Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 183591 October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN

and/or VICE-GOVERNOR EMMANUEL PIOL, for and in his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.
HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed
Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential
Adviser on the Peace Process, respondents.

x--------------------------------------------x

G.R. No. 183752 October 14, 2008

CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City

Mayor of Zamboanga, and in his personal capacity as resident of the City of Zamboanga, Rep.
MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, City of
Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL
(GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as the
Presidential Adviser on Peace Process, respondents.

x--------------------------------------------x

G.R. No. 183893 October 14, 2008

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES
ESPERON, JR., in his capacity as the present and duly appointed Presidential Adviser on the
Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as Executive
Secretary. respondents.

x--------------------------------------------x

G.R. No. 183951 October 14, 2008

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON.

ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his
capacity as Vice-Governor and Presiding Officer of the Sangguniang Panlalawigan, HON.
CECILIA JALOSJOS CARREON, Congresswoman, 1st Congressional District, HON. CESAR G.
JALOSJOS, Congressman, 3rdCongressional District, and Members of the Sangguniang
Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P.
JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON.
EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON.
FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B.
EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON.
LUZVIMINDA E. TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL
[GRP], as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in
his capacity as the Presidential Adviser of Peace Process, respondents.

x--------------------------------------------x

G.R. No. 183962 October 14, 2008

ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners,

vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL,
represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION
FRONT PEACE NEGOTIATING PANEL, represented by its Chairman MOHAGHER
IQBAL, respondents.

x--------------------------------------------x

FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.

x--------------------------------------------x

SEN. MANUEL A. ROXAS, petitioners-in-intervention.

x--------------------------------------------x

MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N.

DEANO, petitioners-in-intervention,

x--------------------------------------------x

THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P.

SANTOS-AKBAR, petitioners-in-intervention.

x--------------------------------------------x

THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his

capacity as Provincial Governor and a resident of the Province of Sultan Kudarat, petitioner-in-
intervention.

x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in
Mindanao Not Belonging to the MILF, petitioner-in-intervention.

x--------------------------------------------x

CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and

RICHALEX G. JAGMIS, as citizens and residents of Palawan, petitioners-in-intervention.

x--------------------------------------------x

MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.

x--------------------------------------------x

MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention.

x--------------------------------------------x

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT

(MMMPD), respondent-in-intervention.

x--------------------------------------------x

DECISION

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in pursuing the
peace process.While the facts surrounding this controversy center on the armed conflict in Mindanao
between the government and the Moro Islamic Liberation Front (MILF), the legal issue involved has
a bearing on all areas in the country where there has been a long-standing armed conflict. Yet again,
the Court is tasked to perform a delicate balancing act. It must uncompromisingly delineate the
bounds within which the President may lawfully exercise her discretion, but it must do so in strict
adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that
same Constitution in the Chief Executive precisely to enable her to pursue the peace process
effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through
the Chairpersons of their respective peace negotiating panels, were scheduled to sign a
Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the leadership of the
late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by
Nur Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the
MNLF away from an Islamic basis towards Marxist-Maoist orientations.1

The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for
upon motion of petitioners, specifically those who filed their cases before the scheduled signing of
the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the
same.

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior
agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations
began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General
Cessation of Hostilities. The following year, they signed the General Framework of Agreement of
Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the
same contained, among others, the commitment of the parties to pursue peace negotiations, protect
and respect human rights, negotiate with sincerity in the resolution and pacific settlement of the
conflict, and refrain from the use of threat or force to attain undue advantage while the peace
negotiations on the substantive agenda are on-going.2

Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF
peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of
municipalities in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan,
Lanao del Norte.3 In response, then President Joseph Estrada declared and carried out an "all-out-
war" against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF
was suspended and the government sought a resumption of the peace talks. The MILF, according to
a leading MILF member, initially responded with deep reservation, but when President Arroyo asked
the Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF
to return to the negotiating table, the MILF convened its Central Committee to seriously discuss the
matter and, eventually, decided to meet with the GRP.4

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian
government, the parties signing on the same date the Agreement on the General Framework for the
Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its
military actions.5

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the
outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001)
containing the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to
the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed "that the same be
discussed further by the Parties in their next meeting."

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended
with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement
2001 leading to a ceasefire status between the parties. This was followed by the Implementing
Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement
2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many
incidence of violence between government forces and the MILF from 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was
replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's position as
chief peace negotiator was taken over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading
to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last
August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious "consensus" ever embodied in an
instrument - the MOA-AD which is assailed principally by the present petitions bearing docket
numbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7 and the
Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piol filed a
petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance
of Writ of Preliminary Injunction and Temporary Restraining Order.9 Invoking the right to information
on matters of public concern, petitioners seek to compel respondents to disclose and furnish them
the complete and official copies of the MOA-AD including its attachments, and to prohibit the slated
signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a
public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.10

This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus
and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco
and Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein
moreover pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and
directing public respondents and their agents to cease and desist from formally signing the MOA-
AD.13 The Court also required the Solicitor General to submit to the Court and petitioners the official
copy of the final draft of the MOA-AD,14 to which she complied.15

Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed
as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same
had already been signed, from implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as
respondent.

The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis Olvis,
Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18 of the Sangguniang
Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus
and Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared
null and void and without operative effect, and that respondents be enjoined from executing the
MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for
Prohibition,20docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the MOA-AD and or any other agreement
derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal.
Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel
represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their petitions-/comments-
in-intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate
President Franklin Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-
Akbar, the Province of Sultan Kudarat22and Gov. Suharto Mangudadatu, the Municipality of Linamon
in Lanao del Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang
Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and
lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of
Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral
Movement for Peace and Development (MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed
Comments on the petitions, while some of petitioners submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to address the
issues hurled against it, and thus moved to dismiss the cases. In the succeeding exchange of
pleadings, respondents' motion was met with vigorous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following
principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official
copies of the final draft of the Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is
concerned, if it is considered that consultation has become fait accompli with the
finalization of the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel

committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
negotiated and initiated the MOA vis--vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the people's right to information on matters of public

concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its
transactions involving public interest (1987 Constitution, Article II, Sec. 28) including public
consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines would be
BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate

state, or a juridical, territorial or political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;
 c) to concede to or recognize the claim of the Moro Islamic Liberation Front for
ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS
PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII
(DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga,

Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas
covered by the projected Bangsamoro Homeland is a justiciable question; and

7. Whether desistance from signing the MOA derogates any prior valid commitments of the
Government of the Republic of the Philippines.24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties
submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five petitions
and six petitions-in-intervention against the MOA-AD, as well as the two comments-in-intervention in
favor of the MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier
agreements between the GRP and MILF, but also two agreements between the GRP and the MNLF:
the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation of the 1976
Tripoli Agreement, signed on September 2, 1996 during the administration of President Fidel
Ramos.

The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region
in Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 and several
international law instruments - the ILO Convention No. 169 Concerning Indigenous and Tribal
Peoples in Independent Countries in relation to the UN Declaration on the Rights of the Indigenous
Peoples, and the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment
emanating from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or
territory under peace agreement) that partakes the nature of a treaty device."

During the height of the Muslim Empire, early Muslim jurists tended to see the world through a
simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode
of War). The first referred to those lands where Islamic laws held sway, while the second denoted
those lands where Muslims were persecuted or where Muslim laws were outlawed or
ineffective.27 This way of viewing the world, however, became more complex through the centuries
as the Islamic world became part of the international community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States and inter-
governmental organizations, the classical division of the world into dar-ul-Islam and dar-ul-
harb eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving
non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-
sulh (land of treaty) referred to countries which, though under a secular regime, maintained peaceful
and cooperative relations with Muslim States, having been bound to each other by treaty or
agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which, though not
bound by treaty with Muslim States, maintained freedom of religion for Muslims.28

It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-
mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and the Philippine
government - the Philippines being the land of compact and peace agreement - that partake of the
nature of a treaty device, "treaty" being broadly defined as "any solemn agreement in writing that
sets out understandings, obligations, and benefits for both parties which provides for a framework
that elaborates the principles declared in the [MOA-AD]."29

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and
starts with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles,
Territory, Resources, and Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples
of Mindanao to identify themselves and be accepted as Bangsamoros.'" It defines "Bangsamoro
people" as the natives or original inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses.30

Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only
"Moros" as traditionally understood even by Muslims,31 but all indigenous peoples of Mindanao and
its adjacent islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be
respected. What this freedom of choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested
exclusively in the Bangsamoro people by virtue of their prior rights of occupation.32 Both parties to
the MOA-AD acknowledge that ancestral domain does not form part of the public domain.33

The Bangsamoro people are acknowledged as having the right to self-governance, which right is
said to be rooted on ancestral territoriality exercised originally under the suzerain authority of their
sultanates and the Pat a Pangampong ku Ranaw. The sultanates were described as states or
"karajaan/kadatuan" resembling a body politic endowed with all the elements of a nation-state in the
modern sense.34

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past
suzerain authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland
was ruled by several sultanates and, specifically in the case of the Maranao, by the Pat a
Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each ruled by
datus and sultans, none of whom was supreme over the others.35

The MOA-AD goes on to describe the Bangsamoro people as "the First Nation' with defined territory
and with a system of government having entered into treaties of amity and commerce with foreign
nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory,
particularly those known as Indians. In Canada, each of these indigenous peoples is equally entitled
to be called "First Nation," hence, all of them are usually described collectively by the plural "First
Nations."36 To that extent, the MOA-AD, by identifying the Bangsamoro people as "the First Nation" -
suggesting its exclusive entitlement to that designation - departs from the Canadian usage of the
term.

The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it
grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the
Bangsamoro.37

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above
it, embracing the Mindanao-Sulu-Palawan geographic region.38

More specifically, the core of the BJE is defined as the present geographic area of the ARMM - thus
constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi
City. Significantly, this core also includes certain municipalities of Lanao del Norte that voted for
inclusion in the ARMM in the 2001 plebiscite.39

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which
are grouped into two categories, Category A and Category B. Each of these areas is to be subjected
to a plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are
to be subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-
AD.40 Category B areas, also called "Special Intervention Areas," on the other hand, are to be
subjected to a plebiscite twenty-five (25) years from the signing of a separate agreement - the
Comprehensive Compact.41

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources
within its "internal waters," defined as extending fifteen (15) kilometers from the coastline of the BJE
area;42 that the BJE shall also have "territorial waters," which shall stretch beyond the BJE internal
waters up to the baselines of the Republic of the Philippines (RP) south east and south west of
mainland Mindanao; and that within these territorial waters, the BJE and the "Central
Government" (used interchangeably with RP) shall exercise joint jurisdiction, authority and
management over all natural resources.43 Notably, the jurisdiction over the internal waters is not
similarly described as "joint."

The MOA-AD further provides for the sharing of minerals on the territorial waters between the
Central Government and the BJE, in favor of the latter, through production sharing and economic
cooperation agreement.44 The activities which the Parties are allowed to conduct on
the territorial waters are enumerated, among which are the exploration and utilization of natural
resources, regulation of shipping and fishing activities, and the enforcement of police and safety
measures.45 There is no similar provision on the sharing of minerals and allowed activities with
respect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations
with foreign countries and shall have the option to establish trade missions in those countries. Such
relationships and understandings, however, are not to include aggression against the GRP. The BJE
may also enter into environmental cooperation agreements.46

The external defense of the BJE is to remain the duty and obligation of the Central Government. The
Central Government is also bound to "take necessary steps to ensure the BJE's participation in
international meetings and events" like those of the ASEAN and the specialized agencies of the UN.
The BJE is to be entitled to participate in Philippine official missions and delegations for the
negotiation of border agreements or protocols for environmental protection and equitable sharing of
incomes and revenues involving the bodies of water adjacent to or between the islands forming part
of the ancestral domain.47

With regard to the right of exploring for, producing, and obtaining all potential sources of energy,
petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested
in the BJE "as the party having control within its territorial jurisdiction." This right carries
the proviso that, "in times of national emergency, when public interest so requires," the Central
Government may, for a fixed period and under reasonable terms as may be agreed upon by both
Parties, assume or direct the operation of such resources.48

The sharing between the Central Government and the BJE of total production pertaining to natural
resources is to be 75:25 in favor of the BJE.49

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust
dispossession of their territorial and proprietary rights, customary land tenures, or their
marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation is to
be in such form as mutually determined by the Parties.50

The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements,
mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest
Management Agreements (IFMA), and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.51

D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the
implementation of the Comprehensive Compact. This compact is to embody the "details for the
effective enforcement" and "the mechanisms and modalities for the actual implementation" of the
MOA-AD. The MOA-AD explicitly provides that the participation of the third party shall not in any way
affect the status of the relationship between the Central Government and the BJE.52

The "associative" relationship

between the Central Government
and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as "associative,"
characterized by shared authority and responsibility. And it states that the structure of governance is
to be based on executive, legislative, judicial, and administrative institutions with defined powers and
functions in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring "amendments to the existing legal framework"
shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid
amendments, with due regard to the non-derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of
the present controversy hangs on the legality of this provision.

The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil
service, electoral, financial and banking, education, legislation, legal, economic, police and internal
security force, judicial system and correctional institutions, the details of which shall be discussed in
the negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and
Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF,
respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as "the
representatives of the Parties," meaning the GRP and MILF themselves, and not merely of the
negotiating panels.53 In addition, the signature page of the MOA-AD states that it is "WITNESSED
BY" Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED
BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary
General and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE
PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr.
Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the
Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the
provinces, municipalities, and barangays under Categories A and B earlier mentioned in the
discussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS

The power of judicial review is limited to actual cases or controversies.54 Courts decline to issue
advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions.55 The
limitation of the power of judicial review to actual cases and controversies defines the role assigned
to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas
committed to the other branches of government.56

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or
dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis
of existing law and jurisprudence.57The Court can decide the constitutionality of an act or treaty only
when a proper case between opposing parties is submitted for judicial determination.58

Related to the requirement of an actual case or controversy is the requirement of ripeness. A

question is ripe for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it.59 For a case to be considered ripe for adjudication, it is a prerequisite
that something had then been accomplished or performed by either branch before a court may come
into the picture,60 and the petitioner must allege the existence of an immediate or threatened injury to
itself as a result of the challenged action.61 He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act complained of.62

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in
the present petitions, reasoning that
 The unsigned MOA-AD is simply a list of consensus points subject to further negotiations
and legislative enactments as well as constitutional processes aimed at attaining a final
peaceful agreement. Simply put, the MOA-AD remains to be a proposal that does not
automatically create legally demandable rights and obligations until the list of operative acts
required have been duly complied with. x x x

xxxx

In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to
pass upon issues based on hypothetical or feigned constitutional problems or interests
with no concrete bases. Considering the preliminary character of the MOA-AD, there are no
concrete acts that could possibly violate petitioners' and intervenors' rights since the acts
complained of are mere contemplated steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors' perceived injury, if at all, is merely imaginary
and illusory apart from being unfounded and based on mere conjectures. (Underscoring
supplied)

The Solicitor General cites63 the following provisions of the MOA-AD:

TERRITORY

xxxx

2. Toward this end, the Parties enter into the following stipulations:

xxxx

d. Without derogating from the requirements of prior agreements, the Government stipulates
to conduct and deliver, using all possible legal measures, within twelve (12) months following
the signing of the MOA-AD, a plebiscite covering the areas as enumerated in the list and
depicted in the map as Category A attached herein (the "Annex"). The Annex constitutes an
integral part of this framework agreement. Toward this end, the Parties shall endeavor to
complete the negotiations and resolve all outstanding issues on the Comprehensive
Compact within fifteen (15) months from the signing of the MOA-AD.

xxxx

GOVERNANCE

xxxx

7. The Parties agree that mechanisms and modalities for the actual implementation of this
MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to
enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall
come into force upon the signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe.
In Pimentel, Jr. v. Aguirre,65 this Court held:

x x x [B]y the mere enactment of the questioned law or the approval of the challenged action,
the dispute is said to have ripened into a judicial controversy even without any other overt
act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken
judicial duty.

xxxx

By the same token, when an act of the President, who in our constitutional scheme is a
coequal of Congress, is seriously alleged to have infringed the Constitution and the laws x x
x settling the dispute becomes the duty and the responsibility of the courts.66

In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the
challenge to the constitutionality of the school's policy allowing student-led prayers and speeches
before games was ripe for adjudication, even if no public prayer had yet been led under the policy,
because the policy was being challenged as unconstitutional on its face.68

That the law or act in question is not yet effective does not negate ripeness. For example, in New
York v. United States,69 decided in 1992, the United States Supreme Court held that the action by
the State of New York challenging the provisions of the Low-Level Radioactive Waste Policy Act was
ripe for adjudication even if the questioned provision was not to take effect until January 1, 1996,
because the parties agreed that New York had to take immediate action to avoid the provision's
consequences.70

The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and Prohibition are
remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is
proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction.72 Mandamus is a remedy granted by law when
any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use or enjoyment of a right or office to which such other is
entitled.73 Certiorari, Mandamus and Prohibition are appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials.74

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued
on February 28, 2001.75 The said executive order requires that "[t]he government's policy framework
for peace, including the systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order."76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of
the MOA-AD without consulting the local government units or communities affected, nor informing
them of the proceedings. As will be discussed in greater detail later, such omission, by itself,
constitutes a departure by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The
MOA-AD provides that "any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon the signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework," implying an amendment of the Constitution to
accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of
the Constitution. Such act constitutes another violation of its authority. Again, these points will be
discussed in more detail later.

As the petitions allege acts or omissions on the part of respondent that exceed their authority, by
violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the
petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a branch of government is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of
the judiciary to settle the dispute.77

B. LOCUS STANDI

For a party to have locus standi, one must allege "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions."78

Because constitutional cases are often public actions in which the relief sought is likely to affect
other persons, a preliminary question frequently arises as to this interest in the constitutional
question raised.79

When suing as a citizen, the person complaining must allege that he has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the statute or act complained of.80 When the issue concerns
a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the
laws.81

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally
disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.82 The Court retains discretion whether or not to
allow a taxpayer's suit.83

In the case of a legislator or member of Congress, an act of the Executive that injures the institution
of Congress causes a derivative but nonetheless substantial injury that can be questioned by
legislators. A member of the House of Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in his office.84

An organization may be granted standing to assert the rights of its members,85 but the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty
to preserve the rule of law does not suffice to clothe it with standing.86

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an
interest of its own, and of the other LGUs.87

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the
requirements of the law authorizing intervention,88 such as a legal interest in the matter in litigation,
or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus standi, given the
liberal attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo,89 where
technicalities of procedure were brushed aside, the constitutional issues raised being of paramount
public interest or of transcendental importance deserving the attention of the Court in view of their
seriousness, novelty and weight as precedents.90 The Court's forbearing stance on locus standi on
issues involving constitutional issues has for its purpose the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether
the other branches of government have kept themselves within the limits of the Constitution and the
laws and have not abused the discretion given them, has brushed aside technical rules of
procedure.91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of
Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of
Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury
that they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in
the intended domain of the BJE. These petitioners allege that they did not vote for their inclusion in
the ARMM which would be expanded to form the BJE territory. Petitioners' legal standing is thus
beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would
have no standing as citizens and taxpayers for their failure to specify that they would be denied
some right or privilege or there would be wastage of public funds. The fact that they are a former
Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of
no consequence. Considering their invocation of the transcendental importance of the issues at
hand, however, the Court grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that
government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to
delineate the BJE territory. On that score alone, they can be given legal standing. Their allegation
that the issues involved in these petitions are of "undeniable transcendental importance" clothes
them with added basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of the
Senate and a citizen to enforce compliance by respondents of the public's constitutional right to be
informed of the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the
success or failure of either of the parties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao
City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP
Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of
the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege
any proper legal interest in the present petitions. Just the same, the Court exercises its discretion to
relax the procedural technicality on locus standi given the paramount public interest in the issues at
hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an

advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao;
and Muslim Legal Assistance Foundation Inc., a non-government organization of Muslim lawyers,
allege that they stand to be benefited or prejudiced, as the case may be, in the resolution of the
petitions concerning the MOA-AD, and prays for the denial of the petitions on the grounds therein
stated. Such legal interest suffices to clothe them with standing.

B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the satisfaction of all the
reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that
"[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA."92

In lending credence to this policy decision, the Solicitor General points out that the President had
already disbanded the GRP Peace Panel.93

In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not being a
magical formula that automatically dissuades courts in resolving a case, it will decide cases,
otherwise moot and academic, if it finds that (a) there is a grave violation of the Constitution;95 (b) the
situation is of exceptional character and paramount public interest is involved;96 (c) the constitutional
issue raised requires formulation of controlling principles to guide the bench, the bar, and the
public;97 and (d) the case is capable of repetition yet evading review.98

Another exclusionary circumstance that may be considered is where there is a voluntary cessation of
the activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily
ceases the challenged conduct, it does not automatically deprive the tribunal of power to hear and
determine the case and does not render the case moot especially when the plaintiff seeks damages
or prays for injunctive relief against the possible recurrence of the violation.99

The present petitions fall squarely into these exceptions to thus thrust them into the domain of
judicial review. The grounds cited above in David are just as applicable in the present cases as they
were, not only in David, but also in Province of Batangas v. Romulo100 and Manalo v.
Calderon101 where the Court similarly decided them on the merits, supervening events that would
ordinarily have rendered the same moot notwithstanding.

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the
signing of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining
Order.

Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus
points," especially given its nomenclature, the need to have it signed or initialed by all the parties
concerned on August 5, 2008, and the far-reaching Constitutional implications of these
"consensus points," foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents
to amend and effect necessary changes to the existing legal framework for certain provisions
of the MOA-AD to take effect. Consequently, the present petitions are not confined to the terms
and provisions of the MOA-AD, but to other on-going and future negotiations and agreements
necessary for its realization. The petitions have not, therefore, been rendered moot and academic
simply by the public disclosure of the MOA-AD,102 the manifestation that it will not be signed as well
as the disbanding of the GRP Panel not withstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a
significant part of the country's territory and the wide-ranging political modifications of affected LGUs.
The assertion that the MOA-AD is subject to further legal enactments including possible
Constitutional amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this case, the
government and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no
longer legitimately constitute an actual case or controversy [as this] will do more harm than good to
the nation as a whole."

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed
and eventually cancelled was a stand-alone government procurement contract for a national
broadband network involving a one-time contractual relation between two parties-the government
and a private foreign corporation. As the issues therein involved specific government procurement
policies and standard principles on contracts, the majority opinion in Suplico found nothing
exceptional therein, the factual circumstances being peculiar only to the transactions and parties
involved in the controversy.

The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of agreements necessary
to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain
Aspect of said Tripoli Agreement is the third such component to be undertaken following the
implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and
Development Aspect in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor
General, has stated that "no matter what the Supreme Court ultimately decides[,] the government
will not sign the MOA[-AD]," mootness will not set in in light of the terms of the Tripoli Agreement
2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the
Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could
contain similar or significantly drastic provisions. While the Court notes the word of the Executive
Secretary that the government "is committed to securing an agreement that is both constitutional and
equitable because that is the only way that long-lasting peace can be assured," it is minded to
render a decision on the merits in the present petitions to formulate controlling principles to
guide the bench, the bar, the public and, most especially, the government in negotiating with
the MILF regarding Ancestral Domain.

Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio
Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of "capable of repetition yet
evading review" can override mootness, "provided the party raising it in a proper case has been
and/or continue to be prejudiced or damaged as a direct result of their issuance." They contend that
the Court must have jurisdiction over the subject matter for the doctrine to be invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises original
jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory
Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises
questions that need to be resolved.105 At all events, the Court has jurisdiction over most if not the rest
of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine
immediately referred to as what it had done in a number of landmark cases.106 There is
a reasonable expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga
del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of
Linamon, will again be subjected to the same problem in the future as respondents' actions are
capable of repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot, respondents
having, by Compliance of August 7, 2008, provided this Court and petitioners with official copies of
the final draft of the MOA-AD and its annexes. Too, intervenors have been furnished, or have
procured for themselves, copies of the MOA-AD.

V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE
issues to be resolved, one relating to the manner in which the MOA-AD was negotiated and
finalized, the other relating to its provisions, viz:

1. Did respondents violate constitutional and statutory provisions on public consultation and the right
to information when they negotiated and later initialed the MOA-AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as

provided in Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.107

As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to examine and
inspect public records, a right which was eventually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987
Constitution, has been recognized as a self-executory constitutional right.109

In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public records
is predicated on the right of the people to acquire information on matters of public concern since,
undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and political
significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free
exchange of information in a democracy. There can be no realistic perception by the public of the
nation's problems, nor a meaningful democratic decision-making if they are denied access to
information of general interest. Information is needed to enable the members of society to cope with
the exigencies of the times. As has been aptly observed: "Maintaining the flow of such information
depends on protection for both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases." x x x111

In the same way that free discussion enables members of society to cope with the exigencies of their
time, access to information of general interest aids the people in democratic decision-making by
giving them a better perspective of the vital issues confronting the nation112 so that they may be able
to criticize and participate in the affairs of the government in a responsible, reasonable and effective
manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed
public that a government remains responsive to the changes desired by the people.113

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public concern114 faces
no serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.115 In
previous cases, the Court found that the regularity of real estate transactions entered in the Register
of Deeds,116 the need for adequate notice to the public of the various laws,117 the civil service
eligibility of a public employee,118 the proper management of GSIS funds allegedly used to grant
loans to public officials,119 the recovery of the Marcoses' alleged ill-gotten wealth,120 and the identity
of party-list nominees,121 among others, are matters of public concern. Undoubtedly, the MOA-AD
subject of the present cases is of public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps and negotiations leading
to the consummation of the contract. In not distinguishing as to the executory nature or commercial
character of agreements, the Court has categorically ruled:

x x x [T]he right to information "contemplates inclusion of negotiations leading to the

consummation of the transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is consummated, it may be too
late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract, which
may be grossly disadvantageous to the government or even illegal, becomes fait accompli.
This negates the State policy of full transparency on matters of public concern, a situation
which the framers of the Constitution could not have intended. Such a requirement will
prevent the citizenry from participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an
emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full
disclosure of all its transactions involving public interest."122 (Emphasis and italics in the
original)

Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the policy
of public disclosure under Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest.124

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of
access to information on matters of public concern found in the Bill of Rights. The right to information
guarantees the right of the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands.125
The policy of public disclosure establishes a concrete ethical principle for the conduct of public
affairs in a genuinely open democracy, with the people's right to know as the centerpiece. It is a
mandate of the State to be accountable by following such policy.126 These provisions are vital to the
exercise of the freedom of expression and essential to hold public officials at all times accountable to
the people.127

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional

Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will
not be in force and effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the
implementing law will have to be enacted by Congress, Mr. Presiding Officer.128

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is
enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get
the Gentleman correctly as having said that this is not a self-executing provision? It would
require a legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment
from Commissioner Regalado, so that the safeguards on national interest are modified by
the clause "as may be provided by law"

MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and
Congress may provide for reasonable safeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of course,
Congress here may no longer pass a law revoking it, or if this is approved, revoking this
principle, which is inconsistent with this policy.129 (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a
statute. As Congress cannot revoke this principle, it is merely directed to provide for "reasonable
safeguards." The complete and effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory nature. Since both
provisions go hand-in-hand, it is absurd to say that the broader130 right to information on matters of
public concern is already enforceable while the correlative duty of the State to disclose its
transactions involving public interest is not enforceable until there is an enabling law. Respondents
cannot thus point to the absence of an implementing legislation as an excuse in not effecting such
policy.

An essential element of these freedoms is to keep open a continuing dialogue or process of

communication between the government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the government may perceive
and be responsive to the people's will.131Envisioned to be corollary to the twin rights to information
and disclosure is the design for feedback mechanisms.
 MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to
participate? Will the government provide feedback mechanisms so that the people
can participate and can react where the existing media facilities are not able to
provide full feedback mechanisms to the government? I suppose this will be part of
the government implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these courses
take place. There is a message and a feedback, both ways.

xxxx

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?

I think when we talk about the feedback network, we are not talking about public
officials but also network of private business o[r] community-based organizations that
will be reacting. As a matter of fact, we will put more credence or credibility on the private
network of volunteers and voluntary community-based organizations. So I do not think we
are afraid that there will be another OMA in the making.132(Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is evident in the
"marching orders" to respondents. The mechanics for the duty to disclose information and to conduct
public consultation regarding the peace agenda and process is manifestly provided by E.O. No.
3.133 The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the
contribution of civil society to the comprehensive peace process by institutionalizing the people's
participation.

One of the three underlying principles of the comprehensive peace process is that it "should be
community-based, reflecting the sentiments, values and principles important to all Filipinos" and
"shall be defined not by the government alone, nor by the different contending groups only, but by all
Filipinos as one community."134Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes "continuing consultations on both
national and local levels to build consensus for a peace agenda and process, and the mobilization
and facilitation of people's participation in the peace process."135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
"continuing" consultations, contrary to respondents' position that plebiscite is "more than
sufficient consultation."136

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to
"[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek
relevant information, comments, recommendations as well as to render appropriate and timely
reports on the progress of the comprehensive peace process."137 E.O. No. 3 mandates the
establishment of the NPF to be "the principal forum for the PAPP to consult with and seek advi[c]e
from the peace advocates, peace partners and concerned sectors of society on both national and
local levels, on the implementation of the comprehensive peace process, as well as for government[-
]civil society dialogue and consensus-building on peace agenda and initiatives."138

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a
corollary to the constitutional right to information and disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation. The furtive process by which the MOA-AD was designed and crafted runs contrary to
and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary
and despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a particular way or
manner. It may, however, require him to comply with the law and discharge the functions within the
authority granted by the President.139

Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying
the denial of petitioners' right to be consulted. Respondents' stance manifests the manner by which
they treat the salient provisions of E.O. No. 3 on people's participation. Such disregard of the
express mandate of the President is not much different from superficial conduct toward token
provisos that border on classic lip service.140 It illustrates a gross evasion of positive duty and a
virtual refusal to perform the duty enjoined.

As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the
premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit provisions
on continuing consultation and dialogue on both national and local levels. The executive order
even recognizes the exercise of the public's right even before the GRP makes its official
recommendations or before the government proffers its definite propositions.141 It bear emphasis that
E.O. No. 3 seeks to elicit relevant advice, information, comments and recommendations from the
people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their
unqualified disclosure of the official copies of the final draft of the MOA-AD. By unconditionally
complying with the Court's August 4, 2008 Resolution, without a prayer for the document's
disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad
cautelam.

Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to
"require all national agencies and offices to conduct periodic consultations with appropriate local
government units, non-governmental and people's organizations, and other concerned sectors of the
community before any project or program is implemented in their respective jurisdictions"142 is well-
taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy:

Prior Consultations Required. - No project or program shall be implemented by government

authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied
with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants
in areas where such projects are to be implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with the provisions of the
Constitution.143 (Italics and underscoring supplied)

In Lina, Jr. v. Hon. Pao,144 the Court held that the above-stated policy and above-quoted provision
of the LGU apply only to national programs or projects which are to be implemented in a particular
local community. Among the programs and projects covered are those that are critical to the
environment and human ecology including those that may call for the eviction of a particular group of
people residing in the locality where these will be implemented.145 The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people,146 which could pervasively and drastically result to the diaspora or
displacement of a great number of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests
are represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs
have, under the IPRA, the right to participate fully at all levels of decision-making in matters which
may affect their rights, lives and destinies.147 The MOA-AD, an instrument recognizing ancestral
domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said
Act,148 which entails, among other things, the observance of the free and prior informed consent of
the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the power to
delineate and recognize an ancestral domain claim by mere agreement or compromise. The
recognition of the ancestral domain is the raison d'etre of the MOA-AD, without which all other
stipulations or "consensus points" necessarily must fail. In proceeding to make a sweeping
declaration on ancestral domain, without complying with the IPRA, which is cited as one of the TOR
of the MOA-AD, respondents clearly transcended the boundaries of their authority. As it
seems, even the heart of the MOA-AD is still subject to necessary changes to the legal framework.
While paragraph 7 on Governance suspends the effectivity of all provisions requiring changes to the
legal framework, such clause is itself invalid, as will be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and
available always to public cognizance. This has to be so if the country is to remain democratic, with
sovereignty residing in the people and all government authority emanating from them.149

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be
accommodated under the present Constitution and laws. Respondents have admitted as much in the
oral arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing
legal framework to render effective at least some of its provisions. Respondents, nonetheless,
counter that the MOA-AD is free of any legal infirmity because any provisions therein which are
inconsistent with the present legal framework will not be effective until the necessary changes to that
framework are made. The validity of this argument will be considered later. For now, the Court shall
pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded therein
to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local
government under present laws, and even go beyond those of the present ARMM. Before assessing
some of the specific powers that would have been vested in the BJE, however, it would be useful to
turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD,
namely, the international law concept of association. Significantly, the MOA-AD explicitly alludes to
this concept, indicating that the Parties actually framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and

paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD
most clearly uses it to describe the envisioned relationship between the BJE and the Central
Government.

4. The relationship between the Central Government and the Bangsamoro juridical
entity shall be associative characterized by shared authority and responsibility with a
structure of governance based on executive, legislative, judicial and administrative
institutions with defined powers and functions in the comprehensive compact. A period of
 transition shall be established in a comprehensive peace compact specifying the relationship
between the Central Government and the BJE. (Emphasis and underscoring supplied)

The nature of the "associative" relationship may have been intended to be defined more precisely in
the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of
"association" in international law, and the MOA-AD - by its inclusion of international law instruments
in its TOR- placed itself in an international legal context, that concept of association may be brought
to bear in understanding the use of the term "associative" in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable
links. In the basic model, one state, the associate, delegates certain responsibilities to
the other, the principal, while maintaining its international status as a state. Free
associations represent a middle ground between integration and independence. x x
x150 (Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of
Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands,151 are
associated states of the U.S. pursuant to a Compact of Free Association. The currency in these
countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own
travel documents, which is a mark of their statehood. Their international legal status as states was
confirmed by the UN Security Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM generally have
the capacity to conduct foreign affairs in their own name and right, such capacity extending to
matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and
cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult
with the governments of the Marshall Islands or the FSM on matters which it (U.S. government)
regards as relating to or affecting either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has
the authority and obligation to defend them as if they were part of U.S. territory. The U.S.
government, moreover, has the option of establishing and using military areas and facilities within
these associated states and has the right to bar the military personnel of any third country from
having access to these territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is understood as
an international association between sovereigns. The Compact of Free Association is a treaty which
is subordinate to the associated nation's national constitution, and each party may terminate the
association consistent with the right of independence. It has been said that, with the admission of the
U.S.-associated states to the UN in 1990, the UN recognized that the American model of free
association is actually based on an underlying status of independence.152

In international practice, the "associated state" arrangement has usually been used as a transitional
device of former colonies on their way to full independence. Examples of states that have passed
through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla,
Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.153

Back to the MOA-AD, it contains many provisions which are consistent with the international legal
concept of association, specifically the following: the BJE's capacity to enter into economic and trade
relations with foreign countries, the commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external defense. Moreover, the BJE's right
to participate in Philippine official missions bearing on negotiation of border agreements,
environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or
between the islands forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter
affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the
BJE the status of an associated state or, at any rate, a status closely approximating it.

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an
"associative" relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It also implies
the recognition of the associated entity as a state. The Constitution, however, does not contemplate
any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for independence.

Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for
its validity the amendment of constitutional provisions, specifically the following provisions of Article
X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing
common and distinctive historical and cultural heritage, economic and social structures, and
other relevant characteristics within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines.

The BJE is a far more powerful

entity than the autonomous region
recognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with the national
government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but
name as it meets the criteria of a state laid down in the Montevideo Convention,154 namely,
a permanent population, a defined territory, a government, and a capacity to enter into relations with
other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine
territory, the spirit animating it - which has betrayed itself by its use of the concept of association
- runs counter to the national sovereignty and territorial integrity of the Republic.

The defining concept underlying the relationship between the national government and the
BJE being itself contrary to the present Constitution, it is not surprising that many of the
specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict
with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall
be effective when approved by a majority of the votes cast by the constituent units in a plebiscite
called for the purpose, provided that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the autonomous region." (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it
is covered by the term "autonomous region" in the constitutional provision just quoted, the MOA-AD
would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the
present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which
voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar,
Tagoloan and Tangkal - are automatically part of the BJE without need of another plebiscite, in
contrast to the areas under Categories A and B mentioned earlier in the overview. That the present
components of the ARMM and the above-mentioned municipalities voted for inclusion therein in
2001, however, does not render another plebiscite unnecessary under the Constitution, precisely
because what these areas voted for then was their inclusion in the ARMM, not the BJE.

The MOA-AD, moreover, would not

comply with Article X, Section 20 of
the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution
and national laws, the organic act of autonomous regions shall provide for legislative powers
over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare
of the people of the region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would
require an amendment that would expand the above-quoted provision. The mere passage of new
legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since
any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with
other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting
the BJE with treaty-making power in order to accommodate paragraph 4 of the strand on
RESOURCES which states: "The BJE is free to enter into any economic cooperation and trade
relations with foreign countries: provided, however, that such relationships and understandings do
not include aggression against the Government of the Republic of the Philippines x x x." Under our
constitutional system, it is only the President who has that power. Pimentel v. Executive
Secretary155 instructs:

In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country's sole representative with
foreign nations. As the chief architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and otherwise transact
the business of foreign relations. In the realm of treaty-making, the President has the
sole authority to negotiate with other states. (Emphasis and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in
the MOA-AD is to be effected. That constitutional provision states: "The State recognizes and
promotes the rights of indigenous cultural communities within the framework of national unity and
development." (Underscoring supplied) An associative arrangement does not uphold national unity.
While there may be a semblance of unity because of the associative ties between the BJE and the
national government, the act of placing a portion of Philippine territory in a status which, in
international practice, has generally been a preparation for independence, is certainly not conducive
to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing
statutory law, among which are R.A. No. 9054156 or the Organic Act of the ARMM, and
the IPRA.157

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition
of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and Principles states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to those
who are natives or original inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants
whether mixed or of full blood. Spouses and their descendants are classified as
Bangsamoro. The freedom of choice of the Indigenous people shall be respected. (Emphasis
and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the
Organic Act, which, rather than lumping together the identities of the Bangsamoro and other
indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and
Tribal peoples, as follows:

"As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino
citizens residing in the autonomous region who are:

(a) Tribal peoples. These are citizens whose social, cultural and economic conditions
distinguish them from other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who have
retained some or all of their own social, economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of
ancestral domains. The MOA-AD's manner of delineating the ancestral domain of the Bangsamoro
people is a clear departure from that procedure. By paragraph 1 of Territory, the Parties simply
agree that, subject to the delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and
historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial
domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-
Palawan geographic region."

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the
following provisions thereof:

SECTION 52. Delineation Process. - The identification and delineation of ancestral domains
shall be done in accordance with the following procedures:

xxxx

b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated
by the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation
filed with the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. - The official delineation of ancestral domain boundaries including

census of all community members therein, shall be immediately undertaken by the Ancestral
Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be
done in coordination with the community concerned and shall at all times include genuine
involvement and participation by the members of the communities concerned;

d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders
or community under oath, and other documents directly or indirectly attesting to the
possession or occupation of the area since time immemorial by such ICCs/IPs in the concept
of owners which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements, burial
grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries

entered into by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests and hunting

grounds;
 9) Pictures and descriptive histories of traditional landmarks such as mountains,
rivers, creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the community.

e) Preparation of Maps. - On the basis of such investigation and the findings of fact based
thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete
with technical descriptions, and a description of the natural features and landmarks
embraced therein;

f) Report of Investigation and Other Documents. - A complete copy of the preliminary census
and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP;

g) Notice and Publication. - A copy of each document, including a translation in the native
language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least
fifteen (15) days. A copy of the document shall also be posted at the local, provincial and
regional offices of the NCIP, and shall be published in a newspaper of general circulation
once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto
within fifteen (15) days from date of such publication: Provided, That in areas where no such
newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further,
That mere posting shall be deemed sufficient if both newspaper and radio station are not
available;

h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection
process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a
favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is
deemed insufficient, the Ancestral Domains Office shall require the submission of additional
evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed
patently false or fraudulent after inspection and verification: Provided, further, That in case of
rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all
concerned, containing the grounds for denial. The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on
the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the
contending parties to meet and assist them in coming up with a preliminary resolution of the
conflict, without prejudice to its full adjudication according to the section below.

xxxx

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a
discussion of not only the Constitution and domestic statutes, but also of international law is in order,
for

Article II, Section 2 of the Constitution states that the Philippines "adopts the generally
accepted principles of international law as part of the law of the land."

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the
Universal Declaration of Human Rights is part of the law of the land on account of which it ordered
the release on bail of a detained alien of Russian descent whose deportation order had not been
executed even after two years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid
constitutional provision to the 1968 Vienna Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of "peoples," understood not
merely as the entire population of a State but also a portion thereof. In considering the question of
whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian
Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had occasion to acknowledge that
"the right of a people to self-determination is now so widely recognized in international conventions
that the principle has acquired a status beyond convention' and is considered a general principle of
international law."

Among the conventions referred to are the International Covenant on Civil and Political Rights161 and
the International Covenant on Economic, Social and Cultural Rights162 which state, in Article 1 of
both covenants, that all peoples, by virtue of the right of self-determination, "freely determine their
political status and freely pursue their economic, social, and cultural development."

The people's right to self-determination should not, however, be understood as extending to a

unilateral right of secession. A distinction should be made between the right of internal and external
self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

"(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-determination - a
people's pursuit of its political, economic, social and cultural development within the
framework of an existing state. A right to external self-determination (which in this
case potentially takes the form of the assertion of a right to unilateral secession)
arises in only the most extreme of cases and, even then, under carefully defined
circumstances. x x x

External self-determination can be defined as in the following statement from

the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or

integration with an independent State or the emergence into any other political status
freely determined by a people constitute modes of implementing the right of self-
determination by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a

framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a people's right to self-determination
also contain parallel statements supportive of the conclusion that the exercise of such a right
must be sufficiently limited to prevent threats to an existing state's territorial integrity or the
stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right to external self-
determination can arise, namely, where a people is under colonial rule, is subject to foreign
domination or exploitation outside a colonial context, and - less definitely but asserted by a number
of commentators - is blocked from the meaningful exercise of its right to internal self-determination.
The Court ultimately held that the population of Quebec had no right to secession, as the same is
not under colonial rule or foreign domination, nor is it being deprived of the freedom to make political
choices and pursue economic, social and cultural development, citing that Quebec is equitably
represented in legislative, executive and judicial institutions within Canada, even occupying
prominent positions therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE
INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND
ISLANDS QUESTION.163 There, Sweden presented to the Council of the League of Nations the
question of whether the inhabitants of the Aaland Islands should be authorized to determine by
plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated in the
kingdom of Sweden. The Council, before resolving the question, appointed an International
Committee composed of three jurists to submit an opinion on the preliminary issue of whether the
dispute should, based on international law, be entirely left to the domestic jurisdiction of Finland. The
Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties, the right of disposing
of national territory is essentially an attribute of the sovereignty of every State.
Positive International Law does not recognize the right of national groups, as such, to
separate themselves from the State of which they form part by the simple expression
of a wish, any more than it recognizes the right of other States to claim such a
separation. Generally speaking, the grant or refusal of the right to a portion of its
population of determining its own political fate by plebiscite or by some other method,
is, exclusively, an attribute of the sovereignty of every State which is definitively
constituted. A dispute between two States concerning such a question, under normal
conditions therefore, bears upon a question which International Law leaves entirely to the
domestic jurisdiction of one of the States concerned. Any other solution would amount to an
infringement of sovereign rights of a State and would involve the risk of creating difficulties
and a lack of stability which would not only be contrary to the very idea embodied in term
"State," but would also endanger the interests of the international community. If this right is
not possessed by a large or small section of a nation, neither can it be held by the State to
which the national group wishes to be attached, nor by any other State. (Emphasis and
underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a question which
is left by international law to the domestic jurisdiction of Finland, thereby applying the exception
rather than the rule elucidated above. Its ground for departing from the general rule, however, was a
very narrow one, namely, the Aaland Islands agitation originated at a time when Finland was
undergoing drastic political transformation. The internal situation of Finland was, according to the
Committee, so abnormal that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the
Finnish national government was disputed by a large section of the people, and it had, in fact, been
chased from the capital and forcibly prevented from carrying out its duties. The armed camps and
the police were divided into two opposing forces. In light of these circumstances, Finland was not,
during the relevant time period, a "definitively constituted" sovereign state. The Committee,
therefore, found that Finland did not possess the right to withhold from a portion of its population the
option to separate itself - a right which sovereign nations generally have with respect to their own
populations.

Turning now to the more specific category of indigenous peoples, this term has been used, in
scholarship as well as international, regional, and state practices, to refer to groups with distinct
cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly
incorporated into a larger governing society. These groups are regarded as "indigenous" since they
are the living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise
stated, indigenous peoples, nations, or communities are culturally distinctive groups that find
themselves engulfed by settler societies born of the forces of empire and conquest.164 Examples of
groups who have been regarded as indigenous peoples are the Maori of New Zealand and the
aboriginal peoples of Canada.

As with the broader category of "peoples," indigenous peoples situated within states do not have a
general right to independence or secession from those states under international law,165 but they do
have rights amounting to what was discussed above as the right to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the United
Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly
Resolution 61/295. The vote was 143 to 4, the Philippines being included among those in favor,
and the four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration
clearly recognized the right of indigenous peoples to self-determination, encompassing the
right to autonomy or self-government, to wit:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right

to autonomy or self-government in matters relating to their internal and local affairs,
as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal,
economic, social and cultural institutions, while retaining their right to participate fully, if they
so choose, in the political, economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous peoples, has been
understood as equivalent to "internal self-determination."166 The extent of self-determination provided
for in the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted
hereunder:

Article 8

1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as
distinct peoples, or of their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands,
territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or
undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic

discrimination directed against them.

Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of their
economic and social conditions, including, inter alia, in the areas of education, employment,
vocational training and retraining, housing, sanitation, health and social security.

2. States shall take effective measures and, where appropriate, special measures to ensure
continuing improvement of their economic and social conditions. Particular attention shall be
paid to the rights and special needs of indigenous elders, women, youth, children and
persons with disabilities.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories
and resources that they possess by reason of traditional ownership or other traditional
occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources.
Such recognition shall be conducted with due respect to the customs, traditions and land
tenure systems of the indigenous peoples concerned.

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples,
unless justified by a relevant public interest or otherwise freely agreed with or requested by
the indigenous peoples concerned.

2. States shall undertake effective consultations with the indigenous peoples concerned,
through appropriate procedures and in particular through their representative institutions,
prior to using their lands or territories for military activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for
the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free and informed
consent prior to the approval of any project affecting their lands or territories and other
 resources, particularly in connection with the development, utilization or exploitation of
mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities,
and appropriate measures shall be taken to mitigate adverse environmental, economic,
social, cultural or spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of
treaties, agreements and other constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties, agreements and other
constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of

indigenous peoples contained in treaties, agreements and other constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate
measures, including legislative measures, to achieve the ends of this Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded
as embodying customary international law - a question which the Court need not definitively resolve
here - the obligations enumerated therein do not strictly require the Republic to grant the
Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers
provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope,
allowing for flexibility in its application by the different States.

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous
peoples their own police and internal security force. Indeed, Article 8 presupposes that it is the State
which will provide protection for indigenous peoples against acts like the forced dispossession of
their lands - a function that is normally performed by police officers. If the protection of a right so
essential to indigenous people's identity is acknowledged to be the responsibility of the State, then
surely the protection of rights less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the
aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of
indigenous peoples to the lands, territories and resources which they have traditionally owned,
occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not
obligate States to grant indigenous peoples the near-independent status of an associated state. All
the rights recognized in that document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for any State, people, group
or person any right to engage in any activity or to perform any act contrary to the Charter of
the United Nations or construed as authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2
of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its
compliance with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be
reconciled with the Constitution and the laws as presently worded. Respondents proffer,
however, that the signing of the MOA-AD alone would not have entailed any violation of law or grave
abuse of discretion on their part, precisely because it stipulates that the provisions thereof
inconsistent with the laws shall not take effect until these laws are amended. They cite paragraph 7
of the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced below for
convenience:

7. The Parties agree that the mechanisms and modalities for the actual implementation of
this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps
to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall
come into force upon signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.

Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming
into force until the necessary changes to the legal framework are effected. While the word
"Constitution" is not mentioned in the provision now under consideration or anywhere else in
the MOA-AD, the term "legal framework" is certainly broad enough to include the
Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in
the MOA-AD the provisions thereof regarding the associative relationship between the BJE and the
Central Government, have already violated the Memorandum of Instructions From The President
dated March 1, 2001, which states that the "negotiations shall be conducted in accordance with x x x
the principles of the sovereignty and territorial integrity of the Republic of the Philippines."
(Emphasis supplied) Establishing an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for independence, or worse, an
implicit acknowledgment of an independent status already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because
the suspensive clause is invalid, as discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No.
3, Section 5(c), which states that there shall be established Government Peace Negotiating Panels
for negotiations with different rebel groups to be "appointed by the President as her official
emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups."
These negotiating panels are to report to the President, through the PAPP on the conduct and
progress of the negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through
its negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under
the laws as they presently stand. One of the components of a comprehensive peace process, which
E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit of social, economic, and
political reforms which may require new legislation or even constitutional amendments. Sec. 4(a) of
E.O. No. 3, which reiterates Section 3(a), of E.O. No. 125,167 states:

SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace
process comprise the processes known as the "Paths to Peace". These component
processes are interrelated and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall include, but may not be
limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component

involves the vigorous implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal armed conflicts and social
unrest. This may require administrative action, new legislation or even constitutional
amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address,

pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O.
authorized them to "think outside the box," so to speak. Hence, they negotiated and were set on
signing the MOA-AD that included various social, economic, and political reforms which cannot,
however, all be accommodated within the present legal framework, and which thus would require
new legislation and constitutional amendments.

