PUBLIC INTERNATIONAL LAW - Pacts

- General acts
- Charters
Distinguish between customary international law and - Statutes
- Declarations
I. SOURCES OF INTERNATIONAL LAW - Covenants

Professor Christopher Greenwood, Sources of
International Law: An Introduction;
Malcolm Shaw, Chapter 3: Sources, in INTERNATIONAL
LAW 6TH ED. (pp. 69-128);
PHIL. CONST. art. 7 § 20-21; art. 8 § 4; art. 18 § 25;
Statute of the International Court of Justice, Article
38(1);
North Sea Continental Shelf Case: Summary (I.C.J.
Reports, 1969); and
Mijares v. Ranada, G.R. No. 139325, April 12, 2005.
II. CUSTOMARY INTERNATIONAL LAW
II. Treaties
- Express agreements
- Form of substitute legislation undertaken by states
- Superior to custom (a form of tacit agreement)
- Essentially giving away a part of the sovereignty of the state
Preamble/preambulatory clauses – state why the treaty was entered into
All these terms refer to a similar transaction: the creation of written agreements whereby
the states participating bind themselves legally to act in a particular way to set up particular
relations between themselves
Upon what is the obligatory nature of treaties founded upon?
- Upon the customary international law principle pacta sunt servanda
Law-making treaties vs. treaty-contracts

International Law Commission, Identification of What are law-making treaties?

Customary International Law, UNITED NATIONS
A/CN.4/659 (14 March 2013)
International Law Commission, Identification of
Customary International Law (The role of decisions
of national courts in the case law of international
courts and tribunals of a universal character for the
purpose of the determination of customary
international law); UNITED NATIONS, A/CN.4/691 (30
March 2016)
- Intended to have universal or general relevance
- Intended to have an effect generally, not restrictively
- Agreements whereby states elaborate their perception of international law upon
any given topic or establish new rules which are to guide them for the future in
their international conduct
- Require the participation of a large number of states to emphasize this effect
- May produce rules that will bind all
- Constitute normative treaties
o Agreements that prescribe rules of conduce to be followed
What are treaty-contracts?
- They apply only as between two or a small number of states

[GR] Parties that do not sign and ratify the particular treaty in question are not bound by its
III. TREATIES terms
(12 February 2018) [E] However, where treaties reflect customary law then non-parties are bound, not because
it is a treaty provision but because it reaffirms a rule or rules of customary international law
- non-parties may come to accept that provisions in a particular treaty can generate
Malcolm N. Shaw customary law, depending always upon the nature of the agreement, the number of
Article 38 – international conventions, whether general or particular, establishing rules participants and other relevant factors
expressly recognized by the contracting states
Treaties
I. Also known as:
- Conventions 1969 Vienna Convention on the Law of Treaties
- International agreements May 23, 1969

Article 3: Agreements between states that are not in written form are not covered under the
convention, but the following are not affected:
- Legal force of the agreements
- Application to the agreements of rules in the convention that are otherwise still
applicable to them under international law
- application of the Convention to the relations of States as between themselves
under international agreements to which other subjects of international law are
also parties.
Who represents the States in terms of concluding treaties in their favor?
1. A person who
- produces appropriate full powers
- by the practice or intention of the states, purports to have the powers to do such purpose
2. OR a person who in virtue of their functions and even without full powers who is:
- (Article 7) heads of states, diplomatic organizations, representatives accredited by a state to
international organizations
What governs the power of the president to delegate the executive power to his or her alter
ego’s?
- Administrative Code
Full powers – governed by the domestic laws of the state
What if a person is not authorized as such concludes a treaty?
- Such act produces no legal effect, unless thereafter confirmed by the state
How is the text of a treaty adopted?
- If it is among two parties, by the consent of all the State parties participating in the
drawing up of the treaty
- If it is in an international conference, by vote of 2/3 of the States present and
voting, unless by the same majority they decide to apply a different rule
How is the text of the treaty authenticated?
