PIL – Bernas Cases and Doctrines
Qatar vs. Bahrain Issue. Yes. An international agreement creating rights
Brief Fact Summary. A claim to settle a dispute
involving sovereignty over certain islands, sovereign
rights over certain shoals and delimitation of a maritime
boundary was filed by Qatar (P) in the International Court
of Justice against Bahrain (D). The Court’s jurisdiction
was however disputed by Bahrain (D).
Synopsis of Rule of Law. An international agreement
creating rights and obligations can be constituted by the
signatories to the minutes of meetings and letters
exchanged.
Facts. A dispute concerning sovereignty over certain
islands and shoals, including the delimitation of a
maritime boundary were issues upon which Qatar (P)
and Bahrain (D) sought to resolve for 20 years. During
this period of time, letters were exchanged and
acknowledged by both parties heads of state. A Tripartite
Committee “for the purpose of approaching the
International Court of Justice…..” was formed by
representatives of Qatar (P), Bahrain (D) and Saudi
Arabia. Though the committee met several time, it failed
to produce an agreement on the specific terms for
submitting the dispute to the Court. Eventually, the
meetings culminated in “Minutes”, which reaffirmed the
process and stipulated that the parties “may” submit the
dispute to the I.C.J. after giving the Saudi King six
months to resolve the dispute. The Court’s jurisdiction
was disputed by Bahrain (D) when Qatar (P) filed a claim
in the I.C.J.
and obligations can be constituted by the signatories to
the minutes of meetings and letters exchanged. Though
Bahrain (D) argued that the Minutes were only a record
of negotiation and could not serve as a basis for the
I.C.J.’s jurisdiction, both parties agreed that the letters
constituted an international agreement with binding force.
International agreements do not take a single form under
the Vienna Convention on the Law of Treaties, and the
Court has enforced this rule in the past. In this case, the
Minutes not only contain the record of the meetings
between the parties, it also contained the reaffirmation of
obligations previously agreed to and agreement to allow
the King of Saudi Arabia to try to find a solution to the
dispute during a six-month period, and indicated the
possibility of the involvement of the I.C.J. The Minutes
stipulated commitments to which the parties agreed,
thereby creating rights and obligations in international
law. This is the basis therefore of the existence of
international agreement.
On the part of the Bahrain’s (D) Foreign Minister, he
argued that no agreement existed because he never
intended to enter an agreement fails on the grounds that
he signed documents creating rights and obligations for
his country. Also, Qatar’s (P) delay in applying to the
United Nations Secretariat does not indicate that Qatar
(P) never considered the Minutes to be an international
agreement as Bahrain (D) argued. However, the
registration and non-registration with the Secretariat does
not have any effect on the validity of the agreement.
Held. Yes. An international agreement creating rights
and obligations can be constituted by the signatories to
the minutes of meetings and letters exchanged. Though
PIL – Bernas Cases and Doctrines
Bahrain (D) argued that the Minutes were only a record
of negotiation and could not serve as a basis for the
I.C.J.’s jurisdiction, both parties agreed that the letters
constituted an international agreement with binding force.
Discussion. There is no doubt that language plays a
vital role in influencing a court’s decision as to whether
an agreement has been entered into and in this particular
case, the language was the main focus of the I.C.J and it
was the contents of the Minutes that persuaded the I.C.J.
to reject the Bahrain foreign minister’s (D) claim that he
did not intend to enter into an agreement. Where this is
compared to general U.S. contract law, where a claim by
one of the parties that no contract existed because there
was no meeting of the minds might be the ground upon
which a U.S. court would consider whether a contract did
exist with more care and thought than the I.C.J. gave the
foreign minister of Bahrain’s (D) claims.
Air France vs. Saks
Article 17 of the Warsaw Convention makes air carriers
liable for injuries sustained by a passenger
"if the accident which caused the damage so sustained
took place on board the aircraft or in the course of any of
the operations of embarking or disembarking."
