POLIREV_PUBLICINTLLAW.docx

PUBLIC INTERNATIONAL LAW

I. FUNDAMENTAL CONCEPTS AND PRINCIPLES OF INTERNATIONAL LAW

A. DEFINITION

1. Traditional: That branch of public law which regulates the relations of States and of other entities which have been granted international personality. [This definition focuses on subjects, which are entities which possess international personality and with rights and obligations recognized under international law, as against objects, which are persons or things in respect of which rights are held and obligations assumed by the subjects of international law.]

2. Modem: 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 [American Third Restatement],

Basis of International Law.

1. The Law of Nature School. 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 School. The binding force of international law is derived from the agreement of the States to be bound by it. In this context, international law is not a law of subordination but of coordination.

3. The Eclectic or Grotian School. In 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.

Public International Law distinguished from:

1. Private International Law. As to nature, international vs. municipal; as to remedies, international modes vs. local tribunals; as to parties, international entities vs. private persons; as to enforcement, international sanctions vs. sheriff/police.

2. International Morality or Ethics. Principles which govern relations of States from the standpoint of conscience, morality, justice and

3. International Comity. Rules of politeness/courtesy observed by States in their relations with other States.

POLITICAL LAW REVIEW | PUBLIC INTERNATIONAL LAW 1

4. International Diplomacy. Objects of international policy and the conduct of foreign affairs. .

5. International Administrative Law. Body of laws which regulate the relations and activities of national and international agencies with respect to their material and intellectual interests which have received international recognition.

International Law as true law. Although it may not comply with John Austin’s concept of law, i.e., enforced by sovereign political authority, nonetheless it is still true law.

1. Application, enforcement and compliance. The absence of a central lawmaking authority and the debilitating jurisdictional defects weaken the expectation of compliance in comparison with the situation in the domestic plane. These considerations are, however, balanced by the risk of political/ economic retaliation and other sanctions, such as adverse public opinion, retorsions, reprisals, the UN machinery, and the conviction that obedience will redound to the public good.

B. SOURCES OF INTERNATIONAL LAW

On the domestic sphere, the constitution, legislative enactments and case law (stare decisis). On the international plane, it is a bit complicated because there is no body likened to a national legislature, no fundamental law, and the doctrine of precedents is not applicable.

1. However, the most authoritative enumeration is found in Art. 38, Statute of the International Court of Justice, which provides that the Court, whose function is to decide in accordance with International Law such disputes as are submitted to it, shall apply:

As Primary Sources:

a) International Treaties and Conventions, whether general or particular, establishing rules expressly recognized by the contesting states.

b) International Customs, as evidence of a general practice accepted as binding law through persistent usage over a long period of time, e.g., angary, exemption of unarmed fishing vessel from capture. It is necessary, however, that the custom be [i] prevailing practice by a number of states; [ii] repeated over a considerable period of time; and [iii] attended by opinio juris or a sense of legal obligation.

c) General Principles of Law. These are rules derived mainly from natural law, observed and recognized by civilized nations, e.g., res judicata, prescription, pacta sunt servanda and estoppel. See Agustin vs. Edu, where the doctrine of pacta sunt servanda was applied by the


Court relative to the validity of the administrative rule requiring the use of early warning device, as part of the Vienna Convention on Road Signs and Signals.

[Note: To these may be added the principle of ex aequo et bono (what is good and just), provided that the parties to the dispute agree thereto, as provided in Art. 38 (1), Statut of the International Court of Justice.]

As Secondary Sources:

a) 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 international law. The decision of a national court may be used depending upon th 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 cited.

b) Writings of publicists, which must be fair and unbiased representation of international law by acknowledged authorities in the field.

2. Interpretation of Art. 38. Although the provision is silent on the question of whether the three primary sources have the same hierarchic value, by practice, treaties tak precedence over customs, and customs over general principles of law, except:

a) The principle of ius coaens: Customary international law which has the status of peremptory (absolute, uncompromising, certain) norm of international law. A peremptory norm is a norm accepted and recognized by the international community of states as a rule, from which no derogation is permitted and which can be modified onl by a subsequent norm having the same character.

Examples are slave trade, piracy, and terrorism. See Human Rights Cases vs. Marcos, where it was held that official torture of prisoners/ dissenters was a violation of the principle of jus cogens.

C. RELATIONSHIP WITH MUNICIPAL LAW.

1. Monist vs. Dualist. To monists, there is no substantial distinction between international law and municipal law. But to dualists, the distinctions lie in that ML is issued by a political superior for observance by those under its authority, while IL is not imposed but adopted by states as a common rule of action; 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; ML regulates relations of individuals among themselves, while IL applies to relations between states and international persons; violations of ML are redressed through local judicial and administrative processes, while in IL, they are resolved through state-to-


state transactions; an breaches of ML entail individual responsibility, while in IL there is collective responsibility.