- By the procedure provided in the text or as agreed upon by the parties who drew
up the treaty
- Or if at an international conference, by the signing, signing ad referendum or
initialing of the representatives or of the Final Act of a corporate incorporating the
text
What are the means of expressing consent to be bound by a treaty
- Signature
o If the treaty provides that signing shall have that effect, or the parties
intend for the signature to have that effect
- Exchange of instruments constituting a treaty
o If the instruments provide that their exchange shall have that effect or if
otherwise it were the intention for the party to be such
- Ratification, Acceptance, or Approval
o If the treaty provides for consent to be by way of ratification, acceptance,
or approval, or otherwise intended by the parties
o Why is there a need for ratification?
 Necessary for a state to cede some of their sovereignty
- Accession
o Where there are open treaties that you can accede to any time
o Intention to be bound during the conference itself but even if the state
did not express such intention during the conference, the state may still
express its accession after the negotiation phase/conference
- Exchange or deposit of instruments of ratification, acceptance, or approval
o Shows consent upon their exchange or deposit, or upon notification if
agreed upon
- Or by any other means agreed upon
When can a state opt to only be bound by a part of the treaty?
- Only when the treaty allows
When can a state choose from differing provisions of a treaty?
- When the party states which provisions it relates and accepts
A state is bound to refrain from acts which would defeat the purpose of the treaty when
- It has signed the treaty, or exchanged the instruments, until it has made clear that
it has no intention of being bound
- It has expressed its intention to be bound, pending entry into force of the treaty
Can a state formulate a reservation to a treaty?
- Yes, upon signing, ratifying, or accepting a treaty
What are the exceptions to this? Or when can a state not formulate a reservation to a treaty?
- When the treaty expressly prohibits reservation
- When the treaty provides only for specific reservations, and the intended
reservation does not fall under such
- When the reservation is contrary to the objectives and purposes of the treaty
Does a reservation require acceptance by the other State party?
- No, unless the treaty so provides
EXCEPT: A reservation requires the acceptance of the other party when:
- When it appears from the limited number of the state parties and the objects and
purposes of the treaty that its entirety be made applicable to all the parties, and is
an essential condition for the consent to be bound
o Unless otherwise provided, the reservation is deemed accepted when no
objections is raised by the end of 12 months from the notification of the
reservation or the date on which it expressed itself to be bound by the
treaty, whichever is later
- When a treaty is a constituent instrument of an international organization (unless
otherwise provided), acceptance by the competent organ of that organization is
required
- Article 20 paragraph 4 ang haba
May a reservation be withdrawn?
- Yes, and the consent of the other parties are no longer needed
 o UNLESS THE TREATY OTHERWISE PROVIDES - No, a treaty does not create obligations nor rights for a third State without its
- BUT IT becomes operative only upon notice to the other state consent
- Must be in writing - EXCEPT
o If the provisions of the treaty provide for the obligation of the third party
May an objection to the reservation be withdrawn? state and the third state expressly accepts the obligation in writing
- Yes, at any time - Obligation
o UNLESS THE TREATY OTHERWISE PROVIDES o May be revoked or modified with the consent of the parties to the
- But it becomes operative only upon notice to the party who made the reservation treaties and the third state, unless it is established that they have agreed
- Must be in writing otherwise
- Rights
How does a treaty enter into force? o May not be revoked or modified if it is shown that it shall not be so
- In such manner and upon such date as the treaty provides OR as the negotiating without the consent of the parties
parties may agree upon - Nevertheless, nothing precludes a rule from binding a state as customary rule of
- Otherwise, as soon as consent to be bound has been established international law

Can a treaty be provisionally applied? Article 39 onwards amendment of treaties

- Yes, if it so provides or if the negotiating states have in some manner agreed as
such
o But the provisional application ceases when a state expresses its
intention not to be bound
What does “PACTA SUNT SERVANDA” mean? (Article 26)
- Every treaty in force is binding upon the parties to it and must be performed by
them in good faith.
- It is a general principle of law
o It cant be breached technically, you can only act either consistently or
inconsistently with it
o It cannot impose any substantive obligations
- Similar principle in OBLICON – Article 1159
Can a state invoke the provisions of its internal law as justification for its failure to observe
the terms of the treaty?
