pil midterm reviewer

PUBLIC INTERNATIONAL LAW – MIDTERM REVIEWEREH 402 – Ryan, Babylynn, Julse, Russel, Anel

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Chapter 1 - GENERAL PRINCIPLES

International law/law of nations defined.1. Traditional - the body of legal rules which apply between sovereign states and such that other entities as have been granted international personality.2. Modern - the law that deals with the conduct of states and international organizations, their relations with each other and, in certain circumstances, their

relations with persons natural or juridical.

Divisions of International Law1. Laws of peace: govern the normal relationship of states.2. Laws of war: govern when war breaks out between or among nations, and for the duration of the hostilities3. Laws of neutrality: govern the relations of states not involved in the war to those states which are involved in the hostilities or belligerence.

Distinctions with Municipal lawMonist vs. Dualist –

a. To monists, there is no substantial distinction between international and municipal law. But to dualist, the distinctions lie in that the municipal law (ML) is issued by the political superior for observance by those under its authority, while international law (IL) is not imposed by adopted by states as a common rule of action.

b. ML consists of enactments of the law making authority, while IL is derived from such sources as international customs, conventions or general principles of law

c. ML regulates relations of individuals among themselves, while IL applies to relations between states and internal persons d. Violations of ML are redressed through local and administrative processes, while IL are resolved through state to state transactionse. Breaches of ML entail individual responsibility, while in IL there is collective responsibility

- However, it is possible for a principle of municipal law to become part of IL, as when the principle is embodied a treaty or convention.

Relation to Municipal law-It is universally accepted that, with or without an express declaration, the states admitted to the family of nations are bound by the rules prescribed for the regulation of international intercourse.

Doctrine of incorporation vs. doctrine of transformation*Doctrine of incorporation

The law of nations, although not specially adopted by the constitution or any municipal act, is essentially part of the law of the land.

*Doctrine of TransformationThe generally accepted rules of IL are not per se binding upon the state but it must first be embodied in legislation enacted by the law making body and so transformed into municipal law. -it should be presumed that municipal law is always enacted by each state with due regard for and never in defiance of the generally accepted principles of IL.

Constitution vs. TreatyThe constitution authorizes the SC to decide the constitutionality of a treaty, because a treaty is always subject to qualification or amendment by a

subsequent law, and the same may never curtail or restrict the scope of the police power of the state. The constitution authorizes the nullification of a treaty not only when it conflicts with the consti, but also when it runs counter to an act of congress

Basis of IL1. The law of nature

There is a natural and universal principle of right and wrong, independent of mutual intercourse or compact, which can be discovered and recognized by every individual through the use of his reason and conscience. Since individuals compose the state whose will is but the collective will of the inhabitants, the state also becomes bound by the law of nature

2. The Positivist schoolThe binding force of IL is derived from the agreement of the states to be bound by it. In this context, IL is not a law of subordination but of cooperation.

3. The Eclectic or Grotian schoolIn so far as it conforms to the dictates of right reason, the voluntary law may be said to blend with the natural law and be indeed an expression of it. In case of conflict, the natural law prevails being the more fundamental law

- Grotius: the father of international law- Voluntary law + natural law = basis of international law according to Grotius.- The system of international law is based on the dictate of right reason as well as the practice of the states.

Sanctions of International Law: - Described as the compulsive force of reciprocal advantage and fear of retaliation- They may consist of appeal to public opinion, publication of correspondence, censure by parliamentary vote, demand for arbitration with the odium

attendant on a refusal to arbitrate, rupture of relations, reprisal, etc.

Enforcement of IL- Enforcement is the process by which such observance may be compelled, usually by force or at least the threat of force.- States are able to enforce IL among each other through international organizations or regional groups such as UN and the organization of American states.

Grievances of the disagreeing states may be presented to and discussed in these bodies, which may thereafter adopt such measures as may be necessary to compel compliance with international obligations or vindicate the wrong committed.

Functions of IL- The primary function of IL is to establish peace and order in the community of nations and to prevent the employment of force, including war, in all

international relations.


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Chapter 2 - SOURCES OF INTERNATIONAL LAW

Sources of IL*Primary sources1. International treaties and conventions, whether general or particular, establishing rules expressly recognized by the contesting states2. International customs, as evidence of a general practice accepted as binding law through persistent usage over a long period of time. It is necessary however that the customs be (a) prevailing practice by a number of states; (b) repeated over a considerable period of time; and (c) attended by opinion juris or a sense of legal obligation3. General principles of law, these are rules derived mainly from natural law, observed and recognized by civilized nations.

*Secondary Sources1. Judicial decisions, generally of international tribunals, the most authoritative being the international court of justice. They are not really sources but subsidiary means for finding what the law is and whether a norm has been accepted as a rule of IL the decision of a national court may be used depending upon the prestige and perceived impartiality of the domestic court, not being in conflict with the decisions of international tribunals, and its admissibility in the forum where it is cited2. Writings of publicists, which must be fair and unbiased representation of IL by acknowledged authorities in the field

GONZALES vs. HECHANOVATopics: General principles (Constitution vs. Treaty); Sources of International Law

Facts: Respondent Executive Secretary authorized the importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice procurement committee composed of the other respondents for the implementation of said proposed importation. Petitioner, Ramon A. Gonzales — a rice planter, and president of the Iloilo Palay and Corn Planters Association, whose members are, likewise, engaged in the production of rice and corn - filed the petition averring among others that, in making or attempting to make said importation of foreign rice, the aforementioned respondents "are acting without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 — which allegedly repeals or amends Republic Act No. 2207 — explicitly prohibits the importation of rice and corn by "the Rice and Corn Administration or any other government agency".

It is contended by respondents that the Government of the Philippines has already entered into two (2) contracts for the purchase of rice, one with the Republic of Viet Nam, and another with the Government of Burma; that these contracts constitute valid executive agreements under international law; that such agreements became binding and effective upon signing thereof by representatives of the parties thereto; that in case of conflict between Republic Act Nos. 2207 and 3452 on the one hand, and the aforementioned contracts, on the other, the latter should prevail, because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved — under the American jurisprudence — in favor of the one which is latest in point of time; that petitioner herein assails the validity of acts of the executive relative to foreign relations in the conduct of which the Supreme Court cannot interfere; and that the aforementioned contracts have already been consummated, the Government of the Philippines having already paid the price of the rice involved therein through irrevocable letters of credit in favor of the sellers of said commodity.

Held: We find no merit in this pretense.

The Court is not satisfied that the status of said contracts as alleged executive agreements has been sufficiently established. The parties to said contracts do not appear to have regarded the same as executive agreements. But, even assuming that said contracts may properly be considered as executive agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although the President may, under the American constitutional system, enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto . Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of laws, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws.

As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error, as the law or the rules of court may provide, final judgments and decrees of inferior courts in — (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question". In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

The alleged consummation of the aforementioned contracts with Vietnam and Burma does not render this case academic. Republic Act No. 2207 enjoins our Government not from entering into contracts for the purchase of rice, but from importing rice, except under the conditions prescribed in said Act. Upon the other, Republic Act No. 3452 has two (2) main features, namely; (a) it requires the Government to purchase rice and corn directly from our local planters, growers or landowners; and (b) it prohibits importations of rice by the Government, and leaves such importations to private parties. The pivotal issue in this case is whether the proposed importation — which has not been consummated as yet — is legally feasible.

Lastly, a judicial declaration of illegality of the proposed importation would not compel our Government to default in the performance of such obligations as it may have contracted with the sellers of the rice in question, because, aside from the fact that said obligations may be complied with without importing the commodity into the Philippines, the proposed importation may still be legalized by complying with the provisions of the aforementioned laws. /rhen

ICHONG vs. HERNANDEZTopics: General principles; Sources of International Law

Facts: Petitioner, for and in his own behalf and on behalf of other alien resident corporations and partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this action to obtain a judicial declaration that said Act is unconstitutional. Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." It nationalizes the retail trade business.