1. DOCTRINE OF INCORPORATION

a) The doctrine of incorporation is expressed in Sec. 2, Art. II, Philippine Constitution, as follows: “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations”. See: Kuroda vs. Jalandoni, 83 Phil. 171 (although the Philippines was not a signatory to the Hague and Geneva Conventions, international jurisprudence is automatically incorporated in Philippine law, thus making war crimes punishable in the Philippines); Lo Ching vs Archbishop of Manila, 81 Phil 601; Borovsky vs. Commissioner of Immigration, G.R. No. L-4362 (1951) (where prolonged detention of a stateless alien pending deportation was deemed illegal, citing the Universal Declaration of Human Rights which is incorporated in Philippine law).

CASES

1. PHARMACEUTICAL HEALTHCARE vs. DUQUE

FACTS:

- Executive Order No. 51 (The Milk Code - TMC) was issued by Pres. Aquino on Oct. 28, 1986 by virtue of the legislative powers granted to her under the Freedom Constitution.

- One of the preambular clauses of TMC – the law seeks to give effect to Article 11 of the International Code of Marketing of Breastmilk Substituttes (ICMBS), a code adopted by the WHA (World Health Assembly) in 1981.

- In 1990, the Philippine ratified the International Convention on the Rights of the Child. Art. 24 of the instrument mandates that States should take measure to diminish infant mortality and should ensure that all segments of society are informed of the advantages of breastfeeding.

- From 1982 – 2006, the WHA adopted several resolutions to the effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes.

- May 15, 2006 – DOH issues the assailed RIRR (Revised Implementing Rules and Regulations of E.O. 51 or A.O. No. 2006-0012) which was to take effect on July 7, 2006. – The RIRR imposes a ban on all advertisements of breastmilk substitutes

- June 28, 2006 – Petitioner filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of a TRO or Writ of Preliminary injunction.

- August 15, 2006 – the Court issued a Resolution granting the TRO, enjoining the respondents from implementing the assailed RIRR.

- Petitioner assails the RIRR for going beyond the provisions of TMC thereby amending and expanding the coverage of the said law.

- DOH meanwhile contends that the RIRR implements not only TMC but also various international instruments regarding infant and young child nutrition. They posit that the said international instruments are deemed part of the law of the land and therefore may be implemented by the DOH in the RIRR.

ISSUE: WON the RIRR is unconstitutional?


SUB-ISSUES: WON the RIRR is in accord with TMC? WON pertinent international agreements entered into by the Philippines are part of the law of the land and may thus be implemented through an RIRR, if so, is the RIRR in accord with such international agreements?

HELD: No. However what may be implemented is the RIRR based on the Milk Code which in turn is based on the ICMBS as this is deemed part of the law of the land. The other WHA Resolutions however cannot be imposed as they are not deemed part of the law of the land.

RATIO:

1. What are the international instruments referred to by the respondents part of the law of the land?

- The various international instruments invoked by respondents are:(1) The UN Conventions on the Rights of the Child(2) The International Convenant on Economic, Social, and Cultural Rights(3) Convention on the Elimination of All Forms of Discrimination Against Women- These instruments only provide general terms of the steps that States must take to prevent

child mortality. Hence, they do not have anything about the use and marketing of breastmilk substitutes

- The ICMBS and other WHA Resolutions however, are the international instruments which have specific provisions on breastmilk substitutes

- Under the 1987 Constitution, international law can become part of domestic law in 2 ways:

(1) Transformation – an international law is transformed into a domestic law through a constitutional mechanism such as local legislation

Treaties become part of law of the land through this method, pursuant to Art 7, Sec 21 – wherein “no treaty or international agreement shall be valid.. unless concurred by at least 2/3 of Senate”

The ICMBS and WHA Resolutions are NOT treaties as they haven’t been concurred in by the required 2/3 vote.

HOWEVER, the ICMBS has been transformed into domestic law through local legislation that is TMC.

Therefore, it is not the ICMBS per se that has the force of law but it’s TMC.o While TMC is almost a verbatim reproduction of the ICMBS, it did not adopt the latter’s

provision on the absolute prohibition on advertising of products within the scope of the ICMBS. Instead the MC provides that advertising promotion or other marketing materials may be allowed if such materials are approved by a committee.