Respondent, while a passenger on petitioner's jetliner as
it descended to land in Los Angeles on a trip from Paris,
felt severe pressure and pain in her left ear, and the pain
continued after the jetliner landed. Shortly thereafter,
respondent consulted a doctor, who concluded that she
had become permanently deaf in her left ear. She then
filed suit in a California state court, alleging that her
hearing loss was caused by negligent maintenance and
operation of the jetliner's pressurization system. After the
case was removed to Federal District Court, petitioner
moved for summary judgment on the ground that
respondent could not prove that her injury was caused by
an "accident" within the meaning of Article 17, the
evidence indicating that the pressurization system had
operated in a normal manner. Relying on precedent that
defines the term "accident" in Article 17 as an "unusual or
unexpected" happening, the District Court granted
summary judgment to petitioner. The Court of Appeals
reversed, holding that the language, history, and policy of
the Warsaw Convention and the Montreal Agreement (a
private agreement among airlines that has been
approved by the Federal Government) impose absolute
liability on airlines for injuries proximately caused by the
risks inherent in air travel; and that normal cabin pressure
changes qualify as an "accident" within the definition
contained in Annex 13 to the Convention on International
Civil Aviation as meaning "an occurrence associated with
the operation of an aircraft."
Held: Liability under Article 17 arises only if a
passenger's injury is caused by an unexpected or
unusual event or happening that is external to the
passenger, and not where the injury results from the
passenger's own internal reaction to the usual, normal,
and expected operation of the aircraft, in which case it
has not been caused by an accident under Article 17.
Pp. 470 U. S. 396-408.
(a) The text of the Warsaw Convention suggests that the
passenger's injury must be so caused. The difference in
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the language of Article 17, imposing liability for injuries to
passengers caused by an "accident" and
Page 470 U. S. 393
Article 18, imposing liability for destruction or loss of
baggage by an "occurrence," implies that the drafters of
the Convention understood the word "accident" to mean
something different than the word "occurrence."
Moreover, Article 17 refers to an accident which
caused the passenger's injury, and not to an accident
which is the passenger's injury. The text thus implies that,
however "accident" is defined, it is the cause of the injury
that must satisfy the definition, rather than the occurrence
of the injury alone. And, since the Warsaw Convention
was drafted in French by continental jurists, further
guidance is furnished by the French legal meaning of
"accident" -- when used to describe a cause of injury,
rather than the event of injury -- as being a fortuitous,
unexpected, unusual, or unintended event. Pp. 397-400.
(b) The above interpretation of Article 17 is consistent
with the negotiating history of the Warsaw Convention,
the conduct of the parties thereto, and the weight of
precedent in foreign and American courts. Pp. 470 U. S.
400-405.
(c) While any standard requiring courts to distinguish
causes that are "accidents" from causes that are
"occurrences" requires drawing a line that may be subject
to differences as to where it should fall, an injured
passenger is only required to prove that some link in the
chain of causes was an unusual or unexpected event
external to the passenger. Enforcement of Article 17's
"accident" requirement cannot be circumvented by
reference to the Montreal Agreement. That Agreement,
while requiring airlines to waive "due care" defenses
under Article 20(1) of the Warsaw Convention, did not
waive Article 17's "accident" requirement. Nor can
enforcement of Article 17 be escaped by reference to the
equation of "accident" with "occurrence" in Annex 13,
which, with its corresponding Convention, expressly
applies to aircraft accident investigations, and not to
principles of liability to passengers under the Warsaw
Convention. Pp. 470 U. S. 405-408.
724 F.2d 1383, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in
which all other Members joined, except POWELL, J., who
took no part in the consideration or decision of the case.
UK vs. Iceland
Brief Fact Summary. Because some circumstances
changed, Iceland (D) claimed that a fishing treaty it had
with the United Kingdom (P) was no longer applicable.
Synopsis of Rule of Law. In order that a change of
circumstances may give rise to the premise calling for the
termination of a treaty, it is necessary that it has resulted
in a radical transformation of the extent of the obligations
still to be performed. Facts. Iceland’s (D) claim to a 12-
mile fisheries limit was recognized by the United
Kingdom (P) in 1961 in return for Iceland’s (D) agreement
that any dispute concerning Icelandic fisheries jurisdiction
beyond the 12-mile limit be referred to the International
Court of Justice. An application was filed before the I.C.J.
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when Iceland (D) proposed to extend its exclusive
fisheries jurisdiction from 12 to 50 miles around its shores
in 1972. By postulating that changes in circumstances
since the 12-mile limit was now generally recognized was
the ground upon which Iceland (D) stood to argue that
the agreement was no longer valid. Iceland (D) also
asserted that there would be a failure of consideration for
the 1961 agreement.
Issue. In order that a change of circumstances may give
rise to a ground for invoking the termination of a treaty, is
it necessary that it has resulted in a radical
transformation of the extent of the obligation still to be
performed?
