Documentos de Académico
Documentos de Profesional
Documentos de Cultura
A. Bernas
B. Higgins
A. Bernas
[General Rule]
Section 21. 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.
Art. 8, Sec. 4
[Exception]
Art. 18, Section 25. After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United States of
America concerning military bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognised as a treaty by the
other contracting State.
Case law:
Bayan v. Zamora - VFA CASE
Section 25, Article XVIII disallows foreign military bases, troops,
or facilities in the country, unless the following conditions are
sufficiently met, viz:
(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) recognised as a treaty by the other contracting state.
The phrase recognised as a treaty means that the
other contracting party accepts or acknowledges the
agreement as a treaty.
Moreover, 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.
A treaty, as defined by the Vienna Convention on the
Law of
Treaties, is an international instrument concluded
between States in written form and governed by
international law, whether embodied in a single
instrument or in two or more related instruments, and
whatever its particular designation.
Lim v. Executive Secretary - Balikatan case
The Balikatan Exercises TOR does not need concurrence by
Senate, it being an implementation of an existing treaty
The VFA permits United States personnel to engage, on an
impermanent basis, in activities," the exact meaning of which
was left undefined. The expression is ambiguous, permitting a
wide scope of undertakings subject only to the approval of the
Philippine government.
The sole encumbrance placed on its definition is couched
in the negative, in that United States personnel must
abstain from any activity inconsistent with the spirit of this
agreement, and in particular, from any political activity.
Pimentel v. Executive Secretary - President cannot be compelled to
submit treaty to Senate for ratification
W/N the Executive Secretary and the Department of Foreign
Affairs 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 NO.
The signing of the treaty and the ratification are two
separate and distinct steps in the treaty-making process.
Ratification is generally held to be an executive act,
undertaken by the head of the government.
EO 459 issued by President Ramos provides the guidelines
in the negotiation of international agreements and its
ratification. It mandates that after the treaty has been
signed by the Philippine representative, it shall be
transmitted to the DFA. The DFA shall then prepare the
ratification papers and forward the signed copy of the treaty
to the President for ratification. After the President has
ratified the treaty, the DFA shall submit the same to the
Senate for concurrence. Upon receipt of the concurrence of
the Senate, the Department of Foreign Affairs shall comply
with the provisions of the treaty to render it effective.
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.
Under our Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The
role of the Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification. Hence, it is
within the authority of the President to refuse to submit a
treaty to the Senate or, having secured its consent for its
ratification, refuse to ratify it. The decision is within the
competence of the President alone, which cannot be
encroached by this Court via a writ of mandamus.
Sps. Constantino v. Hon. Rosario - Debt-buyback scheme is within
the power of the President under Art 7, 20
The Financing Program extinguished portions of the countrys
pre-existing loans through either debt buyback or bond-
conversion.
The buyback approach essentially pre-terminated portions of
public debts while the bond-conversion scheme extinguished
public debts through the obtention of a new loan by virtue of a
sovereign bond issuance, the proceeds of which in turn were
used for terminating the original loan.
"The President may contract or guarantee foreign loans in
behalf of the Republic of the Philippines with the prior
concurrence of the Monetary Board and subject to such
limitations as may be provided under law. The Monetary
Board shall, within thirty days from the end of every quarter
of the calendar year, submit to the Congress a complete
report of its decisions on applications for loans to be
contracted or guaranteed by the government or
government-owned and controlled corporations which
would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.
Abaye v. Ebdane - Loans Agreement with Japan
Loan Agreement No. PH-P204 was executed by and between the
JBIC and the Philippine Government pursuant to the Exchange of
Notes executed by and between Mr. Yoshihisa Ara, Ambassador
Extraordinary and Plenipotentiary of Japan to the Philippines, and
then Foreign Affairs Secretary Siazon, in behalf of their respective
governments.
Under the circumstances, the JBIC may well be considered
an adjunct of the Japanese Government. Further, Loan
Agreement No. PH-P204 is indubitably an integral part of
the Exchange of Notes. It forms part of the Exchange of
Notes such that it cannot be properly taken independent
thereof.
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.
Treaties, agreements, conventions, charters, protocols,
declarations, memoranda of understanding, modus vivendi
and exchange of notes all refer to international
instruments binding at international law."
An exchange of notes is considered a form of an executive
agreement, which becomes binding through executive action
without the need of a vote by the Senate or Congress.
Pharmaceutical v. DOH - Milk Code
WHA resolutions are not part of the law of the land
The transformation method requires that an international
law be transformed into a domestic law through a
constitutional mechanism such as local legislation.
The incorporation method applies when, by mere
constitutional declaration, international law is deemed to
have the force of domestic law.
Under Article 23 of WHOs Constitution, recommendations
of the WHA do not come into force for members, in the
same way that conventions or agreements under Article 19
and regulations under Article 21 come into force. Article 23
of the WHO Constitution reads: Under Art. 23. They can
only make recommendations. The absence of a provision
in Article 23 of any mechanism by which the
recommendation would come into force for member states
is conspicuous.
Thus, only the provisions of the Milk Code, but not those of
subsequent WHA Resolutions, can be validly implemented by the
DOH through the subject RIRR.
Province of North Cotabato v. GRP Panel - MOA-AD
MOA-AD between GRP and MILF is not a treaty
While there were States and international organizations
involved, in the negotiation and projected signing of the
MOA-AD, they participated merely as witnesses or, in the
case of Malaysia, as facilitator. Mere fact that the peace
settlement is signed by representatives of states and
international organisations does not mean that the
agreement is internationalized so as to create obligations in
international law.
Since the commitments in the MOA-AD were not
addressed to States, not to give legal effect to such
commitments would not be detrimental to the security of
international intercourse - to the trust and confidence
essential in the relations among States.
BUT while the MOA-AD would not amount to an
international agreement, respondents act of guaranteeing
amendments is, by itself, already a constitutional violation
that renders the MOA-AD fatally defective.
Bayan Muna v. Romulo - Validity of Non-Surrender Agreement with
US
The Agreement is an Exchange of Notes constituting an
international governmental agreement. It is an international
agreement but not in treaty form. It does not contravene the
Rome Statute because the ICC recognises the primacy of
international agreements. Primary jurisdiction rests upon the state
and secondarily with the ICC
Ambassador Ricciardone sent a US Embassy Note to the
Department of Foreign Affairs (DFA) proposing the terms of
the Non-surrender Bilateral Agreement (Agreement)
between the USA and the RP. The RP, represented by DFA
Secretary Ople accepted the US proposals embodied
under the US Embassy Note adverted to.
It provides, among others that: Persons of one Party
present in the territory of the
other shall not, absent the express consent of the
first Party, 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
Ambassador Ricciardone replied in a letter 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.
Article 2 of the Vienna Convention on the Law of Treaties
defines a treaty as
an international agreement concluded between
states in written form and governed by international
law, whether embodied in a single instrument or in
two or more related instruments and whatever its
particular designation."
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 require
legislative concurrence and are usually less
formal and deal with a narrower range of
subject matters than treaties.
China National Machinery v. Santamaria
A contract entered into between non-state entities does not
constitute an executive agreement as in this case, NLRC and
China National Machinery
In Bayan Muna v. Romulo, this Court held that an executive
agreement is similar to a treaty, except that the former:
(a) does not require legislative concurrence;
(b) is usually less formal; and
(c) deals with a narrower range of subject matters.
Despite these differences, to be considered an executive
agreement, the following three requisites provided under
the Vienna Convention must nevertheless concur:
(a) the agreement must be between states;
(b) it must be written; and
(c) it must be governed by international law. The first
and the third requisites do notobtain in the case at
bar.
The Contract Agreement was not concluded between the
Philippines and China, but between Northrail and CNMEG.
By the terms of the Contract Agreement, Northrail is a
GOCC, while CNMEG is a corporation duly organised and
created under the laws of the Peoples Republic of
China.Thus, both Northrail and CNMEG entered into the
Contract Agreement as entities with personalities distinct
and separate from the Philippine and Chinese
governments, respectively.
Reservations
Definition
reservation is a unilateral statement made by a State when
signing, ratifying, accepting, approving or acceding to a treaty,
Reservation whereby it purports to exclude or to modify the legal effect of
when allowed certain provisions of the treaty in their application to that State.
effect of absence of reservation meant only for multilateral treaties
clause
legal effect to the parties
interpretative declarations refers to how a state
(note: rome statute does not allow understands its adoption of the treaty
reservation a state which has made a reservation which has been
objected to by one or more parties to a Convention can be
regarded as a party to the convention if the reservation is
compatible with the object and purpose of the Convention
GR: A state may, when signing, ratifying, accepting, approving, or
acceding to a treaty, formulate a reservation
Exceptions
1. reservation is prohibited by treaty
2. treaty provides that only specified reservations are allowed
3. reservation is incompatible with the object and purpose of
the treaty
Reservations to the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide
The following questions were submitted to the UN:
1. can the reserving state be regarded as being a party
to the Convention while still maintaining its
reservation if the reservation is objected to by some
of the members of the Convention?
ANS: [Yes, only if reservation is compatible
with the convention]
A State which has made a reservation
objected to by some of the parties to
the Convention, can be regarded as
being a party to the Convention of the
reservation is compatible with the object
and purpose of the Convention;
otherwise, it cannot be regarded as a
party to the Convention
2. If yes, what is the effect of the reservation as
between the reserving state and
1. the parties that objected
ANS
the objecting State can consider
the reserving State NOT a party
to the Convention
2. the parties that accepted
ANS
the accepting State can consider
the reserving State a party to the
Convention
3. What is the legal effect if an objection to a
reservation is made
1. by a signatory who has not yet ratified
ANS
can have legal effect of (1) only if
it has ratified. before ratification,
no effect
2. by a state entitled to sign or accede but has
not yet done so
ANS
no legal effect
Philippines and 1982 Convention on the Law of the Sea
"archipelagic waters" found in the CLOS conflicts with Art. 1 of
Phil Const. which claims that waters connecting the islands are
"internal waters", hence, upon its ratification the Philippines made
several reservations.
The USSR filed a formal protest against the Philippine reservation
saying that the CLOS provision applies only to areas which had
not previously been considered as internal waters, referring to the
1973 Const., pre-dating the CLOS, which classified as internal
waters what is now referred to as archipelagic waters.
Entry into force of treaties
Treaties enter into force on the date agreed upon by the parties
Art. 24. Entry into force:
A treaty enters into force in such manner and upon such date as
agreed upon [stipulation]
In the absence of agreement, as soon as consent to be bound
subsidiary level to be applied
Know when to give special meaning
to the terms
The third source of international law are the general principles of law recognized by
civilized nations.
This actually refers to principles of municipal law common to the legal systems
of the world.
Bernas: International and Municipal Law
When international law and domestic law conflict:
1. according to dualist or pluralist theory (prevailing practice), municipal
law must prevail.
dualists think that municipal law governs relations between
individual and the state, while international law regulates relations
between states
2. according to the Monistic Theory or Monism:
1. First theory (inverted Monism), municipal law prevails
2. Second theory, international law prevails
3. Harmonization - the 2 legal systems are harmonized and given effect
Municipal law in international law
Art. 38 recognizes the common teachings of domestic law as part of
international law
International law in domestic law
Two theories:
1. transformation
for international law to be binding and given effect within a
State, there must be legislation
2. incorporation
international law is adopted as part of the law of the land
Philippines:
for treaties, transformation
for CIL, incorporation
Mejojfv v. Director of Prisons
A detained Russian national was ordered released
on bail by the SC when after 2 years, the deportation
order could not be carried out because no ship or
country would take him. SC applied UDHR, among
others, in justifying the order.
Art. 2 of UDHR says that everyone has the right to
an effective remedy by the competent nationals for
acts violating the fundamental rights granted him by
the Constitution or by law.
Agustin v. Edu
SC applied the Vienna Convention on Road Signs
and Signals in settling the dispute between the
parties.
JBL Reyes v. Bagatsing
the SC applied the doctrine of immunity of a foreign
state from suit as a principle of international law
Rules on conflict between a treaty and law:
It depends on which court is deciding:
1. international court - will uphold treaty obligation in general
2. domestic court - will uphold local laws
Specific situations of conflict:
1. treaty v. constitution
GR: VCLT provides that a party may not invoke the
provisions of a municipal law as justification to
perform a treaty
Exception:
Art. 46. VCLT provides that when
constitutional violation is manifest and
concerns a rule of internal law of fundamental
importance, state may deviate from treaty
obligation
under the dualist theory, unconstitutionality of a
treaty is purely a domestic matter, and that State
faces risk of international sanction
2. treaty v. domestic legislation
when 2 instruments relate to the same subject and
are irreconcilable, the later in date shall control in the
domestic sphere, provided that the treaty stipulation
is self-executing.
However, a treaty, even if contrary to a later statute,
is nevertheless binding in international law.
General principles of international law
International status of South-West Africa, Opinion of Sir
Arnold McNair
Facts:
The territory of SWA was formerly part of the
German territory during WW1. Through the Treaty of
Versailles, the Allies obtained possession over it and
was placed under a Mandate conferred upon the
Union of South Africa which was to have full power
of administration and legislation over said territory.
This duty was given to the Union by the League of
Nations. After WW2 and the dissolution of the
League, the Union sought the integration of the
Territory in the Union claiming that its mandate had
already lapsed. The UN refused to consent but
instead invited the Union to place the Territory under
Trusteeship in accordance with the UN Charter. The
Union applied for an advisory opinion with the ICJ
basically asking what is the international status of
SWA.
Issue:
What is the international status of SWA
Held:
The Union, including its functions and duties, and its
mandate continue to exist despite the dissolution of
the League. The ICJ applied the principles of trust
in civil law in determining the obligations of the
Union to the Territory. It ruled that the Union, as
trustee state, exercises limited control based on
confidence and conscience and cannot carry out the
trust or mission for its own benefit. Any attempt to
absorb the property entrusted to them shall be
illegal.
Diversion of Water from the River Meuse
Facts:
Netherlands complained that certain canals
constructed by Belgium were in violation of an
agreement in that the construction would alter the
water level and rate of flow of the Meuse River.
Netherlands invoked a treaty. Belgium
counterclaimed based on the construction of a lock
by the Netherlands at an earlier time. Belgium
invoked nothing.
Held:
ICJ dismissed both the claim and the counterclaim,
holding that they can both do whatever they want but
only within their own territories without causing
damage to the other. A certain Justice Hudson, in his
concurring opinion, applied the principles of equity.
He said that when 2 states undertake reciprocal
obligations, a non-performing state should not
take advantage of the non-performance of the
other. that this is based on equitable
principles/maxims such as "equality is equity",
"he who seeks equity must do equity". He also
says that the ICJ has the power to rule based on
equity by being given the power by the Statute to
"decide cases ex aequo et bono"
equity - law cannot cover every possible
situation, so cases may be decide based on
equitable principles
ex aequo et bono - ICJs power to decide a case
equitably outside the rules of law.
Other examples of general principles of law: [PURLEIGH PREP
HEARD PP]
principles of liability
responsibility
reparation
unjust enrichment
property
expropriation
indemnity
good faith
estoppel
prescription
presumption
human rights
denial of justice
right of passage
error
administrative law
procedure
humanity
pacta sunt servanda
Application of international law by domestic courts
Filartiga v. Pena-Irala
Facts:
Filartiga was kidnapped and tortured to death in
Paraguay by Pena-Irala who was at that time
Inspector General of the Police. The NY Court
claimed jurisdiction based on the Alien Tort Statute
which allowed aliens to sue and have rights enforced
in US courts for acts committed outside the US..
Issue:
W/N torture, despite being done under color of
official authority, violates international law - Yes
Held:
Yes. The SC held that the prohibition not only
was part of CIL, but was also part of the UDHR.
Members of the UN cannot claim ignorance of
what human rights they promised the Charter.
The UDHR is an authoritative statement of the
international community. It creates an expectation of
adherence. The international consensus surrounding
torture has been manifested in numerous treaties
and is also reflected in modern municipal law.
Torture is prohibited in the constitutions of over 55
nations including the US and Paraguay.
Trendtex Trading Corp v. Central Bank of Nigeria
Facts:
The Central Bank of Nigeria opened a LOC in favor
of Trendtex for the purchase of cement. The cement
was shipped but for whatever reason, Nigeria
refused to pay invoking state immunity.
Issue:
W/N Nigeria can claim immunity - No
Held:
No. An English court tried the case. In holding
Nigeria liable, it held that, under the Law Merchant,
letters of credit must be honored. The court deemed
international law to be incorporated into the law of
the land automatically, except if it conflicted with the
domestic system.
The Philippines adopts the generally accepted principles of international
law as part of the law of the land.
This refers only to CIL and other general principles of law, NOT
treaties.
Case Law:
Tanada v. Angara - GATT-WTO
Sovereignty is limited by international law and treaties
By the doctrine of incorporation, the country is bound
by generally accepted principles of international law,
which are considered to be automatically part of our
own laws.
One of the oldest and most fundamental rules in
international law is pacta sunt servanda
international agreements must be performed in good
faith. "A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on
the parties . . . A state which has contracted valid
international obligations is bound to make in its
legislations such modifications as may be necessary
to ensure the fulfilment of the obligations
undertaken.
By their voluntary act, nations may surrender some
aspects of their state power in exchange for greater
benefits granted by or derived from a convention or
pact.
The sovereignty of a state therefore cannot in fact
and in reality be considered absolute. Certain
restrictions enter into the picture:
(1) limitations imposed by the very nature of
membership in the family of nations and
(2) limitations imposed by treaty stipulations
Mijares v. Ranada - P2B Hawaii judgment
Recognition and enforcement of judgments is among the
generally accepted principles of international law
Bernas
Subjects of international law
Subjects of international law are entities endowed with rights and
obligations in the international order and possessing the capacity to take
certain kinds of action on the international plane. They are those who
have international personality.
Objects of international law are those who indirectly have rights under or
are beneficiaries of international law through subjects of international
law.
The subjects of law are not necessarily identical in their nature or in the
extent of their rights, and their nature depends upon the needs of the
community.
States: Commencement of their existence
Under the Montevideo Convention of 1933, a state as a person of
international law should possess:
1. a permanent population
2. defined territory
3. government
4. capacity to enter into relations with other States
Characteristics of Statehood
Article 1 of the Convention on Rights and Duties of States (1933
Montevideo) provides for the qualifications of a State:
1. permanent population - community of persons sufficient in
number and capable of maintaining the permanent existence of
the community and held together by a common bond of law
2. defined territory - even if boundaries of the state have not yet
been settled, if one or more of its boundaries are disputed, or if
some its territories are claimed by another state, the entity does
not cease to be a state
3. government - that institution or aggregate of institutions by which
an independent society makes and carries out those rules of
action which are necessary to enable men to live in a social state,
or which are imposed upon the people forming that society by
those who possess power or authority of prescribing them
4. capacity to enter into relations with other states - means
sovereignty which is dependent on recognition.
Self-determination the right to freely determine their
political status and freely pursue their economic, social and
cultural development.
Self-determination has 2 levels:
1. Establishment of new states
claim by a group within an established state to
break away and form a new entity
2. Does not establish a new state
claims to be free from external coercion, claim
to overthrow effective rulers and establish a
new government (assertion of the right of
revolution), or claim of people within an entity
to be give autonomy.
Case law:
Case concerning rights of national of the US in Morocco
Facts:
This is a case concerning the rights of US Nationals in Morocco,
filed by France against the US. A certain Residential Decree was
promulgated in the French Zone of Morocco which subjected
imports from the US to a system of licensing control. It
discriminated against US and in favor of France.
Held:
This differential treatment is not compatible with the Act of
Algeciras.
For purposes of PIL discussion, Morocco, despite its status as
being under the Protectorate which is France, has retained its
international personality as a State. Therefore, it is entitled to
economic liberty and equality under the Act of Algeciras conferred
upon states.
Report of the fifth committee of First Assembly of the League of Nations,
with reference to Admission of the League of Liechtenstein
The Government of the Principality of Liechtenstein has been
recognized de jure by many States and it possesses a stable
Government and fixed frontiers. Juridically, Liechtenstein is a sovereign
State, but by reason of her limited area, small population and her
geographical position, she has chosen to depute to others some of the
attributes of sovereignty. The League of Nations denied its admission
because it could not discharge all the international obligations which
would be imposed on her by the Covenant. But she is still a State.
Recognition of states
when State A recognises State B, it means that both recognize the capacity of
each other to exercise all the rights belonging to statehood. It is an
acknowledgment of the capacity of an entity to exercise rights belonging to
statehood.
Can an entity claim to be a state before it is recognized by other states? 2
theories:
1. Declaratory theory
recognition is merely declaratory of the existence of the state and
that its being a state depends upon its possession of the required
elements and not upon recognition
2. Constitutive theory
recognition constitutes a state. it is what makes a state a state
and confers legal personality on the entity. This recognizes that
States may decide to recognize an entity as a state even if it does
not have all the elements of state as defined under the
Montevideo Convention
Recognition of governments
It means that the act of acknowledging the capacity of an entity to exercise
powers of government of a state.
If a change in government is brought about through ordinary constitutional
procedure, recognition by others comes as a matter of course.
The problem is acute when a new government within a state comes into
existence through extra-constitutional means.
Consequences of Recognition or Non-recognition
A government, once recognized, gains increased prestige and stability. The
doors of funding agencies are opened, loans are facilitated, access to foreign
court and immunity from suit are gained.
Non-recognition bars an entity from all these benefits.
Recognition is terminated when another regime is recognized.
Case Law:
Tinoco Arbitration
Facts:
The Government of Costa Rica, under President Gonzalez, was
overthrown by Tenneco. Tennecos government entered into
certain contracts with British Corporations. After Tennecos
retirement, the old constitution was restored and a Law of Nullities
was passed annulling the contract entered into during the
Tenneco regime. Britain sought to enforce one contract a loan
obtained by Tinoco claiming that the Tinoco Government was a
de facto government. The new government claims that is not
bound because they were contracted by a government which was
contrary to their Constitution and hence could not be a de facto
government.