(2) Incorporation – by mere constitutional declaration, international law is deemed to have the force of domestic law

This is found under Art 2, Sec 2 – The Philippines… adopts generally accepted principles of international law as part of the law of the land

In Mihares v. Ranada: International law becomes customary rules accepted as binding as a result of two elements:

1.) Established, widespread, and consistent practice on part of the state2.) Opinion juris sive necessitates (opinion as to law or necessity.) Generally accepted principles of international law refer to norms of general or customary

international law which are binding on all states, valid through all kinds of human societies, and basic to legal systems generally

Fr. Bernas has a definition similar to the one above. Customary international law has two factors:

1.) Material factor – how states behave The consistency and the generality of the practice


2.) Psychological or subjective factor – why they behave the way they do Once state practice has been established, now determine why they behave they do. Is it

ouor of courtesy or opinio juris (the belief that a certain type of behavior is obligatory) When a law satisfies the two factors it becomes part of customary international law which is

then incorporated into our domestic system

2. Since the WHA Resolutions have not been embodied in any local legislation, have they attained the status of customary law and hence part of our law of the land?

- The World Health Organization (WHO) is one of the international specialized agencies of the UN.

- According to the WHO Constitution, it’s the WHA which determines the policies of the WHO, the former also has the power to “adopt regulations concerning advertising and labeling of pharmaceutical and similar products” and “to make recommendations to members on any matter within the Organization’s competence”

- Note that the legal effect of a regulation as opposed to recommendation is quite different(1) Regulations which are duly adopted by the WHA are binding on member states(2) On the other hand, recommendations of the WHA do not come into force for its members

unlike regulations. Rather, they carry moral and political weight as they constitute the judgment on a health issue of the collective membership of the highest body in the field of health.

- The WHA resolution adopting the ICMBS and the subsequent WHA resolutions urging states to implement the ICMBS are merely recommendatory and legally non-binding.

- Hence, unlike the ICMBS which has become TMC through legislative enactment, the subsequent WHA Resolutions, which provide for exclusive breastfeeding and prohibition on advertisements and promotions of breastmilk have not been adopted as domestic law.

- WHA Resolutions have been viewed to constitute “soft law” or non-binding norms, which influence state behavior. Soft law has been noted to be a rapid means of norm creation, in order to reflect and respond to the changing needs and demands of constituents (of the UN.)

- As previously discussed, for an international rule to be considered customary law, it must be established that such rule is followed by states because it is considered obligatory (opinio juris).

- In the case at bar, respondents have not presented any evidence to prove that the WHA Resolutions are in fact enforced or practice by member states. Further, they failed to establish that provisions of pertinent WHA Resolutions are customary international law that may be deemed part of law of the land.

- Hence, legislation is necessary to transform the WHA resolutions into domestic law. They cannot thus be implemented by executive agencies without the need of a law to be enacted by legislature.

OTHER ISSUES:WON the petitioner is the real party in interest? Yes.

- An association has standing to file suit for its workers despite its lack of direct interest of its members are affected by the action. An organization has standing to assert the concerns of its constituents. (Exec Sec vs CA)

- The Court has rules that an association has the legal personality to represent its members because the results of the case will affect their vital interests. (Purok Bagong Silang Association Inc. vs. Yuipco)

- In the petitioner’s Amended Articles of Incorporation, it states that the association is formed “to represent directly or through approved representatives the pharmaceutical and health care industry before the Philippine Government and any of its agencies, the medical professions and the general public.”

- Therefore, the petitioner, as an organization, has an interest in fulfilling its avowed purpose of representing members who are part of the pharmaceutical and health care industry. Petitioner is duly authorized to bring to the attention of the government agencies and courts any grievance suffered by its members which are directly affected by the assailed RIRR.


- The petitioner, whose legal identity is deemed fused with its members, should be considered as a legal party-in-interest which stands to be benefited or injured by any judgment in the case.

WON the DOH has the power to implement the WHA Resolutions under the Revised Administrative Code even in the absence of a domestic law? Only the provisions of the Milk Code. (as per the discussion above)

- Section 3, Chapter 1, Title IX of the RAC of 1987 provides that the DOH shall define the national health policy and can issue orders and regulations concerning the implementation of established health policies.

- A.O. No 2005 -0014 which provides the national policy on infant and young child feeding, does not declare that as part of its policy, the advertisement or promotion of breastmilk substitutes should be absolutely prohibited.

- Only the provisions of the Milk Code, but not those of the subsequent WHA Resolutions, can be validly implemented by the DOH through the subject RIRR.

