omnes, has since become one of the rallying cries of those
sharing a belief in the emergence of a value-based international public order. However, as
is so often the case, the reality is neither so clear nor so bright. Whatever the relevance of
obligations erga omnes as a legal concept, its full potential remains to be realized in
practice.
The term is closely connected with the international law concept of jus cogens. In
international law, the term jus cogens (literally, compelling law) refers to norms that
command peremptory authority, superseding conflicting treaties and custom. Jus
cogens norms are considered peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general international norms of equivalent
authority.[70]
DISPOSITION
Petition is DISMISSED.
OTHER DOCTRINES
The President, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this true in
time of war. He has his confidential sources of information. He has his
agents in the form of diplomatic, consular and other officials.
By constitutional fiat and by the intrinsic nature of his office, the President, as
head of State, is the sole organ and authority in the external affairs of the
country. In many ways, the President is the chief architect of the nation's
foreign policy; his "dominance in the field of foreign relations is (then)
conceded." Wielding vast powers and influence, his conduct in the external
affairs of the nation, as Jefferson describes, is "executive altogether".
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE
PHILIPPINES VS. DUQUE III
(Austria-Martinez, October 9, 2007)
Nature: Special Civil Action in the Supreme Court. Certiorari
Petitioner: Pharmaceutical and Healthcare Association of the Philippines
Respondents: DOH Sec. Francisco Duque III, DOH Undersecretaries Dr.
Ethelyn Nieto, Dr. Margarita Galon, Atty. Alexander Padilla and Dr. Jade Del
Mundo; and Asst. Secretaries Dr. Mario Villaverde, Dr. David Lozada and Dr.
Nemesio Gako
Facts:
- Executive Order No. 51 (The Milk Code - TMC) was issued by Pres.
Aquino on Oct. 28, 1986 by virtue of the legislative powers granted to
her under the Freedom Constitution.
1 One of the preambular clauses of TMC the law seeks to give
effect to Article 11 of the International Code of Marketing of
Breastmilk Substituttes (ICMBS), a code adopted by the WHA
(World Health Assembly) in 1981.
- In 1990, the Philippine ratified the International Convention on the
Rights of the Child. Art. 24 of the instrument mandates that States
should take measure to diminish infant mortality and should ensure that
 all segments of society are informed of the advantages of
breastfeeding.
- From 1982 2006, the WHA adopted several resolutions to the effect
that breastfeeding should be supported, promoted and protected,
hence, it should be ensured that nutrition and health claims are not
permitted for breastmilk substitutes.
- May 15, 2006 DOH issues the assailed RIRR (Revised Implementing
Rules and Regulations of E.O. 51 or A.O. No. 2006-0012) which was to
take effect on July 7, 2006. The RIRR imposes a ban on all
advertisements of breastmilk substitutes
- June 28, 2006 Petitioner filed the present Petition for Certiorari and
Prohibition with Prayer for the Issuance of a TRO or Writ of Preliminary
injunction.
- August 15, 2006 the Court issued a Resolution granting the TRO,
enjoining the respondents from implementing the assailed RIRR.
- Petitioner assails the RIRR for going beyond the provisions of TMC
thereby amending and expanding the coverage of the said law.
- DOH meanwhile contends that the RIRR implements not only TMC but
also various international instruments regarding infant and young child
nutrition. They posit that the said international instruments are deemed
part of the law of the land and therefore may be implemented by the
DOH in the RIRR.
Issue: W/n the RIRR is unconstitutional?
Sub-issue(s): W/n the RIRR is in accord with TMC? W/n pertinent
international agreements entered into by the Philippines are part of the law of
the land and may thus be implemented through an RIRR, if so, is the RIRR in
accord with such international agreements?
Note: I focused on the parts on international law. The other matters (in case
maam asks) are at the bottom of the digest.
Held: No. However what may be implemented is the RIRR based on the Milk
Code which in turn is based on the ICMBS as this is deemed part of the law of
the land. The other WHA Resolutions however cannot be imposed as they are
not deemed part of the law of the land.
Ratio:
1 Are the international instruments referred to by the respondents part of
the law of the land?