- No, a state cannot invoke its internal law as justification for failure to comply
- EXCEPT UNLESS, the violation of the internal law is manifest and the law is of
fundamental importance
What is the scope of a treaty?
- The entirety of the territories of the state parties
o Unless a different intention is appears from the treaty, or is otherwise
established
Article 30, application and interpretation of treaties and previous and subsequent treaties
How shall a treaty 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
Does a treaty affect third party states?
What are the grounds which invalidate the consent of a state to a treat?
- Error
o If the error is on a fact which the state relied upon when it consented to
the treaty
- Fraud
o Induced by fraudulent conduct of another state
- Corruption of the representative of a state
o By another state thru threats or acts directed against him
o The consent of the representative is without legal effect
- Threat or use of force by another state
o The treaty is void
Can treaties derogate or overturn customary norms?
- Depends.
- Ergo omnes norms are non-derogable
- If the norms are non-derogable, the treaty will become void
When is a treaty void?
- If it is concluded thru threats or the use of force by another state
- If at the time of its conclusion, it conflicts with a peremptory norm of general
international law
What is a peremptory norm of general international law?
- norm accepted and recognized by the international community of States as a whole
as a norm from which no derogation is permitted and which can be modified only
by a subsequent norm of general international law having the same character.
When may termination or withdrawal from a treaty take place?
- In conformity with the treaty
- Or any time, with the consent of all the parties after consultation with the other
parties
Does a multilateral treaty terminate by the fact of the reduction of state parties required to
enter the treaty into force?
- No, reduction of the number of parties required does not terminate the treaty
o unless otherwise provided.
Is a treaty without a provision regarding termination or denunciation subject to termination
or denunciation
- NO, EXCEPT:
o It is established that the parties intend to admit the possibility of such
withdrawal or denunciation
 With AT LEAST 12 months prior notice. (a party shall not give
less than 12 month notice)
o A right of denunciation or withdrawal may be implied from the treaty
May the operation of a treaty be suspended?
- Yes:
o In accordance with the terms of the treaty
o At any time with the consent of all the parties after consultation
May certain parties to a multilateral treaty suspend its operation as to them only?
- Yes, if:
o The treaty provides for such possibility
o The suspension is not prohibited by the treaty and does not affect rights
of the other state parties and it is not incompatible with the stated
purpose of the treaty
What is the effect of a subsequent treaty relating to the same subject matter as a previous
treaty?
- The earlier treaty will be suspended if such was the intention of the parties
- The earlier treaty will be terminated if:
o It is established by such latter treaty or it can otherwise be implied as the
intention of the parties OR
o The latter treaty is so incompatible with the previous treaty that both
treaties cannot be applied at the same time
What are grounds of terminating or withdrawing from a treaty?
- Material breach of a bilateral treaty by one of the parties
- Supervening impossibility to perform the treaty if such impossibility resulted from
the permanent disappearance or destruction of an object necessary for the
performance of the treaty
o EXCEPT, such supervening impossibility may not be invoked if it is the
result of a breach of the party invoking it
- Fundamental change of circumstances which has occurred with regard to those
existing at the time of the conclusion of the treaty ONLY IF:
o The existence of those circumstances consisted an essential basis for the
consent
o the effect of the change is to radically change the obligations
- (Involuntary) when a new peremptory norm of general international law emerges
which is in conflict with the treaty
Article 63, Severance of Diplomatic or Consular Relations
- between parties to a treaty is without legal effect as to the relations established by
the treaty EXCEPT if such relations are indispensable to the application of the treaty
Article 64, Emergence of New Peremptory Norm
- Any treaty which is in conflict with such norm becomes void and terminates
Procedure
- Notify the parties, notification to indicate which measures shall be taken (in
writing) (may be revoked at any time before it takes effect)
- If after three months and no objection – may carry out measure
- If with objection – parties shall seek a solution
What are the consequences of an invalid treaty?
- Void, the provisions will be without legal effect
- But if acts have been nevertheless performed in reliance of the void treaty:
o Acts performed in good faith rendered before the invalidity was
established are not unlawful just because of the invalidity
What are the consequences of the termination of a treaty?