WON the provisions of the RIRR being in accordance with the Milk Code? Not all of them- Assailed provisions: [1] extending the coverage to young children; [2] imposing exclusive

breastfeeding for infants from 0-6 months; [3] imposes an absolute ban on advertising and promotion for breastmilk substitutes; [4] requiring additional labeling requirements; [5] prohibits the dissemination of information on infant formula; [6] forbids milk manufacturers and distributors to extend assistance in research and continuing education Although the DOH has the power under the Milk Code to control information regarding breastmilk vis-à-vis breastmilk substitutes, this power is not absolute because it has no power to impose an absolute prohibition in the marketing, promotion and advertising of breastmilk substitutes. Several provisions of the Milk Code attest to the fact that such power to control information is not absolute.

- Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code because such provisions impose an absolute prohibition on advertising, promotion and marketing of breastmilk substitutes, which is not provided for in the Milk Code. Section 46 is violative of the Milk Code because the DOH has exceeded its authority in imposing such fines or sanctions when the Milk Code does not do so. Other assailed provisions are in accordance with the Milk Code.

WON Section 13 of the RIRR providing a sufficient standard? Yes.- Questioned provision, in addition to Section 26 of Rule VII provide labeling requirements for

breastmilk substitutes found to be in consonance with the Milk Code- The provisions in question provide reasonable means of enforcing related provisions in the

Milk Code.

WON Section 57 of the RIRR repeals existing laws?- Section in question only repeals orders, issuances and rules and regulations, not laws. The

provision is valid as it is within the DOH’s rule-making power.- An administrative agency has quasi-legislative or rule-making power. However, such power

is limited to making rules and regulation subjected to the boundaries set by the granting statute and the Constitution. The power is also subject to the doctrine of non-delegability and separability of powers. The power, which includes amending, revising, altering or repealing, is granted to allow for flexibility in the implementation of the laws.

WON On Section 4, 5(w), 11, 22, 32, 47 and 52 violates the due process clause of the Constitution (Article III Section 1)?

- Despite the fact that the present Constitution enshrines free enterprise as a policy, it nonetheless reserves to the government the power to intervene whenever necessary to promote the general welfare… free enterprise does not call for the removal of protective


regulations. It must be clearly explained and proven by competent evidence just exactly how such protective regulation would result in the restraint of trade.

- Section 4 – proscription of milk manufacturers’ participation in any policymaking body; Section 22 – classes and seminars for women and children; Section 32 – giving of assistance, support and logistics or training; Section 52 – giving of donations

- In the instant case, petitioner failed to show how the aforementioned sections hamper the trade of breastmilk substitutes. They also failed to establish that these activities are essential and indispensable to their trade.

Disposition: The Petition is Partially Granted. Only sections 4(f), 11 and 46 of A.O. 2006-0014 are declared null and void for being ultra vires. The TRO is lifted insofar as the rest of the provisions of A.O. 2006-0012 is concerned.

2. BAYAN MUNA vs. ROMULO

FACTS: Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to thiscase. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary.

Rome Statute of the International Criminal Court. Having a key determinative bearing on this case is the Rome Statute establishing the International Criminal Court (ICC) with the power to exercise its jurisdiction over persons for the mostserious crimes of international concern and shall be complementary to the national criminal jurisdictions

The serious crimes adverted to cover those considered grave under international law, such as genocide, crimes againsthumanity, war crimes, and crimes of aggression.On December 28, 2000, the RP, through Charge d·Affaires Enrique A. Manalo, signed the Rome Statute which, by itsterms,is subject to ratification, acceptance or approval by the signatory states. As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and concurrence process. The Philippines is not among the 92.

ISSUE: Whether or not the RP-US Non Surrender Agreement is void ab initio for contracting obligations that are either immoral or otherwise at variance with universally recognized principles of international law.

HELD: No. Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; it precludes our country from delivering an American criminal to the ICC.

The above argument is a kind of recycling of petitioners earlier position, which, as already discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty obligations under the Rome Statute, contrary to international law principles.

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor General, is an assertion by the Philippines of its desire to try and punish crimes under its national law. The agreement is a recognition of the primacy and competence of the country’s judiciary to try offenses under its national criminal laws and dispense justice fairly


and judiciously. Petitioner, labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing high crimes of international concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming that all the formalities necessary to bind both countries to the Rome Statute have been met.

Perspective wise, what the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws. With this view, there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute

International Agreements; treaties and executive agreements. Under international law, there is no difference between treaties and executive agreements in terms of their binding effects on the contracting states concerned, as long as the negotiating functionaries have remained within their powers. However, a treaty has greater “dignity” than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the Senate, and the people; a ratified treaty, unlike an executive agreement, takes precedence over any prior statutory enactment. Petitioner, in this case, argues that the Non-Surrender Agreement between the Philippines and the US is of dubious validity, partaking as it does of the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner relies on the case, Commissioner of Customs v. Eastern Sea Trading, in which the Court stated: international agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties; while those embodying adjustments of detail carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature take the form of executive agreements. According to petitioner, the subject of the Agreement does not fall under any of the subject-categories that are enumerated in the Eastern Sea Trading case that may be covered by an executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and settlement of claims. The Supreme Court held, however, that the categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice of the form of agreement is the parties’ intent and desire to craft an international agreement in the form they so wish to further their respective interests. The matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under the pacta sunt servanda principle.

