Professional Documents
Culture Documents
10, 2000
On March 14, 1947, the Philippines and the United States of
America forged a Military Bases Agreement which formalized,
among others, the use of installations in the Philippine territory
by United States military personnel. To further strengthen their
defense and security relationship, the Philippines and the United
States entered into a Mutual Defense Treaty on August 30, 1951.
Under the treaty, the parties agreed to respond to any external
armed attack on their territory, armed forces, public vessels, and
aircraft.
In view of the impending expiration of the RP-US Military Bases
Agreement in 1991, the Philippines and the United States
negotiated for a possible extension of the military bases
agreement.
On July 18, 1997, the United States panel, headed by US Defense
Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met
with the Philippine panel, headed by Foreign Affairs
Undersecretary Rodolfo Severino Jr., to exchange notes on the
complementing strategic interests of the United States and the
Philippines in the Asia-Pacific region. Both sides discussed,
among other things, the possible elements of the Visiting Forces
Agreement (VFA for brevity). Negotiations by both panels on the
VFA led to a consolidated draft text, which in turn resulted to a
final series of conferences and negotiations that culminated in
Manila on January 12 and 13, 1998. Thereafter, then President
Fidel V. Ramos approved the VFA, which was respectively signed
by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through
respondent Secretary of Foreign Affairs, ratified the VFA. On
October 6, 1998, the President, acting through respondent
Executive Secretary Ronaldo Zamora, officially transmitted to the
Senate of the Philippines, the Instrument of Ratification, the letter
of the President and the VFA, for concurrence pursuant to Section
21, Article VII of the 1987 Constitution. The Senate, in turn,
referred the VFA to its Committee on Foreign Relations, chaired by
Senator Blas F. Ople, and its Committee on National Defense and
Security, chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint public
hearings were held by the two Committees.
On May 3, 1999, the Committees submitted Proposed Senate
Resolution No. 443 recommending the concurrence of the Senate
Facts:
MOA-AD Overview
This is an agreement to be signed by the GRP and the MILF. Used
as reference in the birth of this MOA-AD are the Tripoli
Agreement, organic act of ARMM, IPRA Law, international laws
such as ILO Convention 169, the UN Charter etc., and the
principle of Islam i.e compact right entrenchment (law of compact,
treaty and order). The body is divided into concepts and principles,
territory, resources, and governance.
Embodied in concepts and principles, is the definition of
Bangsamoro as all indigenous peoples of Mindanao and its
adjacent islands. These people have the right to self- governance of
their Bangsamoro homeland to which they have exclusive
ownership by virtue of their prior rights of occupation in the land.
The MOA-AD goes on to describe the Bangsamoro people as "the
First Nation' with defined territory and with a system of
government having entered into treaties of amity and commerce
with foreign nations." It then mentions for the first time the
"Bangsamoro Juridical Entity" (BJE) to which it grants the
authority and jurisdiction over the Ancestral Domain and Ancestral
Lands of the Bangsamoro.
in the BJE includes those areas who voted in the plebiscite for
them to become part of the ARMM. The stipulation of the
respondents in the MOA-AD that these areas need not participate
in the plebiscite is in contrary to the express provision of the
Constitution. The law states that that "[t]he creation of the
autonomous region shall be effective when approved by a majority
of the votes cast by the constituent units in a plebiscite called for
the purpose, provided that only provinces, cities, and geographic
areas voting favorably in such plebiscite shall be included in the
autonomous region." Clearly, assuming that the BJE is just an
expansion of the ARMM, it would still run afoul the wordings of
the law since those included in its territory are areas which voted in
its inclusion to the ARMM and not to the BJE.
No.3 to the GRP Peace Panel. Well settled is the rule that the
President cannot delegate a power that she herself does not
possess. The power of the President to conduct peace negotiations
is not explicitly mentioned in the Constitution but is rather implied
from her powers as Chief Executive and Commander-in-chief. As
Chief Executive, the President has the general responsibility to
promote public peace, and as Commander-in-Chief, she has the
more specific duty to prevent and suppress rebellion and lawless
violence.
As such, the President is given the leeway to explore, in the course
of peace negotiations, solutions that may require changes to the
Constitution for their implementation. At all event, the president
may not, of course, unilaterally implement the solutions that she
considers viable; but she may not be prevented from submitting
them as recommendations to Congress, which could then, if it is
minded, act upon them pursuant to the legal procedures for
constitutional amendment and revision.
While the President does not possess constituent powers - as those
powers may be exercised only by Congress, a Constitutional
Convention, or the people through initiative and referendum - she
may submit proposals for constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.
Clearly, the principle may be inferred that the President - in the
course of conducting peace negotiations - may validly consider
implementing even those policies that require changes to the
Constitution, but she may not unilaterally implement them without
the intervention of Congress, or act in any way as if the assent of
that body were assumed as a certainty. The Presidents power is
limited only to the preservation and defense of the Constitution but
not changing the same but simply recommending proposed
amendments or revisions.
o The Court ruled that the suspensive clause is not a suspensive
these crimes.
WHEREFORE, the petition for certiorari, mandamus
and prohibition is hereby DISMISSED for lack of
merit.