Issue:
What was the status of the Tinoco regime in international law
Held:
Although said regime was not recognized by other nations, it
had a de facto character which is juridically cognizable. A de
facto existence may affect private rights and obligations.
It is settled under the rule on continuity of states that a state is
bound by the agreements entered into by its previous
governments that have ceased to exist. However, it appears that
the loans extended were actually for the Tinocos flight expenses.
The new government cannot be held responsible for the money
paid to him for such a purpose. It is more properly claimable
against Tinocos estate. The Law of Nullities will therefore not
injure Great Britain.
Succession of States
States do not last forever. State succession can arise as a result of: [MADDS]
1. decolonization,
2. dismemberment of an existing state,
3. secession,
4. annexation and merger.
3 views:
1. new state succeeds to NO rights or obligations of the old state, but
begins with tabula rasa
2. new state assumes all obligations and rights of old state
3. succession has varying effects on state rights and duties
Succession to:
1. territory
for particular property, new state assumes territory of old state
for state property, subject to agreement between the old and new
states, title passes as follows:
1. where part of the territory becomes territory of another
state, property of the old state in that territory passes to the
new state
2. where the old state is absorbed by a new state, all property
of the old state passes to the new state
3. where part of the old state becomes a new state, property
of the old located in the territory of the new passes to the
new state.
2. public debt
subject to agreement between the states concerned,
responsibility for the public debt of the old remain with the old
state, except:
1. where part of the territory of the old state becomes territory
of the new state, local public debt under contracts relating
to that territory are transferred to the new
2. where old state absorbed by new state, all are transferred
to new state
3. where part of a state becomes a separate state, local
public debt relating to the territory of the new state is
transferred to the new state
3. treaties
1. when part of the territory of the old becomes territory of the new
state, international agreements of the old regarding the said
territory cease. the 3rd party may claim rebus sic stantibus
2. when old is absorbed by new, all international agreements are
terminated
3. when part of the old becomes a new state, the new state will not
succeed to international agreements unless it accepts such
agreements and the other parties thereto agree or acquiesce.
clean slate theory
4. pre-existing boundary and other territorial agreements continue to
bind notwithstanding. uti possdetis.
Fundamental rights of states
Independence
Independence is the capacity of a state to provide for its own well-being
and development free from the domination of other states, provided it
doe not impair legitimate rights. As a right, it is the right to exercise
within its portion of the globe, to the exclusion of other, the functions of a
state.
Independence results to other rights such as jurisdiction over its territory
and permanent population, right to self-defense and the right to legation
Equality
Equality of legal rights irrespective of the size or power of the state
One state, one vote
Peaceful co-existence
includes mutual respect for each others territorial integrity and
sovereignty, mutual non-aggression, non-interference in each others
affairs and the principle of equality.
Some incomplete subjects
1. Protectorates
dependent states which have control over their internal affairs but whose
external affairs are controlled by another state.
2. Federal state
union of previously autonomous entities.
3. Mandated and Trust territories
mandated territories were territories placed by the LoN under one of the
Allies. The Mandate system was replaced by the trusteeship system
after WWII
Examples: Carolines, Marianas and Marshall Islands were placed under
the trusteeship of the US
4. Taiwan
5. The Sovereign Order of Malta
6. The Holy See and Vatican City
has no permanent population
Insurgents
Protocol II
The only international agreement exclusively regulating the conduct of
parties in a non-international armed conflict is the 1977 Protocol II to the
1949 Geneva Conventions.
A non-international armed conflict is one which takes place in the
territory of a High Contracting Party between its armed forces and
dissident armed forces or other organized armed groups which, under
responsible command, exercise such control over a part of its territory
as to enable them to carry out sustained and concerted military
operations and to implement this Protocol.
For Protocol II to apply, the following must be present:
1. the armed dissidents must be under responsible command
2. they must exercise control over a part of its territory as to enable
them to carry out sustained and concerted military operations and
to implement this Protocol
NPA, MNLF and MILF are not covered; therefore, Common Article 3
applies, not Protocol II.
Insurgent groups which satisfy the requisites of Protocol II are
pre-statal entities possessing limited form of international
personality
State practice indicates 2 specific attributes of such personality:
1. they are recognized as having belligerent status against the de
jury government
2. they are seen as having treaty making capacity
Common Article 3
The 4 Geneva Conventions contain a common Article 3 which provides:
To this end, the following acts are and shall remain prohibited at any
time and in any place whatsoever with respect to the above- mentioned
persons:
(d) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording
all the judicial guarantees which are recognized as indispensable by
civilized peoples.
(2) The wounded and sick shall be collected and cared for.
The application of the preceding provisions shall not affect the legal
status of the Parties to the conflict.
Self-Determination
Self-determination the right to freely determine their political status and
freely pursue their economic, social and cultural development.
Self-determination has 2 levels:
1. Establishment of new states
claim by a group within an established state to break away and
form a new entity
2. Does not establish a new state
claims to be free from external coercion, claim to overthrow
effective rulers and establish a new government (assertion of the
right of revolution), or claim of people within an entity to be give
autonomy.
Case Law:
Declaration on the Granting of Independence to Colonial Territories and
Peoples
The General Assembly, bearing in mind the principles enshrined in the
UN Charter denounces colonialism as an affront to human rights and
worldwide development. It recognizes the necessity of brining to a
speedy and unconditional end colonialism in all its forms and
manifestations. It declares the following:
All peoples have the right to self-determination, by virtue of that
right they:
1. freely determine their political status and
2. freely pursue their economic, social and cultural
development
Western Sahara Case
Facts:
In 1844, Spain colonized Western Sahara. In 1966, pursuant to
the Declaration on the Granting of Independence to Colonial
Territories and Peoples, Western Sahara was to be decolonized.
However, Mauritania and Morocco are laying claim to some parts
of WS based on historic claims predating the colonization.
Issue:
What legal ties existed between Western Sahara, on the one
hand, and Mauritania and Morocco, on the other hand?
Held:
None. The principle of self-determination as a right of people and
its application for the purpose of bringing all colonial situations to
a speedy end were enunciated in the Declaration on the Granting
of Independence to Colonial Countries and Peoples.
The ultimate objective is for non-self-governing territories to
achieve independence pursuant to the desire and free will of its
peoples. This may be achieved in 3 ways:
1. Emergence as a sovereign independent State
2. Free association with an Independent State
3. Integration with an independent State
Any of these should be the result of freely expressed wishes of
the people acting with full knowledge of the change of their status
Current cases on secession and the concept of shared sovereignty:
Sudan - Machakos Protocol: plebiscitary consent
Northern Ireland - Good Friday Agreement: plebiscitary consent
Nepal Maoist - Power Sharing
Aceh (Indonesia) - limited autonomy
Quebec - attempt at a legislative vote to secede
Kosovo
Non-State Entities
1. The Commonwealth of Australia v. the State of New South Wales
Facts:
Australia sues one of its states, New South Wales, for torts
resulting from a collision of vessels. Wales claims it is immune
from suit because it is a sovereign state to be placed in the
same category as foreign states.
Held:
An Australian state is necessarily part of the territory of the
Commonwealth. It is not a foreign country. The people of NSW
are the very same people of Australia. They are but one people
with a common citizenship. Therefore, state immunity, and all
other privileges appurtenant thereto cannot be granted to NSW
under the pretext that it is a sovereign state.
2. Cultural Agreements between Quebec and France
Quebec is allowed to enter into such agreement due to the special
status accorded it under the Canadian Constitution
3. Mandate System
1. International Status of SWA - mandate created by League of
Nations elapsed when the League ceased to exist
Facts:
Germany renounced all rights to SWA through the
Versailles Treaty. Certain other territories as a
consequence of the war have ceased to be under the
sovereignty of their previous conquerors, but are still
incapable of self-government. By virtue of the Mandates
System created under the Covenant of the League of
Nations. In this case a tutelage was established for these
peoples, this tutelage entrusted to certain advanced
nations as Mandatories in behalf of the League. The
Union of South Africa became the Mandatory for SW Africa
exercising full powers of administration, subject to the
supervision of the Council of the League. The creation of
this new international institution did not involve any cession
of territory or transfer of sovereignty. Its object is to
promote the well-being of the inhabitants pursuant to the
sacred trust of civilization.
Issue:
did the mandate cease upon the dissolution of the league
of nations? Yes
Held:
Yes. But not the obligation arising from the sacred trust of
civilization which does not depend upon the existence of
the League.
2. Legal consequences for States of the continued presence of South
Africa in Namibia notwithstanding Security Council Resolution
The GA terminated the mandate of SWA and declared the
continued presence of South Africa in Namibia illegal. The
entry into force of the Charter of the UN created a
contractual relationship between the Mandatory States on
the one hand and the member states on the other.
Therefore, it only follows that when a party disowns or fails
to perform the obligations arising therefrom, then such
party cannot claim to retain such rights proceeding from the
agreement. In this case, South Africa was found to have
administered its mandate contrary to the international
agreements imposing its obligations as such, as well as
against the UN Declaration of Human Rights. It has failed
to ensure the moral and material well-being of the
inhabitants of Namibia. It has, in fact, disavowed the
Mandate. Such violations are a ground for termination.
4. Case of Belligerent Communities or Insurgent Groups and implications
for states like the Philippines, in re: MNLF/MILF and CPP/NPA/NDF -
obligations in the conduct of armed conflict
Even belligerent groups and insurgents assume certain obligations
under international law w/c among others, include obligations such as:
obligation to distinguish between combatants and non-
combatants
prohibition against attacks on civilians
prohibition against superfluous injury or inflicting unnecessary
suffering
obligations to refrain from treachery
obligation to respect medical and religious personnel
prohibition against use of certain forms of weapons
5. Case of indigenous peoples (autonomous regions) UN Declaration on
the Rights of IPs; no right of secession
1. International Organizations
United Nations
The UN came into being on October 24, 1945, when the UN Charter
came into force.
Admission to membership is governed by Art. 4:
The UN is a universal organization charged with peacekeeping
responsibilities, the development of friendly relations among
nations, the achievement of international cooperation in solving
international problems of an economic, social, cultural and
humanitarian character, and the promotion of human rights and
fundamental freedoms for all human beings without
discrimination. Article 1 of the Charter says that the UN can
include all other peace-loving states which accept the obligations
contained in the present Charter and, in the judgment of the
Organization, are able and will to carry out these obligations. As
new independent nations arise, the number of members continue
to grow.
Establishment, international personality, immunity
An international organization is an organization that is set up by treaty
among 2 or more states. It is different from non-governmental
organizations (NGO) which are set up by private persons. The
constituent document of international organizations therefore is a treaty.
For this reason, only states are members of international organizations.
Case Law:
Reparations for injuries suffered in the service of the UN
The question raised was: In the event that an agent of the UN, in
the performance of his duties, suffers injury in circumstances
involving the responsibilities of a State, does the UN, as an
Organization, have the capacity to bring a claim against the
government to obtain reparation?
Held:
Yes. The Charter necessarily implies this. In discharging its
functions, the UN may find it necessary to entrust its agent
with important missions. These agents myst be ensured of
effective protection. The members of the UN created an
entity possessing objective international personality and not
merely personality recognized by them alone.
The UN, due to the nature of its functions and purposes is
likewise entitled to bring an action as an international
person. The member states, by adopting the Charter,
intended to constitute the UN as not only a center for
harmonization, but rather as a political body w/ very
important political tasks thus clothing the UN w/
international personality. In fact, given the nature of its
functions, the only way by w/c the UN can operate in the
international plane is for it to possess international
personality.
Although international organizations have personality in international
law, their powers and privileges are by no means like those of states.
Their powers and privileges are limited by the instrument that created
them.
2. European Communities (EU)
European Economic Community Treaty, Art. 211
Article 211. In each of the Member States, the Community shall enjoy
the most extensive legal capacity accorded to legal persons under their
laws; it may, in particular, acquire or dispose of movable and immovable
property and may be a party to legal proceedings. To this end, the
Community shall be represented by the Commission.
EU, Maastricht Treaty, 1991
The two big advances of the Treaty of Maastricht were the commitment
of the EC to full Economic and Monetary Union (EMU), including a
timetable and provision for a European Central Bank, and the
establishment of the three-pillar structure outlined above.
Bernas
Individuals
Summary:
Classical Rule: Human Rights - human being as an object of
international law
Progression of the Rule: Human being as a subject of
international law in a limited way.
in the early development of international law, they were exclusively
under the control of states
in international law, they were objects or at least beneficiaries of
international law
Among the obligations of individuals are those arising from the
regulation of armed conflicts
There are also rules on international crimes such as:
crimes against humanity
genocide
aggression
terrorism
When individual rights are violated, individuals still have to rely on the
enforcement power of states. But some treaties have provided for the
right of individuals to petition international bodies alleging that a
contracting state has violated some of their human rights
Individuals possess international legal status
they have obligations they are associated with the international
community but they do not possess rights in relation to all
members of the community
they have procedural rights
Difference from states in international law:
states have legal personality proper; individuals have limited
locus standi
individuals have a limited array of rights (limited legal capacity)
Ebdalin on International Criminal Court
Unlike the ICJ where only states may be parties, the ICC has jurisdiction to try
individuals for the most serious crimes of international concern; no death
penalty can be imposed
Such crimes include:
1. genocide - of a particular race or culture
2. crimes against humanity - attack upon civilian populations w/ full
knowledge thereof
3. war crimes
4. aggression - not yet defined
it has jurisdiction only after entry into force of the Rome Statute
its jurisdiction is triggered by the referral to the Prosecutor of a:
1. state party
2. Security Council, or
3. motu proprio investigation by the Prosecutor
the general principles of criminal law are applied such as:
mens rea - guilty mind (malice)
nulla crimen - prohibition on ex post facto law
prospectivity
sources of law applied:
1. Statute
2. applicable treaties and rules of international law
3. general principles of law whenever applicable
no reservations are permitted
ICC only exercises complementary jurisdiction meaning it can only step in if
the national authorities are unable or unwilling to act.
the ICC will only be born when at least 60 states ratify the Rome statute;
presently, it only has 43 ratifying states although having 139 signatories.
Case Law:
Judgment of the Nuremberg Tribunal
Facts:
WW2 happened and now the german soldiers and officers who
took part in certain war crimes such as genocide are facing trial
before the Nuremberg Tribunal
Issue:
W/N an individual could be held personally responsible for
executing Acts of his State - Yes
Held:
International Law imposes duties and liabilities upon individuals
and states. Crimes against international law are committed by
men, not by abstract entities, and only by punishing the
individuals who commit such crimes can the provisions of
international law be enforced.
The Treaty of Versailles illustrates and enforces this view of
responsibility
The principle of International Law, which under certain
circumstances, protects the representatives of the State,
cannot be applied to acts which are condemned as criminal
by the IL.
The authors of these acts cannot shelter themselves
behind their official positions in order to be freed from
punishment in appropriate proceedings.
Article 7 of the Charter expressly declares that, The official
position of defendants in government departments shall not be
considered as freeing them from responsibility or mitigating
punishment.
The very essence of the Charter is that individuals have
international duties which transcend the national obligations of
obedience imposed by the individual state.
He who violates the laws of war cannot obtain immunity
while acting in pursuance of the authority of the State if the
State, in authorising such actions, moves outside its
competence under IL
Article 8 of the Charter declares, The fact that the defendant
acted pursuit to order of his Government or of a superior officer
shall not free him from responsibility, but may be considered in
mitigation of punishment.
The true test, which is found in varying degrees in criminal
law of most nations, is not the existence of the order, but
whether moral choice was in fact possible.
Acts deemed criminal in international law may be the subject
of an international claim
Recent development:
1. Ad hoc International Criminal Tribunals (Former Yugoslavia, Rwanda, and
Cambodia) they cover only crimes committed after entry into force, no death
penalty, no trial in absentia
2. Rome Statute of 1998
Individuals may be tried for genocide, crimes against humanity, war
crimes and crime of aggression (still undefined)
entry into force: July 2002
only covers crimes committed after entry into force
no death penalty
no trial in absentia
The Philippine law regarding international humanitarian law is RA 9851, signed
into law on December 12, 2009 before the ratification of the Rome Statute.
It defines punishable acts reflective of the relevant International
Humanitarian Law instruments, including concept of command
responsibility.
Direct v. Indirect obligations of corporations (Vasquez Article)
Considering that many transnational corporations have amassed great wealth
and power, and the fact that some small governments have been unable to
curb their potential human rights violations, the idea that corporations should
be made directly liable under IL has been advanced by many commentators.
Pursuant thereto, the Norms on the Responsibilities of Transnational
Corporations & Other Business Enterprises w/ Regard to Human Rights was
passed by the Su-Commission on the Promotion of Human Rights but was
shelved by the UN Commission on Human Rights due to the vehement
protests from the corporate sector. The author seems to disagree w/ the
wisdom of the proposition for the following reasons:
It represents a dramatic departure from the classical model where states are
the ones that assume obligations and responsibilities under international law.
This by itself is not sufficient reason not to depart from the classical model, but
there are more reasons.
Perhaps the best way to promote the protection of human rights among the
third world countries is for the said developing countries to agree upon certain
standards for multi-nationals operating w/in their respective territories. This
rule will be more consistent w/ the classical model, by imposing the obligations
upon the corporations indirectly. They can also focus on the elimination of
corruption and the promotion of democratic governance.
Corporations case law:
Dispute between Texaco Overseas Petroleum Co. / California Asiatic Oil
Co. and the Government of Libyan Arab Republic
Facts:
Libya issued decrees nationalising all the rights, interests and
properties of Texaco and California Asiatic that had been granted
to them under 14 deeds of concession.
Texaco and California requested arbitration and appointed an
arbitrator.
Since Libya refused to submit to arbitration, the ICJ appointed
Professor Dupuy as the sole arbitrator.
Issue:
W/N Libya is liable to the companies - Yes
Held:
Yes.
Dupuy ruled in against Libya, holding that the deeds of
concession were binding on all parties, that the Libyan
government breached its obligations under the deeds of
concession, and that the Libyan government was legally bound to
perform the deeds of concession according to their terms. The
deeds of concession contained a provision stating that the
concession would be governed by principles of Libyan law
common to principles of international law, and that in the
absence of such common principles, then they would be
governed by and in accordance with the general principles of
law, including those which have been applied by
international tribunals. The arbitrator concluded that the nature
of the deeds of concession agreement made it an
internationalized contract. He then considered the effect and
consequences of an internationalised contract on the rights of the
parties.
He discussed the meaning and scope of the internationalisation of
the contracts in dispute:
For some, the rules of economic international law concern
not only States but directly the individuals; because
economic and social progress has as its objective to assure
its direct application to those concerned
Individuals are directly the subjects of economic or social
international law
The tribunal shall consider only the concept, as established
today, that legal international capacity is not solely
attributable to a State and that international law
encompasses subjects of a diversified nature
Other subjects enjoy also limited capacities which
are assigned to specific purposes
The subjects of law, in any legal system, are not
necessarily identical in their nature or in the extent of their
rights and their nature depends on the needs of the
community
Stating that a contract between a state and a private
person falls within the 2 international legal order
means that for the purposes of interpretation and
performance of the contract, it should be recognised
that a private contracting party has specific
international capacities
But, unlike a State, the private person has only a
limited capacity and his quality as a subject of
international law does enable him only to invoke, in
the field of International Law, the rights which he
derives from the contract
Such recognition does not mean that the State
recognises its partner to such a contract as a subject
enjoying all rights and duties due to a State
The private partner is recognised as a subject of only
those rights and duties, as are embodied in the
contracts concerned
The international personality and capacity of the
individual depend on the recognition granted to them
by the State in its legal relations with him
The internationalisation of certain contracts entered
into between a state and a private person does not
tend to confer upon a private person competences
comparable to those of a State but only certain
capacities which enable him to act internationally in
order to invoke the rights which result to him from an
international contract
Province of North Cotabato v. GRP
Jurisdiction:
as concept, it is the capacity to:
1. legislate or to prescribe laws
2. enforce laws
as power, it is exercised over
1. persons
2. property
3. events
Bernas
Territory in international law
Territory, as an element of a state, means an area over which a state
has effective control
Control over territory is of the essence of a state. Although the exact
boundaries must be uncertain, there should be a definitive core over
which sovereignty is exercised.
acquisition of territory more precisely means acquisition of
sovereignty over territory.
sovereignty over territory is the legal condition for the inclusion of
such portion in the territory of any particular state.
Territory includes land, maritime areas, airspace and outer space.
Modes of acquisition over territory
Traditional modes of acquisition include: [PADoCCs]
1. discovery and occupation
2. prescription
3. cession
4. conquest and subjugation
5. accretion
Discovery and occupation
Occupation is the acquisition of terra nullius territory which prior to
occupation belonged to no state or abandoned by a prior occupant.
There is abandonment when the occupant leaves the territory with the
intention of not returning.
Elements: [DOE]
discovery
occupation
effective control
Prescription
requires effective control over territory which is not terra nullius for a
period longer than that required for occupation.
Cession
acquisition of territory through treaty
Ex. Versailles treaty ceding Philippines from Spain to US
cession by a conqueror is invalid, it being a de facto regime.
Conquest and Subjugation
BEFORE, acquiring property through conquest by means of force
necessitated that the war had ended either by a treaty or by indication
that all resistance had been abandoned. Also, there must be an
intention of acquiring the territory
Today, the 1970 Declaration of Principles of International Law
Concerning Friendly Relations and Cooperation among States provides,
The territory of a state shall not be the object of acquisition
by another state resulting from threat or use of force. No
territorial acquisition resulting from the use of threat or force
shall be recognised as legal
Accretion and Avulsion
acquisition of sovereignty over territory by operation of nature
accretion - gradual increase of territory by acts of nature
avulsion - sudden change resulting for instance form the action of a
volcano
Intertemporal Law
the generally accepted view is that the rules in effect at the time of the
acquisition should be applied.
Case Law:
Island of Palmas Case
Facts:
Palmas (or Miangas), is an island having a population of about
750 and was of little strategic or economic value. It lies between
Mindanao and Nanusa in the Netherlands Indies. It is within the
boundaries of the Philippines as defined by Spain and thus ceded
to the US.