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Petitioner attacks the constitutionality of the Act, contending that: (1) it denies to alien residents the equal protection of the laws and deprives of their liberty and property without due process of law ; (2) the subject of the Act is not expressed or comprehended in the title thereof; (3) the Act violates international and treaty obligations of the Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of their retail business thru hereditary succession, and those requiring 100% Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution.

Issue: WON there is a violation of international treaties and obligations.

Ruling: 1. One of the arguments against the validity of the law is the supposed violation thereby of the Charter of the United Nations and of the Declaration of the Human Rights adopted by the United Nations General Assembly.

The SC find no merit in the Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects and the Declaration of Human Rights contains nothing more than a mere recommendation or a common standard of achievement for all peoples and all nations.

That such is the import of the United Nations Charter aid of the Declaration of Human Rights can be inferred the fact that members of the United Nations Organizations, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws against foreigners engaged in domestic trade are adopted.

2. The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is also claimed to be violated by the law in question.

All that the treaty guarantees is equality of treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But the nationals of China are not discriminating against because nationals of all other countries, except those of the United States, who are granted special rights by the Constitution, are all prohibited from engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law and the same may never curtail or restrict the scope of the police power of the State. /julse

KURODA vs. JALANDONITopics: General Principles (Doctrine of Incorporation); Sources of International Law

Facts: Kuroda is a former Lt. Gen. of the Japanese army, and is the commanding general of the Japanese forces in the Philippines. He is charged before a military commission convened by the Chief of Staff of the AFP, having unlawfully disregarded and failed “to discharge his duties as such command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners in violation of the laws and customs of war. He seeks in the Supreme Court to establish the illegality of EO 68 of the President of the Philippines, to enjoin and prohibit Hussey and Port from participating in the prosecution of the case before the military commission and to permanently prohibit respondents from proceeding with the case.

His principal arguments are:First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based on law, national and international." Hence petitioner argues — "That in view off the fact that this commission has been empanelled by virtue of an unconstitutional law an illegal order this commission is without jurisdiction to try herein petitioner."

Second. — That the participation in the prosecution of the case against petitioner before the Commission in behalf of the United State of America of attorneys Melville Hussey and Robert Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines is a diminution of our personality as an independent state and their appointment as prosecutor are a violation of our Constitution for the reason that they are not qualified to practice law in the Philippines.

Third. — That Attorneys Hussey and Port have no personality as prosecution the United State not being a party in interest in the case.

Ruling: The Supreme Court denied the petition. On the first argument the Supreme Court said:Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th days of July, 1947. This Court holds that this order is valid and constitutional. Article 2 of our Constitution provides in its section 3, that —The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the of the nation.

In the promulgation and enforcement of Execution Order No. 68 the President of the Philippines has acted in conformity with the generally accepted and policies of international law which are part of the our Constitution.

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulation of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principals of international law. In facts these rules and principles were accepted by the two belligerent nations the United State and Japan who were signatories to the two Conventions. Such rule and principles therefore form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rule and principle of international law as continued inn treaties to which our government may have been or shall be a signatory.

On the second argument the Supreme Court said:Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert Port in the prosecution of his case on the ground that said attorneys are not qualified to practice law in Philippines in accordance with our Rules of court and the appointment of said attorneys as prosecutors is violative of our national sovereignty.


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In the first place respondent Military Commission is a special military tribunal governed by a special law and not by the Rules of court which govern ordinary civil court. It has already been shown that Executive Order No. 68 which provides for the organization of such military commission is a valid and constitutional law. There is nothing in said executive order which requires that counsel appearing before said commission must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In facts it is common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal training.

Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is only fair and proper that United States, which has submitted the vindication of crimes against her government and her people to a tribunal of our nation, should be allowed representation in the trial of those very crimes. If there has been any relinquishment of sovereignty it has not been by our government but by the United State Government which has yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of comity is to allow them representation in said trials.

On the third argument, the Supreme Court said:Alleging that the United State is not a party in interest in the case petitioner challenges the personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State and its people have been equally if not more greatly aggrieved by the crimes with which petitioner stands charged before the Military Commission. It can be considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its citizens and its government to a military tribunal of our country. /carlo

CO KIM CHAN vs. VALDEZ TAN KEHTopics: General principles; Sources of International Law; Recognition

DATU FIRDAUSI-ABBAS vs. COMELECTopic: Sources of International Law

Facts: The 1987 Constitution mandated the creation of Autonomous regions. Pursuant to this mandate R.A. (6734 An Act providing for an Organic Act for the Autonomous Region in Muslim Mindanao) was passed by Congress. On November 19, 1989 a plebiscite was scheduled in thirteen (13) provinces and nine (9) cities in Mindanao and Palawan for the approval of the law. The controversy arose from the scheduled plebiscite.

Petitioners prayed to enjoin COMELEC from conducting the plebiscite and the DBM from releasing funds for its conduct. It further raised that the law is unconstitutional and in violation of the Tripoli Agreement. The Tripoli Agreement or the Agreement Between the government of the Republic of the Philippines of the Philippines and Moro National Liberation Front with the Participation of the Quadripartite Ministerial Commission Members of the Islamic Conference and the Secretary General of the Organization of Islamic Conference" took effect on December 23, 1976. It provided for "[t]he establishment of Autonomy in the southern Philippines within the realm of the sovereignty and territorial integrity of the Republic of the Philippines" and enumerated the thirteen (13) provinces comprising the "areas of autonomy."

According to petitioners the Tripoli Agreement is part of the law of the land, being a binding international agreement. The Solicitor General asserts that the Tripoli Agreement is neither a binding treaty, not having been entered into by the Republic of the Philippines with a sovereign state and ratified according to the provisions of the 1973 or 1987 Constitutions, nor a binding international agreement.

Issue: WON RA 6734 violates the Tripoli Agreement.

Ruling: We find it neither necessary nor determinative of the case to rule on the nature of the Tripoli Agreement and its binding effect on the Philippine Government whether under public international or internal Philippine law. In the first place, it is now the Constitution itself that provides for the creation of an autonomous region in Muslim Mindanao. The standard for any inquiry into the validity of R.A. No. 6734 would therefore be what is so provided in the Constitution. Thus, any conflict between the provisions of R.A. No. 6734 and the provisions of the Tripoli Agreement will not have the effect of enjoining the implementation of the Organic Act. Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or international agreement, it would then constitute part of the law of the land. But as internal law it would not be superior to R.A. No. 6734, an enactment of the Congress of the Philippines, rather it would be in the same class as the latter Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a subsequent law. Only a determination by this Court that R.A. No. 6734 contravened the Constitution would result in the granting of the reliefs sought. /russel

Chapter 3 - THE INTERNATIONAL COMMUNITY

International CommunityThe body of juridical entities which are governed by the law of nations. Composed of not only states but also other international persons like UN, the Vatican city, colonies and dependencies, mandates and trust territories, international administrative bodies, belligerent communities and even individuals. These are generally recognized subjects of IL.

Subject vs. Object- A subject is an entity that has rights and responsibilities under IL; it can be proper party in transactions involving the application of the law of nations

among the members of the international community. - An object is a person or thing in respect of which rights are held and obligations are assumed by the subject. It is not directly governed by the rules of IL, its

rights are received, and its responsibilities imposed, indirectly through the instrumentality of an international agency.

State- Defined: Is a group of people, living together in a fixed territory, organized for political ends under an independent government and capable of entering

into international relations with other states

- Elements:


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1. People, a group of individuals, of both sexes, living together as a community. They must be sufficient in number to maintain and perpetuate themselves.

2. Territory, fixed portion on the earth’s surface occupied by the inhabitants.3. Government, must be recognized, exercising control over and capable of maintaining law and order within the territory. It can be held internationally

responsible for the acts of its inhabitants. The identity of the states is not affected by changes in the government.4. Sovereignty or independence, freedom from outside control in the conduct of its foreign (and internal) affairs.