Held. Yes. In order that a change of circumstances may
give rise to the premise calling for the termination of a
treaty, it is necessary that it has resulted in a radical
transformation of the extent of the obligations still to be
performed.
The change of circumstances alleged by Iceland (D)
cannot be said to have transformed radically the extent of
the jurisdictional obligation that was imposed in the 1961
Exchange of Notes.
Discussion. Recourse to the I.C.J. in the event of a
dispute was the original agreement between the parties.
The economy of Iceland (D) is dependent on fishing. The
merit of Iceland (D) argument was not reached by the
Court in this case, however, but rather dealt with the
jurisdictional issues.
FACTS:
-In 1961, the United Kingdom (Plaintiff) recognized
Iceland's (D) claim to a 12-mile fisheries limit. This was
in return for Iceland's (D) agreement that any dispute
concerning Icelandic fisheries jurisdiction beyond the 12-
mile limit be referred to the International Court of Justice.
-In 1972, Iceland proposed to extend its exclusive
fisheries jurisdiction from 12 to 50 miles around its
shores.
-As a result, the United Kingdom (P) filed an application
before the ICJ.
- Iceland (D) claimed that the agreement was no longer
valid due to changed circumstances - being that the 12-
mile limit was now generally recognized and that there
would be a failure of consideration for the 1961
agreement.
Issue:
Does there have to be a radical transformation of the
extent of the obligations that need to be performed for
there to be a "change of circumstances" that give rise to
a ground for invoking a termination of a treaty?
HOLDING: Yes.
-In order for a change of circumstances to give rise to a
ground for invoking the termination of a treaty it is
PIL – Bernas Cases and Doctrines
necessary that the change has resulted in a radical
transformation of the extent of the obligations still to be
performed.
-The change must have increased the burden of the
obligations yet to be executed to the extent of rendering
the performance something essentially different from that
initially undertaken.
-The change of circumstances alleged by Iceland in this
case cannot be said to have transformed radically the
extent of the jurisdictional obligation that was imposed in
the 1961 Exchange of Notes.
Rule:
-In order for a change in circumstances to give rise to a
ground for invoking the termination of a treaty, it is
necessary that the change has resulted in a radical
transformation in regards to the obligations that are still to
be performed.
Analysis:
The original agreement between the parties provided for
recourse to the I.C.J. in the event of a dispute arising.
Iceland’s economy was highly dependent on fishing.
The Court did not reach the merits of Iceland’s argument
here, but instead the court dealt with the jurisdictional
issues at hand.
Namibia Case
Brief Fact Summary. Under a claim of right to annex
Namibia, South Africa occupied its territory in violation of
a United Nations (U.N.) Security Council Mandate which
though later terminated due to South Africa’s breach,
empowered the Security Council to enforce its terms.
Synopsis of Rule of Law. Member States of the United
Nations are bounded by its mandates and violations or
breaches results in a legal obligation on the part of the
violator to rectify the violation and upon the other
Member States to recognize the conduct as a violation
and to refuse to aid in such violation.
Facts. Under a claim of right to annex the Namibian
territory and under the claim that Namibia’s nationals
desired South Africa’s (D) rule, South Africa (D) began
the occupation of Namibia. South Africa was subject to a
U.N. Mandate prohibiting Member States from taking
physical control of other territories because it was a
Member State of the United Nations.
The Resolution 2145 (XXI) terminating the Mandate of
South Africa (D) was adopted by the U.N and the
Security Council adopted Resolution 276 (1970) which
declared the continuous presence of South Africa (D) in
Namibia as illegal and called upon other Member States
to act accordingly. An advisory opinion was however
demanded from the International Court of Justice.
Issue. Issue: are mandates adopted by the United
Nations binding upon all Member States so as to make
breaches or violations thereof result in a legal obligation
PIL – Bernas Cases and Doctrines
on the part of the violator to rectify the violation and upon
other Member States to recognize the conduct as a
violation and to refuse to aid in such violations?
Held. Yes. Member States of the United Nations are
bounded by its mandates and violations or breaches
results in a legal obligation on the part of the violator to
rectify the violation and upon the other Member States to
recognize the conduct as a violation and to refuse to aid
in such violation. As Member States, the obligation to
keep intact and preserve the rights of other States and
the people in them has been assumed.
So when a Member State does not toll this line, that State
cannot be recognized as retaining the rights that it claims
to derive from the relationship. In this particular case, the
General Assembly discovered that South Africa (D)
contravened the Mandate because of its deliberate
actions and persistent violations of occupying Namibia.