- Releases the parties from the obligations to be performed under the treaty
- Does not affect rights or obligations created prior to the termination of the treaty
- UNLESS the treaty otherwise provides or the parties otherwise agree
United States v. Nicaragua, ICJ Reports, 1986, p. 14; 76 ILR
A particular rule can be covered simultaneously by the convention
and a customary norm. This happens in codification and
crystallization, a state can violate both or it can violate either.
Even if you have reservations in a treaty norm and it does not
excuse you from complying, because it can be covered by a
customary norm.
Facts imputable to the US:
- Mining of Nicaraguan ports and waters; laying of mines at or near the ports without
stating their existence
- Attacks on oil installations, naval bases
- Infringement of air space by US military aircraft
- Supporting the contra force in Nicaragua
Applicable law: Geneva Convention (Article 3; armed conflict of non-international character)
- US under obligation to respect and ensure respect, and thus not encourage persons
engaged in conflict in Nicaragua to act in violation of such Article
Prohibition of the use of force; and the right of self-defense
- Both parties take the view that the principles as to the use of force incorporated in
the UN Charter correspond to those found n CIL
 o They therefore accept a treaty-law obligation to refrain from using
threats and force against territorial sovereignty and political integrity of
another state
- Provides for an exception: right of individual or collective self-defense
o Can only be exercised in response to an armed attack
o In the view of the Court, this is to be understood as meaning not merely
action by regular armed forces across an international border, but also
the sending by a State of armed bands on to the territory of another
State, if such an operation, because of its scale and effects, would have
been classified as an armed attack had it been carried out by regular
armed forces
Principle of non-intervention
- Right of every sovereign state to conduct its affairs without outside interference
- Intervention is wrongful when it uses, in regard to such choices, methods of
coercion, particularly force, either in the direct form of military action or in the
indirect form of support for subversive activities in another State.
- States do not have a right of collective armed response to acts which do not
constitute an armed attack
State Sovereignty
- concept of sovereignty, both in treaty-law and in customary international law,
extends to the internal waters and territorial sea of every state and to the air-
space above its territory.
- the laying of mines necessarily affects the sovereignty of the coastal State, and that
if the right of access to ports is hindered by the laying of mines by another State,
what is infringed is the freedom of communications and of maritime commerce.
Humanitarian Law
- laying of mines in the waters of another State without any warning or notification is
not only an unlawful act but also a breach of the principles of humanitarian law
underlying the Hague Convention
The US justifies its intervention with the acts of the government of Nicaragua to its people,
the US, and the OAS, as well as human rights violations
- But the Court says that even though there are human rights violations, the use of
force of the US cannot be the appropriate method to monitor and enforce
- With regard to the militarization of Nicaragua, the court states that there are no
rules, except for the rules accepted by the state concerned, by treaty or otherwise,
whereby the level of armaments (military weapons and equipment) can be limited
(this principle is valid for all states without exception)
On prohibition on the use of force and the right of self-defense
- Laying of mines and attacks on Nicaraguan ports, naval bases and installation
- Military maneuvers and supply of funds to the contras on the border are not
violations of such prohibition
- Plea of self-defense not available to the US
On breach of Principle of non-intervention
- US, in supporting the contras, intended to coerce Nicaragua with regard to matters
that it could decide on freely
- If one state in the coercion of another state, in assisting armed bands whose
purpose is to overthrow the government of the other state, that amounts to an
intervention in internal affairs
- Financial support, training, supply of weapons, intelligence and logistic support
given by the US to the contras military amounts to breach of principle of non-
intervention
- There is also a violation of humanitarian law
o The US congress restricted the funds for humanitarian aid to the contras
in Nicaragua
- Intervention in the internal affairs of another state do not entitle the base state to
take collective counter-measures with the use of force
All such imputed acts are also breach of the principle of respect for territorial sovereignty –
also infringed by the direct overflight of Nicaraguan territory
- Even the activities in El Salvador imputed to Nicaragua cannot justify these acts
Treaty: of Friendship, Commerce, and Navigation signed at Managua (that the US allegedly
deprived of its purpose and objectives)
Violations: mining of Nicaraguan ports, attack on ports, oil installations, general trade
embargo
- Mining of ports and trade embargo – in direct contradiction with the freedom of
navigation and commerce
- Therefore, US in breach of the treaty
But court has to consider whether the exception provided therefore, the measures necessary
to protect security interests are applicable in the case at bar
- But after examining the evidence, particularly the EO of Pres. Reagan of May 1,
1985, exception NOT applicable
Peaceful Settlement of disputes: Contadora Process
1. Non-use of force in inter-state relations (already jus cogens)
2. Non-intervention with affairs of another state
- Both already customary international norms, and may also be strengthened thru
treaty law
- In this case, the parties codified such norm through their treaty
Saguisag v. Executive Secretary, G.R. Nos. 212426, 212444,
January 12, 2016
Enhanced Defense Cooperation Agreement between PH and US:
EDCA authorizes the U.S. military forces to have access to and conduct activities within
certain "Agreed Locations" in the country.