The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must
be asked whether the President herself may exercise the power delegated to the GRP Peace
Panel under E.O. No. 3, Sec. 4(a).

The President cannot delegate a power that she herself does not possess. May the President, in the
course of peace negotiations, agree to pursue reforms that would require new legislation and
constitutional amendments, or should the reforms be restricted only to those solutions which the
present laws allow? The answer to this question requires a discussion of the extent of the
President's power to conduct peace negotiations.

That the authority of the President to conduct peace negotiations with rebel groups is not explicitly
mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v.
Executive Secretary,168 in issue was the authority of the President to declare a state of rebellion - an
authority which is not expressly provided for in the Constitution. The Court held thus:

"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence.
There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of
her exiled predecessor. The rationale for the majority's ruling rested on the President's

. . . unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the
Constitution. The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those relating to the
 commander-in-chief clause, but not a diminution of the general grant of executive
power.

Thus, the President's authority to declare a state of rebellion springs in the main from
her powers as chief executive and, at the same time, draws strength from her
Commander-in-Chief powers. x x x (Emphasis and underscoring supplied)

Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as
Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general
responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty
to prevent and suppress rebellion and lawless violence.169

As the experience of nations which have similarly gone through internal armed conflict will show,
however, peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as far-
reaching as a fundamental reconfiguration of the nation's constitutional structure is required. The
observations of Dr. Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must form the
core of any post-conflict peace-building mission. As we have observed in Liberia and Haiti
over the last ten years, conflict cessation without modification of the political environment,
even where state-building is undertaken through technical electoral assistance and
institution- or capacity-building, is unlikely to succeed. On average, more than 50 percent of
states emerging from conflict return to conflict. Moreover, a substantial proportion of
transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an important role in
the political and governance transition. Constitution-making after conflict is an opportunity to
create a common vision of the future of a state and a road map on how to get there. The
constitution can be partly a peace agreement and partly a framework setting up the rules by
which the new democracy will operate.170

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace
agreements, observed that the typical way that peace agreements establish or confirm mechanisms
for demilitarization and demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal and human rights institutions.171

In the Philippine experience, the link between peace agreements and constitution-making has been
recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution
on autonomous regions172is the framers' intention to implement a particular peace agreement,
namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then
Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have some more questions, I will
reserve my right to ask them if they are not covered by the other speakers. I have only two
questions.

I heard one of the Commissioners say that local autonomy already exists in the
Muslim region; it is working very well; it has, in fact, diminished a great deal of the
problems. So, my question is: since that already exists, why do we have to go into
something new?
 MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to implement the
provisions of the Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question that this is merely a
partial response to the Tripoli Agreement itself and to the fuller standard of regional
autonomy contemplated in that agreement, and now by state policy.173(Emphasis
supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the
credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with
the reality of an on-going conflict between the Government and the MILF. If the President is to be
expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao,
then she must be given the leeway to explore, in the course of peace negotiations, solutions that
may require changes to the Constitution for their implementation. Being uniquely vested with the
power to conduct peace negotiations with rebel groups, the President is in a singular position to
know the precise nature of their grievances which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable, but
she may not be prevented from submitting them as recommendations to Congress, which could
then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment
and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and
3 of the Constitution, to propose the recommended amendments or revision to the people, call a
constitutional convention, or submit to the electorate the question of calling such a convention.

While the President does not possess constituent powers - as those powers may be exercised only
by Congress, a Constitutional Convention, or the people through initiative and referendum - she may
submit proposals for constitutional change to Congress in a manner that does not involve the
arrogation of constituent powers.

In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly
submitting proposals for constitutional amendments to a referendum, bypassing the interim National
Assembly which was the body vested by the 1973 Constitution with the power to propose such
amendments. President Marcos, it will be recalled, never convened the interim National Assembly.
The majority upheld the President's act, holding that "the urges of absolute necessity" compelled the
President as the agent of the people to act as he did, there being no interim National Assembly to
propose constitutional amendments. Against this ruling, Justices Teehankee and Muoz Palma
vigorously dissented. The Court's concern at present, however, is not with regard to the point on
which it was then divided in that controversial case, but on that which was not disputed by either
side.

Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the President
may directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a
recognition that he would have upheld the President's action along with the majority had the
President convened the interim National Assembly and coursed his proposals through it. Thus
Justice Teehankee opined:

"Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of the
exercise of such powers, and the constituent power has not been granted to but has been
withheld from the President or Prime Minister, it follows that the President's questioned
decrees proposing and submitting constitutional amendments directly to the people (without
 the intervention of the interim National Assembly in whom the power is expressly
vested) are devoid of constitutional and legal basis."176 (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President - in the course of
conducting peace negotiations - may validly consider implementing even those policies that require
changes to the Constitution, but she may not unilaterally implement them without the intervention
of Congress, or act in any way as if the assent of that body were assumed as a certainty.

Since, under the present Constitution, the people also have the power to directly propose
amendments through initiative and referendum, the President may also submit her
recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to
what President Marcos did in Sanidad, but for their independent consideration of whether these
recommendations merit being formally proposed through initiative.

These recommendations, however, may amount to nothing more than the President's suggestions to
the people, for any further involvement in the process of initiative by the Chief Executive may vitiate
its character as a genuine "people's initiative." The only initiative recognized by the Constitution is
that which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:177

"The Lambino Group claims that their initiative is the people's voice.' However, the Lambino
Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their
petition with the COMELEC, that ULAP maintains its unqualified support to the agenda of
Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.' The Lambino
Group thus admits that their people's' initiative is an unqualified support to the
agenda' of the incumbent President to change the Constitution. This forewarns the Court to
be wary of incantations of people's voice' or sovereign will' in the present initiative."

It will be observed that the President has authority, as stated in her oath of office,178 only to preserve
and defend the Constitution. Such presidential power does not, however, extend to allowing her to
change the Constitution, but simply to recommend proposed amendments or revision. As long as
she limits herself to recommending these changes and submits to the proper procedure for
constitutional amendments and revision, her mere recommendation need not be construed as an
unconstitutional act.

The foregoing discussion focused on the President's authority to

propose constitutional amendments, since her authority to propose new legislation is not in
controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new
legislation. One of the more prominent instances the practice is usually done is in the yearly State of
the Nation Address of the President to Congress. Moreover, the annual general appropriations bill
has always been based on the budget prepared by the President, which - for all intents and
purposes - is a proposal for new legislation coming from the President.179

The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards

Given the limited nature of the President's authority to propose constitutional amendments,
she cannot guarantee to any third party that the required amendments will eventually be put in
place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as
recommendations either to Congress or the people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which
cannot be reconciled with the present Constitution and laws "shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework." This
stipulation does not bear the marks of a suspensive condition - defined in civil law as a future
and uncertain event - but of a term. It is not a question of whether the necessary changes to the
legal framework will be effected, but when. That there is no uncertainty being contemplated is plain
from what follows, for the paragraph goes on to state that the contemplated changes shall be "with
due regard to non derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact."

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal
framework contemplated in the MOA-AD - which changes would include constitutional amendments,
as discussed earlier. It bears noting that,

By the time these changes are put in place, the MOA-AD itself would be counted among the
"prior agreements" from which there could be no derogation.

What remains for discussion in the Comprehensive Compact would merely be the implementing
details for these "consensus points" and, notably, the deadline for effecting the contemplated
changes to the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the

President's authority to propose constitutional amendments, it being a virtual guarantee that
the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform
to all the "consensus points" found in the MOA-AD. Hence, it must be struck down
as unconstitutional.

A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in
the 1996 final peace agreement between the MNLF and the GRP is most instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two
phases. Phase I covered a three-year transitional period involving the putting up of new
administrative structures through Executive Order, such as the Special Zone of Peace and
Development (SZOPAD) and the Southern Philippines Council for Peace and Development
(SPCPD), while Phase II covered the establishment of the new regional autonomous
government through amendment or repeal of R.A. No. 6734, which was then the Organic Act of the
ARMM.

The stipulations on Phase II consisted of specific agreements on the structure of the expanded
autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the
MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-
AD virtually guarantees that the "necessary changes to the legal framework" will be put in
place, the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase
II] shall be recommended by the GRP to Congress for incorporation in the amendatory or repealing
law."

Concerns have been raised that the MOA-AD would have given rise to a binding international law
obligation on the part of the Philippines to change its Constitution in conformity thereto, on the
ground that it may be considered either as a binding agreement under international law, or a
unilateral declaration of the Philippine government to the international community that it would grant
to the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support
in international law, however.

The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries
as signatories. In addition, representatives of other nations were invited to witness its signing in
Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had
the status of a binding international agreement had it been signed. An examination of the prevailing
principles in international law, however, leads to the contrary conclusion.

The Decision on Challenge to Jurisdiction: Lom Accord Amnesty180 (the Lom Accord case) of the
Special Court of Sierra Leone is enlightening. The Lom Accord was a peace agreement signed on
July 7, 1999 between the Government of Sierra Leone and the Revolutionary United Front (RUF), a
rebel group with which the Sierra Leone Government had been in armed conflict for around eight
years at the time of signing. There were non-contracting signatories to the agreement, among which
were the Government of the Togolese Republic, the Economic Community of West African States,
and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General and the
Sierra Leone Government, another agreement was entered into by the UN and that Government
whereby the Special Court of Sierra Leone was established. The sole purpose of the Special Court,
an international court, was to try persons who bore the greatest responsibility for serious violations of
international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone
since November 30, 1996.

Among the stipulations of the Lom Accord was a provision for the full pardon of the members of the
RUF with respect to anything done by them in pursuit of their objectives as members of that
organization since the conflict began.

In the Lom Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing, among
other things, the participation of foreign dignitaries and international organizations in the finalization
of that agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord
is not a treaty and that it can only create binding obligations and rights between the parties in
municipal law, not in international law. Hence, the Special Court held, it is ineffective in depriving an
international court like it of jurisdiction.

"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy
to assume and to argue with some degree of plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact that in addition to the parties to the
conflict, the document formalizing the settlement is signed by foreign heads of state
or their representatives and representatives of international organizations, means the
agreement of the parties is internationalized so as to create obligations in
international law.

xxxx

40. Almost every conflict resolution will involve the parties to the conflict and the mediator or
facilitator of the settlement, or persons or bodies under whose auspices the settlement took
place but who are not at all parties to the conflict, are not contracting parties and who do not
claim any obligation from the contracting parties or incur any obligation from the settlement.

41. In this case, the parties to the conflict are the lawful authority of the State and the
RUF which has no status of statehood and is to all intents and purposes a faction
within the state. The non-contracting signatories of the Lom Agreement were moral
guarantors of the principle that, in the terms of Article XXXIV of the Agreement, "this
peace agreement is implemented with integrity and in good faith by both parties". The
moral guarantors assumed no legal obligation. It is recalled that the UN by its
 representative appended, presumably for avoidance of doubt, an understanding of the extent
of the agreement to be implemented as not including certain international crimes.

42. An international agreement in the nature of a treaty must create rights and obligations
regulated by international law so that a breach of its terms will be a breach determined under
international law which will also provide principle means of enforcement. The Lom
Agreement created neither rights nor obligations capable of being regulated by
international law. An agreement such as the Lom Agreement which brings to an end
an internal armed conflict no doubt creates a factual situation of restoration of peace
that the international community acting through the Security Council may take note
of. That, however, will not convert it to an international agreement which creates an
obligation enforceable in international, as distinguished from municipal, law. A breach
of the terms of such a peace agreement resulting in resumption of internal armed conflict or
creating a threat to peace in the determination of the Security Council may indicate a
reversal of the factual situation of peace to be visited with possible legal consequences
arising from the new situation of conflict created. Such consequences such as action by the
Security Council pursuant to Chapter VII arise from the situation and not from the agreement,
nor from the obligation imposed by it. Such action cannot be regarded as a remedy for the
breach. A peace agreement which settles an internal armed conflict cannot be
ascribed the same status as one which settles an international armed conflict which,
essentially, must be between two or more warring States. The Lom Agreement
cannot be characterised as an international instrument. x x x" (Emphasis, italics and
underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and international
organizations not parties to the Agreement would not have sufficed to vest in it a binding character
under international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration
of the Philippine State, binding under international law, that it would comply with all the stipulations
stated therein, with the result that it would have to amend its Constitution accordingly regardless of
the true will of the people. Cited as authority for this view is Australia v. France,181 also known as
the Nuclear Tests Case, decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests
in the South Pacific. France refused to appear in the case, but public statements from its President,
and similar statements from other French officials including its Minister of Defence, that its 1974
series of atmospheric tests would be its last, persuaded the ICJ to dismiss the case.182 Those
statements, the ICJ held, amounted to a legal undertaking addressed to the international community,
which required no acceptance from other States for it to become effective.

Essential to the ICJ ruling is its finding that the French government intended to be bound to the
international community in issuing its public statements, viz:

43. It is well recognized that declarations made by way of unilateral acts, concerning legal or
factual situations, may have the effect of creating legal obligations. Declarations of this kind
may be, and often are, very specific. When it is the intention of the State making the
declaration that it should become bound according to its terms, that intention confers
on the declaration the character of a legal undertaking, the State being thenceforth
legally required to follow a course of conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and with an intent to be bound, even though not
made within the context of international negotiations, is binding. In these circumstances,
 nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration,
nor even any reply or reaction from other States, is required for the declaration to take effect,
since such a requirement would be inconsistent with the strictly unilateral nature of the
juridical act by which the pronouncement by the State was made.

44. Of course, not all unilateral acts imply obligation; but a State may choose to take
up a certain position in relation to a particular matter with the intention of being
bound-the intention is to be ascertained by interpretation of the act. When States make
statements by which their freedom of action is to be limited, a restrictive interpretation is
called for.

xxxx

51. In announcing that the 1974 series of atmospheric tests would be the last, the
French Government conveyed to the world at large, including the Applicant, its
intention effectively to terminate these tests. It was bound to assume that other States
might take note of these statements and rely on their being effective. The validity of
these statements and their legal consequences must be considered within the general
framework of the security of international intercourse, and the confidence and trust
which are so essential in the relations among States. It is from the actual substance of
these statements, and from the circumstances attending their making, that the legal
implications of the unilateral act must be deduced. The objects of these statements
are clear and they were addressed to the international community as a whole, and the
Court holds that they constitute an undertaking possessing legal effect. The Court
considers *270 that the President of the Republic, in deciding upon the effective cessation of
atmospheric tests, gave an undertaking to the international community to which his words
were addressed. x x x (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may
be construed as a unilateral declaration only when the following conditions are present: the
statements were clearly addressed to the international community, the state intended to be bound to
that community by its statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in
peculiar circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by
the ICJ entitled Burkina Faso v. Mali,183 also known as the Case Concerning the Frontier Dispute.
The public declaration subject of that case was a statement made by the President of Mali, in an
interview by a foreign press agency, that Mali would abide by the decision to be issued by a
commission of the Organization of African Unity on a frontier dispute then pending between Mali and
Burkina Faso.

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a
unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the
peculiar circumstances surrounding the French declaration subject thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act, account must be taken
of all the factual circumstances in which the act occurred. For example, in the Nuclear
Tests cases, the Court took the view that since the applicant States were not the only
ones concerned at the possible continuance of atmospheric testing by the French
Government, that Government's unilateral declarations had conveyed to the world at
large, including the Applicant, its intention effectively to terminate these tests (I.C.J.
 Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those
cases, the French Government could not express an intention to be bound otherwise
than by unilateral declarations. It is difficult to see how it could have accepted the
terms of a negotiated solution with each of the applicants without thereby
jeopardizing its contention that its conduct was lawful. The circumstances of the
present case are radically different. Here, there was nothing to hinder the Parties from
manifesting an intention to accept the binding character of the conclusions of the
Organization of African Unity Mediation Commission by the normal method: a formal
agreement on the basis of reciprocity. Since no agreement of this kind was concluded
between the Parties, the Chamber finds that there are no grounds to interpret the declaration
made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications in
regard to the present case. (Emphasis and underscoring supplied)

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

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

In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina
Faso wherein, as already discussed, the Mali President's statement was not held to be a binding
unilateral declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine
panel, had it really been its intention to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of
a clear commitment to be legally bound to the international community, not just the MILF, and by an
equally clear indication that the signatures of the participating states-representatives would
constitute an acceptance of that commitment. Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine government before the international community, which
was one of the difficulties that prevented the French Government from entering into a formal
agreement with other countries. That the Philippine panel did not enter into such a formal agreement
suggests that it had no intention to be bound to the international community. On that ground, the
MOA-AD may not be considered a unilateral declaration under international law.

The MOA-AD not being a document that can bind the Philippines under international law
notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal
framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies
not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within
a state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino
people would give their imprimatur to their solution. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an undue influence or
interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory
to the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the
change is not inconsistent with what, in international law, is known as Jus Cogens.184 Respondents,
however, may not preempt it in that decision.

SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult the local government
units or communities affected constitutes a departure by respondents from their mandate under E.O.
No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the Constitution by any branch of
government is a proper matter for judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David
v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present
petitions provide an exception to the "moot and academic" principle in view of (a) the grave violation
of the Constitution involved; (b) the exceptional character of the situation and paramount public
interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public;
and (d) the fact that the case is capable of repetition yet evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF
Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the
present MOA-AD can be renegotiated or another one drawn up that could contain similar or
significantly dissimilar provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been rendered moot in view of the
respondents' action in providing the Court and the petitioners with the official copy of the final draft of
the MOA-AD and its annexes.

The people's right to information on matters of public concern under Sec. 7, Article III of the
Constitution is in splendid symmetry with the state policy of full public disclosure of all its
transactions involving public interest under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand information, while Section 28 recognizes
the duty of officialdom to give information even if nobody demands. The complete and effective
exercise of the right to information necessitates that its complementary provision on public
disclosure derive the same self-executory nature, subject only to reasonable safeguards or
limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving public interest in the
highest order. In declaring that the right to information contemplates steps and negotiations leading
to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or
commercial character of the agreement.

An essential element of these twin freedoms is to keep a continuing dialogue or process of

communication between the government and the people. Corollary to these twin rights is the design
for feedback mechanisms. The right to public consultation was envisioned to be a species of these
public rights.
At least three pertinent laws animate these constitutional imperatives and justify the exercise of the
people's right to be consulted on relevant matters relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and
local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential
Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments,
advice, and recommendations from peace partners and concerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to
conduct consultations before any project or program critical to the environment and human ecology
including those that may call for the eviction of a particular group of people residing in such locality,
is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally
vests ownership of a vast territory to the Bangsamoro people, which could pervasively and
drastically result to the diaspora or displacement of a great number of inhabitants from their total
environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut
procedure for the recognition and delineation of ancestral domain, which entails, among other things,
the observance of the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or
any government agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right to information
or the specific right to consultation is untenable. The various explicit legal provisions fly in the face of
executive secrecy. In any event, respondents effectively waived such defense after it unconditionally
disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public
scrutiny.

In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he
failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No.
7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and
a virtual refusal to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the
present legal framework will not be effective until that framework is amended, the same does not
cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship
between the BJE and the Central Government is, itself, a violation of the Memorandum of
Instructions From The President dated March 1, 2001, addressed to the government peace panel.
Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the
President herself is authorized to make such a guarantee. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an undue influence or
interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral declaration binding
on the Philippines under international law, respondents' act of guaranteeing amendments is, by
itself, already a constitutional violation that renders the MOA-AD fatally defective.

WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are
GIVEN DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 is declared contrary to law and the Constitution.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

EN BANC

PROF. MERLIN M. MAGALLONA, G.R No. 187167

AKBAYAN PARTY-LIST REP. RISA

HONTIVEROS, PROF. HARRY C. Present:

ROQUE, JR., AND UNIVERSITY OF

THE PHILIPPINES COLLEGE OF CORONA, C.J.,

LAW STUDENTS, ALITHEA CARPIO,

BARBARA ACAS, VOLTAIRE VELASCO, JR.,

ALFERES, CZARINA MAY LEONARDO-DE CASTRO,

ALTEZ, FRANCIS ALVIN ASILO, BRION,

SHERYL BALOT, RUBY AMOR PERALTA,

BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,

ROMINA BERNARDO, VALERIE DEL CASTILLO,

PAGASA BUENAVENTURA, EDAN ABAD,

MARRI CAETE, VANN ALLEN VILLARAMA, JR.,

DELA CRUZ, RENE DELORINO, PEREZ,

PAULYN MAY DUMAN, SHARON MENDOZA, and

ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.

GIRLIE FERRER, RAOULLE OSEN

FERRER, CARLA REGINA GREPO,

ANNA MARIE CECILIA GO, IRISH

KAY KALAW, MARY ANN JOY LEE,

MARIA LUISA MANALAYSAY,

MIGUEL RAFAEL MUSNGI,

MICHAEL OCAMPO, JAKLYN HANNA

PINEDA, WILLIAM RAGAMAT,

MARICAR RAMOS, ENRIK FORT

REVILLAS, JAMES MARK TERRY

RIDON, JOHANN FRANTZ RIVERA IV,

CHRISTIAN RIVERO, DIANNE MARIE

ROA, NICHOLAS SANTIZO, MELISSA

CHRISTINA SANTOS, CRISTINE MAE

TABING, VANESSA ANNE TORNO,

MARIA ESTER VANGUARDIA, and

MARCELINO VELOSO III,

Petitioners,

- versus -

HON. EDUARDO ERMITA, IN HIS

CAPACITY AS EXECUTIVE

SECRETARY, HON. ALBERTO

ROMULO, IN HIS CAPACITY AS

SECRETARY OF THE DEPARTMENT

OF FOREIGN AFFAIRS, HON.

ROLANDO ANDAYA, IN HIS CAPACITY

AS SECRETARY OF THE DEPARTMENT

OF BUDGET AND MANAGEMENT,

HON. DIONY VENTURA, IN HIS

CAPACITY AS ADMINISTRATOR OF

THE NATIONAL MAPPING &

RESOURCE INFORMATION

AUTHORITY, and HON. HILARIO

DAVIDE, JR., IN HIS CAPACITY AS

REPRESENTATIVE OF THE

PERMANENT MISSION OF THE

REPUBLIC OF THE PHILIPPINES Promulgated:

TO THE UNITED NATIONS,

Respondents. July 16, 2011

x -----------------------------------------------------------------------------------------x

DECISION

CARPIO, J.:

The Case

This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 9522 (RA 9522) adjusting the countrys
1

archipelagic baselines and classifying the baseline regime of nearby territories.

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the2

maritime baselines of the Philippines as an archipelagic State. This law followed the
3

framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958
(UNCLOS I), codifying, among others, the sovereign right of States parties over their
4

territorial sea, the breadth of which, however, was left undetermined. Attempts to fill
this void during the second round of negotiations in Geneva in 1960 (UNCLOS II)
proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five
decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446])
correcting typographical errors and reserving the drawing of baselines around Sabah
in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now
under scrutiny. The change was prompted by the need to make RA 3046 compliant
with the terms of the United Nations Convention on the Law of the Sea (UNCLOS
III), which the Philippines ratified on 27 February 1984. Among others, UNCLOS III
5 6

prescribes the water-land ratio, length, and contour of baselines of archipelagic States
like the Philippines and sets the deadline for the filing of application for the extended
7

continental shelf. Complying with these requirements, RA 9522 shortened one

8

baseline, optimized the location of some basepoints around the Philippine archipelago
and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as regimes of islands whose islands generate their own applicable
maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective

capacities as citizens, taxpayers or x x x legislators, as the case may be, assail the
9

constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces

Philippine maritime territory, and logically, the reach of the Philippine states
sovereign power, in violation of Article 1 of the 1987 Constitution, embodying the
10

terms of the Treaty of Paris and ancillary treaties, and (2) RA 9522 opens the
11 12

countrys waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security, contravening the
countrys nuclear-free policy, and damaging marine resources, in violation of relevant
constitutional provisions.13
 In addition, petitioners contend that RA 9522s treatment of the KIG as regime
of islands not only results in the loss of a large maritime area but also prejudices the
livelihood of subsistence fishermen. To buttress their argument of territorial
14

diminution, petitioners facially attack RA 9522 for what it excluded and included its
failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs
framework of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues questioning

(1) the petitions compliance with the case or controversy requirement for judicial
review grounded on petitioners alleged lack of locus standi and (2) the propriety of
the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On
the merits, respondents defended RA 9522 as the countrys compliance with the terms
of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the countrys security,
environment and economic interests or relinquish the Philippines claim over Sabah.

Respondents also question the normative force, under international law, of

petitioners assertion that what Spain ceded to the United States under the Treaty of
Paris were the islands and all the waters found within the boundaries of the
rectangular area drawn under the Treaty of Paris.

We left unacted petitioners prayer for an injunctive writ.

The Issues

The petition raises the following issues:

 1. Preliminarily

1. Whether petitioners possess locus standi to bring this suit; and

2. Whether the writs of certiorari and prohibition are the proper remedies to assail
the constitutionality of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this
suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to
test the constitutionality of RA 9522. On the merits, we find no basis to declare RA
9522 unconstitutional.

On the Threshold Issues

Petitioners Possess Locus

Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and

taxpayers because the petition alleges neither infringement of legislative
prerogative nor misuse of public funds, occasioned by the passage and
15 16

implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as

citizens with constitutionally sufficient interest in the resolution of the merits of the
case which undoubtedly raises issues of national significance necessitating urgent
resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably
difficult to find other litigants possessing a more direct and specific interest to bring
the suit, thus satisfying one of the requirements for granting citizenship standing. 17

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test

the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek a
strict observance of the offices of the writs of certiorari and prohibition, noting that
the writs cannot issue absent any showing of grave abuse of discretion in the exercise
of judicial, quasi-judicial or ministerial powers on the part of respondents and
resulting prejudice on the part of petitioners.18

Respondents submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tradition,
viewed the writs of certiorari and prohibition as proper remedial vehicles to test the
constitutionality of statutes, and indeed, of acts of other branches of
19

government. Issues of constitutional import are sometimes crafted out of statutes

20

which, while having no bearing on the personal interests of the petitioners, carry such
relevance in the life of this nation that the Court inevitably finds itself constrained to
take cognizance of the case and pass upon the issues raised, non-compliance with the
letter of procedural rules notwithstanding. The statute sought to be reviewed here is
one such law.

RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool

to Demarcate the Countrys

Maritime Zones and Continental

Shelf Under UNCLOS III, not to

Delineate Philippine Territory

Petitioners submit that RA 9522 dismembers a large portion of the national

territory because it discards the pre-UNCLOS III demarcation of Philippine territory
21

under the Treaty of Paris and related treaties, successively encoded in the definition of
national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize
that this constitutional definition trumps any treaty or statutory provision denying the
Philippines sovereign control over waters, beyond the territorial sea recognized at the
time of the Treaty of Paris, that Spain supposedly ceded to the United States.
Petitioners argue that from the Treaty of Paris technical description, Philippine
sovereignty over territorial waters extends hundreds of nautical miles around the
Philippine archipelago, embracing the rectangular area delineated in the Treaty of
Paris.
22

Petitioners theory fails to persuade us.

 UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e.,
the territorial waters [12 nautical miles from the baselines], contiguous zone [24
nautical miles from the baselines], exclusive economic zone [200 nautical miles from
the baselines]), and continental shelves that UNCLOS III delimits. UNCLOS III was
23

the culmination of decades-long negotiations among United Nations members to

codify norms regulating the conduct of States in the worlds oceans and submarine
areas, recognizing coastal and archipelagic States graduated authority over a limited
span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS
III States parties to mark-out specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve as geographic starting points
to measure the breadth of the maritime zones and continental shelf. Article 48 of
UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the

contiguous zone, the exclusive economic zone and the continental shelf.
The breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be measured from
archipelagic baselines drawn in accordance with article 47. (Emphasis
supplied)

Thus, 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, namely, the exercise of sovereignty over
territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration,
and sanitation laws in the contiguous zone (Article 33), and the right to exploit the
living and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).
 Even under petitioners theory that the Philippine territory embraces the islands
and all the waters within the rectangular area delimited in the Treaty of Paris, the
baselines of the Philippines would still have to be drawn in accordance with RA 9522
because this is the only way to draw the baselines in conformity with UNCLOS III.
The baselines cannot be drawn from the boundaries or other portions of the
rectangular area delineated in the Treaty of Paris, but from the outermost islands and
drying reefs of the archipelago.
24

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
25

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. 26

RA 9522s Use of the Framework

of Regime of Islands to Determine the

Maritime Zones of the KIG and the

Scarborough Shoal, not Inconsistent

with the Philippines Claim of Sovereignty

Over these Areas

Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands
framework to draw the baselines, and to measure the breadth of the applicable
maritime zones of the KIG, weakens our territorial claim over that area. Petitioners
27

add that the KIGs (and Scarborough Shoals) exclusion from the Philippine
archipelagic baselines results in the loss of about 15,000 square nautical miles of
territorial waters, prejudicing the livelihood of subsistence fishermen. A comparison
28

of the configuration of the baselines drawn under RA 3046 and RA 9522 and the
extent of maritime space encompassed by each law, coupled with a reading of the text
of RA 9522 and its congressional deliberations, vis--vis the Philippines obligations
under UNCLOS III, belie this view.

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA
9522 merely followed the basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the
length of one baseline (and thus comply with UNCLOS IIIs limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine
archipelago. This undeniable cartographic fact takes the wind out of petitioners
argument branding RA 9522 as a statutory renunciation of the Philippines claim over
the KIG, assuming that baselines are relevant for this purpose.

Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters
under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA
9522, by optimizing the location of basepoints, increased the Philippines total
maritime space (covering its internal waters, territorial sea and exclusive economic
zone) by 145,216 square nautical miles, as shown in the table below: 29

Extent of maritime area Extent of maritime

using RA 3046, as area using RA 9522,

amended, taking into taking into account

account the Treaty of Paris UNCLOS III (in

delimitation (in square square nautical

nautical miles) miles)
 Internal or

archipelagic
166,858 171,435
waters

Territorial 274,136 32,106

Sea

Exclusive

Economic
382,669
Zone

TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under
RA 9522 even extends way beyond the waters covered by the rectangular demarcation
under the Treaty of Paris. Of course, where there are overlapping exclusive economic
zones of opposite or adjacent States, there will have to be a delineation of maritime
boundaries in accordance with UNCLOS III. 30
Further, petitioners argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated by RA
9522 itself. Section 2 of the law commits to text the Philippines continued claim of
sovereignty and jurisdiction over the KIG and the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the

Philippines likewise exercises sovereignty and jurisdiction shall be
 determined as Regime of Islands under the Republic of the Philippines
consistent with Article 121 of the United Nations Convention on the
Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential
Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis

supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part
of the Philippine archipelago, adverse legal effects would have ensued. The
Philippines would have committed a breach of two provisions of UNCLOS III. First,
Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall not
depart to any appreciable extent from the general configuration of the archipelago.
Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall
not exceed 100 nautical miles, save for three per cent (3%) of the total number of
baselines which can reach up to 125 nautical miles. 31

Although the Philippines has consistently claimed sovereignty over the

KIG and the Scarborough Shoal for several decades, these outlying areas are located
32

at an appreciable distance from the nearest shoreline of the Philippine

archipelago, such that any straight baseline loped around them from the nearest
33

basepoint will inevitably depart to an appreciable extent from the general

configuration of the archipelago.

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-

Santiago, took pains to emphasize the foregoing during the Senate deliberations:
 What we call the Kalayaan Island Group or what the rest of the
world call[] the Spratlys and the Scarborough Shoal are outside our
archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law which
states: The drawing of such baseline shall not depart to any appreciable
extent from the general configuration of the archipelago. So sa loob ng
ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing malapit sila sa atin
although we are still allowed by international law to claim them as our
own.

This is called contested islands outside our configuration. We see that

our archipelago is defined by the orange line which [we] call[]
archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon
sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is
Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago
kaya kung ilihis pa natin ang dating archipelagic baselines para lamang
masama itong dalawang circles, hindi na sila magkalapit at baka hindi
na tatanggapin ng United Nations because of the rule that it should
follow the natural configuration of the archipelago. (Emphasis
34

supplied)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS
IIIs limits. The need to shorten this baseline, and in addition, to optimize the location
of basepoints using current maps, became imperative as discussed by respondents:

[T]he amendment of the baselines law was necessary to enable the

Philippines to draw the outer limits of its maritime zones including the
extended continental shelf in the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the
baselines suffer from some technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock
Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds
 the maximum length allowed under Article 47(2) of the [UNCLOS III],
which states that The length of such baselines shall not exceed 100
nautical miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length, up to a
maximum length of 125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an
additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the
points, particularly along the west coasts of Luzon down to Palawan
were later found to be located either inland or on water, not on low-water
line and drying reefs as prescribed by Article 47.35

Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the Scarborough Shoal
as Regime[s] of Islands under the Republic of the Philippines consistent with Article
121 of UNCLOS III manifests the Philippine States responsible observance of
36

its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of
UNCLOS III, any naturally formed area of land, surrounded by water, which is above
water at high tide, such as portions of the KIG, qualifies under the category of regime
of islands, whose islands generate their own applicable maritime zones. 37

Statutory Claim Over Sabah under

RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the
Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA
5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of
Sabah:

Section 2. The definition of the baselines of the territorial sea of

the Philippine Archipelago as provided in this Act is without prejudice
to the delineation of the baselines of the territorial sea around the
territory of Sabah, situated in North Borneo, over which the
Republic of the Philippines has acquired dominion and sovereignty.
(Emphasis supplied)

UNCLOS III and RA 9522 not

Incompatible with the Constitutions

Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the
law unconstitutionally converts internal waters into archipelagic waters, hence
subjecting these waters to the right of innocent and sea lanes passage under UNCLOS
III, including overflight. Petitioners extrapolate that these passage rights indubitably
expose Philippine internal waters to nuclear and maritime pollution hazards, in
violation of the Constitution.
38
Whether referred to as Philippine internal waters under Article I of the
Constitution or as archipelagic waters under UNCLOS III (Article 49 [1]), the
39

Philippines exercises sovereignty over the body of water lying landward of the
baselines, including the air space over it and the submarine areas underneath.
UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space

over archipelagic waters and of their bed and subsoil.

1. The sovereignty of an archipelagic State extends to the

waters enclosed by the archipelagic baselines drawn in
accordance with article 47, described as archipelagic
waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and subsoil,
and the resources contained therein.
xxxx

4. The regime of archipelagic sea lanes passage established in this

Part shall not in other respects affect the status of the archipelagic
waters, including the sea lanes, or the exercise by the archipelagic
State of its sovereignty over such waters and their air space, bed and
subsoil, and the resources contained therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law principle of
freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate innocent and
sea lanes passage. Indeed, bills drawing nautical highways for sea lanes passage are
40

now pending in Congress. 41

 In the absence of municipal legislation, international law norms, now codified
in UNCLOS III, operate to grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treatys limitations and conditions for their
exercise. Significantly, the right of innocent passage is a customary international
42

law, thus automatically incorporated in the corpus of Philippine law. No modern

43 44

State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking retaliatory
measures from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to
both the right of innocent passage and sea lanes passage does not place them in lesser
45

footing vis--vis continental coastal States which are subject, in their territorial sea, to
the right of innocent passage and the right of transit passage through international
straits. The imposition of these passage rights through archipelagic waters under
UNCLOS III was a concession by archipelagic States, in exchange for their right to
claim all the waters landward of their baselines, regardless of their depth or distance
from the coast, as archipelagic waters subject to their territorial sovereignty. More
importantly, the recognition of archipelagic States archipelago and the waters
enclosed by their baselines as one cohesive entity prevents the treatment of their
islands as separate islands under UNCLOS III. Separate islands generate their own
46

maritime zones, placing the waters between islands separated by more than 24
nautical miles beyond the States territorial sovereignty, subjecting these waters to the
rights of other States under UNCLOS III. 47

Petitioners invocation of non-executory constitutional provisions in Article II

(Declaration of Principles and State Policies) must also fail. Our present state of
48

jurisprudence considers the provisions in Article II as mere legislative guides, which,

absent enabling legislation, do not embody judicially enforceable constitutional rights
x x x. Article II provisions serve as guides in formulating and interpreting
49

implementing legislation, as well as in interpreting executory provisions of the

Constitution. Although Oposa v. Factoran treated the right to a healthful and
50
balanced ecology under Section 16 of Article II as an exception, the present petition
lacks factual basis to substantiate the claimed constitutional violation. The other
provisions petitioners cite, relating to the protection of marine wealth (Article XII,
Section 2, paragraph 2 ) and subsistence fishermen (Article XIII, Section 7 ), are not
51 52

violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation of all
living and non-living resources within such zone. Such a maritime delineation binds
the international community since the delineation is in strict observance of UNCLOS
III. If the maritime delineation is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS
III creates a sui generis maritime space the exclusive economic zone in waters
previously part of the high seas. UNCLOS III grants new rights to coastal States to
exclusively exploit the resources found within this zone up to 200 nautical
miles. UNCLOS III, however, preserves the traditional freedom of navigation of
53

other States that attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III,
Congress was not bound to pass RA 9522. We have looked at the relevant provision
54

of UNCLOS III and we find petitioners reading plausible. Nevertheless, the

55

prerogative of choosing this option belongs to Congress, not to this Court. Moreover,
the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III
compliant baselines law, an archipelagic State like the Philippines will find itself
devoid of internationally acceptable baselines from where the breadth of its maritime
zones and continental shelf is measured. This is recipe for a two-fronted disaster: first,
it sends an open invitation to the seafaring powers to freely enter and exploit the
resources in the waters and submarine areas around our archipelago; and second, it
weakens the countrys case in any international dispute over Philippine maritime
space. These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an internationally-
recognized delimitation of the breadth of the Philippines maritime zones and
continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines
in safeguarding its maritime zones, consistent with the Constitution and our national
interest.

WHEREFORE, we DISMISS the petition.

5
Septembe
r 1933

PERMANENT COURT OF INTERNATIONAL JUSTICE

Twenty-Sixth Session

Legal Status of Eastern Greenland

Denmark v. Norway

Judgment

President
BEFORE: Adatci
:
Vice-
President Guerrero
:
 Baron Rolin-Jaequemyns, Count Rostworowski, Fromageot,
Judges: Anzilotti, Urrutia, Sir Cecil Hurst, Schcking, Negulesco,
Jhr. Van Eysinga, Wang,
Deputy
Vogt, Zahle
Judge(s):

M. de Scavenius, Danish Minister at The Hague, M. K.

REPRESENTE Denmark
Steglich-Petersen, Advocate at the Supreme Court of
D BY: :
Denmark, as Agents
M. Jens Bull, Counsellor of Legation, as Agent, and by
Norway: MM. Arne Sunde , Per Rygh, Advocates at the Supreme
Court of Norway, as Agents and Counsel

http://www.worldcourts.com/pcij/eng/decisions/1933.04.05_greenlan
Perm. Link:
d.htm

Citation: Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser.
A/B) No. 53 (Apr. 5)
Publication: Publications of the Permanent Court of International Justice Series
A./B. No. 53; Collection of Judgments, Orders and Advisory
Opinions A.W. Sijthoffs Publishing Company, Leyden, 1933

[p23] The Court,

composed as above,
delivers the following judgment:

[1] By an Application instituting proceedings, filed with the Registry of the Court on
July 12th, 1931, in accordance with Article 40 of the Statute and Article 35 of the
Rules of Court, the Royal Danish Government, relying on the optional clause of
Article 36, paragraph 2, of the Statute, brought before the Permanent Court of
International Justice a suit against the Royal Norwegian Government on the ground
that the latter Government had, on July 10th, 1931, published a proclamation
declaring that it had proceeded to occupy certain territories in Eastern Greenland,
which, in the contention of the Danish Government, were subject to the sovereignty of
the Crown of Denmark. The Application, after thus indicating the subject of the
dispute, proceeds, subject to the subsequent presentation of any cases, counter-cases
and any other documents or evidence, to formulate the claim by asking the Court for
judgment to the effect that "the promulgation of the above-mentioned declaration of
occupation and any steps taken in this respect by the Norwegian Government
constitute a violation of the existing legal situation and are accordingly unlawful and
invalid".

[7] Further, the Danish Government, in the Application, reserves the right, in the first
place, to apply to the Court, should circumstances require it, for the indication of
interim measures for the protection of its rights and, in the second place, to ask the
Court to decide as to the nature of the reparation due to the Danish Government in
consequence of the Norwegian Government's act of which it complains.

[8] On July 13th, 1931, notice of the Application was given to the Norwegian
Government; on July 14th, the communications [p24] provided for in Article 40 of the
Statute and Article 36 of the Rules of Court were despatched and were sent to all
States entitled to appear before the Court, including the United States of America.

[9] As the Court included upon the Bench no judge of the nationality of the Parties,
the Danish and Norwegian Governments availed themselves of their right, under
Article 31 of the Statute, each to appoint a judge ad hoc.

[10] By an Order made on August 6th, 1931, the Court fixed the times for the
presentation of the Case, Counter-Case, Reply and Rejoinder in the suit, in accordance
with a proposal made jointly by the Parties' Agents on August 4th, 1931. By an Order
made on June 18th, 1932, at the request of the Danish Government, the time-limit
originally fixed for the presentation of the Reply was extended, and the Norwegian
Government was given the right to ask for a corresponding extension of the time-limit
fixed for the Rejoinder; the latter Government availed itself of this right, and
accordingly the time-limit last mentioned expired on October 14th, 1932. The various
documents of the written proceedings having been duly filed within the time-limits as
finally fixed, the suit thus became ready for hearing on October 14th, 1932.

[11] In the Danish Case, the Danish Government, in conformity with Article 40 of the
Rules of Court, asks, as stated in the Application, for judgment to the effect that

"the promulgation of the declaration of occupation above mentioned and any steps
taken in this connection by the Norwegian Government constitute a violation of the
existing legal situation and are accordingly unlawful and invalid".

[12] Under the same Article of the Rules of Court, the Norwegian Government, in its
Counter-Case, asks for judgment to the effect that

"Denmark has no sovereignty over Eirik Raudes Land;

Norway has acquired the sovereignty over Eirik Raudes Land; The Danish
Government should bear the costs incurred by the Norwegian Government in this
case".

[7] The Danish Government, in its Reply, repeats the sub-missions made in its Case,
but also prays the Court to reject the submission made in the Norwegian Counter-Case
and to adjudge

"that the Norwegian. Government shall bear the costs incurred by the Danish
Government in this case". [p25]
[8] The Norwegian Government repeats in its Rejoinder the submissions made in its
Counter-Case.

[9] In the course of a series of public sittings held between November 21st, 1932, and
February 7th, 1933, the Court heard the statements, replies, rejoinders and
observations presented by:

MM. Bg, as Advocate, Gustav Rasmussen, as Deputy-Advocate, M. Steglich-

Petersen, Agent, and by M. Charles de Visscher, as Advocate and Counsel, on behalf
of Denmark,
and MM. Per Rygh and Arne Sunde, Agents and Counsel, and by M. Gilbert Gidel, as
Counsel and Advocate, on behalf of Norway.

[10] At the conclusion of the respective statements, the Parties Agents presented the
submissions of the Governments represented by them as follows :

M. de Scavenius, on behalf of the Danish Government:

"May it please the Court,

To reject as unfounded the three submissions in the Norwegian Counter-Case of
March 12th and 15th, 1932;
To give judgment to the effect that the declaration of occupation promulgated by the
Norwegian Government on July 10th, 1931, and any steps taken in this connection by
that Government, constitute a violation of the existing legal situation and are,
accordingly, unlawful and invalid;
To decide that the Norwegian Government shall bear the costs incurred by the Danish
Government in this case."

[11] M. Bull, on behalf of the Norwegian Government:

"May it please the Court,

To reject the submissions presented by the Danish Government;
To adjudge and declare that Denmark has no sovereignty over Eirik Raudes Land;
That Norway has acquired the sovereignty over Eirik Raudes Land;
That the Danish Government shall bear the costs incurred by the Norwegian
Government in this case."

[12] A large number of documents, including memorials or opinions on special points,

and maps were filed on behalf of each of the Parties, either as annexes to the
documents of the written proceedings or in the course of the hearings.

[13] The Agent and Counsel for the Norwegian Government, in the course of his oral
rejoinder, adduced certain new documents, whereupon the Agent for the Danish
Government, invoking Articles 48 and 52 of the Statute, prayed the Court to refuse to
accept "the fresh facts adduced in the rejoinder". The point having thus been raised,
and having regard also to certain reservations made on behalf of Norway respecting
fresh documents used in the Danish oral reply, the Court [p26] reserved the right to
refuse the fresh documents produced on either side in the oral reply and rejoinder and
to give the Danish Agent an opportunity of presenting observations on the fresh
documents produced in the rejoinder. M. Steglich-Petersen was in fact permitted to
comment on the documents in question and thereupon withdrew his Government's
objection to this admission. Accordingly, the Court declares that, in so far as the terms
of Article 52 of the Statute are applicable to the evidence produced by one of the
Parties to the case, the consent of the other Party, which is required under that Article,
may be regarded as having been obtained.

[14] The submission of the case being in all respects regular, these are the
circumstances in which the Court is now called upon to give judgment.

***

[15] According to the royal Norwegian proclamation of July 10th, 1931, which gave
rise to the present dispute, the "country" the "taking possession" of which "is officially
confirmed" and which is "placed under Norwegian sovereignty" is "situated between
Carlsberg Fjord on the South and Bessel Fjord on the North, in Eastern Greenland",
and extends from latitude 71 30' to 75 40' N.

[16] By "Eastern Greenland" is meant the eastern coast of Greenland.

[17] It must have been intended that on the eastern side the sea and on the western
side the "Inland Ice" should constitute the limits of the area occupied under the
proclamation of July 10th, though the proclamation itself is silent on the subject.
Indeed, Counsel for the Danish Government was disposed to criticize the validity of
the proclamation because of the absence of any western limit of the occupation. This
is a point, however, which in view of the conclusions reached by the Court need not
be pursued.

[18] Greenland, which extends from latitude 59 46' to 83 39' N. and from longitude
73 to 10 33' W., and the southernmost point of which is in about longitude 630 W.
of Greenwich, has a total area of about 2,200,000 square kilometres; five sixths of this
area are covered by the "Inland Ice", so that only a narrow strip of varying width
along the coasts is free of permanent ice. It should be added that only in the last years
of the XIXth century was it definitely established that Greenland is not connected by
land with the other parts of the continent of America, i.e. that Greenland is an island.
[p27]

[19] The climate and character of Greenland are those of an Arctic country. The
"Inland Ice" is difficult to traverse, and parts of the coast - particularly of the East
coast - are for months together difficult of access owing to the influence of the Polar
current and the stormy winds on the icebergs and the floe ice and owing to the
frequent spells of bad weather.
[20] According to the information supplied to the Court by the Parties, it was about
the year 900 A. D. that Greenland was discovered. The country was colonized about a
century later. The best known of the colonists was Eric the Red, who was an
inhabitant of Iceland of Norwegian origin ; it was at that time that two settlements
called Eystribygd and Vestribygd were founded towards the southern end of the
western coast. These settlements appear to have existed as an independent State for
some time, but became tributary to the kingdom of Norway in the XIIIth century.
These settlements had disappeared before 1500.

[21] Information as to these early Nordic settlements and as to the extent to which the
settlers dominated the remainder of the country is very scanty. It seems clear that the
settlers made hunting journeys far to the North on the western coast, and records exist
of at least one expedition to places on the East coast. The historian, or saga writer,
Sturla Thordarson tells (about 1261) how the men of Greenland undertook to pay
tribute, and how, for every man murdered, a fine should be payable to the King
whether the dead man was a Norwegian or a Greenlander and whether killed in the
settlements or in the districts to which people went for the summer even as far North
as under the Pole Star.

[22] In 1380, the kingdoms of Norway and Denmark were united under the same
Crown; the character of this union, which lasted until 1814, changed to some extent in
the course of time, more particularly as a result of the centralization at Copenhagen of
the administration of the various countries which were under the sovereignty of the
Dano-Norwegian Crown. This evolution seems to have obliterated to some extent the
separation which had existed between them from a constitutional standpoint. On the
other hand, there is nothing to show that during this period Greenland, in so far as it
constituted a dependency of the Crown, should not be regarded as a Norwegian
possession.

[23] The disappearance of the Nordic colonies did not put an end to the King's
pretensions to the sovereignty over Greenland.

[24] The Norwegian Counter-Case describes the succeeding period as an era of

unsuccessful efforts on the part of the Catholic Church, of the Kings of Norway and
Denmark and of their subjects, to renew relations with the Norwegian colonies of
[p28] Western Greenland. The passports delivered by the King to the leader of two
such expeditions - Godske Lindenow, a Danish subject - at the beginning of the
XVIIth century indicate the voyage as "ad terram nostram Grunlandiam". Some
Eskimos brought back from Greenland in 1605 are described by the King as "Our
subjects". In 1635, in a letter addressed to the King of France, Christian IV describes
Greenland as "a divis nostris antecessoribus Regibus Norvegice ad Nos devoluta". In
1636, the King gives a concession to the Burgomaster and certain citizens of
Copenhagen for a monopoly of the navigation and trading in Greenland and gives
directions as to their dealing with "Notre pauvre peuple, Nos sujets et habitants dudit
pays [FN1]". In 1666, Frederick III is said to have added a bear to the arms of the
Danish Monarchy as the emblem of Greenland.