Classification of Statesa. Independent states, a state which is not subject to dictation from othersb. Simple states, one which is placed under a single and centralized gov’t exercising power over both its internal and external affairs. PH and Netherlandsc. Composite states, consists of two or more states, each with its own separate gov’t but bound under a central authority exercising, to a greater or less

degree, control over their external affairs.

c.1. real union, created when two or more states are merged under a unified authority so that they form a single international person through which they act as one entity. States forming unions retain their separate identities as such, but their respective international personalities are extinguished and blended in the new international person, which however is not regarded as a state itself. Ex. Norway and Sweden 1815-1905

c.2. federal union, is a combination of two or more states which upon merger ceases to be states, resulting in the creation of a new state with full international personality to represent them in their external relations as well as certain degree of power over their domestic affairs and their inhabitants. Ex. US

c.3. confederation, an organization of states which retain their internal sovereignty and to some degree, their external sovereignty, while delegating to the collective body power to represent them as a whole for certain limited and specified purposes. Ex. German states joined in 1866 until they eventually developed into a closely-knit federation.

c.4 personal union, when 2 or more states are brought together under the rule of the same monarch, who nevertheless does not become one international person for the purpose of representing any or all of them. Ex. Congo and Belgium 1885-1905

c.5 incorporate union, a union of two or more states under a central authority empowered to direct both their external and internal affairs and possessed of a separate international personality. It differs from a real union in that only external affairs are placed under the control of the latter. Ex. UK and Northern Ireland.

Naturalized States- The state is removed from all vicissitudes of international politics and all their attendant expenses and anxiety- Any state may be naturalized through agreement with other states by virtue of which the latter will guarantee its integrity and independence provided it

refrains from taking any act that twill involve it in war or other hostile activity except for defensive purposes.

Dependent states- A legal paradox because the status of statehood implies the idea of independence- 2 general categories: protectorate and suzerainty. There is no unanimity as to their basic distinctions, some writers even say they are identical

The UN- A mere organization of states but is regarded as an international person for certain purposes- Enjoys certain privileges and immunities like; non-suability, inviolability of its premises and archives, and exemption from taxation. - Has the right to legation, i.e., it can send and receive diplomatic agents who possess the same rights accorded regular envoys. - It can assert a diplomatic claim on behalf of its officials and treaties may also be concluded by it through the general assembly.

The Vatican City- Italy gave up a part of its territory for the purpose of a new state being established on it. - all the elements of a state in the sense of international law are present.

Colonies and Dependencies- A colony or dependency is part and parcel of the parent state, through which all its external relations are transacted with other states.- It has no legal standing in the family of nations.

Mandates and Trust Territories- 3 kinds of trust territories

1. Those held under mandate and under the league of nations2. Those territories detached from the defeated states after world war II3. Those voluntarily placed under the system by the states responsible for their administration.

- These territories enjoy certain rights directly available to them under the UN charter that vest them with a degree of international personality.- However, these territories are not sovereign.

Belligerent Communities- When a portion of the population rises up in arms against the legitimate gov’t of the state, it is ordinarily regarded as merely internal affair, the state is

held internationally responsible for all injuries caused upon third states by reason of the disorder and the members of the uprising are accountable for their acts under the laws of the legitimate gov’t.

- But when the conflict widens and aggravates, it may become necessary to accord the rebels recognition of belligerency. - The recognizing state, while not conferring all the rights of an independent state, concedes to the gov’t recognized rights and imposes upon the

belligerents the obligations, of an independent state in matters relating to war being waged. - The belligerent community is fully recognized as a state, it is treated as an international person and becomes directly subject to the laws of war and

neutrality.


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- It is directly held responsible for its unlawful acts

International Administrative Bodies- Certain administrative bodies may be created by agreement among states and be vested with international personality when their purposes are mainly

non political and that they are autonomous. Ex. World health organization

Individuals- Traditional concept regards the individual only as an object of IL who can act only through the instrumentality of his own state in matters involving other

states. Hence, it is the state of the individual and not the individual himself, that can be the proper party in the assertion of a claim for damages. - Of late, many writers view individual as not merely an object but a subject of IL. One argument is that the individual is the basic unit of society, national

and international, and must, therefore, ultimately be governed by the law of this society, including those that are theoretically binding on the state as agent of the individual.

Chapter 4 - THE UNITED NATIONSCreation of the UN

-October 30, 1943 Moscow declaration was signed by the representative of China, Soviet Union, US and UK which recognized the necessity of establishing the earliest practicable date a general international organization, based on the principle of sovereign equality of all peace loving state, and open to membership by all such states, large or small for the maintenance of international peace and security.

- followed by Teheran conference wherein Roosevelt, Churchill and Stalin acknowledged the supreme responsibility resting upon us and all the UN to make a peace which will command the overwhelming mass of the people of the world and banish the scourge and terror of war for many generation.

- During the conference in Washington the initial blue print of the Organization known as “Dumbarton Oaks Proposal” was prepared by the representative of UK, U.S.S.R., and the US later joined by China. It was at this time that the Security Council was conceived as the key body of the UN, with the conferee of France as its permanent members.

-Feb.11, 1945 voting rules in this organ was agreed by Roosevelt, Churchill and Stalin at the Yalta Conference in the Crimea.

-April 25, 1945 General conference in San Francisco for the preparation of the charter of the international organization. Delegates of Fifty nations met at the conference and approved unanimously the charter of the UN.

The UN Charter

- Consist of 111 articles besides the preamble and the concluding provisions. Statute of ICJ is also included which id annexed to and made an integral part of it.

- In one sense it is consider a treaty bec. it derives its binding force from the agreement of the parties to it. In another sense, it may be regarded as a constitution in so far as it provides for the organization and operation of the different organs of the UN and for the adoption of any change in its provisions through a formal process of amendment.

- Apply not only to member but also to non-member of the states in so far as maybe necessary for the maintenance of international peace and security.- Obligation under the charter shall prevail over the obligation of the members under any other international agreement.- Amendment to the charter shall come into force for all the members of the UN when they have been adopted by a vote of two-thirds of the members of

the General Assembly and ratified in accordance with their respective constitutional processes by two-third of the members of the UN, including all the permanent members of the Security Council. Amendments may be proposed by two thirds vote of the conference and shall take effect when ratified by two-thirds of the members of the UN, including the permanent member of the Security Council.

- A general Conference may also be called by a majority vote of the General Assembly and any nine members of the Security Council for the purpose of reviewing the charter.

Purpose of the UN

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Principles

1. The Organization is based on the principle of the sovereign equality of all its Members.2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by

them in accordance with the present Charter.

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.


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4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.

Membership: the distinction between the two is based only on the manner of their admission and does not involve any difference in the enjoyment of right and discharge of obligations.

Original Elective -States having participated in the UN Conference on international organization at San Francisco or having previously signed the declaration by the UN of Jan. 1, 1942, signed and ratified the Charter of the UN.

- there were fifty original members although Poland was unable to participate in the drafting of the Charter.

-by decision of the General Assembly upon the favorable recommendation of the Security council which must be peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.

Suspension of MembersA Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security Council.

Effect: Cannot participate in the meeting of the General Assembly or from being elected to or continuing to serve in the Security Council, the Economic and Social Council or trusteeship council.

Expulsion

A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.

Withdrawal of Members

No provision in the UN charter because of the fear that it might encourage successive withdrawal that might weaken the Organization. Nevertheless, the San Francisco Conference approved a special committee report that a member might withdraw from the UN if:

1. The organization was revealed to be unable to maintain peace or could do so only at the expense of law and justice.2. The members right and obligation ass such has changed by a charter amendment in which it had not occurred or which it finds itself unable to

accept.

3. An amendment duly accepted by necessary majority either in the general assembly or in general conference is not ratified.

Organs of the UNA) THE GENERAL ASSEMBLY- The General Assembly shall consist of all the Members of the United Nations. Each Member shall have not more than five representatives in the General Assembly.

Function may be classified as:1. Deliberative, initiate studies and make recommendations toward the progressive development of international law and its codification.2. Supervisory, shall receive and consider reports from the other organs of the United Nations.

3. Financial, consider and approve the budget of the Organization and budgetary arrangements with specialized agencies.4. Elective, the election of the non-permanent members of the Security Council, the election of the members of the Economic and Social Council, the

election of members of the Trusteeship Council.5. Constituent, such as ad mission of the members and the amendment of the charter of the UN.