- It was not transmitted to the Senate on the executive's understanding that to do so
was no longer necessary.
- Accordingly, in June 2014, the Department of Foreign Affairs (DFA) and the U.S.
Embassy exchanged diplomatic notes confirming the completion of all necessary
internal requirements for the agreement to enter into force in the two countries.
 - According to government, almost two years discussions, and 8 rounds of
negotiations
- Sec. of National Defense and US Ambassador signed, then Noynoy ratified
- Two petitions for certiorari filed challenging constitutionality, saying that the
agreement should have been embodied in a treaty, and not an executive
agreement
1. Whether the essential requisites for a judicial review have been satisfied
- Petitioners have shown that there is an actual and legal controversy
o Thru Senate Resolution, expressed the view that it has constitutional
rights which were infringed
- While petitioners Saguisag et al do not possess legal standing, still they have raised
issues of transcendental importance
o The present petitions cannot qualify
 as citizens', taxpayers', or
legislators' suits; the Senate as a body has the requisite standing, but
considering that it has not formally filed a pleading to join the suit, as it
merely conveyed to the Supreme Court its sense that EDCA needs the
Senate's concurrence to be valid, petitioners continue to suffer from lack
of standing.
o petitioners have presented serious constitutional issues that provide
ample justification for the Court to set aside the rule on standing. The
transcendental importance of the issues presented here is rooted in the
Constitution itself. Section 25, Article XVIII thereof, cannot be any clearer:
there is a much stricter mechanism required before foreign military
troops, facilities, or bases may be allowed in the country.
2. Whether the President may enter into executive agreements on foreign military bases,
troops or facilities;
3. Whether the provisions under EDCA comply with the Constitution, as well as with existent
laws and treaties
ISSUE: Whether or not the EDCA between the Philippines and the U.S. is constitutional.
RULING: YES. The EDCA is an executive agreement and does not need the Senate's
concurrence. As an executive agreement, it remains consistent with existing laws and
treaties that it purports to implement.
Petitioners contend that the EDCA must be in the form of a treaty duly concurred by Senate.
They hinge their argument under the following Constitutional provisions:
 Sec. 21, Art. VII: “No treaty or international agreement shall be valid and effective
unless concurred in by at least 2/3rds of all the Members of the Senate.”
 Section 25, Article XVIII: “ xxx Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate xxx ”
The President, however, may enter into an executive agreement on foreign military bases,
troops, or facilities, if (a) it is not the instrument that allows the presence of foreign
military bases, troops, or facilities; or (b) it merely aims to implement an existing law or
treaty
In Commissioner of Customs v. Eastern Sea Trading: Executive Agreements
are defined as international agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving arrangements of a more or
less temporary nature.
Treaties are formal documents which require ratification with the approval of two-thirds of
the Senate. The right of the Executive to enter into binding agreements without the necessity
of subsequent Congressional approval has been confirmed by long usage.
The Visiting Forces Agreement – a treaty ratified by the Senate in 1999 – already allowed the
return of US troops. EDCA is consistent with the content, purpose, and framework of the
Mutual Defense Treaty and the VFA. The practice of resorting to executive agreements in
adjusting the details of a law or a treaty that already deals with the presence of foreign
military forces is not at all unusual in this jurisdiction.