--------------------------------------------------------------------------------------------------------
-------------
[FN1] Translation supplied by the Danish Government
--------------------------------------------------------------------------------------------------------
-------------

[25] Similarly, foreign countries appear to have acquiesced in the claims of the King
of Denmark. Both the States-General of the United Provinces in 1631 and the King of
France in 1636 intimated that they did not dispute the claims; and, by the Treaty of
Lund of September 27th, 1679 (7th Secret Article), Sweden recognized the ancient
rights and claims of the King of Denmark over Greenland and the adjacent seas and
coasts.

[26] It is alleged on behalf of Norway that at this time the word "Greenland" was used
to denote all the countries bordering on the seas to the North, including Spitzbergen
and Nova Zembla, as well as what is now called Greenland. It appears that at this date
there were in Spitzbergen no native inhabitants, so that when mention is made of
Eskimos brought back from Greenland, as happened in 1605, it must be the Greenland
in the narrower sense that is referred to.

[27] Though at this time no colonies or settlements existed in Greenland, contact with
it was not entirely lost, because the waters surrounding it, especially on the East coast,
were regularly visited by whalers, and the maps of the period show that the existence
and the general configuration of Greenland, including the East coast, were by no
means unknown.

[28] At the beginning of the XVIIIth century, closer relations were once more
established between Greenland and the countries whence the former European
settlements on its coasts had originated. In 1721, the pastor Hans Egede, of Bergen in
Norway, formed a "Greenland Company", went to Greenland as a missionary and
founded a new colony there, which was soon followed by other settlements. In 1723,
this Company was granted a concession placing at its disposal for twenty-five years
"the whole country of Greenland" - the King simply reserving his "sovereignty,
absolutum dominium and hereditary [p29] rights". The Company was, however,
dissolved and, after an interval during which the State itself took over the conduct of
Greenland affairs by means of a "Greenland Department" attached to the Royal
Chancellory, a fresh concession was granted in 1734 to a certain Jacob Severin. In
1740, just before the renewal of this concession - which comprised a prohibition,
applicable both to the King's subjects and to foreigners, of trading and navigation in
Greenland contrary to the terms of the concession - the King formed a "Greenland
Commission" to which he entrusted matters arising out of the concession.
Furthermore, on the occasion of the renewal of the concession, the King issued an
Ordinance on April 9th, 1740, prohibiting any person, whether a subject or a
foreigner, from doing business in breach of Severin's concession in the colonies
already established in Greenland or to be established thereafter, provided that the
situation and limits of the colonies (which were in general to extend to fifteen miles
on either side of each colony) were first published. The Ordinance also prohibited all
persons from robbing the Greenlanders or committing any acts of violence against
them in any place in Greenland, whether by land or sea.

[29] Severin's concession finally expired in 1750. In the following year, a concession
was granted to the already existing "General Trading Company" of Copenhagen. The
exclusive privileges to be enjoyed by the Company were enforced by an Ordinance of
March 26th, 1751, enacting penalties against persons acting in breach of the
concession in terms very similar to those of the Ordinance of 1740. Another
Ordinance of April 22nd, 1758, confirmed the previous one, but extended its scope by
including, in addition to the "Colonies and factories already established or
subsequently to be established", "other ports and localities in general without
differentiation or exception".

[30] In 1774, the State itself once more took over the Greenland trade, which it
administered by means of an autonomous "Board", and the King, on March 18th,
1776, issued an Ordinance, which is still in force and which repeats the provisions of
the previous instruments in very similar terms. The concessions previously granted to
private persons were bestowed upon a privileged Trading Administration. Since then
the Greenland trade has been a monopoly of the State of Denmark. In 1781,
"Regulations" were made dividing "the country" into a northern and a southern
district; the "inspectors" set over these districts were not only entrusted with the
supervision of the monopoly's trade, but were also given powers of general
administration.

[31] During this period, settlements were established described as colonies, factories
or stations, along the West coast between [p30] latitude 60 42' and 72 47' N. ;
according to the Ordinance of March 18th, 1776, the "Colonies and factories" then
existing extended from latitude 60 to 73 N. Attempts to reach the East coast and
effect a landing there were made from the West coast of the island, but led to no
results.

[32] In the contention of Norway, the above-mentioned instruments, when they speak
of Greenland in general, mean the colonized part of the West coast referred to above;
Denmark, on the contrary, maintains that the expressions in question relate to
Greenland in the geographical sense of the word, i.e. to the whole island of Greenland.

[33] The Napoleonic era profoundly affected the international status of the
Scandinavian countries, and also that of Greenland. After Sweden had ceded Finland
to Russia (1809), the policy of the Allies against France made it possible for Sweden
to obtain the cession of the kingdom of Norway which until then had been united to
Denmark, who had supported France. By a series of conventions concluded in 1812
and 1813, Russia, Great Britain and Prussia supported Sweden's aspirations. After the
Franco-Danish alliance had been renewed on July 10th, 1813, and war had broken out
between Denmark, on the one hand, and Sweden and her allies, on the other, the battle
of Leipzig (October 1813) led to the triumph of the Allied cause and the Swedish
army compelled Denmark to sign the Peace Treaty of Kiel, dated January 14th, 1814,
the fourth Article of which provided for the cession to Sweden of the kingdom of
Norway, excluding however Greenland, the Froe Isles and Iceland.

[34] The two relevant paragraphs of Article 4 of the Treaty of Kiel run as follows
[FN1]:

"Article IV. - His Majesty the King of Denmark, for himself and his successors,
renounces for ever and irrevocably all his rights and claims on the kingdom of
Norway, together with possession of the Bishopricks and Dioceses of Christians and,
Bergenhuus, Aggerhuus, and Drontheim, besides Nordland and Finmark, as far as the
frontiers of the Russian empire.

These bishopricks, dioceses, and provinces, constituting the kingdom of Norway, with
their inhabitants, towns, harbours, fortresses, villages, and islands, along the whole
coast of that kingdom, together with their dependencies (Greenland, the Ferroe Isles,
and Iceland, excepted) ; as well as all privileges, rights, and emoluments there
belonging, shall belong in full and sovereign property to the King of Sweden, and
make one with his united kingdom." [p31]

--------------------------------------------------------------------------------------------------------
-------------
[FN1] Translation as printed in the "Annual Register" for 1814.
--------------------------------------------------------------------------------------------------------
-------------

[35] At the end of 1814, the necessary steps were taken with a view to the complete
liquidation of all matters arising out of the Union between Denmark and Norway.
After protracted negotiations, this liquidation was effected by a Convention signed at
Stockholm on September 1st, 1819, between Denmark of the one part and the United
Kingdoms of Sweden and Norway of the other part. It will be necessary, in the later
part of the present judgment, to revert to the events of 1814 to 1819, as they are of
special importance in regard to the dispute concerning Greenland.

[36] In the course of the XIXth century and the early years of the XXth, the coasts of
Greenland were entirely explored. For the purposes of the present case, it is only
necessary to note two dates: first, in 1822 the Scottish whaler Scoresby made the first
landing by a European in the territory covered by the Norwegian declaration of
occupation; secondly, about 1900, thanks to the voyages of the American Peary, the
insular character of Greenland was established. It is admitted by Norway that from the
time of Scoresby's landing the East coast forms part of the known portion of
Greenland.

[37] Several Danish expeditions explored portions of the non-colonized part of

Greenland during the XIXth century; first in 1829-1830, the Graah expedition
explored the East coast south of Angmagssalik. Approximately the same part of the
East coast was again explored in 1883-1885 by the Holm expedition which led, after
some years, to the colonization, in 1894, of Angmagssalik. The Ryder expedition in
1891-1892 explored Scoresby Sound and the coast to the north of this fjord, i.e. a part
of the coast occupied by Norway in 1931. In 1898-1900, the Amdrup expedition
explored the very inaccessible coast between Angmagssalik and a point near the
southern limit of the territory occupied in 1931. In 1906-1908, the "Danmark
Expedition" explored the whole of the equally difficult East coast north of a point near
the northern end of the territory occupied in 1931 and north-wards to the point
reached by Peary when he explored the coast from the western side. In 1926-1927, the
Lauge Koch expedition explored the coast between Scoresby Sound and
Danmarkshavn comprising the whole of the territory occupied in 1931. It results from
this short summary that the whole East coast has been explored by Danish
expeditions. There were, in addition, many non-Danish expeditions.

[38] In 1863, the Danish Government granted to Mr. J. W. Tayler, an Englishman, an

exclusive concession for thirty years to enable him to establish on the East coast of
[p32] Greenland "stations for the purpose of trading with the natives, hunting, fishing,
or working any metalliferous or other mineral-bearing mines there discovered, or
engaging in any other business which he may consider to his advantage"; any station
of this kind which might thus be established ."to the north or south of the 65th degree
of latitude North" was to be placed "under the sovereignty of the Danish Crown". All
the papers with regard to the granting of the Tayler concession have been submitted to
the Court at the request of the Norwegian Agent.

[39] The Tayler concession led to no practical result.; The concessionnaire was not
able to establish any stations on the East coast.

[40] Between 1854 and 1886, applications were made to the Danish Government for
the grant of several other concessions for the erection of telegraph-lines in or across
Greenland, or for the grant of mining concessions. Some of these were granted, some
were refused. They all use the term "Greenland" without qualification, and one at least
provides for a survey for a telegraph-line across Greenland from the eastern to the
western coast. These concessions also led to no practical result.

[41] In 1894, at Angmagssalik, in latitude 65 36' N., the first Danish settlement on
the East coast was established. In accordance with the provisions of the Ordinance of
1776, mention of which has already been made, the foundation of this "mission and
trading station" was "made public" by a Decree of October 10th, 1894, notice of
which was given to the Minister for Foreign Affairs of Sweden and Norway by a note
from the Danish Minister at Stockholm; notice of the Decree was also given to the
governments of some other States. The papers in connection with the establishment of
this settlement have also been laid before the Court and are of some importance, as
will subsequently appear.
[42] As regards the limits of the colonized territory on the West coast of Greenland,
these were already in 1814 held to extend from latitude 60 to latitude 73 N. These
limits, which had already been established by the Ordinance of March 18th, 1776,
were confirmed by a Proclamation ("Notice to Mariners") of May 8th, 1884. On
March 8th, 1905, however, a fresh Proclamation was published to the effect that "the
Danish colonies on the West coast of Greenland .... extend from latitude 60 to
latitude 74 30' N.". Notice of the Proclamation was given on November 29th, 1905,
to the Norwegian Minister [p33] for Foreign Affairs by the Danish Minister at
Christiania [FN1]; it was observed, in the Danish note, that this involved an extension
by a degree and a half of the limit fixed in the "Proclamation of 1884".

--------------------------------------------------------------------------------------------------------
-------------
[FN1] The name of the capital of Norway was altered to Oslo on January 1st, 1925. It
is so described in the judgment in connection with events subsequent to that date.
--------------------------------------------------------------------------------------------------------
-------------

[43] In 1909, a private Danish society established a mission station on the Northwest
coast of Greenland, at Cape York, in latitude 76 32' N. ; in the following year, a
trading and research station known as "Thule" was founded in the same locality by
Danish explorers. Apparently, no notice of the foundation of these stations was given
to the Powers. Finally, in 1925, another Danish trading and mission station was
established on the East coast at Scoresby Sound, in about latitude 70 30' N. No
special notice was given of the establishment of this station.

[44] In 1905, a Decree was issued by the Danish Minister of the Interior, fixing the
limits of the territorial waters round Greenland. The limits within which the fishing
was stated to be reserved for Danish subjects were to be drawn at a distance of three
marine miles along the whole coast of Greenland.

[45] In 1908, a law was promulgated by Denmark relating to the administration of

Greenland. The colonies on the West coast were divided into two districts, a northern
and a southern.

[46] In 1921, a Decree was issued, running as follows [FN2]:

"In pursuance of His Majesty's authority dated the 6th instant, and with reference to
the Royal Ordinance of March 18th, 1776, know all men that Danish Trading,
Mission and Hunting Stations have been established on the East and West coasts of
Greenland, with the result that the whole of that country is henceforth linked up with
Danish colonies and stations under the authority of the Danish Administration of
Greenland.
Done at the Ministry of the Interior, May 10th, 1921."

--------------------------------------------------------------------------------------------------------
-------------
[FN2] Translation from the French text supplied by the Danish Government. The
translation supplied by the Norwegian Government reads as follows:
"In terms of His Majesty's authority dated the 6th instant, and with reference to the
Royal Ordinance of March 18th, 1776, know all men that Danish Trading, Mission
and Hunting stations have been established on the East and West coasts of Greenland,
so that the whole of that country is henceforth linked up with Danish colonies and
stations and with the Danish Administration of Greenland.
Done at the Ministry of the Interior, May 10th, 1921."
--------------------------------------------------------------------------------------------------------
-------------

[p34]

[47] This Decree was notified to the Powers during June and July. It was followed on
June 16th, 1921, by a Proclamation (Notice to Mariners) concerning navigation in the
seas around Greenland, to the effect that the closing of the island to Danish and
foreign ships extended to "the whole of the coasts and islands pertaining to
Greenland".

[48] Reference to these Decrees must again be made later.

[49] Throughout this period and up to the present time, the practice of the Danish
Government in concluding bilateral commercial conventions or when participating in
multilateral conventions relating to economic questions - such as those concluded
since 1921 under the auspices of the League of Nations - has been to secure the
insertion of a stipulation excepting Greenland from the operation of the convention.
Only in one case - that of the conventions concluded with Japan on February 12th,
1912 - is the exception or the reservation otherwise than in favour of "Greenland" or
the "territory of Greenland" without qualification; in the conventions with Japan, the
exception is in favour of "the Danish colonies in Greenland".

[50] With particular regard to the territory covered by the Norwegian declaration of
occupation of July 10th, 1931, certain circumstances invoked by the Parties
concerning the exploitation of the country are to be noted.

[51] In 1919, the "Eastern Greenland Company" was founded at Copenhagen; this
was a limited company with extensive . resources at its disposal, and its aim was to
conduct hunting operations in the zone between Scoresby Sound and Germaniahavn
(latitude 70 30' to 77 N.). The resources of this company, which built a number of
houses and hunting cabins in the district in order that its hunters might winter there,
were exhausted by 1924 and its operations ceased. The Danish Government, which
had taken over the company's stations, conceded the use of them to a new hunting
company founded in 1929, the Nanok Company, which carried on the operations of
the former company. The Nanok Company's principal station is equipped with
wireless.
[52] As regards Norwegian activities, in addition to visits to the East coast paid
periodically during the summer from 1889 onwards, expeditions wintered in the
territory in question in 1908 and 1909, and again in 1922 and in 1926 and the ensuing
years. The expedition of 1922 established a provisional wireless station at Mygg-
Bukta (Mackenzie Bay), but the Danish Government made a protest immediately
against its erection. Owing to the loss of a ship, this station ceased [p35] working in
the following year. It began to function again in 1926, and since then this Mygg-
Bukta station has been working regularly. Since 1929 both hunting operations and the
wireless service have been carried on by a Norwegian company, the Arktis
nringsdrift. The various Norwegian expeditions also have built a large number of
houses and cabins in the disputed territory.

[53] During the XIXth century, while the Danish Government made a practice of
excluding "Greenland", without qualification, from the commercial conventions it
concluded and in other ways acted upon the assumption that Danish sovereignty
extended to the whole of Greenland, opinions were occasionally expressed by private
persons in Denmark interested in Greenland to the effect that the absence of effective
occupation of the uncolonized parts exposed the territory to the risk of permanent
occupation by some foreign State. Thus, in 1823, after the landing of Scoresby on the
East coast, a M. Wormskjld - who was a naturalist and an expert in Greenland affairs
- was consulted by the Danish Minister of State and addressed to him a letter
indicating the weakness of the Danish position and the contentions which a foreign
Power might adduce in favour of a right to occupy the eastern coast. It was, perhaps,
as a result of this communication from M. Wormskjld that in 1829 the expedition
mentioned above under a naval officer named Graah was sent to visit the East coast;
but no policy of colonization was then initiated.

[54] Interest in Greenland, however, was gradually increasing in Denmark, and in

1878 the Danish Government set up a Commission for the study of the natural and
ethnographic phenomena of Greenland. This Commission has published a large
number of volumes containing reports on many questions connected with Greenland,
including the results of the scientific and exploring and cartographic expeditions to the
country.

[55] At the beginning of the present century, opinion again began to be manifested in
favour of the more effective occupation of the uncolonized areas in Greenland, in
order that the risk of foreign settlement might be obviated.

[56] During the Great War of 1914 to 1918, Denmark by treaty ceded to the United
States of America her West Indian Islands - the Danish Antilles - and, during the
negotiations for the conclusion of the treaty, broached to the American Secretary of
State - [p36] at first in conversation and subsequently, on December 27th, 1915, by a
written communication - the question of the extension of Danish activities throughout
all Greenland. As the result, the United States signed on August 4th, 1916, the same
day as the treaty for the cession of the Antilles, a declaration to the effect that the
United States would not object to the Danish Government extending their political
and economic interests to the whole of Greenland.

[57] On July 12th, 1919, the Danish Minister for Foreign Affairs instructed the Danish
Minister at Christiania that a Committee had just been constituted at the Peace
Conference "for the purpose of considering the claims that may be put forward by
different countries to Spitzbergen", and that the Danish Government would be
prepared to renew before this Committee the unofficial assurance already given (on
April 2nd, 1919) to the Norwegian Government, according to which Denmark, having
no special interests at stake in Spitzbergen, would raise no objection to Norway's
claims upon that archipelago. In making this statement to the Norwegian Minister for
Foreign Affairs, the Danish Minister was to point out "that the Danish Government
had been anxious for some years past to obtain the recognition by all the interested
Powers of Denmark's sovereignty over the whole of Greenland, and that she intended
to place that question before the above-mentioned Committee" ; and, further, that the
Danish Government felt confident that the extension of its political and economic
interests to the whole of Greenland "would not encounter any difficulties on the part
of the Norwegian Government".

[58] On July 14th, 1919, the Danish Minister saw M. Ihlen, the Norwegian Minister
for Foreign Affairs, who merely replied on this occasion "that the question would be
considered". The Norwegian Minister recorded his conversation with the Danish
representative in a minute, the accuracy of which has not been disputed by the Danish
Government. On July 22nd following, M. Ihlen made a statement to the Danish
Minister to the effect "that the Norwegian Government would not make any
difficulties in the settlement of this question" (i.e. the question raised on July 14th by
the Danish Government). These are the words recorded in the minute by M. Ihlen
himself. According to the report made by the Danish Minister to his own Government,
M. Ihlen's words were that "the plans of the Royal [Danish] Government respecting
Danish sovereignty over the whole of Greenland .... would meet with no difficulties
on the part of Norway". It is this [p37] statement by the Norwegian Minister for
Foreign Affairs which is described in this judgment as the "Ihlen declaration".

[59] In 1920, the Danish Government approached the Governments in London, Paris,
Rome and Tokyo with a view to obtaining assurances from these Governments on the
subject of the recognition of Denmark's sovereignty over the whole of Greenland.
Each of those Governments replied in terms which satisfied the Danish Government -
which thereupon, in 1921, approached the Swedish and Norwegian Governments as
the only other Governments interested. The communication to the Swedish
Government was dated January 13th, and that to the Norwegian Government January
18th.

[60] The Swedish Government made no difficulty. The Norwegian Government was
not prepared to adopt the same attitude unless it received an undertaking from the
Danish Government that the liberty of hunting and fishing on the East coast (outside
the limits of the colony of Angmagssalik), which Norwegians had hitherto enjoyed,
should not be interfered with. This undertaking the Danish Government was unwilling
to give, as it alleges that it would have involved a reversal of the policy which
Denmark had hitherto followed of endeavouring to shield the Eskimo people of
Greenland on grounds of health from uncontrolled contact with white races; such a
policy could not be maintained unless control could be exercised over those having
access to the territory.

[61] The terms of the correspondence in which the Danish Government sought and
received assurances from the interested Powers as to Denmark's position in
Greenland, are so important that they will be discussed in detail later.

[62] As regards the discussion with the Norwegian Government: as soon as it became
clear that the Norwegian Government was unwilling to give the desired assurances,
the Danish Government, in May 1921, instructed its Minister at Christiania that no
further application was to be made and said that it would rest content with the verbal
undertaking given by M. Ihlen in 1919. The Decree of May 10th, 1921, referred to
above, was then issued. The reason given for acting somewhat hastily was that May
12th was the 200th anniversary of the day when Hans Egede sailed from Bergen to
found his colonies in Greenland and the occasion was to be marked by suitable
solemnities.

[63] During the latter half of the year 1921 and during the two succeeding years,
diplomatic correspondence continued [p38]." between the Danish and Norwegian
Governments. This correspondence need not be described in detail. The general effect
of it is to show the points on which the two Governments were at issue.

[64] On the Danish side there was evinced willingness to make every effort to satisfy
the desire of the Norwegian Government that Norwegians should be able to continue
to fish and hunt on the East coast of Greenland but a determination not to give way on
the claim to sovereignty. On the Norwegian side it was gradually made clear that, in
the opinion of the Norwegian Government, the uncolonized part of the East coast of
Greenland was a terra nullius, and that Denmark's political aspirations could only be
met if it involved no sacrifice of Norwegian economic interests. This disagreement,
however, on the point of principle as to the status of the territory did not exclude a
mutual desire to find a practical solution of the fishing and hunting questions.

[65] On July 13th, 1923, the Norwegian Minister for Foreign Affairs informed the
Danish Minister at Christiania that, on the 7th of that month, the Storting had passed a
resolution calling on the Norwegian Government "to invite the Danish Government to
enter into negotiations on the question of Greenland, the said negotiations to be
conducted on a free basis between representatives specially appointed for that purpose
by the two countries". The Danish Government accepted the invitation (note of July
30th, 1923); the two Governments agreed that the negotiations would have the effect
of suspending the exchange of views through diplomatic channels, but that, in case
they proved unsuccessful, the legal situation would remain unaffected.
[66] Negotiations began in September 1923. In their early stages, they covered the
Greenland question generally, but as they progressed, points on which no agreement
could be reached were eliminated. On January 28th, 1924, the negotiations resulted in
the approval of a draft agreement, which the delegations recommended for adoption
by their respective Governments. On July 9th, 1924, the latter signed a Convention
applicable to the whole eastern coast of Greenland, excepting the district of
Angmagssalik (and, in a certain eventuality, that of Scoresby Sound); the Convention
was to come into force as from July 10th, 1924, for a first period of twenty years.

[67] Under Article 2, ships were to have free access to the East coast, and their crews
and persons on board were given the right to land, to winter in the territory and [p39]
to hunt and fish. Under Article 5, the erection of meteorological, telegraphic and
telephonic stations was authorized.

[68] Simultaneously with the Convention, notes were signed by each Government to
the effect that it signed the Convention in order to avoid disputes and to strengthen
friendly relations between the two Powers, and that it reserved its opinion on
questions concerning Greenland not dealt with in the Convention, so that by the
Convention nothing was prejudged, abandoned or lost.

[69] It is apparent from the documents filed with the Court, in particular from the
Protocol signed at the twelfth and last meeting of the delegations held at Christiania
on January 28th, 1924, that the chief points that these notes had in view were: the
Danish contention that Denmark possessed full and entire sovereignty over the whole
of Greenland and that Norway had recognized that sovereignty, and the Norwegian
contention that all the parts of Greenland which had not been occupied in such a
manner as to bring them effectively under the administration of the Danish
Government were in the condition of terra nullius, and that if they ceased to be terrce
nullius they must pass under Norwegian sovereignty.

[70] On July 8th, 1924, the Danish Directorate of the Greenland Colonies issued a
Decree dated July 5th, adverting to the Proclamation of June 16th, 1921, referred to
above, and announcing that the Danish Government would permit Danish vessels and
persons on board of them to navigate "until further notice" to the territory (which was
subsequently specified in detail by the Convention of July 9th), subject to conditions
which were identical with those laid down later in the Convention; the Decree added
that the permission granted would be applicable also to nationals, vessels and
companies of Iceland and of foreign nations with which the Danish Government
should conclude an agreement. This act occasioned reservations on the part of the
Norwegian Government.

[71] On April 1st, 1925, the Danish Government promulgated a law "on fishing and
hunting in Greenland waters", etc.; this was followed, on April r8th, by a law
"concerning the administration of Greenland". The former law - which served as the
basis for a Proclamation ("Notice to Mariners") dated May 22nd, 1925, by the
Greenland Directorate "on navigation in the seas around Greenland" - reserved this
hunting and fishing in Greenland waters exclusively for Danish subjects (including
Eskimos) settled in Greenland, and for persons obtaining special licences, subject to
the terms of the above-mentioned Decree of July 5th, 1924 (which contains in
substance the provisions of the Convention of the 9th of that [p40] month). The
second law divided Greenland, from an administrative point of view, into three
provinces, and laid down that "all commercial activities in Greenland are reserved to
the Danish State under the direction of the Ministry of the Interior". On August 8th,
1925, Norway made "categorical reservations" against the latter law, "in so far as it
applies to regions where the sovereignty of Denmark has not hitherto been
demonstrated".

[72] During the year 1925, the British and French Governments requested the Danish
Government to grant most-favoured-nation treatment i.e. the treatment accorded to
Norwegian subjects by the Convention of July 9th, 1924 to their respective subjects in
Eastern Greenland. Denmark granted these requests, and the arrangements concluded
on the subject took the form of two exchanges of notes (notes of April 23rd and June
4th, 1925, and of October 12th and 19th, 1925). When Norway learned of these
exchanges of notes, she drew the attention of Great Britain and France, on September
25th and November 2nd, 1925, to the fact that "she had not recognized Danish
sovereignty over the whole of Greenland"; the Norwegian Government caused the
Danish Government to be informed of this step. Similar communications were also
made by the Norwegian Government to all the other Powers whom it regarded as
being interested.

[73] Subsequently, the question of Danish sovereignty over the eastern coast of
Greenland appears not to have been raised for nearly five years. But, in the summer of
1930, the Norwegian Government conferred police powers on certain Norwegian
nationals "for the inspection of the Norwegian hunting stations in Eastern Greenland".
Denmark became uneasy at this action, and intimated to the Norwegian Government,
at first verbally, and afterwards - on December 26th, 1930 - in writing, that she could
not countenance the granting of regular police powers to Norwegian nationals in
territories situated in Greenland, seeing that these territories were, in the Danish view,
subject to Danish sovereignty. On January 6th, 1931, the Norwegian Government
replied that, in accordance with the standpoint which it had reserved in its note of July
9th, 1924, Eastern Greenland constituted a terra nullius, and that, consequently, it was
"fully entitled" to invest Norwegian nationals in this territory with police powers in
respect of Norwegian nationals and other persons domiciled in Norway.

[74] The year 1930 also witnessed the inauguration by Denmark of a "three years
plan" for scientific research in "the central part of Eastern Greenland, i.e. the district
between Scoresby [p41] Sound and Danmarkshavn". In a note dated February 20th,
1931, from the Norwegian Minister at Copenhagen to the Danish Minister for Foreign
Affairs, the Norwegian Government pointed out that "this important enterprise, whose
object was not purely scientific but also had a practical aim of colonization, would be
operating in the portion of Eastern Greenland which has been frequented for many
years past by Norwegian hunters .... and where there are Norwegian interests of
particular importance". The note further "strongly urged the Danish Government, in
the interests of both countries, to do everything in its power to ensure that the Danish
'three years' plan .... should not be carried out in such a way as to conflict with the
provisions of the Convention concerning Eastern Greenland, or with the legitimate
interests of the Norwegian hunters in that country".

[75] It is in these events of 1930, and in the reactions which they provoked, that the
immediate origin of the present dispute is to be sought.

[76] On March 11th, 1931, the Danish Government replied to the Norwegian
observations on the "three years plan", and on March 14th it informed the Norwegian
Government, linking the question of police powers to that of the "three years"
expedition, "that it thought it necessary, in accordance with the point of view
expressed by the Danish Government in its note of July 9th, 1924, in connection with
this expedition to provide for police supervision, with powers extending to all persons
in the territory in question in Eastern Greenland". A prolonged diplomatic discussion
ensued, during which it seemed as if the Governments were inclining towards an
agreement to refrain from raising during the life of the Convention of 1924 questions
concerning the differences on matters of principle which had not been settled by that
Convention, in order to ensure a peaceful development of the situation in Eastern
Greenland. On June 30th, the Norwegian Government requested the Danish Minister
at Oslo to confirm that the Danish Government was agreed that, during the life of the
Convention, no police authority, whether Norwegian or Danish, should be established
in Eastern Greenland, and that no other act of sovereignty should be accomplished
therein by Norway or by Denmark.

[77] The Danish reply, which was given on July 3rd, was in the negative. The Danish
Government held that the proposed arrangement would go beyond the limits of the
Convention of 1924, and would moreover constitute a recognition of the contention
upheld by Norway in 1924 (the terra nullius theory) and would be inconsistent with
the fundamental standpoint maintained at that time by Denmark (theory of Danish
[p42] sovereignty over the whole of Greenland). In these circumstances, the Danish
Government preferred to seek a solution for the existing differences in conciliation or
in judicial settlement by the Permanent Court of International Justice. The Norwegian
Government consented to submit the question to the Court by a Special Agreement; it
suggested, however, on July 7th, that the Court should be asked "to adjudicate on the
basis of the situation, in fact and in law, as existing on July 1st, 1931", and that in case
the Court should find that "Denmark had not acquired sovereignty over Greenland or
over part thereof", the Danish Government would not oppose "the acquisition by
Norway of sovereignty over the regions in question".

[78] The Danish Government replied to this suggestion by a note of July 10th, which
contains the following passage:

"The Danish Government does not intend, in the course of the examination of the
case, to take any surprise action, or any step calculated to modify the existing situation
at law, provided always that Norway refrains from any step which would necessitate
action on the part of Denmark. The Danish Government naturally presumes that the
Norwegian Government, for its part, likewise intends to refrain from any such action.
The Danish Government is, however, of opinion that the judgment should be given on
the basis of the general situation, as it has evolved during a long period of time, and is
unable to believe that action taken by either side, in the present preparatory stage of
the case, or during its examination, could in any way influence the judgment. It
regards the Norwegian Government's declaration, that the situation existing on July
1st should form the basis of the decision, as evidence that the said Government
concurs that no action taken during the examination of the case could possess decisive
importance. For the rest, the Danish Government holds that it must be left to the Court
to decide what considerations of law or of fact must be taken into account for a
decision of the case [FN1]."

--------------------------------------------------------------------------------------------------------
-------------
[FN1] Translation by the Registry from the French translation filed by the Danish
Government
--------------------------------------------------------------------------------------------------------
-------------

[79] The Danish Government further proposed in the same note that the Special
Agreement should be drawn up "by direct negotiations between representatives
appointed for that purpose".

[80] In the meanwhile, on June 28th, 1931, certain Norwegian hunters had hoisted the
flag of Norway in Mackenzie Bay in Eastern Greenland, and announced that they had
occupied the territory lying between Carlsberg Fjord, to the South, and Bessel Fjord,
to the North, in the name of the King of Norway. In reply to a Danish enquiry,
occasioned by this [p43] news, the Norwegian Minister for Foreign Affairs stated, on
July 1st, that more detailed information would be obtained from the persons who had
carried out the occupation; that the Government would then decide on its future
attitude; but that the occupation in question was "an entirely private act, which will
not influence our policy". In its note of July 3rd, referred to above, the Danish
Government observed that it had taken due note of this part of the Norwegian
Minister's statement.

[81] The Danish note of July 10th, already mentioned, had been preceded on July 5th
and 6th by an exchange of views between the Danish Minister at Oslo and the
Norwegian Minister for Foreign Affairs in reference to a Danish suggestion that,
during the negotiations for the proposed Special Agreement, Denmark would not take
any surprise action capable of modifying the existing situation at law, or resort to any
tactical measures. It is argued, on behalf of Denmark, that this offer was manifestly
made subject to reciprocity, and that an agreement was reached in that sense. On
behalf of Norway, the opposite contention is maintained.
[82] Finally, on July 10th, 1931, in a note verbale addressed by the Norwegian
Minister for Foreign Affairs to the Danish Minister at Oslo, the Norwegian
Government stated that, "having regard to the legal position of Norway in the
proceedings before the Court", it "had felt obliged to proceed, in virtue of a Royal
Resolution of the same date, to the occupation of the territories in Eastern Greenland
situated between latitude 71 30' and 75 40' N." The Royal Resolution in question
was worded as follows:

"1. The occupation of the country in Eastern Greenland between Carlsberg Fjord on
the south and Bessel Fjord on the north, carried out on June 27th, 1931, is officially
confirmed, so far as concerns the territory extending from latitude 71 30' to latitude
75 40' N., and the said territory is placed under Norwegian sovereignty.
2. Messrs. Hallvard Devoid and Herman Andresen are invested with police powers in
the aforesaid territory, viz., M. Devoid in respect of the district south of Clavering
Fjord and M. Andresen in respect of the district to the north of the said fjord [FN1]."

--------------------------------------------------------------------------------------------------------
-------------
[FN1] Translation by the Registry from the French translation filed by the Norwegian
Government
--------------------------------------------------------------------------------------------------------
-------------

[83] The territory covered by this Resolution was denominated by Norway "Eirik
Raudes Land".

[84] The contents of the Resolution were notified to the Powers whom Norway
regarded as being interested. [p44]

[85] On the following day - July 11th, 1931 - the Danish Government informed the
Norwegian Government that it had "submitted the question" on the same day "to the
Permanent Court of International Justice". The Danish Application instituting
proceedings was filed with the Registry, as already stated, on July 12th, 1931.

***

[86] The Danish submission in the written pleading, that the Norwegian occupation of
July 10th, 1931, is invalid, is founded upon the contention that the area occupied was
at the time of the occupation subject to Danish sovereignty; that the area is part of
Greenland, and at the time of the occupation Danish sovereignty existed over all
Greenland; consequently it could not be occupied by another Power.

[87] In support of this contention, the Danish Government advances two propositions.
The first is that the sovereignty which Denmark now enjoys over Greenland has
existed for a long time, has been continuously and peacefully exercised and, until the
present dispute, has not been contested by any Power. This proposition Denmark sets
out to establish as a fact. The second proposition is that Norway has by treaty or
otherwise herself recognized Danish sovereignty over Greenland as a whole and
therefore cannot now dispute it.

[88] 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.

[89] Other contentions were also developed in the course of the proceedings.

[90] On the Danish side it was maintained that the promise which in 1919 the
Norwegian Minister for Foreign Affairs, speaking on behalf of his Government, gave
to the diplomatic representative of the Danish Government at Christiania debarred
Norway from proceeding to any occupation of territory in Greenland, even if she had
not by other acts recognized an existing Danish sovereignty there.

[91] In this connection Denmark has adduced certain other undertakings by Norway,
e.g. the international undertakings entered into by that country for the pacific
settlement of her disputes with other countries in general, and with Denmark in
particular. [p45] On the Norwegian side it was maintained that the attitude which
Denmark adopted between 1915 and 1921, when she addressed herself to various
Powers in order to obtain a recognition of her position in Greenland, was inconsistent
with a claim to be already in possession of the sovereignty-over all Greenland, and
that in the circumstances she is now estopped from alleging a long established
sovereignty over the whole country.

[92] The two principal propositions advanced by the Danish Government will each be
considered in turn.

[93] The first Danish argument is that the Norwegian occupation of part of the East
coast of Greenland is invalid because Denmark has claimed and exercised sovereign
rights over Greenland as a whole for a long time and has obtained thereby a valid title
to sovereignty. The date at which such Danish sovereignty must have existed in order
to render the Norwegian occupation invalid is the date at which the occupation took
place, viz., July 10th, 1931.

[94] The Danish claim is not founded upon any particular act of occupation but
alleges - to use the phrase employed in the Palmas Island decision of the Permanent
Court of Arbitration, April 4th, 1928 - a title "founded on the peaceful and continuous
display of State authority over the island". It is based upon the view that Denmark
now enjoys all the rights which the King of Denmark and Norway enjoyed over
Greenland up till 1814. Both the existence and the extent of these rights must
therefore be considered, as well as the Danish claim to sovereignty since that date.

[95] It must be borne in mind, however, that as the critical date is July 10th, 1931, it is
not necessary that sovereignty over Greenland should have existed throughout the
period during which the Danish Government maintains that it was in being. Even if
the material submitted to the Court might be thought insufficient to establish the
existence of that sovereignty during the earlier periods, this would not exclude a
finding that it is sufficient to establish a valid title in the period immediately preceding
the occupation.

[96] Before proceeding to consider in detail the evidence submitted to the Court, it
may be well to state that a claim to sovereignty based not upon some particular act or
title such as a treaty of cession but merely upon continued display of authority,
involves two elements each of which must be shown [p46] to exist: the intention and
will to act as sovereign, and some actual exercise or display of such authority.

[97] Another circumstance which must be taken into account by any tribunal which
has to adjudicate upon a claim to sovereignty over a particular territory, is the extent
to which the sovereignty is also claimed by some other Power. In most of the cases
involving claims to territorial sovereignty which have come before an international
tribunal, there have been two competing claims to the sovereignty, and the tribunal
has had to decide which of the two is the stronger. One of the peculiar features of the
present case is that up to 1931 there was no claim by any Power other than Denmark
to the sovereignty over Greenland. Indeed, up till 1921, no Power disputed the Danish
claim to sovereignty.

[98] It is impossible to read the records of the decisions in cases as to territorial

sovereignty without observing that in many cases the tribunal has been satisfied with
very little in the way of the actual exercise of sovereign rights, provided that the other
State could not make out a superior claim. This is particularly true in the case of
claims to sovereignty over areas in thinly populated or unsettled countries.

[99] In the period when the early Nordic colonies founded by Eric the Red in the Xth
century in Greenland were in existence, the modern notions as to territorial
sovereignty had not come into being. It is unlikely that either the chiefs or the settlers
in these colonies drew any sharp distinction between territory which was and territory
which was not subject to them. On the other hand, the undertaking (1261) recorded by
Sturla Thordarson that fines should be paid to the King of Norway by the men of
Greenland in respect of murders whether the dead man was a Norwegian or a
Greenlander and whether killed in the settlement or even as far to the North as under
the Pole Star, shows that the King of Norway's jurisdiction was not restricted to the
confines of the two settlements of Eystribygd and Vestribygd. So far as it is possible
to apply modern terminology to the rights and pretensions of the kings of Norway in
Greenland in the XIIIth and XIVth centuries, the Court holds that at that date these
rights amounted to sovereignty and that they were not limited to the two settlements.
[100] It has been argued on behalf of Norway that after the disappearance of the two
Nordic settlements, Norwegian sovereignty was lost and Greenland became a terra
nullius. [p47] Conquest and voluntary abandonment are the grounds on which this
view is put forward.

[101] The word "conquest" is not an appropriate phrase, even if it is assumed that it
was fighting with the Eskimos which led to the downfall of the settlements. Conquest
only operates as a cause of loss of sovereignty when there is war between two States
and by reason of the defeat of one of them sovereignty over territory passes from the
loser to the victorious State. The principle does not apply in a case where a settlement
has been established in a distant country and its inhabitants are massacred by the
aboriginal population. Nor is the fact of "conquest" established. It is known now that
the settlements must have disappeared at an early date, but at the time there seems to
have been a belief that despite the loss of contact and the loss of knowledge of the
whereabouts of the settlements one or both of them would again be discovered and
found to contain the descendants of the early settlers.

[102] As regards voluntary abandonment, there is nothing to show any definite

renunciation on the part of the kings of Norway or Denmark.

[103] During the first two centuries or so after the settlements perished, there seems to
have been no intercourse with Greenland, and knowledge of it diminished; but the
tradition of the King's rights lived on, and in the early part of the XVIIth century a
revival of interest in Greenland on the part both of the King and of his people took
place.

[104] That period was an era of adventure and exploration. The example set by the
navigators of foreign countries was inspiring, and a desire arose in Norway and
Denmark to recover the territory which had been subject to the sovereignty of the
King's ancestors in the past. The expeditions sent out in 1605 and 1606 under
Lindenow to "Our Country of Greenland", the efforts to assure respect on the part of
foreign Powers for the King's rights there and the claim to exclude foreigners from the
Greenland trade all show that the King considered that in his dealings with Greenland
he was dealing with a country with respect to which he had a special position superior
to that of any other Power. This special position can only have been derived from the
sovereign rights which accrued to the King of Norway from the submission made to
him by the early Nordic settlers and which descended to the Danish-Norwegian kings.
It must have covered the territory which is known as Greenland today, because the
country was inhabited. The expedition in 1605 brought back some of the inhabitants,
whereas Spitzbergen was admittedly uninhabited. Lastly, as there were at this date no
colonies or [p48] settlements in Greenland, the King's claims cannot have been
limited to any particular places in the country.

[105] That the King's claims amounted merely to pretensions is clear, for he had no
permanent contact with the country, he was exercising no authority there. The claims,
however, were not disputed. No other Power was putting forward any claim to
territorial sovereignty in Greenland, and in the absence of any competing claim the
King's pretensions to be the sovereign of Greenland subsisted.

[106] After the founding of Hans Egede's colonies in 1721, there is in part at least of
Greenland a manifestation and exercise of sovereign rights. Consequently, both the
elements necessary to establish a valid title to sovereignty - the intention and the
exercise - were present, but the question arises as to how far the operation of these
elements extended.

[107] The King's pretensions to sovereignty which existed at the time of the
foundation of the colonies are sufficient to demonstrate the intention, and, as said
above, these were not limited to any particular part of the country.

[108] Was the exercise of sovereign rights such as to confer a valid title to sovereignty
over the whole country? The founding of the colonies was accompanied by the grant
of a monopoly of the trade, and before long legislation was found to be necessary to
protect and enforce the monopoly. In the earlier Ordinances of 1740-1751, issued at
the time when Jacob Severin was the grantee of the monopoly, the prohibition of
trading was restricted to the colonies, but those Ordinances also contained a
prohibition of injurious treatment of the Greenlanders, and this was not limited to the
colonies but operated in Greenland as a whole. Furthermore, the prohibition of trading
was to apply not only in the existing colonies but in any future colonies which might
be established. Legislation is one of the most obvious forms of the exercise of
sovereign power, and it is clear that the operation of these enactments was not
restricted to the limits of the colonies. It therefore follows that the sovereign right in
virtue of which the enactments were issued cannot have been restricted to the limits of
the colonies.

[109] The Ordinance of 1758 and that of 1776 (which is still in force) also operated
beyond the limits of the colonies: under these Ordinances, the prohibition on trading
is no longer restricted to the colonies but is to apply "in all places whatever". This
extension in the area of the monopoly is reflected in the terms of the commercial
treaties of the period. The [p49] treaties before 1758 (those of 1742 between Denmark
and France, of 1748 between Denmark and the Two Sicilies and of 1756 between
Denmark and the Republic of Genoa) make an exception for the trade "with His
Majesty's colonies in Greenland". The notes exchanged with Russia in 1782 relate to
"Greenland" in general.

[110] Norway has argued that in the legislative and administrative acts of the XYIIIth
century on which Denmark relies as proof of the exercise of her sovereignty, the word
"Greenland" is not used in the geographical sense, but means only the colonies or the
colonized area on the West coast.

[111] This is a point as to which the burden of proof lies on Norway. The
geographical meaning of the word "Greenland", i.e. the name which is habitually used
in the maps to denominate the whole island, must be regarded as the ordinary meaning
of the word. If it is alleged by one of the Parties that some unusual or exceptional
meaning is to be attributed to it, it lies on that Party to establish its contention. In the
opinion of the Court, Norway has not succeeded in establishing her contention. It is
not sufficient for her to show that in many of these legislative and administrative acts
action was only to be taken in the colonies. Most of them dealt with things which only
happened in the colonies and not in the rest of the country. The fact that most of these
acts were concerned with what happened in the colonies and that the colonies were all
situated on the West coast is not by itself sufficient ground for holding that the
authority in virtue of which the act was taken - whether legislative or administrative -
was also restricted to the colonized area. Unless it was so restricted, it affords no
ground for interpreting the word "Greenland" in this restricted sense.

[112] The terms of some of these documents give no support to the Norwegian view.
As shown above, the Ordinances of 1740, 1751, 1758 and 1776 purport to operate in
Greenland generally. If the terms of these Ordinances are examined closely, they do
not bear out the view that "Greenland" means only the colonized area. In the
Ordinance of 1758, for instance, the word "Greenland" is used three times. First, the
Ordinance recites the concession held by the Company "de naviguer et commercer
seule dans les colonies par Nous etablies dans Notre pays de lllGroe'nland...." ; then it
recites that the King has learned with great displeasure that certain foreigners repair
annually to Greenland ".... , par un commerce illicite auquel Us se livrent tant dans
les ports qu'en dehors, Us .... exercent toutes sortes de violences contre [p50] les
habitants....", and then the King, "comme souverain seigneur hrditaire du
lllGroenland et des les en dpendant....", proceeds to re-enact and to extend the
prohibitions contained in the previous Ordinances [FN1].

--------------------------------------------------------------------------------------------------------
-------------
[FN1] The texts in question have been officially submitted to the Court in a French
translation only
--------------------------------------------------------------------------------------------------------
-------------

[113] There is nothing to show that the word "Greenland" is not used all through the
Ordinance in the same sense. The Ordinance is issued by the King as Hereditary
Sovereign of Greenland. It has been shown above that the rights and pretensions
which the King derived from his ancestors as kings of Norway were not limited to any
particular part of Greenland, because no colonies existed at the time, but extended to
the whole country. Again, the colonies are described as colonies established in
Greenland, so that the colonies and Greenland cannot have coincided. Lastly, the
trading prohibition which the Ordinance enacts is no longer, as in 1740 and 1751,
limited to the colonies, but extends to every place on land or sea within four miles of
the coast, and is now grouped with the prohibition against violence to the
Greenlanders which in the previous Ordinances operated throughout Greenland and
was not limited to the colonies. An examination of this Ordinance alone is enough to
disprove the contention that the word "Greenland" in these legislative and
administrative acts of the XVIIIth century means only the colonized area.

[114] It has also been argued on behalf of Norway that "Greenland" as used in
documents of this period cannot have been intended to include the East coast because
at the time the East coast was unknown. An examination however of the maps of the
XVIIth and XVIIIth centuries shows that the general features and configuration of the
East coast of Greenland were known to the cartographers. Even if no evidence of any
landings on the coast have been produced, the ships which hunted whales in the
waters to the East of Greenland sighted the land at intervals and gave names to the
prominent features which were observed. Indeed, "Greenland" as a geographical term
was even more used in connection with the East coast than with the West coast, as the
term "Straat Davis" was often used to describe the West coast, or colonized area, of
Greenland.

[115] The conclusion to which the Court is led is that, bearing in mind the absence of
any claim to sovereignty by another Power, and the Arctic and inaccessible character
of the uncolonized [p51] parts of the country, the King of Denmark and Norway
displayed during the period from the founding of the colonies by Hans Egede in 1721
up to 1814 his authority to an extent sufficient to give his country a valid claim to
sovereignty, and that his rights over Greenland were not limited to the colonized area.

[116] Up to the date of the Treaty of Kiel of 1814, the rights which the King
possessed over Greenland were enjoyed by him as King of Norway. It was as a
Norwegian possession that Greenland was dealt with in Article 4 of that Treaty,
whereby the King ceded to the King of Sweden the Kingdom of Norway, "la
Gronlande .... comprise....". The result of the Treaty was that what had been a
Norwegian possession remained with the King of Denmark and became for the future
a Danish possession. Except in this respect, the Treaty of Kiel did not affect or extend
the King's rights over Greenland.

[117] In order to establish the Danish contention that Denmark has exercised in fact
sovereignty over all Greenland for a long time, Counsel for Denmark have laid stress
on the long series of conventions - mostly commercial in character - which have been
concluded by Denmark and in which, with the concurrence of the other contracting
Party, a stipulation has been inserted to the effect that the convention shall not apply
to Greenland. In the case of multilateral treaties, the stipulation usually takes the form
of a Danish reserve at the time of signature. In date, these conventions cover the
period from 1782 onwards. As pointed out in the earlier part of the judgment, the
exclusion of Greenland is, with one exception, made without qualification. In that
case alone it is "the Danish colonies in Greenland" to which the treaty is not to apply.
In many of these cases, the wording is quite specific; for instance, Article 6 of the
Treaty of 1826 with the United States of America : "The present Convention shall not
apply to the Northern possessions of His Majesty the King of Denmark, that is to say
Iceland, the Fr Islands and Greenland...."

[118] The importance of these treaties is that they show a willingness on the part of
the States with which Denmark has contracted to admit her right to exclude
Greenland. To some of these treaties, Norway has herself been a Party, and these must
be dealt with later because they are relied on by Denmark as constituting binding
admissions by Norway that Greenland is subject to Danish sovereignty. For the
purpose of the present argument, the importance of these conventions, with whatever
States they have been concluded, is due to the [p52] support which they lend to the
Danish argument that Denmark possesses sovereignty over Greenland as a whole.

[119] It has been contended on behalf of Norway that no importance should be

attached to these conventions because, when they were concluded, the Parties had no
such question in mind as whether Danish sovereignty was limited or not to the
colonies, and whether in consequence "Greenland" meant more than the colonized
area. Both as to these conventions, and also as to the Treaty of Kiel, Counsel for
Norway adhere to the contention that the word "Greenland" is used in the sense of the
area comprised within the colonies.