B) THE SECURITY COUNCIL- The key organ of UN in the maintenance of international peace and security. It consists of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be


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permanent members of the Security Council. The other Member are elected for two-years term by the General Assembly, five from African and Asian states, two from Latin American states, two from western European and one from eastern European state.

Voting: Yalta Formula which provides that: 1. Each member of the Security Council shall have one vote.2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.

3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.

C) THE ECONOMIC AND SOCIAL COUNCIL - consist of fifty-four Members of the United Nations elected by the General Assembly. Specifically, these organs should exert effort toward:

Higher standard of living, full employment and condition of economic and social progress and development. 2. Solutions of international economic, social, health and related problems, and international, cultural and educational cooperation; and

Universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race sex language or religion.

D) THE TRUSTEESHIP COUNCIL- assist the Security Council and the General Assembly in the administration of the international trusteeship system.

It consist of the following Members of the United Nations: a. those Members administering trust territories; b. such of those Members mentioned by name in Article 23 as are not administering trust territories; and c. as many other Members elected for three-year terms by the General Assembly as may be necessary to ensure that the total number of members of the Trusteeship Council is equally divided between those Members of the United Nations which administer trust territories and those which do not.

The General Assembly and, under its authority, the Trusteeship Council, in carrying out their functions, may:

1. consider reports submitted by the administering authority; 2. accept petitions and examine them in consultation with the administering authority;

3. provide for periodic visits to the respective trust territories at times agreed upon with the administering authority; and

4. take these and other actions in conformity with the terms of the trusteeship agreements.

E) THE INTERNATIONAL COURT OF JUSTICE-the principal judicial organ of the United Nations. It shall function in accordance with the Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.

Function: Decide contentious cases and to render advisory opinions. Only states including non-members of the UN may be parties in contentious cases.

Jurisdiction: Based on the consent of the parties as manifested under the optional jurisdiction clause.

F) THE SECRETARIAT-the administrative organ of the UN. Headed by the Secretary-General which shall be appointed by the General Assembly upon the recommendation of the Security Council. He shall be the chief administrative officer of the Organization.

Secretary General-the highest representative of the UN and its authorized to act in its behalf. He may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security. In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization.

Chapter 5 - THE CONCEPT OF THE STATE

PRINCIPLE OF STATE CONTINUITY- from the moment of its creation, the state continues as a juristic being notwithstanding changes in its circumstances, provided, only that they do not result in loss of any of its essential elements.

EXTINCTION OF STATES- results when there is a radical impairment of the essential elements of the state.

PRINCIPLE OF STATE SUCCESSION

A. STATE SUCCESSION is the substitution of one State by another, the latter taking over the rights and some of the obligations of the former.

B. 2 types of State Succession:1. UNIVERSAL- takes place when a State is completely annexed by another, or is dismembered or dissolved, or is created as a result of merger of 2 or more States.2. PARTIAL - takes place when a portion of the territory of a State loses part of its sovereignty by joining a confederation or becoming a protectorate or suzerainty.

C. Effects of State Succession1. The allegiance of the inhabitants of the predecessor State is transferred to the successor State.


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2. The political laws of the predecessor State are automatically abrogated but the non-political laws are deemed continued unless expressly repealed or contrary to the institutions of the new sovereign.

3. The public property of the predecessor State is acquired by the successor State but not the tort liability of the former.4. Treaties entered into by the predecessor State are not considered binding on the successor State except those dealing with local rights and duties such as

servitudes and boundaries.

People vs. Perfecto (G.R. No. L-18463 October 4, 1922)

Article 256 of the Penal Code is contrary to the genius and fundamental principles of the American character and system of government. The gulf which separates this article from the spirit which inspires all penal legislation of American origin, is as wide as that which separates a monarchy from a democratic Republic like that of the United States. This article was crowded out by implication as soon as the United States established its authority in the Philippine Islands. Penalties out of all proportion to the gravity of the offense, grounded in a distorted monarchical conception of the nature of political authority, as opposed to the American conception of the protection of the interests of the public, have been obliterated by the present system of government in the Islands.

From an entirely different point of view, it must be noted that this article punishes contempts against executive officials, although its terms are broad enough to cover the entire official class. Punishment for contempt of non-judicial officers has no place in a government based upon American principles. Our official class is not, as in monarchies, an agent of some authority greater than the people but it is an agent and servant of the people themselves. These officials are only entitled to respect and obedience when they are acting within the scope of their authority and jurisdiction. The American system of government is calculated to enforce respect and obedience where such respect and obedience is due, but never does it place around the individual who happens to occupy an official position by mandate of the people any official halo, which calls for drastic punishment for contemptuous remarks.

SUCCESSION OF GOVERNMENT

1. In succession of government, the integrity of the original State is not affected as what takes place is only a change in one of its elements, the government.

2. Effects of a change in government: a. If effected by peaceful means, the new government inherits all rights and obligations of the old government. b. If effected by violence, the new government inherits all the rights of the old government. However, the new government may reject the obligations of the old

government if they are of a political complexion. If the obligations are the consequence of the routinary act of administration of the old government, they should be respected.

PEOPLE vs. PERFECTOTopic: The Concept of the State

Facts: This case arose when La Nacion newspapaer edited by Gregorio Perfecto published an article reading as follows:Half a month has elapsed since the discovery, for the first time, of the scandalous robbery of records which were kept and preserved in the iron safe of the Senate, yet up to this time there is not the slightest indication that the author or authors of the crime will ever be discovered.

To find them, it would not, perhaps, be necessary to go out of the Sente itself, and the persons in charge of the investigation of the case would not have to display great skill in order to succeed in their undertaking, unless they should encounter the insuperable obstacle of offical concealment.

In that case, every investigation to be made would be but a mere comedy and nothing more.

After all, the perpetration of the robbery, especially under the circumstances that have surrounded it, does not surprise us at all.

The execution of the crime was but the natural effect of the environment of the place in which it was committed.

How many of the present Senators can say without remorse in their conscience and with serenity of mind, that they do not owe their victory to electoral robbery? How may?

The author or authors of the robbery of the records from the said iron safe of the Senate have, perhaps, but followed the example of certain Senators who secured their election through fraud and robbery.

Gregorio Perfecto was prosecuted for the crime of lese majeste, Article 256 of the Spanish Penal Code.

Issue: WON Gregorio Perfecto can be prosecuted under the Spanish Penal Code with the change of soevereignty from the Spaniards to the Americans?

Held: NO.

It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated. "Political" is here used to denominate the laws regulating the relations sustained by the inhabitants to the sovereign.

xxx…xxx…xxx…

According to our view, article 256 of the Spanish Penal Code was enacted by the Government of Spain to protect Spanish officials who were the representatives of the King. With the change of sovereignty, a new government, and a new theory of government, as set up in the Philippines. It was in no sense a continuation of the old,


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although merely for convenience certain of the existing institutions and laws were continued. The demands which the new government made, and makes, on the individual citizen are likewise different. No longer is there a Minister of the Crown or a person in authority of such exalted position that the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man . We have no rank or station, except that of respectability and intelligence as opposed to indecency and ignorance, and the door to this rank stands open to every man to freely enter and abide therein, if he is qualified, and whether he is qualified or not depends upon the life and character and attainments and conduct of each person for himself. Every man may lawfully do what he will, so long as it is not malum in se or malum prohibitum or does not infringe upon the qually sacred rights of others."

xxx…xxx…xxx…

The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris. Ministers of the Crown have no place under the American flag.

To summarize, the result is, that all the members of the court are of the opinion, although for different reasons, that the judgment should be reversed and the defendant and appellant acquitted. /carla

Chapter 6 - RECOGNITION

RECOGNITION act by which a state acknowledges existence of another state, government or belligerent community and indicates its willingness to deal with the entity as such

under rules of international law. Even if an entity has already acquired the elements of international personality, it is not for this reason alone automatically entitled to membership in the family

of nations. The extent of its membership in the international community is dependent on the number of states prepared to admit it.

Theories:1. Declaratory – merely affirms an existing fact like the possession by the state of the essential elements. Discretionary and political;2. Constitutive - it is the act of recognition that constitutes the entity into an international person. Compulsory and legal; may be compelled once the elements of

a state are established.