In order to keep the peace in its archipelago and to sustain itself at the same time against the
destructive forces of nature, the Philippines will need friends. Who they are, and what form
the friendships will take, are for the President to decide. The only restriction is what the
Constitution itself expressly prohibits. EDCA is not constitutionally infirm. As an executive
agreement, it remains consistent with existing laws and treaties that it purports to
implement.
Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011
Non-Surrender Bilateral Agreement between US and PH
- Agreement seeks to protect persons from US and PH from frivolous and
harassment suits that may be brought against them in international tribunals
- Via Exchange of Notes, DFA Sec Blas Ople accepted the proposals
- US Ambassador stated that such exchange of notes constituted a legally binding
agreement under international law, and as such under US law, no longer required
the advice and consent of the US Senate
- Petitioners assail the procedure in putting into effect the agreement, that the mere
exchange of notes cannot be a valid medium for concluding the agreement; the
respondent argued that the agreement was an executive agreement which no
longer required the concurrence of the Senate
Validity of the Agreement
- Doctrine of incorporation, as expressed in Section 2, Article II of the Constitution,
wherein the Philippines adopts the generally accepted principles of international
law and international jurisprudence as part of the law of the land and adheres to
the policy of peace, cooperation, and amity with all nations. An exchange of notes
falls into the category of inter-governmental agreements, which is an
internationally accepted form of international agreement.
- An exchange of notes is a record of a routine agreement, that has many similarities
with the private law contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of the one signed by the
 representative of the other. Under the usual procedure, the accepting State
repeats the text of the offering State to record its assent. The signatories of the
letters may be government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either because of its
speedy procedure, or, sometimes, to avoid the process of legislative approval.
- In another perspective, the terms exchange of notes and executive agreements
have been used interchangeably, exchange of notes being considered a form of
executive agreement that becomes binding through executive action. On the other
hand, executive agreements concluded by the President sometimes take the form
of exchange of notes and at other times that of more formal documents
denominated agreements or protocols.
- It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as
the Non-Surrender Agreement itself, or as an integral instrument of acceptance
thereof or as consent to be bound is a recognized mode of concluding a legally
binding international written contract among nations.
Senate Concurrence not required
- International agreements may be in the form of (1) treaties that require legislative
concurrence after executive ratification; or (2) executive agreements that are
similar to treaties, except that they do not require legislative concurrence and are
usually less formal and deal with a narrower range of subject matters than treaties.
- But over and above the foregoing considerations is the fact that save for the
situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution when a
treaty is required, the Constitution does not classify any subject, like that involving
political issues, to be in the form of, and ratified as, a treaty. What the Constitution
merely prescribes is that treaties need the concurrence of the Senate by a vote
defined therein to complete the ratification process.
- The Court has, in Eastern Sea Trading, as reiterated in Bayan, given recognition to
the obligatory effect of executive agreements without the concurrence of the
Senate:
- [T]he right of the Executive to enter into binding agreements without the necessity
of subsequent Congressional approval has been confirmed by long usage. From the
earliest days of our history, we have entered executive agreements covering such
subjects as commercial and consular relations, most favored-nation rights, patent
rights, trademark and copyright protection, postal and navigation arrangements
and the settlement of claims. The validity of these has never been seriously
questioned by our courts.
Agreement not in Contravention of the Rome statute
- Actually complements of each other
- the Rome statute recognizes the primary jurisdiction of the state courts with regard
to crime committed in their jurisdiction
- Moreover, under international law, there is a considerable difference between a
State-Party and a signatory to a treaty. Under the Vienna Convention on the Law of
Treaties, a signatory state is only obliged to refrain from acts which would defeat
the object and purpose of a treaty; whereas a State-Party, on the other hand, is
legally obliged to follow all the provisions of a treaty in good faith.
- In the instant case, it bears stressing that the Philippines is only a signatory to the
Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it is
only obliged to refrain from acts which would defeat the object and purpose of the
Rome Statute. Any argument obliging the Philippines to follow any provision in the
treaty would be premature.