[120] It is true that when they conclude a commercial convention, States are not
dealing with such questions as the extent of their respective territories, but the usual
object of a commercial convention is to give to each of the Parties facilities for trade
and navigation in the territories of the other; consequently, the area within which such
facilities are, or are not, accorded is a point of some importance. It is a question on
which disputes may arise if there is any uncertainty. If the Parties were agreed that the
treaty was not to. apply in a particular area and the area is only designated by name,
the natural conclusion is that no difference existed between them as to the extent of
the area which that name covered. The Court is therefore once more led back to the
question as to what the contracting Parties meant when they excluded "Greenland".
The natural meaning of the term is its geographical meaning as shown in the maps. If
it is argued on behalf of Norway that these treaties use the term "Greenland" in some
special sense, it is for her to establish it, and it is not decisive in this respect that the
northern part of Greenland was still unknown. She has not succeeded in showing that
in these treaties the word "Greenland" means only the colonized area.

[121] To the extent that these treaties constitute evidence of recognition of her
sovereignty over Greenland in general, Denmark is entitled to rely upon them.

[122] These treaties may also be regarded as demonstrating sufficiently Denmark's

will and intention to exercise sovereignty over Greenland. There remains the question
whether during this period, i.e. 1814 to 1915, she exercised authority in the
uncolonized area sufficiently to give her a valid claim to sovereignty therein. In their
arguments, Counsel for Denmark have relied chiefly on the concession granted in
1863 to Tayler of exclusive rights on the East coast for trading, hunting, [p53] mining,
etc. The result of all the documents connected with the grant of the concession is to
show that, on the one side, it was granted upon the footing that the King of Denmark
was in a position to grant a valid monopoly on the East coast and that his sovereign
rights entitled him to do so, and, on the other, that the concessionnaires in England
regarded the grant of a monopoly as essential to the success of their projects and had
no doubt as to the validity of the rights conferred.

[123] Among the documents connected with the grant of this concession which have
been submitted to the Court is the report submitted to the King for his approval by the
Minister of the Interior, and it is interesting to note that it states as a matter free from
all doubt that Danish sovereignty exists over the East coast of Greenland:

"En tout cas, les rsultats auxquels cette tentative pourrait conduire prsenteraient un
intrt scientifique assez important, et, pourvu que Ton prenne les garanties
ncessaires tant en ce qui concerne la souverainet de Votre Majest sur cette partie
du Gronland - que personne ne conteste - et pour la protection des Gronlandais qui
habitent et qui, par suite, doivent tre considrs comme les sujets de Votre Majest,
l'octroi d'une autorisation de ce genre ceux qui possdent les qualits et l'nergie
ncessaires pour tenter la ralisation d'une pareille entreprise pourra certainement tre
accord sans aucune hesitation [FN1]."

--------------------------------------------------------------------------------------------------------
-------------
[FN1] French translation supplied by the Danish Government.
--------------------------------------------------------------------------------------------------------
-------------

[124] Counsel for Norway have pointed to Article 2 in the concession, which provides
that the establishments created by the concessionnaires were to be placed under the
sovereignty of the Crown of Denmark and to be subject to Danish law - and have
argued that the grant of a concession in these terms is itself evidence that the Danish
Government realized that Danish sovereignty did not extend to this part of Greenland.
The explanation however is simple. Tayler was an Englishman. The Danish
Government were aware that people in Denmark, such as M. Wormskjold, had been
afraid that foreign Powers would attempt to make settlements on the East coast, and
Article 2 was intended to make sure that the settlements established by Tayler should
not be made the basis of a claim of occupation and sovereignty by the King of
England.

[125] The concessions granted for the erection of telegraph lines and the legislation
fixing the limits of territorial waters in [p54] 1905 are also manifestations of the
exercise of sovereign authority.

[126] In view of the above facts, when taken in conjunction with the legislation she
had enacted applicable to Greenland generally, the numerous treaties in which
Denmark, with the concurrence of the other contracting Party, provided for the non-
application of the treaty to Greenland in general, and the absence of all claim to
sovereignty over Greenland by any other Power, Denmark must be regarded as having
displayed during this period of 1814 to 1915 her authority over the uncolonized part
of the country to a degree sufficient to confer a valid title to the sovereignty.
[127] The applications which the Danish Government addressed to foreign
governments between 1915 and 1921, seeking the recognition of Denmark's position
in Greenland, have played so large a part in the arguments addressed to the Court that
it is necessary to deal with them in some detail. The point at issue between the Parties
is whether Denmark was seeking a recognition of an existing sovereignty extending
over all Greenland, as has been urged by her Counsel, or, as maintained by Counsel
on behalf of Norway, whether she was trying to persuade the Powers to agree to an
extension of her sovereignty to territory which did not as yet belong to her:

[128] The terms used in the correspondence between the Danish Government and the
foreign governments concerned relating to these applications are not always clear;
sometimes a particular phrase or expression seems to afford a strong argument in
favour of the view held by one Party in the dispute and another phrase or expression,
emanating from the same side and perhaps even in the same note, may be consistent
only with the opposite view.

[129] The Court has come to the conclusion that in judging the effect of these notes
too much importance must not be attached to particular expressions here and there.
The correspondence must be judged as a whole. One reason for this is that in some
cases the notes were written by individual Danish diplomatic representatives, and,
though no doubt they were based on the instructions these Ministers received, some
variation must be expected and allowed for in the terms they used.

[130] There can be no doubt that an expression such as "extension of sovereignty",

which figures in two or three of the most important documents on the Danish side, if
taken by [p55] itself, is very difficult to reconcile with the view now upheld by the
Danish Government, that what that Government was seeking in these applications was
recognition of existing sovereignty and not consent to the acquisition of new
sovereignty. Nevertheless, the conclusion which the Court has reached is that the view
upheld by the Danish Government in the present case is right and that the object
which that Government was endeavouring to secure was an assurance from each of
the foreign governments concerned that it accepted the Danish point of view that all
Greenland was already subject to Danish sovereignty and was therefore content to see
an extension of Denmark's activities to the uncolonized parts of Greenland.

[131] Before analysing the important documents in this correspondence, it is well to

repeat what has been said above as to the existence in Denmark of opinions held by
well-qualified persons, such as M. Wormskjld, that owing to the absence of any
effective occupation on the eastern coast of Greenland, some foreign Power might
attempt to establish a settlement and might thereby acquire the sovereignty over the
territory for itself.

[132] While this was the opinion which had been expressed by private persons, the
Government had, whenever it was necessary for it to express an opinion, enunciated
the view that there was no doubt as to the existence of the Danish sovereignty over the
East coast of Greenland.
[133] A sentence has already been quoted from the report to the King in 1863, asking
for approval of the Tayler concession. Similarly, in the report submitted to the King in
connection with the founding of the colony of Angmagssalik in 1894, the Minister of
the Interior says:

"Bien que, jusqu' prsent, il n'ait t tabli des colonies danoises que sur la cte
occidentale du Gronland, la souverainet de l'Etat danois n'est pas restreinte cette
partie du pays, et le Gouvernement danois a, lorsque l'occasion s'en est prsente,
exerc et affirm sa souverainet sur la cte orientale du pays [FN1]."

--------------------------------------------------------------------------------------------------------
-------------
[FN1] French translation supplied by the Danish Government.
--------------------------------------------------------------------------------------------------------
-------------

[134] Given this divergence of view between the Government opinion on the one side,
and the opinion of private persons on the other, it is quite natural that at a time such as
that of the Great War and the Peace Conference which followed it, when many
territorial changes were taking place, the Danish Government should think the
moment favourable for endeavouring to [p56] secure general recognition of its
sovereignty over all Greenland. If it took action for this purpose, however, it is most
unlikely that on the eve of doing so it would completely change the point of view
which it had previously enunciated and proceed upon the footing that it had no right to
sovereignty over the uncolonized area and that it had now to acquire sovereignty there
for the first time. The Danish Government stood to gain nothing by making any such
change of opinion and would seriously prejudice its position if it failed to secure the
acknowledgements it desired from foreign States.

[135] The first country to be approached was the United States of America, and the
moment chosen was that of the negotiation of the treaty for the cession of the Danish
Antilles. It seems probable that the negotiations about Greenland were in part
conducted verbally, but the memorandum addressed to the United States Government
on December 27th, 1915, by the Danish Minister at Washington is not helpful to the
Danish case. It is by no means clear, and it uses the phrase "extension of the care and
suzerainty of Denmark to the whole of Greenland [FN1]". On the other hand, if what
the Parties had in mind was consent by the United States Government to Denmark's
acquiring sovereignty over parts of Greenland which had hitherto been terr nullius,
it seems incredible that any competent draughtsman would use so complicated a
phrase as that proposed by the United States Government for insertion in the Antilles
Treaty: ".... The United States will not object to the claim of Denmark to take such
measures of control and protection in Greenland as she may deem proper and
necessary to safeguard and advance these interests" (i.e. the political and economic
interests of Denmark in Greenland).
--------------------------------------------------------------------------------------------------------
-------------
[FN1] English text supplied by the Danish Government.
--------------------------------------------------------------------------------------------------------
-------------

[136] The phrase used in the American declaration as ultimately signed was that the
United States Government ".... will not object to the Danish Government extending
their political and economic interests to the whole of Greenland", a phrase which is
not inconsistent with either thesis. On the other hand, when submitting the Antilles
Treaty, together with the above declaration as to Greenland, for the royal ratification,
the Danish Minister for Foreign Affairs treats the declaration as involving American
consent to an extension of sovereignty. [p57]

[137] The next government to be approached was the Norwegian. That Government
had already manifested a desire to acquire Spitzbergen, and in April 1919 the Danish
Government had given the Norwegian Government to understand that, as there were
no Danish interests in Spitzbergen which ran counter to those of Norway, Denmark
would not oppose the Norwegian aspirations.

[138] Early in July 1919, the Danish Minister for Foreign Affairs learned from the
Danish Minister in Paris that the Spitzbergen question was to come before a
Committee of the Peace Conference.

[139] Instructions were thereupon issued, on July 12th, 1919, to the Danish Minister
at Christiania to make to the Norwegian Minister for Foreign Affairs a communication
to the effect that a Committee had just been constituted at the Peace Conference "for
the purpose of considering the claims that may be put forward by different countries
to Spitzbergen", and that the Danish Government would be prepared to renew before
this Committee the unofficial assurance already given to the Norwegian Government,
according to which Denmark, having no special interests at stake in Spitzbergen,
would raise no objection to Norway's claims upon that archipelago. In making this
statement to the Norwegian Minister for Foreign Affairs, the Danish Minister was to
point out "that the Danish Government had been anxious for some years past to obtain
the recognition by all the interested Powers of Denmark's sovereignty over the whole
of Greenland and that it intended to place that question before the above-mentioned
Committee"; that the Government of the U.S.A. had made a declaration that that
Government would not oppose the extension of Danish political and economic
interests over all Greenland; and further that the Danish Government counted on the
Norwegian Government not making any difficulties with regard to such an extension.

[140] When, on July 14th, 1919, the Danish Minister saw the Norwegian Minister for
Foreign Affairs, M. Ihlen, the latter merely replied "that the question would be
considered". The Norwegian Minister for Foreign Affairs recorded his conversation
with the Danish representative in a minute, the accuracy of which has not been
disputed by the Danish Government. On July 22nd following, the Minister for Foreign
Affairs, after informing his colleagues of the Norwegian Cabinet, made a statement to
the Danish Minister to the effect "that the Norwegian Government would not make
any difficulties [p58] in the settlement of this question" (i.e. the question raised on
July 14th by the Danish Government). These are the words recorded in the minute by
M. Ihlen himself. According to the report made by the Danish Minister to his own
Government, M. Ihlen's words were that "the plans of the Royal [Danish] Government
respecting Danish sovereignty over the whole of Greenland .... would meet with no
difficulties on the part of Norway".

[141] The Danish Government were not able to bring the question before the Peace
Conference in 1919. The matter was therefore taken up with the governments
individually, instructions being sent to the Danish Ministers in London, Paris, Rome
and Tokyo on March 2nd, 1920, to address communications to the Governments to
which they were accredited. These instructions described at length the work which
Denmark had accomplished in Greenland and mentioned the colonies she had
founded. Then follows an admission that no formal "prise de possession" had been
taken of all Greenland and a statement is made that it is desirable that Denmark
should extend its "sollicitude par sa souverainet sur le Gronland tout entier". The
text of the American declaration is set out and the instructions go on to say that,
having got the American declaration, Denmark proposes also to obtain recognition by
other Powers of Danish sovereignty over all Greenland, and the Minister concerned is
therefore to ask for official recognition of Danish sovereignty over all Greenland. It is
suggested that the form in which such recognition might be given would be a
declaration corresponding to that made by the United States Government. It will be
seen that, in these instructions, the Danish Minister for Foreign Affairs treats
recognition of Danish sovereignty over all Greenland and a statement that there is no
objection to the Danish Government extending its political and economic interests to
the whole of Greenland as meaning the same thing.

[142] Each of the Ministers concerned thereupon addressed himself to the

Government to which he was accredited, following in his own way the tenour of the
instructions he had received.

[143] In reply, the French Government sent a note to the effect that it would make no
objection to the Danish Government extending its sovereignty to all Greenland, as
contemplated in the American declaration.

[144] The Italian Government says that they will have no difficulty in recognizing
Danish sovereignty over Greenland. [p59]

[145] The Japanese Government says that they have no objection to the Danish
Government extending their political and economic interests to the whole of
Greenland.

[146] The British Government (after some preliminary correspondence with a view to
securing a right of preemption over the country), recognizes Danish sovereignty over
Greenland.

[147] These notes all appear to have been written upon the assumption that they were
complying with what the Danish Government had asked for, despite the diversity of
their contents.

[148] The British note, it is true, was written in slightly more favourable
circumstances, because the Foreign Office had had the advantage of a further
communication from the Danish Government in which the Danish view had been
explained more clearly. The British Government had at first tried to secure a right of
preemption over Greenland as a condition of its recognition of Danish sovereignty.
This the Danish Government refused in a note on July 20th, 1920, in which it makes
its point of view clear. The note says that the Danish occupation of Greenland dated
back to 1721, since when Greenland had been treated uninterruptedly as a Danish
colony, and that the Danish "suzerainty" had never been questioned by any other
foreign Power. The note went on to say that the request which had been made by the
Danish Government must therefore be regarded as dictated by a desire to obtain
"formal recognition of an existing status sanctioned by prescriptive right".

[149] Thus it will be seen that as soon as one of the Powers to whom application had
been made indicates a desire to obtain some return for the grant of what had been
asked, the Danish Government replies with a note setting out the legal basis of its
claim to sovereignty in Greenland on lines similar to those which it has followed in
the present case. With the legal position thus made clear, the British Government gave
the desired recognition to Danish sovereignty and only asked that, in view of the
proximity of Greenland to Canada, the British Government should be consulted if the
Danish Government ever contemplated the alienation of the territory.

[150] Early in 1921 the Danish Government approached the Swedish and Norwegian
Governments with similar requests for recognition of Danish sovereignty.

[151] The note addressed to the Swedish Government on January 13th, 1921, follows
the lines of those addressed to the four [p60] Powers in 1920, but adds that those
Powers have recognized Danish sovereignty over all Greenland.

[152] The memorandum addressed to the Norwegian Government by the Danish

Legation at Christiania on January 18th, 1921, was conceived on somewhat different
lines. It repeats the Danish desire to obtain recognition by the Powers concerned of
Danish sovereignty over the whole of that country, and the fact that it had not been
possible to bring the question before the Peace Conference in Paris. The
communication then refers to the declaration made by the United States Government,
the successful applications to the four Powers and the Danish decision to address
corresponding requests to the Norwegian and Swedish Governments. Mention is made
of Spitzbergen and of how Denmark had said, in 1919, that she would not oppose the
Norwegian claims there and that she reckoned on an extension of Danish sovereignty
in Greenland not meeting with difficulties on the part of Norway. Reference is then
made to the Ihlen declaration, and it is said that as this had only been verbal Denmark
would now like to have a written confirmation of it. The memorandum concludes by
asking for a written statement that the Norwegian Government recognized Danish
sovereignty over all Greenland.

[153] This memorandum has been analysed in some detail because it is the document
chiefly relied on by the Norwegian Counsel in maintaining that what Denmark sought
to obtain was an extension of her sovereignty to the non-colonized part of Greenland
in the sense that it implied that no such sovereignty existed at the moment. It is true
that, as stated in the memorandum itself, the word "extension" is used, but it is used in
connection with the attitude which Denmark had adopted in 1919. If however the
communication made in 1919 to the Norwegian Government is examined, it will be
found to be more consistent with the view that the Danish desire was to obtain the
recognition of an existing sovereignty. As said above, too much importance must not
be attached to some of these individual phrases and expressions when taken apart
from their context. Words such as "reconnaissance expresse de la souverainet du
Gronland dans son entier" are more applicable to an existing sovereignty than to
describe an agreement to an extension. Nor must it be forgotten that the date of this
communication was six months later than the note of July 20th, 1920, to the Foreign
Office in London, which sets out the Danish position with reasonable precision. [p61]

[154] Nevertheless, it would seem that the Norwegian Government must have
understood the Danish communication as implying an extension of sovereignty in the
proper sense of the term, and it was just this "extension", i.e. agreement to something
which did not yet exist, to which Norway was unwilling to agree except on terms
which would safeguard the opportunities for hunting and fishing which Norwegians
then enjoyed in Eastern Greenland. The Norwegian Government therefore felt unable
to give the recognition which was asked for.

[155] After a certain time, during which the communication of January 18th remained
unanswered officially, but during which some unofficial communications passed, a
note from the Norwegian Government, dated November 2nd, 1921, dealing with the
Decrees of May 10th and June 16th of that year, stated that the Norwegian
Government had not recognized, and could not recognize, an extension of Danish
sovereignty which would involve a corresponding extension of the monopoly and
result in the suppression of the hunting and fishing activities of the Norwegians in the
parts of Greenland in question.

[156] Confronted with an attitude which did not satisfy it, the Danish Government
expounded - as it had done to the British Government in July 1920 - its view of the
situation in law, and in its note of December 19th, 1921, affirms that Danish
sovereignty has no need of any renewed recognition by the Norwegian Government
and asserts that this sovereignty has for a long time found expression in a series of
international documents and legislative enactments, of which the contents have been
brought to the knowledge of the countries concerned and to which no objection has
ever been made.
[157] The Danish Government thus enunciates once more the view expressed in 1863
and in 1894, and in the note to the Foreign Office in July 1920, that it already
possessed sovereignty over all Greenland. If that was the view which the Danish
Government held before, during and at the close of these applications to the Powers,
its action in approaching them in the way it did must certainly have been intended to
ensure that those Powers should accept the point of view maintained by the Danish
Government, namely, that sovereignty already existed over all Greenland, and not to
persuade them to agree that a part of Greenland not previously under Danish
sovereignty should now be brought thereunder. Their object was to ensure that those
Powers would not attempt themselves to take possession of any [p62] non-colonized
part of Greenland. The method of achieving this object was to get the Powers to
recognize an existing state of fact.

[158] In these circumstances, there can be no ground for holding that, by the attitude
which the Danish Government adopted, it admitted that it possessed no sovereignty
over the uncolonized part of Greenland, nor for holding that it is estopped from
claiming, as it claims in the present case, that Denmark possesses an old established
sovereignty over all Greenland.

[159] The period subsequent to the date when the Danish Government issued the
Decree of May 10th, 1921, referred to above, witnessed a considerable increase in the
activity of the Danish Government on the eastern coast of Greenland.

[160] That Decree was followed by the Decree of June 16th of the same year
concerning navigation in the seas round Greenland and declaring that the whole of the
coasts and islands were closed to Danish and to foreign ships. Though the stringency
of this measure was relaxed when the Convention of 1924 was concluded, the
exclusion of all shipping remains the rule except in so far as access is authorized by
treaty or decree or special authorization.

[161] In 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.

[162] This legislation with regard to hunting and fishing, and the law dividing the
country into provinces, are noteworthy, as are also the admission of French and
British nationals to most-favoured-nation treatment in Eastern Greenland, under notes
exchanged between Denmark and the British and French Governments in 1925.

[163] These were all cases in which the Danish Government was exercising
governmental functions in connection with the territory now under dispute.

[164] The character of these Danish acts is not altered by the protests or reserves
which, from time to time, were made by the Norwegian Government.

[165] These acts, coupled with the activities of the Danish hunting expeditions which
were supported by the Danish Government, the increase in the number of scientific
expeditions [p63] engaged in mapping and exploring the country with the
authorization and encouragement of the Government, even though the expeditions
may have been organized by non-official institutions, the occasions on which the
Godthaab, a vessel belonging to the State and placed at one time under the command
of a naval officer, was sent to the East coast on inspection duty, the issue of permits
by the Danish authorities, under regulations issued in 1930, to persons visiting the
eastern coast of Greenland, show to a sufficient extent - even when separated from the
history of the preceding periods - the two elements necessary to establish a valid title
to sovereignty, namely : the intention and will to exercise such sovereignty and the
manifestation of State activity.

[166] The conclusion of the 1924 Convention with Norway, to which reference must
again be made later, though signed by that State on the footing that she maintained her
point of view as to the territorial status of Eastern Greenland (terra nullius) and that
the conclusion of the Convention did not prejudice her point of view, does not exclude
the right of Denmark to maintain her point of view that she was entitled to and was in
fact enjoying sovereignty over all Greenland, nor does it exclude her right to show
that the elements which go to establish a valid claim to sovereignty were both present.

[167] Except for the verbal change that the phrase "territoire de Gronland" is more
often employed than " Gronland", the commercial arrangements concluded by
Denmark during this period continue to provide that, on the Danish side, the
agreement is not to apply to Greenland, showing thereby that the States with which
Denmark was concluding these agreements were not disposed to dispute her claim to
be sovereign over the area which the agreement denominates as Greenland. As also is
the case with regard to the previous periods, it lies on Norway to show that the word
"Greenland" in these agreements is used in some special sense which does not include
the uncolonized part of the East coast, and in the opinion of the Court Norway has not
shown that this is so.

[168] Even if the period from 1921 to July 10th, 1931, is taken by itself and without
reference to the preceding periods, the conclusion reached by the Court is that during
this time Denmark regarded herself as possessing sovereignty over all Greenland and
displayed and exercised her sovereign rights to an extent sufficient to constitute a
valid title to sovereignty. When considered in conjunction with the facts of the [p64]
preceding periods, the case in favour of Denmark is confirmed and strengthened.

[169] It follows from the above that the Court is satisfied that Denmark has succeeded
in establishing her contention that at the critical date, namely, July 10th, 1931, she
possessed a valid title to the sovereignty over all Greenland.

[170] This finding constitutes by itself sufficient reason for holding that the
occupation of July 10th, 1931, and any steps taken in this connection by the
Norwegian Government, were illegal and invalid.

II.

[171] The Court will now consider the second Danish proposition that Norway had
given certain undertakings which recognized Danish sovereignty over all Greenland.
These undertakings have been fully discussed by the two Parties, and in three cases
the Court considers that undertakings were given.

[172] 1. In the first place, the Court holds that, at the time of the termination of the
Union between Denmark and Norway (1814 to 1819), Norway undertook not to
dispute Danish sovereignty over Greenland.

[173] In the early part of this judgment, it has been recalled that when the King of
Denmark was obliged to renounce, in favour of the King of Sweden, his kingdom of
Norway, Article 4 of the Treaty of Kiel of January 14th, 1814, excepted from that
renunciation Greenland, the Faroes and Iceland.

[174] In order to effect the settlement - which was mainly of a financial character -
rendered necessary by the separation of Norway from Denmark, Norwegian
commissioners were appointed at the end of 1814 to confer with Danish
commissioners. The solution of the questions to which the separation of the two
countries gave rise was not easy. When, as early as 1816, Denmark began to fear that
the conferences held at Copenhagen between the Danish and Norwegian
commissioners would prove fruitless, the Danish Cabinet approached the Allied
Powers. This step led to a Conference between these Powers which held its first
meetings in London in July and August 1818. On the basis of a report of this
Conference, the Congress of Aix-la-Chapelle decided, on November 13th, 1818, to
make representations to the King of Sweden and Norway in order to ensure that the
terms of the Treaty of Kiel were [p65] complied with so far as regards the portion of
the debt of the Danish-Norwegian monarchy for which Norway was to be responsible.

[175] It was then that the King of Sweden and Norway reverted to the question of the
former Norwegian possessions of which Greenland was one.

[176] The Norwegian commissioner at Copenhagen - M. Hoist - was instructed on

January 7th, 1819, formally to claim the restitution of the Faroes, Iceland and
Greenland "as being possessions which had formerly belonged to the Kingdom of
Norway". The instructions given to M. Hoist referred to the fact that the
"extraordinary Storting of 1814 had, in a most humble address, petitioned His Majesty
to take the necessary steps to secure the restitution to the Kingdom of Norway of the
Faroe Islands, Iceland and Greenland, pos-sessions which for centuries were an
integral part of that kingdom". This claim was presented to the Conference at
Copenhagen on February 5th, 1819, and met with a point blank refusal on the Danish
side. On learning of this refusal, the Minister for Foreign Affairs of Sweden and
Norway, on February 23rd, 1819, authorized the Norwegian commissioner at
Copenhagen to withdraw the claim. M. Hoist did so in a declaration which he made
on March 27th, 1819, and the original French text of which should be given here:

"II est notoire que le Prince Chrtien Frdric [FN1] a provoqu de la part de la
Reprsentation Nationale de la Norvge assemble Eidsvold, une protestation
formelle contre le. Trait de Kiel, qui assurait au Roi [FN2] la Souverainet sur la
Norvge. Une constitution des plus librales tant intervenue, la Reprsentation
Rationale ayant, par une lection libre et spontane, offert au Roi la Couronne de
Norvge sous la condition expresse d'accepter la nouvelle constitution; et le Roi
ayant donn Son assentiment, et tant par l devenu Roi constitutionnel, au lieu de
Souverain absolu, comme II devait l'tre conformment au Trait de Kiel, il en est
rsult pour S. M. l'obligation d'avoir gard aux adresses que Lui prsente le Stor-
Thing dans les formes prescrites par la Loi. Or, le Stor-Thing s'tant adress au Roi
mon Auguste Souverain - l'effet d'engager S. M. faire les dmarches ncessaires
pour que les les de Faeroe, l'Islande et la Groenlande fussent restitues par le
Dannemarc pour tre runies au Royaume de Norvge: le Roi n'a pu Se dispenser de
satisfaire, sur ce point, aux vux exprims par l'assemble nationale. En remplissant
ce devoir selon la teneur littrale de l'adresse du Stor-Thing, l'intention n'a jamais t
de lier cette question celle de la liquidation en gnral, ni d'entraver en aucune
manire la marche rgulire d'une ngociation que S. M. dsire sincrement de voir
termine la satisfaction commune des [p66] deux parties intresses. Lorsqu'il est
question de la sparation politique de deux Etats, dont les intrts se sont trouvs
amalgams par une union de plusieurs sicles, il serait impossible d'viter des
sacrifices de part et d'autre, et le Roi Se borne ,en cette occasion d'noncer Sa
conviction certaine que, dans le cours de cette liquidation et lorsqu'il s'agira de
balancer les ressources respectives des deux Etats, on pourra facilement tomber
d'accord sur les moyens de compenser la perte qu'a faite en cette occasion la Norvge
de ses colonies dans la mer du Nord."

--------------------------------------------------------------------------------------------------------
-------------
[FN1] The Governor of Norway.
[FN2] The King of Sweden.
--------------------------------------------------------------------------------------------------------
-------------

[177] The last sentence of this declaration brings out not only the financial element in
the claim for the restitution of the possessions in question but also, and above all, the
fact that the claim was definitely withdrawn.

[178] Moreover, in March 1819, the Minister for Foreign Affairs of Sweden and
Norway communicated to the British Minister at Stockholm a request for the
mediation of the Prince Regent of Great Britain in the matter in regard to which the
Cabinets of Stockholm and Copenhagen were still at variance, and said that the King
of Sweden and Norway abandoned on behalf of Norway all claim to the Faroe Islands,
Iceland and Greenland.

[179] In a note dated May 28th, 1819, the Minister for Foreign Affairs of Sweden and
Norway once more wrote to the British Minister at Stockholm that the King of
Sweden and Norway agreed to "renounce in favour of the Crown of Denmark .... the
claims of this country [Norway] in respect of Iceland, Greenland and the Faroe
Islands".

[180] This renunciation found expression in the conclusions reached by a conference

at Stockholm. With the British Minister in that capital acting as mediator, the
conference prepared for signature by the King of Denmark and by the King of Sweden
and Norway, in his capacity as King of Norway, the Convention of September 1st,
1819, which finally settled the difficulties.

[181] Article 9 of this Convention [FN1] states that "everything in connection with the
Treaty of Kiel in general and with its [p67] sixth article [FN1] [the financial article] in
particular" is completely settled. There can be no doubt that the words "everything in
connection with the Treaty of Kiel in general" cover also Article 4 of the Treaty which
mentions Greenland and that they are incompatible with the Norwegian argument to
the effect that the Convention of September 1st, 1819, only relates to the financial
settlement between Denmark and Norway. In this connection, it may be observed that
it is true that the first draft convention drawn up by the Danish Commissioners at
Copenhagen on July 16th, 1819, including Article VI of that draft, which corresponds
to Article 9 of the Convention of September 1st, 1819, only related to financial
matters. Article VI of this draft ran as follows: "Everything in connection with the
execution of Article 6 [the financial article] of the Treaty of Kiel being regarded as
settled by the above points...." Article VI of the Danish draft was however amended
on August 23rd, 1819, when a new draft was submitted to the Stockholm Conference
by the Danish plenipotentiary and the British mediator. This second draft extended the
scope of Article VI of the original Danish draft of July 16th, 1819, so that it now said
that not only Article 6 of the Treaty of Kiel was to be regarded as completely settled,
but "Everything in connection with the Treaty of Kiel in general and with its sixth
article in particular". This change, which was maintained in Article 9 of the
Convention, finally disposes not only of [p68] the financial questions dealt with in
Article 6 of the Treaty of Kiel but of all questions mentioned in the Treaty, and
therefore also of the territorial questions in Article 4, which leaves Greenland to
Denmark. As has already been explained, "Greenland" in Article 4 of the Treaty of
Kiel means the whole of Greenland.

--------------------------------------------------------------------------------------------------------
-------------
[FN1] This Article runs as follows :
"Article neuf. - Tout ce qui concerne le Trait de Kiel en gnral, et nommment Son
Sixime Article, tant ainsi envisag comme entire-ment rgl, Sa Majest le Roi de
Sude et de Norvge, et Sa Majest le Roi de Dannemarc dclarent qu'aucun payment
ultrieur, hormis ce qui est stipul actuellement, ne sera soit titre dudit Trait, soit
pour cause de l'ancienne Union entre la Norvge et le Dannemarc, exig de part et
d'autre; ni par le Gouvernement Norvgien du Gouverne-ment Danois ou des Sujets
Danois; ni par le Gouvernement Danois du Gouvernement Norvgien ou des Sujets
Norvgiens; de mme qu'au-cune prtention, qui, ce titre, ou pour cette cause, a pu
tre avance jusqu' prsent des deux cts, ne sera dsormais prise en considra- .
tion ou mise en discussion, qu'en tant qu'elle s'accorde avec les termes, et les principes
de cette Convention, qui annulle de fait et de droit toute redevance ultrieure de part et
d'autre."
--------------------------------------------------------------------------------------------------------
-------------

--------------------------------------------------------------------------------------------------------
-------------
[FN1] Translation as printed in the "Annual Register" for 1814:
"Article VI. As the whole debt of the Danish Monarchy is contracted, as well upon
Norway as the other parts of the kingdom, so his Majesty the King of Sweden binds
himself, as Sovereign of Norway, to be responsible for a part of that debt,
proportioned to the population and revenue of Norway.
By public debt is to be understood that which has been contracted by the Danish
Government, both at home and abroad. The latter consists of Royal and State
obligations, bankbills, and paper money formerly issued under Royal authority, and
now circulating in both kingdoms.
An exact account of this debt, such as it was on the 1st of January 1814, shall be taken
by Commissioners appointed to that effect by both Crowns, and shall be calculated
upon a just division of the population and revenues of the kingdoms of Norway and
Denmark. These Commissioners shall meet at Copenhagen, within one month after
the exchange of the ratification of this treaty, and shall bring this affair to a conclusion
as speedily as possible, and at least before the expiration of the present year; with this
understanding, however, that the King of Sweden, as Sovereign of Norway, shall be
responsible for no other portion of the debt contracted by Denmark, than that for
which Norway was liable before its separation."
--------------------------------------------------------------------------------------------------------
-------------

[182] The Court holds that, in consequence of the various undertakings resulting from
the separation of Norway and Denmark and culminating in Article 9 of the
Convention of September 1st, 1819, Norway has recognized Danish sovereignty over
the whole of Greenland and consequently cannot proceed to the occupation of any
part thereof.

[183] 2. A second series of undertakings by Norway, recognizing Danish sovereignty

over Greenland, is afforded by various bilateral agreements concluded by Norway
with Denmark, and by various multilateral agreements to which both Denmark and
Norway were contracting Parties, in which Greenland has been described as a Danish
colony or as forming part of Denmark or in which Denmark has been allowed to
exclude Greenland from the operation of the agreement.

[184] The first of these agreements is the Commercial Treaty concluded between
Denmark and the United Kingdoms of Sweden and Norway on November 2nd, 1826,
a Treaty for which provision was made in Article 23 of the Treaty of Kiel. Article 5 of
that Treaty reads as follows: "The respective colonies of the two High Contracting
Parties, including in the case of Denmark, Greenland, Iceland, and the Faroe Isles,
shall be specially excepted from the provisions of the four preceding articles, which
shall only be applicable to the Kingdom of Denmark, the Duchies of Slesvig, Holstein
and Lauenbourg of the one part, and to the Kingdoms of Sweden and Norway, of the
other part."

[185] Among more modern agreements may be quoted, as examples, the stipulations
in the Universal Postal Conventions of 1920, 1924 and 1929, which say that : "The
following shall be considered as belonging to the Universal Postal Union: .... (c) the
Faroe Isles and Greenland, as being part of Denmark."

[186] It has already been said that when the Treaty of 1826 speaks of "Greenland",
this can only denote Greenland in the sense, for example, of Article 4 of the Treaty of
Kiel, i.e. the whole of Greenland. The same applies to the Danish-Norwegian
Agreements, referred to above, which followed the Treaty of 1826. In accepting these
bilateral and multilateral agreements as binding upon herself, Norway reaffirmed
[p69] that she recognized the whole of Greenland as Danish; and thereby she has
debarred herself from contesting Danish sovereignty over the whole of Greenland,
and, in consequence, from proceeding to occupy any part of it.

[187] 3. In addition to the engagements dealt with above, the Ihlen declaration, viz.
the reply given by M. Ihlen, the Norwegian Minister for Foreign Affairs, to the
Danish Minister on July 22nd, 1919, must also be considered.

[188] This declaration by M. Ihlen has been relied on by Counsel for Denmark as a
recognition of an existing Danish sovereignty in Greenland. The Court is unable to
accept this point of view. A careful examination of the words used and of the
circumstances in which they were used, as well as of the subsequent developments,
shows that M. Ihlen cannot have meant to be giving then and there a definitive
recognition of Danish sovereignty over Greenland, and shows also that he cannot have
been understood by the Danish Government at the time as having done so. In the text
of M. Ihlen's minute, submitted by the Norwegian Government, which has not been
disputed by the Danish Government, the phrase used by M. Ihlen is couched in the
future tense: "ne fera pas de difficults" ; he had been informed that it was at the
Peace Conference that the Danish Government intended to bring up the question: and
two years later - when assurances had been received from the Principal Allied Powers
- the Danish Government made a further application to the Norwegian Government to
obtain the recognition which they desired of Danish sovereignty over all Greenland.

[189] Nevertheless, the point which must now be considered is whether the Ihlen
declaration - even if not constituting a definitive recognition of Danish sovereignty -
did not constitute an engagement obliging Norway to refrain from occupying any part
of Greenland.

[190] The Danish request and M. Ihlen's reply were recorded by him in a minute,
worded as follows [FN1]:

"I. The Danish Minister informed me today that his Government has heard from Paris
that the question of Spitzbergen will be examined by a Commission of four members
(American, British, French, Italian). If the Danish Government is questioned by this
Commission, it is prepared to reply that Denmark has no interests in Spitzbergen, and
that it has no reason to oppose the [p70] wishes of Norway in regard to the settlement
of this question.
Furthermore, the Danish Minister made the following statement:
The Danish Government has for some years past been anxious to obtain the
recognition of all the interested Powers of Denmark's sovereignty over the whole of
Greenland, and it proposes to place this question before the above-mentioned
Committee at the same time. During the negotiations with the U.S.A. over the cession
of the Danish West Indies, the Danish Government raised this question in so far as
concerns recognition by the Government of the U.S.A., and it succeeded in inducing
the latter to agree that, concurrently with the conclusion of a convention regarding the
cession of the said islands, it would make a declaration to the effect that the
Government of the U.S.A. would not object to the Danish Government extending their
political and economic interests to the whole of Greenland.
The Danish Government is confident (he added) that the Norwegian Government
will not make any difficulties in the settlement of this question.
I replied that the question would be examined.
14/7 - 19 Ih."
"II. To-day I informed the Danish Minister that the Norwegian Government would not
make any difficulties in the settlement of this question.
22/7 - 19 Ih."

--------------------------------------------------------------------------------------------------------
-------------
[FN1] Translation from a French text supplied by Norway.
--------------------------------------------------------------------------------------------------------
-------------

[191] The incident has, therefore, reference, first to the attitude to be observed by
Denmark before the Committee of the Peace Conference at Paris in regard to
Spitzbergen, this attitude being that Denmark would not "oppose the wishes of
Norway in regard to the settlement of this question"; as is known, these wishes related
to the sovereignty over Spitzbergen. Secondly, the request showed that "the Danish
Government was confident that the Norwegian Government would not make any
difficulty" in the settlement of the Greenland question; the aims that Denmark had in
view in regard to the last-named island were to secure the "recognition by all the
Powers concerned of Danish sovereignty over the whole of Greenland", and that there
should be no opposition "to the Danish Government extending their political and
economic interests to the whole of Greenland". It is clear from the relevant Danish
documents which preceded the Danish Minister's demarche at Christiania on July
14th, 1919, that the Danish attitude in the Spitzbergen question and the Norwegian
attitude in the Greenland question were regarded in Denmark as interdependent, and
this interdependence appears to be reflected also in M. Ihlen's minute of the interview.
Even if this interdependence-which, in view of the affirmative reply of the Norwegian
Government, in whose name the Minister for Foreign Affairs was speaking, would
have created a bilateral engagement - is not held to have been established, it can
hardly [p71] be denied that what Denmark was asking of Norway ("not to make any
difficulties in the settlement of the [Greenland] question") was equivalent to what she
was indicating her readiness to concede in the Spitzbergen question (to refrain from
opposing "the wishes of Norway in regard to the settlement of this question"). What
Denmark desired to obtain from Norway was that the latter should do nothing to
obstruct the Danish plans in regard to Greenland. The declaration which the Minister
for Foreign Affairs gave on July 22nd, 1919, on behalf of the Norwegian Government,
was definitely affirmative : "I told the Danish Minister today that the Norwegian
Government would not make any difficulty in the settlement of this question."

[192] The Court considers it beyond all dispute that a reply of this nature given by the
Minister for Foreign Affairs on behalf of his Government in response to a request by
the diplomatic representative of a foreign Power, in regard to a question falling within
his province, is binding upon the country to which the Minister belongs.

[193] Norway has objected that the Danish Government's intention to extend the
monopoly rgime to the whole of Greenland was not mentioned in the Danish request
of July 14th, 1919, as is alleged to have been done at a later date in the
communications addressed to the interested Powers in 1920 and 1921; and it is argued
that if the Norwegian Government had been warned of this intention, the declaration
of the Minister for Foreign Affairs would have been in the negative; and that, in
consequence, the declaration, though unconditional and definitive in form, cannot be
relied on against Norway.

[194] The Court cannot admit this objection. It seems difficult to believe that Norway
could not have foreseen the extension of the monopoly, in view of the fact that the
United States of America, which had received in 1915 a request similar to that made
to Norway on July 14th, 1919, had understood perfectly well that the Danish plans in
regard to the uncolonized parts of Greenland involved an extension of the monopoly
rgime - although this was not mentioned in the Danish request at Washington - and
had for that very reason at first demanded the maintenance of the "open door". It is all
the more difficult for the Court to accept the Norwegian argument on this point
because the monopoly, in Greenland, is an institution which traces its origin to the
Dano-Norwegian administration in the XVIIIth century. It is also noteworthy that
Norway has adduced a document of an official character, dated November 3rd, 1916
(viz., the letter from the Danish Minister of the Interior (Directorate of Greenland
Colonies) to the Parliamentary Committee for the Danish West Indies), from which it
appears that the Danish administration was at that time [p72] contemplating the
application of the rgime of exclusion to the whole area of Greenland. The word
"exclusion" is more correct in this context than "monopoly", but this in no way affects
the argument.

[195] From the foregoing, it results that the Court is unable to regard the Ihlen
declaration of July 22nd, 1919, otherwise than as unconditional and definitive.

[196] The standpoint adopted by Norway led her in 1921 to refuse a written
confirmation of the Ihlen declaration, when such confirmation was requested by
Denmark in the note from her Minister at Christiania on January 18th, 1921.

[197] Thus, after the issue by Denmark of the Decree of May 10th, 1921, which
introduced the rgime of exclusion for the whole of Greenland, M. Rstad, the
Minister for Foreign Affairs, informed the Danish Minister at Christiania, unofficially,
on July 20th, 1921, that "the Norwegian Government has not recognized and cannot
consent to recognize an extension of Danish sovereignty over Greenland which would
involve a corresponding extension of the Danish monopoly, since the result would be
the extinction of the economic activities, and particularly the hunting and fishing
operations hitherto pursued without hindrance by Norwegians in the parts of
Greenland and in the Greenland waters in question"; this was confirmed in the official
Norwegian note of November 2nd, 1921, which has been referred to earlier in this
judgment. The rgime of exclusion, which - according to the Norwegian
Government's argument - could not have been foreseen by it, was sufficient to justify -
according to such argument - the change in its attitude.

[198] It follows from what has already been said that the Court is unable to adopt this
reasoning.

[199] The Court readily understands that Norway should feel concern for the interests
of the Norwegian hunters and fishermen on the East coast of Greenland ; but it cannot
forget, in this connection, that as early as December 1921, Denmark announced her
willingness to do everything in her power to make arrangements to safeguard
Norwegian subjects against any loss they might incur as a result of the Decree of May
10th, 1921 (letter from the Danish Minister at Christiania dated December 19th, 1921,
to the Norwegian Minister for Foreign Affairs). The Convention of July 9th, 1924,
was a confirmation of Denmark's friendly disposition in respect of these Norwegian
hunting and fishing interests.

[200] What the Court cannot regard as being in accordance with the undertaking of
July 22nd, 1919, is the endeavour to replace an unconditional and definitive
undertaking by one which was subject to reservations : and what it is even more
difficult for the Court to admit is that, notwithstanding the undertaking of July 22nd,
1919, by which she promised to refrain [p73] from making difficulties in the
settlement of the Greenland question, Norway should have stipulated that "Eastern
Greenland must be Norwegian". This pretension was already apparent at the end of a
letter of January 12th, 1923, from the Norwegian Minister at Copenhagen to the
Danish Minister for Foreign Affairs; and it was enunciated very definitely on
September 28th, 1923, in the minutes of the sixth meeting of the Conference which
drew up the Convention of July 9th, 1924, and again in the Protocol signed on January
28th, 1924, referred to above.

[201] The Court is unable to read into the words of the Ihlen declaration "in the
settlement of this question" (i.e. the Greenland question) a condition which would
render the promise to refrain from making any difficulties inoperative should a
settlement not be reached. The promise was unconditional and definitive. It was so
understood by the Norwegian Minister for Foreign Affairs when he told the Danish
Minister at Christiania - on November 7th, 1919, that "it was a pleasure to Norway to
recognize Danish sovereignty over Greenland" (dispatch from the Danish Minister at
Christiania to the Danish Minister for Foreign Affairs of November 8th, 1919). It was
also in the same sense that the Danish Minister at Christiania had understood the Ihlen
declaration, when he informed the Danish Minister for Foreign Affairs on July 22nd,
1919, that M. Ihlen had told him "that the plans of the Royal Government in regard to
the sovereignty of Denmark over the whole of Greenland would not encounter any
difficulties on the part of Norway".

[202] It follows that, as a result of the undertaking involved in the Ihlen declaration of
July 22nd, 1919, Norway is under an obligation to refrain from contesting Danish
sovereignty over Greenland as a whole, and a fortiori to refrain from occupying a part
of Greenland.

[203] Denmark has maintained that the Convention of July 9th, 1924, already referred
to above, excludes any right on the part of Norway to occupy a part of Greenland.

[204] In this connection it should be noted that when Norway initiated negotiations in
1923, on the question of Greenland, the negotiations were intended to cover the whole
problem of Greenland, and primarily the legal status of the eastern coast. But when it
was found impossible to reconcile the Danish theory of sovereignty and the
Norwegian theory of a terra nullius, it became necessary to confine the negotiations to
an arrangement on certain matters which it was possible to regulate, while leaving the
legal status of the uncolonized [p74] part of the island undefined. The matters in
question were the right of sojourn, of taking possession of land for user, the right of
hunting and fishing and of establishing telegraph stations and other installations in
Eastern Greenland. These were interests which Norway was, as is known, much
concerned to uphold. In order to make it quite clear that the Convention only covered
a limited part of the whole question of Greenland, the Parties exchanged identic notes,
on the same day as the signature of the Convention, declaring that each reserved its
fundamental standpoint on questions concerning Greenland not dealt with in the
Convention, so that nothing was prejudged, nothing abandoned or lost thereby. The
question of the sovereignty and that of the terra nullius - to mention that point alone -
were thus left entirely outside the Convention of July 9th, 1924, and the Court finds
that neither Denmark nor Norway can derive support from the Convention for their
fundamental standpoints on the legal status of the territory covered by the Convention:
viz., Danish sovereignty, or terra nullius, respectively. And, in truth, Norway has
never argued that she was entitled to derive any such argument from the Convention.

[205] Finally, Denmark has maintained that, under certain provisions of the Covenant
of the League of Nations, of the General Act of conciliation, judicial settlement and
arbitration of 1928 and of conventions between Denmark and Norway for the pacific
settlement of disputes, Norway is likewise bound to abstain from occupying any part
of Greenland; it is also maintained that the same result ensues from two agreements
said to have been arrived at by the two Parties at the beginning of July 1931, in the
course of the exchange of views which preceded the occupation of July 10th, and of
which an account has been given in the early part of this judgment.

[206] In view of the conclusion reached by the Court, there is no need for these
questions to be considered.

[207] Each Party has prayed the Court to order the other Party to pay the costs in the
present case. The Court, however, holds that there is no need in the present case to
deviate from the general rule laid down in Article 64 of the Statute, namely, that each
Party will bear its own costs. [p75]

[208] FOR THESE REASONS,

The Court,
by twelve votes to two,

(1) decides that the declaration of occupation promulgated by the Norwegian

Government on July 10th, 1931, and any steps taken in this respect by that
Government, constitute a violation of the existing legal situation and are accordingly
unlawful and invalid;
(2) rejects the opposing submissions of the Norwegian Government;
(3) declares that there is no need to deviate from the general rule laid down in Article
64 of the Statute that each Party will bear its own costs.

[209] Done in French and English, the English text being authoritative, at the Peace
Palace, The Hague, this fifth day of April, one thousand nine hundred and thirty-three,
in three copies, one of which shall be placed in the archives of the Court and the
others delivered to the Agents of the Government of His Majesty the King of
Denmark and of the Government of His Majesty the King of Norway respectively.

(Signed) M. Adatci,
President.
(Signed) . Hammarskjld,
Registrar.

[210] M. Anzilotti, Judge, and M. Vogt, Judge ad hoc, declare that they are unable to
concur in the judgment given by the Court and, availing themselves of the right
conferred on them by Article 57 of the Statute, append to the judgment the dissenting
opinions which follow.

[211] MM. Schcking and Wang, Judges, whilst concurring in the judgment, have
appended thereto the observations which follow.

(Initialled) M. A.
(Initialled) A. H. [p76]

Dissenting Opinion of M. Anzilotti.

[Translation.]
[212] Being unable wholly to concur in the present judgment, and having regard to the
importance of the case and of the principles of law involved, I feel it my duty to avail
myself of my right under the Court's Statute and to indicate as briefly as possible my
standpoint in regard to this dispute.

[213] 1.- In the first place, I dissent with regard to the manner in which the question
referred to the Court has been approached.

[214] The dispute is one between Denmark and Norway regarding the sovereignty
over a territory in Eastern Greenland. Denmark's position in Greenland formed the
subject of a request addressed by the Danish Government to the Norwegian
Government in July 1919, and of a declaration on the part of the latter Government
accepted by the Danish Government. Accordingly, in my view, the first thing to be
done was to decide whether this constituted a valid agreement between the two
Governments; if so, the rule to be applied for the solution of the dispute should first
and foremost have been sought in this agreement.

[215] I am quite aware that this was not the line taken by the Parties, one of whom
desired to take advantage of the present proceedings in order to attempt to establish
his sovereignty over all Greenland, and, accordingly, had every interest in presenting
the request addressed to the Norwegian Government, and other similar overtures, in
the light of a preconceived theory, whilst it was to the other's interest to show that the
declaration made on his behalf in 1919 was devoid of any importance. That, however,
should not have prevented the Court from rectifying the position in accordance with
the principles of law and the rules of its own Statute.

[216] I speak only of the Danish request in 1919 and of the declaration made in
response thereto because, in my view, that is the only agreement between the two
countries - assuming, of course, that there was an agreement - which concerns the
question submitted to the Court. As regards the Convention of July 9th, 1924,
concerning Eastern Greenland, I hold, with the judgment, that the notes exchanged the
same day between the Danish and Norwegian Governments render it impossible to
adduce any argument from that Convention in support of the contentions of either
Party. [p77]

[217] 2. - The important point in the present proceedings is, of course, the request
made to the Norwegian Government by the Danish Government and the former's
declaration.