Later, Leonard Wood, an American General, visited Palmas and
discovered that Netherlands also claimed sovereignty over the
island.
The US and Netherlands submitted the dispute to arbitration
before Max Huber, a Swiss Jurist.
US claim:
US bases their title on cession by Spain, who obtained title
through discovery. they claim that the existence of their
sovereignty over the island is confirmed by the Treaty of
Munster and Treaty of Versailles. They also claim that, by
virtue of the principle of contiguity, since Palmas forms a
geographical part of the Philippines, whoever has
sovereignty over the Philippines has sovereignty over
Palmas.
Netherlands claim:
Palmas formed part of the Native States of the Island of
Sangi which were connected with the Netherlands by
contracts of suzerainty which conferred upon the suzerain
such powers as would justify considering the vassal state
as part of its territory.
Netherlands, by virtue of such suzerain power, exercised
acts characteristic of state authority over Palmas in
different period of time starting from 1700s.
Issue:
W/N Palmas belonged to US territory or to Netherlands territory -
Netherlands
Held:
Netherlands
First, sovereignty, in relation between states, signifies
independence over a territory which is the right to exercise
therein, to the exclusion of other States, the functions of a
State.
The continuous and peaceful display (peaceful in relation to
other states) of territorial sovereignty is as good as title.
Territorial sovereignty involves the exclusive right to
display activities of a state. This right has a corollary
duty:
obligation to protect within the territory the rights of
other states together with the rights which each state
may claim for its nationals in foreign territory
Territorial sovereignty cannot be limited to simply excluding
the activities of other states
Second, although the Treaty of Paris was communicated to the
Netherlands who made no reservation thereto, any sovereignty
that Netherlands had over the island cannot be affected by their
mere silence
Third, discovery alone by Spain, i.e., the mere act of seeing
the land without any act of taking possession thereof does
not give the effect of acquiring sovereignty over the land.
Assuming arguendo that Spain obtained an inchoate title
thereto, such inchoate title cannot prevail over the
continuous and peaceful display of authority by another
state.
Lastly, there is no positive law providing that islands outside
territorial water should belong to a state by virtue that it form the
terra firma (nearest island of considerable size)
Legal Status of Eastern Greenland (Denmark v. Norway)
Facts:
In 1931, Norway declared that it had occupied certain territories of
Eastern Greenland (EG). Denmark filed a case before the
Permanent Court of International Justice claiming that EG was
already under its sovereignty.
Basis of Denmarks claim:
In 1697, by virtue of the Treaty of Lund, Sweden
recognised the rights of ancient rights and claims of the
King of Denmark over Greenland
In 1774, the King of Denmark constituted an Autonomous
Board to administer the trade activities in Greenland. The
State of Denmark had monopoly over the trade activities in
Greenland. This resulted in establishing colonies, factories
or stations along the West coast latter efforts to reach the
East coast were not successful
Norways claim:
EG was terra nullius
The Norwegian submissions are that Denmark possessed
no sovereignty over the area which Norway occupied on
July 10th, 1931, and that at the time of the occupation the
area was terra nullius. Her contention is that the area lay
outside the limits of the Danish colonies in Greenland and
that Danish sovereignty extended no further than the limits
of these colonies.
Issue:
Who had sovereignty over EG? - Denmark
Held:
Denmark
PCIJ applied the doctrine in Palmas Case
A claim to sovereignty based on continued display of
authority involves 2 elements:
1. intention and will to act as sovereign
2. actual exercise or display of such authority
Up to 1931, there was no claim by any power other than by
Denmark to the sovereignty over Greenland.
The Norwegian submissions are that Denmark possessed
no sovereignty over the area which Norway occupied on
July 10th, 1931, and that at the time of the occupation the
area was terra nullius. Her contention is that the area lay
outside the limits of the Danish colonies in Greenland and
that Danish sovereignty extended no further than the limits
of these colonies.
the long series of conventionsmostly commercial in
characterwhich have been concluded by Denmark and in
which, with the concurrence of the other contracting party,
a stipulation has been inserted to that effect that the
convention shall not apply to Greenland. Treaties may also
be regarded as demonstrating sufficiently denmarks will
and intention to exercise sovereignty over Greenland.
1925: legislation was enacted regulating the hunting and
fishing and in the same year Greenland was divided into
provinces by a law which declared that all commercial
activity was reserved to the Danish state.
The character of these Danish acts is not altered by the
protests or reservations which were made by the
Norwegian Govt.
Western Sahara
Facts:
In 1844, Spain colonized Western Sahara. In 1966, pursuant to
the Declaration on the Granting of Independence to Colonial
Territories and Peoples, Western Sahara was to be decolonized.
However, Mauritania and Morocco are laying claim to some parts
of WS based on historic claims predating the colonisation.
Morocco claims that it has legal ties with WS at the time of
colonisation by Spain and thus exercised sovereignty thereupon.
It claims that at the time Morocco occupied WS, it was terra
nullius.
Issue:
W/N Morocco was able to obtain sovereignty over WS prior to
Spanish Colonization - No
Held:
No
For occupation to operate, the territory must be terra nullius
belonging to no one before occupation
State practice indicates that territories inhabited by tribes or
peoples having a social and political organisation were not
regarded as terra nullius.
In this case, Western Sahara was inhabited by people which,
if nomadic, were socially and politically organised into tribes
and under chiefs competent to represent them.
In contrast, Spains sovereignty proceeded from agreements with
the local chiefs and was not in the nature of occupation but was
more in the nature of cession.
Philippine Application:
Art. 1 of the 1987 Constitution
The national territory comprises:
the Philippine archipelago, with all the islands and waters
embraced therein, and
all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its:
terrestrial, fluvial and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves,
and other submarine areas.
The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form
part of the internal waters of the Philippines.
Sabah - Cession
The territory was originally owned by the Sultan of Sulu, Jamalul Alam.
He leased the same to Baron de Overback and Alfred Dent. For some
reason, Dent consolidated ownership and established the British North
Borneo Co. w/c was placed under British protectorate. The Company
surrendered its rights thereto to the British Government and Sabah
became a British Colony. When Malaysia was formed, Sabah became
its constituent part. The Sultan Esmail Kiram, heir to Sultan Alam,
thereafter cancelled the lease and ceded the territory to the Philippine
Government (cession).
The claim of the Philippines is therefore anchored on the
proposition that as lessee, Dent could not have acquired dominion
over the territory and cede the same to the British. Nonetheless,
the 1987 Constitution in defining the national territory omitted the
phrase other territories belonging to the Philippines by historic
right or legal title. Relations between Malaysia and the Philippines
have been normalized since then, and the issue remained unresolved.
Spratlys - claimants: China, Vietnam, GRP, Malaysia, Brunei, Taiwan
The Spratlys Islands is presumed to be rich in oil ad fish reserves and is
strategically located in the South China Sea, at the very center of
maritime and air trade routes. Many countries lay claim.
Claims:
The Philippines claim is based on occupation that
the same was terra nullius when it was discovered by
Tomas Cloma, and since then it was considered under
Philippine Law as an administrative portion of
Palawan.
China claimed sovereignty, alleging the presence of
Chinese Temples and the expeditions send by its
emperors.
Vietnams contention was based on succession based on
the dissolution of the French Indochina, the presence of
temples and structures, missions, etc.
Malaysia, Taiwan, and Brunei also law claim.
Negotiations are at a standstill but China is allegedly
creeping in by building permanent structures. It was
maintained a strong and rigid policy claiming sovereignty
over all islands w/in the area and requiring prior
clearance before passage of military ships and vessels.
So what remedies are available? Diplomatic negotiation through the
ASEAN is a good option, participation in workshops for management of
potential conflicts, and the organization of an International Authority.
Bringing the matter to the Security Council will only be subject to the
veto of China; the ICJ cannot assume jurisdiction unless both parties
submit to it. Arbitration is possible. The most feasible option is to bring
the case to the International Tribunal on the Law of the Sea the
convention of w/c China is a party. Our failure to act may result to loss of
the territory just like in the Island of Palmas Case.
History of RP maritime boundaries:
1898 Treaty of Paris
1930 US-UK convention
1961 RA 3046
1968 RA 5446
1978 PD 1596 (KIG) and PD 1599 (EEZ)
1984 Philippine Ratification of UNCLOS
Government position:
GRP claims over other island groups: Paracels, Pratas,
Macclesfield Bank, Scarborough Shoal, Mischief Reef
Effective occupation of Kalayaan Island Group by GRP through
Tomas Cloma in 1946, and through PD 1596, an administrative
district was formed to become a municipality on the Province of
Palawan.
2009 RA 9522 - declared KIG and Scarborough Shoal as regime of islands
pursuant to Art. 121 of UNCLOS III
Case Law:
Magallona v. Executive Secretary - Constitutionality of Baseline Law
RA 9522 is constitutional. It is a statutory tool to demarcate the countrys
maritime zones and continental shelf under UNCLOS III, not to delineate
Philippine territory.
baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones
and continental shelves. In turn, this gives notice to the rest of the
international community of the scope of the maritime space and
submarine areas within which States parties exercise treaty-based
rights.
UNCLOS III and its ancillary baselines laws play no role in the
acquisition, enlargement or, as petitioners claim, diminution of territory.
Under traditional international law typology, States acquire (or
conversely, lose) territory through occupation, accretion, cession and
prescription, not by executing multilateral treaties on the regulations of
sea-use rights or enacting statutes to comply with the treatys terms to
delimit maritime zones and continental shelves. Territorial claims to land
features are outside UNCLOS III, and are instead governed by the rules
on general international law.
Internal and Territorial Waters
Case Law:
Fisheries Case
Straight baseline allowed and delimitation of territorial waters
Facts:
UK of Great Britain and Northern Ireland filed this case
against Norway.
Norway, by a Decree, delimited the zone in which the
fisheries were reserved to its own nationals. One point in
dispute were the baselines from which the agreed 4 mile
territorial sea will be reckoned.
Norway argument:
what constitutes the Norwegian coast is the outer
line of the skjaergaard a group of islands, inlets
and rocks with countless straits and channels which
lies alone the coast of Norway and that it is from
the outer limits of the same that the straight
baselines should be reckoned.
UK argument:
the baselines must be based on low water mark and
on the coast of the mainland, not skajaergaard
Issue:
From where should the baselines be reckoned?
skajaergaard
Held:
skajaergaard
The skjaergaard has been exploited by Norwegian
fishermen since time immemorial and constitutes a whole
w/ the mainland itself. This is mandated by geographical
realities. That being the case, the waters embraced therein
form part of the internal waters of Norway.
The straight baseline method may also be utilized
considering that there was no single contiguous low
water mark that could be followed along the sinuosities
of the coast. Likewise, when there is a deep indentation
(such as in the base of bays), the baseline becomes
independent of the low watermark. The same applies to the
case at bar. Assuming that there are navigational routes
called Indreleia around and between the skjaergaard, they
do not possess a different status from internal waters.
Delimitations of internal waters do not depend entirely on
municipal law they have an international aspect. The
validity of the delimitation depends on IL. In deciding such
cases as these, the court must consider different factors
such as (1) close dependence of the territorial sea upon the
land, (2) close relationship between the sea areas and the
land, and (3) economic interests of the region.
But the delimitation of sea areas has always an
international aspect since it interests States other than
the coastal State; consequently, it cannot be
dependent merely upon the will of the latter. In this
connection certain basic considerations inherent in the
nature of the territorial sea bring to light the following
criteria which can provide guidance to Courts: since the
territorial sea is closely dependent upon the land domain,
the baseline must not depart to any appreciable extent from
the general direction of the coast; certain waters are
particularly closely linked to the land formations which
divide or surround them
Straight baseline allowed and delimitation of territorial
waters
The Corfu Channel case
Facts:
In one instance, British cruisers were passing through the
North Corfu Channel when they hit mines either placed by
Albania or with its knowledge.
In another instance, British cruisers were fired upon as they
passed through the Channel. After protesting and
communicating with Albania, UK asked permission to do a
mine sweep of the waters. Albania said that UK can do so
as long as not in Albanian waters (which includes the
Corfu). UK nevertheless swept the Corfu for mines. Hence
this case
UK:
claims that Corfu Strait is an international strait
connecting 2 points of the high seas and that
innocent passage should be allowed
Albania:
claims that its territorial sovereignty was violated and
that it had a right to demand prior authorization
Issue:
W/N the North Corfu Channel is subject to innocent
passage - Yes
W/N UK violated Albanian sovereignty when it swept the
Corfu for mines - Yes
Held:
The North Corfu Channel belongs to that class of
international highways through w/c the right of
innocent passage exists at least during times of
peace. The fact that it is an alternative route as Albania
contends is immaterial. The decisive criterion is geography:
that it connects 2 parts of the high seas and is used for
international navigation. Considering that Albania was at
that time hostile w/ its neighbor Greece, it is justified in
issuing reasonable regulations for passage of warships
but not outright prohibition or requirement of special
authorization. Innocent passage in international straits are
allowed
However, the minesweeping mission violated Albanias
sovereignty because it cannot be characterised as
innocent passage. Such mission was executed contrary to
the clearly expressed wishes of Albania
1982 Convention on the Law of the Sea
Art. 3
Every State has the right to establish the breadth of its territorial sea up
to a limit not exceeding 12 nautical miles, measured from baselines
determined in accordance with this Convention.
Art. 8
Internal waters
Article 1. Sovereignty
The contracting States recognize that every State has complete and
exclusive sovereignty over the airspace above its territory.
Article 2. Territory
(a) This Convention shall be applicable only to civil aircraft, and shall
not be applicable to state aircraft.
(c) No state aircraft of a contracting State shall fly over the territory
of another State or land thereon without authorization by special
agreement or otherwise, and in accordance with the terms thereof.
(d) The contracting States undertake, when issuing regulations for their
state aircraft, that they will have due regard for the safety of navigation
of civil aircraft.
Each contracting State agrees not to use civil aviation for any purpose
inconsistent with the aims of this Convention.
Each contracting State agrees that all aircraft of the other contracting
States, being aircraft not engaged in scheduled international air services
shall have the right, subject to the observance of the terms of this
Convention, to make flights into or in transit nonstop across its territory
and to make stops for non-traffic purposes without the necessity of
obtaining prior permission, and subject to the right of the State flown
over to require landing. Each contracting State nevertheless reserves the
right, for reasons of safety of flight, to require aircraft desiring to
proceed over regions which are inaccessible or without adequate air
navigation facilities to follow prescribed routes, or to obtain special
permission for such flights.
Article 7. Cabotage
Each contracting State shall have the right to refuse permission to the
aircraft of other contracting States to take on in its territory passengers,
mail and cargo carried for remuneration or hire and destined for another
point within its territory. Each contracting State undertakes not to enter
into any arrangements which specifically grant any such privilege on an
exclusive basis to any other State or an airline of any other State, and not
to obtain any such exclusive privilege from any other State.
Paris Convention of 1919
Article 11. Outer space, including the moon and other celestial
bodies, is not subject to national appropriation by claim of
sovereignty, by means of use or occupation, or by any other
means.
The Moon and other celestial bodies shall be used by all States
Parties to the Treaty exclusively for peaceful purposes. The
establishment of military bases, installations and fortifications,
the testing of any type of weapons and the conduct of military
maneuvers on celestial bodies shall be forbidden. The use of
military personnel for scientific research or for any other peaceful
purposes shall not be prohibited. The use of any equipment or
facility necessary for peaceful exploration of the Moon and other
celestial bodies shall also not be prohibited.
Bernas
Importance of the sea flows from two factors:
1. they are a medium of communication
2. they contain vast natural resources
Convention on the Law of the Sea of 1982
Article 2. Legal status of the territorial sea, of the air space over the
territorial sea and of its bed and subsoil.
2. This sovereignty extends to the air space over the ter- ritorial sea as
well as to its bed and subsoil.
Article76
1. The continental shelf of a coastal State comprises the seabed and subsoil of
the submarine areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin, or
to a distance of 200 nautical miles from the baselines from which the breadth of
the territorial sea is measured where the outer edge of the continental margin
does not extend up to that distance.
2. The continental shelf of a coastal State shall not extend beyond the limits
provided for in paragraphs 4 to 6.
4. (a) For the purposes of this Convention, the coastal State shall establish the
outer edge of the continental margin wherever the margin extends beyond 200
nautical miles from the baselines from which the breadth of the territorial sea is
measured, by either:
(b) In the absence of evidence to the contrary, the foot of the continental slope
shall be determined as the point of maximum change in the gradient at its base.
5. The fixed points comprising the line of the outer limits of the continental
shelf on the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either
shall not exceed 350 nautical miles from the baselines from which the breadth
of the territorial sea is measured or shall not exceed 100 nautical miles from the
2,500 metre isobath, which is a line connecting the depth of 2,500 metres.
7. The coastal State shall delineate the outer limits of its continental shelf,
where that shelf extends beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured, by straight lines not
exceeding 60 nautical miles in length, connecting fixed points, defined by
coordinates of latitude and longitude.
8. Information on the limits of the continental shelf beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured
shall be submitted by the coastal State to the Commission on the Limits of the
Continental Shelf set up under Annex II on the basis of equitable geographical
representation. The Commission shall make recommendations to coastal States
on matters related to the establishment of the outer limits of their continental
shelf. The limits of the shelf established by a coastal State on the basis of these
recommendations shall be final and binding.
9. The coastal State shall deposit with the Secretary-General of the United
Nations charts and relevant information, including geodetic data, permanently
describing the outer limits of its continental shelf. The Secretary-General shall
give due publicity thereto.
10. The provisions of this article are without prejudice to the question of
delimitation of the continental shelf between States with opposite or adjacent
coasts.
Exclusive Economic Zone
Case Law:
Fisheries Jurisdiction
Facts
Iceland, sue to its significant dependence upon fishing,
repudiated the 1961 Exchange of Notes w/ the UK and
unilaterally imposed an increase of its exclusive fisheries
jurisdiction initially to 12 nautical miles, and eventually to 50
nautical miles w/ the end in view of exclusive fishing rights
over the entire continental shelf area. Claiming preferential
rights it thereafter promulgated regulations prohibiting the
UK from fishing therein. The UK recognised he special
situation of Iceland and its dependence upon fishing, but
rejected the contention that the Exchange of Notes was no
loner in force as well as the alleged right of Iceland to
exclude UK altogether from the fisheries zones.
Held:
The acts of Iceland cannot be sustained.
The validity of delimitations depends upon IL. The freedom
of the high seas is made subject to the consideration that
its utilization shall be w/ reasonable regard to the interests
of other states. Both concepts of fishery zone and
preferential right are crystallized into customary law.
However, preferential rights are implemented by agreement
between states concerned, and it is wholly inconsistent w/
the idea of excluding fishing activities of all other states.
Besides the UK has substantial historic and special
interests in the disputed waters. Iceland unilateral action is
thus an infringement of the 1958 Geneva Convention on
the Law of the Seas, mandating due regard to the interests
of other states. Icelands preferential rights may vary
depending on the circumstances, but they must be
reconciled w/ the interests of the UK and this is to be
done by negotiation.
People v. Tulin - Piracy case
It is likewise, well-settled that regardless of the law penalizing the same, piracy
is a reprehensible crime against the whole world
Const. Art. 2, Section 2.
The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations.
1982 CLOS provisions
Article55
The exclusive economic zone is an area beyond and adjacent to the territorial sea,
subject to the specific legal regime established in this Part, under which the rights and
jurisdiction of the coastal State and the rights and freedoms of other States are
governed by the relevant provisions of this Convention.
Article56
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
(a) sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the waters superjacent
to the seabed and of the seabed and its subsoil, and with regard to other activities for
the economic exploitation and exploration of the zone, such as the production of
energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention with
regard to:
(i) the establishment and use of artificial islands, installations and structures;
2. In exercising its rights and performing its duties under this Convention in the
exclusive economic zone, the coastal State shall have due regard to the rights and
duties of other States and shall act in a manner compatible with the provisions of this
Convention.
3. The rights set out in this article with respect to the seabed and subsoil shall be
exercised in accordance with Part VI.
Article57
The exclusive economic zone shall not extend beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured.
Article123
States bordering an enclosed or semi-enclosed sea should cooperate with each other in
the exercise of their rights and in the performance of their duties under this
Convention. To this end they shall endeavour, directly or through an appropriate
regional organization:
(b) to coordinate the implementation of their rights and duties with respect to the
protection and preservation of the marine environment;
(c) to coordinate their scientific research policies and undertake where appropriate
joint programmes of scientific research in the area;
Article 211
2. States shall adopt laws and regulations for the prevention, reduction and control of
pollution of the marine environment from vessels flying their flag or of their registry.
Such laws and regulations shall at least have the same effect as that of generally
accepted international rules and standards established through the competent
international organization or general diplomatic conference.
3. States which establish particular requirements for the prevention, reduction and
control of pollution of the marine environment as a condition for the entry of foreign
vessels into their ports or internal waters or for a call at their off-shore terminals shall
give due publicity to such requirements and shall communicate them to the competent
international organization. Whenever such requirements are established in identical
form by two or more coastal States in an endeavour to harmonize policy, the
communication shall indicate which States are participating in such cooperative
arrangements. Every State shall require the master of a vessel flying its flag or of its
registry, when navigating within the territorial sea of a State participating in such
cooperative arrangements, to furnish, upon the request of that State, information as to
whether it is proceeding to a State of the same region participating in such cooperative
arrangements and, if so, to indicate whether it complies with the port entry
requirements of that State. This article is without prejudice to the continued exercise
by a vessel of its right of innocent passage or to the application of article 25, paragraph
2.
4. Coastal States may, in the exercise of their sovereignty within their territorial sea,
adopt laws and regulations for the prevention, reduction and control of marine
pollution from foreign vessels, including vessels exercising the right of innocent
passage. Such laws and regulations shall, in accordance with Part II, section 3, not
hamper innocent passage of foreign vessels.
5. Coastal States, for the purpose of enforcement as provided for in section 6, may in
respect of their exclusive economic zones adopt laws and regulations for the
prevention, reduction and control of pollution from vessels conforming to and giving
effect to generally accepted international rules and standards established through the
competent international organization or general diplomatic conference.
