Public International Law (Digests)

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Bayan v. Zamora, G.R. No. 138570, October 10, 2

Bayan v. Zamora, G.R. No. 138570, October 10, 2000

000 BUENA, J.:

BUENA, J.:

THE FACTS

Facts:

The Republic of the Philippines and the United States of America entered into an agreement The Republic of the Philippines and the United States of America entered into an agreement called the Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the called the Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine government and was ratified by then-President Joseph Estrada with the concurrence Philippine government and was ratified by then-President Joseph Estrada with the concurrence of 2/3 of the total membership of the Philippine Senate.

of 2/3 of the total membership of the Philippine Senate.

The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits, and further defines the rights of the U.S. and the for the guidelines to govern such visits, and further defines the rights of the U.S. and the Philippine governments in the matter of criminal jurisdiction, movement of vessel and aircraft, Philippine governments in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and

importation and exportation of equipment, materials and supplies.supplies.

Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution, Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution,

which provides that “foreign military bases, troops, or facilities shall not be allowed in the which provides that “foreign military bases, troops, or facilities shall not be allowed in the

Philippines except under a treaty duly concurred in by the Senate . . . and recognized as a Philippines except under a treaty duly concurred in by the Senate . . . and recognized as a

treaty by the other contracting State.” treaty by the other contracting State.”

Following the argument of the petitioner, under they provision cited, the “foreign military bases, Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or facilities” may be allowed in the Philippines unless the following conditio

troops, or facilities” may be allowed in the Philippines unless the following conditio ns arens are sufficiently met:

sufficiently met: a) it must be a treaty, a) it must be a treaty,

b) it must be duly concurred

b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a in by the senate, ratified by a majority of the votes cast in a nationalnational referendum held for that purpose if so required by congress, and

referendum held for that purpose if so required by congress, and c) recognized as such by

c) recognized as such by the other contracting state.the other contracting state.

Criminal Jurisdiction Waived under VFA (relevant provisions)

(c) The authorities of either government may request the authorities of the other government to (c) The authorities of either government may request the authorities of the other government to waive their primary right to exercise jurisdiction in a particular case.

waive their primary right to exercise jurisdiction in a particular case. (d) Recognizing the responsibility of the

(d) Recognizing the responsibility of the United States military authorities to maintain good orderUnited States military authorities to maintain good order and discipline among their forces, Philippine authorities will, upon request by the United States, and discipline among their forces, Philippine authorities will, upon request by the United States, waive their primary right to exercise jurisdiction except in cases of particular importance to the waive their primary right to exercise jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines determines that the case is of particular Philippines. If the Government of the Philippines determines that the case is of particular importance, it shall communicate such determination to the United States authorities within importance, it shall communicate such determination to the United States authorities within twenty (20) days after the Philippine

twenty (20) days after the Philippine authorities receive the United States request.authorities receive the United States request.

ISSUE:

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Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution?

Constitution?

ART VII, SECTION 21.

No treaty or international agreement shall be valid and effective unlessNo treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

concurred in by at least two-thirds of all the Members of the Senate.

ART XVIII, SECTION 25.

After the expiration in 1991 of the Agreement between the Republic of After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.

treaty by the other contracting State.

ESCRA TOPIC:

Same; Same; International Law; Executive Agreements; Words and Phrases; The phrase Same; Same; International Law; Executive Agreements; Words and Phrases; The phrase “recognized as a treaty” means that the other contracting party accepts or acknowled

“recognized as a treaty” means that the other contracting party accepts or acknowled ges theges the agreement as a treaty.

agreement as a treaty. ——This Court is of the firm view that the phrase “This Court is of the firm view that the phrase “recognized as a treatyrecognized as a treaty””

means that the other contracting party accepts or acknowledges the agreement as a treaty. To means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase. Bayan (Bagong Alyansang Makabayan) vs. Zamora, 342 SCRA 449, meaning to the phrase. Bayan (Bagong Alyansang Makabayan) vs. Zamora, 342 SCRA 449, G.R. No. 138570, G.R. No. 138572, G.R. No. 138587, G.R. No. 138680, G.R. No. 138698 G.R. No. 138570, G.R. No. 138572, G.R. No. 138587, G.R. No. 138680, G.R. No. 138698 October 10, 2000

October 10, 2000

International Law; Treaties; Executive Agreements; Visiting Forces Agreement; As long as the International Law; Treaties; Executive Agreements; Visiting Forces Agreement; As long as the VFA possesses the elements of an agreement under international law, the said agreement is to VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.

be taken equally as a treaty. ——Moreover, it is inconsequential whether the United States treatsMoreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty. an agreement under international law, the said agreement is to be taken equally as a treaty. Bayan (Bagong Alyansang Makabayan) vs. Zamora, 342 SCRA 449, G.R. No. 138570, G.R. Bayan (Bagong Alyansang Makabayan) vs. Zamora, 342 SCRA 449, G.R. No. 138570, G.R. No. 138572, G.R. No. 138587, G.R. No. 138680, G.R. No. 138698 October 10, 2000