[218] The request addressed to the Norwegian Government was, however, only one of
several similar overtures on the part of the Danish Government addressed, from the
end of 1915 onwards, to a number of States with a view to defining and securing its
position in Greenland. It is scarcely possible rightly to appreciate the request with
which we are concerned unless we consider it in conjunction with the whole series of
overtures of which it formed part, more especially since, as we shall presently see, the
request addressed to the Norwegian Government, as a result of which the declaration
was made, reproduced the terms of a declaration obtained by the Danish Government
from another State.

[219] This is the point of view from which I shall briefly consider the overtures in
question, in regard to which I am definitely at variance with the Court. In order to
avoid repetition, I shall leave aside for the moment the request addressed to the
Norwegian Government : I shall devote special attention to that, after I have defined
the meaning and effect of the overtures made by the Danish Government to other
States.

[220] 3. - The best way of appreciating these overtures is, in my view, to allow the
documents relating to them to speak for themselves. Though the attitude adopted by
the Danish Government is, in a sense, the most important factor, the answer given by
the foreign governments must also be noted, either because it shows how the Danish
request was understood, or because the Danish Government, in accepting these
answers without observations or reservations, showed that it accepted the
interpretation placed by the other Government upon its request.

[221] It seems that the Danish Government raised the question of its sovereignty over
all Greenland for the first time in connection with the negotiations regarding the
cession of the Danish West Indies to the United States of America. We do not know
how the Danish Government first approached the American Government: a proposal
was made by the latter Government (see Danish Government's Case) which was
solely concerned with securing the principle of the open door and was not accepted by
the Danish Government.

[222] But in the memorandum handed to the Secretary of State on December 27th,
1915, the Danish Minister in Washington, after stating that "it was desirable that the
Danish Government should extend its care by the suzerainty of the State to include the
whole of Greenland", added that he had been [p78] "instructed" by his Government
"to say that the Danish Government would very much desire to receive the binding
promise of the American Government that no objection would be raised to the said
extension of the care and suzerainty of Denmark to the whole of Greenland" (Annexes
to Norwegian Government's Counter-Case, No. 38).

[223] The American Government's declaration of August 4th, 1916, is to the effect
that "the Government of the United States of America will not object to the Danish
Government extending their political and economic interest to the whole of
Greenland" (Annexes to the Danish Government's Reply, No. 170). The terms of this
declaration deviate from those of the request; but it is certain that the declaration was
construed by the Danish Government as a promise not to object to the extension of
Danish sovereignty. This emerges from several documents; but the report of the
Minister for Foreign Affairs to the King, dated August 1st, 1916 - reproduced under
.165 of the Annexes to the Danish Government's Reply - appears to me to be
absolutely decisive in this respect. In his report, the Foreign Minister says:

"Finally, it appears to me most important that the United States of America have
offered to make, simultaneously with the signature of a convention, an official
declaration to the effect that the Government of the United States of America will not
object to the Danish Government extending their sovereignty to include the whole of
Greenland...."

[224] This is especially worthy of note because, in all the overtures successively
undertaken by it, the Danish Government expressly referred to the request made to the
United States of America; the American declaration was submitted to the other
governments as a model for the declaration asked of them.

[225] The overtures to the other Powers - as I have said, I am leaving aside for the
moment the request addressed to the Norwegian Government - were only made later
and when it was no longer possible for the question to be brought before the Peace
Conference. On March 2nd, 1920, the Danish Minister for Foreign Affairs sent to the
Danish Ministers in London, Paris, Tokyo and Rome, instructions which were to serve
as a basis for overtures to the respective governments.

[226] In these instructions (Annexes to the Danish Government's Reply, No. 170),
after outlining Danish activities in Greenland since 1721, and after observing that
several parts of that country had been effectively occupied on behalf of Denmark, but
[p79] that "formal possession of Greenland as a whole had not been taken", the
Minister for Foreign Affairs goes on to say that, "having regard to Danish sentiment in
this matter and in the interest of the Eskimos, it would be desirable that the Danish
Government should be enabled to extend its care, by means of its sovereignty, over
the whole of Greenland".

[227] The instructions next describe the request made to the United States of America
and reproduce the terms of the declaration made by the American Government. They
conclude by requesting the Danish representative "to endeavour to obtain .... the
Government's .... official recognition of Danish sovereignty over all Greenland", and
they add that "the best way of obtaining such recognition from .... would, in the
Foreign Minister's opinion, be for the .... Government to make a declaration
corresponding to that made by the American Government". The import attached to
that declaration by the Danish Government has already been seen.

[228] In the note transmitted on March 16th, 1920, to the British Secretary of State for
Foreign Affairs (Annexes to the Danish Government's Reply, No. 171), we read: "I
have accordingly been instructed to submit to His Britannic Majesty's Government a
request for the official recognition of His Danish Majesty's sovereignty over the
whole of Greenland. In view of my Government's opinion, such recognition might be
given in the same way as the Government of the United States of America recognized
in 1916...."

[229] To this note was attached a memorandum which, pursuant to the instructions
received, gave an account of the historical relations between Denmark and Greenland
and set out the other considerations militating in favour of the request. The
memorandum concluded with the following paragraph:

"Danish explorers have visited practically the whole of uninhabited Greenland and
made maps of the country , but no formal occupation of the whole of Greenland has
actually taken place. In view of Danish sentiments in this matter as well as the interest
of the Esquimau population, it would be desirable if the Danish Government could
extend its activity by proclaiming its sovereignty over the entire territory of
Greenland."

[230] The notes to the Italian Government, on March 17th, 1920 (Annexes to the
Danish Government's Reply, . 173), to the French Government, on March 20th,
1920 (ib., . 174), to the Japanese Government, on May 12th, 1920 (ib., . 175), and
to the Swedish Government, on January 13th, 1921 (ib., . 177), together with the
documents annexed to them, though containing some differences in wording, all
reproduce the same essential ideas, that is to say that, ever since the beginning [p80]
of the XVIIIth century, Denmark has been founding colonies in Greenland, but that
formal possession has not been taken of the whole of Greenland in the name of the
Crown of Denmark ; that it is desirable that Denmark should be enabled to extend her
sovereignty and, thereby, her care to the whole of Greenland; finally, that the
recognition of Danish sovereignty might take the form of a declaration similar to that
made by the United States of America, the terms of which are given in each case.

[231] On two occasions, however, the Danish Government deviated from this
standpoint and contended that the recognition sought was in respect of a situation
already existing and long since established: this it did, first, in the note which the
Danish Minister in London, on the basis of the instructions received by him from the
Foreign Minister (Annexes to the Danish Government's Reply, . 176), addressed to
the British Government on July 20th, 1920 (Danish Government's Case), and
secondly, in the note addressed by the Danish Minister at Christiania to the
Norwegian Government on December 19th, 1921 (Annexes to Danish Government's
Case, . 91). It is therefore necessary to see in what circumstances this attitude was
adopted.

[232] The note of July 20th, 1920, to the British Government is a reply to that
Government's note of May 19th (Danish Government's Case): in the latter note, the
Foreign Office stated that they were prepared officially to recognize Danish
sovereignty over Greenland, provided that Denmark gave the British Empire a right of
preemption in the event of the sale of the island. It was to avoid this condition, which
had met with determined opposition from the United States of America, that the
Danish Government adopted the attitude expressed in the note in question.

[233] As regards the note of December 19th, 1921, that document was in reply to the
note of November 2nd, in which the Norwegian Minister for Foreign Affairs informed
the Danish Government that the Norwegian Government had not recognized, and
could not consent to recognize, an extension of Danish sovereignty over Greenland,
involving a corresponding extension of the Monopoly, and the resulting extinction of
the fishing and hunting operations hitherto conducted by Norwegians in the parts of
Greenland in question and in the adjacent waters.

[234] It should be observed that the Danish Government affirmed the preexistence of
its sovereignty over all Greenland when it was necessary to do this in order to refute
claims which it was unable or unwilling to admit; apart from such cases, it confined
itself to asking for a recognition of an extension of its [p81] sovereignty. It is therefore
difficult to consider the two notes of July 20th, 1920, and December 19th, 1921, as
representing the standpoint adopted by the Danish Government in approaching foreign
governments in regard to its position in Greenland ; to do so would indeed set these
two documents in manifest contradiction with the direct, definite, and concordant
statements which appear in all the other documents.

[235] The only conclusion which I find it possible to derive from the two notes in
question is that, at that moment, the Danish Government was perfectly aware of the
possibility of adopting either attitude: viz. that of affirming an already existing
sovereignty, and requesting its recognition, or that of urging reasons in support of an
extension of its sovereignty, and requesting the recognition of this extension. It
elected to adopt the latter attitude and only resorted to the former in the course of a
discussion and to avoid conditions or limitations which it felt unable to accept.

[236] The majority of the replies from the interested States show that it was, in truth,
in that sense that the governments understood the request made to them by the Danish
Government, and that what they agreed to recognize was the extension of Danish
sovereignty over the whole of Greenland.

[237] Thus, the French reply, dated March 31st, 1920, says that "the Government of
the Republic will not object to the Danish Government extending its sovereignty over
the whole of Greenland in the manner indicated in the American note of August 4th,
1916" (Danish Case).

[238] The Japanese reply, dated June 24th, 1920, is worded as follows: "I have the
further honour to declare herewith on behalf of the Imperial Government that they
have no objection to the Danish Government extending their political and economic
interests to the whole of Greenland." (ib.)

[239] The Italian Government's reply, dated June 29th, 1920, states that "the Royal
Government will have no difficulty in recognizing the sovereignty of Denmark over
Greenland" (ib.). In my opinion, it is beyond all doubt that what is contemplated here
is a future recognition, i.e. a recognition which will not be refused whenever Danish
sovereignty has been extended to the whole of Greenland.

[240] The British and Swedish replies alone - the former, no doubt, as a result of the
Danish note of July 20th, 1920 - appear to contemplate a recognition independent of
any future events : the British reply, dated September 6th, 1920, states that "His
Majesty's Government recognize His Danish Majesty's [p82] sovereignty over
Greenland" (Danish Case) ; and the Swedish reply, dated January 28th, 1921, declares
that ".... His Majesty's Government, as from this date, has recognized the sovereignty
of Denmark over the whole of Greenland" (ib.). But there is nothing in these replies to
indicate that these Governments believed that they were confirming an already
existing sovereignty. The fact that the British Government felt justified in appending
to its recognition a reservation in regard to its right to be consulted in case the Danish
Government should contemplate alienating this territory, appears rather to point to an
opposite conclusion.

[241] I am therefore of opinion that, if one reads the documents as they stand, giving
the words the sense which they naturally bear in the context, one is inevitably led to
the conclusion that the Danish Government was making a distinction between the
colonized districts of Greenland and the other parts of the country, and that what it
was requesting from the States whom it approached was, not the recognition of an
already existing sovereignty, but the recognition of the right to extend its sovereignty
to the whole of Greenland.

[242] 4. - Such, in my opinion, is the conclusion which emerges from the text of the
documents.

[243] It remains to be seen whether this conclusion is inexplicable or inconsistent,

having regard to the position of Denmark in Greenland at the moment when the
overtures were made. It is in this connection that the historical question of Danish
sovereignty in Greenland arises in the present suit; a literal interpretation fails where it
would lead to absurd or inconsistent results.

[244] Two facts in particular merit attention.

[245] First, the existence of an ancient claim to sovereignty over the country known as
Greenland, a claim unconnected either with the extent of the colonization of the
country, or even with a more or less accurate geographical demarcation thereof.

[246] It is agreed that the origin of this claim resides in the authority which the ancient
kings of Norway had acquired over the political organization which inhabitants of
Iceland, of Norwegian origin, had founded at the end of the Xth century in South-
West Greenland and which, at first independent, did homage to the King of Norway in
1261 and became tributary to the Kingdom of Norway. This species of suzerainty
fitted in with the notion of an exclusive dominion of the kings of Norway over the
seas and lands of the North and afforded the basis for a claim which was neither
limited to the territory occupied by the tributary State nor subject to the condition that
that State should continue to exist. [p83]

[247] It was, no doubt, as a consequence of this claim that, some two centuries after
the political organization in Greenland had been destroyed by the Eskimos, and
practically all communication with Greenland had ceased, the kings of the Danish-
Norwegian Union announced the intention of re-establishing the old relations with
"the Country of Greenland belonging to Our Kingdom of Norway"; or described
themselves as "hereditary sovereigns of Greenland"; or spoke of "Our Country of
Greenland", etc.

[248] Again, this historic claim manifests itself in legislation or in treaties relating to1
Greenland as a whole. The animus possidendi, of which so much has been said in
these proceedings, is, at bottom, nothing else than the old claim on the basis of which,
first the kings of Denmark and Norway and later the kings of Denmark, did not
hesitate to act as sovereigns of Greenland when opportunity offered itself.

[249] The other fact deserving of attention is the disproportion between the claim to
sovereignty over all Greenland and the effective exercise of that sovereignty.

[250] I am prepared to admit that the Danish Government has proved that, on some
occasions, laws have been promulgated which, according to their meaning and tenour,
were not limited to the colonized parts of Greenland; I also concede that frequently
the Danish-Norwegian Union or Denmark have acted, in relation to foreign States, as
though their sovereignty covered all parts of Greenland alike.

[251] But that is all that can be conceded to the Danish stand-point. It is undeniable
and it has not been denied - and that in my view is the essential point - that in this
respect there was a profound difference between the colonized regions of Greenland
and the remainder thereof; for, whereas in the colonies there was a regular
administration and a judicial organization, in the remainder of Greenland there were
perhaps laws in force but no authority to enforce them: in fact - and this is a
circumstance as exceptional as it is significant - no officials had even been appointed
competent to decide disputes or to apply and ensure respect for the law.

[252] For a long time, the disproportion to which I have referred was not of much
importance. This was the case not merely because the requirements of international
law were then smaller, but also, and above all, because the title to sovereignty existed
independently of its exercise: the Danish-Norwegian or Danish kings did not claim to
be sovereigns of Greenland because they exercised authority over that country ; they
exercised authority over it because they claimed to be the hereditary sovereigns of the
country. From this point of view, and having regard to the natural conditions [p84]
prevailing in Greenland, I unhesitatingly admit that Danish-Norwegian or Danish
sovereignty was manifested in a manner satisfying to requirements of international
law, in the sense that sovereignty over all Greenland was neither compromised nor
lost. It is however obvious that this position is only tenable if one postulates the
existence of a title to sovereignty antecedent to the so-called second colonization and
if the validity of that title is established.

[253] The situation however evolved in an entirely contrary direction.

[254] Historic claims to dominion over whole regions - claims which had, formerly,
played an important part in the allocation of territorial sovereignty: - lost weight and
were gradually abandoned even by the States which had relied upon them.
International law established an ever closer connection between the existence of
sovereignty and the effective exercise thereof, and States successfully disputed any
claim not accompanied by such exercise.

[255] Furthermore, the natural conditions prevailing in Greenland and their

importance changed appreciably as a result of technical improvements in navigation
which opened up to human activities a part of that country, especially the East coast,
which previously, although known, had been practically inaccessible.

[256] Accordingly, the question of Danish sovereignty over Greenland presented itself
in a new light.

[257] For, if the notion of a historical sovereignty arising from the old Norwegian
claims be discarded, Denmark's title to sovereignty over Greenland must necessarily
be sought in a taking of possession effected since 1721. But in that case it is a
question of the occupation of a terra nullius. To say that the title resides in possession
and not in occupation is a verbal quibble, for possession of a territory which formerly
belonged neither to the State possessing it nor to any other State is nothing else than
occupation considered at a moment subsequent to the original act of occupying.

[258] In short, either the so-called second colonization is the manifestation of a

preexisting sovereignty and the title to this sovereignty must be established and shown
to be valid; or else Greenland, in 1721, was a terra nullius and we have before us an
occupation which must be appraised in accordance with the rules governing
occupation.

[259] The historical development of Denmark's position in Greenland in the XIXth

century was bound to give rise to this problem. Accordingly, it is easy to understand
the anxiety which became evident with respect to parts of Greenland which [p85] had
not yet been effectively occupied. The attention of the Danish Government was
repeatedly drawn from different sides to the possibility of disputes and to the danger
of uncolonized territories in Greenland being occupied by other States. Of course
these were private opinions, though in some cases they emanated from particularly
competent sources ; it is not to be expected that the Government itself should cast
doubt upon its sovereignty before having decided what it ought to do. It should
however be noted that the Government itself was not altogether free from anxiety on
the point. I find a striking proof of this in Article 2 of the concession granted to Mr. J.
W. Tayler on June 7th, 1863, in which it is expressly stipulated that any settlement -
colony, post, mine, or similar establishment - which the concessionnaire might create
north or south of latitude 65, is to come under the sovereignty of the Danish Crown
and to be subject to the Danish laws; it is difficult to understand that in granting a
concession to a foreigner in a territory which it regards as indisputably subject to its
sovereignty, a State should concern itself with the possibility of the concessionaire
taking possession of the territory in the name of his own sovereign.

[260] Again, the fact that the Danish Government had doubts as to the soundness of
its claim to sovereignty over certain parts of Greenland is proved by the very
overtures which it made. A proceeding of this kind is explicable only when the
government which resorts to it thinks it necessary to safeguard a doubtful or unsettled
position. Accordingly it is a proceeding which, so far as I am aware, has not been
often resorted to. A single precedent has been cited: the recognition of Swiss
neutrality by Article 435 of the Treaty of Versailles. But it has been forgotten that the
purpose of that Article was not to recognize Switzerland's neutrality which no one
disputed, but something quite different: the intention was on the one hand to secure
approval of the abrogation of certain provisions affecting Swiss neutrality, and on the
other hand to place on record that the guarantees stipulated in favour of Switzerland in
1815 constituted "international obligations for the maintenance of peace", in order to
make it possible for that country to enter the League of Nations.

[261] Denmark's historical position in Greenland had thus been reconsidered in the
light of the principles of international law now in force and of the new situation
existing in fact, and there was a demand for action which would eliminate any danger
by means of the taking of effective possession of the territories not yet occupied.

[262] Accordingly, when, in 1915, the Danish Government considered that the time
had come to settle the question, it definitely took up the attitude suggested to it by the
present [p86] state of international law. Historical claims were abandoned; all the
documents point to the year 1721 as the commencement of Danish dominion in
Greenland. A definite distinction is made between the parts of Greenland of which
effective possession has been taken - in regard to which no question arises - and the
other parts of which possession has not been formally taken but over which it would
nevertheless be just and desirable that Denmark should be enabled to extend her
sovereignty. And it was in order to obtain recognition of this extension that the Danish
Government approached the governments of the States which it regarded as specially
interested.

[263] Everything fits and forms a coherent whole in the overtures made by the Danish
Government; and the conclusion which emerges from the text of the documents, far
from being inexplicable or inconsistent with the historical development of Denmark's
position in Greenland, is the clear and natural outcome thereof.

[264] 5. - Of all the overtures made by the Danish Government, the only one which
directly concerns us and with which I intend to deal hereafter is that made in July
1919 to the Norwegian Government.

[265] First and foremost, this overture differs from the others by reason of the
circumstances in which it was made. The request to the United States of America was
made in connection with the cession of the Danish West Indies, and its aim was to
obtain a declaration which would accompany the signature of the Convention. The
overtures to the other Powers were made when it was impossible for the Greenland
question to be settled by the Peace Conference; their object was to secure declarations
which would take the place of a settlement by the Conference and would close the
question as between Denmark and the State approached.

[266] On the other hand, it was precisely with a view to submitting this question to the
Peace Conference, and having it settled by the Committee which was dealing with
Spitzbergen, that the Danish Government approached the Norwegian Government .

[267] In a letter dated at Copenhagen July 12th, 1919 (see Annexes to the Danish
Case, No. 84), the Minister for Foreign Affairs instructed the Danish Minister at
Christiania to inform the Norwegian Minister for Foreign Affairs that the question of
Spitzbergen was shortly to be examined by a Committee of the Peace Conference,
composed of one American, one British, one French and one Italian delegate, and that
there was every reason to believe that the Danish Government would in the near
future receive an invitation to bring its point of view on [p87] this question to the
notice of the Committee. "The Danish Government" - says the letter - "will be
prepared to renew before this Committee the unofficial assurance already given to the
Norwegian Government regarding the attitude of Denmark in the question of
Spitzbergen, namely, that Denmark, having no special interests at stake in
Spitzbergen, would raise no objection to the claims of Norway."

[268] Then come two paragraphs in which the object of the request to be made to the
Norwegian Minister for Foreign Affairs is set forth in the following terms:
"Nevertheless, I would ask you in the course of the conversation to bring out clearly
that the Danish Government has, for a certain number of years, been anxious to obtain
the recognition by all the interested Powers of Denmark's sovereignty over the whole
of Greenland, and that it intends to place that question before the above-mentioned
Committee. In the course of the negotiations with the United States of America
concerning the cession of the Danish West Indies, the Danish Government has already
raised the question of such a recognition by the United States, and had succeeded in
obtaining from the latter, simultaneously with the conclusion of the Convention for
the cession of the islands in question, a declaration to the effect that the United States
of America would not object to the Danish Government extending its political and
economic interests to the whole of Greenland.
I would ask you to explain to the Norwegian Minister for Foreign Affairs that the
Danish Government is confident that it will meet with no difficulties on the part of the
Norwegian Government with regard to such an extension."

[269] Two days later, the Danish Minister at Christiania had the conversation, which
he had been instructed to seek, with the Norwegian Minister for Foreign Affairs, M.
Ihlen. The subject of this conversation was recorded by M. Ihlen in a minute, a French
translation of which is given under No. 205 of the Annexes to the Norwegian
Government's Rejoinder: neither the accuracy of the minute, nor that of the
translation, has been challenged.

[270] The minute was to the following effect:

"The Danish Minister today informed me that his Government had heard from Paris
that the Spitzbergen question would be dealt with by a Committee of four members
(American, British, French, and Italian). Should this Committee question the Danish
Government, the latter would be prepared to answer that Denmark had no interests in
Spitzbergen and that Denmark had no reason to oppose Norway's wishes in regard to
the settlement of the question.
Further, the Danish Minister informed me of the following:
The Danish Government has for several years been concerned with the question of
obtaining recognition of Danish sovereignty over all Greenland from all the Powers
concerned, and they intend [p88] simultaneously to submit this question to the
Committee. In the course of the negotiations with the United States of America
concerning the cession of the Danish West Indies, the Danish Government raised this
question in so far as concerned recognition by the United States Government, and it
obtained from the latter, simultaneously with the conclusion of the Convention
regarding the cession of the islands referred to, a declaration to the effect that the
United States would not raise any objection to the extension by the Danish
Government of its political and economic interests to the whole of Greenland.
The Danish Government confidently expected that the Norwegian Government would
make no difficulty in connection with the settlement of this matter. I replied that the
question would be considered."

[271] The reply was given on July 22nd, eight days later; it is recorded as follows in a
further minute by M. Ihlen:

"I today informed the Danish Minister that the Norwegian Government would make
no difficulty in connection with the settlement of this matter."

[272] The Danish Minister informed his Government of the reply in a despatch, of the
same date, in which he stated that M. Ihlen, Minister for Foreign Affairs, had
informed him on that day that "the plans of the Royal Government concerning Danish
sovereignty over the whole of Greenland - mentioned in your despatch of 12th instant
- will meet with no difficulty on the part of Norway" (Annexes to the Danish Case, .
85).

[273] The above are the principal documents relating to the Danish Government's
request to the Norwegian Government, and to the latter's reply.

[274] In this connection two questions arise:

(a) Did the two Governments agree upon anything ? and upon what?
(b) If so, was the agreement valid ?

[275] 6. - There appears no doubt that, in the opinion of the Danish Government, there
was a connection between the attitude which that Government was prepared to adopt
in the Spitzbergen question, and that which it was asking the Norwegian Government
to adopt in the Greenland question.

[276] I do not, however, think one can go so far as to say - as is now contended by the
Danish Government - that there was a regular reciprocal do ut des contract, in which
the declaration that the last-named Government was prepared to make-and which it
actually made before the Committee of the Peace Conference - was to constitute the
counter-part of the undertaking which it was asking Norway to give. [p89]

[277] That was it is true, the idea suggested by the Danish Minister at Paris, in his
note of July 11th, 1919 (Danish Case). But the instructions which the Danish Minister
for Foreign Affairs sent on July 12th to the Danish Minister at Christiania (see above),
and which resulted in his conversation with the Norwegian Minister for Foreign
Affairs, appear to have been conceived and drawn up in rather a different spirit. The
reason probably lies in the fact - which was recalled in the instructions - that the
Danish Government had already given the Norwegian Government an unofficial
assurance that, as Denmark had no interests contrary to those of Norway in the
Spitzbergen question, she would raise no objection to the latter's demands. There is
nothing in these instructions that suggests the idea of asking the Norwegian
Government for a counter-concession; the declaration concerning Spitzbergen, which
the Danish Government was proposing to "repeat" before the Committee, is indicated
rather as an opportunity for making an equivalent request to the Norwegian
Government. The words "nevertheless, I would ask you, in the course of the
conversation, to bring out...." convey just that idea.
[278] Everything points to the conclusion that it was in that sense that the Danish
Minister at Christiania interpreted his instructions. The minute drawn up by M. Ihlen
certainly does not convey the idea of an alleged do ut des contract; on the other hand,
if one compares this minute with the Danish instructions of July 12th, the two
documents are seen to be in complete accord with one another. I have little doubt that
the word "further" which, in M. Ihlen's minute, separates the part of the conversation
concerning Spitzbergen from the part concerning Greenland, represents exactly what
took place; for what the Danish Minister had been instructed to do was "to bring out,
in the course of the conversation", the aspirations which his Government entertained
with regard to Greenland.

[279] I therefore hold that no do ut des contract was proposed by the Danish
Government. But even were it otherwise, there is nothing to show that M. Ihlen
realized that the statement which the Norwegian Government was being asked to give
was to be the counter-part of the declaration which the Danish Government was
promising to make in regard to Spitzbergen. The request made to the Norwegian
Government is therefore, in this respect, on the same plane as those addressed to the
other Powers.

[280] This request was that the Norwegian Government should not make any
difficulties in the settlement of the Greenland question - which the Danish
Government was proposing to submit, together with that of Spitzbergen, to the
Committee of the [p90] Peace Conference. The settlement contemplated by the
Danish Government was clearly not just any settlement: it was a settlement on the
lines indicated in the Danish Minister's communication, namely, that no opposition
would be made "to the Danish Government extending its political and economic
interests to the whole of Greenland".

[281] It follows that when the Norwegian Minister for Foreign Affairs informed the
Danish Minister, on July 22nd, that "the Norwegian Government would make no
difficulty in the settlement of this matter", that signified that the Norwegian
Government would not object to the Danish Government extending its political and
economic interests to the whole of Greenland. It has already been shown (see No. 3
above) that, in the eyes of the Danish Government, "the extension of political and
economic interests" signified, at any rate in the first place, "the extension of
sovereignty". There is no reason to doubt that this was also the sense in which the
Norwegian Minister for Foreign Affairs understood the Danish request. That view is,
indeed, confirmed by the subsequent documents, which show that the Norwegian
objections were not aimed at the extension of Danish sovereignty, but at an extension
of sovereignty involving a corresponding extension of the monopoly; the extension of
sovereignty was, therefore, common ground: I would refer in particular to the private
letter from M. Rstad, Norwegian Minister for Foreign Affairs, to M. Kruse, Danish
Minister at Christiania, dated July 20th, 1921 (Annexes to the Norwegian
Government's Rejoinder, . 209), and to the Norwegian note of November 2nd of the
same year (Annexes to the Danish Government's Case, . 89).
[282] The question whether the so-called Ihlen declaration was merely a provisional
indication (Norwegian contention) or a definitive undertaking (Danish contention) has
been debated at length. In my view there has been a good deal of exaggeration on both
sides.

[283] There is no doubt that the declaration was requested, and granted, with a future
settlement in view. The Norwegian Government could, therefore, well be under the
impression that the possibility of upholding its interests, and ensuring adequate
safeguards for them, still remained open to it. It would be going beyond the intention
of the Parties - or, at any rate, of one of them - if the agreement resulting from the
Ihlen declaration were to be regarded as a complete and final settlement of the
Greenland question between Denmark and Norway. In this respect, the Norwegian
declaration differs unmistakeably from those which the Danish Government obtained
from other Powers, and which are complete in themselves. [p91]

[284] There was nevertheless, one point on which agreement had been reached
between the Parties, and which may definitively be regarded as common ground for
the future settlement. That point was not the recognition of an already-existing Danish
sovereignty: that contention of the Danish Government is refuted by all the
documents. The point on which the Danish Government's request and the Norwegian
Government's reply are in accord is that the latter Government shall not make any
difficulties in a settlement of the question which would enable the Danish
Government to extend its political and economic interests, that is to say, its
sovereignty, to the whole of Greenland. In regard to this point, the Norwegian
declaration is of the same nature as those of the other Powers. Norway doubtless
retained the possibility of upholding her interests, provided always that . she refrained
from opposing the extension of Danish sovereignty to the whole of Greenland.

[285] 7. - The outcome of all this is therefore an agreement, concluded between the
Danish Minister at Christiania, on behalf of the Danish Government, and the
Norwegian Minister for Foreign Affairs, on behalf of the Norwegian Government, by
means of purely verbal declarations.

[286] The validity of this agreement has been questioned, having regard, in the first
place, to its verbal form, and to the competence of the Minister for Foreign Affairs.

[287] As regards the form, it should be noted, to begin with, that as both Parties are
agreed as to the existence and tenor of these declarations, the question of proof does
not arise. Moreover, there does not seem to be any rule of international law requiring
that agreements of this kind must necessarily be in writing, in order to be valid.

[288] The question of the competence of the Minister for Foreign Affairs is closely
connected with the contents of the agreement in question; and these have already been
determined.
[289] No arbitral or judicial decision relating to the international competence of a
Minister for Foreign Affairs has been brought to the knowledge of the Court; nor has
this question been exhaustively treated by legal authorities. In my opinion, it must be
recognized that the constant and general practice of States has been to invest the
Minister for Foreign Affairs-the direct agent of the chief of the State - with authority
to make statements on current affairs to foreign diplomatic representatives, and in
particular to inform them as to the attitude which the government, in whose name he
speaks, will adopt in a given question. Declarations of this kind are binding upon the
State.

[290] As regards the question whether Norwegian constitutional law authorized the
Minister for Foreign Affairs to make the [p92] declaration, that is a point which, in
my opinion, does not concern the Danish Government: it was M. Ihlen's duty to
refrain from giving his reply until he had obtained any assent that might be requisite
under the Norwegian laws.

[291] A question of a totally different kind is whether the declaration of the

Norwegian Minister for Foreign Affairs was. vitiated, owing to a mistake on a
material point, i.e. because it was made in ignorance of the fact that the extension of
Danish sovereignty would involve a corresponding extension of the monopoly and of
the rgime of exclusion.

[292] It is manifest that the rgime of exclusion, by rendering hunting and fishing
operations impossible in the territorial waters and on the coasts of Greenland, might
be gravely detrimental to Norwegian interests. The documents submitted to the Court
clearly show that the difficulties raised by the Norwegian Government in 1921 - when
the Danish Government requested it to repeat in writing the verbal declaration it had
given in 1919 - were not aimed at the extension of sovereignty itself, but at the regime
of exclusion which would result from the extension of sovereignty.

[293] It should also be noted that this point - which was expressly mentioned in the
communications made to the other Powers - was not referred to in the verbal
communication made by the Danish Minister at Christiania to the Norwegian Minister
for Foreign Affairs. The allusion to economic interests, in conjunction with political
interests, could not be considered as a sufficient indication of something so specific as
the rgime of exclusion.

[294] My own opinion is that there was no mistake at all, and that the Danish
Government's silence on the so-called monopoly question, and the absence of any
observation or reservation in regard to it in M. Ihlen's reply, are easily accounted for
by the character of this overture, which was made with a future settlement in view.
But even accepting, for a moment, the supposition that M. Ihlen was mistaken as to
the results which might ensue from an extension of Danish sovereignty, it must be
admitted that this mistake was not such as to entail the nullity of the agreement. If a
mistake is pleaded it must be of an excusable character; and one can scarcely believe
that a government could be ignorant of the legitimate consequences following upon an
extension of sovereignty; I would add that, of all the governments in the world, that of
Norway was the least likely to be ignorant of the Danish methods of administration in
Greenland, or of the part played therein by the monopoly system and the rgime of
exclusion.

[295] The foregoing is merely by way of supposition, because, as I have said, I am

strongly inclined to think that there [p93] was no mistake, and that the silence
observed on this point, both by the Danish and Norwegian Governments, is
attributable to the very nature of the declarations made by the two Parties. In regard to
the other Powers, the situation of the Danish Government was different, as it was
asking them for declarations which would definitively settle the question. On the other
hand, it is easy to understand that the Norwegian Government should have thought it
unnecessary to dwell particularly on this point, since the whole question was going to
be brought up and examined on a later occasion.

[296] This leads me to the last question which arises in connection with the binding
character of the agreement of 1919; viz. whether the breaking off of the negotiations
by the Danish Government in 1921 entitled the Norwegian Government to consider
itself released from its undertaking.

[297] The agreement was concluded with a view to the settlement of the Greenland
question by the Peace Conference. This method of dealing with the question, which
was suggested by the Danish Government for reasons of expediency, does not,
however, appear to have been an essential condition of the Norwegian Government's
assent to the Danish request. The Norwegian Government has never contended that
the declaration made on its behalf to the Danish Government had lost its value
because that Government did not submit the question to the Peace Conference but,
instead of doing so, made overtures to individual Powers.

[298] On the other hand, it was essential that there should be a settlement. Norway
had only given her assent to the Danish Government's desire to extend its sovereignty
to the whole of Greenland with a view to a future settlement of the question, when she
would have an opportunity of urging her interests and demanding that they should be
equitably safeguarded. I am, accordingly, of opinion that, if the Danish Government
had really claimed to abide by the agreement of 1919 and to consider it as a final and
complete settlement of the question, and if it had refused to negotiate or to take the
Norwegian demands into consideration, it would have been acting in a sense contrary
to the agreement itself and the Norwegian Government would have been entitled to
declare itself released from its engagement.

[299] This was not, however, what occurred. The impression which, I think, emerges
from a perusal of the diplomatic correspondence between the two Governments, from
1921 onwards, is rather that the Danish Government was prepared - saving its right of
sovereignty - to do its utmost to safeguard the Norwegian hunting and fishing interests
on the eastern coast of Greenland. It is true that it was the Danish Government [p94]
that broke off the negotiations - perhaps somewhat abruptly - in 1921; but it is equally
true that these negotiations were resumed, and it is admitted that the Convention of
1924 went a long way to meet the wishes of the Norwegian Government.

[300] In these circumstances, I consider that the agreement, which was validly
concluded in 1919, has retained its force.

[301] 8.- It is consequently on the basis of that agreement which, as between the
Parties, has precedence over general law, that the dispute ought to have been decided.

[302] The results which flow from this agreement may be summarized as follows:
(a) As Denmark admitted to Norway in 1919 that there ere parts of Greenland which
were not yet subject to her sovereignty, she could not now adduce a sovereignty over
the whole of Greenland, existing prior to that date. As the territory affected by the
Norwegian declaration of occupation of July 10th, 1931, is indubitably one of the
parts of Greenland which - according to the Danish Government's position in 1919 -
were not subject to Danish sovereignty, that territory must be considered as a terra
nullius, unless Denmark could be shown to have extended her sovereignty to it by acts
subsequent to 1919, and in conformity with international law; but no such fact has
been adduced by the Danish Government.
(b) As Norway had undertaken not to oppose the extension of Danish sovereignty
over the whole of Greenland, she was, before everything else, bound not to occupy
any part of this region herself, thereby making it impossible for Danish sovereignty to
be extended to it.

[303] All that now remains is to apply the consequences of the agreement of 1919 to
the submissions of the two Parties.

[304] The Danish Government asks the Court to give judgment to the effect "that the
promulgation by the Norwegian Government of the declaration of occupation of July
10th, 1931, and any steps taken in this respect by the Norwegian Government,
constitute a violation of the existing legal situation and are consequently unlawful and
invalid".

[305] As the Norwegian occupation was effected in violation of an undertaking

validly assumed, it constitutes a violation of the existing legal situation, and it is
therefore unlawful: within those limits the Court should, therefore, have acceded to
the Danish Government's submission.

[306] On the other hand, regarding the question from the stand-point that I have taken,
and apart from certain other questions [p95] which I do not propose to examine, the
Court could not have declared the occupation invalid, if the term "invalid" signifies
"null and void". A legal act is only non-existent if it lacks certain elements which are
essential to its existence. Such would be the occupation of territory belonging to
another State, because the status of a terra nullius is an essential factor to enable the
occupation to serve as a means of acquiring territorial sovereignty. But this does not
hold good in the case of the occupation of a terra nullius by a sovereign State in
conformity with international law, merely because the occupying State had
undertaken not to occupy it. Accordingly, it would have been for the Norwegian
Government to revoke the occupation unlawfully carried out, without prejudice to the
Danish Government's right to apply to the Court, as reparation for the unlawful act, to
place this obligation on record (Judgment . 13, p. 47).

[307] The Norwegian Government, in its turn, has submitted the following counter-
claim:

"that Denmark does not possess sovereignty over Eirik Raudes Land;
that Norway has acquired sovereignty over Eirik Raudes Land".

[308] In my view, it follows from the whole of the written and oral proceedings that
the first paragraph is designed to supply the ground for the second and that,
accordingly, there is only one claim the aim of which is to obtain a declaration from
the Court that the occupation effected by the Norwegian Government is lawful and
valid. This claim should, in my view, be rejected, for an unlawful act cannot serve as
the basis of an action at law.

(Signed) D. Anzilotti. [p96]

Observations by M. Schcking and M. Wang

[Translation.]

[309] While fully concurring in the Court's conclusions, we nevertheless find it

necessary to make some reservations regarding some of the reasons which are given
in support of them. The Court has definitely adopted the view that there was a historic
Danish sovereignty, extending over the whole of Greenland, and exercised, in
particular, as early as the XVIIIth century. We are prepared to admit that there were
indeed claims to that effect, which had been put forward by Denmark in earlier
centuries, and had not been seriously disputed by other States. But the exact
significance of the documents which should demonstrate the exercise of this
sovereignty remains somewhat uncertain; moreover, the documents in question are
legislative acts, the effective application of which, elsewhere than on the western
coast - though it would have been an indispensable requirement under the
international law even of that period - has not been sufficiently established. Even if all
the circumstances, taken together, conferred a presumptive title upon Denmark, the
history of the diplomatic overtures undertaken by Denmark between 1915 and 1921 in
order to obtain recognition of her sovereignty over the whole of Greenland, proves, in
our opinion, that, at that time, Denmark herself did not maintain towards the other
interested Powers the theory of an already existing Danish sovereignty over the whole
country. Regarding this point, having in view more especially the report of the Danish
Minister for Foreign Affairs to the King of Denmark on August 1st, 1916, we are
compelled to place a different construction upon the Danish overtures to the Powers,
namely, that Denmark was desirous of extending her sovereignty to the whole of
Greenland, with the assent of the States chiefly interested.

[310] This view does not however prevent us from considering that, owing to some of
the other reasons which are set forth in the judgment, the Norwegian occupation is
unlawful and invalid.

(Signed) Walther Schcking.

( ) Wang Chung-Hui. [p97]

Dissenting Opinion by M. Vogt.

[Translation]

[311] According to the Saga, Gunnbjrn Ulvsson, who left Norway for Iceland, about
the year 900, was driven westwards by a storm. He saw a large country and some
islands to the West and subsequently succeeded in reaching Iceland. Later, two
inhabitants of Iceland set out to search for the islands seen by Gunnbjrn and,
according to the Saga, they reached Greenland and passed the winter there.

[312] Eirik Raude (Eric the Red) is, however, generally regarded as the discoverer of
Greenland; he was born in Norway about 950 and left for Iceland about 970. About
980 he went to Greenland. He reached the habitable region on the South-West, spent
three winters there and visited the West coast from Cape Farvel to a point far to the
North. He it was who named the country "Greenland".

[313] In 984, Eirik Raude began the colonization of the South-West coast. The
inhabitants of Iceland who accompanied him were of recent Norwegian origin, the
colonization of Iceland by Norwegians having begun in 870. It is not easy to fix the
precise date from which it may be said that Iceland became a distinct State. During the
ensuing period, immigration to Greenland continued from Iceland and Norway.

[314] As regards communications between Greenland and other countries, these were
directed partly towards Iceland, but mainly towards Norway, whence came the goods
which the settlers needed.

[315] In 1261, the Greenlanders submitted themselves of their own free will to the
King of Norway, who promised to maintain regular navigation to the colonies in
Greenland.

[316] This regular navigation, which was essential to the Greenlanders, ceased in
1410 and thus isolated, the settlers succumbed in the course of the XVth century to the
rigours of the climate and the attacks of native Eskimos from the North who destroyed
the colonies.

[317] In the following centuries, some expeditions set out for Greenland, but no
regular communications were established and no colonization undertaken.
[318] Only at the beginning of the XVIIIth century were regular communications with
Greenland reestablished, after the Norwegian Pastor Hans Egede had succeeded in
forming the Greenland Company of Bergen. In 1723, the King of Norway and
Denmark, in the concession granted to this company, [p98] expressed his intention of
reestablishing the old commercial intercourse between Norway and "the country of
Greenland belonging to Our Kingdom of Norway". Hans Egede left for Greenland in
1721 and, in the same year, founded the first colony there. This marked the beginning
of the second Norwegian colonization of Greenland, which gradually extended in the
course of the XVIIIth century. The colonies thus established remained Norwegian
possessions until 1814, when the King of Denmark and Norway, by the Treaty of
Kiel, ceded the kingdom of Norway to the King of Sweden - "Greenland, the Ferroe
Isles and Iceland excepted".

[319] The Treaty of Kiel was concluded on January 14th, 1814, and ratifications were
exchanged on February 9th, 1814. In an open letter, dated January 18th, 1814, King
Frederick VI released his Norwegian subjects from their oath of allegiance. Norway
maintained that her union with Denmark was dissolved by this letter. The Norwegian
nation did not recognize the Treaty of Kiel as binding upon them; they held that it was
not within the power of a king to cede a nation, against its will, to another king.
Accordingly, the Norwegian nation assumed for itself full sovereignty. A union
between Norway and Sweden was concluded on November 4th, 1814. On the 10th of
the same month, the Swedish Minister for Foreign Affairs wrote as follows in
instructions addressed to Swedish diplomatic representatives abroad: "We owe the
union of Norway to Sweden not to the provisions of the Treaty of Kiel but to the trust
of the Norwegian nation."

[320] The main question in the case before the Court is that of Danish sovereignty
over the disputed territory, and this question has generally been presented in the
course of the proceedings as the question of Danish sovereignty over Greenland as a
whole.

[321] In approaching this question, we must in the first place consider the legal
consequences of the overtures made by the Danish Government to various Powers
between 1915 and 1921.

[322] The standpoint of the Danish Government in the question of Danish sovereignty
was defined in a report made on August 1st, 1916, to His Majesty the King of
Denmark by his Minister for Foreign Affairs. This report contains the following:
"Finally, it appears to me most important that the United States of America have
offered to make, simultaneously with the signature of a convention [concerning the
Danish West Indies], an official declaration to the effect that the Government of the
United States of America would not object to the Danish Government extending their
sovereignty to include the whole of [p99] Greenland; such a step would afford
valuable support to the future development and maintenance of Danish interests in the
possession in question...."

[323] In the documents submitted, we find the expressions used by Denmark in her
representations to foreign governments with a view to securing the extension of
Danish sovereignty to all Greenland. These expressions vary. The instructions of
March 2nd, 1920, given by the Danish Minister for Foreign Affairs, contain the
following: "It is desirable that the Danish Government should extend its care, by
means of its sovereignty, to the whole of Greenland." By this expression the Danish
Government indicated what may be called the substantial motive of its overtures. The
ostensible reason is stated as follows: "Having got this declaration [that of the United
States of America], it [the Danish Government] proposes also to obtain recognition by
other Powers of Danish sovereignty over Greenland", and again: "I request you
therefore to endeavour to obtain from the Italian [British, etc.] Government official
recognition of Danish sovereignty over all Greenland." In the same instructions, the
Danish Government informed its Ministers abroad that "effective possession" has
been taken "in the name of Denmark" of a certain district in Greenland which had
been "outside the districts hitherto under the Danish administration", and again "that
formal possession of Greenland as a whole has not been taken". An instruction of July
12th, 1919, issued by the Danish Minister for Foreign Affairs to the Danish Minister
at Oslo contains the following sentence: "I will, on the other hand, ask you [FN1] to
bring out in the course of the conversation that the Danish Government has for some
years past been anxious to obtain the recognition by all the interested Powers of
Denmark's sovereignty over the whole of Greenland and that it intends to place that
question before the above-mentioned Committee" (at Paris).

--------------------------------------------------------------------------------------------------------
-------------
[FN1] The Danish text reads as follows : " De bedes imidlertid under samtalen
fremhve
--------------------------------------------------------------------------------------------------------
-------------

[324] All these expressions convey the same idea, namely, that Denmark had not
hitherto possessed sovereignty over all Greenland. The parts of Greenland which have
not been brought under the Danish Greenland Administration and of which possession
has not been effectively or even formally taken, cannot be regarded as under Danish
sovereignty. For this reason the notes despatched by the Danish Ministers, who had
received these instructions, all contain expressions such as "extend her sovereignty to
all Greenland"; "extend her care, by means of her sovereignty, to all Greenland"; or,
"extension of Danish [p100] sovereignty to the whole of Greenland". There is no trace
of the despatch of any rebuke or correction to the Danish Ministers abroad who, in
carrying out their instructions, used the expressions "extend", or "extension of",
"Danish sovereignty". In point of fact, these Ministers merely gave accurate
expression to the idea embodied in the instructions themselves. The last note is that of
January, 1921, to the Norwegian Government. In this we read: "The Danish
Government also reckoned on an extension of Danish sovereignty to all Greenland not
meeting with difficulties on the part of Norway." This reference to the request made
verbally in 1919 makes no qualification as regards the expression "extension of
sovereignty".

[325] Already in December 1915, the Danish Minister in Washington, in a note to the
United States Secretary of State, had spoken of "the extension of the care and
suzerainty of Denmark to the whole of Greenland", and the Danish Minister in Paris,
in his note to the French Government in 1920, used the words: "extend her
sovereignty to all Greenland".

[326] If the Danish Government had believed that such expressions were not correct,
it would no doubt have taken every care to warn its Ministers abroad to avoid making
use of the words which have been quoted above.

[327] The replies of the governments whom Denmark had approached also show, for
the most part, that these governments considered that what was desired was a future
extension of Danish sovereignty. I would also refer in this connection to the history of
the Danish-American negotiations concerning the sale of the Antilles, as related by
Charles Callan Tansill in a recent work: The Purchase of the Danish West Indies.

[328] It is true that on various occasions, in the XIXth century, the Danish
Government had expressed its conviction, in Denmark, that the sovereignty over the
whole of Greenland belonged to Denmark.

[329] On the other hand, during the same century, there had been no small number of
official acts and declarations which revealed an opposite conviction. Thus, the
expedition of Graah (1829-1830), which acted "under instructions from the King",
and the expeditions of Holm (1883-1885) and Ryder (1891-1892) organized by the
Danish State, were all commanded by officers of the Royal Danish Navy; and all three
of them took possession of lands on the East coast in the name [p101] of the King.
These formal acts of occupation did not produce any legal effects; but they are clear
evidence that the Danish Government was not convinced that it possessed sovereignty
over the whole of Greenland. This attitude was also expressed by the Danish Minister
of Marine at a meeting of the Folketing, in the session of 1880-1881, in a speech
which he made on the exploration of the East coast of Greenland. On that occasion the
Minister said : "It is in every way natural that a part of the coast lying so near to the
colonies belonging to the Danish Crown should be explored at the initiative of
Denmark...."

[330] The Holm expedition had been organized by the Commission for the
Exploration of Greenland. This Commission wrote to the Ministry of Marine
concerning the explorations which it behoved Denmark to undertake "in regard to
territories, which are in part subject to the Danish State, and in part adjacent to the
territories that are subject". The Government followed the advice of the Commission.
There is nothing to show that it did not accept the argument mentioned above.
[331] In a report submitted to the King of Denmark by the Minister of the Interior, in
connection with the Tayler concession, granted in 1863, the Minister points out that
no one disputed Danish sovereignty on the East coast of Greenland. In the same report
it is also emphasized that Mr. Tayler "undertakes to take possession in Your Majesty's
name of any new part of the coast which may be reached by the expedition....". The
actual concession stipulates that "any station .... shall come under the sovereignty of
the Danish Crown....".

[332] Such contradictions cannot be regarded as evidence of a definite attitude, or of a

firm conviction.

[333] At the beginning of the present century, we have to note the law of May 27th,
1908, which lays down, inter alia:

".... Southern Greenland comprises the country situated between Cape Farewell and
the Nordre-Strm-Fiord, including the latter; Northern Greenland includes the
remainder of the Danish territory on the western coast...."