International Agreements; limitations on sovereignty. The RP, by entering into the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans committing international crimes in the country. As it were, the Agreement is but a form of affirmance and confirmation of the Philippines’ national criminal jurisdiction. National criminal jurisdiction being primary, it is always the responsibility and within the prerogative of the RP either to prosecute criminal offenses equally covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines may


decide to try “persons” of the US, as the term is understood in the Agreement, under our national criminal justice system; or it may opt not to exercise its criminal jurisdiction over its erring citizens or over US “persons” committing high crimes in the country and defer to the secondary criminal jurisdiction of the ICC over them. In the same breath, the US must extend the same privilege to the Philippines with respect to “persons” of the RP committing high crimes within US territorial jurisdiction. By their nature, treaties and international agreements actually have a limiting effect on the otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to surrender or waive some aspects of their state power or agree to limit the exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying consideration in this partial surrender may be the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to grant the same privileges or immunities to the other.

3. KURODA vs. JALANDONI

FACTS: Petitioner Sheginori Kuroda was the former Lt. General of the Japanese Army and commanding general of the Japanese forces during the occupation (WWII) in the country. He was tried before the Philippine Military Commission for War Crimes and other atrocities committed against military and civilians. The military commission was establish under Executive Order 68.

Petitioner assails the validity of EO 68 arguing it is unconstitutional and hence the military commission did not have the jurisdiction to try him since the Philippines is not a signatory to the Hague Convention (War Crimes)

Petitioner likewise assails that the US is not a party of interest in the case hence the 2 US prosecutors cannot practice law in the Philippines.

ISSUE: Whether or not EO 68 is constitutional thus the military tribunal jurisdiction is valid

HELD:

1. EO 68 is constitutional hence the tribunal has jurisdiction to try Kuroda. EO 68 was enacted by the President and was in accordance with Sec. 3, Art. 2 of Constitution which renounces war as an instrument of national policy. Hence it is in accordance with generally accepted principles of international law including the Hague Convention and Geneva Convention, and other international jurisprudence established by the UN, including the principle that all persons (military or civilian) guilty of plan, preparing, waging a war of aggression and other offenses in violation of laws and customs of war. The Philippines may not be a signatory to the 2 conventions at that time but the rules and regulations of both are wholly based on the generally accepted principles of international law. They were accepted even by the 2 belligerent nations (US and Japan)

2. As to the participation of the 2 US prosecutors in the case, the US is a party of interest because its country and people have greatly aggrieved by the crimes which petitioner was being charged of.

3. Moreover, the Phil. Military Commission is a special military tribunal and rules as to parties and representation are not governed by the rules of court but the provision of this special law.

4. USA vs. GUINTO

FACTS: These cases have been consolidated because they all involve the doctrine of state immunity. In GR No. 76607, the private respondents are suing several officers of the US Air Force stationed in


Clark Air Base in connection with the bidding conducted by them for contracts for barbering services in the said base.

In GR No. 79470, Fabian Genove filed a complaint for damages against petitioners Lamachia, Belsa, Cartalla and Orascion for his dismissal as cook in the US Air Force Recreation Center at Camp 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 against the individual petitioners.

In GR No. 80018, Luis Bautista, who was employed as a barracks boy in Cano O’ Donnell, an extension of Clark Air Bas, was arrested following a buy-bust operation conducted by the individual petitioners who are officers of the US Air Force and special agents of the Air Force Office of Special Investigators. 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 RTC of Tarlac. Said officers testified against him at his trial. Bautista was dismissed from his employment. He then filed a complaint against the individual petitioners claiming that it was because of their acts that he was removed.

In GR No. 80258, a complaint for damages was filed by the private respondents against the herein petitioners (except the US), for injuries 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 that plaintiffs were arrested for theft and were bitten by the dogs because they were struggling and resisting arrest. In a motion to dismiss the complaint, the US and the individually named defendants argued that the suit was in effect a suit against the US, which had not given its consent to be sued.

ISSUE: Whether the defendants were also immune from suit under the RP-US Bases Treaty for acts done by them in the performance of their official duties.