No. 138572, G.R. No. 138587, G.R. No. 138680, G.R. No. 138698 October 10, 2000

Same; Same; Same; Words and Phrases; A treaty, as defined by the Vienna Convention on the Same; Same; Same; Words and Phrases; A treaty, as defined by the Vienna Convention on the Law of Treaties, is

Law of Treaties, is “an international instrument concluded between States in written form and“an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation.”—

related instruments, and whatever its particular designation.”— A A treaty, treaty, as as defined defined by by thethe

Vienna Convention on the Law of Treaties, is “an international instrument concluded between Vienna Convention on the Law of Treaties, is “an international instrument concluded between

States in written form and governed by international law, whether embodied in a single States in written form and governed by international law, whether embodied in a single

instrument or in two or more related instruments, and whatever its particular designation.” There instrument or in two or more related instruments, and whatever its particular designation.” There

are many other terms used for a treaty or international agreement, some of which are: act, are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, comp

protocol, agreement, compromis d’ arbitrage, concordat,romis d’ arbitrage, concordat, convention, declaration, exchange ofconvention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have

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pointed out that the names or titles of international agreements included under the general term pointed out that the names or titles of international agreements included under the general term treaty have little or no legal significance. Certain terms are useful, but they furnish little more treaty have little or no legal significance. Certain terms are useful, but they furnish little more than mere description.

than mere description.

Same; Same; Same; In international law, there is no difference between treaties and executive Same; Same; Same; In international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers.

functionaries have remained within their powers. ——Thus, in international law, there is noThus, in international law, there is no difference between treaties and executive agreements in their binding effect upon states difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. concerned, as long as the negotiating functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations. Bayan (Bagong Alyansang Makabayan) vs. they are equally binding obligations upon nations. Bayan (Bagong Alyansang Makabayan) vs. Zamora, 342 SCRA 449, G.R. No. 138570, G.R. No. 138572, G.R. No. 138587, G.R. No. Zamora, 342 SCRA 449, G.R. No. 138570, G.R. No. 138572, G.R. No. 138587, G.R. No. 138680, G.R. No. 138698 October 10, 2000

138680, G.R. No. 138698 October 10, 2000

Same; Same; Same; Same; With the ratification of the VFA, which is equivalent to final Same; Same; Same; Same; With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of acceptance, and with the exchange of notes between the Philippines and the United States of America,

America, it it now now becomes becomes obligatory obligatory and and incumbenincumbent t on on our our part, part, under under the the principles principles ofof international law, to be bound by the terms of the agreement.

international law, to be bound by the terms of the agreement. ——With the ratification of the VFA,With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution, declares that the Philippines adopts the generally than Section 2, Article II of the Constitution, declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy 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 am

of peace, equality, justice, freedom, cooperation and am ity with all nations.ity with all nations.

Same; Same; Same; Same; Pacta Sunt Servanda; As an integral part of the community of Same; Same; Same; Same; Pacta Sunt Servanda; As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation

our international obligation——we cannot readily plead the Constitution as a convenient excusewe cannot readily plead the Constitution as a convenient excuse for noncompliance with our obligations, duties and responsibilities under international law.

for noncompliance with our obligations, duties and responsibilities under international law. —— As As a member of the family of nations, the Philippines agrees to be bound by generally accepted a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. While the international obligation devolves rules for the conduct of its international relations. While the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its upon the state and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation. Hence, we cannot readily plead the Constitution as a convenient our international obligation. Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international excuse for non-compliance with our obligations, duties and responsibilities under international law.

law.

Same; Same; Same; Same; Same; Words and Phrases; Under the principle of pacta sunt Same; Same; Same; Same; Same; Words and Phrases; Under the principle of pacta sunt servanda, every treaty in force is binding upon the parties to it and must be performed by them servanda, every treaty in force is binding upon the parties to it and must be performed by them in good faith.

in good faith.——Beyond this, Article 13 of the Declaration of Rights and Duties of States adoptedBeyond this, Article 13 of the Declaration of Rights and Duties of States adopted

by the International Law Commission in 1949 provides: “

by the International Law Commission in 1949 provides: “Every State has the duty to carry out inEvery State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.”.”

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Equally important is Article 26 of the Convention which provides that “Every

Equally important is Article 26 of the Convention which provides that “Every treaty in force istreaty in force is

binding upon the parties to it and must be performed by them in good faith,” This is known as binding upon the parties to it and must be performed by them in good faith,” This is known as

the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law, supported by the jurisprudence of the most fundamental principles of positive international law, supported by the jurisprudence of international tribunals.

of international tribunals.

Lim V. Executive Secretary (2002)

G.R.

G.R. No.