6. (a) Where the international rules and standards referred to in paragraph 1 are
inadequate to meet special circumstances and coastal States have reasonable grounds
for believing that a particular, clearly defined area of their respective exclusive
economic zones is an area where the adoption of special mandatory measures for the
prevention of pollution from vessels is required for recognized technical reasons in
relation to its oceanographical and ecological conditions, as well as its utilization or
the protection of its resources and the particular character of its traffic, the coastal
States, after appropriate consultations through the competent international organization
with any other States concerned, may, for that area, direct a communication to that
organization, submitting scientific and technical evidence in support and information
on necessary reception facilities. Within 12 months after receiving such a
communication, the organization shall determine whether the conditions in that area
correspond to the requirements set out above. If the organization so determines, the
coastal States may, for that area, adopt laws and regulations for the prevention,
reduction and control of pollution from vessels implementing such international rules
and standards or navigational practices as are made applicable, through the
organization, for special areas. These laws and regulations shall not become applicable
to foreign vessels until 15 months after the submission of the communication to the
organization.
(b) The coastal States shall publish the limits of any such particular, clearly defined
area.
(c) If the coastal States intend to adopt additional laws and regulations for the same
area for the prevention, reduction and control of pollution from vessels, they shall,
when submitting the aforesaid communication, at the same time notify the organization
thereof. Such additional laws and regulations may relate to discharges or navigational
practices but shall not require foreign vessels to observe design, construction, manning
or equipment standards other than generally accepted international rules and standards;
they shall become applicable to foreign vessels 15 months after the submission of the
communication to the organization, provided that the organization agrees within 12
months after the submission of the communication.
7. The international rules and standards referred to in this article should include inter
alia those relating to prompt notification to coastal States, whose coastline or related
interests may be affected by incidents, including maritime casualties, which involve
discharges or probability of discharges.
Jurisdiction of states
Jurisdiction means the authority to affect legal interests
Jurisdiction can be:
1. to prescribe norms of conduct - legislative
2. to enforce norms prescribed - executive
3. to adjudicate - judicial
The scope of a states jurisdiction over a person, thing or event depends on
the interest of the state in affecting the subject in question
International law limits itself to criminal rather than civil jurisdiction. Civil
jurisdiction is a subject for private international law or conflicts of law
5 principles:
1. Territoriality - elements of crime occurred in 2 states
2. Nationality - civil law follows national wherever he/she may be
3. Protective - punish aliens for acts against a states security,
independence or territorial integrity
4. Universality - eg. piracy, crimes against humanity
5. Passive personality- punish aliens abroad who injures ones citizen
Territoriality principle
The Third Restatement summarises the rules on boundaries where states are
not islands but parts of a larger land mass:
1. the boundary separating the land areas of 2 states is determined by acts
of the states expressing their consent to its location
2. unless a consent to a different rule has been expressed:
1. when the boundary is a navigable river, its location is the middle
of the channel of navigation
2. when not a navigable river or a lake, its location is the middle of
the river or lake
GR: Vessels on high seas are subject to authority of the flag-state
Exception:
piracy
slave trade
hot pursuit
right of approach
Effects Doctrine
A state has jurisdiction over acts occurring outside its territory but having
effects within it
2 Principles:
1. subjective territorial principle - a state has jurisdiction to prosecute
and punish for crime commenced within the state but
consummated abroad
2. objective territorial principle - commenced outside the state but
consummated within the state
Lotus Case (France v. Turkey)
Facts:
A French mail steamer Lotus, on the way to
Constantinople, collided with the Turkish cutter Boz-Kourt
on the high seas. The Boz-Kourt sank with the loss of eight
sailors, all Turkish nationals. The Lotus subsequently
arrived in Constantinople at which point Turkish authorities
arrested Lieutenant Demons, the French officer in charge
of the Lotus at the time of the collision, and Hassan Bey,
the captain of the Boz-Kourt. Both were charged with
manslaughter.
Lieutenant Demons argued that the Turkish Courts had no
jurisdiction. This argument was rejected and he was
sentenced to eighty days imprisonment and a fine of
twenty-two pounds. Hassan Bey received a slightly heavier
sentence.
The French Government objected to the actions of the
Turkish Court. The French and the Turks agreed to submit
the dispute to the Permanent Court of International Justice
(the precursor to the ICJ).
France:
For Turkish courts to have jurisdiction, it
should be able to point to some title to
jurisdiction recognised by international law in
favor of Turkey
Turkey:
It has jurisdiction whenever such jurisdiction
does not come into conflict with a principle of
international law.
Issue:
W/N Turkey violated international law by instituting criminal
proceedings against Demons
Held:
It is certainly true that apart from special cases which
are defined by international law vessels on the high
seas are subject to no authority except that of the State
whose flag they fly. In virtue of the principle of the
freedom of the seas, that is to say, the absence of any
territorial sovereignty upon the high seas, no State may
exercise any kind of jurisdiction over foreign vessels upon
them.
But it by no means follows that a State can never in its
own territory exercise jurisdiction over acts which
have occurred on board a foreign ship on the high
seas. A corollary of the principle of the freedom of the seas
is that a ship on the high seas is assimilated to the territory
of the State the flag of which it flies, for, just as in its own
territory, that State exercises its authority upon it, and no
other State may do so. All that can be said is that by virtue
of the principle of the freedom of the seas, a ship is placed
in the same position as national territory, but there is
nothing to support the claim according to which the rights of
the State under whose flag the vessel sails may go farther
than the rights which it exercises within its territory properly
so- called.
It follows that what occurs on board a vessel
upon the high seas must be regarded as if it
occurred on the territory of the State whose flag
the ship flies.
the conclusion must therefore be drawn that there is no
rule of international law prohibiting the State to which
the ship on which the effects of the offence have taken
place belongs, from regarding the offense as having
been committed in its territory and prosecuting,
accordingly, the delinquent.
This conclusion could only be overcome if it
were shown that there was a rule of customary
international law which, going further than the
principle stated above, established the exclusive
jurisdiction of the State whose flag was flown.
France has failed to prove this.
The offense for which Lieutenant Demons appears to have
been prosecuted was an act of negligence or imprudence
having its origin on board the Lotus, whilst its effects
made themselves felt on board the Boz-Kourt. These two
elements are, legally, entirely inseparable so much so that
their separation renders the offense non- existent. Neither
the exclusive jurisdiction of either State, nor the limitations
of the jurisdiction of each to the occurrences which took
place on the respective ships would appear calculated to
satisfy the requirements of justice and effectively to protect
the interests of the two States. It is only natural that each
should be able to exercise jurisdiction and to do so in
respect of the incident as a whole. It is therefore a case of
concurrent jurisdiction.
[Concurrent jurisdiction portion superseded by Art. 97 of
UNCLOS:
No penal or administrative proceedings may be instituted
against the master of a ship except before the judicial or
administrative authorities either of the:
1. flag state, or
2. state of which such person is a national]
Jurisdiction over foreign vessels in Philippine Territory
2 Fundamental Rules:
1. French Rule - crimes committed on a foreign vessel cannot be
prosecuted by the country who has territorial jurisdiction over the
crime, unless such crime affects the peace and security of the
territory
2. English Rule (followed by US and Philippines) - such crimes can
be prosecuted in the courts of the country who ahas territorial
jurisdiction
Nationality Principle
Every state has jurisdiction over its national even when they are outside the
state
Blackmer v. US
A US citizen residing in France was cited in contempt by a US Court for
failure to respond to subpoenas issued to him. He questioned the courts
jurisdiction on him. SC held that, being still a citizen of the US and thus
owing allegiance to it, US had jurisdiction over him
Each state has the right to decide who are its nationals using either the
principle of jus sanguinis or jus soli or naturalisation laws. However, for a state
to claim a person as a national, the state must have reasonable connection or
an effective link with that person. The consent of the individual alone is not
enough for him to be recognised by other states as a national of the state to
which he claims to belong. (See Nottebohms case)
As to corporations, a state has jurisdiction over corporations organised under
its law
Stateless persons
Stateless persons are those who do not have a nationality
They are either de jury or de facto stateless:
de jury stateless - lost their nationality and have not acquired a
new one
de facto stateless - have a nationality but to whom protection is
denied by their state when out of the state (situation of most
refugees)
Mejojfv v. Director of Prisons
A detained Russian national hired by japan as a spy, was arrested
in the Phil, but russians refused to accept him
he was ordered released on bail by the SC when after 2 years,
the deportation order could not be carried out because no ship or
country would take him. SC applied UDHR, among others, in
justifying the order.
Art. 2 of UDHR says that everyone has the right to an effective
remedy by the competent nationals for acts violating the
fundamental rights granted him by the Constitution or by law.
Protective Principle
A state may exercise jurisdiction over conduct outside its territory that
threatens its security, as long as that conduct is generally recognised as
criminal by states in the international community
This conditional clause excludes acts committed in exercise of the
liberty guaranteed an alien by the law of the place where the act was
committed.
Example:
plots to overthrow government
forging of currency
plot to break immigration laws
Lord Haw Haw case
An American citizen who broadcast messages from Germany seeking to
persuade the Allies to surrender. Until 1940, he held a British passport.
After the war, he was convicted of high treason in the United Kingdom.
In upholding the principle, Lord Jowwit of the House of Lords said: No
principle of comity demands that a state should ignore the crime of
treason committed against it outside its territory. On the contrary, a
proper regard for its own security requires that all those who commit that
crime, whether they commit it within or without the realm should be
amenable to its laws.
Universality Principle
Certain activities, universally dangerous to states and their subjects, require
authority in all community members to punish such acts wherever they may
occur, even absent a link between the state and the parties or the acts in
question.
Examples:
piracy
any illegal act of violence or depredation committed for private
ends on the high seas or outside the territorial control of any state
genocide
any acts committed with intent to destroy a national, ethnical
racial or religious group
crimes against humanity
any of the ff. acts committed as part of a wide-spread or
systematic attack directed against civilian population, with
knowledge of the attack:
1. murder
2. extermination
3. enslavement
4. deportation of population
5. deprivation of liberty against international law
6. torture
7. sexual violence
8. persecution
9. enforced disappearances
10. apartheid
war crimes
aircraft piracy
terrorism
Attorney General of Israel v. Eichmann
Facts:
Adolf Eichmann was a high ranking SS officer who played a
central role in the planning and implementation of the persecution
of Jews in Germany, Poland, Hungary and several other countries
before and during World War II. At the end of the war, he escaped
to Argentina where he lived and worked under an alias until May,
1960 when he was kidnapped by Israeli agents.
Eichmann was then tried in Israel under Israels Nazi
Collaborators Law (a law enacted after Israel became a state in
1948).
He was found guilty and the conviction was subsequently upheld
by the Supreme Court of Israel. On May 31,1962, Eichmann went
to the gallows, the only person ever formally executed by the
State of Israel.
Issue:
W/N Israel had jurisdiction to prosecute Eichmann considering
that his crimes were committed outside Israel - Yes
Held:
Yes.
The abhorrent crimes defined in this Law are not crimes under
Israel law alone. These crimes, which struck at the whole of
mankind and shocked the conscience of nations, are grave
offenses against the law of nations itself (delicta juris gentium).
Therefore, so far from international law negating or limiting the
jurisdiction of countries with respect to such crimes, international
law is, in the absence of an International Court, in need of the
judicial and legislative organs of every country to give effect to its
criminal interdictions and to bring the criminals to trial. The
jurisdiction to try crimes under international law is universal
When a person commits a crime against the law of nations such
as piracy (or in this case genocide), he becomes an enemy to all
mankind a hostis humani generis. He places himself beyond the
protection of any state. It is in fact the moral duty of every state to
enforce the natural right to punish such criminals guilty of the
most extreme violations of the laws of nature so detrimental to the
welfare of the international community.
Thus, while as a general rule, criminal jurisdiction is territorial, the
jurisdiction of a state may extend to punishment of offenses
against the laws of nations. Genocide has already been
recognized as such under various conventions such as the
Charter of the Nuremberg Trial, the Convention on the Prevention
of the Crime of Genocide (under the UN), and various affirmations
of the UN General Assembly. The punishment of genocide is a
matter if international concern condemned by all of the civilized
world. The same would apply to slavery, crimes against peace,
and torture.
People v. Tulin - pirate case
Passive Personality Principle
asserts that a state may apply law particularly criminal law to an act
committed outside its territory by a person not its national where the victim of
the act was its national.
US v. Yunis - Arab men who hijacked a Jordanian aircraft which had several
US national passengers were charged before a US court = valid.
Conflicts of Jurisdiction
3 modes of resolving conflict of jurisdiction:
1. Balancing Test
In Timberlane Lumber v. Bank of America:
1. Was there an actual or intended effect on American foreign
commerce.
2. Is the effect sufficiently large to present a cognizable injury
to the plaintiffs and, therefore, a civil violation of the anti-
trust laws.
3. Are the interests of, and link to, the United States . . .
including effects on American foreign commerce sufficiently
strong, vis-d-vis those of other nations, to justify an
assertion of extraordinary authority.
If yes to all then court has jurisdiction
2. International Comity
Even when a state has basis for exercising jurisdiction, it will
refrain from doing so if its exercise will be unreasonable.
Unreasonableness is determined by evaluating various factors,
such as
the link of the activity to the territory of the regulating state,
the connection, such as nationality, residence, or economic
activity, between the regulating state and the person
principally responsible for the activity to be regulated,
the character of the activity to be regulated,
the existence of justified expectations that might be
protected or hurt by the regulation,
the likelihood of conflict with regulation by another state.
3. Forum non conveniens
If in the whole circumstances of the case it be discovered that
there is a real unfairness to one of the suitors in permitting the
choice of a forum which is not the natural or proper forum, either
on the ground of convenience of trial or the residence or domicile
of parties or of its being the locus contracts, or locus solutions,
then the doctrine of forum non conveniens is properly applied. [?]
Extradition
is the surrender of an individual by the state within whose territory he is found
to the state under whose laws he is alleged to have committed a crime or to
have been convicted of a crime.
it is a process governed by a treaty; exists only when there is a treaty
but a state may surrender a fugitive if surrendering him is not contrary to
the states constitution
Principles:
1. No state is obliged to extradite unless there is a treaty
2. Differences in legal systems can be an obstacle to interpretation of what
the crime is
3. Religious and political offences are not extraditable
GR: No obligation to extradite when no treaty
Exception: Even with treaty, crimes with political complexion are exempt
Exception to exception: attentat clause - assassination of heads
of States, etc
On the rules governing extradition under international law, requisites:
one should ask:
1. is there a treaty?
2. is the crime listed?
In Re: Request for extradition of Doherty
Doherty was a member of the Provisional Irish Republican Army (rebel)
w/c organized an ambush of a British Army convoy, causing the death of
a soldier. He was arrested and charged, but was able to escape. He fled
to the US. Now, UK seeks to extradite him; but the US court disallowed
the same on the ground that the crime charged against Doherty was
political in nature.
The factors that have to be considered whether an act will qualify under
the exception of political nature are:
(1) the nature of the act,
(2) the context in w/c it was committed,
(3) status of the party committing the act,
(4) nature of the organisation, and
(5) particularized circumstances.
Applying the above standards, the court concluded that Dohertys
actions fell under the exception considering (a) the area where the act
took place, (b) that there was no violation of the Geneva Convention
and IL, and (c) the attack was not targeted towards civilians.
Secretary of Justice v. Lantion
Mark Jimenez is without any right to notice and hearing during the
evaluation stage of an extradition process by the DFA under the RP-US
Extradition Treaty
Facts:
Secretary Of Justice Franklin Drilon, representing the
Government of the Republic of the Philippines, signed in Manila
the extradition Treaty Between the Government of the Philippines
and the Government of the U.S.A. The Philippine Senate ratified
the said Treaty.
On June 18, 1999, the Department of Justice received from the
Department of Foreign Affairs U.S Note Verbale No. 0522
containing a request for the extradition of private respondent Mark
Jimenez to the United States.
On the same day petitioner designated and authorised a panel of
attorneys to take charge of and to handle the case. Pending
evaluation of the aforestated extradition documents, Mark Jiminez
through counsel, wrote a letter to Justice Secretary requesting
copies of the official extradition request from the U.S Government
and that he be given ample time to comment on the request after
he shall have received copies of the requested papers but the
petitioner denied the request for the consistency of Article 7 of the
RP-US Extradition Treaty stated in Article 7 that the Philippine
Government must present the interests of the United States in
any proceedings arising out of a request for extradition.
ISSUE:
W/N Secretary of Justice committed GAD in denying such
request - No.
RULING:
The implementing law, PD No. 1069 provides that the notice shall
be given at the same time as the warrant of arrest. The same rule
is likewise provided in the treaty to w/c both the US and the
Philippines agree and to w/c other countries have expressed
the same interpretation.
For the purpose of notice and hearing, a criminal procedure
cannot be equated w/ an extradition proceeding and it follows that
the evaluation process is not similar to preliminary investigation.
Also applying the balancing of interests test, considering that the
case is only in its evaluation process, the nature of the right being
claimed is nebulous in character and the degree of injury is
minimal. The balance is thus tilted in favor of the State. Such
procedural protection has not yet become due given the extent to
w/c the defendant is to suffer loss or injury.
DD: Notice and hearing for extradition cases is not required
during the Executive Phase of the proceedings, but it is
required in the Judicial Phase thereof. Considering that the
petition is still under the evaluation of the Secretary of Justice,
then it is still in the Executive Phase hence no notice and
hearing is yet required.
Bail in extradition cases
If after his arrest and if the trial court finds that an extraditee is not a
flight risk, the court may grant him bail.
bail may be granted to a possible extraditee only upon a clear and
convincing showing (1) that he will not be a flight risk or a danger to the
community, and (2) that there exist special, humanitarian and compelling
circumstances. [Purganan case overturned by Hong Kong case]
Case Law:
Secretary of Justice v. Munoz
In re: to the RP-Hongkong Extradition Treaty, the court held that
the provisional arrest of respondent was valid noting that the
requirements of the Agreement on documentation and the finding
of probable cause have been complied with.
Facts:
Muoz was charged before a Hong Kong court for 7 counts
of bribery and 7 counts of conspiracy to defraud. The HK
Court issued a warrant for his arrest but he fled to the Phils.
The Justice Department of HK requested the DOJ for
provisional arrest; the latter thus successfully procured an
Order of Provisional Arrest from the RTC Manila.
Thereafter, a verified petition for extradition was filed by the
HK Justice Department. Muoz assails the validity of the
provisional arrest, alleging that he was detained longer
than the 20-day period under PD No. 1069, that the offense
charged against him is not punishable under our laws
(dual-criminality rule), and that the request and documents
in support of the request were not verified and were sent
though fax machine. His contentions are all untenable.
Issue:
W/N the provisional arrest was valid - Yes
Held:
Yes.
First, whether the dual criminality rule was complied with is
a decision for the court where the extradition petition is
filed. The RTC has yet to rule on the same, making his
petition premature.
There was also urgency in the request, considering the
gravity of the offense charged and the capacity of the
extraditee to flee or destroy evidence. This in fact is the
purpose of provisional arrest.
Also, the request for provisional arrest and its
accompanying documents need not be verified; what has to
be verified is the petition for extradition.
The request for provisional arrest also need not be sent by
official diplomat; that requirement also applies to the
petition for extradition.
Nonetheless, the HK Justice Department is the authorized
official to request for the same. There was also factual
basis for the finding of the RTC of probable cause. All
summed up, there was substantial compliance w/ all legal
requirements; the provisional arrest is therefore valid.
US v. Puruganan
Facts:
While his case was pending in the US, Mark Jimenez fled
to the Phils. Thus, the US seeks to extradite him. During
the extradition proceedings, Jimenez applied for bail.
Issue:
w/n he is entitled to bail - No.
Held:
No. Extradition proceedings are sui generis. They are not
criminal proceedings w/c call into operation the rights of the
accused under the Bill of Rights. Thus the right to bail does
not accrue. The only question that has to be resolved in
such proceedings is whether he is extraditable and the
extraditing country complied w/ the treaty. It is only a
measure of international judicial assistance, usually
summary in nature, and requires merely a prima facie case.
Final discretion lies w/ the President. It is not concerned w/
his guilt or innocence, w/c will be tried separately by the
extraditing country. Further, Jimenez has demonstrated the
capacity and will to flee, w/c is precisely what the
Extradition Treaty guards against.
The general rule is that in extradition proceedings, bail is
NOT a matter of right. It may only be granted as an
exception if:
1. The defendant can demonstrate that he is not a
flight risk, and
2. Exceptional, humanitarian, or compelling
circumstances.
Jimenez bears the burden of proving the existence of any
of the 2 exceptions.
Bernas
State immunity
The principle that the state may not be sued without its consent found in the
Constitution is both municipal law and also international law.
based on the principle of equality of states: par in parent non habet
imperium
Before, Schooner Exchange v. Macfaddon case held that the nation within its
own territory is necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself. However, absolute territorial jurisdiction would
not seem to contemplate foreign sovereigns nor their sovereign rights as its
objects.
Immunity of the sovereign head is seen as also communicated to the
sovereign state
Now, immunity is only reserved for acts jure imperii (governmental acts) but
not for acts jure gestionis (trading and commercial acts)
Philippine jurisdiction also follows this rule as held in US v. Ruiz
However, in US v. Reyes, the claim of immunity was rejected when it
was shown that the acts of the american official were committed not only
outside her authority but also contrary to law.
In Holy See v. Rosario Jr., where it was claimed that the Holy See had
waived it sovereign immunity by entering into a contract for sale, SC said that:
the mere entering into a contract by a foreign state with a private party
cannot be the ultimate test. In this case, the fact that the Holy See
bought the lands for the site of its mission or the apostolic Nunciature in
the Philippines brings in under jure imperii.
Procedure for state claiming sovereign immunity:
when a state or international agency wishes to plead immunity in
a foreign court, it requests the Foreign Office of the state where it
is sued to convey to the court that the defendant is entitled to
immunity
in the Philippines, the practice is for the foreign government or the
international organisation to first secure an executive
endorsement of its claim of immunity.