HELD: The rule that a State may not be sued without its consent is one of the generally accepted principles of international law that were have adopted as part of the law of our land. 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 the 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. All states are sovereign equals and cannot assert jurisdiction over one another.

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 states 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, the suit must be regarded as against the state although it has not been formally impleaded.

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. In


the case o US, the customary law of international law on state immunity is expressed with more specificity in the RP-US Bases Treaty. There is no question that the US, like any other state, will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietory or private capacity. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied.

It is clear from a study of the records of GR No. 80018 that the petitioners therein were acting in the exercise of their official functions when they conducted the buy-bust operations against the complainant and thereafter testified against him at his trial. It follows that for discharging their duties as agents of the US, they cannot be directly impleaded for acts imputable to their principal, which has not given its consent to be sued.

As for GR No. 80018, the record is too meager to indicate what really happened. The needed inquiry first be made by the lower court so it may assess and resolve the conflicting claims of the parties on the basis of evidence that has yet to be presented at the trial.

5. AGUSTIN vs. EDU

FACTS: This case is a petition assailing the validity or the constitutionality of a Letter of Instruction No. 229, issued by President Ferdinand E. Marcos, requiring all vehicle owners, users or drivers to procure early warning devices to be installed a distance away from such vehicle when it stalls or is disabled. In compliance with such letter of instruction, the Commissioner of the Land Transportation Office issued Administrative Order No. 1 directing the compliance thereof.

This petition alleges that such letter of instruction and subsequent administrative order are unlawful and unconstitutional as it violates the provisions on due process, equal protection of the law and undue delegation of police power.

ISSUE: Whether or not the Letter of Instruction No. 229 and the subsequent Administrative Order issued is unconstitutional

HELD: The Supreme Court ruled for the dismissal of the petition. The statutes in question are deemed not unconstitutional. These were definitely in the exercise of police power as such was established to promote public welfare and public safety. In fact, the letter of instruction is based on the constitutional provision of adopting to the generally accepted principles of international law as part of the law of the land. The letter of instruction mentions, as its premise and basis, the resolutions of the 1968 Vienna Convention on Road Signs and Signals and the discussions on traffic safety by the United Nations - that such letter was issued in consideration of a growing number of road accidents due to stalled or parked vehicles on the streets and highways.

6. MARCOS vs. MANGLAPUS

FACTS: It is a case of a dictator President Ferdinand Marcos of the Philippines forced out of office and into exile after causing twenty years of political, economic and social havoc in the country and who within the short space of three years seeks to return to the Philippines to die. But Mrs. Aquino, considering the dire consequences to the nation of his return at a time when the stability of government is threatened from various directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.


ISSUE: (1) Whether or not the ban of Mr. Marcos and family from returning to the Philippines has international precedents? (2) Whether or not the President acted in grave abuse of discretion in determining the return of the Marcoses?

HELD: PETITION DISMISSED.

1. NO, The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be considered, as a generally accepted principle of international law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.]

However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]

The Declaration speaks of the "right to freedom of movement and residence within the borders of each state" [Art. 13(l)] separately from the "right to leave any country, including his own, and to return to his country." [Art. 13(2).]

On the other hand, the Covenant guarantees the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave any country, including his own."

[Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect national security, public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).]

It would therefore be inappropriate to construe the limitations to the right to return to one's country in the same context as those pertaining to the liberty of abode and the right to travel.

2. NO. The President did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family at the present time and under present circumstances poses a serious threat to national interest and welfare and in prohibiting their return to the Philippines.

The power involved is the President's residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people.

2. DOCTRINE OF TRANSFORMATION

b) The doctrine of transformation requires the enactment by the legislative body of such international law principles as are sought to be part of municipal law. See: Laguna Lake Development Authority vs. Court of Appeals, 231SCRA 292 (where it was declared that Sec. 6, Art. II, Philippine Constitution, which reads: “The state shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature”, was taken from the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978 recognizing health as a fundamental human right.

Thus, the authority of LLDA to issue a cease and desist order to prevent the pollution of Marilao River was upheld on the basis of the principle of necessary implication^.


CASES

1. WHO vs. AQUINO

FACTS: Herein petitioner, in behalf of Dr. Verstuyft, was allegedly suspected by the Constabulary Offshore Action Center (COSAC) officers of carrying dutiable goods under the Customs and Tariff Code of the Philippines. Respondent Judge then issued a search warrant at the instance of the COSAC officers for the search and seizure of the personla effects of Dr. Verstuyft notwithstanding his being entitled to diplomatic immunity, as duly recognized by the Executive branch of the government.