Hence, it is within the power of the Assembly to terminate
the Mandate with respect to a violating Member State,
which was accomplished by resolution 2145 (XXI) in this
case. The resolutions and decisions of the Security
Council in enforcing termination of this nature are binding
on the Member States, regardless of how they voted on
the measure when adopted. South Africa (D) is therefore
bound to obey the dictates of the Mandate, the resolution
terminating it as to South Africa (D), and the enforcement
procedures of the Security Council.
Once the Mandate has been adopted by the United
Nations, it becomes binding upon all Member States and
the violations or breaches of this Mandate result in legal
obligations on the part of the violator to rectify the
violation, and upon the other Member States to recognize
the conduct as a violation and to refuse to aid in such
violation.
Discussion. Despite agreeing to restore independence
to Namibia with the United Nations, South Africa (D) did
not. A number of mandatory sanctions for enforcement
were now adopted by the General Assembly and the
action of South Africa (D) was “strongly condemned”.
FACTS: South Africa (D) began occupation of Namibia
under a claim of right to annex that territory and under a
claim that the people of Namibia desired South African
(D) rule. South Africa (D) was a Member State of the
United Nations and was subject to a U.N. Mandate
prohibiting Member States from taking physical control of
other territories. The U.N. General Assembly adopted
Resolution 2145 (XXI) terminating the Mandate for South
Africa (D), and the Security Council adopted Resolution
276 (1970) declaring South Africa’s (D) continued
presence in Namibia to be illegal and calling upon the
other Member States to act accordingly. The International
Court of justice was called upon to render an advisory
opinion.
Rule:
mandates adopted by the UN are binding upon all
member states, and violations or breaches result in a
legal obligation on the part of the violater to rectify the
violation and upon the other member states to recognize
the conduct as a violation and refuse to aid in such
violation.
PIL – Bernas Cases and Doctrines
Issue:
-Are mandates adopted by the United Nations binding
upon all Member States so as to make breaches or
violations thereof result in a legal obligation on the part of
the violator to rectify the violation and upon other
Member States to recognize the conduct as a violation
and to refuse to aid in such violation?
Outcome:
HOLDING AND DECISION: Yes. Mandates adopted by
the United Nations are binding upon all Member States,
and violations or breaches result in a legal obligation on
the part ,of the violator to rectify the violation and upon
the other Member States to recognize the conduct as a
violation and to refuse to aid in such violation. The
Member States have assumed an obligation to keep
intact and preserve the rights of other States and the
people in them. When a party to the Mandate giving rise
to this obligation fails to fulfill its own obligations under it,
that party cannot be recognized as retaining the rights
that it claims to derive from the relationship. The General
Assembly found that South Africa (D) was in material
breach of the Mandate because of deliberate and
persistent violations of it by occupying Namibia. The
Assembly has the right to terminate the Mandate with
respect to a violating Member State, which was
accomplished by resolution 2145 (XXI) in this case. The
decisions and resolutions of the Security Council in
enforcing such termination are binding upon all Member
States, regardless of how they voted on the measure
when adopted . South Africa (D) is thus subject to the
Mandate, the resolution terminating it as to South Africa
(D), and the enforcement procedures of the Security
Council. South Africa’s (D) illegal action gives rise to an
obligation to put the violative conduct to an end.
Mandates adopted by the United Nations are binding
upon all Member States and violations or breaches result
in legal obligations on the part of the violator to rectify the
violation, and upon the other Member States to recognize
the conduct as a violation and to refuse to aid in such
violation.
Analysis:
South Africa (D) did not restore independence to Namibia
despite agreeing to do so with the United Nations The
General Assembly adopted a number of resolutions
imposing mandatory sanctions for enforcement South
Africa [D) was "strongly condemned" for its actions.
Hungary vs. Slovakia
Brief Fact Summary. Hungary (P) claimed that
Czechoslovakia (D) violated the provisions of a treaty
when it appropriated the waters of the Danube River to
construct a dam.
Synopsis of Rule of Law. Watercourse states shall
participate in the use, development and protection of an
international watercourse in an equitable and reasonable
manner.