DANUBE DAM CASE (Hungary v Slovakia) 37 ILM 162
(1998)
In 1977, The Treaty between the Hungarian Peoples Republic and
the Czechoslovak Socialist Republic concerning the Construction
and Operation of the Gabckovo-Nagymaros System of Locks was
concluded on 16 September 1977.The treaty was concluded to
facilitate the construction of dams on the Danube River. It
addressed broad utilization of the natural resources of the
Danube between Bratislava and Budapest, representing two
hundred of the Rivers two thousand eight hundred and sixty
kilometers. Intense criticism of the construction at Nagymaros
centered upon endangerment of the environment and uncertainty
of continued economic viability. This growing opposition
engendered political pressures upon the Hungarian Government.
After initiating two Protocols, primarily concerned with timing of
construction, Hungary suspended works at Nagymaros on 21 July
1989 pending further environmental studies. In response,
Czechoslovakia carried out unilateral measures. Hungary then
claimed the right to terminate the treaty, at which point the
dispute was submitted to the International Court of Justice.
Hungary also submitted that it was entitled to terminate the
treaty on the ground that Czechoslovakia had violated Articles of
the Treaty by undertaking unilateral measures, culminating in the
diversion of the Danube. Slovakia became a party to the 1977
Treaty as successor to Czechoslovakia.
On 19 May 1992 Hungary purported to terminate the 1977 Treaty
as a consequence of Czechoslovakias refusal to suspend work
during the process of mediation. As the Treaty itself did not
feature a clause governing termination, Hungary proffered five
arguments to validate its actions: a state of necessity,
supervening impossibility of performance, fundamental change of
circumstances, material breach and the emergence of new norms
of international environmental law. Slovakia contested each of
these bases.
The Court easily dismissed Hungarys first claim, simply stating
because:
(1) by conduct, by public statements and proclamations, and
in other ways, the Republic has unilaterally assumed the
obligations of the Convention; or has manifested its acceptance
of the conventional regime; or has recognized it as being
generally applicable to the delimitation of continental shelf
areas
(2) the Federal Republic had held itself out as so assuming,
accepting or recognizing, in such a manner as to cause other
States, and in particular Denmark and the Netherlands, to rely on
the attitude thus taken up (the latter is called the principle of
estoppel).
2. The Court rejected the first argument. It stated that only a
very definite very consistent course of conduct on the part of a
State would allow the court to presume that a State had
somehow become bound by a treaty (by a means other than in a
formal manner: i.e. ratification) when the State was at all times
fully able and entitled to accept the treaty commitments in a
formal manner. The Court held that Germany had not unilaterally
assumed obligations under the Convention. The court also took
notice of the fact that even if Germany ratified the treaty, she
had the option of entering into a reservation on Article 6 following
which that particular article would no longer be applicable to
Germany (i.e. even if one were to assume that Germany had
intended to become a party to the Convention, it does not
presuppose that it would have also undertaken those obligations
contained in Article 6).
3. NB: The Vienna Convention on the Law of Treaties of 1969
(VCLT), which came into force in 1980, discusses more fully the
obligations of third States to treaties. It clearly stipulates that an
obligation arises for a third State from a provision of a treaty only
if (1) the parties to the treaty intend the provision to create this
obligation for the third States; and (2) the third State expressly
accepts that obligation in writing (A. 35 of the VCLT). The VCLT
was not in force when the ICJ deliberated on this case. However,
as seen above, the ICJs position was consistent the VCLT. (See
the relevant provisions of the Vienna Convention on the Law of
Treaties).
4. The court held that the existence of a situation of estoppel
would have allowed Article 6 to become binding on Germany
but held that Germanys action did not support an argument for
estoppel. The court also held that the mere fact that Germany
articles that do not figure among those excluded from the faculty
of reservation under Article 12, were not regarded as declaratory
of previously existing or emergent rules of law (see para 65 for a
counter argument and the courts careful differentiation)
Did the provisions in Article 6 on the equidistance principle attain
the customary law status after the Convention came into force?
9. The court then examined whether the rule contained in Article
6 had become customary international law after the Convention
entered into force either due the convention itself (i.e., if
enough States had ratified the Convention in a manner to fulfil
the criteria specified below), or because of subsequent State
practice (i.e. even if adequate number of States had not ratified
the Convention one could find sufficient State practice to meet
the criteria below). The court held that Article 6 of the Convention
had not attained a customary law status (compare the 1958
Geneva Convention with the four Geneva Conventions on 1949 in
the field of international humanitarian law in terms of its
authority as a pronouncement of customary international law).
10. For a customary rule to emerge the court held that it
needed: (1) very widespread and representative participation in
the convention, including States whose interests were specially
affected (i.e. generality); and (2) virtually uniform practice (i.e.
consistent and uniform usage) undertaken in a manner that
demonstrates (3) a general recognition of the rule of law or legal
obligation (i.e. opinio juries). In the North Sea Continental Shelf
cases the court held that the passage of a considerable period of
time was unnecessary (i.e. duration) for the formation of a
customary law.
Widespread and representative participation
11. The court held that the first criteria was not met. The number
of ratifications and accessions to the convention (39 States) were
not adequately representative (including of coastal States i.e.
those States whose rights are affected) or widespread.
Duration
12. The court held that duration taken for the customary law rule
to emerge is not as important as widespread and representative
participation, uniform usage and the existence of an opinio juris.
Although the passage of only a short period of time (in this case,
3 5 years) is not necessarily, or of itself, a bar to the formation
of a new rule of customary international law on the basis of what
was originally a purely conventional rule, an indispensable
requirement would be that within the period in question, short
the court held that the use of the equidistance method is not
obligatory for the delimitation of the areas concerned in the
present proceedings.