No. 151445

151445

April

April 11,

11, 2002

2002

FACTS:

Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed forces of the United States of America started arriving in Mindanao to take partin "Balikatan forces of the United States of America started arriving in Mindanao to take partin "Balikatan

02-1”

1” on on January 2002January 2002. . The The Balikatan 02Balikatan 02-1 exercises involves the simulation of joint military-1 exercises involves the simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the Uni

by the Philippines and the United States in 1951. ted States in 1951. The exercise is rooted The exercise is rooted from the internationalfrom the international anti-terrorism campaign declared by President George W. Bush in reaction to the 3 commercial anti-terrorism campaign declared by President George W. Bush in reaction to the 3 commercial aircrafts hijacking that smashed into twin towers of the World Trade Center in New York City aircrafts hijacking that smashed into twin towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C. allegedly by the al-Qaeda headed

and the Pentagon building in Washington, D.C. allegedly by the al-Qaeda headed by the Osamaby the Osama bin Laden that occ

bin Laden that occurred on September urred on September 11, 2001. 11, 2001. Arthur D. Arthur D. Lim and PauliLim and Paulino P. Ersando asno P. Ersando as citizens, lawyers and taxpayers filed a petition for certiorari and prohibition attacking the citizens, lawyers and taxpayers filed a petition for certiorari and prohibition attacking the constitutionality o

constitutionality of the jf the joint exercise. oint exercise. Partylists SanlaPartylists Sanlakas and Partikas and Partido Ng Mdo Ng Manggagawa asanggagawa as residents of Zamboanga and Sulu directly affected by the operations filed a residents of Zamboanga and Sulu directly affected by the operations filed a petition-in-intervention.

intervention.

The Solicitor General commented the prematurity of the action as it is based only on a fear of The Solicitor General commented the prematurity of the action as it is based only on a fear of future violation of the Terms of Reference and impropriety of availing of certiorari to ascertain a future violation of the Terms of Reference and impropriety of availing of certiorari to ascertain a question of fact specifically interpretation of the

question of fact specifically interpretation of the VFA whether it is covers "Balikatan VFA whether it is covers "Balikatan 02-102-1” and no” and no

question of constitutionality is inv

question of constitutionality is involved. olved. Moreover, there is lack of locus stMoreover, there is lack of locus standi since it does notandi since it does not involve tax spending and there is no proof of direct personal injury.

involve tax spending and there is no proof of direct personal injury. ISSUE: W/N the petition and the petition-in-intervention should prosper. ISSUE: W/N the petition and the petition-in-intervention should prosper. HELD: NO.

HELD: NO. Petition and the petiPetition and the petition-in-intervention are hereby DISMtion-in-intervention are hereby DISMISSED without prejudice toISSED without prejudice to the filing of a new petition sufficient in form and substance in the proper Regional Trial Court the filing of a new petition sufficient in form and substance in the proper Regional Trial Court -Supreme Court is not a trier of facts

Supreme Court is not a trier of facts Doctrine of Importance to the Public Doctrine of Importance to the Public

Considering however the importance to the public of the case at bar, and in keeping with the Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the 1987 Constitution, to

Court's duty, under the 1987 Constitution, to determine whether or not the determine whether or not the other branches of theother branches of the government have kept themselves within the limits of the Constitution and the laws that they government have kept themselves within the limits of the Constitution and the laws that they

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have not abused the discretion given to them, the Court has brushed aside technicalities of have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken

procedure and has taken cognizance of this petition.cognizance of this petition.

Although courts generally avoid having to decide a constitutional question based on the doctrine Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the department of the government a becoming of separation of powers, which enjoins upon the department of the government a becoming respect for each other's act, this Court nevertheless resolves to take cognizance of the instant respect for each other's act, this Court nevertheless resolves to take cognizance of the instant petition.

petition.

Interpretation of Treaty Interpretation of Treaty

The VFA permits United States personnel to engage, on an impermanent basis, in "activities," The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government. The sole scope of undertakings subject only to the approval of the Philippine government. The sole encumbrance placed on its definition is couched in the negative, in that United States personnel encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in particular, must "abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity." All other

from any political activity." All other activities, in other words, are fair game.activities, in other words, are fair game.

To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and Article To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and Article 32 contains provisos

32 contains provisos governing interpretations of governing interpretations of international agreements. international agreements. It is clear from It is clear from thethe foregoing that the cardinal rule

foregoing that the cardinal rule of interpretation must involve an examination of the text, which isof interpretation must involve an examination of the text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates what may be presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements m

well as other elements may be taken into account ay be taken into account alongside the aforesaid context. alongside the aforesaid context. According toAccording to Professor Briggs, writer on the Convention, the distinction between the general rule of Professor Briggs, writer on the Convention, the distinction between the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that interpretation and the supplementary means of interpretation is intended rather to ensure that the supplementary means do not constitute an alternative, autonomous method of interpretation the supplementary means do not constitute an alternative, autonomous method of interpretation divorced from the general rule.

divorced from the general rule.