- As a result, petitioners argument that State-Parties with non-surrender agreements
are prevented from meeting their obligations under the Rome Statute, specifically
Arts. 27, 86, 89 and 90, must fail. These articles are only legally binding upon State-
Parties, not signatories.
- Furthermore, a careful reading of said Art. 90 would show that the Agreement is
not incompatible with the Rome Statute. Specifically, Art. 90(4) provides that [i]f
the requesting State is a State not Party to this Statute the requested State, if it is
not under an international obligation to extradite the person to the requesting
State, shall give priority to the request for surrender from the Court. x x x In
applying the provision, certain undisputed facts should be pointed out: first, the US
is neither a State-Party nor a signatory to the Rome Statute; and second, there is an
international agreement between the US and the Philippines regarding extradition
or surrender of persons, i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when one of the
States is not a State-Party to the Rome Statute.
Sovereignty limited by International Agreements
- Petitioners postulate that the government has waived a part of its sovereignty
because of the Agreement and such violates the constitution
- To be sure, the nullity of the subject non-surrender agreement cannot be
predicated on the postulate that some of its provisions constitute a virtual
abdication of its sovereignty. Almost every time a state enters into an international
agreement, it voluntarily sheds off part of its sovereignty.
- By their nature, treaties and international agreements actually have a limiting
effect on the otherwise encompassing and absolute nature of sovereignty. By their
voluntary act, nations may decide to surrender or waive some aspects of their state
power or agree to limit the exercise of their otherwise exclusive and absolute
jurisdiction. The usual underlying consideration in this partial surrender may be the
greater benefits derived from a pact or a reciprocal undertaking of one contracting
party to grant the same privileges or immunities to the other. On the rationale that
the Philippines has adopted the generally accepted principles of international law
as part of the law of the land, a portion of sovereignty may be waived without
violating the Constitution. Such waiver does not amount to an unconstitutional
diminution or deprivation of jurisdiction of Philippine courts.
No Grave Abuse of Discretion on the part of the President
- The Constitution vests in the President the power to enter into international
agreements, subject, in appropriate cases, to the required concurrence votes of the
Senate. But as earlier indicated, executive agreements may be validly entered into
without such concurrence. The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.
- In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President
Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted
within the scope of the authority and discretion vested in her by the Constitution.
At the end of the day, the President by ratifying, thru her deputies, the non-
 surrender agreement did nothing more than discharge a constitutional duty and
exercise a prerogative that pertains to her office.
- The power to ratify a treaty, the Statute in that instance, rests with the President,
subject to the concurrence of the Senate, whose role relative to the ratification of a
treaty is limited merely to concurring in or withholding the ratification. And
concomitant with this treaty-making power of the President is his or her
prerogative to refuse to submit a treaty to the Senate; or having secured the latters
consent to the ratification of the treaty, refuse to ratify it. This prerogative, the
Court hastened to add, is the Presidents alone and cannot be encroached upon via
a writ of mandamus. Barring intervening events, then, the Philippines remains to be
just a signatory to the Rome Statute.
Agreement need not be in the form of a treaty
- The agreement does not amend nor is repugnant to the rome statute
- Far from it, as earlier explained, the Agreement does not undermine the Rome
Statute as the former merely reinforces the primacy of the national jurisdiction of
the US and the Philippines in prosecuting criminal offenses committed by their
respective citizens and military personnel, among others. The jurisdiction of the ICC
pursuant to the Rome Statute over high crimes indicated thereat is clearly and
unmistakably complementary to the national criminal jurisdiction of the signatory
states.
-
China National Machinery & Equipment Corp. v. Santamaria, G.R.
No. 185572, February 7, 2012
- Petitioner CNMEG and North Luzon Railway Corporation (NorthRail)
entered into contract agreement regarding construction of Phase 1 of the
Northrail system
- Respondents filed a complaint for injunction, alleging as void the
agreement as being contrary to the constitution and law
Issue: Whether or not the agreement is an executive agreement which cannot be
questioned before a court?
The agreement is not an executive agreement
- In Bayan Muna v. Romulo, this Court held that an executive agreement is
similar to a treaty, except that the former (a) does not require legislative
concurrence; (b) is usually less formal; and (c) deals with a narrower range
of subject matters.