Remedy of aggrieved person is to ask his government to espouse his
cause through diplomatic channels
Republic of Indonesia v. Vinzon
Facts:
Indonesia entered into a maintenance agreement with Vinzon, in
order to maintain specified equipment aircons, generators,
water heaters, etc at the Embassy, its annex, and the official
residence of the Indonesian-ambassador. This agreement would
be effective for a period of four years and would automatically
renew itself unless cancelled by either party by giving thirty days
prior written notice.
Before expiration of agreement in 1999, Indonesia informed
Vinzon that the renewal would be at the discretion of the incoming
chief of administration. Such Chief found Vinzons work
unsatisfactory, and thus, terminated the agreement.
Vinzon claimed that such dismissal was arbitrary and unfair, and
filed a suit. Citing that a sovereign state is immune from suit,
Indonesia filed a motion to dismiss. They also said that Soeratmin
and kasim are diplomatic agents and enjoy immunity.
Vinzon claimed that Indonesia expressly waived its immunity from
suit, citing a provision in the Maintenance Agreement any legal
action arising out of this maintenance agreement shall be settled
according to the laws of the Philippines and by the proper court of
Makati City, Philippines.
RTC and CA ruled in favor of Vinzon hence this petition.
Issue:
w/n CA erred in ruling that petitioners have waived their immunity
based on the above mentioned provision in the agreement - yes
Held
Yes
Immunity of a sovereign is recognised with regard to public acts
acts jure imperii but not with regard to private acts jure
gestionis.
Ex : Conduct of a public bidding for the repair of a Wharf at a US
Naval station jure imperiii
Ex: Hiring a cook in the recreation center of camp john hay jure
gestionis
In present case
Mere entering into a contract does not immediately classify
it as one or the other
We must ask is foreign state engaged regularly in
conduct of a business? in this case, it is not, and thus it
seems as if the act is in pursuit of a sovereign activity, and
thus an act jure imperii.
Petitioner : maintenance is no longer a sovereign function
Court disagrees : it is clear that Indonesia was acting in
pursuit of a sovereign activity when it entered into
contract with respondent
one does not merely establish a diplomatic mission
and leave it at that, such establishment encompasses
maintenance and upkeep
With regard to provision in maintenance agreement
Not necessarily/explicitly a waiver.
Could apply when sovereign sues in local courts, or
otherwise expressly waives
Applicability of Phil Laws can also mean recognition
of immunity
Waiver must be explicit, clear, and unequivocal
Immunity from jurisdiction
State Immunity (Sovereign Immunity): Head of State and the State itself
Basis: equality and independence of states
Distinguish:
1. Immunity of State - an aspect of State
2. Act of State theory
Acts of state carried out within its territory cannot be challenged in
the courts of other States;
applies to acts of the agents of the state
exceptions:
war crimes
crimes against peace
crimes against humanity
Rationale: courts should not embarrass the executive in its
conduct of foreign relations by questioning the acts of foreign
states
On Scope of immunity
1. Absolute
2. Restrictive - determine nature of the act
1. public - immune
2. private - not immune
Case law:
Victory Transport v. Comisaria General de Abastecimientos y
Transportes
Act of transporting wheat during peacetime is not an act jure imperii
Facts:
Victory Transport chartered a ship to Comisaria General (Spain)
to carry surplus wheat purchased by the Spanish Government
under an Agricultural Commodities Agreement w/ the US. There
was an arbitration clause. The ship was damaged while in the
ports of Spain w/c were allegedly unsafe for large vessels.
Comisaria refused to arbitrate; thus Victory brought an action to
compel the same to submit to arbitration. Comisaria invokes state
immunity.
Held:
Immunity cannot apply in this case. The transaction was a
commercial act (jure gestionis) not a strictly political or
sovereign act. There was even an arbitration clause. The US
Court in this case made reference to the Tate Letter and stated
that the US now adheres to the restrictive theory. The purpose of
the restrictive theory is to accommodate the interests of private
individuals doing business w/ foreign governments, while at the
same time permitting the foreign states to do political acts w/o
being subjected to the embarrassment of defending the propriety
of its acts in foreign courts. Immunity is in derogation from the
normal exercise of jurisdiction and should be granted only in clear
cases such as:
(1) internal administrative acts,
(2) legislative acts,
(3) armed forces,
(4) diplomatic activity, and
(5) public loans.
IL Congreso Del Partido
Facts:
The Playa Larga (vessel) was owned by the Cuban Government
and controlled by Mambisa, a state trading enterprise separate
and distinct from the government, but controlled by the latter.
The Marble Islands (vessel) on the other hand was owned by
Blue Seas Shipping, a Liechtenstein corporation.
Playa Larga arrived at its destination in Chile, while Marble
Islands was still in the seas. At that time, a coup detat took place
and Pinochet took over Chile.
The Cuban government immediately ordered Playa to terminate
the unloading of cargo and return to Cuba w/c did so even w/o
port clearance.
Playa met Marble Islands in the seas and eventually returned to
Vietnam. In the course of its voyage, Marble Islands flag and
ownership was changed to Cuba. It proceeded to Vietnam where
the cargo was donated to the people.
Issue:
The acts were obviously in breach of contractual obligations
and possible tortuous but the question is whether they
may be considered as acts of state for the purpose of
invoking state immunity.
Held:
The restrictive theory was applied in this case.
As to Playa Larga, the action against Cuba may proceed. All its
acts were committed not in a sovereign capacity but as proprietor
or owner of the ship. If immunity were to be granted everytime the
commercial decision was tainted by political considerations, the
restrictive theory would almost cease to have effect. It is not just
the purpose or motive of the act that serves at the basis;; the act
must of its own be a governmental act to merit immunity.
As to the Marble Islands, immunity operates. There was no purely
commercial obligation involved; the vessel never entered the
trading area (remained at sea) and never entered into commercial
relations. The actions of Cuba regarding the course of the ship ad
the disposition of its cargo remained in their nature purely
governmental. The decision regarding the Marble Islands was
subject to dissents.
Govt of Congo v. Venne
Congos entry into contract with a Canadian architect for sketching its
pavilion is a public act
Facts:
Congo claims that, by reason of its sovereign immunity, it could
not be imp leaded in the courts of Quebec.
Venne an architect who claims to have been retaine on behalf
of The Congo for the purpose of making preliminary studies and
preparing sketches in relation to the national pavilion which The
Congo proposed to build at Expo 67 (ie, Canadas main
celebration for its centennial year, held in 1967). Venne was hired
by duly accredited diplomatic representatives of The Congo.
Vennes declaration incorporated an unsigned copy of a contract,
pursuant to which he claims to have been employed, and also
certain sketches of the proposed pavilion which he claims to have
furnished to The Congo.
Venne prepared a bill of $20,000 for services rendered which he
subsequently reduced to $12,000 and which was not paid
because the Congo decided not to proceed with the pavilion.
Venne sued The Congo.
Superior Court of Montreal decided in favor of Venne
CA of Quebec affirmed, thereby dismissing The Congos appeal.
CA accepted the trial Judges finding that when the Congo
employed Venne to prepare the sketches of the national pavilion
which it proposed to build at a duly authorised international
exhibition, it was not performing a public act of a sovereign state
but rather one of a purely private nature (thus, not immune).
Issue:
W/N The Congos act of employing Venne for the construction of
a national pavilion constituted a public act. - Yes
Held:
Yes, it was an act made pursuant to its sovereign capacity.
Therefore, The Congo can invoke sovereign immunity and could
not be impleaded in the Courts of Quebec.
Considered from the point of view of the architect, the contract
may be deemed a purely commercial one, but, even if the theory
of restrictive sovereign immunity were applicable, the questions to
be determined would not be whether the contractor was engaged
in a private act of commerce, but whether or not the Congo,
acting as a visiting sovereign state through its duly
accredited diplomatic representatives, was engaged in the
performance of a public sovereign act of State.
Ponente pointed out the significance of the fact that Venne was
employed not only by the duly accredited diplomatic
representatives, but also by the representative of the Dept. of
Foreign Affairs (DFA) of The Congo.
This makes it plain that in preparing for the construction of its
national pavilion, a department of the Govt of a foreign state,
together with its duly accredited diplomatic representatives, were
engaged in the performance of a public sovereign act of State on
behalf of their country and that the employment of Venn was a
step taken in the performance of that sovereign act.
Therefore, The Congo could not be impleaded in the courts of
Quebec even if the so-called restrictive sovereign immunity had
been adopted in the Canadian Courts.
Also, there is a suggestion in the CAs decision that the onus
probandi lies upon the Sovereign to show that the act was a
public one if it is to be granted sovereign immunity.
But the ponentes view is that the question of whether the
contract in question was a public act done on behalf of
a sovereign State for State purposes, is one which
should be decided on the record as a whole without
placing the burden of rebutting any presumption on
either party.
Allan Construction Ltd. V. Got of Venezuela:
Facts: Plaintiff was hired by Venezuela for the construction
of a pavilion in the same Expo 67. However, Venezuela
planned to incorporate in the pavilion a restaurant with the
right to sell alcoholic liquor and to sell the products of
Venezuela.
Held: Venezuelas contract with the plaintiff was a
commercial one.
In the case of The Congo, there is no such plan to incorporate a
commercial venture. Therefore, the case law in Allan Construction
Ltd. does not apply in this case.
US cases referred to by the CA decision:
Tate Letter: it will hereafter be the [State] Departments
policy to follow the restrictive theory of sovereign immunity
in the consideration of requests of foreign governments for
a grant of sovereign immunity.
Victory Transport Inc. v. Commisaria General de Abastecimientos
y Transportes:
This case was cited as an example of an independent
judicial acceptance of the theory of restrictive sovereign
immunity
the court must decide for itself whether it is the
established policy of the State Department to
recognise claims of immunity of this type (i.e.,
restrictive sovereign immunity).
It is thus clear that in the US, the question to be answered
is whether it is the established policy of the State
Department to recognise the immunity claimed in any
particular case.
As no such question arises in Canada, the ponente takes
theview that cases concerning sovereign immunity decided
in the US Courts in those years are of little or no authority
in Canada.
Trendtex v. Central Bank of Nigeria
Issuance by Nigerian CB of letter of credit is purely commercial in
character and may be basis of suit
Facts:
The Central Bank of Nigeria opened a LOC in favor of Trendtex
for the purchase of cement. The cement was shipped but for
whatever reason, Nigeria refused to pay invoking state immunity.
Issue:
W/N Nigeria can claim immunity - No
Held:
No. An English court tried the case. In holding Nigeria liable, it
held that, under the Law Merchant, letters of credit must be
honored. The court deemed international law to be incorporated
into the law of the land automatically, except if it conflicted with
the domestic system.
Art. 16, 3 of Phil. Const.
The State may not be sued without its consent
Case law (Philippines):
Sanders v. Veridiano
A Special services director of the former US naval station in Olongapo
was sued in a personal capacity for alleged libellous letter; court
declared immunity because the acts complained of were done in the
discharge of official functions
Doctrine: Official acts of agents of another state (provided that they are
granted immunity) are covered by such privilege; In order for a state to
be sued it must consent to it.
Facts:
Sanders was the special services director of the U.S. Naval
Station (NAVSTA) in Olongapo City, while Moreau was the
commanding officer of the Subic Naval Base.
Respondents were both employed as gameroom attendants in
the special services department of the NAVSTA, the former
having been hired in 1971 and the latter in 1969. They were
informed that they are now just part time employees. They
protested to the U.S. Department of Defense which ordered their
reinstatement to full-time status with back wages.
Sanders sent a letter to Moreau disagreed with this
recommendation and reported that Responders tend to
alienate their co-workers and were difficult to supervise.
Before the grievance hearing was was started, a letter purportedly
coming from Moreau as the commanding general of the U.S.
Naval Station in Subic Bay was sent to the Chief of Naval
Personnel explaining the change of the private respondents
employment status and requesting concurrence therewith, but this
was signed by Moore, by direction.
Respondents filed a case in the CFI for damages claiming that
the letters contained libelous imputations that had exposed them
to ridicule and caused them mental anguish and that the
prejudgment of the grievance proceedings was an invasion of
their personal and proprietary rights. Sanders and Moreau filed a
motion to dismiss arguing that the court has no jurisdiction
because the said acts were performed in the discharge of their
duties.
The trial court ruled in favor of the respondent and ordered a writ
of preliminary attachment to the properties of Moreau. Hence this
petition.
Issue:
Whether the petitioners were acting official capacities which
merits them the grant of jurisdictional immunity. YES
Held:
Yes
The mere allegation that a government functionary is being sued
in his personal capacity will not automatically remove him from
the protection of the law of public officers and, if appropriate, the
doctrine of state immunity.
The mere invocation of official character will not suffice to insulate
him from suability and liability for an act imputed to him as a
personal tort committed without or in excess of his authority.
Baer v. Tizon, Syquia v. Almeda Lopez, United States of America
v. Ruiz, consistently held that the US has not consented to be
sued and the suit could not prosper because the acts complained
of were covered by the doctrine of state immunity
In the present case that the acts of the petitioners were performed
by them in the discharge of their official duties. Sanders, as
director of the special services department of NAVSTA,
undoubtedly had supervision over its personnel, including the
private respondents, and had a hand in their employment, work
assignments, discipline, dismissal and other related matters.
It is not disputed that the letter Sanders had written was in fact a
reply to a request from his superior, the other petitioner, for more
information regarding the case of the private respondents.
Even in the absence of such request, he still was within his rights
in reacting to the hearing officers criticismin effect a direct
attack against him-that Special Services was practicing "an
autocratic form of supervision.
Given the official character of the above-described letters,
we have to conclude that the petitioners were, legally
speaking, being sued as officers of the United States
government
As they have acted on behalf of that government, and within
the scope of their authority, it is that government, and not the
petitioners personally, that is responsible for their acts.
There should be no question by now that such complaint cannot
prosper unless the government sought to be held ultimately liable
has given its consent to be sued.
The SC , in a line of cases, upheld the doctrine of state immunity
as applicable not only to our own government but also to foreign
states sought to be subjected to the jurisdiction of our courts.
It would seem only proper for the courts of this country to refrain
from taking cognisance of this matter and to treat it as coming
under the internal administration of the said base. (Parties in this
case were Americans and Naval Base employees)
US v. Guinto
The acts of soliciting bids by the USAF is proprietary in nature
Consolidation of 4 cases:
Summary:
1. Barbershop bidding
There was a bidding war on a barbershop concession
inside Clark Airbase. The ones that lost the bidding filed a
suit against the US officers. They filed motion to dismiss
because they were immune from suit since they were
employees of the US Air Force. Lower court denied motion
because there was a commercial transaction.
Held: NOT IMMUNE. Commercial Transaction. Remanded
for trial on facts of the case
2. Pee in soup
Cook was dismissed from Recreational Center Resto in
Camp John Hay because he peed into the soup he served.
US said, dismiss because US officers enjoy immunity.
Lower court denied because although he was an officer he
acted beyond his duties amounting to illegal acts done in
bad faith and that there was a CBA involved in
employment.
Held: NOT IMMUNE. The resto was a proprietary activity
and not an official act of the State. The CBA agreement, a
contract, was a waiver of immunity. But the SC said that
they were not liable, it was clear the cook peed in soup and
there was a proper investigation and due process for cook
3. Buy-bust
Airforce Officers catch barracks-boy in a buy-bust
operation, which led to his dismissal. Civil case against the
officers, they didnt have US lawyers so they got local
counsel at first and filed answers. When US government
finally got to them filed for motion to dismiss. Lower court
denied because immunity is only for criminal cases and not
civil and that the US officers had already submitted
answers to the court.
Held: IMMUNE, as for the issue on filing of answers,
immunity cannot be waived by counsel it must be
embodied in an instrument
4. Dog-biting / theft
Conflicting facts: Accdg to respondents they filed damages
because the Americans handcuffed them and had their
dogs attack them. Accdg to the petitioners, they caught the
respondents while they were stealing, the dog bites were
there because they had tried to evade capture. The motion
to dismiss was denied because the facts of the case should
be ventilated in trials since one set of them alleges that the
US officers were exceeding their authority and doing illegal
whiz.
Held: REMANDED to determine which facts were correct, if
in the course of their duties then IMMUNE
Doctrine:
The doctrine of state immunity is also applicable to complaints
filed against officials of the state for acts allegedly performed by
them in the discharge of their duties.
The rule is that if the judgment against such officials will
require the state itself to perform an affirmative act to
satisfy the same, such as the appropriation of the amount
needed to pay the damages awarded against them, the suit
must be regarded as against the state itself although it has
not been formally impleaded.
In such a situation, the state may move to dismiss the
complaint on the ground that it has been filed without its
consent.
The doctrine is sometimes derisively called he royal
prerogative of dishonesty because of the privilege it
grants the state to defeat any legitimate claim against it
by simply invoking its non-suability
the doctrine is not absolute and does not say the
state may not be sued under any circumstance.
On the contrary, the rule says that the state may
not be sued without its consent, which clearly
imports that it may be sued if it consents
The consent of the state to be sued may be
manifested expressly or impliedly. Express consent
may be embodied in a general law or a special law.
Consent is implied when the state enters into a
contract or it itself commences litigation
GR:
When the government enters into a contract, it is deemed
to have descended to the level of the other contracting
party and divested of its sovereign immunity from suit with
its implied consent.
Exception:
Express consent is effected only by the will of the
legislature through the medium of a duly enacted
statute. We have held that not all contracts entered
into by the government will operate as a waiver of its
non-suability; distinction must be made between its
sovereign and proprietary acts.
GR: Waiver is also implied when the government files a
complaint, thus opening itself to a counterclaim.
Exception: As for the filing of a complaint by the
government, suability will result only where the government
is claiming affirmative relief from the defendant.
Chuidian v. Sandiganbayan
A L/C issued in manila was the basis of a suit by an alleged marcos-
crony to compel PNB to pay proceeds of the L/C before a US District
Court. The Federal Court refused to compel PNB stating that PCGG
freeze orders are acts of state.
Facts:
Petitioner Vicente Chuidian was alleged to be a dummy of
spouses Ferdinand and Imelda Marcos in the spouses illegally-
acquired companies.
He allegedly induced PHILGUARANTEE, the BOI and the
Central Bank, to execute a loan guarantee of $25Million
USD in favor of the ARCI, of which 98% was owned by the
former
However, Chiudian defaulted on his obligations and instead
invested the proceeds of the loan in other corporations.
Although ARCI had received the proceeds of the loan
guaranteed by Philguarantee, the former defaulted in the
payments thereof, compelling Philguarantee to undertake
payments for the same.
Consequently, in June 1985, Philguarantee sued Chuidian
before the Santa Clara County Superior Court for misuse of
funds and violations of the terms of the loan.
Three months before the EDSA revolution, Philguarantee
entered into a compromise agreement with Chuidian
whereby petitioner Chuidian shall assign and surrender title
to all his companies in favor of the Philippine government.
In return, Philguarantee shall absolve Chuidian from all civil
and criminal liability, and the Philippine government shall
pay Chuidian US$5,300,000.00 through an irrevocable
Letter of Credit (L/C) by the Philippine National Bank
(PNB).
With the advent of the Aquino administration, the PCGG
sequestered the assets of Chuidian, including the L/C.
Because of this, Chuidian filed before the United States
District Court, Central District of California, an action
against PNB seeking, among others, to compel PNB to pay
the proceeds of the L/C.
PNB countered that it cannot be held liable for a breach of
contract under principles of illegality, international comity
and act of state, and thus it is excused from payment of the
L/C.
Philguarantee intervened in said action, raising the same
issues and arguments it had earlier raised in the action
before the Santa Clara Superior Court, alleging that PNB
was excused from making payments on the L/C since the
settlement was void due to illegality, duress and fraud.
The Federal Court rendered judgment ruling: (1) in favor of
PNB excusing the said bank from making payment on the
L/C; and (2) in Chuidians favor by denying intervenor
Philguarantees action to set aside the settlement
agreement.
Pursuant to the rehabilitation plan for PNB, a Deed of
Transfer was executed providing for the transfer to the
government of certain assets of PNB in exchange for which
the government would assume certain liabilities of PNB,
including the L/C of Chuidian.
In 1987, the government filed before the Sandiganbayan a
complaint against the Marcos spouses, several government
officials, cronies of the Marcoses (including Chuidian), seeking for
the reconveyance of the ill-gotten wealth.
The Republic of the Philippines filed a motion for issuance
of a writ of attachment over the L/C, alleging that Chuidian
fraudulently misapplied the funds of ARCI.
The Sandiganbayan issued a Resolution ordering the
issuance of a writ of attachment against the L/C as security
for the satisfaction of judgment.
Four years later, Chuidian filed a motion to lift the
attachment and a motion to require the Republic to deposit
the L/C in an interest bearing account, to which the
Republic opposed.
The Republic alleged that Chuidians absence was not the
only ground for the attachment and, therefore, his belated
appearance before the Sandiganbayan is not a sufficient
reason to lift the attachment. Moreover, allowing the
foreign judgment as a basis for the lifting of the attachment
would essentially amount to an abdication of the jurisdiction
of the Sandiganbayan to hear and decide the ill gotten
wealth cases lodged before it in deference to the judgment
of foreign courts.
The Sandiganbayan denied the two motions filed by
Chuidian.
On Reconsideration, the Sandiganbayan still denied
the motion to lift attachment, but gave due course to
Chuidians plea for the attached L/C to be deposited
in an interest-bearing account, on the ground that it
will redound to the benefit of both parties.
The Sandiganbayan declared the national
government as the principal obligor of the L/C even
though the liability remained in the books of the PNB
for accounting and monitoring purposes.
Issue:
W/N the favourable judgment of the United States District Court
brought by petitioner Chuidian against PNB could be used as
basis to lift the order of attachment and compel PNB to pay the
L/C? - NO
Held:
No. Petitioner cites the favorable judgment by the United States
District Court in civil case brought by petitioner Chuidian against
PNB to compel the latter to pay the L/C. However, while it is true
that the US District Court ruled in favor of Chuidian by denying
intervenor Philguarantees action to set aside the settlement
agreement, it also said that:
Under Executive Order No. 1, the PCGG is vested by the
Philippine President with the power to enforce its directives and
orders by contempt proceedings. Under Executive Order No. 2,
the PCGG is empowered to freeze any, and all assets, funds and
property illegally acquired by former President Marcos or his
close friends and business associates.