Objects:1. State – generally held to be irrevocable and imports the recognition of its govt.2. Government – may be withdrawn and does not necessarily signify the existence of a state, as the government may be that of a mere colony.3. Belligerent community – rebels are accorded international personality only in connection with the hostilities they are waging.

Kinds:1. Express – may be verbal or in writing like through a formal proclamation, an announcement, a stipulation in a treaty, and the likes.2. Implied – happens when the recognizing state enters into official intercourse with a new member by exchanging diplomatic representatives, concluding bipartite

treaties, acknowledging its flag, etc.3. conditional or permanent

Recognition should give a clear indication of an intention as follows;1. To treat with the new state as such.2. To accept the new government as having authority to represent the state it purports to govern and to maintain diplomatic relations with it.3. To recognize in the case of insurgents that they are entitled to exercise belligerent rights.

ABSENT or short of such intention will not give rise to recognition.

“Effect of common membership in an international organization of states that have not recognized each other is that they are deemed to recognized each other only within the said body and not elsewhere.”

Recognition of States- It is the free act by which one or more states acknowledge the existence on a definite territory of a human society politically organized, independent of

any existing state, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community.

Recognition of a new Government- It is the free act by which one or several states acknowledge that a person or a group of persons is capable of binding the state which they claim to

represent and witness their intention to enter into relations with them.

Effects of Recognition of a State or Government:1. Diplomatic relations;2. Right to sue in courts of recognizing state; 3. Right to possession of properties of predecessor on the reorganizing state.4. All acts of the recognized state or government are validated retroactively, preventing the recognizing state from passing upon their legality in its own courts.

Conditions for Recognition of Belligerency:1. organized civil government;2. rebels occupy a substantial portion of territory;3. conflict is serious and outcome is uncertain; 4. rebels are willing to observe the laws of war.

absence of one – state of insurgency


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Effects of Recognition of Belligerency:1. Responsibility for acts of rebels resulting to injury to nationals of recognizing state shall be shifted to rebel government;2. The legitimate government recognizing the rebels as belligerents shall observe laws/customs of war in conducting hostilities;3. Third states recognizing belligerency should maintain neutrality;4. Recognition is only provisional and only for purposes of hostilities.

Wilson/Tobar Doctrine – precludes recognition of government established by revolution, civil war, coup d’etat or other forms of internal violence until the freely elected representatives of people have organized a constitutional government (Ecuadorian Foreign Minister Tobar and US Pres. Woodrow Wilson)

Stimson Doctrine – precludes recognition of any government established as result of external aggression (US Sec of State Henry Lewis Stimson)

Estrada Doctrine – dealing or not dealing with the government established through a political upheaval is not a judgment on the legitimacy of the said government (Mexican Minister Genaro Estrada)

Requisites for recognition de jure:1. Government is stable and effective;2. No substantial resistance to its authority;3. The government must show willingness and ability to discharge its international obligations;4. The government must enjoy popular consent or approval of the people.

absence of one – recognition de facto

RECOGNITION DE JURE

RECOGNITION DE FACTO

1. Relatively permanent 1. Provisional (duration of armed struggle)

2. vests title to properties of government abroad

2. does NOT vest title to properties of government abroad

3. brings about full diplomatic relations

3. limited to certain juridical relations

Chapter 7 - THE RIGHT OF EXISTENCE AND SELF-DEFENSE

FUNDAMENTAL RIGHTS OF STATES E 1. Existence and self-defense;I 2. Sovereignty and Independence;E 3. Equality;T 4. Territorial Integrity and jurisdiction;L 5. Legation or diplomatic intercourse

(Key: TILE2)

A. RIGHT TO EXISTENCE AND SELF- DEFENSE most comprehensive as all other rights of state flow from it; state may take measures including use of force as may be necessary to counteract any danger to its existence. Aggression – use of armed force by a state against sovereignty, territorial integrity or political independence of another state or in other manner inconsistent

with the UN charter.

Requisites for Proper Exercise of Right of Self-defense:

1. armed attack

Idealistic View: “applies only when there is a necessity of self-defense instant, overwhelming and leaving no choice of means and no moment for deliberation. Mere apprehended danger or any direct threat to the state, does not by itself alone, warrant the employment by the state of any force against a suspected or potential enemy. The right can only be resorted to upon a clear showing of a grave and actual danger to the security of the state, and the self-defensive measure must be limited by the necessity and kept within it.”

Regular Practice: “the very state of armed preparedness of a nuclear power for instance is per se a potent threat to the security of any country with which it may have some differences. Such a country would, under this view, have a right to beat the other to the draw, as it were, and justify its act under the right of self defense. And history is replete with instances of the application of this more pragmatic concept of the right of self-defense. For example, Korea was invaded by Japan in 1904 on the ground that Russia, its enemy then, also had its eye on Korea and might use it as a base of operation against Japan. Russian similarly invaded Finland and sought to justify its act as a strategic measure to defend itself from an anticipated German invasion. And just recently, The US attacked Iraq on the ground that it was storing biological and chemical weapons of mass destruction that it was intending to use against the Americans.”

2. self-defensive action taken by attacked state must be reported immediately to Security Council; and


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3. such action shall not in any way affect right of Security Council to take at any time action as it deems necessary to maintain or restore international peace and security.

REGIONAL ARRANGEMENT

- Collective self-defense is recognized not only in Article 51 of the UN Charter but also implied in Article 7 on Regional Arrangements. In Article 52 sec. 1, it is provided that “nothing in the present charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided such activities are consistent with the purposes and principles of the United Nations.”

Purpose – to create a balance of power. It is an arrangement of affairs so that no state shall be in a position to have absolute mastery and dominion over others. Example: Organization of American States, and NATO although not strictly regional.

Chapter 8 - THE RIGHT OF INDEPENDENCEChapter 9 - THE RIGHT OF EQUALITY

RIGHT OF SOVEREIGNTY AND INDEPENDENCE Sovereignty – totality of the powers, legal competence, and privileges arising from customary international law, and not dependent on the consent of another

state. Independence – means freedom from control by other state or group of states and not freedom from the restrictions that are binding on all states forming the

family of nations; carries with it by necessary implication the correlative duty of non-intervention

RIGHT OF EQUALITY every state is entitled to same protection and respect as are available to other state under rules of international law.

INTERNATIONAL CATHOLIC MIGRATION COMMISSION vs. FERRER-CALLEJATopic: Rights of States

Facts: ICMC was one of those accredited by the Philippine Government to operate a refugee processing center in Morong, Bataan, pursuant to an Agreement forged between the Philippine Government and the UN High Commissioner for Refugees, in response to the plight of Vietnamese refugees as an aftermath of the Vietnam War. It is duly registered with the United Nations Economic and Social Council (ECOSOC) and enjoys Consultative Status, Category II.

Trade Unions of the Philippines and Allied Services (TUPAS) filed with the then Ministry of Labor and Employment a Petition for Certification Election among the rank and file members employed by ICMC. The latter opposed the petition on the ground that it is an international organization registered with the United Nations and, hence, enjoys diplomatic immunity. Later during the course of the litigation, the Philippine Government, through the Department of Foreign Affairs (DEFORAF), granted ICMC the status of a specialized agency with corresponding diplomatic privileges and immunities. This immunity was immediately invoked by ICMC as a ground for the dismissal of the case.

On a similar note, the International Rice Research Institute (IRRI) was established by a Memorandum of Understanding signed by the Philippine Government and the Ford and Rockefeller Foundations, and was located at Los Baños, Laguna. Initially, IRRI was organized and registered with the Securities and Exchange Commission as a private corporation subject to all laws and regulations. However, by virtue of Pres. Decree No. 1620, IRRI was granted the status, prerogatives, privileges and immunities of an international organization.

The Kapisanan ng Manggagawa at TAC sa IRRI (Kapisanan), a labor union, filed a Petition for Direct Certification Election DOLE. IRRI opposed the petition invoking Pres. Decree No. 1620 conferring upon it the status of an international organization and granting it immunity from all civil, criminal and administrative proceedings under Philippine laws.