The Secretary of Foreign Affairs Carlos P. Romulo advised the respondent judge that Dr. Verstuyft is entitled to immunity from search in respect for his personal baggage as accorded to members of diplomatic missions pursuant to the Host Agreement and further requested for the suspension of the search warrant. The Solicitor General accordingly joined the petitioner for the quashal of the search warrant but respondent judge nevertheless summarily denied the quashal.

ISSUE: Whether or not personal effect of WHO Officer Dr. Verstuyft can be exempted from search and seizure under the diplomatic immunity.

HELD: The executive branch of the Philippiness has expressly recognized that Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the Host Agreement. The DFA formally advised respondent judge of the Philippine Government's official position. The Solicitor General, as principal law officer of the gorvernment, likewise expressly affirmed said petitioner's right to diplomatic immunity and asked for the quashal of the search warrant.

It 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 government, and where the plea of diplomatic immunity is recognized 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 discretion. Courts may not so exercise their jurisdiction by seizure and detention of property, as to embarass the executive arm of the government in conducting foreign relations.

The Court, therefore, holds the respondent judge acted without jurisdiction and with grave abuse of discretion in not ordering the quashal of the search warrant issued by him in disregard of the diplomatic immunity of petitioner Verstuyft.

3. CONFLICT BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW.

a) On the domestic sphere, with a local court deciding:

i) If the conflict is with the Constitution: uphold the Constitution. [See Sec. 5(2)(a), Art. VIII, Philippine Constitution, which provides that the Supreme Court has the


power to declare a treaty or executive agreement unconstitutional.] In Secretary of Justice v. Judge Lantion, G.R. No. 139465, January 18, 2000, it was held that in states where the Constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the Constitution.

ii) If the conflict is with a statute: The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. A treaty may repeal a statute, and a statute may repeal a treaty; thus, the principle of lex posterior derogat priori, that which comes last in time, will usually be upheld by the municipal tribunal. See also Ichong vs. Hernandez, 101 Phil. 115, where it was held that the Retail Trade Nationalization Law prevails over the Treaty of Amity with China and the Universal Declaration of Human Rights, because the law was passed in the exercise of the police power of the State, and police power cannot be bargained away through the medium of a treaty or a contract.

CASES

1. ABBAS vs. COMELEC

FACTS: A plebiscite in thirteen (13) provinces and nine (9) cities in Mindanao and Palawan, was scheduled for November 19, 1989, in implementation of RA 6734, entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao" (Organic Act). These consolidated petitions pray that the Court: (1) enjoin the COMELEC from conducting the plebiscite; and (2) declare RA 6734, or parts thereof, unconstitutional. The arguments against R.A. 6734 raised by petitioners may generally be categorized into either of the following: (a) that R.A. 6734, or parts thereof, violates the Constitution, and (b) that certain provisions of R.A. No. 6734 conflict with the Tripoli Agreement.

ISSUE: Whether or not certain provisions of the Organic Act are unconstitutional.

HELD: The petition has no merit and the law is constitutional.

1. Petitioner contends that the tenor of a provision in the Organic Act makes the creation of an autonomous region absolute, such that even if only two provinces vote in favor of autonomy, an autonomous region would still be created composed of the two provinces where the favorable votes were obtained. there is a specific provision in the Transitory Provisions (Article XIX) of the Organic Act, which incorporates substantially the same requirements embodied in the Constitution and fills in the details, thus:

SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect when approved by a majority of the votes cast by the constituent units provided in paragraph (2) of Sec. 1 of Article II of this Act in a plebiscite which shall be held not earlier than ninety (90) days or later than one hundred twenty (120) days after the approval of this Act: Provided, That only the provinces and cities


voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain the existing administrative determination, merge the existing regions.

Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region shall take effect only when approved by a majority of the votes cast by the constituent units in a plebiscite, and only those provinces and cities where a majority vote in favor of the Organic Act shall be included in the autonomous region. The provinces and cities wherein such a majority is not attained shall not be included in the autonomous region. It may be that even if an autonomous region is created, not all of the thirteen (13) provinces and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734 shall be included therein. The single plebiscite contemplated by the Constitution and R.A. No. 6734 will therefore be determinative of (1) whether there shall be an autonomous region in Muslim Mindanao and (2) which provinces and cities, among those enumerated in R.A. No. 6734, shall compromise it.

2. The question has been raised as to what this majority means. Does it refer to a majority of the total votes cast in the plebiscite in all the constituent units, or a majority in each of the constituent units, or both?

The 1987 Constitution provides: The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. [Art. X, sec, 18, para, 2]. It will readily be seen that the creation of the autonomous region is made to depend, not on the total majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the proviso underscores this.