[334] In a note to the British Government, dated July 20th, 1920, the Danish
Government maintains that Danish sovereignty over all Greenland was acquired "by
prescriptive right". This note was occasioned by the fear lest a dispute might arise on
the question of preemption between two of the Great Powers whom Denmark had
approached. In a despatch dated December 21st, 1921, the Norwegian Minister at
Copenhagen had reported, as a result of overtures made by him to the Danish
Government, that the last-named Government "has refused, out of deference for
America, to [p102] accept the demand of Great Britain for a right of preemption, in
case Denmark should desire, in the future, to alienate Greenland. The British
Government then contented itself with reserving its right to be informed in case
Denmark should ever contemplate thus alienating Greenland. And if I have rightly
understood, Denmark must be regarded as having accepted that reservation." The
argument put forward in the note of July 20th, 1920, by Denmark, finding herself in a
difficult diplomatic position, to the effect that she possessed an ancient sovereignty,
acquired by prescriptive right, cannot be allowed very much weight.

[335] The most eminent Danish jurists of recent times have maintained that the
Danish possessions in Greenland were limited, and they have spoken of an effective
occupation, or taking into possession, in such a way as to be valid in international law,
as being a necessary basis for Danish sovereignty.

[336] The declarations of 1915 to 1921 were declarations freely made, so to speak, to
the community of nations. In thus officially declaring to a certain number of Powers
that it did not yet possess sovereignty over the whole of Greenland, the Danish
Government debarred itself from claiming to possess an ancient sovereignty over the
whole of Greenland. To concede the right of a government to put forward claims to an
ancient sovereignty, only a few years after that very government has solemnly
proclaimed that it did not possess that sovereignty, would be to open the door to
instability in international affairs.

[337] It is next necessary to consider whether Denmark acquired sovereignty over the
territory in dispute, subsequently to 1921.

[338] It is clear that Denmark had the animus possidendi during that period; but did
she have the corpus possessionis? The region in question is one where the citizens of
another nation have engaged in fairly regular activities, certainly since, and probably
long before, 1889 - "a favourite resort of the Norwegian hunters" - without Denmark
having attempted to exercise sovereignty over those foreigners. And these activities
continued, even after the proclamation of June 16th, 1921, under which the whole of
the coasts and adjoining islands of Greenland were closed to ships of foreign
nationality. It is a territory, the sovereignty over which is disputed, a territory which
was visited in 1930 by a Danish official expedition under the command of a Danish
naval officer, without any action whatever being taken by him in regard to the serious
[p103] accusations brought by a Danish company against the Norwegian hunters in
the district. He did not even interrogate the accused persons. It is a territory, forming
part of the areas which M. Christensen, the former Danish Prime Minister, in a speech
in defence of the Convention of 1924, referred to in the following words:

"As we have no warships in Greenland waters, nor any police-force capable of

expelling them [i.e. the Norwegian hunters], we have no means of intervening."

[339] That statement still held good in July 1931.

[340] It has been argued on behalf of the Danish Government that the administrators
of Angmagssalik and Scoresby Sound, whose jurisdiction has not been delimited by
any geographical boundaries, have been since 1894 (?), and are still, the local
representatives of the Danish State in Eastern Greenland. This assertion has been
contested on behalf of Norway: it has been pointed out that the officials in those two
stations are in no way entitled to exercise official authority, and that in fact they never
have attempted to exercise any kind of authority, outside the very limited districts
entrusted to their administration.

[341] The Danish Government has not produced any document conferring the alleged
authority, outside the two stations in question, upon the above-mentioned officials.
Two facts should be noted: (1) the officials mentioned by the Danish Government are
employes of the Monopoly, pastors, and telegraphists; (2) Denmark undertook, in the
Protocol signed on January 28th, 1924, at the closure of the negotiations for the
Convention of July 9th, 1924, to trace the boundaries of the two above-mentioned
colonies according to the customary rules (cf. the Ordinance of March 26th, 1751).
The said Protocol, in making an express reference to the Ordinance of March 26th,
1751, indicates that the boundaries of the stations are situated, speaking generally, at a
distance of fifteen miles on either hand. Considering these circumstances and the
geographical situation, it is difficult to understand what governmental authority the
employs of the Monopoly, the pastors and telegraphists of Angmagssalik and
Scoresby Sound can possibly possess in Eirik Raudes Land.

[342] My conclusion is that Denmark has not proved the corpus possessionis in
respect of the territory in question, nor has she proved an "inchoate title". [p104]

[343] I am led by the circumstances to examine the question of the extent of Danish
sovereignty over Greenland from another point of view.

[344] What is the origin of that sovereignty?

[345] Until 1814, Greenland was a Norwegian dependency; it is therefore necessary to

determine what was that Greenland which Denmark retained for herself at the
dissolution of the union between the two kingdoms.

[346] The instructions sent to some of the Danish Ministers abroad by the Minister for
Foreign Affairs at Copenhagen, on March 2nd, 1920, begin with the words: "Danish
enterprise in Greenland had its origin in 1721." In pursuance of those instructions,
these Ministers presented memoranda to the different governments, in such terms as:
"Danish enterprise in Greenland was initiated in 1721"; "l'uvre danoise Gronland a
t initie depuis dj 1721"; "l'activit civilisatrice des Danois dans le Groenland a
commenc en 1721"; "the beginning of Denmark's penetration into Greenland took
place in the year 1721". Especially clear is the following declaration: "The taking into
possession of Greenland by Denmark dates from a period as far distant as 1721." The
latter passage is quoted from the instructions issued by the Minister for Foreign
Affairs on July 7th, 1920, and the information was transmitted to the British
Government in the following form: "The occupation of Greenland by Denmark took
place as far back as 1721." This decisive statement is contained in the instructions,
and in a diplomatic note, written with the express object of emphasizing the fact that
Danish sovereignty went back to an ancient date. A letter, dated April 29th, 1921,
from the Danish Minister at Oslo to the Norwegian Minister for Foreign Affairs,
contains the words: "The Danish Government being about to celebrate the 200th
anniversary of the attachment of Greenland to Denmark...."

[347] When these documents speak of Denmark, this must really be understood to
mean Norway, or - if it is preferred - the King of the two United Kingdoms, in his
capacity as King of Norway. In any case, for the present purpose, it suffices to note
that the sovereignty which Denmark invokes only goes back - according to the solemn
declarations made by the Danish Government to foreign Powers - as far as the year
1721. During the proceedings, the Danish Government has used expressions such as:
"the Danish Government is entitled to adduce an uninterrupted occupation of two
hundred years", and "the Danish State has exercised sovereignty over all Greenland
for two hundred years". These expressions are not [p105] without importance,
although the Danish Government has, in other passages, sought to base its sovereignty
on a more ancient historical foundation.

[348] Christian IV was the most remarkable of the kings of Denmark and Norway and
took more interest than any of them in the countries in the northern seas. In his "Fiscal
Letter" of April 1st, 1606, he writes as follows: "Greenland, which is a member [of
Norway], which belongs by right to the Crown of Norway and which in the days of
some of Our beloved ancestors, Kings of Denmark and Norway, by abandonment or
other unfortunate circumstances, was separated and cut off, with the rights and profits
attaching thereto, from the Crown of Norway." It was, however, the avowed intention
of the King to restore this country to the Norwegian Crown.

[349] When, in 1616, the Dutch captains took possession of the western coast between
the 60th and 66th degree of north latitude on behalf of the States-General, Christian
IV maintained a passive attitude. His successor, Frederick III, granted a concession in
1652, "seeing that the aforesaid country of Greenland was a dependency of our
Kingdom of Norway". In a despatch dated January 13th, 1844, the Danish Ministry
for Foreign Affairs wrote : "After 'old Greenland' [in other words, the East coast],
which had been discovered by Norwegians and Icelanders at the end of the Xth
century, had been entirely abandoned at the beginning of the XVth century, all
relations with that country ceased, until King Christian IV decided to send ships to
endeavour to rediscover the eastern coast...."

[350] The somewhat vague claims of the Danish-Norwegian kings found expression
in terms such as "hereditary sovereign of Greenland" and "Our country of Greenland",
etc. Thus, in the charter granted to the Greenland Company of Bergen on February
5th, 1723, the King declared his intention of reestablishing the ancient commercial
relations between Norway and "the country of Greenland belonging to our Kingdom
of Norway....". But no very great importance can be attached to claims of such a
nature.

[351] Even admitting that an ancient sovereignty is not forfeited by dereliction, unless
the animus is abandoned as well as the corpus possessionis, it must be conceded that
the sovereignty could not be still in being some centuries after the extermination of
the ancient colonists and the cessation of communications.

[352] The second colonization of Greenland, under the direction of the Pastor Hans
Egede, was a Norwegian enterprise. In his numerous petitions Hans Egede recalled
the fact that Greenland had been a dependency of the Kingdom of Norway. The
Bergen Company, which sent Egede to Greenland, declared [p106] its object to be
that "this country which has been so long deserted and has been left in the hands of
savages may, in course of time .... be restored to Your Majesty....". In connection with
the petitions of the Bergen Company, the Principal Secretary of the Danish
Chancellory stated, in an opinion presented about the end of 1722, that ".... the
country [that is Greenland] has for a great number of years been res derelicta....".
[353] It accordingly follows that the sovereignty which Denmark now possesses in
Greenland is based upon the Norwegian colonization at the beginning of the XVIIIth
century.

[354] From a purely historical standpoint, it was sought to base the claim for
sovereignty on the fact that Greenland had, in ancient times, been a country belonging
to Norway. But, according to the custom then prevalent in matters of colonization, the
sovereignty was in reality restricted, after the second colonization, to certain areas
surrounding the factories or stations successively established. The same system was
also employed by the Monarch of the two kingdoms in dealing with possessions in the
Indies and Africa. In regard to possessions in those parts of the world, the King also
granted charters for colonies which might hereafter be established.

[355] The system which it was sought to apply in Greenland consisted, from 1721
onwards, in successively extending the colonized territory, with a consequent
extension of the territory under governmental administration, thus again, in turn,
extending the sovereignty of Denmark. This system has been described on various
occasions by the Danish Government. I will content myself with two examples.

[356] The Danish Ministry of the Interior (Directorate of Greenland Colonies) in a

letter, dated November 3rd, 1916, to the Parliamentary Commission for the Danish
West Indies, refers to the establishment of the Angmagssalik station in 1894 and
explains how, by a Proclamation dated March 8th, 1905, it had been "announced that
the Danish establishments henceforward extended as far as latitude 740 30' N.; that is
to say that the sovereignty of Denmark and the regime of exclusion have accordingly
been extended over a fresh zone, one degree and a half of latitude in width". The
Ministry's letter continues in the following terms: "These two regions, which have
been incorporated at a relatively recent date, are universally recognized as being
subject to Danish sovereignty; in any case, no objection has ever been raised in any
quarter against this view; and it would perhaps be possible to maintain that Danish
sovereignty could always continue [p107] to be extended to all places where there are
Danish establishments, that is to say - since a trading and mission station has now
been founded by private initiative at Cape York - to every inhabited part of
Greenland."

[357] In the instructions issued on March 2nd, 1920, by the Ministry for Foreign
Affairs at Copenhagen to a number of Danish Ministers in foreign countries, the
following passage occurs:

"As has been mentioned above, Denmark established colonies in Greenland as early
as the beginning of the XVIIIth century. Later on, when it was found that Eskimos
were also living outside the districts hitherto subject to the Danish administration,
namely, at Cape York, Denmark extended her missionary enterprise and commercial
activities to those regions and, by reason of that fact, these territories of Greenland
have also been effectively taken into possession on behalf of Denmark."

[358] A study of the Ordinances, etc., of the XVIIIth century relating to Greenland,
confirms the accuracy of the description, thus given by the Danish Government, of the
system of colonization and administration.

[359] Denmark has endeavoured, during the proceedings, to draw a distinction

between the sovereignty itself, and the exercise of sovereignty by the Danish
administration. But, if Denmark believed that she possessed a sovereignty, valid in
international law, over the whole of Greenland, she ought to have prohibited trading
with Greenland to all other nations; she ought to have taken steps to combat the
foreign trade which she said was prohibited. But the history of the colonization shows
that Denmark did not believe herself entitled to proceed in this way.

[360] The Department of Police and Trade had stated in a proposal to the King, dated
February 28th, 1721 : ".... for we humbly submit that it would be imprudent to enact
such a prohibition before Your Majesty's subjects have really taken the country into
possession....".

[361] In regard to a concession for trading with Greenland, the Principal Secretary of
the Royal Danish Chancellory wrote on February 20th, 1740: "....the last article
should, moreover, be drawn in such a way as to show that His Majesty authorizes
Severin alone to trade with the Greenland colonies, whether already established or
hereafter to be established, and that neither His Majesty's subjects nor foreigners may
engage in trade within a given distance from the said colonies, seeing that it is
evidently impossible to prohibit foreigners or others from trading in the Davis Strait
so long as they do not approach nearer to the colonies than may be declared
permissible for them". The concession was modified and restricted in conformity with
this proposal. [p108]

[362] The documents filed with the Court show that the Danish Government did not
know any legal method of preventing trade with foreigners other than the
establishment of a chain of colonies.

[363] The Ordinance of April 9th, 1740, provides that if any person venture "to trade
in the colonies already established or hereafter to be established, in Our Country of
Greenland" as also within the boundaries fixed for them, "and similarly if any person
venture, in any part of Greenland whatsoever, by sea or by land, to despoil the
Greenlanders or to do them violence the offenders" shall be "punished by seizure and
confiscation". This Ordinance, which provides for the protection of the Eskimos, even
outside the boundaries of the colonies, has been relied on as proof of the existence of
a corpus possessions. As a fact, however, this Ordinance is based upon a memorial of
Severin, in which the latter proposes measures to prevent the Greenlanders from being
despoiled or molested, offenders being liable "according to the nature of the offence
[to be] duly punished as pirates".
[364] The punishment of acts of piracy by the crews of ships did not require the
existence of sovereignty in the places where such acts had been perpetrated. And
piracy might take place either by sea or by land. (Pradier-Fodr: "It matters little
whether the act of brigandage is perpetrated on the high seas or on the coasts, in order
to determine its character [FN1].")

--------------------------------------------------------------------------------------------------------
-------------
[FN1] This subject has been fully dealt with by Paul Stiel in his book Der Tatbestand
der Piraterie, etc. (Leipzig, 1905). Reference may also be made to the report to the
Council of the League of Nations, C. 196. M. 70. 1927. V., page 204.
--------------------------------------------------------------------------------------------------------
-------------

[365] It is interesting to cite the following paragraph in the proposal submitted to the
King on April 1st, 1740 : "In Severin's project it is stated that no person may, under
pain of confiscation of his ship and its cargo, do any wrong or prejudice to the
Greenlanders; but as the word wrong is of a rather general character, and might be
construed in too wide a sense, the Commissioners have contented themselves with
proclaiming that if anyone should despoil the Greenlanders or use any flagrant
violence against them, his vessel shall be seized for confiscation." Here again it is
clearly a question of piracy.

[366] The Danish Government has adduced an instruction drawn up in 1737, in the
following terms:

"He must warn all foreign merchants and all whalers, to refrain, .... from depriving the
Greenlanders at any point .... either of blubber or fish...., this being contrary not only
to our Absolutum Dominium, but also to the law of Nations; and, furthermore, Dutch
subjects who act in this way are violating the attached Ordinance made in 1720 by the
States-General." [p109]

[367] In acting in the manner described in the colonies, the Dutch were doubtless
infringing "our Absolntum Dominium". But the fact that the instructions make
reference to the law of nations and also to a Dutch Ordinance seems to prove that the
Copenhagen Government was not founding itself on the idea of a Danish sovereignty
extending to the whole of Greenland.

[368] In 1753, the General Greenland Trading Company wrote: "Although the place
[on the coast of Greenland] where these vessels are said to have been abandoned (so
far as is known to us) is not subject to Your Majesty's sovereign dominium...." The
King ordered that no steps should be taken to seize the ships in question.

[369] The Ordinance of April 22nd, 1758, has been adduced by the Danish
Government as evidence that, since that date, foreigners were prohibited from trading
anywhere in Greenland. But if this Ordinance is compared with that of 1751, the text
of which it was desired to modify, it is seen that no substantial modification was
intended; and a memorial of the Trading Company, dated March 30th, 1759, describes
the Ordinance of 1758 as "concerning the prohibition of trading in Davis Strait", in
other words, on the colonized western coast.

[370] The Ordinance of March 18th, 1776, maintains the principle that the
establishment of stations must be effective, and must be published, as in the past. The
first article speaks of the Trading Monopoly and of navigation "in the colonies and
factories established, or hereafter to be established, in Greenland and the islands
appertaining thereto, in Davis Strait and Disco Bay, as also in other ports and places
in that region...." The article declares that the colonies and factories "extend at present
between lat. 60 and 73 N.", and it prohibits trade and navigation "in the aforesaid
country".

[371] In 1921, the Danish Government informed a certain number of foreign

governments that the Ordinance of 1776 prohibited access to the Greenland coast
"both as regards colonies and factories already established and those which may
hereafter be created". This interpretation of the Ordinance in the sense that the
prohibition of access only applied to the colonies has been maintained by the Danish
Government during the present proceedings. But in that case the conclusion follows
that "the aforesaid country" in that Ordinance only signified the colonized western
coast; and a study of the Ordinance of 1776 gives the impression that it is based on the
notion of a sovereignty only extending to the colonized territory. [p110]

[372] The Rescript of April 17th, 1782, refers in the introduction to "two royal
inspectors designated for Greenland....". It begins with the following words: "As it has
been humbly pointed out in your letter of March 6th last to our Danish Chancellory
that there is no judicial authority in Our country of Greenland....". And further on:
"We have graciously deigned to appoint two covenanted officials in this country as
inspectors of trade and fisheries, one for the Northern colonies and one for the
Southern colonies"; and again further: "the aforesaid two inspectors, each one in
respect of the part of the country entrusted to him...."

[373] A report of November 1787 from the Royal Greenland Trade mentions that His
Majesty has been pleased "to divide the country into two inspectorates". A report of
the Royal Greenland Trade Commission of 1790 speaks of "two inspectors who are to
be regarded as the only public authorities in the country", and in the same year
another report of the said Commission mentions that the two inspectors have to
"watch over the territorial rights of Your Majesty".

[374] Lastly, by a Royal Resolution of March 23rd, 1803, the King appointed MM.
Motzfeldt and Myhlemphort "Inspectors of Colonies and Whaling, the former in
Northern Greenland and the latter in Southern Greenland".

[375] The administration of these two inspectors, who were the only representatives
of the State in Greenland, continued to be definitely limited to the colonized districts,
the boundaries of which were fixed.

[376] The system of gradual extension of sovereignty by means of the extension of

colonization and administration was consistently followed, and, in 1921, it again
found expression in the Decree of May 10th which lays down "that the whole country
is henceforward attached to the Danish colonies and stations and to the Danish
administration of Greenland [FN1]" (".... que tout le pays est dsormais rattach aux
colonies et stations danoises et I'administration danoise du Gronland)".

--------------------------------------------------------------------------------------------------------
-------------
[FN1] The (French) translation given above was filed by the Norwegian Government.
The translation submitted by the Danish Government was as follows : ".... l'ensemble
du pays est dsormais rattach aux colonies et stations danoises sous l'autorit de
l'administration danoise du Groenland" (".... the whole of the country is henceforth
attached to the Danish colonies and stations under the authority of the Danish
administration of Greenland"). In view of these two different translations, it seems
advisable to give the original Danish text: ".... at hele Landet herefter er inddraget
under de danske Kolonier og Stationer og den danske Styrelse af Grnland".
--------------------------------------------------------------------------------------------------------
-------------

[377] What happened in 1921, it is contended on behalf of Denmark, was merely that
"the whole country was attached to the special organization, the office at Copenhagen
which deals [p111] effect by several of the contracting Parties to such treaties with
Greenland affairs, in other words: it was merely a question of domestic
administration". Nevertheless, the Decree of May 10th, 1921, was notified to foreign
Powers. Even accepting the construction now placed on this text by Denmark, it
seems difficult to admit that a State can have had effective possession of vast
territories - even in the Arctic regions - which were subject neither to the central
administration nor to the local administration instituted for the colony, of which these
vast territories are alleged to form part; territories of this kind, elsewhere, are
expressly subject to the different organs of the competent administration, sometimes
to several authorities (civil, military, judicial); even if there are parts of the territory
which have never been visited by the authorities, there exists however a competent
authority for these territories who can act, if circumstances require it.

[378] It follows from the foregoing that the Greenland which up to 1814 was a
possession of Norway, and which in 1814 became a Danish possession - that is to say
the Greenland referred to in the Treaty of Kiel and during the Norwegian-Danish
negotiations concerning the financial settlement - was not the whole of Greenland in
the geographical sense of the present day. It could only be, and it was only, the
Greenland over which the Monarch of the two united kingdoms had exercised - and
over which he consequently possessed - effective sovereignty, in other words, the
colonized districts subject to the administration of the Sovereign. That being so, it is
unnecessary to dwell further on the scope of the Treaty of Kiel and of the subsequent
financial settlement.

[379] In regard to the numerous treaties in which the Danish Government inserted an
exception in regard to Greenland, the following considerations call for attention:

[380] If these treaties can be adduced as evidence that the respective contracting
States recognized Danish sovereignty over the whole of Greenland, in virtue of the
exception thus inserted by Denmark, how can one account for the fact that the Danish
Government itself, in the years 1915-1921, approached a certain number of these very
same States with an express request for their recognition ? And how can one account
for the fact that these States did not then reply that they had already granted this
recognition by the conclusion of one or other of these treaties ? The true explanation
is, perhaps, that at the same time when the treaties of commerce, etc., were concluded,
none of these foreign Powers was thinking-owing to the nature of the case-of the area
which might be covered by the term "Greenland". Statements to that [p112] effect by
several of the contracting Parties to such treaties concluded with Denmark were
indeed produced to the Court.

*
[381] As regards the conversations which took place on July 14th and 22nd, 1919,
between M. Krag, the Danish Minister at Oslo, and M. Ihlen, the Norwegian Minister
for Foreign Affairs, there is in existence a record, accepted by both Parties, in the
form of notes bearing the initials of M. Ihlen.

[382] The notes are in the following terms, according to the Norwegian Government's
translation:

"I. Le ministre de Danemark m'a communiqu aujourd'hui que son Gouvernement a

t avis de Paris que la question du Spitzberg sera examine, par une commission de
quatre membres (amricain, britannique, franais et italien). Au cas o le
Gouvernement danois serait interrog par cette commission, il est prt a rpondre que
le Danemark n'a pas d'intrts au Spitzberg et qu'il n'a aucune raison de s'opposer aux
dsirs de la Norvge touchant le rglement de cette question.
En outre, le ministre de Danemark a communiqu ce qui suit:
Le Gouvernement danois s'est pendant plusieurs annes occup de la question
d'obtenir la reconnaissance, par toutes les Puissances intresses, de la souverainet
du Danemark sur l'ensemble du Greenland, et il se propose de soumettre cette
question, simultanment, ladite commission. Au cours des ngotiations avec les
Etats-Unis d'Amrique concernant la cession des Antilles danoises, le Gouvernement
danois a soulev cette question en ce qui concernait la reconnaissance par le
Gouvernement des Etats-Unis, et il a obtenu que celui-ci, concurremment avec la
conclusion de la convention relative la cession desdites les, donnt une dclaration
dans laquelle il est dit que les Etats-Unis ne s'opposeraient pas ce que le
Gouvernement danois tendt l'ensemble du Groenland ses intrts politiques et
conomiques.
Le Gouvernement danois compte (a-t-il dit) que le Gouvernement norvgien ne fera
pas de difficults au rglement de cette affaire. J'ai rpondu que la question sera
examine.
14/7 19 Ih."
"II. J'ai dit aujourd'hui au ministre de Danemark que le Gouvernement norvgien ne
ferait pas de difficults au rglement de cette affaire.
22/7 19 Ih. [FN1]" [p113]

--------------------------------------------------------------------------------------------------------
-------------
[FN1] Translation from the French text supplied by Norway:

"I. The Danish Minister today informed me that his Government had heard from Paris
that the Spitzbergen question would be dealt with by a Committee of four members
(American, British, French and Italian). Should this Committee question the Danish
Government, the latter would be prepared to answer that Denmark had no interests in
Spitzbergen and that Denmark had no reason to oppose Norway's wishes in regard to
the settlement of the question.
"Further, the Danish Minister informed me of the following:
"The Danish Government has for several years been concerned with the question of
obtaining recognition of Danish sovereignty over all Greenland [113] from all the
Powers concerned, and they intend simultaneously to submit this question to the
Committee. In the course of the negotiations with the United States of America
concerning the cession of the Danish West Indies, the Danish Government raised this
question in so far as concerned recognition by the United States Government, and it
obtained from the latter, simultaneously with the conclusion of the convention
regarding the cession of the islands referred to, a declaration to the effect that the
United States would not raise any objection to the extension by the Danish
Government of its political and economic interests to the whole of Greenland.
"The Danish Government confidently expected (he said) that the Norwegian
Government would make no difficulty in connection with the settlement of this
matter. I replied that the question would be considered.
14/7 - 19 Ih."
"II. I to-day informed the Danish Minister that the Norwegian Govern-ment would
make no difficulty in the settlement of this matter.
22/7 - 19 Ih."
--------------------------------------------------------------------------------------------------------
-------------

[383] The translation filed by the Danish Government does not differ ubstantially, or
in any essential particular, from the above. In place of the words " rglement de
cette affaire" ("in the settlement of this matter"), the Danish translation has: " sujet
du rglement de cette affaire" ("in connection with the settlement of this matter"). It
should be noted that the word " simultanment" ( ladite commission)
("simultaneously..... to the Committee) does not appear in the instructions sent to M.
Krag.

[384] On July 22nd, the Danish Minister reported to his Minister for Foreign Affairs
in the following terms:

"I have the honour to report that M. Ihlen, the Minister for Foreign Affairs, informed
me today that the plans of the Royal Government respecting Danish sovereignty over
the whole of Greenland - mentioned in your despatch of the 12th instant - would meet
with no difficulties on the part of Norway."

[385] To appreciate the nature and scope of these conversations, it is necessary to

consider the following facts which emerge from the. evidence produced:

[386] The Danish Government's overtures to the various other Powers, during the
years 1915 to 1921, were in writing, whereas it approached the Norwegian
Government in 1919 orally.

[387] In the negotiations with the United States of America in 1916, Denmark
expressly reserved her right to the continuance of the monopoly. There is no proof
that this was mentioned to M. Ihlen.

[388] In the overtures in writing to the other Powers, the monopoly system is
expressly described; in the brief request addressed verbally to Norway in 1919, the
extension of this [p114] system was not mentioned. M. Krag spoke of the Danish
Government's anxiety to obtain recognition by all interested Powers "of Denmark's
sovereignty" over all Greenland; he described how "this question" had been raised
with the United States and he gave the American reply to the effect that the United
States would not oppose the extension of Danish political and economic interests over
all Greenland. M. Ihlen could not, from these general expressions, and without any
explanation or special knowledge, draw the inference that this meant the extension of
the monopoly.

[389] On Denmark's side, it has been maintained, in the course of the proceedings,
that the overtures to certain Powers between 1915 and 1921 were designed to obtain
recognition of sovereignty and also of future measures for the welfare of the Eskimos,
i.e. the monopoly system; so far as can be observed, nothing was said regarding the
extension of the monopoly in the conversation with M. Ihlen; on the contrary, M.
Ihlen's minutes and the instructions given to M. Krag and the latter's despatch to his
Government after M. Ihlen's answer, all alike only refer to the question of
sovereignty.

[390] The important Greenland Society of Copenhagen, in a letter to the Danish

Government on November 2nd, 1916, had said with regard to the coastal area between
Germanialand and Cape Dalton (an area which includes Eirik Raudes Land) that "it is
a favourite resort of Norwegian hunters who almost every year engage in hunting
there both at sea and on land"; and the Society emphasized that "the State of Denmark
must exercise sufficient foresight to secure these regions as soon as possible".

[391] The brief minutes kept by M. Ihlen are the only record made in the Norwegian
Ministry for Foreign Affairs of the Danish demarche of 1919 and of M. Ihlen's reply.

[392] During the Dano-Norwegian negotiations for the settlement of this matter, the
Danish Government closed the coasts of Greenland which had hitherto been open, a
measure directed particularly against Norwegians; by this measure the Danish
Government broke off the negotiations.

[393] Thus, in 1919, the Danish Government was fully aware of the Norwegian
interests in Eastern Greenland. At the same time, the aim of the demarches undertaken
by it was an extension of the monopoly the consequences of which were bound to be
most serious for Norwegian interests.

[394] The Danish Minister in Paris, on July nth, 1919, had suggested to his
Government that Denmark's attitude in the [p115] Spitzbergen question should be
based on that of the Norwegian Government in regard to Denmark's request for
recognition of Danish sovereignty over Greenland. Nothing was said to M. Ihlen
regarding any such linking together of the two questions, nor did the instructions to
M. Krag contain anything on the point. In these instructions we read : "I will, on the
other hand, ask you to bring out in the course of the conversation", etc. If what was
desired was an arrangement on the principle of do ut des in regard to the questions of
sovereignty, it should have been expressly stated. The Danish Minister at Oslo begins,
on the contrary, by stating unreservedly that the Danish Government, should it be
questioned on the point, would be "willing to reply that Denmark has no interests in
Spitzbergen and has no reason for opposing Norway's aspirations regarding the
settlement of this question".

[395] Moreover, the Danish Minister for Foreign Affairs had already stated
unreservedly on April 1st, 1919, to the Norwegian Minister at Copenhagen, that
Denmark had no interest conflicting with those of Norway in Spitzbergen; in view of
this unofficial statement, it would have been difficult for M. Ihlen to conceive, in July
of the same year, that there was any question of an agreement of some sort on the
principle of do ut des. It has in no way been proved that M. Ihlen knew - as has been
alleged - that Denmark, when intending to adopt an attitude favourable to Norway in
the Spitzbergen question at the Peace Conference, was relying upon his declaration.
M. Ihlen expressly denied it in a statement made by him on July 4th, 1923, protesting
against certain assertions made in Denmark. In this statement, M. Ihlen expresses
himself as follows:

"On one of the last days of March, 1919, the Norwegian Minister for Foreign Affairs
telegraphed to the Norwegian Minister at Copenhagen asking him to explain to the
Danish Foreign Minister the reasons militating in favour of the attachment of
Spitzbergen to Norway, and to express the hope that Denmark would take a
favourable view of the matter. In conformity with these telegraphic instructions, the
Norwegian Minister had a conversation with M. Scavenius, Foreign Minister, on the
subject of Spitzbergen, on April 1st, 1919. In a despatch of April 2nd regarding this
conversation, the Norwegian Minister reported that M. Scavenius had at once declared
that the Danish Government would be altogether favourable to the union of
Spitzbergen with Norway. Denmark herself had no interest in that region conflicting
with those of Norway, and the Danish Government fully recognized the weight of the
geographical and economic arguments in favour of uniting these islands with Norway,
and considered this as the most practical settlement. Not a word was said about
Greenland in this conversation. [p116]
The dmarche made to me by the Danish Minister at Oslo and alluded to by M.
Scavenius did not take place until some months later, on July 14th, 1919. During this
conversation, the questions of Spitzbergen and Greenland were both discussed, but I
can say with certainty that Monsieur Krag, the Danish Minister, did not on this
occasion place any conditions upon the Danish Government's favourable attitude in
the question of Spitzbergen. There is therefore no justification for speaking of the
conclusion of a contract."

[396] In view of the undeniable fact that Denmark had no interest in Spitzbergen, I
should not have considered it equitable to attribute to the Danish Government an
intention of proposing, in July 1919, any such bargain on the do ut des principle. In
point of fact, the Spitzbergen Treaty guaranteed all rights to every Power, including
Denmark, whereas Norway, by recognizing Danish sovereignty, would have run the
risk of sacrificing all her rights in Greenland.

[397] It is very probable that M. Ihlen was, generally speaking, well disposed owing
to the Spitzbergen question, and doubtless he favourably regarded Denmark's desire to
approach the Committee of four members at Paris. M. Ihlen also gave evidence of his
favourable attitude at a visit paid to him by the new Danish Minister at Oslo in
November of the same year; in the course of this visit, M. Ihlen - according to a report
of the Danish Minister - said that "it was a pleasure for Norway to recognize
Denmark's sovereignty over Greenland". This was an official courtesy visit and too
much importance must not be attached to the way in which the remark quoted is
worded in the report; but in any case it proves M. Ihlen's attitude.

[398] It has not been proved that the Krag-Ihlen conversations linked together the
Greenland and Spitzbergen questions in a manner possessing any real legal
significance ; and the facts above mentioned militate against the theory that M. Ihlen
must have realized the existence of a close connection of this kind. During the year
1921, the Danish Government mentioned to the Norwegian Government the
benevolent attitude shown by Denmark in the Spitzbergen question. But only in a note
at the beginning of 1923, was the theory that the two questions were interdependent -
as maintained before the Court - put forward to Norway. Nevertheless, it is to be
observed that this interdependence was not referred to in the Protocol of Closure of
the Dano-Norwegian negotiations of January 28th, 1924, in which the Danish
delegation expressly referred to the Ihlen declaration as binding upon Norway. [p117]
[399] The correspondence with the Danish Minister in Paris was known to the Danish
Government and the Danish Minister at Oslo, but unknown to M. Ihlen. The Danish
authorities, having this correspondence in mind, gradually conceived an idea of the
import of the brief conversations with M. Ihlen, differing from the idea which M.
Ihlen himself could have had, as he was unaware of the suggestions put forward
regarding the interdependence of the two questions of sovereignty.

[400] It appears from the information supplied during the proceedings that the
conversation of July 14th, 1919, was the first notice that the Norwegian Government
had of Denmark's aspirations. Thus, M. Ihlen was unprepared for the question; he
mentioned the matter verbally and unofficially to his colleagues, but no decision was
taken by the Government. It also appears from the information produced that M. Ihlen
made no enquiries into the question of Norwegian interests in Eastern Greenland; he
was not thinking of them when he gave his verbal answer on July 22nd, 1919.

[401] Norwegian hunters and fishermen had for a considerable period engaged in their
pursuits in Eastern Greenland, unquestioned and unhindered by Denmark.
Accordingly, it is to be supposed that the Norwegian authorities had no knowledge of
any grievance on the part of these Norwegian nationals. Moreover, the Danish
Government for its part had never taken exception to these Norwegian activities and,
in these circumstances, it is easy to understand that these activities should not at once
have occurred to the minds of members of the Norwegian Government ; this also
explains how it was that the fundamental interests of Norwegians, the questions of
law here in issue, the possible extension of the monopoly and of the rgime of
exclusion to a region where no Eskimos existed, had not at this time been examined
by the Norwegian Government. Norway had had no administrative connection with
Greenland for more than a century; and the traditions of this connection were no
longer familiar to the Norwegian administration in 1919.

[402] M. Ihlen gave his verbal answer a week after he had been approached, whereas
the declaration of the United States of America on August 4th, 1916, was made after
lengthy negotiations. The United States were directly interested in Davis Strait, and
there can be no doubt that there had been intercourse between Americans and the
Eskimos living along the West coast of Greenland.

[403] It is true that the Norwegian Government, in the course of the proceedings,
produced a document dating from 1916 from which it appears that the Danish
administration was then contemplating the application of the rgime of exclusion
[p118] to the whole of Greenland. Nevertheless, the dispute between the two Parties
began some years after M. Ihlen's declaration, and it seems very unlikely that, prior to
M. Ihlen's reply, there was any knowledge in Norway of documents relating to the
administration of Greenland and still less likely that such documents had been studied.

[404] If the Danish Government had approached Norway in writing as she did the
other Powers, the documents would have been submitted to the competent authorities
in Norway and the matter would in all probability have taken a different turn.

[405] It might be said that M. Ihlen was guilty of negligence on this occasion; but this
criticism applies more strongly to the Danish Government in the same connection.
When it is remembered that the action of the Danish Government was, at all events in
part, the outcome of Norwegian activity in Eastern Greenland and that the attention of
the Danish Government had been specially drawn, shortly before, to these Norwegian
interests, and again when it is remembered that the question concerned aspirations and
plans conceived by Denmark, it is reasonable to say that there was more serious
negligence on the part of the Danish Government than on that of the Norwegian
Government, which was unprepared for the Danish dmarche and did not regard its
reply as a definitive settlement of the matter.

[406] It appears that the object of the conversations of July 14th and 22nd, 1919,
between M. Ihlen and M. Krag was, so far as Denmark was concerned, to obtain a
final and binding promise; but, in that case, the form of the Danish dmarche leaves
much to be desired. The outcome was a verbal answer given by the Norwegian
Minister for Foreign Affairs, without any discussion between the two Governments
upon the substance of the question and without the question having been examined in
Norway. The responsibility for this fatal omission rests first and foremost upon
Denmark.

[407] M. Ihlen, it is true, when making his declaration of July 22nd, was speaking on
behalf of the Norwegian Government and promised that Norway would raise no
difficulty in the future settlement of this matter. Such a promise made by the Minister
for Foreign Affairs is, in principle, valid and binding. But in the present case there are
special circumstances. M. Ihlen, when making his declaration, was labouring under a
fundamental and excusable misapprehension. I would refer to M. Raestad's letter of
July 20th, 1921, to the Danish Minister at Oslo : ".... I have now received a
communication from Ihlen, whence it appears - as I thought - that, in his conversation
with M. Krag, he did not give it to be understood that Norway would agree to the new
territory [p119] being placed under the Danish Monopoly." This misapprehension on
the part of M. Ihlen was, in the first place, due to the fact that the Danish request had
been made verbally and was not accompanied by the information given to the other
Powers regarding the extension of the monopoly and regime of exclusion, which was,
as subsequently explained by Denmark, the real object of the demarche. This object
was explained in a note addressed on December 19th, 1921, by the Danish Minister at
Oslo to the Norwegian Ministry for Foreign Affairs. In that note it is explained that
the words used in the American reply and quoted by M. Krag to M. Ihlen: ".... to the
Danish Government extending their political and economic interests to the whole of
Greenland", contemplated precisely the extension to the whole of Greenland of the
special regulations in question, i.e. the regulations of the monopoly and rgime of
exclusion.

[408] A promise given under such conditions has not the same value as a promise
which is not tainted by an error or defect.
[409] M. Ihlen's declaration clearly related to a future settlement of the matter
between the two Governments. Obviously, the Danish Government, which was well
aware of the Norwegian interests on the East coast of Greenland, realized that the
future settlement must necessarily cover these interests; it would be contrary to
common sense to contend that the Norwegian interests could be put on one side
during the settlement in regard to which the Norwegian Minister for Foreign Affairs
had promised not to place difficulties in the way of the Danish aspirations. The
undertaking thus given was, in the nature of things, based on the idea of reciprocity.
The two Parties were bound, after the Ihlen-Krag conversations, mutually to refrain
from making difficulties when the time came to effect a settlement between them.

[410] Norway was honouring M. Ihlen's promise when Denmark suddenly broke off
the negotiations for a mutual settlement.

[411] On May 6th, 1921, the Danish Government obtained a royal decision by virtue
of which it attached all Greenland to the Danish colonies and factories and to the
Danish administration of Greenland. Even at this date, when the Danish Government
had thus decided to break off all negotiations, the Norwegian Government still
preserved its conciliatory attitude. On May 7th, the Norwegian Minister for Foreign
Affairs, who was entirely ignorant of the Danish decision of May 6th, suggested to the
Danish Minister at Oslo the following arrangement: the Norwegian Government was
to make a declaration corresponding approximately to that of the American
Government and would, at the same time, in a separate note, point out that [p120] this
declaration was made subject to the reservation that Norway did not abandon the
rights above mentioned (namely, the fishing and hunting rights of Norwegians). He
added that the Norwegian Government would doubtless favourably consider any
method which would lead to a settlement such as has been indicated above ; he did not
attach so much importance to the question of form.

[412] On May 10th, the Danish Government formally broke off the negotiations in
progress with the Norwegian Government by means of the following note sent by the
Danish Minister at Oslo:

"With regard to the Greenland question, I have received from the Ministry for Foreign
Affairs a telegram, the terms of which I venture to transmit to you:
'The Ministry for Foreign Affairs does not desire any further dmarche to be made
with a view to obtaining from the Norwegian Government a written declaration, but
desires to rest content with the promise already made verbally on behalf of Norway.'"

[413] The reason for this unexpected action was that the Norwegian Government,
which was fully within its rights, wished to settle the matter of Norwegian economic
interests at the same time as the question of sovereignty.

[414] By a letter of July 2nd, the Danish Minister at Oslo informed the Norwegian
Minister for Foreign Affairs that the whole of Greenland was closed.
[415] By this rupture of the Dano-Norwegian negotiations, Denmark abolished the
arrangement made with M. Ihlen, and the promise of the Norwegian Minister for
Foreign Affairs thereby ceased to be binding. Denmark's failure to fulfil the implicit
obligation resulting for her from the Krag-Ihlen agreement, gave the other Party the
right to declare himself released from his undertaking.

[416] This was what happened.

[417] Eighteen days after the notification of the closing of the whole of Greenland, M.
Rstad, the Norwegian Minister for Foreign Affairs, wrote to the Danish Minister in
the following terms:

"You will no doubt have to reckon with the fact that the present Norwegian
Government, like its predecessor, in agreement with the opinion of other responsible
circles, is unable to accept an extension of Danish sovereignty over Greenland
involving a corresponding extension of the monopoly, to the detriment of Norwegian
interests."

[418] The Danish Government has argued before the Court that, by this letter, Norway
was not contesting the sovereignty of Denmark over the whole of Greenland. The
accuracy of this allegation cannot be admitted. The Danish Government, in its
overtures to foreign Powers, had linked the question of [p121] sovereignty and that of
the monopoly so closely together that it is impossible to treat them as separate in this
connection. The Danish Government had spoken of an extension of sovereignty, while
- according to its own statement - it had in mind, from beginning to end, the extension
of the monopoly system. In a memorandum, dated January 18th, 1921, from the
Danish Legation at Oslo to the Norwegian Minister for Foreign Affairs, a description
is given of the overtures made to the Great Powers; it contains the following passage:
"The Ministry accordingly sent instructions, at the beginning of last March, to its
Ministers in London, Paris, Rome and Tokyo, to endeavour to obtain official
recognition by the Governments in question of Danish sovereignty over the whole of
Greenland urging, in support of the request, the actual position of Denmark in relation
to Greenland; the best method of according this recognition would, in the opinion of
the Danish Government, be for the said Governments to make declarations
corresponding to that already given by the United States." But during the present
proceedings, the Danish Government has laid considerable stress on the fact that the
American reply contained a definite and specific reference to the system of monopoly,
which Denmark was proposing to continue and to develop. In the instructions sent to
the Danish Ministers abroad, this inseparable interconnection, this unity in dualism,
was brought out by the words: "it is desirable that the Danish Government should
extend its care [for the Eskimos, by means of the monopoly] by means of its
sovereignty over the whole of Greenland."

[419] The first overture, which was made verbally to the Norwegian Government in
July 1919, only touched on the question of the recognition of sovereignty; and the
second overture, which was made in writing on January 18th, 1921, was also
concerned with the question of sovereignty, "an extension of Danish sovereignty to
the whole of Greenland". But, as has been already said, a later Danish note of
December 19th, 1921, revealed that what was actually aimed at was the extension of
the monopoly system as well.

[420] M. Ihlen gave his reply without realizing this inseparable inter-connection, and
indeed without being able to suspect its existence. However, when this connection
became clear to M. Rstad, the latter stated that Norway could not accept such a
request for recognition by Denmark. The request sought indeed to obtain everything:
sovereignty plus monopoly, monopoly plus sovereignty, "[an extension of its] care by
means of its sovereignty", That was indeed the object which the Danish request had
throughout had in view, and it was this request that Norway refused to accede to. M.
Rstad's [p122] no was a rejection of the request for recognition of Danish
sovereignty, in the form in which it appeared when all its aspects had been fully
revealed. M. Rstad's letter of July 20th, 1921, contains, for that reason, a refusal to
recognize this sovereignty over the whole of Greenland, the recognition of which
Denmark had endeavoured by her overtures to obtain.

[421] In this connection, some importance attaches to the fact that in both the
overtures made to the Norwegian Government in 1919 and 1921 - and not least in the
latter of these overturesthe Danish Government had shown that it did not regard
itself as possessing sovereignty over the whole of Greenland. The conviction thus
implanted in the mind of the Norwegian Government led to certain consequences.

[422] When one considers in succession the incomplete form of the request made to
M. Ihlen, the light which was subsequently thrown on the plan for the extension of the
monopoly and the regime of exclusion, the not very conciliatory attitude of the Danish
Government, when the Norwegian Government desired to have a settlement of
Norwegian economic interests in conjunction with the recognition of Danish
sovereignty, and lastly, the Danish decision to close Eastern Greenland on the ground,
as was alleged, that Norway had recognized the extension of Danish sovereignty, one
is driven to the conclusion that it would be contrary to all justice that, after the rupture
of the negotiations by Denmark in 1921, Norway should still be regarded as bound by
M. Ihlen's promise, and obliged to refrain from making difficulties in a future
settlement between the two countries.

[423] It is necessary here to mention another fact which is of some importance in this
connection. By a declaration made to the Danish Government on September 6th,
1920, the British Government had reserved its right to be consulted, in case Denmark
should contemplate selling Greenland. This British reservation, which was not
rejected by the Danish Government, was not communicated to the Norwegian
Government, to whom it presented, without doubt, considerable importance.

[424] Keeping in view the realities of the case, I am thus led to the conclusion that the
Krag-Ihlen arrangement had lost its binding force in 1921.
 [425] Since that time, the Norwegian Government has unceasingly maintained that
Denmark only possesses sovereignty over a part of Greenland, and that Norway has
not recognized a Danish sovereignty extending to the whole country.

[426] Nevertheless, in a note dated July 13th, 1923, the Norwegian Government
declared that it was prepared to enter into [p123] fresh negotiations on "an entirely
free basis". The Norwegian conception was given very definite expression in the
Protocol of Closure of the Danish-Norwegian negotiations, dated January 28th, 1924.
The Norwegian delegation declared therein that all parts of Greenland, which were
not effectively under Danish administration, were terra nullius.

[427] Accordingly, the Norwegian Government has consistently maintained, ever

since the breaking off of the negotiations by the Danish Government in 1921, that it is
not bound by the Krag-Ihlen arrangement.

[428] The reasons which I have set forth above lead me to accept the submissions
presented by the Norwegian Government in regard to sovereignty, and for these
reasons consequently prevent me, to my regret, from signing the judgment which the
Court has delivered. I am, however, in agreement with the conclusion of the judgment
which deals with the costs of the proceedings.

(Signed) Benjamin Vogt.

EN BANC

[G.R. No. 139465. October 17, 2000]

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION,

Presiding Judge, Regional Trial Court of Manila, Branch 25, and
MARK B. JIMENEZ, respondents.

RESOLUTION
PUNO, J.:

On January 18, 2000, by a vote of 9-6, we dismissed the petition at bar and
ordered the petitioner to furnish private respondent copies of the extradition
request and its supporting papers and to grant him a reasonable period within
which to file his comment with supporting evidence.[1]
 On February 3, 2000, the petitioner timely filed an Urgent Motion for
Reconsideration. He assails the decision on the following grounds:

"The majority decision failed to appreciate the following facts and points of substance
and of value which, if considered, would alter the result of the case, thus:

I. There is a substantial difference between an evaluation process antecedent to the

filing of an extradition petition in court and a preliminary investigation.

II. Absence of notice and hearing during the evaluation process will not result in a
denial of fundamental fairness.

III. In the evaluation process, instituting a notice and hearing requirement satisfies no
higher objective.

IV. The deliberate omission of the notice and hearing requirement in the Philippine
Extradition Law is intended to prevent flight.

V. There is a need to balance the interest between the discretionary powers of

government and the rights of an individual.

VI. The instances cited in the assailed majority decision when the twin rights of notice
and hearing may be dispensed with in this case results in a non sequitur conclusion.

VII. Jimenez is not placed in imminent danger of arrest by the Executive Branch
necessitating notice and hearing.

VIII. By instituting a 'proceeding' not contemplated by PD No. 1069, the Supreme

Court has encroached upon the constitutional boundaries separating it from the other
two co-equal branches of government.

IX. Bail is not a matter of right in proceedings leading to extradition or in extradition

proceedings."[2]

On March 28, 2000, a 58-page Comment was filed by the private

respondent Mark B. Jimenez, opposing petitioners Urgent Motion for
Reconsideration.
On April 5, 2000, petitioner filed an Urgent Motion to Allow Continuation
and Maintenance of Action and Filing of Reply. Thereafter, petitioner filed on
June 7, 2000 a Manifestation with the attached Note 327/00 from the Embassy
of Canada and Note No. 34 from the Security Bureau of the Hongkong SAR
Government Secretariat. On August 15, 2000, private respondent filed a
Manifestation and Motion for Leave to File Rejoinder in the event that
petitioner's April 5, 2000 Motion would be granted. Private respondent also filed
on August 18, 2000, a Motion to Expunge from the records petitioner's June 7,
2000 Manifestation with its attached note verbales. Except for the Motion to
Allow Continuation and Maintenance of Action, the Court denies these pending
motions and hereby resolves petitioner's Urgent Motion for Reconsideration.
The jugular issue is whether or not the private respondent is entitled to the
due process right to notice and hearing during the evaluation stage of the
extradition process.
We now hold that private respondent is bereft of the right to notice and
hearing during the evaluation stage of the extradition process.
First. P.D. No. 1069[3] which implements the RP-US Extradition
Treaty provides the time when an extraditee shall be furnished a copy of the
petition for extradition as well as its supporting papers, i.e., after the filing of the
petition for extradition in the extradition court, viz:

"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of Notices. -

(1) Immediately upon receipt of the petition, the presiding judge of the court shall, as
soon as practicable, summon the accused to appear and to answer the petition on the
day and hour fixed in the order . . . Upon receipt of the answer, or should the accused
after having received the summons fail to answer within the time fixed, the presiding
judge shall hear the case or set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case."