Issue: Whether or not the grant of diplomatic privileges and immunities to ICMC and IRRI extends to immunity from the application of Philippine labor laws

Held: SC ruled that it did.

“The grant of immunity from local jurisdiction to ICMC and IRRI is clearly necessitated by their international character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. The exercise of jurisdiction by the Department of Labor in these instances would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions.”

“There are basically three propositions underlying the grant of international immunities to international organizations. These principles, contained in the ILO Memorandum are stated thus: 1) international institutions should have a status which protects them against control or interference by any one government in the performance of functions for the effective discharge of which they are responsible to democratically constituted international bodies in which all the nations concerned are represented; 2) no country should derive any national financial advantage by levying fiscal charges on common international funds; and 3) the international organization should, as a collectivity of States members, be accorded the facilities for the conduct of its official business customarily extended to each other by its individual member States. The theory behind all three propositions is said to be essentially institutional in character. It is not concerned with the status, dignity or privileges of individuals, but with the elements of functional independence necessary to free international institutions from national control and to enable them to discharge their responsibilities impartially on behalf of all their members. The raison d'etre for these immunities is the assurance of unimpeded performance of their functions by the agencies concerned.”


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“The eventuality of Court litigation is neither remote and from which international organizations are precisely shielded to safeguard them from the disruption of their functions. Clauses on jurisdictional immunity are said to be standard provisions in the constitutions of international Organizations. The immunity covers the organization concerned, its property and its assets. It is equally applicable to proceedings in personam and proceedings in rem.”

Definition of international organizations and specialized agencies:

The term "international organization" is generally used to describe an organization set up by agreement between two or more states. Under contemporary international law, such organizations are endowed with some degree of international legal personality such that they are capable of exercising specific rights, duties and powers. They are organized mainly as a means for conducting general international business in which the member states have an interest. The United Nations, for instance, is an international organization dedicated to the propagation of world peace.

"Specialized agencies" are international organizations having functions in particular fields. The Charter of the United Nation provides that those agencies which have "wide international responsibilities" are to be brought into relationship with the United Nations by agreements entered into between them and the Economic and Social Council, are then to be known as "specialized agencies."/anel

SOUTHEAST ASIA FISHERIES DEVELOPMENT CENTER vs. NLRCTopic: Rights of States

Facts: Respondent Yong filed a complaint for illegal dismissal against petitioner Southeast Asian Fisheries Development Center (SEAFDEC). The Labor Arbiter rendered a decision ordering petitioner to reinstate respondent to his former position with full back wages and to pay complainant moral damages. NLRC affirmed the decision of the Labor Arbiter. Petitioner filed an urgent motion for the issuance of an order restraining NLRC from issuing a writ of execution. This Court, without giving due course to the petition, issued a temporary restraining order.

Previously, this Court, in Southeast Asian Fisheries Development Center-Aquaculture Department v. National Labor Relations Commission, 206 SCRA 283 (1992) held that NLRC had no jurisdiction over petitioner, the latter being "an international agency beyond the jurisdiction of the courts or local agencies of the Philippine Government." By reason of this Court's pronouncement in the aforementioned case, petitioner filed a supplemental petition raising the issue of lack of jurisdiction on the part of NLRC to hear and decide the case.

Issue: WON NLRC had jurisdiction over the petitioner SEAFDEC, being an international agency.

Held: NLRC had no jurisdiction. SEAFDEC, as an international agency, enjoys diplomatic immunity.

The Southeast Asian Fisheries Development Center-Aquaculture Department (SEAFDEC-AQD) was established by the Government of Burma, the Kingdom of Cambodia, the Republic of Indonesia, Japan, the Kingdom of Laos, Malaysia, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Republic of Vietnam. The Philippines was a signatory to the Agreement establishing SEAFDEC.

What is the concept of immunity of international organizations from the jurisdiction of local courts???

One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., that it is immune from the legal writs and processes issued by the tribunals of the court where it is found. The obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a convenient medium thru which the host government may interfere in their operations or even influence or control its policies and decisions of the organization; besides, such subjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially, on behalf of its member-states. In the case at bar, for instance, the entertainment by the National Labor Relations Commission of Mr. Madamba's reinstatement cases would amount to interference by the Philippine Government in the management decisions of the SEARCA governing board; even worse, it could compromise the desired impartiality of the organization since it will have to suit its actuations to the requirements of Philippine law, which may not necessarily coincide with the interests of the other member-states. It is precisely to forestall these possibilities that in cases where the extent of the immunity is specified in the enabling instruments of international organizations, (jurisdictional immunity is specified in the enabling instruments of international organizations) jurisdictional immunity from the host country is invariably among the first accorded.

The petition is GRANTED. The restraining order is made PERMANENT. /hazel

US vs. GUINTOTopic: Rights of States

Facts:

These cases have been consolidated because they all involve the doctrine of state immunity. The United States of America was not impleaded in the complaints below but has moved to dismiss on the ground that they are in effect suits against it to which it has not consented. It is now contesting the denial of its motions by the respondent judges.

In G.R. No. 76607, the private respondents are suing several officers of the U.S. Air Force stationed in Clark Air Base in connection with the bidding conducted by them for contracts for barber services in the said base.


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Petitioners filed a motion to dismiss and opposition to the petition for preliminary injunction on the ground that the action was in effect a suit against the United States of America, which had not waived its non-suability. The individual defendants, as official employees of the U.S. Air Force, were also immune from suit. Trial Court denied its motion.

In G.R. No. 79470, Fabian Genove filed a complaint for damages against petitioners Anthony Lamachia, Wilfredo Belsa, Rose Cartalla and Peter Orascion for his dismissal as cook in the U.S. Air Force Recreation Center at the John Hay Air Station in Baguio City. It had been ascertained after investigation, from the testimony of Belsa Cartalla and Orascion, that Genove had poured urine into the soup stock used in cooking the vegetables served to the club customers. Lamachia, as club manager, suspended him and thereafter referred the case to a board of arbitrators conformably to the collective bargaining agreement between the Center and its employees. The board unanimously found him guilty and recommended his dismissal. Genove's reaction was to file his complaint in the Regional Trial Court of Baguio City against the individual petitioners.

Defendants in this case move for the dismissal of the complaint, alleging that Lamachia, as an officer of the U.S. Air Force stationed at John Hay Air Station, was immune from suit for the acts done by him in his official capacity. They argued that the suit was in effect against the United States, which had not given its consent to be sued. This motion was denied by the respondent judge.

In G.R. No. 80018, Luis Bautista, who was employed as a barracks boy in Camp O' Donnell, an extension of Clark Air Base, was arrested following a buy-bust operation conducted by the individual petitioners herein, namely, Tomi J. King, Darrel D. Dye and Stephen F. Bostick, officers of the U.S. Air Force and special agents of the Air Force Office of Special Investigators (AFOSI). On the basis of the sworn statements made by them, an information for violation of R.A. 6425, otherwise known as the Dangerous Drugs Act, was filed against Bautista in the Regional Trial Court of Tarlac. The above-named officers testified against him at his trial. As a result of the filing of the charge, Bautista was dismissed from his employment. He then filed a complaint for damages against the individual petitioners herein claiming that it was because of their acts that he was removed.

The law firm of Luna, Sison and Manas, having been retained to represent the defendants, filed with leave of court a motion to withdraw the answer and dismiss the complaint. The ground invoked was that the defendants were acting in their official capacity when they did the acts complained of and that the complaint against them was in effect a suit against the United States without its consent. The motion was denied by the respondent judge.

In G.R. No. 80258, a complaint for damages was filed by the private respondents against the herein petitioners (except the United States of America), for injuries allegedly sustained by the plaintiffs as a result of the acts of the defendants. There is a conflict of factual allegations here. According to the plaintiffs, the defendants beat them up, handcuffed them and unleashed dogs on them which bit them in several parts of their bodies and caused extensive injuries to them. The defendants deny this and claim the plaintiffs were arrested for theft and were bitten by the dogs because they were struggling and resisting arrest, The defendants stress that the dogs were called off and the plaintiffs were immediately taken to the medical center for treatment of their wounds.