In 1986, PNB/Manila received an order from the PCGG ordering
PNB to freeze any further drawings on the L/C. The freeze order
has remained in effect and was followed by a sequestration order
issued by the PCGG.
Subsequently, Chuidians Philippine counsel filed a series of
challenges to the freeze and sequestration orders, which
challenges were unsuccessful as the orders were found valid
by the Philippine Supreme Court. The freeze and
sequestration orders are presently in effect.
Thus, under the PCGG order and Executive Orders Nos. 1
and 2, performance by PNB would be illegal under Philippine
Law. Therefore PNB is excused from performance of the L/C
agreement as long as the freeze and sequestration orders
remain in effect.
Chuidian argues that the fact that the L/C was issued pursuant to
a settlement in California, that the negotiations for which occurred
in California, and that two of the payments were made at PNB/LA,
compels the conclusion that the act of prohibiting payment of the
L/C occurred in Los Angeles.
The Court is not convinced with this argument. The L/C was
issued in Manila, such was done at the request of a
Philippine government instrumentality for the benefit of a
Philippine citizen. The L/C was to be performed in the
Philippines, all significant events relating to the issuance
and implementation of the L/C occurred in the Philippines,
the L/C agreement provided that the L/C was to be construed
according to laws of the Philippines, and the Philippine
government certainly has an interest in preventing the L/C
from being remitted in that it would be the release of funds
that are potentially illgotten gains. Accordingly, the Court
finds that the PCGG orders are acts of state that must be
respected by this Court, and thus PNB is excused from
making payment on the L/C as long as the freeze and
sequestration orders remain in effect.
Petitioners own evidence strengthens the governments
position that the L/C is under the jurisdiction of the
Philippine government and that the U.S. Courts recognize the
authority of the Republic to sequester and freeze said L/C.
Hence, the foreign judgments relied upon by petitioner do
not constitute a bar to the Republics action to recover
whatever alleged ill-gotten wealth petitioner may have
acquired.
Dayrit v. Phil Pharmawealth
Suing individual petitioners in their individual capacities for damages in
connection with abuse of official positions in order for Pharmawealth not
to be awarded a contract is permissible and an actionable wrong.
Facts:
Phil. Pharmawealth, Inc. (respondent) is a domestic corporation
engaged in the business of manufacturing and supplying
pharmaceutical products to government hospitals in the
Philippines
Secretary of Health Romualdez, Jr. issued A.O. 27 (1998),
outlining the guidelines and procedures on the accreditation of
government suppliers for pharmaceutical products.
It was amended by A.O. No. 10 (2000), providing for additional
guidelines for accreditation of drug suppliers aimed at ensuring
that only qualified bidders can transact business with petitioner
DOH
Later, respondent submitted to DOH a request for the inclusion of
additional items in its list of accredited drug products, including
the antibiotic Penicillin G Benzathine.
Based on the schedule provided by DOH, the processing of and
release of the result of respondents request were due on
September 2000
In September 2000, petitioner DOH, through petitioner Lopez,
chairperson of the pre-qualifications, bids and awards committee,
issued an Invitation for Bids for the procurement of 1.2 million
units vials of Penicillin G Benzathine
Despite the lack of response from DOH regarding respondents
request for inclusion of additional items in its list of accredited
products, respondent submitted its bid for the Penicillin G
Benzathine contract
When the bids were opened on October 11, 2000, only two
companies participated, with respondent submitting the lower bid
at P82.24 per unit, compared to Cathay/YSS Laboratories (YSS)
bid of P95.00 per unit
In view, however, of the non-accreditation of respondents
Penicillin G Benzathine product, the contract was awarded to
YSS
Respondent thus filed a complaint for injunction, mandamus and
damages with prayer for the issuance of a writ of preliminary
injunction and/or TRO with the RTC of Pasig City praying, inter
alia, that the TC nullify the award of the contract to YSS
Laboratories, Inc. and direct DOH, Romualdez, Galon and Lopez
to declare Pharmawealth as the lowest complying responsible
bidder for the Benzathine contract, and that they accordingly
award the same to plaintiff company and adjudge defendants
Romualdez, Galon and Lopez liable, jointly and severally to
plaintiff, for [the therein specified damages].
In their Comment, DOH, Romualdez, Jr. who was later succeeded
by Dayrit, and Usecs Galon and Lopez argued for the dismissal of
the complaint for lack of merit in view of the express reservation
made by petitioner DOH to accept or reject any or all bids without
incurring liability to the bidders, positing that government
agencies have such full discretion
Petitioners subsequently filed a Manifestation and Motion to
Dismiss praying for the outright dismissal of the complaint based
on the doctrine of state immunity.
To petitioners motion to dismiss, respondent filed its
comment/opposition contending, in the main, that the
doctrine of state immunity is not applicable
considering that individual petitioners are being sued
both in their official and personal capacities, hence,
they, not the state, would be liable for damages.
RTC denied petitioners motion to dismiss
Their motion for reconsideration having been denied, petitioners
filed a petition for certiorari with the CA, before which they
maintained that the suit is against the state. CA affirmed
Issue:
W/N the petitioners can invoke State Immunity NO
Held:
No.
As regards petitioner DOH, the defense of immunity from suit
will not avail despite it being an unincorporated agency of
the government, for the only causes of action directed
against it are preliminary injunction and mandamus.
Under Section 1, Rule 58 of the Rules of Court, preliminary
injunction may be directed against a party or a court,
agency or a person.
Moreover, the defense of state immunity from suit does
not apply in causes of action, which do not seek to
impose a charge or financial liability against the State.
The rule that a state may not be sued without its consent,
now embodied in Section 3, Article XVI of the 1987
Constitution, is one of the generally accepted principles of
international law, which we have now adopted as part of
the law of the land.
While the doctrine of state immunity appears to prohibit
only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state
for acts allegedly performed by them in the discharge of
their duties.
The suit is regarded as one against the state where
satisfaction of the judgment against the officials will
require the state itself to perform a positive act, such
as the appropriation of the amount necessary to pay
the damages awarded against them.
According to Shauf vs CA, the State authorizes only legal
acts by its officers. Therefore, unauthorized acts of
government officials or officers are not acts of the
State. An action against those officials is not a suit
against a state within the rule of immunity of the State
from suit.
Hence, the rule does not apply where the public official
is charged in his official capacity for acts that are
unauthorized or unlawful and injurious to the rights of
others. Neither does it apply where the public official
is clearly being sued not in his official capacity but in
his personal capacity, although the acts complained of
may have been committed while he occupied a public
position.
In the present case, suing individual petitioners in their personal
capacities for damages in connection with their alleged act of
illegally abusing their official positions to make sure that plaintiff
Pharmawealth would not be awarded the Benzathine contract,
which was done in bad faith and with full knowledge of the limits
and breadth of their powers given by law is permissible.
An officer who exceeds the power conferred on him by law
cannot hide behind the plea of sovereign immunity and
must bear the liability personally.
It bears stressing, however, that the statements in the
immediately foregoing paragraph in no way reflect a
ruling on the actual liability of petitioners to
respondent. The mere allegation that a government
official is being sued in his personal capacity does not
automatically remove the same from the protection of
the doctrine of state immunity. Neither, on the other
hand, does the mere invocation of official character
suffice to insulate such official from suability and
liability for an act committed without or in excess of
his or her authority. These are matters of evidence
which should be presented and proven at the trial.
(IMPORTANT DOCTRINE)
Professional Video v. TESDA
TESDA performs governmental functions. State immunity applies in this
case notwithstanding TESDAs entry into contract for production of PVC
cards for its trainees.
SUMMARY: TESDA entered into a contract with PROVI for the printing
and encoding of PVCs. PROVI alleged that out of TESDAs liability of
P39.47M, TESDA only paid P3.7M as evidenced by PROVIs Statement
of Account. PROVI filed a case against TESDA in the RTC, which
issued a writ of preliminary attachment against the latters properties.
The CA reversed the decision. The SC affirmed the CAs decision. As a
government instrumentality, it cannot be sued without its consent. The
Contract entered into was in lieu of its governmental functions; hence,
there was no waiver of immunity from suit by TESDA. Further, TESDAs
funds are public in character, hence they are exempt from attachment or
garnishment.
Facts:
PROVI is an entity engaged in the sale of high technology
equipment, information technology products and broadcast
devices, including the supply of plastic card printing and security
facilities.
TESDA is an instrumentality of the government established under
RA 7796 (the TESDA Act of 1994) and attached to the DOLE to
develop and establish a national system of skills standardisation,
testing, and certification in the country.
To fulfil this mandate, it sought to issue security-printed
certification and/or identification polyvinyl (PVC) cards to trainees
who have passed the certification process.
TESDAs conducted 2 public bidding for the printing and encoding
of the PVCs, but failed in both instances since PROVI and Sirex
Phils. Corp were the only bidders.
Due to the failed bidding, the Bidding Awards Committee
recommended that TESDA enter into a negotiated contract with
PROVI.
On December 29, 1999, TESDA and PROVI signed and executed
their Contract Agreement Project: PVC ID Card Issuance (the
Contract) for the printing and encoding of PVC cards.
PROVI was to provide TESDA with the system and equipment
based on the proposal.
TESDA would pay PROVI the amount of P39,475,000 within 15
days after TESDAs acceptance of the contracted goods and
services.
On August 24, 2000, they executed an Addendum to the Contract
whose terms bound PROVI to deliver 100% of the supplies to
TESDA (includes security foils, security die with TESDA seal, ID
cards, etc)
PROVI would also install and maintain a certain number of
printers and scanners.
TESDA in turn undertook to pay PROVI 30% of the total cost of
the supplies within thirty (30) days after receipt of the contracted
supplies, with the balance payable within thirty (30) days after the
initial payment.
PROVI alleged that out of TESDAs liability of P39.47M, TESDA
only paid P3.7M as evidenced by PROVIs Statement of Account.
This remained unpaid despite the demand letters sent by PROVI.
PROVI filed with the RTC a complaint for sum of money with
damages against TESDA and additionally prayed for the issuance
of a writ of preliminary attachment/garnishment against TESDA.
GRANTED and issued a writ of preliminary attachment against
the properties of TESDA not exempt from execution in the amount
of P35,000,000.00
Issue:
W/N the writ of attachment against TESDA and its funds, to cover
PROVIs claim against TESDA, is valid.NO. TESDA is an
agency of the government, hence it cannot be sued without its
consent.
Held:
PROVI argues that when TESDA entered into a purely
commercial contract with PROVI, TESDA went to the level of an
ordinary private citizen and could no longer use the defense of
state immunity from suit.
TESDA claims that it entered the Contract and Addendum in the
performance of its governmental function; hence, TESDA is
immune from suit.
1. TESDA is an instrumentality of the government undertaking
governmental functions.
Under RA 7796, which created TESDA, as well as the
constitutional affirmation that [T]he State affirms labor as a
primary social economic force, and shall protect the rights
of workers and promote their welfare; that [T]he State
shall protect and promote the right of all citizens to quality
education at all levels, and shall take appropriate steps to
make such education accessible to all; in order to afford
protection to labor and promote full employment and
equality of employment opportunities for all., TESDAs role
in the government cannot be contested.
It is an unincorporated instrumentality of the government,
directly attached to the DOLE through the participation of
the Secretary of Labor as its Chairman, for the
performance of governmental functions i.e., the handling
of formal and non-formal education and training, and skills
development. As an unincorporated instrumentality
operating under a specific charter, it is equipped with both
express and implied powers, and all State immunities fully
apply to it.
2. TESDA, as an agency of the State, cannot be sued without its
consent. (IMPT!!!)
Sec. 3, Art. XVI of the Consti embodies the rule that a state
may not be sued without its consent.
It is as well a universally recognised principle of
international law that exempts a state and its organs from
the jurisdiction of another state.
The principle is based on the very essence of sovereignty,
and on the practical ground that there can be no legal right
as against the authority that makes the law on which the
right depends.
It also rests on reasons of public policy that public
service would be hindered, and the public endangered, if
the sovereign authority could be subjected to law suits at
the instance of every citizen and, consequently, controlled
in the uses and dispositions of the means required for the
proper administration of the government.
The proscribed suit that the state immunity principle
covers takes on various forms, namely:
1. a suit against the Republic by name;
2. a suit against an unincorporated government
agency;
3. a suit against a government agency covered by a
charter with respect to the agencys performance
of governmental functions; and
4. a suit that on its face is against a government
officer, but where the ultimate liability will fall on
the government.
In the present case, the writ of attachment was issued
against a government agency covered by its own charter.
SC agrees with TESDA that the purchasing of PVC cards
by TESDA is within the governmental functions given to it.
That TESDA sells the PVC cards to its trainees for a fee
does not characterise the transaction as industrial or
business; the sale cannot be considered separately from
TESDAs general governmental functions, as they are
undertaken in the discharge of these functions.
3. TESDAs funds are public in character, hence exempt from
attachment or garnishment.
ATCI v. Echin
Echin was hired by the ATCI in behalf of the Ministry of Public Health of
Kuwait. An alleged illegal dismissal case was filed against ATCI and the
Ministry. ATCI cannot plead immunity of the Ministry where the solidary
obligation may be frustrated
Facts:
Echin was hired by ACTI in behalf of MPHK for the position of
Medical Technologist under a 2 year contract, denominated as a
Memorandum of Agreement with a monthly salary of 1,200 USD
The MOA
All newly-hired employees undergo a probationary period
of 1 year
Echin was deployed on February 17, 2000 BUT was terminated
from employment on February 11, 2001, she not having
ALLEGEDLY passed the probationary period
As her request for reconsideration was denied, she returned to
the Philippines on March 17,2001
On July 27, 2001, Echin filed with the NLRC a complaint for illegal
dismissal against ATCI, represented by Ikdal (also a petitioner)
and MPHK
The Labor Arbiter held that there was illegal dismissal and
ordered all the petitioners to pay USD 3,600 representing her
salary for 3 months
This decision was affirmed by the NLRC
The petitioners filed suit in the CA contending that
their principal, MPHK, being a foreign government agency,
is IMMUNE FROM SUIT, and as such, the immunity is
extended to them
The dismissal was valid for her failure to meet the
performance rating within the 1 year period required under
Kuwaits civil service laws
CA affirmed the NLRC decision
The CA said that under the law, a private employment
agency shall assume all responsibilities for the
implementation of the contract of employment of an
overseas worker, hence, it can be sued jointly and severally
with the foreign principal for any violation of the recruitment
agreement
As to Ikdals liability, the appellate court held that under
Sec. 10 of RA 8042, the "Migrant and Overseas Filipinos'
Act of 1995", corporate officers, directors and partners of a
recruitment agency may themselves be jointly and solidarily
liable with the recruitment agency for money claims
However, petitioner maintains that they should not be held
liable because the employment contract specifically said
that the employment shall be governed by the Civil Service
Law and Regulations of Kuwait
They also argue that even assuming Philippine labor
laws apply, given that the foreign principal is a
government agency which is immune from suit,
petitioner ATCI cannot likewise be held liable
Issue:
w/n ATCI and Ikdal may be held liable?
Held
Yes
Petitioner ATCI, as a private recruitment agency, cannot
evade responsibility for the money claims of OFWs which it
deploys abroad by just saying that its foreign principal is
immune from suit
In providing for the joint and solidary liability of private
recruitment agencies with their foreign principals, RA 8042
precisely affords the OFWs with a recourse
It is in line with the policy of the State to protect and
alleviate the plight of the OFWs
To allow the petitioners to simply invoke immunity from suit
of its foreign principal or to wait for the judicial
determination of the foreign principals liability renders the
law on joint and solidary liability inutile
With respect to petitioners argument that it is governed by Kuwait
laws and that POEA rules accord respect to rules, customs, and
practices of the host state - the same was not substantiated
The party invoking the application of foreign law has
the burden of proving the law, under the doctrine of
processual presumption, which in this case,
petitioners failed to discharge
In international law, the part who wants to have a foreign
law applied to a dispute or case has the burden of proving
the foreign law
The foreign law is treated as a question of fact to be
properly pleaded and proved as the judge cannot take
judicial notice of a foreign law
Unfortunately for petitioner, it failed to prove the pertinent
Saudi laws- they must not only be alleged, THEY MUST
BE PROVEN
Thus, the international law doctrine of presumed-identity
approach or processual presumption comes into play
Where a foreign law is not pleaded, or even if pleaded, is
not proved, the presumption is that the foreign law is the
same as ours
Thus, we apply, Philippine labor laws in determining the
issues before us
To prove a foreign law, a party invoking it must present a
copy and comply with Secs 24 and 25 of Rule 132 of the
Rules of Court
To prove Kuwaiti law, petitioners just submitted the ff:
MOA between respondent and MPHK
A translated copy
Termination letter to respondent stating that she did
not pass the probation terms
Must be certified by Alawi, Head of the Dept of
Foreign Affairs-Office of Consular Affiars Inslamic
Certification and Translation Unit
Respondents letter of reconsideration
However, they must submit a copy of the pertinent Kuwaiti
labor laws duly authenticated and translated by Embassy
officials thereat, as required by the Rules
With regard to Ikdals joint and solidary liability as a corporate
officer, the same is in oder too following the express provision of
RA 8042 on Money Claims
The liability of the principal and the recruitment agency
shall be joint and several.....the corporate officers..as the
case may be, shall be jointly and solidarily liable with the
corporation or partnership
Gunigundo v. Sandiganbayan
Act if state doctrine does not apply in this case. The SB will no review
freezes orders of Swiss officials in Civil Case No. 0164, but will only
examine the propriety of maintaining PCGGs position with respect to
complainants accounts with BTAG for the purpose of determining
propriety of issuing a writ against PCGG and OSG
Facts:
Criminal proceedings were instituted in the Philippines to locate,
sequester and seek restitution of the ill-gotten wealth of the
Marcoses
On 7 April 1986, the Office of the Solicitor General (OSG) wrote
the Federal Office for Police Matters in Berne, Switzerland,
requesting assistance for the latter office to:
(a) ascertain and provide the OSG with information about
the ill-gotten fortune of the Marcoses, the names of the
depositors and the banks and amounts involved; and
(b) take necessary precautionary measures to freeze the
assets in order to preserve their existing value and prevent
any further transfer.
The Office of the District Attorney in Zurich issued an Order
directing the Swiss Banks in Zurich to freeze the accounts,
including those of Officeco Holdings.
Officeco appealed the Order of the District Attorney to the
Attorney General of the Canton of Zurich, who affirmed the Order
of the District Attorney. Officeco further appealed to the Swiss
Federal Court which likewise dismissed the appeal.
In late 1992, Officeco asked the OSG and the PCGG to officially
advise the Swiss government to unfreeze Officecos assets. The
PCGG required Officeco to present countervailing evidence to
support its request.
Instead, Officeco filed the complaint in 1994, which prayed for the
PCGG and the OSG to officially advise the Swiss government to
exclude from the freeze or sequestration order the account of
Officeco.
The PCGG filed a motion to dismiss which was denied by the
Sandiganbayan. The Motion for Reconsideration was also denied.
Issue:
Whether or not the Sandiganbayan erred in not dismissing the
case for reasons of
(1) res judicata;
(2) lack of jurisdiction on account of the act of state
doctrine;
(3) lack of cause of action for being premature for failure to
exhaust administrative remedies; and
(4) lack of cause of action for the reason that mandamus
does not lie to compel performance of a discretionary act,
there being no showing of grave abuse of discretion on the
part of petitioners.
Held:
No SB did not err.
Act of State Doctrine
Petitioners claim that the case in effect seeks a judicial
review of the legality or illegality of the acts of the Swiss
government.
act of state doctrine - courts of one country will not sit in
judgment on the acts of the government of another in due
deference to the independence of sovereignty of every
sovereign state.
Citing Underhill v. Hernandez:
Every sovereign state is bound to respect the
independence of every other state, and the courts of
one country will not sit in judgment on the acts of the
government of another, done within its territory.
Redress of grievances by reason of such acts must
be obtained through the means open to be availed of
by sovereign powers as between themselves.
There are three methods by which States prevent
their national courts from deciding disputes
which relate to the internal affairs of another
State:
1. act of state doctrine,
2. immunity and
3. non-justiciability.
It is an avoidance technique that is directly related to a
States obligation to respect the independence and equality
of other States by not requiring them to submit to
adjudication in a national court or to settlement of their
disputes without their consent.
In Banco Nacional de Cuba v. Sabbatino(US SC) held that,
International law does not require the application
of this doctrine nor does it forbid the application
of the rule even if it is claimed that the act of
state in question violated international law.
Moreover, due to the doctrines peculiar nation-
to-nation character, in practice the usual method
for an individual to seek relief is to exhaust local
remedies and then repair to the executive
authorities of his own state to persuade them to
champion his claim in diplomacy or before an
international tribunal
Contrary to Petitioners assertion, the Sandiganbayan
will only review and examine the propriety of
maintaining PCGGs position with respect to Officecos
accounts with BTAG for the purpose of further
determining the propriety of issuing a writ against the
PCGG and the OSG.
Case Law (UK):
Pinochet Case
W/N Pinochet is entitled to immunity as a former head of State - No
Summary:
Under the Operativo Condor, he, together with other governments
(Argentina), organised the commission of crimes (torture,
kidnapping) through the police and secret service.
Criminal complaints of actio popularis were filed by private
citizens in Spain against Pinochet.
The Spanish court ordered his arrest who was then in the UK.
A provisional warrant of arrest was issued by a London magistrate
under the UK Extradition Act of 1989.
Pinochet argued before the Divisional Court of the Queens
Bench Division that as former head of state, he cannot be
prosecuted at common law because he acted in a sovereign
capacity.