The

The meaning of meaning of the the word word “activiti“activities" wes" was as deliberatelydeliberately made that way to give both parties amade that way to give both parties a certain leeway in negotiation. Thus, the VFA gives legitimacy to the current Balikatan exercises. certain leeway in negotiation. Thus, the VFA gives legitimacy to the current Balikatan exercises. Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities -as opposed to combat itself -such as the one subject of the that combat-related activities -as opposed to combat itself -such as the one subject of the instant petition, are indeed authorized.

instant petition, are indeed authorized.

The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants

exercise participants may not may not engage in coengage in combat "except mbat "except in self-defense." in self-defense." ." The indirec." The indirectt violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is actually a war principally violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is actually a war principally conducted by the United States government, and that the provision on self-defense serves only conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial.

thereby becomes crucial. In our considered opinion, neither In our considered opinion, neither the MDT nor the MDT nor the VFA allow foreignthe VFA allow foreign troops to en

troops to engage in an gage in an offensive war offensive war on Philippine territory. on Philippine territory. Under the sUnder the salutary proscriptionalutary proscription stated in Article 2 of the Charter of the United Nations.

stated in Article 2 of the Charter of the United Nations.

Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and State 1987 Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and State Policies in this case.

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Executive when it provides that "[n]o treaty or international agreement shall be valid and Executive when it provides that "[n]o treaty or international agreement shall be valid and effective unless conc

effective unless concurred in by at least urred in by at least two-thirds of all the two-thirds of all the members of the members of the Senate." Senate." EvenEven more pointedly Sec. 25 on Transitory Provisions which shows antipathy towards foreign military more pointedly Sec. 25 on Transitory Provisions which shows antipathy towards foreign military presence in the country

presence in the country, or of foreign , or of foreign influence in general. influence in general. Hence, foreign troops Hence, foreign troops are allowedare allowed entry into the Philippines only by way of direct exception.

entry into the Philippines only by way of direct exception. International Law vs. Fundamental Law and

International Law vs. Fundamental Law and Municipal LawsMunicipal Laws

Conflict arises then between the fundamental law and our obligations arising from international Conflict arises then between the fundamental law and our obligations arising from international agreements.

agreements.

Philip Morris, Inc. v. Court of Appeals: “Withal, the fact th

Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that international law has been madeat international law has been made part of the law of the land does not by any means imply the primacy of international law over part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national countries, rules of international law are given a standing equal, not superior, to national

legislation.” legislation.”

From the perspective of public international law, a treaty is favored over municipal law pursuant From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith." Further, a party to a treaty is not parties to it and must be performed by them in good faith." Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty."

treaty."

Our Constitution espouses the opposing view

Our Constitution espouses the opposing view as stated in section 5 of Article VIII: “Theas stated in section 5 of Article VIII: “The

Supreme Court shall have the following powers: xxx Supreme Court shall have the following powers: xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in:

Court may provide, final judgments and order of lower courts in:

(A) All cases in which the constitutionality or validity of any treaty, international or executive (A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is

in question.” in question.”

Ichong v. Hernandez: “provisions of a tr

Ichong v. Hernandez: “provisions of a tr eaty are always subject to qualification or amendmenteaty are always subject to qualification or amendment

by a subsequent law, or that it is subject to the police power of the State” by a subsequent law, or that it is subject to the police power of the State”

Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty, not only when it Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty, not only when it

conflicts with the fundam

conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.”ental law, but, also, when it runs counter to an act of Congress.”

The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on Philippine territory

offensive war on Philippine territory

ESCRA TOPICS

Lim vs. Executive Secretary Lim vs. Executive Secretary, 380

Lim vs. Executive Secretary Lim vs. Executive Secretary, 380 SCRA 739, G.R. No. 151445 SCRA 739, G.R. No. 151445 AprilApril 11, 2002

11, 2002

Public International Law Topic Public International Law Topic

Same; Same; Same;

Same; Same; Same; A party to A party to a treaty is a treaty is not allonot allowed to “invowed to “invoke the pke the provisions of itrovisions of its internal s internal lawlaw as justification for its failure to perform a treaty.”—

as justification for its failure to perform a treaty.”—From the perspective of public internationalFrom the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda.

Hence, “[e]very treaty in force is binding upon the parties to it and must be performed by them in Hence, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.” Further,

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as justification for its failure to perform a treaty.” Lim vs. Executive Secretary, 380 SCRA 739, as justification for its failure to perform a treaty.” Lim vs. Executive Secretary, 380 SCRA 739,

G.R. No. 151445 April 11, 2002 G.R. No. 151445 April 11, 2002 Constitutional Law Topic

Constitutional Law Topic

Constitutional Law; Treatise; The Terms of Reference rightly fall within the context of the Visiting Constitutional Law; Treatise; The Terms of Reference rightly fall within the context of the Visiting Forces Agreement (VFA).