In a motion to dismiss the complaint, the United States of America and the individually named defendants argued that the suit was in effect a suit against the United States, which had not given its consent to be sued. The defendants were also immune from suit under the RP-US Bases Treaty for acts done by them in the performance of their official functions. The motion to dismiss was denied by the trial court.

Issue: WON the doctrine of immunity from suit is applicable.

Ruling:

Doctrine of State Immunity

The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles of international law that we have adopted as part of the law of our land under Article II, Section 2.

Even without such affirmation, we would still be bound by the generally accepted principles of international law under the doctrine of incorporation. Under this doctrine, as accepted by the majority of states, such principles are deemed incorporated in the law of every civilized state as a condition and consequence of its membership in the society of nations. Upon its admission to such society, the state is automatically obligated to comply with these principles in its relations with other states.

While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been formally impleaded. In such a situation, the state may move to dismiss the complaint on the ground that it has been filed without its consent.

The doctrine is sometimes derisively called "the royal prerogative of dishonesty" because of the privilege it grants the state to defeat any legitimate claim against it by simply invoking its non-suability. That is hardly fair, at least in democratic societies, for the state is not an unfeeling tyrant unmoved by the valid claims of its citizens. In fact, the doctrine is not absolute and does not say the state may not be sued under any circumstance. On the contrary, the rule says that the state may not be sued without its consent, which clearly imports that it may be sued if it consents.

Rationale of State Immunity

As applied to the local state, the doctrine of state immunity is based on the justification given by Justice Holmes that "there can be no legal right against the authority which makes the law on which the right depends." There are other practical reasons for the enforcement of the doctrine. In the case of the foreign state


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sought to be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A contrary disposition would, in the language of a celebrated case, "unduly vex the peace of nations."

Manifestation of the consent to be sued

Express consent- may be embodied in the general law or a special law Implied consent- when the state enters into a contract or it itself commences litigation

The general law waiving the immunity of the state from suit is found in Act No. 3083, under which the Philippine government "consents and submits to be sued upon any moneyed claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties." A special law was passed to enable a person to sue the government for an alleged tort. When the government enters into a contract, it is deemed to have descended to the level of the other contracting party and divested of its sovereign immunity from suit with its implied consent. 16 Waiver is also implied when the government files a complaint, thus opening itself to a counterclaim

The above rules are subject to qualification. Express consent is effected only by the will of the legislature through the medium of a duly enacted statute. 18

We have held that not all contracts entered into by the government will operate as a waiver of its non-suability; distinction must be made between its sovereign and proprietary acts. As for the filing of a complaint by the government, suability will result only where the government is claiming affirmative relief from the defendant.

Suability vs. Liability

There seems to be a failure to distinguish between suability and liability and a misconception that the two terms are synonymous.

Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts.

The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued.

When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable.

Case of United States

In the case of the United States of America, the customary rule of international law on state immunity is expressed with more specificity in the RP-US Bases Treaty. Article III thereof provides as follows:

It is mutually agreed that the United States shall have the rights, power and authority within the bases which are necessary for the establishment, use, operation and defense thereof or appropriate for the control thereof and all the rights, power and authority within the limits of the territorial waters and air space adjacent to, or in the vicinity of, the bases which are necessary to provide access to them or appropriate for their control.

It bears stressing at this point that the above observations do not confer on the United States of America a blanket immunity for all acts done by it or its agents in the Philippines. Neither may the other petitioners claim that they are also insulated from suit in this country merely because they have acted as agents of the United States in the discharge of their official functions.

There is no question that the United States of America, like any other state, will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied.

Application in the case at bar

It is clear from a study of the records of G.R. No. 80018 that the individually-named petitioners therein were acting in the exercise of their official functions when they conducted the buy-bust operation against the complainant and thereafter testified against him at his trial. The said petitioners were in fact connected with the Air Force Office of Special Investigators and were charged precisely with the function of preventing the distribution, possession and use of prohibited drugs and prosecuting those guilty of such acts. It cannot for a moment be imagined that they were acting in their private or unofficial capacity when they apprehended and later testified against the complainant. It follows that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts imputable to their principal, which has not given its consent to be sued.

G.R. No. 80258. The contradictory factual allegations in this case deserve in our view a closer study of what actually happened to the plaintiffs. The record is too meager to indicate if the defendants were really discharging their official duties or had actually exceeded their authority when the incident in question occurred. Lacking this information, this Court cannot directly decide this case. The needed inquiry must first be made by the lower court so it may assess and resolve the conflicting claims of the parties on the basis of the evidence that has yet to be presented at the trial. Only after it shall have determined in what capacity the petitioners were acting at the time of the incident in question will this Court determine, if still necessary, if the doctrine of state immunity is applicable.

In G.R. No. 79470, the Court can assume that the restaurant services offered at the John Hay Air Station partake of the nature of a business enterprise undertaken by the United States government in its proprietary capacity. The consequence of this finding is that the petitioners cannot invoke the doctrine of state immunity to justify the dismissal of the damage suit against them by Genove. Such defense will not prosper even if it be established that they were acting as agents of the United States when they investigated and later dismissed Genove. For that matter, not even the United States government itself can claim such immunity. The


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reason is that by entering into the employment contract with Genove in the discharge of its proprietary functions, it impliedly divested itself of its sovereign immunity from suit.

But these considerations notwithstanding, we hold that the complaint against the petitioners in the court below must still be dismissed. While suable, the petitioners are nevertheless not liable. It is obvious that the claim for damages cannot be allowed on the strength of the evidence before us, which we have carefully examined.

Concerning G.R. No. 76607, we also find that the barbershops subject of the concessions granted by the United States government are commercial enterprises operated by private person's. They are not agencies of the United States Armed Forces nor are their facilities demandable as a matter of right by the American servicemen. These establishments provide for the grooming needs of their customers and offer not only the basic haircut and shave (as required in most military organizations) but such other amenities as shampoo, massage, manicure and other similar indulgences. And all for a fee. Interestingly, one of the concessionaires, private respondent Valencia, was even sent abroad to improve his tonsorial business, presumably for the benefit of his customers. No less significantly, if not more so, all the barbershop concessionaires are under the terms of their contracts, required to remit to the United States government fixed commissions in consideration of the exclusive concessions granted to them in their respective areas.

This being the case, the petitioners cannot plead any immunity from the complaint filed by the private respondents in the court below. /jesa

COMMISSIONER OF INTERNAL REVENUE vs. GOTANCO & SONS, INC. AND CATopic: Rights of States

Facts: World Health Organization (WHO) as an international organization, it enjoys privileges and immunities which are defined more specifically in the Host Agreement entered into between the Republic of the Philippines and the said Organization on July 22, 1951. Section 11 of that Agreement provides, inter alia, that "the Organization, its assets, income and other properties shall be: (a) exempt from all direct and indirect taxes. It is understood, however, that the Organization will not claim exemption from taxes which are, in fact, no more than charges for public utility services;

Sometime in May 1958, the WHO received an opinion from the Commissioner of the Bureau of Internal Revenue stating that "as the 3% contractor's tax is an indirect tax on the assets and income of the Organization, the gross receipts derived by contractors from their contracts with the WHO for the construction of its new building, are exempt from tax in accordance with . . . the Host Agreement." Subsequently, however, on June 3, 1958, the Commissioner of Internal Revenue reversed his opinion and stated that "as the 3% contractor's tax is not a direct nor an indirect tax on the WHO, but a tax that is primarily due from the contractor, the same is not covered by . . . the Host Agreement.

Issue: Whether respondent John Gotanco & Sons, Inc. should pay the 3% contractor's tax under Section 191 of the National Internal Revenue Code on the gross receipts it realized from the construction of the World Health Organization office building in Manila.