It is of judicial notice that the summons includes the petition for extradition
which will be answered by the extraditee.
There is no provision in the RP-US Extradition Treaty and in P.D. No. 1069
which gives an extraditee the right to demand from the petitioner Secretary of
Justice copies of the extradition request from the US government and its
supporting documents and to comment thereon while the request is still
undergoing evaluation. We cannot write a provision in the treaty giving private
respondent that right where there is none. It is well-settled that a "court cannot
alter, amend, or add to a treaty by the insertion of any clause, small or great, or
dispense with any of its conditions and requirements or take away any
qualification, or integral part of any stipulation, upon any motion of equity, or
general convenience, or substantial justice."[4]
 Second. All treaties, including the RP-US Extradition Treaty, should be
interpreted in light of their intent. Nothing less than the Vienna Convention
on the Law of Treaties to which the Philippines is a signatory provides that "a
treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in light of its object
and purpose."[5](emphasis supplied) The preambular paragraphs of P.D. No.
1069 define its intent, viz:

"WHEREAS, under the Constitution[,] the Philippines adopts the generally accepted
principles of international law as part of the law of the land, and adheres to the policy
of peace, equality, justice, freedom, cooperation and amity with all nations;

WHEREAS, the suppression of crime is the concern not only of the state where it is
committed but also of any other state to which the criminal may have escaped,
because it saps the foundation of social life and is an outrage upon humanity at large,
and it is in the interest of civilized communities that crimes should not go unpunished;

WHEREAS, in recognition of this principle the Philippines recently concluded an

extradition treaty with the Republic of Indonesia, and intends to conclude similar
treaties with other interested countries;

x x x." (emphasis supplied)

It cannot be gainsaid that today, countries like the Philippines forge extradition
treaties to arrest the dramatic rise of international and transnational crimes like
terrorism and drug trafficking. Extradition treaties provide the assurance that
the punishment of these crimes will not be frustrated by the frontiers of territorial
sovereignty. Implicit in the treaties should be the unbending commitment that
the perpetrators of these crimes will not be coddled by any signatory state.
It ought to follow that the RP-US Extradition Treaty calls for an interpretation
that will minimize if not prevent the escape of extraditees from the long arm of
the law and expedite their trial. The submission of the private respondent, that
as a probable extraditee under the RP-US Extradition Treaty he should be
furnished a copy of the US government request for his extradition and its
supporting documents even while they are still under evaluation by petitioner
Secretary of Justice, does not meet this desideratum. The fear of the petitioner
Secretary of Justice that the demanded notice is equivalent to a notice to flee
must be deeply rooted on the experience of the executive branch of our
government. As it comes from the branch of our government in charge of the
faithful execution of our laws, it deserves the careful consideration of this
Court. In addition, it cannot be gainsaid that private respondents demand
for advance notice can delay the summary process of executive evaluation of
the extradition request and its accompanying papers. The foresight of Justice
Oliver Wendell Holmes did not miss this danger. In 1911, he held:

"It is common in extradition cases to attempt to bring to bear all the factitious niceties
of a criminal trial at common law. But it is a waste of time . . . if there is presented,
even in somewhat untechnical form according to our ideas, such reasonable ground to
suppose him guilty as to make it proper that he should be tried, good faith to the
demanding government requires his surrender."[6] (emphasis supplied)

We erode no right of an extraditee when we do not allow time to stand still on

his prosecution. Justice is best served when done without delay.
Third. An equally compelling factor to consider is the understanding of the
parties themselves to the RP-US Extradition Treaty as well as the general
interpretation of the issue in question by other countries with similar
treaties with the Philippines. The rule is recognized that while courts have the
power to interpret treaties, the meaning given them by the departments of
government particularly charged with their negotiation and enforcement is
accorded great weight.[7] The reason for the rule is laid down in Santos III v.
Northwest Orient Airlines, et al.,[8] where we stressed that a treaty is a joint
executive-legislative act which enjoys the presumption that "it was first carefully
studied and determined to be constitutional before it was adopted and given the
force of law in the country."
Our executive department of government, thru the Department of Foreign
Affairs (DFA) and the Department of Justice (DOJ), has steadfastly maintained
that the RP-US Extradition Treaty and P.D. No. 1069 do not grant the private
respondent a right to notice and hearing during the evaluation stage of an
extradition process.[9] This understanding of the treaty is shared by the US
government, the other party to the treaty.[10] This interpretation by the two
governments cannot be given scant significance. It will be presumptuous for the
Court to assume that both governments did not understand the terms of the
treaty they concluded.
Yet, this is not all. Other countries with similar extradition treaties with
the Philippines have expressed the same interpretation adopted by the
Philippine and US governments. Canadian[11] and Hongkong[12] authorities,
thru appropriate note verbales communicated to our Department of Foreign
Affairs, stated in unequivocal language that it is not an international practice to
afford a potential extraditee with a copy of the extradition papers during the
evaluation stage of the extradition process. We cannot disregard such a
convergence of views unless it is manifestly erroneous.
 Fourth. Private respondent, however, peddles the postulate that he must
be afforded the right to notice and hearing as required by our Constitution. He
buttresses his position by likening an extradition proceeding to a criminal
proceeding and the evaluation stage to a preliminary investigation.
We are not persuaded. An extradition proceeding is sui generis. It is not a
criminal proceeding which will call into operation all the rights of an accused
as guaranteed by the Bill of Rights. To begin with, the process of extradition
does not involve the determination of the guilt or innocence of an
accused.[13] His guilt or innocence will be adjudged in the court of the state
where he will be extradited. Hence, as a rule, constitutional rights that are only
relevant to determine the guilt or innocence of an accused cannot be invoked
by an extraditee especially by one whose extradition papers are still undergoing
evaluation.[14] As held by the US Supreme Court in United States v. Galanis:

"An extradition proceeding is not a criminal prosecution, and the constitutional

safeguards that accompany a criminal trial in this country do not shield an accused
from extradition pursuant to a valid treaty."[15]

There are other differences between an extradition proceeding and a criminal

proceeding. An extradition proceeding is summary in nature while criminal
proceedings involve a full-blown trial.[16] In contradistinction to a criminal
proceeding, the rules of evidence in an extradition proceeding allow admission
of evidence under less stringent standards.[17] In terms of the quantum of
evidence to be satisfied, a criminal case requires proof beyond reasonable
doubt for conviction[18] while a fugitive may be ordered extradited "upon showing
of the existence of a prima facie case."[19] Finally, unlike in a criminal case where
judgment becomes executory upon being rendered final, in an extradition
proceeding, our courts may adjudge an individual extraditable but the President
has the final discretion to extradite him.[20] The United States adheres to a similar
practice whereby the Secretary of State exercises wide discretion in balancing
the equities of the case and the demands of the nation's foreign relations before
making the ultimate decision to extradite.[21]
As an extradition proceeding is not criminal in character and the
evaluation stage in an extradition proceeding is not akin to a preliminary
investigation, the due process safeguards in the latter do not necessarily
apply to the former. This we hold for the procedural due process required by
a given set of circumstances "must begin with a determination of the precise
nature of the government function involved as well as the private interest
that has been affected by governmental action."[22] The concept of due
process is flexible for "not all situations calling for procedural safeguards call for
the same kind of procedure."[23]
 Fifth. Private respondent would also impress upon the Court the urgency of
his right to notice and hearing considering the alleged threat to his liberty "which
may be more priceless than life."[24] The supposed threat to private respondents
liberty is perceived to come from several provisions of the RP-US Extradition
Treaty and P.D. No. 1069 which allow provisional arrest and temporary
detention.
We first deal with provisional arrest. The RP-US Extradition Treaty provides
as follows:

"PROVISIONAL ARREST

1. In case of urgency, a Contracting Party may request the provisional arrest of the
person sought pending presentation of the request for extradition. A request for
provisional arrest may be transmitted through the diplomatic channel or directly
between the Philippine Department of Justice and the United States Department of
Justice.

2. The application for provisional arrest shall contain:

a) a description of the person sought;
b) the location of the person sought, if known;
c) a brief statement of the facts of the case, including, if possible, the time and location
of the offense;
d) a description of the laws violated;
e) a statement of the existence of a warrant of arrest or finding of guilt or judgment of
conviction against the person sought; and
f) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its
application and the reasons for any denial.

4. A person who is provisionally arrested may be discharged from custody upon the
expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the
executive authority of the Requested State has not received the formal request for
extradition and the supporting documents required in Article 7." (emphasis supplied)

In relation to the above, Section 20 of P.D. No. 1069 provides:

"Sec. 20. Provisional Arrest.- (a) In case of urgency, the requesting state may,
pursuant to the relevant treaty or convention and while the same remains in force,
request for the provisional arrest of the accused, pending receipt of the request for
extradition made in accordance with Section 4 of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the National Bureau
of Investigation, Manila, either through the diplomatic channels or direct by post or
telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his
behalf shall upon receipt of the request immediately secure a warrant for the
provisional arrest of the accused from the presiding judge of the Court of First
Instance of the province or city having jurisdiction of the place, who shall issue the
warrant for the provisional arrest of the accused. The Director of the National Bureau
of Investigation through the Secretary of Foreign Affairs shall inform the requesting
state of the result of its request.

(d) If within a period of 20 days after the provisional arrest the Secretary of Foreign
Affairs has not received the request for extradition and the documents mentioned in
Section 4 of this Decree, the accused shall be released from custody." (emphasis
supplied)

Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide
that private respondent may be provisionally arrested only pending
receipt of the request for extradition. Our DFA has long received the
extradition request from the United States and has turned it over to the DOJ. It
is undisputed that until today, the United States has not requested for private
respondents provisional arrest. Therefore, the threat to private respondents
liberty has passed. It is more imagined than real.
Nor can the threat to private respondents liberty come from Section 6 of
P.D. No. 1069, which provides:

"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of

Notices.- (1) Immediately upon receipt of the petition, the presiding judge of the court
shall, as soon as practicable, summon the accused to appear and to answer the petition
on the day and hour fixed in the order. [H]e may issue a warrant for the immediate
arrest of the accused which may be served anywhere within the Philippines if it
appears to the presiding judge that the immediate arrest and temporary detention
of the accused will best serve the ends of justice. . .

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case."
(emphasis supplied)
 It is evident from the above provision that a warrant of arrest for the
temporary detention of the accused pending the extradition hearing may only
be issued by the presiding judge of the extradition court upon filing of the
petition for extradition. As the extradition process is still in the evaluation
stage of pertinent documents and there is no certainty that a petition for
extradition will be filed in the appropriate extradition court, the threat to private
respondents liberty is merely hypothetical.
Sixth. To be sure, private respondents plea for due process deserves
serious consideration involving as it does his primordial right to liberty. His plea
to due process, however, collides with important state interests which
cannot also be ignored for they serve the interest of the greater
majority. The clash of rights demands a delicate balancing of interests
approach which is a "fundamental postulate of constitutional law."[25] The
approach requires that we "take conscious and detailed consideration of the
interplay of interests observable in a given situation or type
of situation."[26] These interests usually consist in the exercise by an individual
of his basic freedoms on the one hand, and the governments promotion of
fundamental public interest or policy objectives on the other.[27]
In the case at bar, on one end of the balancing pole is the private
respondents claim to due process predicated on Section 1, Article III of the
Constitution, which provides that "No person shall be deprived of life, liberty, or
property without due process of law . . ." Without a bubble of doubt, procedural
due process of law lies at the foundation of a civilized society which accords
paramount importance to justice and fairness. It has to be accorded the weight
it deserves.
This brings us to the other end of the balancing pole. Petitioner avers that
the Court should give more weight to our national commitment under the RP-
US Extradition Treaty to expedite the extradition to the United States of persons
charged with violation of some of its laws.Petitioner also emphasizes the need
to defer to the judgment of the Executive on matters relating to foreign affairs in
order not to weaken if not violate the principle of separation of powers.
Considering that in the case at bar, the extradition proceeding is only
at its evaluation stage, the nature of the right being claimed by the private
respondent is nebulous and the degree of prejudice he will allegedly
suffer is weak, we accord greaterweight to the interests espoused by the
government thru the petitioner Secretary of Justice. In Angara v. Electoral
Commission, we held that the "Constitution has blocked out with deft strokes
and in bold lines, allotment of power to the executive, the legislative and the
judicial departments of the government."[28] Under our constitutional scheme,
executive power is vested in the President of the Philippines.[29] Executive power
includes, among others, the power to contract or guarantee foreign loans and
the power to enter into treaties or international agreements.[30] The task of
safeguarding that these treaties are duly honored devolves upon the executive
department which has the competence and authority to so act in the
international arena.[31] It is traditionally held that the President has power and
even supremacy over the countrys foreign relations.[32] The executive
department is aptly accorded deference on matters of foreign relations
considering the Presidents most comprehensive and most confidential
information about the international scene of which he is regularly briefed by our
diplomatic and consular officials. His access to ultra-sensitive military
intelligence data is also unlimited.[33] The deference we give to the executive
department is dictated by the principle of separation of powers. This principle is
one of the cornerstones of our democratic government. It cannot be eroded
without endangering our government.
The Philippines also has a national interest to help in suppressing crimes
and one way to do it is to facilitate the extradition of persons covered by treaties
duly entered by our government. More and more, crimes are becoming the
concern of one world. Laws involving crimes and crime prevention are
undergoing universalization. One manifest purpose of this trend towards
globalization is to deny easy refuge to a criminal whose activities threaten the
peace and progress of civilized countries. It is to the great interest of the
Philippines to be part of this irreversible movement in light of its vulnerability to
crimes, especially transnational crimes.
In tilting the balance in favor of the interests of the State, the Court
stresses that it is not ruling that the private respondent has no right to
due process at all throughout the length and breadth of the extrajudicial
proceedings. Procedural due process requires a determination of what
process is due, when it is due, and the degree of what is due. Stated
otherwise, a prior determination should be made as to whether procedural
protections are at all due and when they are due, which in turn depends
on the extent to which an individual will be "condemned to suffer grievous
loss."[34] We have explained why an extraditee has no right to notice and hearing
during the evaluation stage of the extradition process. As aforesaid, P.D. No.
1069 which implements the RP-US Extradition Treaty affords an
extraditee sufficient opportunity to meet the evidence against him once the
petition is filed in court. The time for the extraditee to know the basis of the
request for his extradition is merely moved to the filing in court of the formal
petition for extradition. The extraditee's right to know is momentarily withheld
during the evaluation stage of the extradition process to accommodate the
more compelling interest of the State to prevent escape of potential extraditees
which can be precipitated by premature information of the basis of the request
for his extradition. No less compelling at that stage of the extradition
proceedings is the need to be more deferential to the judgment of a co-equal
branch of the government, the Executive, which has been endowed by our
Constitution with greater power over matters involving our foreign
relations. Needless to state, this balance of interests is not a static but a
moving balance which can be adjusted as the extradition process moves from
the administrative stage to the judicial stage and to the execution stage
depending on factors that will come into play. In sum, we rule that
the temporary hold on private respondent's privilege of notice and hearing is
a soft restraint on his right to due process which will not deprive him
of fundamental fairness should he decide to resist the request for his
extradition to the United States. There is no denial of due process as long
as fundamental fairness is assured a party.
We end where we began. A myopic interpretation of the due process clause
would not suffice to resolve the conflicting rights in the case at bar. With the
global village shrinking at a rapid pace, propelled as it is by technological leaps
in transportation and communication, we need to push further back our horizons
and work with the rest of the civilized nations and move closer to the universal
goals of "peace, equality, justice, freedom, cooperation and amity with all
nations."[35] In the end, it is the individual who will reap the harvest of peace and
prosperity from these efforts.
WHEREFORE, the Urgent Motion for Reconsideration is GRANTED. The
Decision in the case at bar promulgated on January18, 2000 is
REVERSED. The assailed Order issued by the public respondent judge on
August 9, 1999 is SET ASIDE. The temporary restraining order issued by this
Court on August 17, 1999 is made PERMANENT. The Regional Trial Court of
Manila, Branch 25 is enjoined from conducting further proceedings in Civil Case
No. 99-94684.
SO ORDERED.
SECOND DIVISION

[G.R. No. 140520. December 18, 2000]

JUSTICE SERAFIN R. CUEVAS, substituted by ARTEMIO G. TUQUERO
in his capacity as Secretary of Justice, petitioner, vs. JUAN
ANTONIO MUOZ, respondent.

DECISION
DE LEON, JR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals,
dated November 9, 1999, directing the immediate release of respondent Juan Antonio
Muoz from the custody of law upon finding the Order [2] of provisional arrest dated
September 20, 1999 issued by Branch 19 of the Regional Trial Court of Manila to be null
and void.
The antecedent facts:
On August 23, 1997, the Hong Kong Magistrates Court at Eastern Magistracy issued
a warrant for the arrest of respondent for seven (7) counts of accepting an advantage as
an agent contrary to Section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 of
Hong Kong, and seven (7) counts of conspiracy to defraud, contrary to the common law
of Hong Kong.[3] Said warrant remains in full force and effect up to the present time.[4]
On September 13, 1999, the Philippine Department of Justice (hereafter, Philippine
DOJ) received a request for the provisional arrest of the respondent from the Mutual Legal
Assistance Unit, International Law Division of the Hong Kong Department of Justice
(hereafter, Hong Kong DOJ)[5] pursuant to Article 11(1) of the Agreement Between The
Government Of The Republic Of The Philippines And The Government Of Hong Kong
For The Surrender Of Accused And Convicted Persons (hereafter, RP-Hong Kong
Extradition Agreement).[6] The Philippine DOJ forwarded the request for provisional arrest
to the Anti-Graft Division of the National Bureau of Investigation (NBI).
On September 17, 1999, for and in behalf of the government of Hong Kong, the NBI
filed an application for the provisional arrest of respondent with the Regional Trial Court
(RTC) of Manila.
On September 20, 1999, Branch 19 of the RTC of Manila issued an Order granting
the application for provisional arrest and issuing the corresponding Order of Arrest. [7]
On September 23, 1999, respondent was arrested pursuant to the said order, and is
currently detained at the NBI detention cell.[8]
On October 14, 1999, respondent filed with the Court of Appeals, a petition
for certiorari, prohibition and mandamus with application for preliminary mandatory
injunction and/or writ of habeas corpus assailing the validity of the Order of Arrest. The
Court of Appeals rendered a decision declaring the Order of Arrest null and void on the
following grounds:
(1) that there was no urgency to warrant the request for provisional arrest under Article
11(1) of the RP-Hong Kong Extradition Agreement;[9]
 (2) that the request for provisional arrest and the accompanying warrant of arrest and
summary of facts were unauthenticated and mere facsimile copies which are
insufficient to form a basis for the issuance of the Order of Arrest;[10]
(3) that the twenty (20) day period for provisional arrest under Section 20(d) of
Presidential Decree No. 1069 otherwise known as the Philippine Extradition Law, was
not amended by Article 11(3) of the RP-Hong Kong Extradition Agreement which
provides for a forty-five (45) day period for provisional arrest;[11]
(4) that the Order of Arrest was issued without the Judge having personally determined
the existence of probable cause;[12] and
(5) that the requirement of dual criminality under Section 3(a) of P.D. No. 1069 has not
been satisfied as the crimes for which respondent is wanted in Hong Kong, namely
accepting an advantage as an agent and conspiracy to commit fraud, are not
punishable by Philippine laws.[13]
Thus, petitioner Justice Serafin R. Cuevas, in his capacity as the Secretary of the
Department of Justice, lost no time in filing the instant petition.[14]
On November 17, 1999, respondent filed an Urgent Motion For Release Pending
Appeal. He primarily contended that, since Section 20(d) of P.D. No. 1069 sets the
maximum period of provisional arrest at twenty (20) days, and he has been detained
beyond the said period, without both a request for extradition having been received by
the Philippine DOJ and the corresponding petition for extradition having been filed in the
proper RTC, he should be released from detention. [15]
On December 16, 1999, petitioner filed a Manifestation with this Court stressing the
fact that as early as November 5, 1999, the Philippine DOJ had already received from the
Hong Kong DOJ, a formal request for the surrender of respondent. Petitioner also
informed this Court that pursuant to the said request for extradition, the Philippine DOJ,
representing the Government of Hong Kong, filed on November 22, 1999, a verified
petition for the extradition of respondent docketed as Case No. 99-95733 and currently
pending in Branch 10 of the RTC of Manila.[16]
Petitioner submits that the Court of Appeals erred in nullifying the Order of provisional
arrest against respondent.
Petitioner imputes the following errors in the subject Decision of the Court of Appeals,
to wit:
I

The Court of Appeals gravely erred in holding that:

A. there was no urgency for the provisional arrest of respondent;
B. the municipal law (P.D. No. 1069) subordinates an international agreement (RP-
Hongkong Agreement);
C. the supporting documents for a request for provisional arrest have to be
authenticated;
D. there was lack of factual and legal bases in the determination of probable cause; and
 E. the offense of accepting an advantage as an agent is not an offense under the Anti-
Graft and Corrupt Practices Act, as amended.
II

The Court of Appeals seriously erred in declaring as null and void the trial
courts Order of Arrest dated September 20, 1999 despite that (sic) respondent
waived the right to assail the order of arrest by filing in the trial court a motion
for release on recognizance, that (sic) the issue of legality of the order of
arrest was being determined by the trial court, and respondent mocked the
established rules of procedure intended for an orderly administration of
justice.[17]

Petitioner takes exception to the finding of the Court of Appeals that the offense of
accepting an advantage as an agent is not punishable under Republic Act (R.A.) No. 3019
otherwise known as the Anti-Graft and Corrupt Practices Act, thus, obviating the
application of P.D. No. 1069[18] that requires the offense to be punishable under the laws
both of the requesting state or government and the Republic of the Philippines.[19]
However, the issue of whether or not the rule of double criminality applies was not for
the Court of Appeals to decide in the first place.The trial court in which the petition for
extradition is filed is vested with jurisdiction to determine whether or not the offenses
mentioned in the petition are extraditable based on the application of the dual criminality
rule and other conditions mentioned in the applicable treaty. In this case, the presiding
Judge of Branch 10 of the RTC of Manila has yet to rule on the extraditability of the
offenses for which the respondent is wanted in Hong Kong. Therefore, respondent has
prematurely raised this issue before the Court of Appeals and now, before this Court.
Petitioners other arguments, however, are impressed with merit.
First. There was urgency for the provisional arrest of the respondent.
Section 20(a) of P.D. No. 1069 reads as follows:

Provisional Arrest. - (a) In case of urgency, the requesting state may, pursuant
to the relevant treaty or convention and while the same remains in force,
request for the provisional arrest of the accused, pending receipt of the
request for extradition made in accordance with Section 4 of this Decree;

and Article 11 of the Extradition Agreement between the Philippines and Hong Kong
provides in part that:

(1) In urgent cases, the person sought may, in accordance with the law of the
requested Party, be provisionally arrested on the application of the requesting
Party. x x x.
 Nothing in existing treaties or Philippine legislation defines the meaning of urgency
as used in the context of a request for provisional arrest. Using reasonable standards of
interpretation, however, we believe that urgency connotes such conditions relating to the
nature of the offense charged and the personality of the prospective extraditee which
would make him susceptible to the inclination to flee or escape from the jurisdiction if he
were to learn about the impending request for his extradition and/or likely to destroy the
evidence pertinent to the said request or his eventual prosecution and without which the
latter could not proceed.[20]
We find that such conditions exist in respondents case.
First. It should be noted that at the time the request for provisional arrest was made,
respondents pending application for the discharge of a restraint order over certain assets
held in relation to the offenses with which he is being charged, was set to be heard by the
Court of First Instance of Hong Kong on September 17, 1999. The Hong Kong DOJ was
concerned that the pending request for the extradition of the respondent would be
disclosed to the latter during the said proceedings, and would motivate respondent to flee
the Philippines before the request for extradition could be made.[21]
There is also the fact that respondent is charged with seven (7) counts of accepting
an advantage as an agent and seven (7) counts of conspiracy to defraud, for each count
of which, if found guilty, he may be punished with seven (7) and fourteen (14) years
imprisonment, respectively. Undoubtedly, the gravity of the imposable penalty upon an
accused is a factor to consider in determining the likelihood that the accused will abscond
if allowed provisional liberty. It is, after all, but human to fear a lengthy, if not a lifetime,
incarceration. Furthermore, it has also not escaped the attention of this Court that
respondent appears to be affluent and possessed of sufficient resources to facilitate an
escape from this jurisdiction.[22]
The arguments raised by the respondent in support of his allegation that he is not a
flight risk, are, to wit:
a) He did not flee or hide when the Central Bank and the NBI investigated the matter
alleged in the request for extradition of the Hongkong Government during the second
half of 1994; he has since been cleared by the Central Bank;
b) He did not flee or hide when the Hongkong Governments Independent Commission
Against Corruption (ICAC) issued a warrant for his arrest in August 1997; he has in
fact filed a case in Hongkong against the Hongkong Government for the release of
his frozen assets;
c) He never changed his address nor his identity, and has sought vindication of his rights
before the courts in Hongkong and in the Philippines;
d) He has never evaded arrest by any lawful authority, and certainly will never fly away
now that his mother is on her death bed.[23]
do not convince this Court. That respondent did not flee despite the investigation
conducted by the Central Bank and the NBI way back in 1994, nor when the warrant for
his arrest was issued by the Hong Kong ICAC in August 1997, is not a guarantee that he
will not flee now that proceedings for his extradition are well on the way. Respondent is
about to leave the protective sanctuary of his mother state to face criminal charges in
another jurisdiction. It cannot be denied that this is sufficient impetus for him to flee the
country as soon as the opportunity to do so arises.
Respondent also avers that his mothers impending death makes it impossible for him
to leave the country. However, by respondents own admission, his mother finally expired
at the Cardinal Santos Hospital in Mandaluyong City last December 5, 1999. [24]
Second. Twelve (12) days after respondent was provisionally arrested, the Philippine
DOJ received from the Hong Kong DOJ, a request for the surrender or extradition of
respondent.
On one hand, Section 20(d) of P.D. No. 1069 reads as follows:

(d) If within a period of twenty (20) days after the provisional arrest the
Secretary of Foreign Affairs has not received the request for extradition and
the documents mentioned in Section 4 of this Decree, the accused shall be
released from custody.

On the other hand, Article 11(3) of the RP-Hong Kong Extradition Agreement provides
that:
(3) The provisional arrest of the person sought shall be terminated upon the expiration
of forty-five days from the date of arrest if the request for surrender has not been
received, unless the requesting Party can justify continued provisional arrest of the
person sought in which case the period of provisional arrest shall be terminated upon
the expiration of a reasonable time not being more than a further fifteen days. This
provision shall not prevent the re-arrest or surrender of the person sought if the
request for the persons surrender is received subsequently.
Petitioner contends that Article 11(3) of the RP-Hong Kong Extradition Agreement
which allows a period of forty-five (45) days for provisional arrest absent a formal request
for extradition has amended Section 20(d) of P.D. No. 1069 which provides only a twenty
(20) day period for the same.[25]
Petitioners argument on this point, however, has been rendered moot and academic
by the fact that as early as November 5, 1999 or twelve (12) days after respondents arrest
on September 23, 1999, the Philippine DOJ already received from the Hong Kong DOJ,
a request for the surrender of respondent. The crucial event, after all, which tolls the
provisional detention period is the transmittal of the request for the extradition or
surrender of the extraditee. Hence, the question as to whether the period for provisional
arrest stands at twenty (20) days, as provided for in P.D. No. 1069, or has been extended
to forty-five (45) days under the Extradition Agreement between Hong Kong and the
Philippines is rendered irrelevant by the actual request made by the Hong Kong DOJ for
the extradition of respondent twelve (12) days after the request for the latters provisional
arrest.
Likewise, respondents contention in his motion for release pending appeal, that his
incarceration cannot continue beyond the twenty (20) day period without a petition for his
extradition having been filed in court, is simply bereft of merit. It is clear from the above-
cited provisions, that for the provisional arrest of an accused to continue, the formal
request for extradition is not required to be filed in court. It only need be received by the
requested state within the periods provided for by P.D. No. 1069 and the RP-Hong Kong
Extradition Agreement. By no stretch of imagination may we infer from the required
receipt of the request for extradition and its accompanying documents, the additional
requisite that the same be filed in the court within the same periods.
Third. The request for provisional arrest of respondent and its accompanying
documents are valid despite lack of authentication.
Section 20(b) of P.D. No. 1069 reads as follows:
(b) A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or
telegraph.
and Article 11(1) of the RP-Hong Kong Extradition Agreement provides in part that:

x x x. The application for provisional arrest shall contain an indication of

intention to request the surrender of the person sought and the text of a
warrant of arrest or a judgment of conviction against that person, a statement
of the penalty for that offense, and such further information, if any, as would
be necessary to justify the issue of a warrant of arrest had the offense been
committed, or the person convicted, within the jurisdiction of the requested
Party.

The language of the abovequoted provisions is clear. There is no requirement for the
authentication of a request for provisional arrest and its accompanying documents.
We also note that under Section 20(d) of P.D. No. 1069, viz:
(d) If within a period of 20 days after the request for provisional arrest the Secretary of
Foreign Affairs has not received the request for extradition and the documents
mentioned in Section 4 of this Decree,[26] the accused shall be released from
custody.[27]
the original or authenticated copies of the decision or sentence imposed upon the
accused by the requesting state or the criminal charge and the warrant of arrest issued
by the authority of the requesting state, need not accompany the request for provisional
arrest and may, in fact, be transmitted after the said request has already been received
by the requested state.
Furthermore, the pertinent provision of the RP-Hong Kong Extradition Agreement
enumerates the documents that must accompany the request, as follows: (1) an
indication of the intention to request the surrender of the person sought; (2) the text of a
warrant of arrest or judgment of conviction against that person; (3) a statement of penalty
for that offense; and (4) such further information as would justify the issue of a warrant of
arrest had the offense been committed, or the person convicted, within the jurisdiction of
the requested party.[28] That the enumeration does not specify that these documents must
be authenticated copies, is not a mere omission of law. This may be gleaned from the
fact that while Article 11(1) does not require the accompanying documents of a request
for provisional arrest to be authenticated, Article 9 of the same Extradition Agreement
makes authentication a requisite for admission in evidence of any document
accompanying a request for surrender or extradition.[29] In other words, authentication
is required for the request for surrender or extradition but not for the request for
provisional arrest.
We must also state that the above mentioned provisions of P.D. No. 1069 and the
RP-Hong Kong Extradition Agreement, as they are worded, serve the purpose sought to
be achieved by treaty stipulations for provisional arrest.
The process of preparing a formal request for extradition and its accompanying
documents, and transmitting them through diplomatic channels, is not only time-
consuming but also leakage-prone. There is naturally a great likelihood of flight by
criminals who get an intimation of the pending request for their extradition. To solve this
problem, speedier initial steps in the form of treaty stipulations for provisional arrest were
formulated.[30] Thus, it is an accepted practice for the requesting state to rush its request
in the form of a telex or diplomatic cable, the practicality of the use of which is
conceded.[31] Even our own Extradition Law (P.D. No. 1069) allows the transmission of a
request for provisional arrest via telegraph.[32] In the advent of modern technology, the
telegraph or cable have been conveniently replaced by the facsimile machine. Therefore,
the transmission by the Hong Kong DOJ of the request for respondents provisional arrest
and the accompanying documents, namely, a copy of the warrant of arrest against
respondent, a summary of the facts of the case against him, particulars of his birth and
address, a statement of the intention to request his provisional arrest and the reason
therefor, by fax machine, more than serves this purpose of expediency.
Respondents reliance on Garvida v. Sales, Jr.[33] is misplaced. The proscription
against the admission of a pleading that has been transmitted by facsimile machine has
no application in the case at bar for obvious reasons. First, the instant case does not
involve a pleading; and second, unlike the COMELEC Rules of Procedure which do not
sanction the filing of a pleading by means of a facsimile machine, P.D. No. 1069 and the
RP Hong Kong Extradition Agreement do not prohibit the transmission of a request for
provisional arrest by means of a fax machine.
In a futile attempt to convince this Court, respondent cites our ruling in the recent
case of Secretary of Justice v. Hon. Lantion, et al.[34],where we held that the right of an
extraditee to due process necessarily includes the right to be furnished with copies of
the extradition request and supporting papers, and to file a comment thereto during the
evaluation stage of the extradition proceedings.
Respondent posits that, in the same vein, the admission by the RTC of the request
for provisional arrest and its supporting documents despite lack of authentication is a
violation of the respondents right to due process. This contention fails to impress us.
Respondents contention is now a non-issue, in view of our Resolution dated October
17, 2000 in the said case of Secretary of Justice v. Hon. Lantion, et al. reconsidering and
reversing our earlier decision therein. Acting on therein petitioners Motion for
Reconsideration, we held that therein respondent is bereft of the right to notice and
hearing during the evaluation stage of the extradition process. [35] Worthy to reiterate is the
following concluding pronouncement of this Court in the said case:[36]

In tilting the balance in favor of the interests of the State, the Court stresses
that it is not ruling that the private respondent has no right to due process at
all throughout the length and breath of the extrajudicial
proceedings. Procedural due process requires a determination of what
process is due, when it is due and the degree of what is due. Stated
otherwise, a prior determination should be made as to whether procedural
protections are at all due and when they are due, which in turn depends on
the extent to which an individual will be condemned to suffer grievous
loss. We have explained why an extraditee has no right to notice and
[37]

hearing during the evaluation stage of the extradition process. As aforesaid,

P.D. 1069 xxx affords an extraditee sufficient opportunity to meet the evidence
against him once the petition is filed in court. The time for the extraditee to
know the basis of the request for his extradition is merely moved to the filing in
court of the formal petition for extradition. The extraditees right to know
is momentarily withheld during the evaluation stage of the extradition process
to accommodate the more compelling interest of the State to prevent escape
of potential extraditees which can be precipitated by premature information of
the basis of the request for his extradition. No less compelling at that stage of
the extradition proceedings is the need to be more deferential to the judgment
of a co-equal branch of the government, the Executive, which has been
endowed by our Constitution with greater power over matters involving our
foreign relations. Needless to state, this balance of interests is not a static but
a moving balance which can be adjusted as the extradition process moves
from the administrative stage to the judicial stage and to the execution stage
depending on factors that will come into play. In sum, we rule that
the temporary hold on private respondents privilege of notice and hearing is
a soft restraint on his right to due process which will not deprive him
of fundamental fairness should he decide to resist the request for his
extradition to the United States.There is no denial of due process as long as
fundamental fairness is assured a party.

Respondent also contends that the request for his provisional arrest was rendered
defective by the fact that the person who made the request was not a foreign diplomat as
provided for in Section 4 (2) of P.D. No. 1069, to wit:

SEC. 4. Request; By Whom Made; Requirements.-

(1) Any foreign state or government with which the Republic of the Philippines
has entered into extradition treaty or convention, and only when the relevant
treaty or convention, remains in force, may request for the extradition of any
accused who is suspected of being in the territorial jurisdiction of the
Philippines.

(2) The request shall be made by the Foreign Diplomat of the requesting state
or government, addressed to the Secretary of Foreign Affairs, x x x.

This contention deserves scant consideration. The foregoing refers to the

requirements for a request for extradition and not for a request for provisional arrest. The
pertinent provisions are Article 11(2) which states:

An application for provisional arrest may be forwarded through the same

channels as a request for surrender or through the International Criminal
Police Organization (INTERPOL); [38]

and Article 8(1) which provides:

Requests for surrender and related documents shall be conveyed through the
appropriate authority as may be notified from time to time by one party to
another. [39]

Hence, there is sufficient compliance with the foregoing if the request for provisional
arrest is made by an official who is authorized by the government of the requesting state
to make such a request and the authorization is communicated to the requested state.
The request for provisional arrest of respondent was signed by Wayne Walsh, Senior
Government Counsel of the Mutual Legal Assistance Unit, International Law Division of
the Hong Kong DOJ who stated in categorical terms that:

The Department of Justice (Mutual Legal Assistance Unit) of the HKSAR is

the appropriate authority under the Agreement to make requests for
provisional arrest and surrender. I confirm that as a member of the Mutual
Legal Assistance Unit, I am authorized (sic) to make this request for
provisional arrest. [40]

Last. There was sufficient factual and legal basis for the determination of probable
cause as a requisite for the issuance of the Order of Arrest.[41]
We have defined probable cause for the issuance of a warrant of arrest as the
existence of such facts and circumstances that would lead a reasonably discreet and
prudent person to believe that an offense has been committed by the person sought to
be arrested.[42] The determination of probable cause is a function of the Judge. Such is the
mandate of our Constitution which provides that a warrant of arrest shall issue only upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce.[43] In the case of Allado
v. Diokno,[44] we stated that personal determination by the Judge of the existence of
probable cause means that he -
(a) shall personally evaluate the report and the supporting documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue a
warrant of arrest; or, (b) if on the basis thereof he finds no probable cause, may
disregard the fiscals report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion on the existence of probable cause.[45]
The Judge cannot, therefore, merely rely on the certification issued by the
prosecutor. He is, however, not required to personally examine ipso facto the
complainant and his witnesses. He sufficiently complies with the requirement of personal
determination if he reviews the information and the documents attached thereto, and on
the basis thereof forms a belief that the accused is probably guilty of the crime with which
he is being charged.[46] The Judge determines the existence of probable cause to pass
upon whether a warrant of arrest should be issued against the accused, that is, whether
there is a necessity for placing him under immediate custody in order not to frustrate the
ends of justice.[47]
The request for the respondents provisional arrest was accompanied by facsimile
copies of the outstanding warrant of arrest issued by the Hong Kong government, a
summary of the facts of the case against respondent, particulars of his birth and address,
an intention to request his provisional arrest and the reason therefor. The said documents
were appended to the application for respondents provisional arrest filed in the
RTC,[48] and formed the basis of the judges finding of probable cause for the issuance of
the warrant of arrest against respondent.
Respondent alleges the contrary and surmises that all that the trial judge did was to
interview NBI agent Saunar who filed the application for the issuance of the warrant of
provisional arrest, and that her honor did not probably even notice that the supporting
documents were not authenticated.[49] The allegation, baseless and purely speculative, is
one which we cannot countenance in view of the legal presumption that official duty has
been regularly performed.[50]
That the Presiding Judge of RTC Manila, Branch 19, made a personal determination
of the existence of probable cause on the basis of the documents forwarded by the Hong
Kong DOJ is further supported by the Order of Arrest against respondent which states:

ORDER

This treats of the Application For Provisional Arrest of Juan Antonio Muoz, for
the purpose of extradition from the Republic of the Philippines.

This application was filed in behalf of the Government of Hong Kong Special
Administrative Region for the provisional arrest of Juan Antonio Muoz,
pursuant to Section 20 of Presidential Decree No. 1069, in relation to
paragraph 1, Article 11 of the Agreement for the Surrender of Accused and
Convicted Persons between the Republic of the Philippines and Hong Kong
on provisional arrest. The application alleged that Juan Antonio Muoz is
wanted in Hong Kong for seven (7) counts of the offense of accepting an
advantage as an agent, contrary to Section 9(1) (9) of the Prevention of
Bribery Ordinance Cap. 201 of Hong Kong and seven (7) counts of the
offense of conspiracy to defraud, contrary to the Common Law of Hong Kong.

That a warrant of arrest was issued by the Magistrates Court at Eastern

Magistracy, Hong Kong on August 23, 1997, pursuant to the 14 charges filed
against him before the issuing Court. Juan Antonio Muoz is now alleged to be
in the Philippines. He was born on June 24, 1941, a holder of Philippines
Passport No. 2K 934808, formerly an employee of the Central Bank of the
Philippines and with address at Phase 3, BF Homes, No. 26 D C Chuan
Street, Metro Manila.

That there is an urgency in the issuance of the provisional arrest warrant for
the reason that the application to discharge the restraint over the funds,
subject of the offenses, in his Citibank Account in Hong Kong was set for
hearing on September 17, 1999 and that his lawyer in Hong Kong will be
notified of the request of the Hong Kong Government for his provisional arrest
(sic) and Juan Antonio E. Muoz upon knowledge of the request.

Considering that the Extradition treaty referred to is part of our systems of

laws and recognized by Presidential Decree No. 1069 and the Constitution
itself by the adoption of international laws, treaties and conventions as parts
(sic) of the law of the land, the application for provisional arrest of Juan
Antonio Muoz is hereby GRANTED. Let a warrant for his provisional arrest
therefore issue.

SO ORDERED. (Underscoring supplied.)

[51]

Finally, petitioner also avers that the respondent has waived his right to assail the
validity of his provisional arrest when he filed a motion for release on
recognizance. Considering that we find petitioners other contentions to be impressed with
merit, there is no need to delve further into this particular issue.
WHEREFORE, the petition is GRANTED, and the assailed Decision of the Court of
Appeals, dated November 9, 1999, in CA-G.R. SP No. 55343 is hereby REVERSED and
SET ASIDE. Respondents Urgent Motion For Release Pending Appeal is hereby
DENIED.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing, and Buena, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 148571 September 24, 2002

GOVERNMENT OF THE UNITED STATES OF AMERICA,

Represented by the Philippine Department of Justice, petitioner,
vs.
HON. GUILLERMO PURGANAN, Presiding Judge Regional Trial Court of Manila and
MARC JIMENEZ a.k.a. MARCIO BATACAN CRESPO, respondent

Davide Jr., CJ, Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Morales and Callejo, Sr.

DECISION

PANGANIBAN, J.:

In extradition proceedings, are prospective extraditees entitled to notice and hearing before warrants
for their arrest can be issued? Equally important, are they entitled to the right to bail and provisional
liberty while the extradition proceedings are pending? In general, the answer to these two novel
questions is "No." The explanation of and the reasons for, as well as the exceptions to, this rule are
laid out in this Decision.

The Case

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void and set
aside the Orders dated May 23, 2001 1 and July 3, 2001 2 issued by the Regional Trial Court (RTC) of
Manila, Branch 42. 3 The first assailed Order set for hearing petitioners application for the issuance
of a warrant for the arrest of Respondent Mark B. Jimenez.

The second challenged Order, on the other hand, directed the issuance of a warrant, but at the
same time granted bail to Jimenez. The dispositive portion of the Order reads as follows:

WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against
respondent Mark Jimenez. Accordingly let a Warrant for the arrest of the respondent be
issued. Consequently and taking into consideration Section 9, Rule 114 of the Revised Rules
of Criminal Procedure, this Court fixes the reasonable amount of bail for respondents
temporary liberty at ONE MILLION PESOS (Php 1,000,000.00), the same to be paid in cash.
 Furthermore respondent is directed to immediately surrender to this Court his passport and
the Bureau of Immigration and Deportation is likewise directed to include the name of the
respondent in its Hold Departure List." 4

Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the
taking of Jimenez into legal custody.

The Facts

This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C. Lantion. 5

Pursuant to the existing RP-US Extradition Treaty, 6 the United States Government, through
diplomatic channels, sent to the Philippine Government Note Verbale No. 0522 dated June 16, 1999,
supplemented by Note Nos. 0597, 0720 and 0809 and accompanied by duly authenticated
documents requesting the extradition of Mark B. Jimenez, also known as Mario Batacan Crespo.
Upon receipt of the Notes and documents, the secretary of foreign affairs (SFA) transmitted them to
the secretary of justice (SOJ) for appropriate action, pursuant to Section 5 of Presidential Decree
(PD) No. 1069, also known as the Extradition Law.

Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary
Restraining Order (TRO) by the RTC of Manila, Branch 25. 7 The TRO prohibited the Department of
Justice (DOJ) from filing with the RTC a petition for his extradition. The validity of the TRO was,
however, assailed by the SOJ in a Petition before this Court in the said GR No. 139465. Initially, the
Court -- by a vote of 9-6 -- dismissed the Petition. The SOJ was ordered to furnish private
respondent copies of the extradition request and its supporting papers and to grant the latter a
reasonable period within which to file a comment and supporting evidence. 8

Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, 2000
Resolution. 9 By an identical vote of 9-6 -- after three justices changed their votes -- it reconsidered
and reversed its earlier Decision. It held that private respondent was bereft of the right to notice and
hearing during the evaluation stage of the extradition process. This Resolution has become final and
executory.

Finding no more legal obstacle, the Government of the United States of America, represented by the
Philippine DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Extradition which
was docketed as Extradition Case No. 01192061. The Petition alleged, inter alia, that Jimenez was
the subject of an arrest warrant issued by the United States District Court for the Southern District of
Florida on April 15, 1999. The warrant had been issued in connection with the following charges in
Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to defraud the United States and to commit
certain offenses in violation of Title 18 US Code Section 371; (2) tax evasion, in violation of Title 26
US Code Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections 1343 and 2; (4) false
statements, in violation of Title 18 US Code Sections 1001 and 2; and (5) illegal campaign
contributions, in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title 18 US Code
Section 2. In order to prevent the flight of Jimenez, the Petition prayed for the issuance of an order
for his "immediate arrest" pursuant to Section 6 of PD No. 1069.

Before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent
Manifestation/Ex-Parte Motion," 10 which prayed that petitioners application for an arrest warrant be
set for hearing.

In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for
hearing on June 5, 2001. In that hearing, petitioner manifested its reservations on the procedure
adopted by the trial court allowing the accused in an extradition case to be heard prior to the
issuance of a warrant of arrest.

After the hearing, the court a quo required the parties to submit their respective memoranda. In his
Memorandum, Jimenez sought an alternative prayer: that in case a warrant should issue, he be
allowed to post bail in the amount of P100,000.

The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court
below issued its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and
fixing bail for his temporary liberty at one million pesos in cash. 11 After he had surrendered his
passport and posted the required cash bond, Jimenez was granted provisional liberty via the
challenged Order dated July 4, 2001. 12

Hence, this Petition. 13

Issues

Petitioner presents the following issues for the consideration of this Court:

I.

The public respondent acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing
a potential extraditee before issuing an arrest warrant under Section 6 of PD No. 1069.

II.

The public respondent acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction in granting the prayer for bail and in
allowing Jimenez to go on provisional liberty because:

1. An extradition court has no power to authorize bail, in the absence of any law that
provides for such power.

2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and
Section 4, Rule 114 (Bail) of the Rules of Court, as amended, which [were] relied
upon, cannot be used as bases for allowing bail in extradition proceedings.

3. The presumption is against bail in extradition proceedings or proceedings leading

to extradition.

4. On the assumption that bail is available in extradition proceedings or proceedings

leading to extradition, bail is not a matter of right but only of discretion upon clear
showing by the applicant of the existence of special circumstances.

5. Assuming that bail is a matter of discretion in extradition proceedings, the public

respondent received no evidence of special circumstances which may justify
release on bail.

6. The risk that Jimenez will flee is high, and no special circumstance exists that will
engender a well-founded belief that he will not flee.
 7. The conditions attached to the grant of bail are ineffectual and do not ensure
compliance by the Philippines with its obligations under the RP-US Extradition
Treaty.

8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case
entitled Eduardo T. Rodriguez et al. vs. The Hon. Presiding Judge, RTC, Branch 17,
Manila, CA-G.R. SP No. 64589, relied upon by the public respondent in granting
bail, had been recalled before the issuance of the subject bail orders." 14

In sum, the substantive questions that this Court will address are: (1) whether Jimenez is entitled to
notice and hearing before a warrant for his arrest can be issued, and (2) whether he is entitled to bail
and to provisional liberty while the extradition proceedings are pending. Preliminarily, we shall take
up the alleged prematurity of the Petition for Certiorari arising from petitioners failure to file a Motion
for Reconsideration in the RTC and to seek relief in the Court of Appeals (CA), instead of in this
Court. 15 We shall also preliminarily discuss five extradition postulates that will guide us in disposing
of the substantive issues.

The Courts Ruling

The Petition is meritorious.

Preliminary Matters

Alleged Prematurity of Present Petition

Petitioner submits the following justifications for not filing a Motion for Reconsideration in the
Extradition Court: "(1) the issues were fully considered by such court after requiring the parties to
submit their respective memoranda and position papers on the matter and thus, the filing of a
reconsideration motion would serve no useful purpose; (2) the assailed orders are a patent nullity,
absent factual and legal basis therefor; and (3) the need for relief is extremely urgent, as the
passage of sufficient time would give Jimenez ample opportunity to escape and avoid extradition;
and (4) the issues raised are purely of law." 16

For resorting directly to this Court instead of the CA, petitioner submits the following reasons: "(1)
even if the petition is lodged with the Court of Appeals and such appellate court takes cognizance of
the issues and decides them, the parties would still bring the matter to this Honorable Court to have
the issues resolved once and for all [and] to have a binding precedent that all lower courts ought to
follow; (2) the Honorable Court of Appeals had in one case 17 ruled on the issue by disallowing bail
but the court below refused to recognize the decision as a judicial guide and all other courts might
likewise adopt the same attitude of refusal; and (3) there are pending issues on bail both in the
extradition courts and the Court of Appeals, which, unless guided by the decision that this Honorable
Court will render in this case, would resolve to grant bail in favor of the potential extraditees and
would give them opportunity to flee and thus, cause adverse effect on the ability of the Philippines to
comply with its obligations under existing extradition treaties." 18

As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior
court has been given, through a motion for reconsideration, a chance to correct the errors imputed to
it. This rule, though, has certain exceptions: (1) when the issue raised is purely of law, (2) when
public interest is involved, or (3) in case of urgency. 19 As a fourth exception, the Court has also ruled
that the filing of a motion for reconsideration before availment of the remedy of certiorari is not a sine
qua non, when the questions raised are the same as those that have already been squarely argued
and exhaustively passed upon by the lower court. 20 Aside from being of this nature, the issues in the
present case also involve pure questions of law that are of public interest. Hence, a motion for
reconsideration may be dispensed with.

Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of
certiorari when there are special and important reasons therefor. 21 In Fortich v. Corona 22 we stated:

[T]he Supreme Court has the full discretionary power to take cognizance of the petition filed
directly [before] it if compelling reasons, or the nature and importance of the issues raised,
warrant. This has been the judicial policy to be observed and which has been reiterated in
subsequent cases, namely: Uy vs. Contreras, et. al., Torres vs. Arranz, Bercero vs. De
Guzman, and, Advincula vs. Legaspi, et. al. As we have further stated in Cuaresma:

x x x. A direct invocation of the Supreme Courts original jurisdiction to issue these

writs should be allowed only when there are special and important reasons therefor,
clearly and specifically set out in the petition. This is established policy. x x x.

Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present
petition in the interest of speedy justice and to avoid future litigations so as to promptly put
an end to the present controversy which, as correctly observed by petitioners, has sparked
national interest because of the magnitude of the problem created by the issuance of the
assailed resolution. Moreover, x x x requiring the petitioners to file their petition first with the
Court of Appeals would only result in a waste of time and money.

That the Court has the power to set aside its own rules in the higher interests of justice is well-
entrenched in our jurisprudence. We reiterate what we said in Piczon vs. Court of Appeals: 23

Be it remembered that rules of procedure are but mere tools designed to facilitate the
attainment of justice. Their strict and rigid application, which would result in technicalities that
tend to frustrate rather than promote substantial justice, must always be avoided. Time and
again, this Court has suspended its own rules and excepted a particular case from their
operation whenever the higher interests of justice so require. In the instant petition, we
forego a lengthy disquisition of the proper procedure that should have been taken by the
parties involved and proceed directly to the merits of the case.

In a number of other exceptional cases, 24 we held as follows:

This Court has original jurisdiction, concurrent with that of Regional Trial Courts and the
Court of Appeals, over petitions for certiorari, prohibition, mandamus, quo warranto and
habeas corpus, and we entertain direct resort to us in cases where special and important
reasons or exceptional and compelling circumstances justify the same."

In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.

Five Postulates of Extradition

The substantive issues raised in this case require an interpretation or construction of the treaty and
the law on extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give
effect to its intent. 25Since PD 1069 is intended as a guide for the implementation of extradition
treaties to which the Philippines is a signatory, 26 understanding certain postulates of extradition will
aid us in properly deciding the issues raised here.

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

First, extradition treaties are entered into for the purpose of suppressing crime 27 by
facilitating the arrest and the custodial transfer 28 of a fugitive 29 from one state to the other.

With the advent of easier and faster means of international travel, the flight of affluent
criminals from one country to another for the purpose of committing crime and evading
prosecution has become more frequent. Accordingly, governments are adjusting their
methods of dealing with criminals and crimes that transcend international boundaries.

Today, "a majority of nations in the world community have come to look upon extradition as
the major effective instrument of international co-operation in the suppression of crime." 30 It
is the only regular system that has been devised to return fugitives to the jurisdiction of a
court competent to try them in accordance with municipal and international law. 31

An important practical effect x x x of the recognition of the principle that criminals

should be restored to a jurisdiction competent to try and punish them is that the
number of criminals seeking refuge abroad will be reduced. For to the extent that
efficient means of detection and the threat of punishment play a significant role in the
deterrence of crime within the territorial limits of a State, so the existence of effective
extradition arrangements and the consequent certainty of return to the locus delicti
commissi play a corresponding role in the deterrence of flight abroad in order to
escape the consequence of crime. x x x. From an absence of extradition
arrangements flight abroad by the ingenious criminal receives direct encouragement
and thus indirectly does the commission of crime itself." 32

In Secretary v. Lantion 33 we explained:

The Philippines also has a national interest to help in suppressing crimes and one way to do
it is to facilitate the extradition of persons covered by treaties duly entered [into] by our
government. More and more, crimes are becoming the concern of one world. Laws involving
crimes and crime prevention are undergoing universalization. One manifest purpose of this
trend towards globalization is to deny easy refuge to a criminal whose activities threaten the
peace and progress of civilized countries. It is to the great interest of the Philippines to be
part of this irreversible movement in light of its vulnerability to crimes, especially
transnational crimes."

Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of
international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate
with other states in order to improve our chances of suppressing crime in our own country.

2. The Requesting State Will Accord Due Process to the Accused

Second, an extradition treaty presupposes that both parties thereto have examined, and that both
accept and trust, each others legal system and judicial process. 34 More pointedly, our duly
authorized representatives signature on an extradition treaty signifies our confidence in the capacity
and the willingness of the other state to protect the basic rights of the person sought to be
extradited. 35 That signature signifies our full faith that the accused will be given, upon extradition to
the requesting state, all relevant and basic rights in the criminal proceedings that will take place
therein; otherwise, the treaty would not have been signed, or would have been directly attacked for
its unconstitutionality.

3. The Proceedings Are Sui Generis

Third, as pointed out in Secretary of Justice v. Lantion, 36 extradition proceedings are not criminal in
nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition
which is sui generis -- in a class by itself -- they are not.

An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into
operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the
process of extradition does not involve the determination of the guilt or innocence of an
accused. His guilt or innocence will be adjudged in the court of the state where he will be
extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt
or innocence of an accused cannot be invoked by an extraditee x x x.

xxxxxxxxx

There are other differences between an extradition proceeding and a criminal proceeding. An
extradition proceeding is summary in nature while criminal proceedings involve a full-blown
trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition
proceeding allow admission of evidence under less stringent standards. In terms of the
quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt
for conviction while a fugitive may be ordered extradited upon showing of the existence of a
prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon
being rendered final, in an extradition proceeding, our courts may adjudge an individual
extraditable but the President has the final discretion to extradite him. The United States
adheres to a similar practice whereby the Secretary of State exercises wide discretion in
balancing the equities of the case and the demands of the nations foreign relations before
making the ultimate decision to extradite."

Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or
the innocence of the person sought to be extradited. 37 Such determination during the extradition
proceedings will only result in needless duplication and delay. Extradition is merely a measure of
international judicial assistance through which a person charged with or convicted of a crime is
restored to a jurisdiction with the best claim to try that person. It is not part of the function of the
assisting authorities to enter into questions that are the prerogative of that jurisdiction. 38 The ultimate
purpose of extradition proceedings in court is only to determine whether the extradition request
complies with the Extradition Treaty, and whether the person sought is extraditable. 39

4. Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our
legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will
serve the national interest.

Fulfilling our obligations under the Extradition Treaty promotes comity 40 with the requesting state. On
the other hand, failure to fulfill our obligations thereunder paints a bad image of our country before
the world community. Such failure would discourage other states from entering into treaties with us,
particularly an extradition treaty that hinges on reciprocity. 41
Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the
Treaty. 42 This principle requires that we deliver the accused to the requesting country if the
conditions precedent to extradition, as set forth in the Treaty, are satisfied. In other words, "[t]he
demanding government, when it has done all that the treaty and the law require it to do, is entitled to
the delivery of the accused on the issue of the proper warrant, and the other government is under
obligation to make the surrender." 43 Accordingly, the Philippines must be ready and in a position to
deliver the accused, should it be found proper.

5. There Is an Underlying Risk of Flight

Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds
reinforcement in the experience 44 of the executive branch: nothing short of confinement can ensure
that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition
to the requesting state.

The present extradition case further validates the premise that persons sought to be extradited have
a propensity to flee. Indeed,

extradition hearings would not even begin, if only the accused were willing to submit to trial in the
requesting country. 45 Prior acts of herein respondent -- (1) leaving the requesting state right before
the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite
learning that the requesting state is seeking his return and that the crimes he is charged with are
bailable -- eloquently speak of his aversion to the processes in the requesting state, as well as his
predisposition to avoid them at all cost. These circumstances point to an ever-present, underlying
high risk of flight. He has demonstrated that he has the capacity and the will to flee. Having fled
once, what is there to stop him, given sufficient opportunity, from fleeing a second time?

First Substantive Issue:

Is Respondent Entitled to Notice and Hearing

Before the Issuance of a Warrant of Arrest?

Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from
justice, that an Extradition Petition has been filed against him, and that petitioner is seeking his
arrest -- gives him notice to escape and to avoid extradition. Moreover, petitioner pleads that such
procedure may set a dangerous precedent, in that those sought to be extradited -- including
terrorists, mass murderers and war criminals -- may invoke it in future extradition cases.

On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily
deprived of his constitutional right to liberty without due process. He further asserts that there is as
yet no specific law or rule setting forth the procedure prior to the issuance of a warrant of arrest, after
the petition for extradition has been filed in court; ergo, the formulation of that procedure is within the
discretion of the presiding judge.

Both parties cite Section 6 of PD 1069 in support of their arguments. It states:

SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1)

Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the petition on the day and hour
fixed in the order. [H]e may issue a warrant for the immediate arrest of the accused which
may be served any where within the Philippines if it appears to the presiding judge that the
immediate arrest and temporary detention of the accused will best serve the ends of justice.
 Upon receipt of the answer, or should the accused after having received the summons fail to
answer within the time fixed, the presiding judge shall hear the case or set another date for
the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case."
(Emphasis ours)

Does this provision sanction RTC Judge Purganans act of immediately setting for hearing the
issuance of a warrant of arrest? We rule in the negative.

1. On the Basis of the Extradition Law

It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word "immediate" to
qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing
the issuance of the arrest warrant. Hearing entails sending notices to the opposing
parties, 46 receiving facts and arguments 47 from them, 48 and giving them time to prepare and present
such facts and arguments. Arrest subsequent to a hearing can no longer be considered "immediate."
The law could not have intended the word as a mere superfluity but, on the whole, as a means of
imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest
should be issued.

By using the phrase "if it appears," the law further conveys that accuracy is not as important as
speed at such early stage. The trial court is not expected to make an exhaustive determination to
ferret out the true and actual situation, immediately upon the filing of the petition. From the
knowledge and the material then available to it, the court is expected merely to get a good first
impression -- a prima facie finding -- sufficient to make a speedy initial determination as regards the
arrest and detention of the accused.

Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the
following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial
attorney in the Campaign Financing Task Force of the Criminal Division of the US Department of
Justice; (2) Annexes H to G, evidentiary Appendices of various exhibits that constituted evidence of
the crimes charged in the Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that
constituted evidence of the crimes charged in the Indictment); (3) Annex BB, the Exhibit I "Appendix
of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers" and enclosed
Statements in two volumes; (4) Annex GG, the Exhibit J "Table of Contents for Supplemental
Evidentiary Appendix" with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L "Appendix
of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward" and enclosed
Statements in two volumes. 49

It is evident that respondent judge could have already gotten an impression from these records
adequate for him to make an initial determination of whether the accused was someone who should
immediately be arrested in order to "best serve the ends of justice." He could have determined
whether such facts and circumstances existed as would lead a reasonably discreet and prudent
person to believe that the extradition request was prima facie meritorious. In point of fact, he actually
concluded from these supporting documents that "probable cause" did exist. In the second
questioned Order, he stated:

In the instant petition, the documents sent by the US Government in support of [its] request
for extradition of herein respondent are enough to convince the Court of the existence of
probable cause to proceed with the hearing against the extraditee." 50
We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for
issuing an arrest warrant was already evident from the Petition itself and its supporting documents.
Hence, after having already determined therefrom that a prima facie finding did exist, respondent
judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez. 51

Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure
of the accused to answer after receiving the summons. In connection with the matter of immediate
arrest, however, the word "hearing" is notably absent from the provision. Evidently, had the holding
of a hearing at that stage been intended, the law could have easily so provided. It also bears
emphasizing at this point that extradition proceedings are summary 52 in nature. Hence, the silence of
the Law and the Treaty leans to the more reasonable interpretation that there is no intention to
punctuate with a hearing every little step in the entire proceedings.

It is taken for granted that the contracting parties intend something reasonable and
something not inconsistent with generally recognized principles of International Law, nor with
previous treaty obligations towards third States. If, therefore, the meaning of a treaty is
ambiguous, the reasonable meaning is to be preferred to the unreasonable, the more
reasonable to the less reasonable x x x ." 53

Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for
their arrest and setting it for hearing at some future date would give them ample opportunity to
prepare and execute an escape. Neither the Treaty nor the Law could have

intended that consequence, for the very purpose of both would have been defeated by the escape of
the accused from the requested state.

2. On the Basis of the Constitution

Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a
notice or a hearing before the issuance of a warrant of arrest. It provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized."

To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only
the examination -- under oath or affirmation -- of complainants and the witnesses they may produce.
There is no requirement to notify and hear the accused before the issuance of warrants of arrest.

In Ho v. People 54 and in all the cases cited therein, never was a judge required to go to the extent of
conducting a hearing just for the purpose of personally determining probable cause for the issuance
of a warrant of arrest. All we required was that the "judge must have sufficient supporting documents
upon which to make his independent judgment, or at the very least, upon which to verify the findings
of the prosecutor as to the existence of probable cause." 55
In Webb v. De Leon, 56 the Court categorically stated that a judge was not supposed to conduct a
hearing before issuing a warrant of arrest:

Again, we stress that before issuing warrants of arrest, judges merely determine personally
the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a
de novo hearing to determine the existence of probable cause. They just personally review
the initial determination of the prosecutor finding a probable cause to see if it is supported by
substantial evidence."

At most, in cases of clear insufficiency of evidence on record, judges merely further examine
complainants and their witnesses. 57 In the present case, validating the act of respondent judge and
instituting the practice of hearing the accused and his witnesses at this early stage would be
discordant with the rationale for the entire system. If the accused were allowed to be heard and
necessarily to present evidence during the prima facie determination for the issuance of a warrant of
arrest,

what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires --
in his effort to negate a prima facie finding? Such a procedure could convert the determination of a
prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main
case superfluous. This scenario is also anathema to the summary nature of extraditions.

That the case under consideration is an extradition and not a criminal action is not sufficient to justify
the adoption of a set of procedures more protective of the accused. If a different procedure were
called for at all, a more restrictive one -- not the opposite -- would be justified in view of respondents
demonstrated predisposition to flee.

Since this is a matter of first impression, we deem it wise to restate the proper procedure:

Upon receipt of a petition for extradition and its supporting documents, the judge must study them
and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and
substance, (b) they show compliance with the Extradition Treaty and Law, and (c) the person sought
is extraditable. At his discretion, the judge may

require the submission of further documentation or may personally examine the affiants and
witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding 58 is
possible, the petition may be dismissed at the discretion of the judge.

On the other hand, if the presence of a prima facie case is determined, then the magistrate must
immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to
answer the petition and to appear at scheduled summary hearings. Prior to the issuance of the
warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition,
lest the latter be given the opportunity to escape and frustrate the proceedings. In our opinion, the
foregoing procedure will "best serve the ends of justice" in extradition cases.

Second Substantive Issue:

Is Respondent Entitled to Bail?

Article III, Section 13 of the Constitution, is worded as follows:

Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail shall
not be impaired even when the privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required."

Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of
all persons, including those sought to be extradited. Supposedly, the only exceptions are the ones
charged with offenses punishable with reclusion perpetua, when evidence of guilt is strong. He also
alleges the relevance to the present case of Section 4 59 of Rule 114 of the Rules of Court which,
insofar as practicable and consistent with the summary nature of extradition proceedings, shall also
apply according to Section 9 of PD 1069.

On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting
the right to bail to a person who is the subject of an extradition request and arrest warrant.

Extradition Different from Ordinary Criminal Proceedings

We agree with petitioner. As suggested by the use of the word "conviction," the constitutional
provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only
when a person has been arrested and detained for violation of Philippine criminal laws. It does not
apply to extradition proceedings, because extradition courts do not render judgments of conviction or
acquittal.

Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every
accused who should not be subjected to the loss of freedom as thereafter he would be entitled to
acquittal, unless his guilt be proved beyond reasonable doubt." 60 It follows that the constitutional
provision on bail will not apply to a case like extradition, where the presumption of innocence is not
at issue.

The provision in the Constitution stating that the "right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended" does not detract from the rule that the
constitutional right to bail is available only in criminal proceedings. It must be noted that the
suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion." 61 Hence, the
second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal
proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available
even in extradition proceedings that are not criminal in nature.

That the offenses for which Jimenez is sought to be extradited are bailable in the United States is
not an argument to grant him one in the present case. To stress, extradition proceedings are
separate and distinct from the trial for the offenses for which he is charged. He should apply for bail
before the courts trying the criminal cases against him, not before the extradition court.

No Violation of Due Process

Respondent Jimenez cites the foreign case Paretti 62 in arguing that, constitutionally, "[n]o one shall
be deprived of x x x liberty x x x without due process of law."
Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does
not amount to a violation of his right to due process. We iterate the familiar doctrine that the essence
of due process is the opportunity to be heard 63 but, at the same time, point out that the doctrine does
not always call for a prior opportunity to be heard. 64 Where the circumstances -- such as those
present in an extradition case -- call for it, a subsequent opportunity to be heard is enough. 65 In the
present case, respondent will be given full opportunity to be heard subsequently, when the
extradition court hears the Petition for Extradition. Hence, there is no violation of his right to due
process and fundamental fairness.

Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation
of his liberty prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently
ensured by (1) the DOJs filing in court the Petition with its supporting documents after a
determination that the extradition request meets the requirements of the law and the relevant treaty;
(2) the extradition judges independent prima facie determination that his arrest will best serve the
ends of justice before the issuance of a warrant for his arrest; and (3) his opportunity, once he is
under the courts custody, to apply for bail as an exception to the no-initial-bail rule.

It is also worth noting that before the US government requested the extradition of respondent,
proceedings had already been conducted in that country. But because he left the jurisdiction of the
requesting state before those proceedings could be completed, it was hindered from continuing with
the due processes prescribed under its laws. His invocation of due process now has thus become
hollow. He already had that opportunity in the requesting state; yet, instead of taking it, he ran away.

In this light, would it be proper and just for the government to increase the risk of violating its treaty
obligations in order to accord Respondent Jimenez his personal liberty in the span of time that it
takes to resolve the Petition for Extradition? His supposed immediate deprivation of liberty without
the due process that he had previously shunned pales against the governments interest in fulfilling
its Extradition Treaty obligations and in cooperating with the world community in the suppression of
crime. Indeed, "[c]onstitutional liberties do not exist in a vacuum; the due process rights accorded to
individuals must be carefully balanced against exigent and palpable government interests." 66

Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of
facing the consequences of their actions, choose to run and hide. Hence, it would not be good policy
to increase the risk of violating our treaty obligations if, through overprotection or excessively liberal
treatment, persons sought to be extradited are able to evade arrest or escape from our custody. In
the absence of any provision -- in the Constitution, the law or the treaty -- expressly guaranteeing the
right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general
rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or
evade their prosecutors. 1w phi 1.nt

The denial of bail as a matter of course in extradition cases falls into place with and gives life to
Article 14 67 of the Treaty, since this practice would encourage the accused to voluntarily surrender to
the requesting state to cut short their detention here. Likewise, their detention pending the resolution
of extradition proceedings would fall into place with the emphasis of the Extradition Law on the
summary nature of extradition cases and the need for their speedy disposition.

Exceptions to the No Bail Rule

The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary
has the constitutional duty to curb grave abuse of discretion 68 and tyranny, as well as the power to
promulgate rules to protect and enforce constitutional rights. 69 Furthermore, we believe that the right
to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right
to due process extends to the "life, liberty or property" of every person. It is "dynamic and resilient,
adaptable to every situation calling for its application." 70

Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential
extraditee has been arrested or placed under the custody of the law, bail may be applied for and
granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the
applicant will not be a flight risk or a danger to the community; and (2) that there exist special,
humanitarian and compelling circumstances 71 including, as a matter of reciprocity, those cited by the
highest court in the requesting state when it grants provisional liberty in extradition cases therein.

Since this exception has no express or specific statutory basis, and since it is derived essentially
from general principles of justice and fairness, the applicant bears the burden of proving the above
two-tiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that
extradition is basically an executive, not a judicial, responsibility arising from the presidential power
to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance
amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into
the exercise of this power should be characterized by caution, so that the vital international and
bilateral interests of our country will not be unreasonably impeded or compromised. In short, while
this Court is ever protective of "the sporting idea of fair play," it also recognizes the limits of its own
prerogatives and the need to fulfill international obligations.

Along this line, Jimenez contends that there are special circumstances that are compelling enough
for the Court to grant his request for provisional release on bail. We have carefully examined these
circumstances and shall now discuss them.

1. Alleged Disenfranchisement

While his extradition was pending, Respondent Jimenez was elected as a member of the House of
Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of
600,000 residents. We are not persuaded. In People v. Jalosjos, 72 the Court has already debunked
the disenfranchisement argument when it ruled thus:

When the voters of his district elected the accused-appellant to Congress, they did so with
full awareness of the limitations on his freedom of action. They did so with the knowledge
that he could achieve only such legislative results which he could accomplish within the
confines of prison. To give a more drastic illustration, if voters elect a person with full
knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he
may no longer serve his full term in office.

In the ultimate analysis, the issue before us boils down to a question of constitutional equal
protection.

The Constitution guarantees: x x x nor shall any person be denied the equal protection of
laws. This simply means that all persons similarly situated shall be treated alike both in
rights enjoyed and responsibilities imposed. The organs of government may not show any
undue favoritism or hostility to any person. Neither partiality nor prejudice shall be displayed.

Does being an elective official result in a substantial distinction that allows different
treatment? Is being a Congressman a substantial differentiation which removes the accused-
appellant as a prisoner from the same class as all persons validly confined under law?
 The performance of legitimate and even essential duties by public officers has never been an
excuse to free a person validly [from] prison. The duties imposed by the mandate of the
people are multifarious. The accused-appellant asserts that the duty to legislate ranks
highest in the hierarchy of government. The accused-appellant is only one of 250 members
of the House of Representatives, not to mention the 24 members of the Senate, charged with
the duties of legislation. Congress continues to function well in the physical absence of one
or a few of its members. Depending on the exigency of Government that has to be
addressed, the President or the Supreme Court can also be deemed the highest for that
particular duty. The importance of a function depends on the need for its exercise. The duty
of a mother to nurse her infant is most compelling under the law of nature. A doctor with
unique skills has the duty to save the lives of those with a particular affliction. An elective
governor has to serve provincial constituents. A police officer must maintain peace and
order. Never has the call of a particular duty lifted a prisoner into a different classification
from those others who are validly restrained by law.

A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious

discriminations are made in favor of or against groups or types of individuals.

The Court cannot validate badges of inequality. The necessities imposed by public welfare
may justify exercise of government authority to regulate even if thereby certain groups may
plausibly assert that their interests are disregarded.

We, therefore, find that election to the position of Congressman is not a reasonable
classification in criminal law enforcement. The functions and duties of the office are not
substantial distinctions which lift him from the class of prisoners interrupted in their freedom
and restricted in liberty of movement. Lawful arrest and confinement are germane to the
purposes of the law and apply to all those belonging to the same class." 73

It must be noted that even before private respondent ran for and won a congressional seat in Manila,
it was already of public knowledge that the United States was requesting his extradition. Hence, his
constituents were or should have been prepared for the consequences of the extradition case
against their representative, including his detention pending the final resolution of the case.
Premises considered and in line with Jalosjos, we are constrained to rule against his claim that his
election to public office is by itself a compelling reason to grant him bail.

2. Anticipated Delay

Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would
be unfair to confine him during the pendency of the case. Again we are not convinced. We must
emphasize that extradition cases are summary in nature. They are resorted to merely to determine
whether the extradition petition and its annexes conform to the Extradition Treaty, not to determine
guilt or innocence. Neither is it, as a rule, intended to address issues relevant to the constitutional
rights available to the accused in a criminal action.

We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings.
This is quite another matter that is not at issue here. Thus, any further discussion of this point would
be merely anticipatory and academic.

However, if the delay is due to maneuverings of respondent, with all the more reason would the
grant of bail not be justified. Giving premium to delay by considering it as a special circumstance for
the grant of bail would be tantamount to giving him the power to grant bail to himself. It would also
encourage him to stretch out and unreasonably delay the extradition proceedings even more. This
we cannot allow.

3. Not a Flight Risk?

Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned
of the extradition request in June 1999; yet, he has not fled the country. True, he has not actually
fled during the preliminary stages of the request for his extradition. Yet, this fact cannot be taken to
mean that he will not flee as the process moves forward to its conclusion, as he hears the footsteps
of the requesting government inching closer and closer. That he has not yet fled from the Philippines
cannot be taken to mean that he will stand his ground and still be within reach of our government if
and when it matters; that is, upon the resolution of the Petition for Extradition.

In any event, it is settled that bail may be applied for and granted by the trial court at anytime after
the applicant has been taken into custody and prior to judgment, even after bail has been previously
denied. In the present case, the extradition court may continue hearing evidence on the application
for bail, which may be granted in accordance with the guidelines in this Decision.

Brief Refutation of Dissents

The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact,
it is a cop-out. The parties -- in particular, Respondent Jimenez -- have been given more than
sufficient opportunity both by the trial court and this Court to discuss fully and exhaustively private
respondents claim to bail. As already stated, the RTC set for hearing not only petitioners application
for an arrest warrant, but also private respondents prayer for temporary liberty. Thereafter required
by the RTC were memoranda on the arrest, then position papers on the application for bail, both of
which were separately filed by the parties.

This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy
Memoranda and the Position Papers of both parties. Additionally, it has patiently heard them in Oral
Arguments, a procedure not normally observed in the great majority of cases in this Tribunal.
Moreover, after the Memos had been submitted, the parties -- particularly the potential extraditee --
have bombarded this Court with additional pleadings -- entitled "Manifestations" by both parties and
"Counter-Manifestation" by private respondent -- in which the main topic was Mr. Jimenezs plea for
bail.

A remand would mean that this long, tedious process would be repeated in its entirety. The trial
court would again hear factual and evidentiary matters. Be it noted, however, that, in all his
voluminous pleadings and verbal propositions, private respondent has not asked for a remand.
Evidently, even he realizes that there is absolutely no need to rehear factual matters. Indeed, the
inadequacy lies not in the factual presentation of Mr. Jimenez. Rather, it lies in his legal arguments.
Remanding the case will not solve this utter lack of persuasion and strength in his legal reasoning.

In short, this Court -- as shown by this Decision and the spirited Concurring, Separate and
Dissenting Opinions written by the learned justices themselves -- has exhaustively deliberated and
carefully passed upon all relevant questions in this case. Thus, a remand will not serve any useful
purpose; it will only further delay these already very delayed proceedings, 74 which our Extradition
Law requires to be summary in character. What we need now is prudent and deliberate speed, not
unnecessary and convoluted delay. What is needed is a firm decision on the merits, not a circuitous
cop-out.
Then, there is also the suggestion that this Court is allegedly "disregarding basic freedoms when a
case is one of extradition." We believe that this charge is not only baseless, but also unfair. Suffice it
to say that, in its length and breath, this Decision has taken special cognizance of the rights to due
process and fundamental fairness of potential extraditees.

Summation

As we draw to a close, it is now time to summarize and stress these ten points:

1. The ultimate purpose of extradition proceedings is to determine whether the request

expressed in the petition, supported by its annexes and the evidence that may be adduced
during the hearing of the petition, complies with the Extradition Treaty and Law; and whether
the person sought is extraditable. The proceedings are intended merely to assist the
requesting state in bringing the accused -- or the fugitive who has illegally escaped -- back to
its territory, so that the criminal process may proceed therein.

2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in
the reliability or soundness of the legal and judicial system of its treaty partner, as well as in
the ability and the willingness of the latter to grant basic rights to the accused in the pending
criminal case therein.

3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt
or innocence is determined. Consequently, an extradition case is not one in which the
constitutional rights of the accused are necessarily available. It is more akin, if at all, to a
courts request to police authorities for the arrest of the accused who is at large or has
escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting
state, the reasonable prima facie presumption is that the person would escape again if given
the opportunity.

4. Immediately upon receipt of the petition for extradition and its supporting documents, the
judge shall make a prima facie finding whether the petition is sufficient in form and
substance, whether it complies with the Extradition Treaty and Law, and whether the person
sought is extraditable. The magistrate has discretion to require the petitioner to submit
further documentation, or to personally examine the affiants or witnesses. If convinced that a
prima facie case exists, the judge immediately issues a warrant for the arrest of the potential
extraditee and summons him or her to answer and to appear at scheduled hearings on the
petition.

5. After being taken into custody, potential extraditees may apply for bail. Since the
applicants have a history of absconding, they have the burden of showing that (a) there is no
flight risk and no danger to the community; and (b) there exist special, humanitarian or
compelling circumstances. The grounds used by the highest court in the requesting state for
the grant of bail therein may be considered, under the principle of reciprocity as a special
circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial
discretion in the context of the peculiar facts of each case.

6. Potential extraditees are entitled to the rights to due process and to fundamental fairness.
Due process does not always call for a prior opportunity to be heard. A subsequent
opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings
on the petition and the answer is the full chance to be heard and to enjoy fundamental
fairness that is compatible with the summary nature of extradition.
 7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of
democracy and the conscience of society. But it is also well aware of the limitations of its
authority and of the need for respect for the prerogatives of the other co-equal and co-
independent organs of government.

8. We realize that extradition is essentially an executive, not a judicial, responsibility arising

out of the presidential power to conduct foreign relations and to implement treaties. Thus, the
Executive Department of government has broad discretion in its duty and power of
implementation.

9. On the other hand, courts merely perform oversight functions and exercise review
authority to prevent or excise grave abuse and tyranny. They should not allow contortions,
delays and "over-due process" every little step of the way, lest these summary extradition
proceedings become not only inutile but also sources of international embarrassment due to
our inability to comply in good faith with a treaty partners simple request to return a fugitive.
Worse, our country should not be converted into a dubious haven where fugitives and
escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the
quest for bilateral justice and international cooperation.

10. At bottom, extradition proceedings should be conducted with all deliberate speed to
determine compliance with the Extradition Treaty and Law; and, while safeguarding basic
individual rights, to avoid the legalistic contortions, delays and technicalities that may negate
that purpose.

WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby
declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it
granted bail to Respondent Mark Jimenez. The bail bond posted by private respondent is
CANCELLED. The Regional Trial Court of Manila is directed to conduct the extradition proceedings
before it, with all deliberate speed pursuant to the spirit and the letter of our Extradition Treaty with
the United States as well as our Extradition Law. No costs.

SO ORDERED.

EN BANC
 EDUARDO TOLENTINO G.R. No. 157977
RODRIGUEZ and IMELDA
GENER RODRIGUEZ, Present:
Petitioners, PANGANIBAN, C.J.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
- versus - CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
THE HONORABLE PRESIDING AZCUNA,
JUDGE OF THE REGIONAL TINGA,
TRIAL COURT OF MANILA CHICO-NAZARIO, and
BRANCH 17, GOVERNMENT GARCIA, JJ.
OF THE UNITED STATES OF
AMERICA, represented by the
Philippine Department of Justice, Promulgated:
and DIRECTOR OF NATIONAL February 27, 2006
BUREAU OF INVESTIGATION,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

QUISUMBING, J.:

Before us is a special civil action for certiorari and prohibition directed against
the Orders dated May 7, 2003[1] and May 9, 2003[2] of the Regional Trial Court of
Manila, Branch 17 in Case No. 01-190375, which cancelled the bail of petitioners
and denied their motion for reconsideration, respectively.

The case stemmed from the petition for extradition filed on March 12,
2001 by the Government of the United States of America (US government) through
the Department of Justice (DOJ) against the petitioners.
 After their arrest, petitioners applied for bail which the trial court granted
on September 25, 2001. The bail was set for one million pesos for each. Petitioners
then posted cash bonds. The US government moved for reconsideration of the grant
of bail, but the motion was denied by the trial court. Unsatisfied, the US government
filed a petition for certiorari with this Court, entitled Government of the United
States of America, represented by the Philippine Department of Justice v. Hon.
Rodolfo A. Ponferrada, etc., et al., and docketed as G.R. No. 151456.

Thereafter, we directed the trial court to resolve the matter of bail which,
according to its November 28, 2001 Order,[3] shall be subject to whatever ruling that
this Court may have in the similar case of Mark Jimenez entitled Government of the
United States of America v. Purganan,[4] docketed as G.R No. 148571. In
compliance with our directive, the trial court, without prior notice and hearing,
cancelled the cash bond of the petitioners and ordered the issuance of a warrant of
arrest,[5] to wit:
Accordingly, following the En Banc Decision of the Supreme Court
in G.R. No. 148571 dated September 24, 2002 to the effect
that extraditees are not entitled to bail while the extradition proceedings
are pending (page 1, En Banc Decision in G.R. No. 148571), let a
warrant of arrest issue against the herein respondents sans any bail, for
implementation by the Sheriff or any member of any law enforcement
agency in line with Section 19 of Presidential Decree No. 1069.

IT IS SO ORDERED.

Petitioners filed a very urgent motion for the reconsideration of the cancellation
of their bail. The motion was heard and denied on May 9, 2003.[6]

Having no alternative remedy, petitioners filed the present petition on the

following grounds:
I
THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND
GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR
EXCESS OF JURISDICTION IN CANCELLING THE BAIL OF
 HEREIN PETITIONERS WITHOUT PRIOR NOTICE AND HEARING
OF ITS CANCELLATION.
II
THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN NOT CONSIDERING CERTAIN
SPECIAL CIRCUMSTANCES ATTENDANT TO THE PRESENT
CASE, AS AN EXCEPTION TO THE GENERAL RULE OF NO-BAIL
IN EXTRADITION CASES WHEN PETITIONERS CASH BAIL WAS
UNILATERALLY CANCELLED.
III
THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND
GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR
EXCESS OF JURISDICTION IN ISSUING THE WARRANT OF
ARREST WITHOUT CONSIDERING THE HEREIN PETITIONERS
SPECIAL CIRCUMSTANCE OF VOLUNTARY EXTRADITION
PRIOR TO CANCELLING THEIR CASH BAIL.[7]

Once again we face the controversial matter of bail in extradition cases. We are
asked to resolve twin issues: First, in an extradition case, is prior notice and hearing
required before bail is cancelled? Second, what constitutes a special circumstance to
be exempt from the no-bail rule in extradition cases?
Petitioners assert that their bail cannot be cancelled without due process of law. By
way of analogy, they point to Rule 114, Section 21 [8] of the Rules of Court where
the surety or bonding company is required to be notified and allowed to show cause
why the bail bond should not be cancelled. They say that if the rules grant this
opportunity to surety and bonding companies, the more reason then that in an
extradition case the same should be afforded.

Petitioners also contend that this Courts directive in G.R. No. 151456 did not
in any way authorize the respondent court to cancel their bail. Petitioners aver that
respondent court should have first determined the facts to evaluate if petitioners were
entitled to continuance of their bail, e.g. their willingness to go on voluntary
extradition, which respondent court should have considered a special circumstance.
 Respondents, for their part, argue that prior notice and hearing are not required
to cancel petitioners bail, and the issuance of a warrant of arrest ex parte against an
extraditee is not a violation of the due process clause. Further, respondents maintain
that prior notice and hearing would defeat the purpose of the arrest warrant since it
could give warning that respondents would be arrested and even encourage them to
flee.

Besides, even granting that prior notice and hearing are indeed required,
respondents contend that petitioners had been effectively given prior notice and
opportunity to be heard, because the trial courts order clearly stated that the matter
of bail shall be subject to whatever ruling the Supreme Court may render in the
similar extradition case of Government of the United States of
America v. Purganan.[9] Petitioners did not contest the aforementioned
order. Respondents declare that petitioners were likewise notified of this Courts
directives to the trial court to resolve the matter of their bail.

More significantly, petitioners claim that their bail should not have been
cancelled since their situation falls within the exception to the general rule of no-
bail. They allege that their continuous offer for voluntary extradition is a special
circumstance that should be considered in determining that their temporary liberty
while on bail be allowed to continue. They cite that petitioner Eduardo is in fact
already in the United States attending the trial. They also have not taken flight as
fugitives. Besides, according to petitioners, the State is more than assured they
would not flee because their passports were already confiscated and there is an
existing hold-departure order against them. Moreover, petitioners assert, they are not
a danger to the community.

Respondents counter that petitioner Imelda Gener Rodriguez did not show her
good faith by her continued refusal to appear before the respondent court. Further,
the reasons of petitioners do not qualify as compelling or special
circumstances. Moreover, the special circumstance of voluntary surrender of
petitioner Eduardo is separate and distinct from petitioner Imeldas.

Additionally, respondents maintain that the ruling in the case of

Atong Ang[10] has no applicability in the instant case. Angsbail was allowed because
the English translation of a testimony needed to determine probable cause
in Angs case would take time. This special circumstance is not attendant in this case.

The issue of prior notice and hearing in extradition cases is not

new. In Secretary of Justice v. Lantion,[11] by a vote of nine to six, we initially ruled
that notice and hearing should be afforded the extraditee even when a possible
extradition is still being evaluated.[12] The Court, deliberating on a motion for
reconsideration also by a vote of nine to six, qualified and declared that
prospective extraditees are entitled to notice and hearing only when the case is filed
in court and not during the process of evaluation.[13]

In the later case of Purganan, eight justices concurred that a possible

extraditee is not entitled to notice and hearing before the issuance of a warrant of
arrest while six others dissented.

Now, we are confronted with the question of whether a prospective extraditee

is entitled to notice and hearing before the cancellation of his or her bail.

The issue has become moot and academic insofar as petitioner Eduardo
Rodriguez is concerned. He is now in the USA facing the charges against him. But
co-petitioner Imelda Gener Rodriguez is here and stands on a different footing. We
agree that her bail should be restored.

In Purganan, we said that a prospective extraditee is not entitled to notice and

hearing before the issuance of a warrant of arrest,[14] because notifying him before
his arrest only tips him of his pending arrest. But this is for cases pending the
issuance of a warrant of arrest, not in a cancellation of a bail that had been issued
after determination that the extraditee is a no-flight risk. The policy is that a
prospective extraditee is arrested and detained to avoid his flight from justice.[15] On
the extraditee lies the burden of showing that he will not flee once bail is
granted.[16] If after his arrest and if the trial court finds that he is no flight risk, it
grants him bail. The grant of the bail, presupposes that the co-petitioner has already
presented evidence to prove her right to be on bail, that she is no flight risk, and the
trial court had already exercised its sound discretion and had already determined that
under the Constitution and laws in force, co-petitioner is entitled to provisional
release.
 Under these premises, and with the trial courts knowledge that in this case,
co-petitioner has offered to go on voluntary extradition; that she and her husband
had posted a cash bond of P1 million each; that her husband had already gone on
voluntary extradition and is presently in the USA undergoing trial; that the passport
of co-petitioner is already in the possession of the authorities; that she never
attempted to flee; that there is an existing hold-departure order against her; and that
she is now in her sixties, sickly and under medical treatment, we believe that the
benefits of continued temporary liberty on bail should not be revoked and their grant
of bail should not be cancelled, without the co-petitioner being given notice and
without her being heard why her temporary liberty should not be discontinued.

We emphasize that 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.[17]

The trial courts immediate cancellation of the bail of petitioners is contrary to

our ruling in Purganan, and it had misread and misapplied our directive therein.

Now, was the order to issue warrant of arrest against petitioners and to cancel
the bail of extraditees a grave abuse of discretion of the trial court?

Grave abuse of discretion is capricious or whimsical exercise of judgment that

is patent and gross as to amount to an evasion of positive duty or a virtual refusal to
perform a duty enjoined by law.[18] In our view, the cancellation of co-petitioners
bail, without prior notice and hearing, could be considered a violation of co-
petitioners right to due process tantamount to grave abuse of discretion.

Finally, considering that remanding the case to the court a quo will only delay
the final resolution of the case as in all probability it would only end up with us
again,[19] we will decide if Imeldas bail was validly cancelled.
 In Purganan, we held also that the grounds used by the highest court in the
requesting state for the grant of bail may be considered, under the principle of
reciprocity.[20]

Considering that she has not been shown to be a flight risk nor a danger to the
community, she is entitled to notice and hearing before her bail could be
cancelled. Based on the record, we find that, absent prior notice and hearing, the
bails cancellation was in violation of her right to due process.

WHEREFORE, the instant petition is GRANTED IN PART. The Orders

dated May 7, 2003 and May 9, 2003 of the Regional Trial Court of Manila, Branch
17 in Case No. 01-190375 are REVERSED and SET ASIDE, as far as
petitioner IMELDA GENER RODRIGUEZ is concerned. We hereby (1)
declare IMELDA GENER RODRIGUEZ entitled to bail, (2) order her cancelled
bail restored, and (3) order the warrant for her arrest revoked.
SO ORDERED.

epublic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 153675 April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the

Philippine Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch
8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773.
These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muoz, private
respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the
said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative
Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges
that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack
or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential
extraditee.

The facts are:

On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong
Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on
June 20, 1997.

On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong
Kong Special Administrative Region.

Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the
offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of
Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of
conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and
October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of
seven (7) to fourteen (14) years for each charge.

On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for
the provisional arrest of private respondent. The DOJ then forwarded the request to the National
Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application
for the provisional arrest of private respondent.

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private
respondent. That same day, the NBI agents arrested and detained him.

On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari,
prohibition and mandamus with application for preliminary mandatory injunction and/or writ
of habeas corpus questioning the validity of the Order of Arrest.

On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.

On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as
G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed.

On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and
sustaining the validity of the Order of Arrest against private respondent. The Decision became final
and executory on April 10, 2001.

Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region
filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil
Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part,
private respondent filed, in the same case,- a petition for bail which was opposed by petitioner.

After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for
bail, holding that there is no Philippine law granting bail in extradition cases and that private
respondent is a high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-
95733. It was then raffled off to Branch 8 presided by respondent judge.

On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his
application for bail. This was granted by respondent judge in an Order dated December 20, 2001
allowing private respondent to post bail, thus:

In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The petition
for bail is granted subject to the following conditions:

1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes
that he will appear and answer the issues raised in these proceedings and will at all times
hold himself amenable to orders and processes of this Court, will further appear for
judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the
government;

2. Accused must surrender his valid passport to this Court;

3. The Department of Justice is given immediate notice and discretion of filing its own motion
for hold departure order before this Court even in extradition proceeding; and

4. Accused is required to report to the government prosecutors handling this case or if they
so desire to the nearest office, at any time and day of the week; and if they further desire,
manifest before this Court to require that all the assets of accused, real and personal, be
filed with this Court soonest, with the condition that if the accused flees from his undertaking,
said assets be forfeited in favor of the government and that the corresponding lien/annotation
be noted therein accordingly.

SO ORDERED.

On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was
denied by respondent judge in his Order dated April 10, 2002.

Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion
amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is
nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the
right being limited solely to criminal proceedings.

In his comment on the petition, private respondent maintained that the right to bail guaranteed under
the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting
in a prolonged deprivation of ones liberty.

Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus:

Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released
on recognizance as may be provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first
time that this Court has an occasion to resolve the question of whether a prospective extraditee may
be granted bail.

In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of
Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking
through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the
constitutional provision on bail does not apply to extradition proceedings. It is "available only in
criminal proceedings," thus:

x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted
above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been
arrested and detained for violation of Philippine criminal laws. It does not apply to extradition
proceedings because extradition courts do not render judgments of conviction or acquittal.

Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every
accused who should not be subjected to the loss of freedom as thereafter he would be entitled to
acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1,
6, September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail
will not apply to a case like extradition, where the presumption of innocence is not at issue.

The provision in the Constitution stating that the "right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended" does not detract from the rule that the
constitutional right to bail is available only in criminal proceedings. It must be noted that the
suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII,
Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes
the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean
that the right is available even in extradition proceedings that are not criminal in nature.

At first glance, the above ruling applies squarely to private respondents case. However, this Court
cannot ignore the following trends in international law: (1) the growing importance of the individual
person in public international law who, in the 20th century, has gradually attained global recognition;
(2) the higher value now being given to human rights in the international sphere; (3) the
corresponding duty of countries to observe these universal human rights in fulfilling their treaty
obligations; and (4) the duty of this Court to balance the rights of the individual under our
fundamental law, on one hand, and the law on extradition, on the other.

The modern trend in public international law is the primacy placed on the worth of the
individual person and the sanctity of human rights. Slowly, the recognition that the individual
person may properly be a subject of international law is now taking root. The vulnerable doctrine that
the subjects of international law are limited only to states was dramatically eroded towards the
second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted
in the unprecedented spectacle of individual defendants for acts characterized as violations of the
laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg
principle, Serbian leaders have been persecuted for war crimes and crimes against humanity
committed in the former Yugoslavia. These significant events show that the individual person is now
a valid subject of international law.

On a more positive note, also after World War II, both international organizations and states gave
recognition and importance to human rights. Thus, on December 10, 1948, the United Nations
General Assembly adopted the Universal Declaration of Human Rights in which the right to life,
liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the
principles contained in the said Declaration are now recognized as customarily binding upon
the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court,
in granting bail to a prospective deportee, held that under the Constitution,3 the principles set
forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also
adopted the International Covenant on Civil and Political Rights which the Philippines signed and
ratified. Fundamental among the rights enshrined therein are the rights of every person to life,
liberty, and due process.

The Philippines, along with the other members of the family of nations, committed to uphold the
fundamental human rights as well as value the worth and dignity of every person. This commitment
is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity
of every human person and guarantees full respect for human rights." The Philippines, therefore, has
the responsibility of protecting and promoting the right of every person to liberty and due process,
ensuring that those detained or arrested can participate in the proceedings before a court, to enable
it to decide without delay on the legality of the detention and order their release if justified. In other
words, the Philippine authorities are under obligation to make available to every person under
detention such remedies which safeguard their fundamental right to liberty. These remedies include
the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to
criminal proceedings, however, in light of the various international treaties giving recognition and
protection to human rights, particularly the right to life and liberty, a reexamination of this Courts
ruling in Purganan is in order.

First, we note that the exercise of the States power to deprive an individual of his liberty is
not necessarily limited to criminal proceedings. Respondents in administrative proceedings,
such as deportation and quarantine,4 have likewise been detained.

Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential
history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal
proceedings only. This Court has admitted to bail persons who are not involved in criminal
proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during
the pendency of administrative proceedings, taking into cognizance the obligation of the
Philippines under international conventions to uphold human rights.

The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure
to secure the necessary certificate of registration was granted bail pending his appeal. After noting
that the prospective deportee had committed no crime, the Court opined that "To refuse him bail is to
treat him as a person who has committed the most serious crime known to law;" and that while
deportation is not a criminal proceeding, some of the machinery used "is the machinery of criminal
law." Thus, the provisions relating to bail was applied to deportation proceedings.

In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that
foreign nationals against whom no formal criminal charges have been filed may be released on bail
pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon
the Universal declaration of Human Rights in sustaining the detainees right to bail.

If bail can be granted in deportation cases, we see no justification why it should not also be allowed
in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to
deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both
are administrative proceedings where the innocence or guilt of the person detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the
light of the various treaty obligations of the Philippines concerning respect for the promotion and
protection of human rights. Under these treaties, the presumption lies in favor of human liberty.
Thus, the Philippines should see to it that the right to liberty of every individual is not impaired.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines
"extradition" as "the removal of an accused from the Philippines with the object of placing him at the
disposal of foreign authorities to enable the requesting state or government to hold him in connection
with any criminal investigation directed against him or the execution of a penalty imposed on him
under the penal or criminal law of the requesting state or government."

Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand
the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the
correlative duty of the other state to surrender him to the demanding state.8 It is not a criminal
proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its
nature criminal, for it is not punishment for a crime, even though such punishment may follow
extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different
nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is
it a full-blown civil action, but one that is merely administrative in character.13 Its object is to prevent
the escape of a person accused or convicted of a crime and to secure his return to the state from
which he fled, for the purpose of trial or punishment.14

But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a
deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain
the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of
P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and
temporary detention of the accused" if such "will best serve the interest of justice." We further
note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional
arrest of the accused, pending receipt of the request for extradition;" and that release from
provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for
extradition is received subsequently."

Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a

criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of
liberty, and forced to transfer to the demanding state following the proceedings. "Temporary
detention" may be a necessary step in the process of extradition, but the length of time of the
detention should be reasonable.

Records show that private respondent was arrested on September 23, 1999, and remained
incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other
words, he had been detained for over two (2) years without having been convicted of any
crime. By any standard, such an extended period of detention is a serious deprivation of his
fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the
extradition court to grant him bail.

While our extradition law does not provide for the grant of bail to an extraditee, however, there is no
provision prohibiting him or her from filing a motion for bail, a right to due process under the
Constitution.

The applicable standard of due process, however, should not be the same as that in criminal
proceedings. In the latter, the standard of due process is premised on the presumption of innocence
of the accused. As Purganan correctly points out, it is from this major premise that the ancillary
presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition
proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is
the possibility of flight of the potential extraditee. This is based on the assumption that such
extraditee is a fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears
the onus probandi of showing that he or she is not a flight risk and should be granted bail.

The time-honored principle of pacta sunt servanda demands that the Philippines honor its
obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative
Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the
purpose of extradition. However, it does not necessarily mean that in keeping with its treaty
obligations, the Philippines should diminish a potential extraditees rights to life, liberty, and due
process. More so, where these rights are guaranteed, not only by our Constitution, but also by
international conventions, to which the Philippines is a party. We should not, therefore, deprive an
extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily
met.

An extradition proceeding being sui generis, the standard of proof required in granting or denying
bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of
preponderance of evidence in civil cases. While administrative in character, the standard of
substantial evidence used in administrative cases cannot likewise apply given the object of
extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his
Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed "clear and convincing evidence" should be used
in granting bail in extradition cases. According to him, this standard should be lower than proof
beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must
prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders
and processes of the extradition court.

In this case, there is no showing that private respondent presented evidence to show that he is not
a flight risk. Consequently, this case should be remanded to the trial court to determine whether
private respondent may be granted bail on the basis of "clear and convincing evidence."

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine
whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not,
the trial court should order the cancellation of his bail bond and his immediate detention; and
thereafter, conduct the extradition proceedings with dispatch.

SO ORDERED.