3. Petitioner avers that not all of the thirteen (13) provinces and nine (9) cities included in the Organic Act, possess such concurrence in historical and cultural heritage and other relevant characteristics. By including areas, which do not strictly share the same characteristic as the others, petitioner claims that Congress has expanded the scope of the autonomous region which the constitution itself has prescribed to be limited.

Petitioner's argument is not tenable. The Constitution lays down the standards by which Congress shall determine which areas should constitute the autonomous region. Guided by these constitutional criteria, the ascertainment by Congress of the areas that share common attributes is within the exclusive realm of the legislature's discretion. Any review of this ascertainment would have to go into the wisdom of the law.

4. Both petitions also question the validity of R.A. No. 6734 on the ground that it violates the constitutional guarantee on free exercise of religion [Art. III, sec. 5]. The objection centers on a provision in the Organic Act which mandates that should there be any conflict between the Muslim Code and the Tribal Code on the one had, and the national law on the other hand, the Shari'ah courts created under the same Act should apply national law. Petitioners maintain that the islamic law (Shari'ah) is derived from the Koran, which makes it part of


divine law. Thus it may not be subjected to any "man-made" national law. Petitioner Abbas supports this objection by enumerating possible instances of conflict between provisions of the Muslim Code and national law, wherein an application of national law might be offensive to a Muslim's religious convictions.

In the present case, no actual controversy between real litigants exists. There are no conflicting claims involving the application of national law resulting in an alleged violation of religious freedom. This being so, the Court in this case may not be called upon to resolve what is merely a perceived potential conflict between the provisions the Muslim Code and national law.

5. According to petitioners, said provision grants the President the power to merge regions, a power which is not conferred by the Constitution upon the President.

While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments. There is no conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative regions.

6. Every law has in its favor the presumption of constitutionality. Based on the grounds raised by petitioners to challenge the constitutionality of R.A. No. 6734, the Court finds that petitioners have failed to overcome the presumption. The dismissal of these two petitions is, therefore, inevitable.

2. ICHONG vs. HERNANDEZ

FACTS: The Legislature passed R.A. 1180 (An Act to Regulate the Retail Business). Its purpose was to prevent persons who are not citizens of the Phil. from having a stranglehold upon the people’s economic life. A prohibition against aliens and against associations, partnerships, or corporations the capital of which are not wholly owned by Filipinos, from engaging directly or indirectly in the retail trade aliens actually engaged in the retail business on May 15, 1954 are allowed to continue their business, unless their licenses are forfeited in accordance with law, until their death or voluntary retirement. In case of juridical persons, ten years after the approval of the Act or until the expiration of term.

Citizens and juridical entities of the United States were exempted from this Act. A provision for the forfeiture of licenses to engage in the retail business for violation of the laws on nationalization, economic control weights and measures and labor and other laws relating to trade, commerce and industry. A provision against the establishment or opening by aliens actually engaged in the retail business of additional stores or branches of retail business Lao Ichong, in his own behalf and behalf of other alien residents, corporations and partnerships affected by the Act, filed an action to declare it unconstitutional for the following reasons:- it denies to alien residents the equal protection of the laws and deprives them of their

liberty and property without due process


- the subject of the Act is not expressed in the title - the Act violates international and treaty obligations - the provisions of the Act against the transmission by aliens of their retail business thru

hereditary succession

ISSUE: WON the Act deprives the aliens of the equal protection of the laws.

HELD: The law is a valid exercise of police power and it does not deny the aliens the equal protection of the laws. There are real and actual, positive and fundamental differences between an alien and a citizen, which fully justify the legislative classification adopted.

RATIO: The equal protection clause does not demand absolute equality among residents. It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced.

The classification is actual, real and reasonable, and all persons of one class are treated alike.

The difference in status between citizens and aliens constitutes a basis for reasonable classification in the exercise of police power.

Official statistics point out to the ever-increasing dominance and control by alien of the retail trade. It is this domination and control that is the legislature’s target in the enactment of the Act.

The mere fact of alienage is the root cause of the distinction between the alien and the national as a trader. The alien is naturally lacking in that spirit of loyalty and enthusiasm for the Phil. where he temporarily stays and makes his living. The alien owes no allegiance or loyalty to the State, and the State cannot rely on him/her in times of crisis or emergency.

While the citizen holds his life, his person and his property subject to the needs of the country, the alien may become the potential enemy of the State.

The alien retailer has shown such utter disregard for his customers and the people on whom he makes his profit. Through the illegitimate use of pernicious designs and practices, the alien now enjoys a monopolistic control on the nation’s economy endangering the national security in times of crisis and emergency.

b) On the international sphere, with an international tribunal deciding: international law is superior to municipal law, because international law provides the standard by which to determine the legality of a State’s conduct.


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