The court quashed the warrants of arrest but on appeal before the
House of Lords, it was held that he was no immune from
prosecution in UK courts for crimes under international law
Later, the House of Lords set aside the decision because the
Appellate Committee had improperly been constituted. On
rehearing, the Government of Chile intervened to assert its own
interest and right to have these matters death with in Chile,
presenting immunity not as a shield for Pinochet, but for its own
sovereignty.
Note: The ff. remedies exist, Pinochet may be tried:
1. in his own country
2. in any other country that can assert jurisdiction, provided
Chile waives immunity
3. before the ICC, or
4. before a specially constituted international court
Article I. The exploration and use of outer space, including the moon
and other celestial bodies, shall be carried out for the benefit and in the
interests of all countries, irrespective of their degree of economic or
scientific development, and shall be the province of all mankind. Outer
space, including the moon and other celestial bodies, shall be free for
exploration and use by all States without discrimination of any kind, on
a basis of equality and in accordance with international law, and there
shall be free access to all areas of celestial bodies. There shall be
freedom of scientific investigation in outer space, including the moon
and other celestial bodies, and States shall facilitate and encourage
international co-operation in such investigation.
Article 11. Outer space, including the moon and other celestial bodies,
is not subject to national appropriation by claim of sovereignty, by
means of use or occupation, or by any other means.
Article III. States Parties to the Treaty shall carry on activities in the
exploration and use of outer space, including the moon and other
celestial bodies, in accordance with international law, including the
Charter of the United Nations, in the interest of maintaining
international peace and security and promoting international co-
operation and understanding.
Article IV. States Parties to the Treaty undertake not to place in orbit
around the Earth any objects carrying nuclear weapons or any other
kinds of weapons of mass destruction, install such weapons on celestial
bodies, or station such weapons in outer space in any other manner.
The Moon and other celestial bodies shall be used by all States Parties to
the Treaty exclusively for peaceful purposes. The establishment of
military bases, installations and fortifications, the testing of any type of
weapons and the conduct of military maneuvers on celestial bodies shall
be forbidden. The use of military personnel for scientific research or for
any other peaceful purposes shall not be prohibited. The use of any
equipment or facility necessary for peaceful exploration of the Moon
and other celestial bodies shall also not be prohibited.
Bernas
Doctrine of state responsibility
The customary law doctrine on the protection of aliens should be seen in
relation to the doctrine on state responsibility
When an injury has been inflicted, there is need to determine whether the state
can be held responsible for it.
One of the principles most strongly held by states is that if a state
violates a customary rule of international law or a treaty obligation, it
commits an internationally wrongful act.
At its fifty-third session (2001), the International Law Commission adopted on
second reading a complete text of the Articles on Responsibility of States for
Internationally Wrongful Acts. The Articles have been referred to the General
Assembly for consideration.
Although its work has not yet been finalized, much of what it has done so far
consists of principles which are widely accepted. What need to be understood
are:
1. the elements of an internationally wrongful act;
2. the attributability of the wrongful act to the state; and
3. the enforcement of the obligation that arises from the wrongful act.
Internationally wrongful act
Article 1 - Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international
responsibility of that State.
[States derive immense benefits from the international legal
system. Accordingly, when a state consents to be a part of that
system, it also accepts corresponding legal obligations. Primarily,
it must accept responsibility for actions which have an effect on
other international legal persons.]
Article 2 - Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct
consisting of an action or omission:
(a) Is attributable to the State under international law; and
(b) Constitutes a breach of an international obligation of the State
[subjective element - the act must be attributable to the
state
objective element - it must be a violation of an international
obligation]
Article 3 - Characterization of an act of a State as internationally wrongful
The characterization of an act of a State as internationally wrongful is
governed by international law. Such characterisation is not affected by
the characterisation of the same act as lawful by internal law.
Article 12 - Breach of an international obligation
There is a breach of an international obligation by a State when an act
of that State is not in conformity with what is required of it by that
obligation, regardless of its origin or character.
Attribution to the State
The acts which can be attributed to the state may be acts of state organs, the
acts of other persons, or the acts of revolutionaries.
Acts of state organs
Article 4
Conduct of organs of a State
Article 5
Conduct of persons or entities exercising elements of governmental
authority
Article 6
Conduct of organs placed at the disposal of a State by another State
Article 7
Excess of authority or contravention of instructions
Article 8
Conduct directed or controlled by a State
Article 9
Conduct carried out in the absence or default of the official authorities
Article 10
Conduct of an insurrectional or other movement
Bernas
Extended Outline
Case Law:
Philippines:
Application of the UDHR and ICCPR on the right to return of the Marcoses from
Hawaii even if the Bill of Rights did not specify this right. However, the SC held that
the Philippines did not act arbitrarily in determining that the return of the Marcoses
under the circumstances then existing posed a serious threat to national interests
and welfare
RP v. SB
The revolutionary government following EDSA 1 was subject to the ICCPR and
UDHR
Rubrico v. GMA
BOAC v. Cadapan
Bernas
Extended outline
GR: State with right to expropriate foreign-owned property for a public purpose
Exception: If arbitrary or discriminatory or motivated by considerations of
political nature
Note:
Unsettled amount of compensation and what constitutes expropriation
2 views:
1. US and Capitalist States prompt, adequate, effective
2. Socialist States No compensation
Norm/practice - Bilateral Investment Treaties would provide the standard of
compensation
United Nations Declaration on Permanent Sovereignty over Natural Resources
,1962, UNGA Resolution 1803 (XVII)
There is an inalienable right of state to freely dispose of natural wealth and
resources;
bases for expropriation are public utility, security, and national interest
standard appropriate compensation
UN Resolution 3171 (XXVIII) on Permanent Sovereignty over Natural
Resources, Dec. 17, 1973
State is entitled to determine compensation and mode of payment; and dispute
on this matter is to be settled based on national legislation
Charter of Economic Rights and Duties of States
Right of a State to regulate foreign investment without preferential treatment;
standard appropriate compensation
Proposed Amendment to Art. 2 of Charter of Economic Rights and Duties of
States
Developing states reject amendment to Art. 2 aimed at using the term just
compensation
Case law:
Texaco Overseas Petroleum v. Libya
Companies are entitled to restitute in integrum on the basis of violation
of an internationalised contract
Tribunal disregarded issue of nationalisation
Reference to general principles of law outside of internal law breach
of contract
private party has specific but limited international capacities in this case
Facts:
Libya issued decrees nationalising all the rights, interests and
properties of Texaco and California Asiatic that had been granted
to them under 14 deeds of concession.
Texaco and California requested arbitration and appointed an
arbitrator.
Since Libya refused to submit to arbitration, the ICJ appointed
Professor Dupuy as the sole arbitrator.
Issue:
WON the issues in this case may be subject to arbitration;
WON there was a breach of contract on the part of Libya
Held:
Yes, case may be subject to arbitration;
Yes, Libya breached its obligations under the contract
Ratio:
On jurisdiction for arbitration the 14 deeds of concession were
internationalised contracts
The deeds of concession contained a provision saying that
the concession would be governed by general principles of
Libyan law COMMON TO PRINCIPLES OF
INTERNATIONAL LAW, and that in the absence of such
common principles, then they would be governed by and in
accordance with THE GENERAL PRINCIPLES OF LAW,
including those applied by international tribunals
This supported the conclusion that the nature of the deeds
of concession made it an internationalised contract
On Breach of Contract
Libya was legally bound to perform the deeds of
concession according to their terms
An internationalized contract has effects and
consequences on the rights of the parties they may enter
into arbitration if their rights in the contracts are breached.
This gives the party a specific, but limited, international
capacity
The injured parties were entitled to restitute in integrum and
that the sovereign State was obliged to perform in
accordance with its contractual obligations
The tribunal also said that the UN General Assemblies
regarding permanent sovereignty over natural wealth
and resources could not be used by the State to violate
its contractual obligations in commercial transactions.
Note:
International law allows the operation of rules of private international law.
When a claim arises based on breach of contract between an alien and a
government, the issue may be decided in accordance with the applicable
municipal law designated by the rules of private international law.
Extended Outline
Principle 5
The non-renewable resources of the earth must be employed in such a way as
to guard against the danger of their future exhaustion and to ensure that
benefits from such employment are shared by all mankind.
Principle 6
The discharge of toxic substances or of other substances and the release of
heat, in such quantities or concentrations as to exceed the capacity of the
environment to render them harmless, must be halted in order to ensure that
serious or irreversible damage is not inflicted upon ecosystems. The just
struggle of the peoples of ill countries against pollution should be supported.
Principle 11
The environmental policies of all States should enhance and not adversely
affect the present or future development potential of developing countries, nor
should they hamper the attainment of better living conditions for all, and
appropriate steps should be taken by States and international organizations
with a view to reaching agreement on meeting the possible national and
international economic consequences resulting from the application of
environmental measures.
Principle 16
Demographic policies which are without prejudice to basic human rights and
which are deemed appropriate by Governments concerned should be applied
in those regions where the rate of population growth or excessive population
concentrations are likely to have adverse effects on the environment of the
human environment and impede development.
Principle 20
Scientific research and development in the context of environmental problems,
both national and multinational, must be promoted in all countries, especially
the developing countries. In this connection, the free flow of up-to-date
scientific information and transfer of experience must be supported and
assisted, to facilitate the solution of environmental problems; environmental
technologies should be made available to developing countries on terms which
would encourage their wide dissemination without constituting an economic
burden on the developing countries.
Principle 21
States have, in accordance with the Charter of the United Nations and the
principles of international law, the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibility to ensure
that activities within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national
jurisdiction.
Principle 22
States shall cooperate to develop further the international law regarding liability
and compensation for the victims of pollution and other environmental damage
caused by activities within the jurisdiction or control of such States to areas
beyond their jurisdiction.
UNGA Resolution 2995
In exercising their sovereignty, states must seek, through bilateral and
multilateral cooperation or through regional machinery, to preserve and
improve the environment.
In the exploration, exploitation, and development natural resources, states
must not produce significant harmful effects in zones outside their national
jurisdiction.
Co-operation will be achieved if official and public knowledge is provided of the
technical data relating to work carried out by states within their territory.
UNGA Resolution 2996
International Law Association Resolution 1972
Continental sea-water pollution means any detrimental change in the natural
composition, content or quality of sea water resulting from human conduct
taking place within the limits of the national jurisdiction of a State.
Art II
A state shall prevent any new form of continental sea-water pollution or any
increase in the degree of the existing pollution which cause substantial injury in
the territory of another state or to its rights.
Art III
States should establish as soon as possible international standards for
controls of sea-water pollution.
Until such standards are established, the existence of substantial injury from
pollution shall be determined by taking into account all relevant factors.
Article IV
When it is contended that the conduct of a State is not in accordance with its
obligations under these Articles, that State shall promptly enter into
negotiations with the complainant with a view to reaching a solution that is
equitable under the circumstances.
Article V
In the case of violation of the rules in Article II, the State responsible shall
cease the wrongful conduct and shall compensate the injured State for the
injury that has been caused to it.
UN Environment Program: Governing Council Decisions Concerning Policy
Objectives (1973)
Having considered a number of reports, the following decisions have been
adopted:
1. General policy objectives:
1. provide improved knowledge for management of the resources of the
biosphere, encourage and support to the planning and management of
development to achieve maximum benefits, assist all countries to deal
with their environmental problems and provide assistance with a view of
the enhancement and preservation of the environment
2. Particular policy objectives:
1. Anticipate and prevent threat to human health, detect and prevent
serious threats to the health of the ocean, improve the quality of water
for human use, help governments in improving the quality of life, prevent
the loss of productive soil, help government in managing forest
resources, anticipate disasters, help gain public awareness
Rio Declaration on Environment and Development
Emphasized the right of a state to exploit resources but with corresponding
duty not to damage the environment
special situation of developing countries considered
trade policy measures for environmental purposes should not constitute as
means for arbitrary or unjustifiable discrimination or a disguised restriction on
international trade
there is a duty to notify other states regarding disasters
Principle 2
States have in accordance with the charter of the UN and the principles of
international law, the sovereign right to exploit their own resources pursuant to
their own environmental and development policies ,and the responsibility to
ensure activities and within their jurisdiction or control do not cause damage to
the environment of other states or of areas beyond the limits of national
jurisdiction.
Principle 3
The right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future generations.
Principle 6
The special situation and needs of developing countries, particularly the least
developed and those most environmentally vulnerable, shall be given special
priority. International actions in the field of environment and development
should also address the interests and needs of all countries.
Principle 12
States should cooperate to promote supportive and open international
economic system that would lead to economic growth and sustainable
development in all countries, to better address the problems of environmental
degradation. Trade policy measures for environmental purposes should not
constitute a means of arbitrary or unjustifiable discrimination or a disguised
restriction on international trade.
Principle 13
States shall develop national law regarding liability and compensation for the
victims of pollution and other environmental damage. States shall also
cooperate in an expeditious and more determined manner to develop further
international law regarding liability and compensation for adverse effects of
environmental damage caused by activities within their jurisdiction or control to
areas beyond their jurisdiction.
Principle 14
States should effectively cooperate to discourage or prevent the relocation and
transfer to other states of any activities and substances that cause severe
environmental degradation or are found to be harmful to human health.
Principle 16
Environmental impact assessment as a national instrument shall be
undertaken for proposed activities that are likely to have a significant and
adverse impact on the environment and are subject to a decision of a
competent national authority.
Principle 18
States shall immediately notify other states of any natural disasters or other
emergencies that are likely to produce sudden harmful effects on the
environment of those states. Every effort shall be made by the international
community to help states so afflicted.
Montreal Protocol on Substances that Deplete the Ozone Layer
Expressly provides for the periodic review and assessment of control
measures taken and their adjustment whenever deemed necessary
The Montreal Protocol on Substances that Deplete the Ozone Layer was
designed to reduce the production and consumption of ozone depleting
substances in order to reduce their abundance in the atmosphere, and thereby
protect the earths fragile ozone Layer. The original Montreal Protocol was
agreed on 16 September 1987 and entered into force on 1 January 1989.
The Montreal Protocol includes a unique adjustment provision that enables the
Parties to the Protocol to respond quickly to new scientific information and
agree to accelerate the reductions required on chemicals already covered by
the Protocol. These adjustments are then automatically applicable to all
countries that ratified the Protocol. Since its initial adoption, the Montreal
Protocol has been adjusted five times. Specifically, the Second, Fourth,
Seventh, Ninth, Eleventh and Nineteenth Meetings of the Parties to the
Montreal Protocol adopted, in accordance with the procedure laid down in
paragraph 9 of Article 2 of the Montreal Protocol, certain adjustments and
reductions of production and consumption of the controlled substances listed
in the Annexes of the Protocol. These adjustments entered into force, for all
the Parties, on 7 March 1991, 23 September 1993, 5 August 1996, 4 June
1998, 28 July 2000 and 14 May 2008, respectively.
In addition to adjusting the Protocol, the Parties to the Montreal Protocol have
amended the Protocol to enable, among other things, the control of new
chemicals and the creation of a financial mechanism to enable developing
countries to comply. Specifically, the Second, Fourth, Ninth and Eleventh
Meetings of the Parties to the Montreal Protocol adopted, in accordance with
the procedure laid down in paragraph 4 of Article 9 of the Vienna Convention,
four Amendments to the Protocol the London Amendment (1990), the
Copenhagen Amendment (1992), the Montreal Amendment (1997) and the
Beijing Amendment (1999). Unlike adjustments to the Protocol, amendments
must be ratified by countries before their requirements are applicable to those
countries. The London, Copenhagen, Montreal and Beijing Amendments
entered into force on 10 August 1992, 14 June 1994 10 November 1999 and
25 February 2002 respectively, only for those Parties which ratified the
particular amendments.
Case Law:
Oposa v. Factoran
Facts:
An action was filed by several minors represented by their parents
against the Department of Environment and Natural Resources to
cancel existing timber license agreements in the country and to stop
issuance of new ones. It was claimed that the resultant deforestation
and damage to the environment violated their constitutional rights to a
balanced and healthful ecology and to health (Sections 16 and 15,
Article II of the Constitution). The petitioners asserted that they
represented others of their generation as well as generations yet
unborn.
Held:
Finding for the petitioners, the Court stated that even though the right to
a balanced and healthful ecology is under the Declaration of Principles
and State Policies of the Constitution and not under the Bill of Rights, it
does not follow that it is less important than any of the rights
enumerated in the latter: [it] concerns nothing less than self-
preservation and self-perpetuation, the advancement of which may even
be said to predate all governments and constitutions. The right is
linked to the constitutional right to health, is fundamental,
constitutionalised, self-executing and judicially enforceable. It
imposes the correlative duty to refrain from impairing the environment.
The court stated that the petitioners were able to file a class suit both for
others of their generation and for succeeding generations as the
minors assertion of their right to a sound environment constitutes, at the
same time, the performance of their obligation to ensure the protection
of that right for the generations to come.
Although SC did not order the Secretary outright to cancel licenses and
desist from issuing new ones, the Court affirmed the justiciability of the
issue raised and remanded the case to the lower court for further
proceedings.
DENR v. Concerned Residents of Manila Bay
Philippines is a member of the International Marine Organization and a
signatory to the International Convention for the Prevention of Pollution from
Ships.
Clean-up of Manila Bay is a duty which covers general pollution incidents
FACTS:
Respondents Concerned Residents of Manila Bay filed a complaint
before the RTC against several government agencies for the cleanup,
rehabilitation, and protection of the Manila Bay. They alleged that the
water quality of the Manila Bay had fallen way below the allowable
standards set by law, specifically Presidential Decree No. (PD) 1152 or
the Philippine Environment Code and the department/agencies had
neglected their roles in abating the pollution of the Manila Bay.
Petitioners contend that the pertinent provisions of the Environment
Code (PD 1152) relate only to the cleaning of specific pollution incidents
and do not cover cleaning in general. They also assert that the cleaning
of the Manila Bay is not a ministerial act which can be compelled by
mandamus.
ISSUE:
1. W/N Sections 17 and 20 of PD 1152 envisage a cleanup in general or
are they limited only to the cleanup of specific pollution incidents? They
include cleaning in general.
2. W/N the petitioners can be compelled by mandamus to clean up and
rehabilitate the Manila Bay? YES, they can be compelled.
HELD:
1. Secs. 17 and 20 of the Environment Code Include Cleaning in
General
Sec. 17 requires the petitioners to act even in the absence of a
specific pollution incident, as long as water quality "has
deteriorated to a degree where its state will adversely affect its
best usage." The underlying duty to upgrade the quality of water
is not conditional on the occurrence of any pollution incident. PD
1152 aims to introduce a comprehensive program of
environmental protection and management and this is better
served by making Secs. 17 & 20 of general application rather
than limiting them to specific pollution incidents.
The importance of the Manila Bay as a sea resource, playground,
and as a historical landmark cannot be over-emphasized. In the
light of the ongoing environmental degradation, there is extreme
necessity for all concerned executive departments and agencies
to immediately act and discharge their respective official duties
and obligations. The State, through petitioners, has to take the
lead in the preservation and protection of the Manila Bay. They
must perform their basic functions in cleaning up and
rehabilitating the Manila Bay. Or at the very least, the petitioners
and the men and women representing them cannot escape their
obligation to future generations of Filipinos to keep the waters of
the Manila Bay clean and clear as humanly as possible.
2. The Cleaning or Rehabilitation of Manila Bay Can be Compelled by
Mandamus
Mandamus is available to compel action, when refused, on
matters involving discretion, but not to direct the exercise of
judgment or discretion one way or the other. While the
implementation of the MMDAs mandated tasks may entail a
decision-making process, the enforcement of the law or the very
act of doing what the law exacts to be done is ministerial in nature
and may be compelled by mandamus. This duty of putting up a
proper waste disposal system cannot be characterized as
discretionary, for discretion presupposes the power or right given
by law to public functionaries to act officially according to their
judgment or conscience. The duty of MMDA is statutory as
provided for in its charter as well as other pertinent laws.
Bernas
Underhill v. Hernandez
Facts:
The background of the case was a 1892 revolution in Venezuela against
the legitimate government. General Hernandez commanded the anti-
administration party and, after defeating the army of the administration,
he entered Bolivar to assume leadership of the government. George F.
Underhill was a citizen of the United States who had constructed a
waterworks system for the city of Bolivar, under a contract with the
government, and was engaged in supplying the place with water. He
also carried on a machinery repair business. Some time after the entry
of Gen. Hernandez, Underhill applied to him for a passport to leave the
city. Hernandez refused this request as well as requests made by others
in Underhills behalf. The purpose of Hernandezs refusal was to coerce
Underhill to operate his waterworks and his repair works for the benefit
of the community and the revolutionary forces. After Underhill was finally
allowed to leave, he filed suit in the United States to recover damages
for the detention caused by reason of the denial of his permit to leave,
for his alleged confinement to his own house, and for certain alleged
assaults and affronts by the soldiers of Hernandezs army.
Issue:
W/N the US courts could consider the validity of acts of a foreign state
alleged to be in violation of international law
Held:
In denying the plea of Underhill, the U.S. court ruled with what is now
known as the act of state doctrine:
Every sovereign state is bound to respect the independence of
every other sovereign state, and the courts of one country will not
sit in judgment on the acts of the government of another, done
within its own territory. Redress of grievances by reason of such
acts must be obtained through the means open to be availed of
by sovereign powers as between themselves.
Calvo Clause
In the past, there were attempts to limit the ability of a state to give diplomatic
protection to its nationals. An example of this is the Calvo clause, a provision
in a contract to the effect that under no condition shall the intervention of
foreign diplomatic agents in any matter related to the contract be resorted to.
This was rejected in North American Dredging Company Claim (1926) by the
Mexico-United States General Claims Commission. The right to seek redress
is a sovereign prerogative of a state and a private individual has no right to
waive the states right.
Extended Outline
GR: Every state has a duty to protect its national. The state should establish its legal
interest by proving the nationality of the claim.
Forms of protection:
1. Protest
2. Inquiry
3. Negotiation
4. Submission to arbitral tribunal/court
Pre-condition: exhaustion of local remedies if indirect responsibility
Note:
By taking up the case of a national, a State is, in reality, asserting its own
rights its right to ensure, in the person of its subject, respect for the rules of
international law.