Forces Agreement (VFA).——The Terms of Reference rightly fall within the context of the VFA.The Terms of Reference rightly fall within the context of the VFA. After studied reflection, it appeared farfet

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of ched that the ambiguity surrounding the meaning of thethe

word “activities” arose from accident. In our view, it was deliberately made that way to give both word “activities” arose from accident. In our view, it was deliberately made that way to give both

parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may Philippine territory for purposes other than military. As conceived, the joint exercises may

include training on new techniques of patrol and surveillance to protect the nation’s marine include training on new techniques of patrol and surveillance to protect the nation’s marine

resources, sea search-and-rescue operations to assist vessels in distress, disaster relief resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like. Lim vs. Executive Secretary, 380 SCRA 739, G.R. No. humanitarian missions, and the like. Lim vs. Executive Secretary, 380 SCRA 739, G.R. No. 151445 April 11, 2002

151445 April 11, 2002

KAPUNAN, J., Dissenting Opinion: KAPUNAN, J., Dissenting Opinion:

Constitutional Law; Treatise; There is no treaty allowing foreign military troops to engage in Constitutional Law; Treatise; There is no treaty allowing foreign military troops to engage in combat with internal elements.

combat with internal elements.——The Constitution prohibits foreign military bases, troops orThe Constitution prohibits foreign military bases, troops or facilities unless a treaty permits the same. There is no treaty allowing foreign military troops to facilities unless a treaty permits the same. There is no treaty allowing foreign military troops to engage in combat with internal elements. Lim vs. Executive Secretary, 380 SCRA 739, G.R. No. engage in combat with internal elements. Lim vs. Executive Secretary, 380 SCRA 739, G.R. No. 151445 April 11, 2002

151445 April 11, 2002

Pimentel v. Executive Secretary Digest

G.R. No. 158088 July 6, 2005

Facts:

1. The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary 1. The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence pursuant to Sec. International Criminal Court to the Senate of the Philippines for its concurrence pursuant to Sec. 21, Art VII of the

21, Art VII of the 1987 Constitution.1987 Constitution.

2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the 2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the most serious crimes as genocide, crimes against humanity, war crimes and crimes of most serious crimes as genocide, crimes against humanity, war crimes and crimes of aggression as defined by the Statute. The Philippines through the Chargie du Affairs in UN. The aggression as defined by the Statute. The Philippines through the Chargie du Affairs in UN. The provisions of the Statute however require that it be subject to ratification, acceptance or provisions of the Statute however require that it be subject to ratification, acceptance or approval of the signatory state.

approval of the signatory state.

3. Petitioners contend that ratification of a

3. Petitioners contend that ratification of a treaty, under both domestic and international law, is treaty, under both domestic and international law, is aa function of the Senate, hence it is the duty of the Executive Department to transmit the signed function of the Senate, hence it is the duty of the Executive Department to transmit the signed copy to the senate to

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ISSUE:

Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit to the Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine mission to the U.N. Senate the copy of the Rome Statute signed by a member of the Philippine mission to the U.N. even without the signature of the President.

even without the signature of the President.

HELD:

The Supreme Court held NO. The Supreme Court held NO.

1. The President as the head of state is the sole organ and authorized in the external relations 1. The President as the head of state is the sole organ and authorized in the external relations and he is also the country's sole representative with foreign nations, He is the mouthpiece with and he is also the country's sole representative with foreign nations, He is the mouthpiece with respect to the country's foreign affairs.

respect to the country's foreign affairs.

2. In treaty-making, the President has the sole authority to negotiate with other states and enter 2. In treaty-making, the President has the sole authority to negotiate with other states and enter into treaties but this power is limited by the Constitution with the 2/3 required vote of all the into treaties but this power is limited by the Constitution with the 2/3 required vote of all the members of the Senate for the treaty to be valid. (Sec. 21, Art VII).

members of the Senate for the treaty to be valid. (Sec. 21, Art VII).

3. The legislative branch part is essential to provide a check on the executive in the field of 3. The legislative branch part is essential to provide a check on the executive in the field of foreign relations, to ensure the

foreign relations, to ensure the nation's pursuit of political maturity and growth.nation's pursuit of political maturity and growth.

ESCRA TOPIC

Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA 622, G.R. No. 158088 July

6, 2005

PIL TOPIC:

Same; Same; Same; Same; Same; International Law; Rome Statute of the International Same; Same; Same; Same; Same; International Law; Rome Statute of the International Criminal Court; Only Senator Pimentel has the legal standing to file the instant suit since the Criminal Court; Only Senator Pimentel has the legal standing to file the instant suit since the other petitioners, even as they maintain their standing as advocates and defenders of human other petitioners, even as they maintain their standing as advocates and defenders of human rights, and as citizens of the country, have not shown that they have sustained or will sustain a rights, and as citizens of the country, have not shown that they have sustained or will sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to the Senate

direct injury from the non-transmittal of the signed text of the Rome Statute to the Senate ——thethe Rome Statute is intended to complement national criminal laws and courts and sufficient Rome Statute is intended to complement national criminal laws and courts and sufficient remedies are available under our national laws to protect our citizens against human rights remedies are available under our national laws to protect our citizens against human rights violations and petitioners can always seek redress for any abuse in our domestic courts.