PIL – Bernas Cases and Doctrines
Facts. In 1977, Hungary (P) and Czechoslovakia (D)
signed a Treaty for the construction of dams and other
projects along the Danube River that bordered both
nations. Czechoslovakia (D) began work on damming the
river in its territory when Hungary (P) stopped working on
the project and negotiation could not resolve the matter
which led Hungary (P) to terminate the Treaty. Hungary
(P) based its action on the fact that the damming of the
river had been agreed to only on the ground of a joint
operation and sharing of benefits associated with the
project, to which Czechoslovakia (D) had unlawfully
unilaterally assumed control of a shared resource.
Issue. Shall watercourse states participate in the use,
development and protection of an international
watercourse in an equitable and reasonable manner?
Held. Yes. Watercourse states shall participate in the
use, development and protection of an international
watercourse in an equitable and reasonable manner.
Hungary (P) was deprived of its rights to an equitable and
reasonable share of the natural resources of the Danube
by Czechoslovakia (D) and also failed to respect the
proportionality that is required by international law.
Cooperative administration must be reestablished by the
parties of what remains of the project.
Discussion. The Court’s decision was that the joint
regime must be restored. In order to achieve most of the
Treaty’s objectives, common utilization of shared water
resources was necessary. Hence, the defendant was not
authorized to proceed without the plaintiff’s consent.
Manila Prince Hotel vs. GSIS
Facts:
The controversy arose when respondent Government
Service Insurance System (GSIS), pursuant to the
privatization program of the Philippine Government,
decided to sell through public bidding 30% to 51% of the
issued and outstanding shares of respondent Manila
Hotel Corporation (MHC). The winning bidder, or the
eventual “strategic partner,” will provide management
expertise or an international marketing/reservation
system, and financial support to strengthen the
profitability and performance of the Manila Hotel.
In a close bidding held on 18 September 1995 only two
(2) bidders participated: petitioner Manila Prince Hotel
Corporation, a Filipino corporation, which offered to buy
51% of the MHC or 15,300,000 shares at P41.58 per
share, and Renong Berhad, a Malaysian firm, with ITT-
Sheraton as its hotel operator, which bid for the same
number of shares at P44.00 per share, or P2.42 more
than the bid of petitioner. Prior to the declaration of
Renong Berhard as the winning bidder, petitioner Manila
Prince Hotel matched the bid price and sent a manager’s
check as bid security, which GSIS refused to accept.
Apprehensive that GSIS has disregarded the tender of
the matching bid and that the sale may be consummated
with Renong Berhad, petitioner filed a petition before the
Court.
PIL – Bernas Cases and Doctrines
Issues:
1. Whether or not Sec. 10, second par., Art. XII, of the
1987 Constitution is a self-executing provision.
2. Whether or not the Manila Hotel forms part of the
national patrimony.
3. Whether or not the submission of matching bid is
premature
4. Whether or not there was grave abuse of discretion
on the part of the respondents in refusing the
matching bid of the petitioner.
Rulings:
In the resolution of the case, the Court held that:
1. It is a self-executing provision.
1. Since the Constitution is the fundamental,
paramount and supreme law of the nation, it is
deemed written in every statute and contract. A
provision which lays down a general principle,
such as those found in Art. II of the 1987
Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes
operative without the aid of supplementary or
enabling legislation, or that which supplies
sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-
executing.
2. A constitutional provision is self-executing if the
nature and extent of the right conferred and the
liability imposed are fixed by the constitution
itself, so that they can be determined by an
examination and construction of its terms, and
there is no language indicating that the subject is
referred to the legislature for action. Unless it is
expressly provided that a legislative act is
necessary to enforce a constitutional mandate,
the presumption now is that all provisions of the
constitution are self-executing. If the
constitutional provisions are treated as requiring
legislation instead of self-executing, the
legislature would have the power to ignore and
practically nullify the mandate of the fundamental
law.
3. 10, second par., Art. XII of the 1987 Constitution
is a mandatory, positive command which is
complete in itself and which needs no further
guidelines or implementing laws or rules for its
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enforcement. From its very words the provision
does not require any legislation to put it in
operation. It is per se judicially enforceable.
When our Constitution mandates that in the grant
of rights, privileges, and concessions covering
national economy and patrimony, the State shall
give preference to qualified Filipinos, it means
just that – qualified Filipinos shall be preferred.
And when our Constitution declares that a right
exists in certain specified circumstances an
action may be maintained to enforce such right
notwithstanding the absence of any legislation on
the subject; consequently, if there is no statute
especially enacted to enforce such constitutional
right, such right enforces itself by its own inherent
potency and puissance, and from which all
legislations must take their bearings. Where there
is a right there is a remedy. Ubi jus ibi remedium.