- Despite these differences, to be considered an executive agreement, the
following three requisites provided under the Vienna Convention must
nevertheless concur: (a) the agreement must be between states; (b) it
must be written; and (c) it must governed by international law. The first
and the third requisites do not obtain in the case at bar.
- CNMEG is neither a government nor a government agency.
- The Contract Agreement was not concluded between the Philippines and
China, but between Northrail and CNMEG.By the terms of the Contract
Agreement, Northrail is a government-owned or -controlled corporation,
while CNMEG is a corporation duly organized and created under the laws
of the Peoples Republic of China. Thus, both Northrail and CNMEG entered
into the Contract Agreement as entities with personalities distinct and
separate from the Philippine and Chinese governments, respectively.
- The contract provides that the applicable law that shall govern is Philippine
law
- Since the Contract Agreement explicitly provides that Philippine law shall
be applicable, the parties have effectively conceded that their rights and
obligations thereunder are not governed by international law.
- It is therefore clear from the foregoing reasons that the Contract
Agreement does not partake of the nature of an executive agreement. It is
merely an ordinary commercial contract that can be questioned before the
local courts.
Issue: whether or not CNMEG is entitled to immunity, thereby precluding it
from being sued by a local court
The courts have the competence and jurisdiction to ascertain the validity of the
contract agreement as CNMEG has agreed that it will not be afforded immunity
from suit.
- This Court explained the doctrine of sovereign immunity in Holy See v.
Rosario, to wit:
- There are two conflicting concepts of sovereign immunity, each widely
held and firmly established. According to the classical or absolute theory, a
sovereign cannot, without its consent, be made a respondent in the courts
of another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or
acts jure imperii of a state, but not with regard to private acts or acts jure
gestionis.
- The Philippines adheres to the restrictive theory
- CNMEG is engaged in proprietary activity.
- CNMEG failed to adduce evidence that it is immune from suit under
Chinese Law
o Even assuming arguendo that CNMEG performs governmental
functions, such claim does not automatically vest it with
immunity. This view finds support in Malong v. Philippine National
Railways, in which this Court held that (i)mmunity from suit is
determined by the character of the objects for which the entity
was organized.
 o Its designation as the Primary Contractor does not automatically
grant it immunity, just as the term implementing agency has no
precise definition for purposes of ascertaining whether GTZ was
immune from suit. Although CNMEG claims to be a government-
owned corporation, it failed to adduce evidence that it has not
consented to be sued under Chinese law. Thus, following this
Courts ruling in Deutsche Gesellschaft, in the absence of evidence
to the contrary, CNMEG is to be presumed to be a government-
owned and -controlled corporation without an original charter. As
a result, it has the capacity to sue and be sued under Section 36 of
the Corporation Code.
- CNMEG failed to present certification from the DFA
o The question now is whether any agency of the Executive Branch
can make a determination of immunity from suit, which may be
considered as conclusive upon the courts. This Court, in
Department of Foreign Affairs (DFA) v. National Labor Relations
Commission (NLRC), emphasized the DFAs competence and
authority to provide such necessary determination
o This authority is exclusive to the DFA
o In the case at bar, CNMEG offers the Certification executed by the
Economic and Commercial Office of the Embassy of the Peoples
Republic of China, stating that the Northrail Project is in pursuit of
a sovereign activity.[47] Surely, this is not the kind of certification
that can establish CNMEGs entitlement to immunity from suit, as
Holy See unequivocally refers to the determination of the Foreign
Office of the state where it is sued.
o Further, CNMEG also claims that its immunity from suit has the
executive endorsement of both the OSG and the Office of the
Government Corporate Counsel (OGCC), which must be respected
by the courts. However, as expressly enunciated in Deutsche
Gesellschaft, this determination by the OSG, or by the OGCC for
that matter, does not inspire the same degree of confidence as a
DFA certification. Even with a DFA certification, however, it must
be remembered that this Court is not precluded from making an
inquiry into the intrinsic correctness of such certification.
- An agreement to submit any dispute to arbitration may be construed as an
implicit waiver of immunity from suit.