Held: In context, direct taxes are those that are demanded from the very person who, it is intended or desired, should pay them; while indirect taxes are those that are demanded in the first instance from one person in the expectation and intention that he can shift the burden to someone else. (Pollock vs. Farmers, L & T Co., 1957 US 429, 15 S. Ct. 673, 39 Law. Ed. 759.) The contractor's tax is of course payable by the contractor but in the last analysis it is the owner of the building that shoulders the burden of the tax because the same is shifted by the contractor to the owner as a matter of self-preservation. Thus, it is an indirect tax. And it is an indirect tax on the WHO because, although it is payable by the petitioner, the latter can shift its burden on the WHO. In the last analysis it is the WHO that will pay the tax indirectly through the contractor and it certainly cannot be said that 'this tax has no bearing upon the World Health Organization. /mier

US vs. RUIZTopic: Rights of States

Facts: At times material to this case, the United States of America had a naval base in Subic, Zambales. The base was one of those provided in the Military Bases Agreement between the Philippines and the United States.

Sometime in May, 1972, the United States invited the submission of bids for the following projects: 1. Repair fender system, Alava Wharf at the U.S. Naval Station Subic Bay, Philippines. 2. Repair typhoon damage to NAS Cubi shoreline; repair typhoon damage to shoreline revetment, NAVBASE Subic; and repair to Leyte Wharf approach, NAVBASE Subic Bay, Philippines.

Eligio de Guzman & Co., Inc. responded to the invitation and submitted bids. Subsequent thereto, the company received from the United States two telegrams requesting it to confirm its price proposals and for the name of its bonding company. The company complied with the requests. [In its complaint, the company alleges that the United States had accepted its bids because "A request to confirm a price proposal confirms the acceptance of a bid pursuant to defendant United States' bidding practices." The truth of this allegation has not been tested because the case has not reached the trial stage.]

In June, 1972, the company received a letter which was signed by William I. Collins, Director, Contracts Division, Naval Facilities Engineering Command, Southwest Pacific, Department of the Navy of the United States, who is one of the petitioners herein. The letter said that the company did not qualify to receive an award for the projects because of its previous unsatisfactory performance rating on a repair contract for the sea wall at the boat landings of the U.S. Naval Station in Subic Bay. The letter further said that the projects had been awarded to third parties.

Held: The traditional rule of State immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary consequence of the principles of independence and equality of States. However, the rules of International Law are not petrified; they are constantly developing and evolving. And because the activities of states have multiplied, it has been necessary to distinguish them — between sovereign and governmental acts


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(jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii. The restrictive application of State immunity is now the rule in the United States, the United Kingdom and other states in western Europe.

The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply where the contract relates to the exercise of its sovereign functions. In this case the projects are an integral part of the naval base which is devoted to the defense of both the United States and the Philippines, indisputably a function of the government of the highest order; they are not utilized for nor dedicated to commercial or business purposes. /fred

JBL REYES vs. RAMON BAGATSINGTopic: Rights of States

Facts: Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to hold a peaceful march and rally starting from the Luneta, a public park, to the gates of the United States Embassy. Once there, and in an open space of public property, a short program would be held. There was likewise an assurance in the petition that in the exercise of the constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally."

Respondent Mayor denied such permit. Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place applied for." To be more specific, reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where a large number of people is expected to attend."

Issue: Whether or not the act of the Mayor of denying the permit is valid?

Held: Supreme Court ruled that denying the permit to rally by the Mayor was not valid.

Supreme Court concluded that there was no showing of the existence of a clear and present danger of a substantive evil to a legitimate public interest that would justify the denial of the constitutional rights of free speech and peaceable assembly.

There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So, too, if the march would end at another park. As previously mentioned though, there would be a short program upon reaching the public space between the two gates of the United States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based on the resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the President on October 11, 1965, and was thereafter deposited with the Secretary General of the United Nations on November 15. As of that date then, it was binding on the Philippines. The second paragraph of the Article 22 reads: "2. The receiving State is under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. " The Constitution "adopts the generally accepted principles of international law as part of the law of the land. ..." To the extent that the Vienna Convention is a restatement of the generally accepted principles of international law, it should be a part of the law of the land. That being the case, if there were a clear and present danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment of its dignity, there would be a justification for the denial of the permit insofar as the terminal point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and peaceable assembly. Even if shown then to be applicable, that question then confronts this Court.

Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was no showing, however, that the distance between the chancery and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow that respondent Mayor could legally act the way he did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to pass on that issue was obviated, Should it come, then the qualification and observation of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assembly demands nothing less. /mier

BAER vs. TIZONTopic: Rights of States

Facts: The case is about certiorari proceeding against Judge Tizon filed by Commander Baer of the US Naval Base, Subic Bay Olongapo Zambales seeking to nullify his order “denying motion to dismiss complaint” filed against him by Edgardo Gener.

Edgardo Gener, the plaintiff filed a complaint against the petitioner Donald Baer alleging that the latter and that the American Naval Base Authorities stopped his logging business. He prayed that a writ of preliminary injunction be made against the petitioner (Baer) from interfering his logging operations. Subsequently a restraining order was issued by Judge Tizon. Commander Baer filed a motion to dismiss on the grounds that he is a head or chief of an agency or instrumentality of the USA, with the subject matter of the action being official acts done by him for and in behalf of USA. He further alleged that his order for cessation of logging operations by respondent Gener in the Naval Base are within his scope of authority and official duty to maintain the security of the Naval Base.


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Principles of Law Applied:1. The invocation of the doctrine of immunity from suit of a foreign state without its consent is appropriate. More specifically, insofar as alien armed forces is

concerned. : "It is well settled that a foreign army, permitted to march through a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place."

2. The U.S. Government has not given its consent to the filing of this suit which is essentially against her, though not in name. Moreover, this is not only a case of a citizen filing a suit against his own Government without the latter's consent but it is of a citizen filing an action against a foreign government without said government's consent, which renders more obvious the lack of jurisdiction of the courts of his country. The principles of law behind this rule are so elementary and of such general acceptance that we deem it unnecessary to cite authorities in support thereof."

3. The doctrine of state immunity is not limited to cases which would result in a pecuniary charge against the sovereign or would require the doing of an affirmative act by it. Prevention of a sovereign from doing an affirmative act pertaining directly and immediately to the most important public function of any government - the defense of the state — is equally as untenable as requiring it to do an affirmative act.

Ruling:WHEREFORE, the writ of certiorari prayed for is granted, nullifying and setting aside the writ of preliminary injunction issued by respondent Judge in Civil Case No. 2984 of the Court of First Instance of Bataan. The injunction issued by this Court on March 18, 1965 enjoining the enforcement of the aforesaid writ of preliminary injunction of respondent Judge is hereby made permanent. Costs against private respondent Edgardo Gener. /louella

WORLD HEALTH ORGANIZATION vs. AQUINOTopic: Rights of States

Facts: Petitioner Dr. Leonce Verstuyft was assigned by the WHO to the Regional Office in Manila as Acting Assistant Director of Health Services pursuant to the Host Agreement between the Philippine Government and the World Health Organization. When petitioner Verstuyft's personal effects contained in twelve (12) crates entered the Philippines as unaccompanied baggage, they were accordingly allowed free entry from duties and taxes. The crates were directly stored at the Eternit Corporation's warehouse at Mandaluyong, Rizal, "pending his relocation into permanent quarters.

Upon the application for a search warrant by the respondents COSAC officers on the ground that they "contain large quantities of highly dutiable goods" beyond the official needs of said petitioner, respondent judge issued the search warrants for alleged violation of Republic Act 4712 amending section 3601 of the Tariff and Customs Code directing the search and seizure of the dutiable items in said crates.

Issue: Whether Dr. Verstuyft is entitled "to all privileges and immunities, exemptions and facilities accorded to diplomatic envoys in accordance with international law" under the Host Agreement?

Ruling:

The Court granting the petition ruled that:

It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General in this case, or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that "in such cases the judicial department of (this) government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction."

x x x the Philippine Government is bound by the procedure laid down in Article VII of the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations for consultations between the Host State and the United Nations agency concerned to determine, in the first instance the fact of occurrence of the abuse alleged, and if so, to ensure that no repetition occurs and for other recourses. This is a treaty commitment voluntarily assumed by the Philippine Government and as such, has the force and effect of law. /lemuel


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“Give strong drink to those who are perishing; wine to those who are in anguish. Let them drink and remember their misery no more.” – Proverbs 31:6-7

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