- The various international instruments invoked by respondents are:
1 The UN Conventions on the Rights of the Child
2 The International Convenant on Economic, Social, and Cultural
Rights
3 Convention on the Elimination of All Forms of Discrimination
Against Women
- These instruments only provide general terms of the steps that States
must take to prevent child mortality. Hence, they do not have anything
about the use and marketing of breastmilk substitutes
- The ICMBS and other WHA Resolutions however, are the international
instruments which have specific provisions on breastmilk substitutes
- Under the 1987 Constitution, international law can become part of
domestic law in 2 ways:
1 Transformation an international law is transformed into a
domestic law through a constitutional mechanism such as local
legislation
Treaties become part of law of the land through this method,
pursuant to Art 7, Sec 21 wherein no treaty or international
agreement shall be valid.. unless concurred by at least 2/3 of
Senate
The ICMBS and WHA Resolutions are NOT treaties as they
havent been concurred in by the required 2/3 vote.
HOWEVER, the ICMBS has been transformed into domestic
law through local legislation that is TMC.
Therefore, it is not the ICMBS per se that has the
force of law but its TMC.
o While TMC is almost a verbatim reproduction of
the ICMBS, it did not adopt the latters provision
on the absolute prohibition on advertising of
products within the scope of the ICMBS. Instead
the MC provides that advertising promotion or
other marketing materials may be allowed if such
materials are approved by a committee.
2 Incorporation by mere constitutional declaration, international
law is deemed to have the force of domestic law
This is found under Art 2, Sec 2 The Philippines adopts
generally accepted principles of international law as part of
the law of the land
In Mihares v. Ranada: International law becomes customary
rules accepted as binding as a result of two elements:
1 Established, widespread, and consistent practice on
part of the state
2 Opinion juris sive necessitates (opinion as to law or
necessity.
Generally accepted principles of international law refer to
norms of general or customary international law which are
binding on all states, valid through all kinds of human
societies, and basic to legal systems generally
Fr. Bernas has a definition similar to the one above.
Customary international law has two factors:
1 Material factor how states behave
The consistency and the generality of the practice
2 Psychological or subjective factor why they behave
the way they do
Once state practice has been established, now
determine why they behave they do. Is it ouor of
courtesy or opinio juris (the belief that a certain
type of behavior is obligatory)
When a law satisfies the two factors it becomes part of
customary international law which is then incorporated into
our domestic system
2 Since the WHA Resolutions have not been embodied in any local
legislation, have they attained the status of customary law and hence part
of our law of the land?
- The World Health Organization (WHO) is one of the international
specialized agencies of the UN.
- According to the WHO Constitution, its the WHA which determines the
policies of the WHO, the former also has the power to adopt
regulations concerning advertising and labeling of pharmaceutical and
similar products and to make recommendations to members on any
matter within the Organizations competence
- Note that the legal effect of a regulation as opposed to recommendation
is quite different
1 Regulations which are duly adopted by the WHA are binding on
member states
2 On the other hand, recommendations of the WHA do not come
into force for its members unlike regulations. Rather, they carry
 moral and political weight as they constitute the judgment on a
health issue of the collective membership of the highest body in
the field of health.
- The WHA resolution adopting the ICMBS and the subsequent WHA
resolutions urging states to implement the ICMBS are merely
recommendatory and legally non-binding.
- Hence, unlike the ICMBS which has become TMC through legislative
enactment, the subsequent WHA Resolutions, which provide for
exclusive breastfeeding and prohibition on advertisements and
promotions of breastmilk have not been adopted as domestic law.
- WHA Resolutions have been viewed to constitute soft law or non-
binding norms, which influence state behavior. Soft law has been noted
to be a rapid means of norm creation, in order to reflect and respond to
the changing needs and demands of constituents (of the UN.)
- As previously discussed, for an international rule to be considered
customary law, it must be established that such rule is followed by
states because it is considered obligatory (opinio juris).
- In the case at bar, respondents have not presented any evidence to
prove that the WHA Resolutions are in fact enforced or practice by
member states. Further, they failed to establish that provisions of
pertinent WHA Resolutions are customary international law that may be
deemed part of law of the land.
- Hence, legislation is necessary to transform the WHA resolutions into
domestic law. They cannot thus be implemented by executive agencies
without the need of a law to be enacted by legislature.
On other issues:
W/n the petitioner is the real party in interest? Yes.
- An association has standing to file suit for its workers despite its lack of
direct interest of its members are affected by the action. An organization
has standing to assert the concerns of its constituents. (Exec Sec vs
CA)
- The Court has rules that an association has the legal personality to
represent its members because the results of the case will affect their
vital interests. (Purok Bagong Silang Association Inc. vs. Yuipco)
- In the petitioners Amended Articles of Incorporation, it states that the
association is formed to represent directly or through approved
representatives the pharmaceutical and health care industry before the
Philippine Government and any of its agencies, the medical professions
and the general public.