2. The Court agree.
1. In its plain and ordinary meaning, the term
patrimony pertains to heritage. When the
Constitution speaks of national patrimony, it
refers not only to the natural resources of the
Philippines, as the Constitution could have very
well used the term natural resources, but also to
the cultural heritage of the Filipinos.
2. It also refers to Filipino’s intelligence in arts,
sciences and letters. In the present case, Manila
Hotel has become a landmark, a living
testimonial of Philippine heritage. While it was
restrictively an American hotel when it first
opened in 1912, a concourse for the elite, it has
since then become the venue of various
significant events which have shaped Philippine
history.
3. Verily, Manila Hotel has become part of our
national economy and patrimony. For sure, 51%
of the equity of the MHC comes within the
purview of the constitutional shelter for it
comprises the majority and controlling stock, so
that anyone who acquires or owns the 51% will
have actual control and management of the hotel.
In this instance, 51% of the MHC cannot be
disassociated from the hotel and the land on
which the hotel edifice stands.
3. It is not premature.
1. In the instant case, where a foreign firm submits
the highest bid in a public bidding concerning the
grant of rights, privileges and concessions
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covering the national economy and patrimony,
thereby exceeding the bid of a Filipino, there is
no question that the Filipino will have to be
allowed to match the bid of the foreign entity. And
if the Filipino matches the bid of a foreign firm the
award should go to the Filipino. It must be so if
the Court is to give life and meaning to the
Filipino First Policy provision of the 1987
Constitution. For, while this may neither be
expressly stated nor contemplated in the bidding
rules, the constitutional fiat is omnipresent to be
simply disregarded. To ignore it would be to
sanction a perilous skirting of the basic law.
2. The Court does not discount the apprehension
that this policy may discourage foreign investors.
But the Constitution and laws of the Philippines
are understood to be always open to public
scrutiny. These are given factors which investors
must consider when venturing into business in a
foreign jurisdiction. Any person therefore desiring
to do business in the Philippines or with any of its
agencies or instrumentalities is presumed to
know his rights and obligations under the
Constitution and the laws of the forum.
4. There was grave abuse of discretion.
1. To insist on selling the Manila Hotel to foreigners
when there is a Filipino group willing to match the
bid of the foreign group is to insist that
government be treated as any other ordinary
market player, and bound by its mistakes or
gross errors of judgement, regardless of the
consequences to the Filipino people. The
miscomprehension of the Constitution is
regrettable. Thus, the Court would rather remedy
the indiscretion while there is still an opportunity
to do so than let the government develop the
habit of forgetting that the Constitution lays down
the basic conditions and parameters for its
actions.
2. Since petitioner has already matched the bid
price tendered by Renong Berhad pursuant to the
bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of
shares of MHC and to execute the necessary
agreements and documents to effect the sale in
accordance not only with the bidding guidelines
and procedures but with the Constitution as well.
The refusal of respondent GSIS to execute the
corresponding documents with petitioner as
provided in the bidding rules after the latter has
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matched the bid of the Malaysian firm clearly
constitutes grave abuse of discretion.
Hence, respondents GOVERNMENT SERVICE
INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION
and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL are directed to CEASE and DESIST from
selling 51% of the shares of the Manila Hotel Corporation
to RENONG BERHAD, and to ACCEPT the matching bid
of petitioner MANILA PRINCE HOTEL CORPORATION
to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to
execute the necessary agreements and documents to
effect the sale, to issue the necessary clearances and to
do such other acts and deeds as may be necessary for
the purpose.
Edye vs. Robertson
Facts:
In 1882 the Congress passed an act providing that a duty
of fifty cents should be collected for each and every
passenger who was not a citizen of the United States,
coming from a foreign port to any port within the United
States. Individuals and steamship companies brought
suit against the collector of customs at New York, Mr.
WH Robertson, for the recovery of the sums of money
collected. The act was challenge on the grounds that it
violated numerous treaties of the US government with
friendly nations.
Issue:
WON the act is void because of the conflict with the
treaty.
Ruling:
A treaty is a compact between independent nations,
which depends for its enforcement upon the interest and
honor of the governments that are parties to a treaty.
Treaties that regulate the mutual rights of citizens and
subjects of the contracting nations are in the same
category as acts of Congress. When these rights are of
such a nature as to be enforced by a court of justice, the
court resorts to the treaty as it would to a statute.