violations and petitioners can always seek redress for any abuse in our domestic courts. ——TheThe question in standing is whether a party has alleged such a personal stake in the outcome of the question in standing is whether a party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. We upon which the court so largely depends for illumination of difficult constitutional questions. We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit. The other petitioners maintain their standing as advocates and defenders of human rights, suit. The other petitioners maintain their standing as advocates and defenders of human rights, and as citizens of the country. They have not shown, however, that they have sustained or will and as citizens of the country. They have not shown, however, that they have sustained or will sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to the sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to the

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Senate. Their contention that they will be deprived of their remedies for the protection and Senate. Their contention that they will be deprived of their remedies for the protection and enforcement of their rights does not persuade. The Rome Statute is intended to complement enforcement of their rights does not persuade. The Rome Statute is intended to complement national criminal laws and courts. Sufficient remedies are available under our national laws to national criminal laws and courts. Sufficient remedies are available under our national laws to protect our citizens against human rights violations and petitioners can always seek redress for protect our citizens against human rights violations and petitioners can always seek redress for any abuse in our domestic courts. Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA any abuse in our domestic courts. Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA 622, G.R. No. 158088 July 6, 2005

622, G.R. No. 158088 July 6, 2005

International Law; Treaties; Presidency; In our system of government, the President, being the International Law; Treaties; Presidency; In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the head of state, is regarded as the sole organ and authority in external relations and is the count

count ry’s sole representative with foreign nations.—ry’s sole representative with foreign nations.—In our system of government, the President,In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is being the head of state, is regarded as the sole organ and authority in external relations and is

the country’s sole representative with foreign nations. As the chie

the country’s sole representative with foreign nations. As the chief architect of foreign policy, thef architect of foreign policy, the

President acts as the country’s mouthpiece with respect to international affairs. Hence, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the

President is vested with the authority to deal with foreign states and governments, extend or President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitutio

entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty orn provides that “no treaty or

international agreement shall be valid and effective unless concurred in by at least two-thirds of international agreement shall be valid and effective unless concurred in by at least two-thirds of

all the Members of the Senate.” Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA all the Members of the Senate.” Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA

622, G.R. No. 158088 July 6, 2005 622, G.R. No. 158088 July 6, 2005

Same; Same; Same; Petitioners’ submission that the Philippines is bound under treaty law and Same; Same; Same; Petitioners’ submission that the Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis

international law to ratify the treaty which it has signed is without basis ——it is the ratification thatit is the ratification that binds the state to the provisions thereof; There is no legal obligation to ratify a treaty, but it goes binds the state to the provisions thereof; There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons; The President has the discretion even after the signing of the treaty by the whimsical reasons; The President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same.

Philippine representative whether or not to ratify the same. ——Petitioners’ submission that thePetitioners’ submission that the

Philippines is bound under treaty law and international law to ratify the treaty which it has signed Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis. The signature does not signify the final consent of the state to the treaty. It is is without basis. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the treaty is

treaty is signed by the state’s representative, the President, being accountable to the people, issigned by the state’s representative, the President, being accountable to the people, is

burdened with the responsibility and the duty to carefully study the contents of the treaty and burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the President ensure that they are not inimical to the interest of the state and its people. Thus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not contemplate to not to ratify the same. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or ratification of treaties would be pointless and futile. It has been held that a state has no legal or

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even moral duty to ratify a treaty which has been signed by its plenipotentiaries. There is no even moral duty to ratify a treaty which has been signed by its plenipotentiaries. There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense. Pimentel, Jr. vs. Office of the Executive Secretary, 462 would be justified in taking offense. Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA 622, G.R. No. 158088 July 6, 2005

SCRA 622, G.R. No. 158088 July 6, 2005

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and

Rep. LIZA L. MAZA, Petitioner, vs. ALBERTO ROMULO, in his capacity as Executive

Secretary, and BLAS F. OPLE, in his capacity as Secretary of Foreign Affairs,

Respondents.

G.R. No. 159618 | February 1, 2011

ESCRA

Constitutional Law; Executive Department; Executive Agreements; RP-US Non-Surrender Constitutional Law; Executive Department; Executive Agreements; RP-US Non-Surrender Agreemen

Agreement; International Law; One t; International Law; One State can agree to State can agree to waive jurisdiction to waive jurisdiction to subjects of anothersubjects of another State due to the recognition of the principle of extraterritorial immunity.

State due to the recognition of the principle of extraterritorial immunity. ——In the context of theIn the context of the Constitution, there can be no serious objection to the Philippines agreeing to undertake the Constitution, there can be no serious objection to the Philippines agreeing to undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdiction

things set forth in the Agreement. Surely, one State can agree to waive jurisdiction——to theto the extent agreed upon

extent agreed upon——to subjects of another State due to the recognition of the principle ofto subjects of another State due to the recognition of the principle of extraterritorial immunity.

extraterritorial immunity.