Therefore, the subject matter of the claim is the individual and his
property, but the claim is that of the State.
Case Law:
Bernas
Use of Force
International law recognises the autonomy of individual states and their right to
freedom from coercion and to the integrity of their territory.
The basic principle is found in Article 2(4) of the UN Charter: All
Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the Purposes of the
United Nations.
It is noteworthy that the text does not use the word war.
The word war is a technical term which does not include some
uses of force. The prohibition in the Charter therefore broader
than the prohibition of war. Similarly, it should be noted that the
text does not merely prohibit the use of force against the
territorial integrity or political independence of any state. The text
broadly prohibits the use of force in any other manner
inconsistent with the Purposes of the United Nations. It does
yield the meaning of a very broad prohibition of the use of force
because the purposes of the United Nations, as found in Article 1
of the Charter, go beyond merely the protection of the territorial
integrity and political independence of states.
The prohibition of the use of force, however, is not just conventional law. It is
customary international law.
Threat of Force
The Charter prohibits not just the use of force but also the threat of force.
The most typical form of this threat is the ultimatum in which the State to
which it is addressed is given a time-limit within which to accept the
demands made upon it and is told that, if it rejects the demands, war will
be declared on it or certain coercive measures such as a naval
blockade, bombardment, or occupation of a given territory, will be taken.
However, the threat to use force is not always made in so crude and
open a form. There are sometimes veiled threats that may be very
effective, but are difficult to detect.
Advisory opinion on the Legality of the Threat or Use of Nuclear Weapons
This prohibition of the use of force is to be considered in the light of
other relevant provisions of the Charter. In Article 51, the Charter
recognizes the inherent right of individual or collective self- defence if an
armed attack occurs. A further lawful use of force is envisaged in Article
42, whereby the Security Council may take military enforcement
measures in conformity with Chapter VII of the Charter.
The entitlement to resort to self-defence under Article 51 is subject to
the conditions of necessity and proportionality.
there is a specific rule whereby self-defence would warrant only
measures which are proportional to the armed attack and
necessary to respond to it, a rule well-established in customary
international law
In order to lessen or eliminate the risk of unlawful attack, States
sometimes signal that they possess certain weapons to use in self-
defence against any State violating their territorial integrity or political
independence. Whether a signaled intention to use force if certain
events occur is or is not a threat within Article 2, paragraph 4, of the
Charter depends upon various factors. The notions of threat and use
of force under Article 2, paragraph 4, of the Charter stand together in
the sense that if the use of force itself in a given case is illegal for
whatever reason the threat to use such force will likewise be illegal.
Extended Outline
Use of Force
General
1. Grotious, on the rights of war and peace (1901)
From the law of nature or law of the nations, all kinds of war are
not to be condemned.
Certain formalities, attending war, were introduced by the law of
nations, which formalities were necessary to secure the peculiar
privileges arising out of the law.
Thus, there is a distinction between a war with the usual
formalities of the law of nations, which is called just or perfect,
and an informal war, which does not for that reason cease to be
just, or agreeable to right.
By the law of the nations, says Livy, provision is made to repel
force by arms.
And Florentinus declares, that the law of the nations allows us to
repel violence and injury, in order to protect our persons.
2. General Treaty for the Renunciation of War
Protocol, signed at Moscow, February 9, 1929, between Estonia,
Latvia, Poland, Romania and the USSR, for the immediate entry
into force of the Treaty of Paris of August 27, 1928, regarding the
renunciation of war as an instrument of National Policy
Important provisions
Article I
- The Treaty for the renunciation of war as an instrument of
national policy, signed at Paris on August 27, 1980, a copy of
which is attached to the present protocol as an integral art of that
instrument
- It shall come into force between the Contracting Parties after
the ratification of the said Treaty of Paris of 1928 by the
competent legislative bodies of the respective Contracting Parties
Article II
The entry into force in virtue of the present Protocol, of the Treaty
of Paris of 1928 in reciprocal relations between the Parties to the
present Protocol shall be valid independently of the entry into
force of the Treaty of Paris of 1928 as provided in Article III of the
last named Treaty
Article III
The present Protocol shall be ratified by the competent
legislative bodies of the Contracting Parties, in conformity with the
requirements of their respective constitutions
The instruments of ratification shall be deposited by each of
the Contracting Parties with the Government of the USSR within
one week of the ratification of the present Protocol by the
respective parties
The date of deposit shall be the date the present Protocol will
come into force between those two Parties
USSR shall notify the deposit of several ratifications to all the
signatories to the present Protocol
Article IV
To give effect to Article I of the Protocol, each of the High
Contracting Parties shall immediately notify the Government of
the USSR and all the other parties through the diplomatic channel
Article V
This shall be open for the accession of the Governments of all
countries
Notification shall be made in the name of the USSR, and
immediately shall be put into force
Article VI
The entry into force of the Treaty of Paris, between the
acceding State and all the other parties to the said Protocol, shall,
be effected in the way laid down in Article IV of the Protocol
The Protocol has been drawn up in a single copy, an
authentic copy of which shall be communicated by the Govt of
USSR to each of the signatory or acceding State
3. Briand-Kellog Pact
Annex
The President/King/Emperor of: Germany, USA, Belgium,
France, Great Britain, Ireland, Poland, Italy, Japan,
Czechoslovakia, promote the welfare of mankind
Peaceful and friendly relations between their peoples may be
perpetuated
All changes in their relations must be sought only by pacific
means
And have decided to conclude a Treaty
Article I
The High Contracting Parties declare in their names that they
condemn recourse to war for the solution of international
controversies, and renounce it as an instrument of national policy
in their relations with one another
Article II
Settlement of resolution of disputes shall never be sought
except by pacific means
Article III
The present Treaty shall be ratified by the High Contracting
Parties as named in the Preamble and shall take effect as soon
as deposited at Washington
It shall be the duty of the Govt of the USA to furnish each
Govt named in the Preamble and every Govt adhering to this
Treaty with a certified Copy of the Treaty and of every instrument
of ratification or adherence and shall notify such govts
immediately upon the deposit with it of each instrument of
ratification or adherence
4. Charter of the UN, Art. 2, 3, 4, 39-42
Article II
3. All members shall settle their international disputes by peaceful
means in such a manner that international peace and security,
and justice, are not endangered
4. All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent
with the Purposes of the UN
CHAPTER VII
Action with respect to threats to the peace, breaches of the
peace, and acts of aggression
Article 39
The Security Council (SC) shall determine the existence of
any threat to peace, or act of aggression
And shall make recommendations, or decide what measures
shall be taken in accordance with Articles 41 and 42, to maintain
or restore international peace and security
Article 40
To prevent aggravation of the situation, the SC may call upon
the parties concerned to comply with such provisional measures
as it deems necessary or desirable
It shall be without prejudice to the rights, claims, or position of
the parties concerned
The SC shall duly take account of failure to comply with such
provisional measures
Article 41
The SC may decide what measures not involving the use of
armed force are to be employed to give effect to its decisions, and
it may call upon the Members of the UN to apply such measures
It may include partial or complete interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio, and other
means of communication, and the severance of diplomatic
relations
Article 42
If the measures provided for in Article 41 are inadequate, it
may take such action necessary to maintain or restore
international peace and security
It may include demonstrations, blockade, and other
operations by air, sea, or land forces of Members of the UN
5. GA Resolution 3314 on the definition of aggression
Article I
Aggression is the use of armed force by a State against the
sovereignty, territorial integrity or political independence of
another State, or in any other manner inconsistent with the
Charter of the UN, as set out in this definition
The term State is used without prejudice to questions of
recognition or to whether a State is a member of the UN, and
includes the concept of a group of States where appropriate
Article II
The first use of armed force in contravention of the Charter
shall constitute prima facie evidence of an act of aggression
although the SC may in conformity with the Charter conclude that
a determination that an act of aggression has been committed
would not be justified in the light of other relevant circumstances
including the fact that the acts concerned or their consequences
are not of sufficient gravity
Article III
Any of the ff acts, regardless of a declaration of war, shall, subject
to and in accordance with the provisions of Article 2, qualify as an
act of aggression:
Article 4
Acts enumerated above are not exhaustive and the SC may
determine other acts that constitute aggression
Article 5
No consideration of whatever nature may serve as
justification for aggression
A war of aggression is a crime against international peace.
Aggression gives rise to international responsibility
No territorial acquisition or special advantage resulting from
aggression are or shall be recognized as lawful
Article 6
Nothing in this definition shall be construed as in any way
enlarging or diminishing the scope of the Charter including its
provisions concerning cases in which the use of force is lawful
Article 7
Nothing in this definition, and in particular article 3, could
prejudice the right to self-determination, freedom and
independence, as derived from the Charter, of peoples forcibly
deprived of that right and referred to in the Declaration on
Principles of IL concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the UN
Nor the right of these peoples to struggle to that end and to
seek and receive support, in accordance with the Principles of the
Charter and in conformity with the above-mentioned Declaration
Article 8
The above provisions are interrelated and each provision
should be construed in the context of the other provisions
6. Pro-democratic invasion
This article is all about Reismans interpretation of Art. 2(4) of the
UN Charter, which refers to the use of force.
He argues that the use of force is a means by which self-
determination, which is the paramount goal of IL according to
Reisman, may be achieved.
He proposes to re-interpret Art. 2(4):
(1) That the rule against force is dependent on an
effective UN collective security system.
UNs failure to prevent unilateral recourse to
force has made unilateral self-help necessary.
Further, some unilateral coercion is legitimate;
hence, not all unilateral recourse to force
should be condemned.
(2) It is also true that verbal condemnation in the UN
of the use of force is not always accompanied by
effective sanctions.
As such, Reisman says that 2(4) must be reinterpreted to
allow force in a good cause (popular rule).
It must be applied to increase the probability of the free
choice of peoples about their government and political
structure.
Where a repressive government deprives its people
of their free choice, a foreign state should be legally
entitled to use force to bring about the desirable end
of on-going self-determination.
Schachter, on the other hand, says that this argument must be
REJECTED.
There has been a general agreement that the rule against
unilateral recourse to force (except in self-defence) is a
fundamental tenet of IL.
It is JUS COGENS.
To re-interpret it is a radical departure from that principle.
Furthermore, any invasion, however brief, violates the essence of
territorial integrity.
And for a foreign power to overthrow the government of an
independent state, that is against the states political
independence.
It would give the powerful states an almost unlimited right to
overthrow government alleged to be unresponsive to the popular
will or to the goal of self-determination.
Arguments such as Reismans may influence the policy in favor of
armed intervention, which should be not become a norm of IL.
Bernas
Bernas
Bernas
Bernas
ICJ
The UNs principal judicial organ is the International Court of Justice. It is the
successor to the Permanent Court of International Justice established by the
League of Nations.
It came into being in 1945 through the Statute of the Court. All members
of the UN are ipso facto parties to the Statute of the International Court
of Justice.
Being party to the Statute, however, does not mean acceptance of the
jurisdiction of the Court. It simply means that the state may accept the
jurisdiction of the court.
The Statute opens the courts door to member states. Only states may be
parties in the court.
Composition of the Court
Art. 2
The Court shall be composed of a body of independent judges,
1. elected regardless of their nationality
2. from among persons of high moral character,
3. who possess the qualifications required in their respective
countries for appointment to the highest judicial offices, or are
jurisconsults of recognised competence in international law.
Art. 3
shall consist of 15 members, not 2 are nationals of the same state
a national of more than one state shall be deemed to be a national of
the one in which he ordinarily exercises civil and political rights.
Art. 4
elected by GA and SC; nominated by national groups
Art. 16
no other involvement:
political/administrative functions
occupation
Art. 19
diplomatic immunity
Art. 21
president, VP, registrar - 3yr term with re-election
Art. 26
Court may form one or more chambers dealing with particular categories
of cases like labor or transit and communications
Art. 27
judgment of chambers shall be considered rendered by the Court
Art. 31
judges who have same nationality as parties in the case are not
disqualified
Art. 34
only states may be parties
Art. 36
jurisdiction: recognition of compulsory jurisdiction declaration by
member
Art. 39
language = french and english, except: request by one party for another
language
Art. 43
written and oral proceedings
Art. 55
majority ruling
Art. 60
bindingness of decision: only between parties and in that particular case
Art. 61
no appeal
Art. 61
revision of judgment: discovery of some fact (newly discovered
evidence) w/in 6 months from discovery but not more than 10 years
Art. 62
motion to intervene allowed
Art. 65
Advisory opinions - request by a body based on UN Charter
Jurisdiction of ICJ: Contentious jurisdiction
2 types of jurisdiction of ICJ
1. contentious
2. advisory
Contentious
Art. 36
1. The jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in the
Charter of the United Nations or in treaties and conventions in
force.
Bernas
Case law:
1. Jurisdiction
1. Aerial Incidence Case
2. Nicaragua v. US
3. Case Concerning East Timor
2. Provisional Measures
PROVISIONAL MEASURES
Nicaragua v. US
The Court need not, before deciding whether or not to indicate them,
finally satisfy itself that it has jurisdiction on the merits of the case,
yet it ought not to indicate such measures unless the provisions
invoked by the applicant appear, prima facie, to afford a basis on
which the jurisdiction of the Court might be established.
3. Intervention
INTERVENTION
International Arbitration
Cases:
Del Monte USA v. Judge Reyes, Montebueno Marketing and Sabrosa Foods
Facts:
Del Monte USA (DMC-USA) appointed Montebueno Marketing Inc (MMI) as its sole and
exclusive distributor of Del Monte products in the Philippines for 5 years.
The contract contained an arbitration clause which provides that all disputes arising out of
or relating to the agreement or the parties relationship, including termination thereof, shall
be resolved by arbitration in San Francisco City, CA, under the Rules of the American
Arbitration Association
MMIs appointment was published in several newspapers. MMI appointed Sabrosa Food Inc
with the approval of DMC-USA, as MMIs marketing arm.
Later, MMI and Sabrosa filed a complaint against DMC-USA for violation of Arts. 20, 21 and
23 of the Civil Code. MMI claims that DMC-USA authorised other importers of their products
in the Philippines despite MMIs appointment as its sole and exclusive distributor, thereby
causing MMI great embarrassment and substantial damage.
Private respondents claimed that they had exhausted all possible avenues for an amicable
resolution and settlement of their grievances; that as a result of the fraud, bad faith, malice
and wanton attitude of petitioners, they should be held responsible for all the actual
expenses incurred by private respondents in the delayed shipment of orders, the actual
expenses and cost of money for the unused Letters of Credit (LCs) and the substantial
opportunity losses due to created out-of-stock situations and unauthorised shipments of Del
Monte-USA products to the Philippine Duty Free Area and Economic zone
DMC-USA filed a Motion to Suspend Proceedings invoking the arbitration clause. RTC
denied this on the ground that it will not serve the ends of justice and to allow said
suspension will only delay the determination of the issues, frustrate the quest of the parties
for a judicious determination of their respective claims, and/or deprive and delay their rights
to seek redress.
CA affirmed.
Issue:
W/N the dispute warrants an order compelling them to submit to arbitration - No
Held:
No
DMC invokes RA 876 which provides that If any suit or proceeding be brought upon an
issue arising out of an agreement providing for arbitration thereof, the court, upon being
satisfied that the issue involved in such suit or proceeding is referable to arbitration, shall
stay the action or proceeding until an arbitration has been had in accordance with the terms
of the agreement.
MMI and Sabrosa argue that since the causes of action are rooted in Art. 20, 21 and 23 of
the Civil Code, there must be full-blown trial, which cannot be had in an arbitration.
First, arbitration is valid and constitutional in the Philippines. RA 876 expressly authorises
arbitration of domestic disputes and recognises foreign arbitration as a system of settling
commercial disputes. The Philippines also recognised this when it adhered to the UN
Convention on the Recognition and the Enforcement of Foreign Arbitral Awards of 1958.
Second, while the arbitration clause in the agreement between DMC and MMI is valid, this
petition must be denied. Since the agreement and the arbitration clause are contracts
between DMC and MMI, only they and their assignees or heirs are bound thereto. Referral
to arbitration pursuant to the agreement could be called for but only as to them, not to the
other parties to the case such as Sabrosa.
This is consistent with Salas v. Laperal which held that, In recognising the right of the
contracting parties to arbitrate or to compel arbitration, the splitting of the proceedings to
arbitration as to some of the parties on one hand and trial for the others on the other hand,
or the suspension of trial pending arbitration between some of the parties, should not be
allowed as it would, in effect, result in multiplicity of suits, duplicitous procedure and
unnecessary delay. This would be contrary to the object of arbitration to allow the
expeditious determination of a dispute.
Facts:
Capitol subcontracted LM regarding electrical work at the Third Port of Zamboanga. The
contract had an arbitration clause which provides that any dispute or conflict regarding the
interpretation and implementation of the contract which cannot be settled between the
parties amicably shall be settled by means of arbitration.
Later, Capitol took over some of the work contracted to LM because the latter had failed to
finish it due to its inability to procure materials. Despite this, when LM billed Capitol for the
work done, it still included the work which was taken over by Capitol. Capitol, instead of
paying the billed balance, invoked the termination clause in their contract which allowed it to
set off the cost of termination or takeover against what it owes to LM.
Because of this, LM filed a case before the RTC for collection of money.
Capitol filed a MTD arguing that there was no prior recourse to arbitration. RTC denied this.
CA reversed.
Issue:
W/N a controversy/dispute between petitioner and respondent regarding the interpretation
and implementation of the Sub-Contract Agreement requires prior recourse to voluntary
arbitration - Yes
Held:
Yes
The arbitration clause expressly provides that any dispute or conflict regarding the
interpretation and implementation of the contract which cannot be settled between the
parties amicably shall be settled by means of arbitration.
In this case, since the controversy arose from the parties dispute on w/n a takeover
occurred, w/n the expenses may be setoff, and how much are the billable accomplishments
all being disputes on the interpretation and implementation of the contract arbitration
should first be availed of.
Frabelle Fishing v. Philamlife Insurance, Philam Properties, and Perf Realty Corp
Facts:
Respondents entered into a MOA to contribute money, property and services for the
construction of the Philamlife tower in Makati. Later, they assigned all their rights and
obligations under the MOA to Frabelle, including the construction, development and
subsequent ownership of Unit 38-B thereof. Respondents also stipulated that the Frabelle
shall be deemed a co-developer.
Frabelle Fishing and respondents entered into a MOA to fund the construction of certain
floors in the building.
The dispute between the parties started when Frabelle Fishing found material
concealment on the part of respondents regarding certain details in the 1996 DOA and 1998
MOA and their gross violation of their contractual obligations as condominium developers.
These violations are: (a) the non-construction of a partition wall between Unit No. 38-B and
the rest of the floor area; and (b) the reduction of the net usable floor area from 468 sqm. to
only 315 sqm.
Frabelle Fishing then referred the matter to the Philippine Dispute Resolution Inc
(PDRCI) for arbitration. However, respondents refused to submit to its jurisdiction.
Because of this, Frabelle Fishing filed a complaint for reformation, specific performance
and damages with HLURB, alleging that the contract does not reflect the true intention of
the parties because Frabell Fishing is a mere buyer and not a co-developer.
HLURB set the initial preliminary hearing of the case. Respondents obtained a TRO from
the CA. Hence this petition.
Issue:
W/N HLURB has jurisdiction - No.
W/N the parties should initially resort to arbitration - Yes
Held
2. Paragraph 4.2 of the 1998 MOA mandates that any dispute between or among the
parties shall finally be settled by arbitration conducted in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of Commerce. Frabelle Fishing
referred the dispute to the PDRCI but respondents refused to submit to its jurisdiction. It
bears stressing that such arbitration agreement is the law between the parties. They are,
therefore, expected to abide by it in good faith.
SC has previously held that arbitration is one of the alternative methods of dispute
resolution that is now rightfully vaunted as the wave of the future# in international
relations, and is recognized worldwide. To brush aside a contractual agreement calling for
arbitration in case of disagreement between the parties would therefore be a step
backward.
Facts:
Climax filed a petition to compel arbitration before the RTC pursuant to a contract and
addendum contract between it and Gonzales. The addendum contract contained an
arbitration clause.
Gonzales, in his answer, claimed that the 2 contracts are void because of Climaxs acts of
fraud. Gonzales asked the RTC to set the case for pretrial which it did. Climax, in a motion,
opposed this arguing that RA 876 does not authorise a pretrial or trial in an action to compel
arbitration. RTC granted this. Hence this petition under Rule 65 by Gonzales.
Issue:
W/N it was proper to compel arbitration under R.A. No. 876, to order the parties to arbitrate
even though the defendant therein has raised the twin issues of validity and nullity of the
Addendum Contract YES! Addendum agreement and Arbitration agreement are
separable!
Held:
Yes.
Disputes do not go to arbitration unless and until the parties have agreed to abide by the
arbitrators decision. Necessarily, a contract is required for arbitration to take place and to
be binding.
Sec. 2 Persons and matters subject to arbitration.Two or more persons or parties may
submit to the arbitration of one or more arbitrators any controversy existing, between them
at the time of the submission and which may be the subject of an action, or the parties to
any contract may in such contract agree to settle by arbitration a controversy thereafter
arising between them. Such submission or contract shall be valid, enforceable and
irrevocable, save upon such grounds as exist at law for the revocation of any contract.
Indeed, the doctrine denotes that the invalidity of the main contract, also referred to as the
container contract, does not affect the validity of the arbitration agreement. Irrespective of
the fact that the main contract is invalid, the arbitration clause/agreement still remains valid
and enforceable.
The separability of the arbitration clause is confirmed in Art. 16(1) of the UNCITRAL Model
Law and Art. 21(2) of the UNCITRAL Arbitration Rules
R.A. No. 876 explicitly confines the court's authority only to the determination of whether or
not there is an agreement in writing providing for arbitration. In the affirmative, the statute
ordains that the court shall issue an order "summarily directing the parties to proceed with
the arbitration in accordance with the terms thereof." If the court, upon the other hand, finds
that no such agreement exists, "the proceeding shall be dismissed."