However, a constitution gives a treaty no superiority over
an act on congress. In short, so far as a treaty made by
the United States with any foreign nation can become the
subject of judicial cognizance in the courts of this country,
it is subject to such acts as Congress may pass for its
enforcement, modification, or repeal.
Whitney vs. Robertson
Brief Fact Summary. The claim which Whitney (P)
brought before the court was that a treaty between the
U.S and the Dominican Republic guaranteed that no
higher duty would be assessed on goods from the
Dominican Republic than was assessed on goods from
PIL – Bernas Cases and Doctrines
any other country and that duties had been wrongfully
assessed on his sugar imports.
Synopsis of Rule of Law. Where a treaty and an act of
legislation conflict, the one last in date will control.
Facts. The claim which Whitney (P) brought before the
court was that a treaty between the U.S and the
Dominican Republic guaranteed that no higher duty
would be assessed on goods from the Dominican
Republic than was assessed on goods from any other
country and that duties had been wrongfully assessed on
his sugar imports.
Issue. Where a treaty and an act of legislation conflict,
will the one last in date control?
Held. (Field, J.). Yes. The one with a later date will
control where a treaty and an act of legislation conflict.
The act of congress under which the duties were
collected was passed after the treaty and therefore is
controlling. Affirmed.
Discussion. A later inconsistent statute does not
abrogate or repeal a treaty. The treaty still exists as an
international obligation although the terms of the treaty
may not be enforceable.
Great Britain vs. Costa Rica
Brief Fact Summary. The Tinoco regime, which was the
former government of Costa Rica, was alleged by Great
Britain to have granted oil concession to a British
company that had to be honored by the present regime.
Synopsis of Rule of Law. A government need not
conform to a previous constitution if the government had
established itself and maintained a peaceful de facto
administration and non-recognition of the government by
other government does not destroy the de facto status of
the government.
Facts. The Tinoco regime that had seized power in
Costa Rica by coup was not recognized by Great Britain
and the United States. When the regime was removed,
the new government nullified all Tinoco’c contract
including an oil concession to a British company. The
claim of Great Britain (P) was that the contract could not
be repudiated because the Tinoco government was the
only government in existence at the time of the contract
was signed. This view was not shared by Costa Rica (D)
who claimed that Great Britain (P) was estopped from
enforcing the contract by its non-recognition of the Tinoco
regime. The matter was sent for arbitration.
PIL – Bernas Cases and Doctrines
Issue. Does a government need to conform to a previous
constitution if the government had established itself and
maintained a peaceful de facto administration and does
non-recognition of the government by other government
destroy the de facto status of the government?
Held. (Taft, C.J., Arb). No. A government need not
conform to a previous constitution if the government had
established itself and maintained a peaceful de facto
administration and non-recognition of the government by
other government does not destroy the de facto status of
the government. The non-recognition of the Tinoco
regime by Great Britain did not dispute the de facto
existence of that regime. There is no estoppel since the
successor government had not been led by British non-
recognition to change its position.
atio:
Even an illegal government may bind a state to
international obligations. International law looks to the
State, not the gov entity w/in the state.
→ Caveat: when government in power contrary to
international law, not just domestic law, then doctrine of
state continuity will not generally apply
Analysis:
Tinoco was a sovereign government. Even though some
sates did not recognize it – that cannot outweigh the
evidence disclosed that de facto it was a government.
The question is not if the government abides by a
constitution but is: Has it established itself in such a way
that all w/in the its influence recognize its control, and
that there is no opposing force assuming to be a gov in
its place
As long a it is the effective government of the state – it is
the government of the state. Debts owed are not owed by
the government of the day but between the state – the
only legal entity that is relevant is the state.
Holding:
Great Britain was able to sustain a claim against Costa
Rica because the Ks were made with Costa Rica not
Tinoco.
Upright vs. Mercury Business Machines Co.
FACTS
Plaintiff, Walter Upright, is an American citizen and
residentof New York. He is suing before the US Supreme
Court as theassignee for value of a trade acceptance
drawn on andaccepted by defendant Mercury Business
Machines which isa New York Corporation.
The acceptance represented an obligation to pay
fortypewriters sold and delivered to Mercury by the
drawer-assignor Polygraph Expert GmbH.
Mercury’s counsel had been advised
PIL – Bernas Cases and Doctrines
from the Chief ofEconomic Affairs of the US in West
Berlin that Polygraphw
as a “state
-controlled enterprise of the so-called German
Democratic Republic (GDR).”