- Therefore, the petitioner, as an organization, has an interest in fulfilling its
avowed purpose of representing members who are part of the
pharmaceutical and health care industry. Petitioner is duly authorized
to bring to the attention of the government agencies and courts any
grievance suffered by its members which are directly affected by the
assailed RIRR.
- The petitioner, whose legal identity is deemed fused with its members,
should be considered as a legal party-in-interest which stands to be
benefited or injured by any judgment in the case.
W/n the DOH has the power to implement the WHA Resolutions under the
Revised Administrative Code even in the absence of a domestic law? Only
the provisions of the Milk Code. (as per the discussion above)
- Section 3, Chapter 1, Title IX of the RAC of 1987 provides that the DOH
shall define the national health policy and can issue orders and
regulations concerning the implementation of established health
policies.
- A.O. No 2005 -0014 which provides the national policy on infant and
young child feeding, does not declare that as part of its policy, the
advertisement or promotion of breastmilk substitutes should be
absolutely prohibited.
- Only the provisions of the Milk Code, but not those of the subsequent
WHA Resolutions, can be validly implemented by the DOH through the
subject RIRR.
W/n the provisions of the RIRR being in accordance with the Milk Code? Not
all of them
- Assailed provisions: [1] extending the coverage to young children; [2]
imposing exclusive breastfeeding for infants from 0-6 months; [3]
imposes an absolute ban on advertising and promotion for breastmilk
substitutes; [4] requiring additional labeling requirements; [5] prohibits
the dissemination of information on infant formula; [6] forbids milk
manufacturers and distributors to extend assistance in research and
continuing education Although the DOH has the power under the Milk
Code to control information regarding breastmilk vis--vis breastmilk
substitutes, this power is not absolute because it has no power to
impose an absolute prohibition in the marketing, promotion and
advertising of breastmilk substitutes. Several provisions of the Milk
Code attest to the fact that such power to control information is not
absolute.
- Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code
because such provisions impose an absolute prohibition on advertising,
promotion and marketing of breastmilk substitutes, which is not
provided for in the Milk Code. Section 46 is violative of the Milk Code
because the DOH has exceeded its authority in imposing such fines or
sanctions when the Milk Code does not do so. Other assailed
provisions are in accordance with the Milk Code.
W/n Section 13 of the RIRR providing a sufficient standard? Yes.
- Questioned provision, in addition to Section 26 of Rule VII provide
labeling requirements for breastmilk substitutes found to be in
consonance with the Milk Code
- The provisions in question provide reasonable means of enforcing
related provisions in the Milk Code.
W/n Section 57 of the RIRR repeals existing laws?
- Section in question only repeals orders, issuances and rules and
regulations, not laws. The provision is valid as it is within the DOHs
rule-making power.
- An administrative agency has quasi-legislative or rule-making power.
However, such power is limited to making rules and regulation
subjected to the boundaries set by the granting statute and the
Constitution. The power is also subject to the doctrine of non-
delegability and separability of powers. The power, which includes
amending, revising, altering or repealing, is granted to allow for
flexibility in the implementation of the laws.
W/n On Section 4, 5(w), 11, 22, 32, 47 and 52 violates the due process clause
of the Constitution (Article III Section 1)?
- Despite the fact that the present Constitution enshrines free enterprise
as a policy, it nonetheless reserves to the government the power to
intervene whenever necessary to promote the general welfare free
enterprise does not call for the removal of protective regulations. It
must be clearly explained and proven by competent evidence just
 exactly how such protective regulation would result in the restraint of
trade.
- Section 4 proscription of milk manufacturers participation in any
policymaking body; Section 22 classes and seminars for women and
children; Section 32 giving of assistance, support and logistics or
training; Section 52 giving of donations
- In the instant case, petitioner failed to show how the aforementioned
sections hamper the trade of breastmilk substitutes. They also failed to
establish that these activities are essential and indispensable to their
trade.
Disposition: The Petition is Partially Granted. Only sections 4(f), 11 and
46 of A.O. 2006-0014 are declared null and void for being ultra vires. The
TRO is lifted insofar as the rest of the provisions of A.O. 2006-0012 is
concerned.