Same; Same; Same; Same; Same; What the Agreement contextually prohibits is the surrender Same; Same; Same; Same; Same; What the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, without the consent of the other party, by either party of individuals to international tribunals, without the consent of the other party, which may desire to prosecute the crime under its existing laws.

which may desire to prosecute the crime under its existing laws. ——Persons who may havePersons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the 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, for Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome Statute have the nonce, that all the formalities necessary to bind both countries to the Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the surrender by either been met. For perspective, 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, 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 the view we take of things, which may desire to prosecute the crime under its existing laws. With the view we take of things, there is nothing immoral or violative of international law concepts in the act of the Philippines of 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 assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute.

considered criminal by both Philippine laws and the Rome Statute.

Pharmaceutical and Health Care Association of the Philippines v Duque III Pharmaceutical and Health Care Association of the Philippines v Duque III

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Facts:

Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) of E.O. 51 (Milk Code). Petitioner claims that the RIRR is not valid as it contains provisions that of E.O. 51 (Milk Code). Petitioner claims that the RIRR is not valid as it contains provisions that are not constitutional and go beyond what it is supposed to implement. Milk Code was issued by are not constitutional and go beyond what it is supposed to implement. Milk Code was issued by President Cory Aquino under

President Cory Aquino under the Freedom Constitution the Freedom Constitution on Oct.1986. on Oct.1986. One of the preambularOne of the preambular clauses of the Milk Code states that the

clauses of the Milk Code states that the law seeks to give effect to Art 11 of the Int’l Code oflaw seeks to give effect to Art 11 of the Int’l Code of

Marketing and Breastmilk Substitutes(ICBMS), a code adopted by the World Health Marketing and Breastmilk Substitutes(ICBMS), a code adopted by the World Health Assembly(WHA). From 1982-2006,

Assembly(WHA). From 1982-2006, The WHA The WHA also adopted severe also adopted severe resolutions to the resolutions to the effect thateffect that breastfeeding should be supported, hence, it should be ensured that nutrition and health claims breastfeeding should be supported, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes. In 2006, the

are not permitted for breastmilk substitutes. In 2006, the DOH issued the assailed RIRR.DOH issued the assailed RIRR.

Issue:

Sub-Sub-Issue: W/N the pertinent int’l agreements entered into by the Phil are part of the law oIssue: W/N the pertinent int’l agreements entered into by the Phil are part of the law o f thef the land and may b

land and may be implemented by DOH through the e implemented by DOH through the RIRR. If yes, W/N the RIRR is in accord withRIRR. If yes, W/N the RIRR is in accord with

int’l agreements int’l agreements

MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of discretion amounting to lack of excess of jurisdiction and in violation of the Constitution by discretion amounting to lack of excess of jurisdiction and in violation of the Constitution by promulgating the RIRR.

promulgating the RIRR.

Held:

Sub-issue: Sub-issue:

Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by transformation (thru Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by transformation (thru

constitutional mechanism such as local legislation) or incorporation (mere constitutional constitutional mechanism such as local legislation) or incorporation (mere constitutional declaration i.e treaties) The ICBMS and WHA resolutions were not treaties as they have not declaration i.e treaties) The ICBMS and WHA resolutions were not treaties as they have not been concurred by 2/3 of all members of the Senate as required under Sec, 21, Art 8. However, been concurred by 2/3 of all members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had been transformed into domestic law through a local legislation such as the Milk the ICBMS had been transformed into domestic law through a local legislation such as the Milk Code. The Milk Code is almost a

Code. The Milk Code is almost a verbatim reproduction of ICBMS.verbatim reproduction of ICBMS.

No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions

pertinent WHA resolutions are customary int’l law that may be deemed

pertinent WHA resolutions are customary int’l law that may be deemed part of the law of the part of the law of the

land. For an int’l rule to be considered as customary law, it must be established that such rule is land. For an int’l rule to be considered as customary law, it must be established that such rule is

being followed by states because they consider it as obligatory to comply with such rules being followed by states because they consider it as obligatory to comply with such rules (opinion juris). The WHO resolutions, although signed by most of the member states, were (opinion juris). The WHO resolutions, although signed by most of the member states, were enforced or practiced by at least a majority of member states. Unlike the ICBMS whereby enforced or practiced by at least a majority of member states. Unlike the ICBMS whereby legislature enacted most of the provisions into the law via the Milk Code, the WHA Resolutions legislature enacted most of the provisions into the law via the Milk Code, the WHA Resolutions (specifically providing for exclusive breastfeeding from 0-6 months, breastfeeding up to 24 (specifically providing for exclusive breastfeeding from 0-6 months, breastfeeding up to 24 Months and absolutely prohibiting ads for breastmilk substitutes) have not been adopted as Months and absolutely prohibiting ads for breastmilk substitutes) have not been adopted as domestic law nor are they followed in our country as well. The Filipinos have the option of how domestic law nor are they followed in our country as well. The Filipinos have the option of how to take care of their babies as they see fit. WHA Resolutions may be classified as SOFT LAW to take care of their babies as they see fit. WHA Resolutions may be classified as SOFT LAW – –

non-binding norms, principles and practices that influence state behavior. Soft law is not part of non-binding norms, principles and practices that influence state behavior. Soft law is not part of

int’l law.Pharmaceutical and Health Care Association of the Philip

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Facts: Facts:

Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) of E.O. 51 (Milk Code). Petitioner claims that the RIRR is not valid as it contains provisions that of E.O. 51 (Milk Code). Petitioner claims that the RIRR is not valid as it contains provisions that are not constitutional and go beyond what it is

are not constitutional and go beyond what it is supposed to implement. Milk Code was issued bysupposed to implement. Milk Code was issued by President Cory Aquino under

President Cory Aquino under the Freedom Constitution the Freedom Constitution on Oct.1986. on Oct.1986. One of the preambularOne of the preambular

clauses of the Milk Code states that the law seeks to give effect to Art 11 of the Int’l Code of clauses of the Milk Code states that the law seeks to give effect to Art 11 of the Int’l Code of

Marketing and Breastmilk Substitutes(ICBMS), a code adopted by the World Health Marketing and Breastmilk Substitutes(ICBMS), a code adopted by the World Health Assembly(WHA). From 1982-2006,

Assembly(WHA). From 1982-2006, The WHA The WHA also adopted severe also adopted severe resolutions to the resolutions to the effect thateffect that breastfeeding should be supported, hence, it should be ensured that nutrition and health claims breastfeeding should be supported, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes. In 2006, the

are not permitted for breastmilk substitutes. In 2006, the DOH issued the assailed RIRR.DOH issued the assailed RIRR. Issue:

Issue:

Sub-Sub-Issue: W/N the pertinent int’l agreements entered into by the Phil are part of the law of theIssue: W/N the pertinent int’l agreements entered into by the Phil are part of the law of the

land and may b

land and may be implemented by DOH through the e implemented by DOH through the RIRR. If yes, W/N the RIRR is in aRIRR. If yes, W/N the RIRR is in accord withccord with

int’l agreements int’l agreements

MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of discretion amounting to lack of excess of jurisdiction and in violation of the Constitution by discretion amounting to lack of excess of jurisdiction and in violation of the Constitution by promulgating the RIRR.

promulgating the RIRR. Held:

Held: Sub-issue: Sub-issue:

Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by transformation (thru Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by transformation (thru

constitutional mechanism such as local legislation) or incorporation (mere constitutional constitutional mechanism such as local legislation) or incorporation (mere constitutional declaration i.e treaties) The ICBMS and WHA resolutions were not treaties as they have not declaration i.e treaties) The ICBMS and WHA resolutions were not treaties as they have not been concurred by 2/3 of all members of the Senate as required under Sec, 21, Art 8. However, been concurred by 2/3 of all members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had been transformed into domestic law through a local legislation such as the Milk the ICBMS had been transformed into domestic law through a local legislation such as the Milk Code. The Milk Code is almost

Code. The Milk Code is almost a verbatim reproduction of ICBMS.a verbatim reproduction of ICBMS.

No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions

pertinent WHA resolutions are customary int’l law that may be deemed part of the law of the pertinent WHA resolutions are customary int’l law that may be deemed part of the law of the land. For an int’l rule to be consider

land. For an int’l rule to be consider ed as customary law, it must be established that such rule ised as customary law, it must be established that such rule is being followed by states because they consider it as obligatory to comply with such rules being followed by states because they consider it as obligatory to comply with such rules (opinion juris). The WHO resolutions, although signed by most of the member states, were (opinion juris). The WHO resolutions, although signed by most of the member states, were enforced or practiced by at least a majority of member states. Unlike the ICBMS whereby enforced or practiced by at least a majority of member states. Unlike the ICBMS whereby legislature enacted most of the provisions into the law via the Milk Code, the WHA Resolutions legislature enacted most of the provisions into the law via the Milk Code, the WHA Resolutions (specifically providing for exclusive breastfeeding from 0-6 months, breastfeeding up to 24 (specifically providing for exclusive breastfeeding from 0-6 months, breastfeeding up to 24 Months and absolutely prohibiting ads for breastmilk substitutes) have not been adopted as Months and absolutely prohibiting ads for breastmilk substitutes) have not been adopted as domestic law nor are they followed in our country as well. The Filipinos have the option of how domestic law nor are they followed in our country as well. The Filipinos have the option of how to take care of their babies as they see fit. WHA Resolutions may be classified as SOFT LAW to take care of their babies as they see fit. WHA Resolutions may be classified as SOFT LAW – –

non-binding norms, principles and practices that influence state behavior. Soft law is not part of non-binding norms, principles and practices that influence state behavior. Soft law is not part of

int’l law. int’l law.