Mercury answered alleging that:-
Upright lacked capacity to sue since the
GermanDemocratic Republic was not recognized by
theUnited States.-
It is organized under the laws of the United Stateswhich
makes it an instrumentality or arm ofgovernment and as
such could not maintain thesuit and as an assignee,
Upright, has no greaterright to maintain the suit than his
assignor.
Justice Streit of the Trial Court ruled that the defense
wasvalid and upheld the well-established rule that
anunrecognized government could not sue, therefore
theassignee of said unrecognized government could
likewisenot sue.ISSUES
W/N the TC erred in ruling that Upright could not sue
basedsolely on unrecognition; and
W/N the transaction entered into was illegal or
againstpublic policy (This issue has to be resolved to
determine ifan assignee of an unrecognized government
could sue beforethe courts)HELD1.
Yes, the TC erred.
Justice Breitel ruled that the “political” decision not to
recognize a government does not deprive it of a
juridically cognizable” de facto existence.
-
The courts are not precluded by nonrecognitionfrom
considering the effect on private rights of theacts and
laws of such a government, effects thatnonrecognition
plainly could not prevent;nonrecognition does not affect
the capacity of theunrecognized government, its entities,
and personsliving within its territory to trade and to
contract.
While it may be true that the judicial arm obligates itselfto
follow the political arm (like in not recognizing acertain
government), nevertheless, it will notexaggerate or
compound the consequences required bysuch narrow
purposes in construing the rights andobligations affected
by the acts of unrecognizedgovernments
It is insufficient for defendant Mercury merely to allegethe
nonrecognition of the East German Government andthat
Polygraph was organized by and is an arm
PIL – Bernas Cases and Doctrines
andinstrumentality of such unrecognized East
GermanGovernment. The lack of jural status for
suchgovernment or its creature corporation is
notdeterminative of whether transactions with it will
bedenied enforcement in American courts, so long as
thegovernment is not the suitor (since if the
unrecognizedgovernment is allowed to sue, this would be
deemed arecognition of jural status).
It is a false notion, if it prevail anywhere, that
anunrecognized government is always an evil thing and
allthat occurs within its governmental purview are
alwaysevil works. There are many things which may
occurwithin the purview of an unrecognized
governmentwhich are not evil and which will be given
customarylegal significance in the courts of nations which
do notrecognize the prevailing de facto government. In a
timein which governments with established control
overterritories may be denied recognition for many
reasons,it does not mean that the denizens of such
territories orthe corporate creatures of such powers do
not have thejuridical capacity to trade, transfer title, or
collect theprice for the merchandise they sell to outsiders,
even inthe courts of nonrecognizing nations.
Since nonrecognition itself neither prevents
privatetransaction nor bars the courts from considering
them,such transactions are unenforceable only if they
violatea definite public policy.2.
No.
Nonrecognition is a material fact but only a
preliminaryone. The conclusion will depend upon factors
inaddition to that of nonrecognition.
Thus, in order to exculpate defendant from payment
forthe merchandise it has received, it would have to
allegeand prove that the sale upon which the
tradeacceptance was based, or that the negotiation of
thetrade acceptance itself, was in violation of public
ornational policy.
Such a defense would constitute one in the nature
ofillegality and if established would, or at least
might,render all that ensued from the infected
transactionvoid and unenforceable. Defendant buyer
cannot escapeliability merely by alleging and proving that
it dealt with
UK vs. Albania
Brief Fact Summary. The fact that the Albanian (P)
authorities did not make the presence of mines in its
waters was the basis of the United Kingdom (D) claim
against them.
PIL – Bernas Cases and Doctrines

Synopsis of Rule of Law. International obligations in

peace time are created through elementary
consideration.

Facts. The explosion of mines in the Albanian (P) waters

resulted in the death of a British naval personnel. It was
on this basis that the United Kingdom (D) claimed that
Albania (P) was internationally responsible for damages.

Issue. Are international obligations in time of peace

created through elementary consideration?

Held. Yes. International obligations in peace time are

created through elementary consideration. Every state
has an obligation not to knowingly allow its territory to be
used for acts contrary to the rights of other states.

Discussion. In this case, the Court found that the Hague

Convention of 1907 could not be applied but the
Convention was applicable only in time of war. It was on
the basis of the principle of freedom of maritime
communication that this case was decided.

See also: Envi Digest