PIMENTEL JR VS. OFFICE OF EXECUTIVE SECRETARY
FACTS
The Rome Statute established the International Criminal Court which shall
have the power to exercise its jurisdiction over persons for the most serious
crimes of international concern xxx and shall be complementary to the national
criminal jurisdictions. The Philippines signed the Statute on December 28,
2000 through Charge d Affairs Enrique A. Manalo of the Philippine Mission to
the United Nations. Its provisions, however, require that it be subject to
ratification, acceptance or approval of the signatory states.
Petitioners filed petition to compel the respondents the Office of the Executive
Secretary and the DFA to transmit the signed text of the treaty to the Senate of
the Philippines for ratification.
Petitioners contend that ratification of a treaty, under both domestic law and
international law, is a function of the Senate. Hence, it is the duty of the
executive department to transmit the signed copy of the Rome Statute to the
Senate to allow it to exercise its discretion with respect to ratification of
treaties. Moreover, petitioners submit that the Philippines has a ministerial duty
to ratify the Rome Statute under treaty law and customary international law.
Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the
states to refrain from acts which would defeat the object and purpose of a
treaty when they have signed the treaty prior to ratification unless they have
made their intention clear not to become parties to the treaty.
ISSUE
1. WON the petitioners have the legal standing
2. WON the Executive Secretary and the DFA have a ministerial duty
to transmit to the Senate the copy of the Rome Statute signed by a
member of the Philippine Mission to the United Nations even
without the signature of the President.
HELD
First issue
The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his
legal standing to file the suit as member of the Senate; Congresswoman
Loretta Ann Rosales et al. are suing under the doctrine of inter-generational
rights and a group of fifth year working law students from the University of the
Philippines College of Law who are suing as taxpayers.
We find that only Senator Pimentel has the legal standing to file the instant
suit. The other petitioners maintain their standing as advocates and defenders
of human rights, and as citizens of the country. They have not shown, however,
that they have sustained or will sustain a direct injury from the non-transmittal
of the signed text of the Rome Statute to the Senate.
As regards Senator Pimentel, it has been held that to the extent the powers of
Congress are impaired, so is the power of each member thereof, since his
office confers a right to participate in the exercise of the powers of that
institution. Thus, legislators have the standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in their office
and are allowed to sue to question the validity of any official action which they
claim infringes their prerogatives as legislators. The petition at bar invokes the
power of the Senate to grant or withhold its concurrence to a treaty entered
into by the executive branch, in this case, the Rome Statute.
Second issue
No.
While the President has the sole authority to negotiate and enter into treaties,
the Constitution provides a limitation to his power by requiring the concurrence
of 2/3 of all the members of the Senate for the validity of the treaty entered into
by him. Section 21, Article VII of the 1987 Constitution provides that no treaty
or international agreement shall be valid and effective unless concurred in by
at least two-thirds of all the Members of the Senate.
Petitioners arguments equate the signing of the treaty by the Philippine
representative with ratification. It should be underscored that the signing of the
treaty and the ratification are two separate and distinct steps in the treaty-
making process. The signature is primarily intended as a means of
authenticating the instrument and as a symbol of the good faith of the parties. It
is usually performed by the states authorized representative in the diplomatic
mission. Ratification, on the other hand, is the formal act by which a state
confirms and accepts the provisions of a treaty concluded by its representative.
It is generally held to be an executive act, undertaken by the head of the state
or of the government.
Petitioners submission that the Philippines is bound under treaty law and
international law to ratify the treaty which it has signed is without basis. The
signature does not signify the final consent of the state to the treaty. It is the
ratification that binds the state to the provisions thereof. In fact, the Rome
Statute itself requires that the signature of the representatives of the states be
subject to ratification, acceptance or approval of the signatory states.
Ratification is the act by which the provisions of a treaty are formally confirmed
and approved by a State. By ratifying a treaty signed in its behalf, a state
expresses its willingness to be bound by the provisions of such treaty. After the
treaty is signed by the states representative, the President, being accountable
to the people, is burdened with the responsibility and the duty to carefully study
the contents of the treaty and ensure that they are not inimical to the interest of
the state and its people. Thus, the President has the discretion even after the
signing of the treaty by the Philippine representative whether or not to ratify the
same. The Vienna Convention on the Law of Treaties does not contemplate to
defeat or even restrain this power of the head of states. If that were so, the
requirement of ratification of treaties would be pointless and futile. It has been
held that a state has no legal or even moral duty to ratify a treaty which has
been signed by its plenipotentiaries.
It should be emphasized that under our Constitution, the power to ratify is
vested in the President, subject to the concurrence of the Senate. The role of
the Senate, however, is limited only to giving or withholding its consent, or
concurrence, to the ratification.[20] Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it.
BAYAN VS ZAMORA G. R. No. 138570 October 10, 2000
Facts:
The United States panel met with the Philippine panel to discussed, among
others, the possible elements of the Visiting Forces Agreement (VFA). This
resulted to a series of conferences and negotiations which culminated on
January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the
VFA, which was respectively signed by Secretary Siazon and United States
Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27,
1999, the senate approved it by (2/3) votes.
Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987
constitution is applicable and not Section 21, Article VII.
Following the argument of the petitioner, under they provision cited, the
foreign military bases, troops, or facilities may be allowed in the Philippines
unless the following conditions are sufficiently met: a) it must be a treaty, b) it
must be duly concurred in by the senate, ratified by a majority of the votes cast
in a national referendum held for that purpose if so required by congress, and
c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is applicable
so that, what is requires for such treaty to be valid and effective is the
concurrence in by at least two-thirds of all the members of the senate. Issue:
Is the VFA governed by the provisions of Section 21, Art VII or of Section 25,
Article XVIII of the Constitution? Held:
Section 25, Article XVIII, which specifically deals with treaties involving foreign
military bases, troops or facilities should apply in the instant case. To a certain
extent and in a limited sense, however, the provisions of section 21, Article VII
will find applicability with regard to the issue and for the sole purpose of
determining the number of votes required to obtain the valid concurrence of the
senate.
The Constitution, makes no distinction between transient and permanent. regardless of subject matter, coverage, or particular designation or appellation,
We find nothing in section 25, Article XVIII that requires foreign troops or
facilities to be stationed or placed permanently in the Philippines.
It is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive
agreement is as binding as a treaty.
EXECUTIVE SUMMARY
The Visiting Forces Agreement, for which Senate concurrence was sought and
received on May 27, 1999, is the subject of a number of Constitutional
challenges.
Issue 1: Do the Petitioners have legal standing as concerned citizens,
taxpayers, or legislators to question the constitutionality of the VFA?
Petitioners Bayan Muna, etc. have no standing. A party bringing a suit
challenging the Constitutionality of a law must show not only that the law is
invalid, but that he has sustained or is in immediate danger of sustaining some
direct injury as a result of its enforcement, and not merely that he suffers
thereby in some indefinite way. Petitioners have failed to show that they are in
any danger of direct injury as a result of the VFA. As taxpayers, they have
failed to establish that the VFA involves the exercise by Congress of its taxing
or spending powers. A
A taxpayers suit refers to a case where the act complained of directly involves
the illegal disbursement of public funds derived from taxation. Before he can
invoke the power of judicial review, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure of money raised by
taxation and that he will sustain a direct injury as a result of the enforcement of
the questioned statute or contract. It is not sufficient that he has merely a
general interest common to all members of the public. Clearly, inasmuch as no
public funds raised by taxation are involved in this case, and in the absence of
any allegation by petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to assail the
legality of the VFA. Similarly, the petitioner-legislators (Tanada, Arroyo, etc.) do
not possess the requisite locus standi to sue.
In the absence of a clear showing of any direct injury to their person or to the
institution to which they belong, they cannot sue.
The Integrated Bar of the Philippines (IBP) is also stripped of standing in these
cases. The IBP lacks the legal capacity to bring this suit in the absence of a
board resolution from its Board of Governors authorizing its National President
to commence the present action. Notwithstanding, in view of the paramount
importance and the constitutional significance of the issues raised, the Court
may brush aside the procedural barrier and takes cognizance of the petitions.
Issue 2: Is the VFA governed by section 21, Art. VII, or section 25, Art. XVIII of
the Constitution?
Section 25, Art XVIII, not section 21, Art. VII, applies, as the VFA involves the
presence of foreign military troops in the Philippines. The Constitution contains
two provisions requiring the concurrence of the Senate on treaties or
international agreements.
Section 21, Article VII reads: [n]o treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the Members
of the Senate. Section 25, Article XVIII, provides:[a]fter the expiration in 1991
of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State.
Section 21, Article VII deals with treaties or international agreements in
general, in which case, the concurrence of at least two-thirds (2/3) of all the
Members of the Senate is required to make the treaty valid and binding to the
Philippines. This provision lays down the general rule on treaties. All treaties,
requires the concurrence of the Senate to be valid and effective. In contrast,
Section 25, Article XVIII is a special provision that applies to treaties which
involve the presence of foreign military bases, troops or facilities in the
Philippines.
Under this provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional requirements and to
consider the agreement binding on the Philippines. Sec 25 further requires that
foreign military bases, troops, or facilities may be allowed in the Philippines
only by virtue of a treaty duly concurred in by the Senate, ratified by a majority
of the votes cast in a national referendum held for that purpose if so required
by Congress, and recognized as such by the other contracting state. On the
whole, the VFA is an agreement which defines the treatment of US troops
visiting the Philippines. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the US and RP government
in the matter of criminal jurisdiction, movement of vessel and aircraft, import
and export of equipment, materials and supplies. Undoubtedly, Section 25,
Article XVIII, which specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant case. To a certain extent,
however, the provisions of Section 21, Article VII will find applicability with
regard to determining the number of votes required to obtain the valid
concurrence of the Senate. It is specious to argue that Section 25, Article XVIII
is inapplicable to mere transient agreements for the reason that there is no
permanent placing of structure for the establishment of a military base. The
Constitution makes no distinction between transient and permanent. We
find nothing in Section 25, Article XVIII that requires foreign troops or facilities
to be stationed or placed permanently in the Philippines. When no distinction is
made by law; the Court should not distinguish. We do not subscribe to the
argument that Section 25, Article XVIII is not controlling since no foreign
military bases, but merely foreign troops and facilities, are involved in the VFA.
The proscription covers foreign military bases, troops, or facilities. Stated
differently, this prohibition is not limited to the entry of troops and facilities
without any foreign bases being established. The clause does not refer to
foreign military bases, troops, or facilities collectively but treats them as
separate and independent subjects, such that three different situations are
contemplated a military treaty the subject of which could be either (a)
foreign bases, (b) foreign troops, or (c) foreign facilities any of the three
standing alone places it under the coverage of Section 25, Article XVIII.
Issue 3: Was Sec 25 Art XVIIIs requisites satisfied to make the VFA effective?
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in
the country, unless the following conditions are sufficiently met: (a) it must be
under a treaty; (b) the treaty must be duly concurred in by the Senate and,
when so required by Congress, ratified by a majority of the votes cast by the
people in a national referendum; and (c) recognized as a treaty by the other
contracting state.
There is no dispute as to the presence of the first two requisites in the case of
the VFA. The concurrence handed by the Senate through Resolution No. 18 is
in accordance with the Constitution, as there were at least 16 Senators that
concurred. As to condition (c), the Court held that the phrase recognized as a
treaty means that the other contracting party accepts or acknowledges the
agreement as a treaty. To require the US to submit the VFA to the US Senate
for concurrence pursuant to its Constitution, is to accord strict meaning to the
phrase. Well-entrenched is the principle that the words used in the Constitution
are to be given their ordinary meaning except where technical terms are
employed, in which case the significance thus attached to them prevails. Its
language should be understood in the sense they have in common use. The
records reveal that the US Government, through Ambassador Hubbard, has
stated that the US has fully committed to living up to the terms of the VFA. For
as long as the US accepts or acknowledges the VFA as a treaty, and binds
itself further to comply with its treaty obligations, there is indeed compliance
with the mandate of the Constitution.
Worth stressing too, is that the ratification by the President of the VFA, and the
concurrence of the Senate, should be taken as a clear and unequivocal
expression of our nations consent to be bound by said treaty, with the
concomitant duty to uphold the obligations and responsibilities embodied
thereunder. Ratification is generally held to be an executive act, undertaken by
the head of the state, through which the formal acceptance of the treaty is
proclaimed. A State may provide in its domestic legislation the process of
ratification of a treaty. In our jurisdiction, the power to ratify is vested in the
President and not, as commonly believed, in the legislature. The role of the
Senate is limited only to giving or withholding its consent, or concurrence, to
the ratification. With the ratification of the VFA it now becomes obligatory and
incumbent on our part, under principles of international law (pacta sunt
servanda), to be bound by the terms of the agreement. Thus, no less than Section
2, Article II declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations.